issue-1996-03-14•Federal Register proposed rules — 1996-03-14
Federal Register proposed rules — 1996-03-14
issue-1996-03-14Federal Register proposed rules — 1996-03-14Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 96-6199 Revision of Filing Requirements
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10522-10526]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6199]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 43, 63, 64, and 65
[CC Docket No. 96-23, FCC 96-64]
Revision of Filing Requirements
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this Notice of Proposed Rulemaking, the Commission proposes
to eliminate thirteen reporting requirements and to reduce the
frequency of six other reporting requirements. These reporting
requirements are variously applicable to interexchange carriers, Bell
Operating Companies, other local telephone companies, and record
carriers. These proposed actions will improve the quality of
information available to the Commission, while at the same time
reducing the reporting burdens imposed on carriers.
DATES: Comments must be submitted on or before April 8, 1996. Reply
Comments must be filed on or before April 23, 1996. Written comments by
the public on the proposed and/or modified information collections are
due on or before April 8, 1996. Written comments must be submitted by
the Office of Management and Budget (OMB) on the proposed and/or
modified information collections on or before May 13, 1996.
ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room
222, Washington, D.C. 20554, with a copy to Nasir Khilji of the Common
Carrier Bureau, 2033 M Street, N.W., Room 500F, Washington, D.C. 20554.
Parties should also file one copy of any documents filed in this docket
with the Commission's copy contractor, International Transcription
Services, Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037.
In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington, DC 20554, or via the Internet to
[email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725-17th Street, N.W., Washington, DC 20503 or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT: Nasir Khilji (202) 418-0958, Common
Carrier Bureau, Industry Analysis Division. For additional information
concerning the information collections contained in this NPRM contact
Dorothy Conway at 202-418-0217, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION:
Synopsis of Notice of Proposed Rulemaking
This is a synopsis of the Commission's Notice of Proposed
Rulemaking in CC Docket No. 96-23, adopted February 20, 1996, and
released February 27, 1996. The full text of this Notice of Proposed
Rulemaking is available for inspection and copying during normal
business hours in the FCC Dockets Branch, Room 230, 1919 M Street,
N.W., Washington, D.C. The complete text may be purchased from the
Commission's copy contractor, International Transcription Service,
Inc., 2100 M Street, N.W., Suite 1400, Washington, D.C. 20037
(telephone (202) 857-3800).
Paperwork Reduction Act: This NPRM contains either a proposed or
modified information collection. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on the
information collections contained in this NPRM, as required by the
Paperwork Reduction Act of 1995, Pub. L. No. 104-13. Public and agency
comments are due at the same time as other comments on this NPRM; OMB
comments are due 60 days from date of publication of this NPRM in the
Federal Register. Comments should address: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology.
OMB Approval Number: None.
Title: Revision of Filing requirements.
Form No.: FCC Report 43.05, FCC 492.
Type of Review: New Collection.
Respondents: Business or other for profit.
[[Page 10523]]
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Estimated Total
Title No. of time per annual
respondents response burden
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1. Circuit Report........................................................ 0 0 0
2. Record Carrier Letter................................................. 0 0 0
3. Report on Inside Wiring Services...................................... 0 0 0
4. ARMIS Service Quality Report, FCC Report 43-05........................ 27 833 44,982
5. FCC 492, Rate of Return Report........................................ 35 8 280
6. New Service Tracking Report........................................... 16 20 104
7. Report of Unsecured Credit to Political Candidates.................... 13 8 104
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Total Annual Burden: 45,686.
Needs and Uses: The Commission proposes to eliminate thirteen
reporting requirements and to reduce the frequency of six reporting
requirements variously applicable to Regional Bell Operating Companies,
other local telephone companies, record carriers, AT&T, and Sprint. The
requirements identified above are subject to the Paperwork Reduction
Act of 1995. The information received will be used to assist the
Federal Communications Commission in performing its public oversight
duties.
I. Summary and Background
1. As part of the President's Regulatory Reform Initiative, each
federal agency was asked to lessen the regulatory burden on the public
by reducing the amount of information the public must provide each
agency.
2. The Commission conducted a review of all reports filed with the
Common Carrier Bureau, including reports not subject to the Paperwork
Reduction Act. As a result of that review, the Commission identified
reporting requirements that can be eliminated or be reduced in
frequency. The Commission proposed to eliminate or reduce in frequency
the following reports:
II. Elimination of Reports
3. Divestiture Reports: On June 14, 1995, the Bureau issued a
Public Notice (``Common Carrier Bureau Solicits Comments on Elimination
of Divestiture Reports,'' Public Notice CC 95-34, June 14, 1995)
soliciting comments on the need to continue several reports established
at the time of the AT&T divestiture [96 FCC 2d 18 (1983), modified, 98
FCC 2d 141 (1984)], that the Bureau determined no longer met the
intended monitoring requirements. As a result of the Bureau's review of
regulations and reporting requirements and the favorable comments filed
pursuant to the Public Notice, the Commission proposed to eliminate the
following reports:
A. Equal Access Progress Report: This report is submitted semi-
annually by AT&T and Regional Holding Companies under Condition 3, AT&T
Divestiture Order.
B. Construction Budget Summary: Condition 10 of the AT&T
Divestiture Order required AT&T and Regional Holding Companies to
submit an annual financial summary of telecommunications facility
construction activity.
C. National Security and Emergency Preparedness Effectiveness: This
report is submitted annually by AT&T and Bellcore under Condition 12,
AT&T Divestiture Order. It lists activities by the carriers to support
national security.
4. AT&T Customer Premises Equipment (CPE) Installation and
Maintenance Report: This report is submitted quarterly by AT&T pursuant
to Furnishing of Customer Premises Equipment and Enhanced Services by
American Telephone and Telegraph Co. [102 FCC 2d 655, (1985), also 104
FCC 2d 739, (1986)]. The report contains the percentage of lines/
circuits not installed by the relevant due date for telephone company
reasons, as well as the percentage of lines/circuits ordered by
unaffiliated vendors. The original purpose of the report was to protect
competitors by monitoring AT&T's installation and maintenance of lines/
circuits to ensure that it is not discriminating against unaffiliated
CPE vendors. In 1991, the Commission eliminated nondiscrimination
reporting for those AT&T network services subject to maximum
streamlined regulation. In 1993, the Commission added AT&T's 800
services to the list of services subject to streamlined treatment.
Since December 1993, AT&T has only provided installation and
maintenance nondiscrimination reports regarding CPE and enhanced
services for analog private line services. Because customer use of such
services has diminished with the increasing introduction of digital
applications, there has been very little reporting activity since 1993.
Therefore, the Commission proposed to eliminate nondiscrimination
reporting requirements regarding both CPE and enhanced services with
respect to the few AT&T services still subject to them.
5. AT&T Service Quality: Equipment Blockage and Failure Report:
This semi-annual report is submitted by AT&T pursuant to Policies and
Rules Regarding Rates for Dominant Carriers [6 FCC Rcd. 2974, (1991)].
The report's objective was to provide the Commission the means to
monitor and ensure that service quality at equal access exchanges is
comparable to service quality at non-equal access exchanges. Because at
the end of 1994, approximately 98% of the nation's lines had been
converted to equal access (in contrast to 86% in 1989), this report is
no longer relevant for the purposes originally intended. Therefore the
Commission proposed to eliminate it.
6. AT&T Nondiscrimination Report for Enhanced Services Providers:
AT&T submits this report on a quarterly basis pursuant to Amendment of
Section 64.702 of the Commission's Rules and Regulations, (``Third
Computer Inquiry'') [52 FR 20714, June 3, 1987]. In these reports, AT&T
must compare the level of service provided to enhanced service
affiliates with that provided to enhanced service competitors. As
discussed above, following the Commission's orders streamlining the
regulation of AT&T's services, very few AT&T services remain subject to
enhanced services nondiscrimination reporting, and those few are so
rarely used that this reporting requirement was proposed to be
eliminated.
7. BOC Customer Premises Equipment (CPE) Installation and
Maintenance Report; BOC Customer Premises Equipment Affidavits for Non-
Discriminatory Provision of Network Maintenance: The BOC CPE
installation and maintenance report is a quarterly report required by
Furnishing of Customer Premises Equipment by the Bell Operating
Telephone Companies and the Independent Telephone Companies [52 FR
2226, January 21, 1987]. The Report compares the number and/or
percentage of lines/circuits not installed by the BOC by the requested
date for affiliated and unaffiliated CPE vendors, so that the FCC may
monitor whether the BOCs are discriminating
[[Page 10524]]
against unaffiliated CPE vendors with respect to installation and
maintenance. As an alternative to submitting a quarterly CPE
maintenance report described above, a BOC may instead submit an annual
affidavit certifying that it has not discriminated in the provision of
network installation and maintenance. The Commission originally adopted
this alternative maintenance certification scheme in the belief that it
was unlikely that BOCs could or would discriminate based on the
identity of the CPE vendor in providing network maintenance services.
8. In the eight years since the Commission established the
foregoing nondiscrimination reporting and alternative affidavit
requirements, the Commission received no formal complaints from any
party alleging unlawful discrimination by a BOC in the provision of
installation and maintenance services. The Commission proposed the
elimination of these requirements in light of regulatory alternatives
and burdens imposed on carriers and solicited comment on the costs and
benefits of eliminating the foregoing requirements.
9. BOC Sales Agency Program and Vendor Support Program Report: This
report is submitted annually by each BOC pursuant to the BOC CPE Relief
Order [2 FCC Rcd 156]. The report contains information on the Bell
Operating Companies' sales agency programs and vendor sales activity.
The original purpose of the report was to ensure that the BOCs provide
independent CPE vendors with meaningful opportunities to market their
CPE jointly with BOC network services. At the present time, these sales
agency reports are not generally used by independent CPE vendors, and
that, therefore, they may not as a practical matter serve the purposes
for which they were intended. Accordingly, the Commission proposed to
eliminate the requirement to file these reports.
10. Billing and Collection Contracts: This report is submitted by
local exchange carriers (LECs) on an as-needed basis pursuant to the
Common Carrier Bureau's Public Notice released in CC Docket No. 85-88
[2 FCC Rcd 809 (Com. Car. Bur. 1987)]. Each LEC provides a list of all
billing and collection contracts under which it provides such services.
From time to time as necessary, the LEC updates the list on file with
the Commission. As LECs previously enjoyed a virtual monopoly on
certain information necessary for the billing and collection of end-
users, this service was in the past subject to tariff. However, as non-
LECs gained access to such information and the service became more
competitive, the Commission relaxed the tariff requirement and simply
required these LECs to file lists of those contracts. Because such
lists are seldom used by the staff or the public the Commission
proposed to eliminate this reporting requirement entirely.
11. Circuit Report: Section 63.07(b) of the rules requires non-
dominant carriers that construct or acquire initial or additional
circuits to file a report concerning these circuits semi-annually on
February 1 and August 1 of each year. These reports provide information
on interstate communications facilities constructed and operated by
nondominant carriers. This information permits the Commission to
perform a public interest assessment of the facilities investments of
these carriers, as envisioned in its Competitive Carrier Proceeding [45
FR 76148, November 18, 1980]. As a practical matter, it is no longer
necessary to require these reports on a routine basis from all
nondominant carriers. Instead, the Commission can obtain this
information in individual instances when a direct regulatory need for
it arises. Accordingly, the Commission proposed the elimination of the
present requirement that nondominant carriers file semi-annual circuit
reports.
12. Record Carrier Letter: Each record carrier with operating
revenues over $75 million for a calendar year is required, under
Section 43.21(d) of the Commission's Rules, to file a letter showing
selected balance sheet and income items for that year with the Common
Carrier Bureau Chief. The financial statement summary provides an
indication of record carrier business. In the 1950s, 80 percent of
international traffic was handled by record carriers. In 1994 this
report was filed by two carriers representing 2 percent of the market.
For 1995 it is anticipated that only one carrier will file. The
Commission tentatively concluded that this report was no longer needed
and proposed to eliminate it.
13. Report on Inside Wiring Services: This report is submitted by
each local exchange carrier with annual operating revenues of $100
million or more under Section 43.41 of the Commission's Rules. This
rule applies only to the local exchange carrier serving the greatest
number of access lines within the portions of the state that are, or
would be, subject to the state regulation.
14. The report contains copies of any state or local statute,
order, rule, law or other documents that regulate or propose to
regulate local exchange carrier prices for inside wiring services. This
reporting requirement was established to gain information about
regulations at the state level and their potential impact on federal
wiring policy. The Commission sought comment on eliminating this
report.
III. Reduction of Reporting Frequency
15. Armis Service Quality Report 43-05: These reports are submitted
quarterly by every local exchange carrier for which price cap
regulation is mandatory and for every local exchange carrier that
elects to be covered by the price cap rules. This report was
established to enable the Commission to observe the success of
incentive regulation and to become aware of any reduction of service
quality or infrastructure investment. The states have been increasingly
active in monitoring the quality of service. The Commission concluded
that there was no need to require this report on a quarterly basis and
proposed requiring the report to be submitted semi-annually.
16. Form 492: Rate of Return Report: This report is submitted
quarterly by non price cap companies (Non Price Cap LECS) and NECA. The
report is one page in length and contains total revenues, total
expenses and taxes, operating income and the rate base for each
company. While the Commission felt that the data was still needed to
ensure that non price cap companies do not exceed the authorized rate
of return, it determined that this purpose could also be accomplished
by reducing the report's frequency. The Commission proposed requiring
this report annually.
17. Joint Board Monitoring Program--Pooling: This report is
submitted by NECA on a monthly (summary of pool results), and an annual
(long term support) basis under Sections 69.605 and 69.612 of the
Commission's Rules. The report contains NECA pooling data and long-term
support data. It was established to keep track of subsidy flows and
administrative costs of administering the subsidies. These purposes can
still be accomplished by quarterly submissions. The Commission
therefore proposed to reduce the frequency of this report to a
quarterly submission.
18. New Service Tracking Report: This report is submitted quarterly
by LECs subject to price cap regulation, under requirements imposed by
the Commission. These reports are employed to conduct studies to
determine reliability of price cap carrier new service projections. The
Commission determined that while the data was still needed, this
purpose could be accomplished by reducing the
[[Page 10525]]
reporting frequency. Therefore, it proposed reducing the frequency of
this submission to an annual report.
19. Payphone Compensation: This report is required to be submitted
quarterly by AT&T and Sprint under a waiver granted in connection with
CC Docket No. 91-35 [CC Docket No. 91-35, 10 FCC Rcd 1590 (1994); 10
FCC Rcd 5490 (1995)]. The report consists of a brief paragraph
delineating the names and amounts of compensation paid to private
payphone operators for interstate traffic that originated from those
payphones. This requirement was established to monitor pay-phone
compensation paid on a different basis than that provided for in the
Docket. This report will only be needed until the conclusion of the
payphone compensation rulemaking within the next two years and the
burden is minimal. The Commission determined that the frequency of this
report could be reduced and proposed a semi-annual submission.
20. Report of Unsecured Credit to Political Candidates: This report
is submitted semi-annually by all carriers having operating revenues in
excess of $1 million for the preceeding year. It shows, by account, any
amount due and unpaid as of the end of the month prior to the reporting
date for interstate and for communications services rendered by or on
behalf of candidates for Federal office, when such amount results from
the extension of unsecured credit. The reporting requirement was
established pursuant to Section 401 of the Federal Election Campaign
Act of 1971. This report serves as a check on the implied contributions
by carriers to candidates for Federal office. The Commission solicited
comment on whether a reduced frequency could accomplish the same
objective. It proposed to reduce the frequency of this report and
instead require that it be submitted annually if there was a reasonable
basis in the record for concluding that this would sufficiently meet
the purposes of the Federal Election Campaign Act of 1971.
IV. Procedural Rules
21. The Commission believed that it would facilitate resolution of
the issues raised in this proceeding to provide that the Chief, Common
Carrier Bureau, acting pursuant to delegated authority, would determine
whether to adopt the proposals set forth in this Notice of Proposed
Rulemaking. It delegated to the Chief of the Common Carrier Bureau the
authority to issue any necessary reports or orders arising from this
rulemaking proceeding. Therefore, in that regard, it waived, for this
proceeding only, Section 0.291(h) of the Commission's Rules, 47 CFR
0.291(h), which prohibits the Chief of the Common Carrier Bureau from
issuing reports or orders arising from a proposed rulemaking.
22. Initial Regulatory Flexibility Analysis. This was not required
as there were no small entities affected by the proposals described in
this document.
23. Ex Parte Rules Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking. See 47 CFR 1.399 et seq. Ex
Parte presentations are permitted, except during the Sunshine Agenda
period, provided they are disclosed as provided in Commission rules.
See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
24. Comment Filing Dates. Pursuant to applicable procedures set
forth in Sections 1.399 and 1.411 et seq. of the Commission's rules, 47
CFR 1.399 and 1.411 et seq., interested parties may file comments with
the Secretary, Federal Communications Commission, Washington, D.C.
20554 on or before April 8, 1996, and reply comments on or before April
23, 1996. To file formally in this proceeding, participants must file
an original and four copies of all comments, reply comments, and
supporting comments. If participants want each Commissioner to receive
a personal copy of their comments, an original plus nine copies must be
filed. Parties should also file one copy of any documents filed in this
docket with the Commission's copy contractor, International
Transcription Services, Room 140, 2100 M Street N.W., Washington, D.C.
20037. Parties should also submit one copy of any documents filed in
this docket with Nasir Khilji, Industry Analysis Division, Common
Carrier Bureau, Room 500F, 2033 M Street, N.W., Washington, D.C. 20554.
Comments and reply comments will be available for public inspection
during regular business hours in the FCC Reference Center (Room 239) of
the Federal Communications Commission, 1919 M Street, N.W., Washington,
D.C. 20554.
V. Ordering Clauses
25. Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j),
201-205, 218, 226, and 303(r) of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j), 201-205, 218, 226, 303(r), that
a Notice of Proposed Rule Making is issued, proposing the amendment of
various Commission's rules as set forth below.
26. It is further ordered, that the Chief of the Common Carrier
Bureau is delegated authority to issue any necessary reports or orders
arising from this rulemaking proceeding. It is further ordered, that
for this proceeding and for the purposes described above, Section
0.291(h) of the Commission's Rules, 47 CFR 0.291(h), waived.
27. It is further ordered, That the Secretary shall mail a copy of
this Notice of Proposed Rule Making to the Chief Counsel for Advocacy
of the Small Business Administration, in accordance with section 603(a)
of the Regulatory Flexibility Act, 5 U.S.C. 603(a). The Secretary shall
also cause a summary of this Notice to appear in the Federal Register.
List of Subjects
47 CFR Part 43
Communications common carriers, Reporting and recordkeeping
requirements, Telegraph, Telephone.
47 CFR Part 63
Communications common carriers, Reporting and recordkeeping
requirements, Telephone.
47 CFR Part 64
Communications common carriers, Reporting and recordkeping
requirements, Telephone, Credit, Political candidate.
47 CFR Part 65
Communications common carriers, Reporting and record-keeping
requirements, Telephone.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Parts 43, 63, 64, and 65 of title 47 of the code of federal
regulations are proposed to be amended as follows:
PART 43--REPORTS OF COMMUNICATION COMMON CARRIERS AND CERTAIN
AFFILIATES
1. The authority citation for Part 43 continues to read as follows:
Authority: Sections 4(i), 4(j), 201-205, 303(r) and 403 of the
Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 201-205,
303(r), 403, unless otherwise noted.
2. Paragraph (d) of Sec. 43.21 is revised to read as follows:
Sec. 43.21 Annual reports of carriers and certain affiliates.
* * * * *
(d) Each miscellaneous common carrier (as defined by Sec. 21.1 of
this chapter) with operating revenues over $100 million for a calender
year shall file with the Common Carrier Bureau Chief a letter showing
its operating revenues for that year and the value of
[[Page 10526]]
its total communications plant at the end of that year. This letter
must be filed by March 31 of the following year.
* * * * *
3. Section 43.41 is removed and reserved.
PART 63--EXTENSION OF LINES AND DISCONTINUANCE, REDUCTION, OUTAGE
AND IMPAIRMENT OF SERVICE BY COMMON CARRIER; AND GRANTS OF
RECOGNIZED PRIVATE OPERATING AGENCY STATUS
4.The authority citation for Part 63 continues to read as follows:
Authority: Sections 4(i), 4(j), 201-205, 303(r) and 403 of the
Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 201-205,
303(r), 403, unless otherwise noted.
5. Section 63.07 is amended by removing paragraph (b) and
redesignating paragraph (c) as paragraph (b).
PART 64--MISCELLANEOUS RULES RELATING TO COMMON CARRIERS
6. The authority citation for Part 64 continues to read as follows:
Authority: Sections 4(i), 4(j), 201-205, 303(r) and 403 of the
Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 201-205,
303(r), 403, unless otherwise noted.
7. Section 64.804 is amended by revising the first sentence of
introductory paragraph (g) to read as follows:
Sec. 64.804 Rules governing the extension of unsecured credit to
candidates or persons on behalf of such candidates for Federal office
for interstate and foreign common carrier communication services.
* * * * *
(g) On or before January 31, 1997, and the corresponding date of
each year thereafter, each carrier which had operating revenues in the
preceeding year in excess of $1 million shall file with the Commission
a report by account of any amount due and unpaid, as of the end of the
month prior to the reporting date, for interstate and foreign
communication services rendered to a candidate or person on behalf of
such candidate when such amount results from the extension of unsecured
credit.* * *
* * * * *
PART 65--INTERSTATE RATE OF RETURN PRESCRIPTION PROCEDURES AND
METHODOLOGIES
8. The authority citation for Part 65 continues to read as follows:
Authority: Sections 4(i), 4(j), 201-205, 303(r) and 403 of the
Communications Act of 1934, 47 U.S.C. 154(i), 154(j), 201-205,
303(r), 403, unless otherwise noted.
9. Section 65.600 is amended by revising paragraph (b) to read as
follows:
Sec. 65.600 Rate of return reports.
* * * * *
(b) Each local exchange carrier or group of affiliated carriers
which is not subject to Secs. 61.41 through 61.49 of this chapter and
which has filed individual access tariffs during the preceding
enforcement period shall file with the Commission within three (3)
months after the end of each calender year, an annual rate of return
monitoring report. Each report shall contain two parts. The first part
shall contain rate of return information on a cumulative basis from the
start of the enforcement period through the end of the year being
reported. The second part shall contain similar information for the
most recent year. The final annual monitoring report for the entire
enforcement period shall be considered the enforcement period report.
Reports shall be filed on the appropriate report form prescribed by the
Commission (see Sec. 1.795 of this chapter) and shall provide full and
specific answers to all questions propounded and information requested
in the currently effective report form. The number of copies to be
filed shall be specified in the applicable report form. At least one
copy of the report shall be signed on the signature page by the
responsible officer. A copy of each report shall be retained in the
principal office of the respondent and shall be filed in such manner as
to be readily available for reference and inspection. Final adjustments
to the enforcement period report shall be made within fifteen (15)
months following the enforcement period to ensure that any refunds can
be properly reflected in an annual access filing.
* * * * *
[FR Doc. 96-6199 Filed 3-13-96; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-6175 Roadway Worker Protection
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10528-10548]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6175]
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DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 214
[FRA Docket No. RSOR 13, Notice No. 6]
RIN 2130-AA86
Roadway Worker Protection
AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).
ACTION: Notice of proposed rulemaking.
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SUMMARY: FRA proposes rules for the protection of railroad employees
working on or near railroad tracks. This regulation would require that
each railroad devise and adopt a program of on-track safety to provide
employees working along the railroad with protection from the hazards
of being struck by a train or other on-track equipment. Elements of
this on-track safety program would include an on-track safety manual; a
clear delineation of employers' responsibilities for providing on track
safety, as well as employees' rights and responsibilities related
thereto; well defined procedures for communication and protection; and
annual on-track safety training. The program adopted by each railroad
would be subject to review and approval by FRA.
DATES: (1) Written comments must be received no later than May 13,
1996. Comments received after that date will be considered to the
extent possible without incurring additional expense or delay. Requests
for formal extension of the comment period must be made by April 29,
1996.
(2) Requests for a public hearing must be made by April 15, 1996.
Addresses: Written comments should be submitted to the Docket Clerk,
Office of Chief Counsel, Federal Railroad Administration, 400 Seventh
Street SW., Washington, DC 20590. Persons wishing notification that
their comments have been received should submit a stamped, self-
addressed postcard with their comments. The Docket Clerk will indicate
on the postcard the date on which the comments were received and will
return the card to the addressee. Written comments will be available
for examination, both before and after the comment period closes,
during regular business hours in Room 8201 of the Nassif Building
located at the address listed above. Any person interested in
requesting a hearing should contact the Docket Clerk at (202) 366-2257.
FOR FURTHER INFORMATION CONTACT: Gordon A. Davids, P.E., Bridge
Engineer, Office of Safety, FRA, 400 Seventh Street SW., Washington, DC
20590 (telephone: 202-366-0507); Phil Olekszyk, Deputy Associate
Administrator for Safety Compliance and Program Implementation, FRA,
400 Seventh Street SW., Washington, DC 20590 (telephone: 202-366-0897);
or Cynthia Walters, Trial Attorney, Office of Chief Counsel, FRA, 400
Seventh Street SW., Washington, DC 20590 (telephone: 202-366-0621).
Supplementary Information:
Comments and Hearing
In accordance with Executive Order 12866, FRA is allowing 60 days
for comments. FRA believes that a 60 day comment period is necessary
for parties with interests that were not represented on the Advisory
Committee. Public hearings are generally held to provide interested
parties an opportunity for oral presentations of data, views, or
arguments concerning the proposed standards. Proceeding pursuant to
regulatory negotiation has allowed participation by the public and a
public hearing will only be scheduled, if requested.
Introduction
Background
Concern regarding hazards faced by roadway workers has existed for
many years. The FRA received a petition to amend its track safety
standards from the Brotherhood of Maintenance of Way Employees (BMWE)
in 1990, which included issues pertaining to the hazards faced by
roadway workers. This proceeding, however, formally originated with the
Rail Safety Enforcement and Review Act, Public Law No. 102-365, 106
Stat. 972, enacted September 3, 1992, which required FRA to review its
track safety standards and revise them based on information derived
from that review. FRA issued an Advanced Notice of Proposed Rulemaking
(ANPRM) on November 16, 1992 (57 FR 54038) announcing the opening of a
proceeding to amend the Federal Track Safety Standards.
Workshops were held in conjunction with this effort, to solicit the
views of the railroad industry and representatives of railroad
employees on the need for substantive change in the track regulations.
A workshop held on March 31, 1993 in Washington, D.C., specifically
addressed the protection of employees from the hazards of moving trains
and equipment. The subject of injury and death to roadway workers was
of such great concern that FRA received petitions for emergency orders
and requests for rulemaking from both the Brotherhood of Maintenance-
of-Way Employees and the Brotherhood of Railroad Signalmen. FRA did not
grant the petitions for emergency orders, but instead initiated a
separate proceeding to consider regulations to eliminate hazards faced
by these employees. FRA removed this issue from the track standards
docket, FRA Docket No. RST-90-1 and established a new docket, FRA
Docket No. RSOR 13, specifically to address hazards to roadway workers
to expedite the effective resolution of this issue.
FRA also determined that standards addressing this issue would be
more closely related to workplace safety than to standards addressing
the condition of railroad track. Since Railroad Workplace Safety is
addressed in 49 CFR Part 214, standards issued for the protection of
[[Page 10529]]
roadway workers would be better categorized in this section, than Part
213, Track Safety Standards. Accordingly, the minimum standards
proposed in this notice would amend Part 214 of Title 49, Code of
Federal Regulations by adding a new subpart, Subpart C, addressing
hazards to roadway workers.
FRA convened a Safety Summit Meeting on June 3, 1994 with affected
railroad industry, contractor, and labor representatives. This meeting
considered certain aspects of FRA accident data involving roadway
workers. The meeting also facilitated a discussion of various short-
term and long-term actions that could be taken by FRA and the industry
to prevent injuries and deaths among roadway workers. One long-range
alternative suggested by FRA was to use the negotiated rulemaking
process to allow input from both railroad management and labor to
develop standards addressing this risk. The agency determined that this
was an appropriate subject for a negotiated rulemaking, and initiated
this process.
FRA published its notice of intent to establish a Federal Advisory
Committee for regulatory negotiation on August 17, 1994 (59 FR 42200).
This notice stated the purpose for the Advisory Committee, solicited
requests for representation on the Advisory Committee, and listed the
key issues for negotiation. Additionally, the notice summarized the
concept of negotiated rulemaking including an explanation of consensus
decision making. The Advisory Committee would be responsible for
submitting a report, including an NPRM, containing the Committee`s
consensus decisions. If consensus was not reached on certain issues,
the report would identify those issues and explain the basic
disagreement. Pursuant to negotiated rulemaking, FRA committed the
agency to issue a proposed rule as recommended by the committee unless
it was inconsistent with statutory authority, agency or legal
requirements, or if in the agency`s view the proposal did not
adequately address the subject matter. FRA agreed to explain any
deviations from the committee`s recommendations in the NPRM.
FRA established an Advisory Committee in accordance with the
Federal Advisory Committee Act, 5 U.S.C. 581, based on the response to
its notice. On December 27, 1994, the Office of Management and Budget
approved the Charter to establish a Roadway Worker Safety Advisory
Committee, enabling the committee to begin negotiations. FRA announced
the establishment of this Advisory Committee, with the first
negotiating session to be held on January 23-25, 1995 (60 FR 1761). FRA
chose the Federal Mediation and Conciliation Service to mediate these
sessions, and administrative support was acquired to carry out
organizational and record keeping functions.
The twenty-five member Advisory Committee was comprised of
representatives from the following organizations:
American Public Transit Association (APTA)
The American Short Line Railroad Association (ASLRA)
Association of American Railroads (AAR)
Brotherhood of Locomotive Engineers (BLE)
Brotherhood of Locomotive Engineers, American Train Dispatchers
Department (ATDD)
Brotherhood of Maintenance of Way Employees (BMWE)
Brotherhood of Railroad Signalmen (BRS)
Burlington Northern Railroad (BN)
Consolidated Rail Corporation (Conrail)
CSX Transportation, Inc. (CSX)
Florida East Coast Railway Company (FEC)
Federal Railroad Administration (FRA)
Northeast Illinois Regional Railroad Corporation (METRA)
National Railroad Passenger Corporation (AMTRAK)
Norfolk Southern Corporation (NS)
Regional Railroads of America (RRA)
Transport Workers Union of America (TWU)
Union Pacific Railroad Company (UP)
United Transportation Union (UTU)
The Advisory Committee held 7 multiple-day negotiating sessions
that were open to the public, as prescribed by the Federal Advisory
Committee Act, 5 U.S.C. 581. In an effort to assist this proceeding,
information was presented at the first Advisory Committee meeting by
committee members who had participated earlier in an independent task
force. This task force, comprised of representatives of several
railroads and labor organizations, had met during the preceding year to
independently analyze the issue of on-track safety. The findings and
recommendations of the task force were considered along with
information presented by other Advisory Committee members.
The Advisory Committee reached consensus on 11 specific
recommendations and 9 general recommendations to serve as the basis for
a regulation. These recommendations were incorporated into a report
that was submitted to the Secretary of Transportation and the Federal
Railroad Administrator on May 17, 1995. This report did not include an
NPRM, as originally conceived, but established the basis for the
proposed rule, which is the subject of this notice.
The Advisory Committee held one additional two-day session, and
reached consensus on a proposed rule that conformed to the
recommendations submitted in their report. The Committee recommended
that FRA publish that document as a proposed Federal regulation and
continue the rulemaking procedures necessary to adopt its principles in
a final rule. The differences in substance between this proposed rule
and that recommended by the Advisory Committee are enumerated below,
with the reasons therefore.
Safety Issues
Early Efforts
FRA attempted to analyze the safety concerns, known risks, and
prevention methods during the March, 1993 workshop. Information derived
from that workshop focused the agency's efforts. Discussions indicated
that major carriers, regional railroads, short lines, and commuter
railroads had rules addressing the hazards associated with working on
and near railroad track. Railroad representatives at the workshop
explained the safety procedures used on their respective properties,
including the use of watchmen, protection from trains on adjacent
tracks, use of radios, establishing working limits, use of line-ups,
slowing the speed of trains, protection while using maintenance of way
equipment, training, efficiency testing, and other related topics. The
concept of allowing workers the right to question the system set up for
their protection was also introduced into the discussion.
FRA presented information from its data base regarding employee
fatalities for the years 1988 through 1993 and attempted to categorize
the risks associated with these fatalities. FRA identified 23 accidents
resulting in fatalities and categorized these accidents into 6 groups:
employees struck by a train on live track while not directly engaged in
work, accounting for 11 fatalities; employees struck by a train while
directly engaged in work, accounting for 3 fatalities; employees struck
by a train or rolling stock moving without authority, accounting for
one fatality; employees who fell from track machines, accounting for 2
fatalities; employees struck by moving track machinery, accounting for
5 fatalities; and improper machine operation, accounting for one
fatality.
Although there was disagreement regarding FRA's designation of
certain accidents as belonging in certain categories, the discussion
successfully delineated the risks affecting workers and whether carrier
rules would have applied. This initial attempt to
[[Page 10530]]
categorize accident data provided the framework for additional analysis
of the safety problem. The following emerged:
A. Persons Affected by This Rule
One topic discussed was the scope of the population of employees
exposed to this risk. Attention was focused on terminology that would
appropriately describe the population of employees who were at risk of
death or injury while working on or about the track. All participants
agreed that the risk of injury or death to those working on or about
track is not restricted to a particular craft or class of employees. To
assure understanding of the broad reach of the proceeding, FRA coined
the term roadway worker and proposed use of that term in its Notice of
Intent.
B. The Specific Issues
FRA's Notice of Intent listed several specific issues for
negotiation by the Advisory Committee. FRA did not limit negotiations
to these subjects only, but determined that the following issues should
be covered:
The availability of any devices to reduce the risk of
danger to roadway workers and any costs associated with such devices;
Any additional or revised procedures or operating
practices that could be instituted to effectively reduce the risk of
danger, and any costs associated with these procedures;
Training programs that would reduce the risks of danger to
roadway workers, the proper intervals for such training, and the costs
associated with that training;
The topographical, environmental, or operational
conditions that must be considered in developing a program to reduce
the risks of harm to roadway workers and the costs of addressing these
conditions;
Possible variations in programs according to size of
railroads, and an explanation regarding why these variations are
necessary;
The recordkeeping and reporting requirements necessary to
implement programs to advance the safety of roadway workers, and the
cost of these requirements;
The enforcement procedures FRA would utilize to ensure
compliance with any rule that is developed;
Any additional benefits resulting from a rule, aside from
the obvious reduction of risk of injury and death;
The usefulness of operating practices currently used by
any particular railroad, their background, implementation,
effectiveness, and cost.
Accident Data and Statistical Analysis
FRA published a report entitled Engineering Department Fatalities
Resulting from the Operation or Maintenance of On-Track Equipment,
representing the findings of FRA's investigation of 22 Engineering
Department railroad employee fatalities during calendar years 1989-
1993. The document was officially published in 1994, but the
information was compiled in 1993, and was used in preliminary
discussions regarding on-track safety, beginning with the March, 1993,
workshop. Four categories of causes were established: struck by a
train, struck by on-track maintenance of way equipment, crushed or
pinned by on track equipment, and struck by free-rolling equipment.
A summary of information gathered from the investigation of each
accident was included in the report. This document provided an
information base from which to isolate causes and contributing factors
that could be addressed in a proposed rule. FRA accident data provided
the statistical basis to focus efforts toward certain prevention
measures.
The independent labor management task force mentioned earlier also
conducted an analysis of accident data. They focused on 43 accidents
resulting in 46 roadway worker fatalities from 1986 through 1994. They
also used data regarding 150 injuries to roadway workers reported to
FRA from 1989 through 1994, and additional injury data submitted from
carrier files. Questionnaires regarding the current industry practice
for roadway worker safety were submitted by representatives from
management and labor and reviewed by the task force. The cumulative
effort of the task force included review of over 2,600 FRA reports as
well as review of available NTSB reports related to roadway worker
fatalities and injuries.
The data analysis conducted by the independent task force suggested
that there were identifiable trends regarding these fatal accidents.
The following are examples of patterns discovered in the accident data:
Higher numbers of fatalities seem to occur in the fall and
winter months of October, November, December, and January, but two
summer months, May and July, also have a high number of fatalities.
Fatalities tend to occur more often on Wednesdays and
Thursdays.
The highest number of fatalities tend to occur around 9:00
a.m. or 10:00 a.m.
The largest number of employees killed are between the
ages of 40 and 49 years old. These individuals generally have at least
15 years of railroad experience, with some having more than 20 years of
experience.
The largest number of fatalities occurred within
approximately six months following rules training and safety training.
Most fatalities occurred while some form of protection
system was available or in use.
Maintenance of Way employees and Signal employees had the
highest number of fatalities.
There are numerous possible explanations for these trends. Multiple
factors may have contributed to these incidents, and isolating a single
distinct cause or explanation is virtually impossible. Inclusion of
these patterns was not intended for that purpose, but to merely to
inform the group of identifiable tendencies that appear in the accident
data.
Advisory Committee Report
As noted earlier, the Advisory Committee reached consensus on a
report containing 11 specific recommendations and 9 general
recommendations. The specific recommendations provided the concepts
that formed the basis for the text of this proposed rule. The data
review by the independent task force and the Advisory Committee
revealed other useful information regarding conditions that need
special emphasis in the on-track safety programs. The Advisory
Committee made the general recommendation that this information should
be published by FRA with this rule.
This information identifies particular conditions to which roadway
workers should devote special attention, as they appear to be more
problematic than others. This information and other relevant trends are
included here, so that these facts might be considered by railroads
when devising on-track safety programs.
Analysis of the data indicates that 16% of the fatal accidents and
37% of the injury incidents were the result of on-track equipment
striking roadway workers or other roadway equipment. The Advisory
Committee concluded that training, job briefings, and operation of on-
track equipment should place special emphasis on:
Attention to visibility/stopping distance
Review of stopping capability and limitations
Purpose and limits of work zones
Attention to existing weather conditions
[[Page 10531]]
Importance of maintaining proper equipment spacing
Briefing concerning joint track occupancy
Procedures for traveling on track
Further analysis indicated that 35% of non-fatality incidents were
on Thursdays, and 50% of non-fatality incidents occurred between 7:30
a.m. and 10:30 a.m. to Maintenance of Way roadway workers. The
Committee could not explain this trend with any degree of certainty.
However, it was generally agreed that special emphasis to alert
Maintenance of Way roadway workers to these facts must be made in
safety awareness training during job briefings, safety meetings and
rules training.
The Committee also discovered that 69% of fatal incidents to signal
maintainers occurred during November, December, and January. The
Committee recommended that employers should consider and point out this
fact in safety awareness training during job briefings, safety
meetings, and rules training.
Considerable discussion in the Committee sessions centered around
training. Because statistics indicate that 65% of the fatally-injured
roadway workers had attended rules training within the previous 12
months, the Advisory Committee concluded that training must be
improved. Areas to focus on for improvement would include:
Curriculum development and content
Learning environment
Presentation and interactive instruction
Understanding and application
Peer training
On-Track Safety specific subjects
It had been thought by some that employees involved in these
accidents were generally among newer employees who perhaps were not
familiar with the railroad environment. Contrary to this likely
assumption, the data indicated that 26% of the fatalities involved
supervisory employees. These roadway workers are familiar with the
railroad environment and protection methods, and had many years of
railroad experience. The Committee therefore concluded that additional
emphasis should be placed on the following:
Selection of Managers
Quality of Training
Management commitment to on-track safety
Priority to on-track safety
Serving as a role model
The negotiated rulemaking process has been a success. Continued
joint efforts such as this should be of great benefit to the railroad
industry, its employees, and the public. In recognition of this, the
Advisory Committee adopted the following recommendations to foster
continued collaboration among the interested parties:
Establish a joint labor/management/FRA process to evaluate
analyze and encourage emerging technologies which may enhance roadway
on-track worker safety. This recommendation is made to allow prompt and
thorough evaluation of such emerging technology.
The Joint Labor-Management On-Track Safety Task Force
should meet on a periodic basis (at least semi-annually) to review
progress, to review current data and to continue a joint labor/
management dialogue seeking ways to improve roadway worker on-track
safety.
It should be noted that the Joint Labor-Management On-Track Safety
Task Force is not the Federal Advisory Committee on Roadway Worker
Protection, nor does the Joint Task Force have any official standing
with the Federal government. The Federal Advisory Committee recommended
that the Joint Labor-Management On-Track Safety Task Force remain in
existence and meet periodically, and to the extent that the parties
represented on the Task Force elect to do so, it undoubtedly will. FRA
encourages close cooperation among the various parties and interests to
resolve safety problems both in this rule and as a matter of good
public policy. FRA also gives considerable attention to proposals that
represent a consensus of the interested parties, and anticipates that
the Joint Labor-Management On-Track Safety Task Force will facilitate
this type of cooperative effort.
Scope of the Rule
FRA and the Advisory Committee deliberated at length over how much
the proposed rule would cover. Scoping discussions ranged from who
would be covered under this rule, as discussed earlier, to what
measurement of the surrounding track space places an employee in danger
of being struck by a train or moving equipment. During these
discussions, two additional issues surfaced requiring an explanation of
who would be covered under this rule, contractors and tourist
railroads.
Contractors
FRA realizes that parties who have not traditionally been
considered railroads will be affected by this regulation. The decision
to include employees of contractors as roadway workers in this
regulation was a well-reasoned one. FRA's objective was to promulgate
standards applicable to anyone working on or about railroad tracks who
may be in danger while performing their duties. The craft or job title
of an employee is of little relevance. Equally irrelevant is whether an
employee is paid by a railroad or by a contractor engaged by a
railroad. The most important issue is the prevention of deaths and
injuries. FRA holds no position on the practice of a railroad
contracting work out to another company, but FRA strongly believes that
contractor employees are entitled to the same level of safety as
railroad employees. To the extent that contractor employees work under
circumstances presenting the hazards addressed here they must be
protected.
FRA understands the circumstances under which many contractors
conduct their work and realizes that adhering to the standards of this
rule may appear burdensome to contractors. However, a closer
examination of the standards in the rule shows that contractors will
not normally devise their own on-track safety programs, but would
follow the programs established by the railroads on which they are
working. Most of a contractor's employee training will be of a basic
nature, as railroad employees are usually working with and protecting
contractors working near moving trains. Those railroad employees will
normally arrange protection in accordance with the rules and procedures
of the railroad.
Contractors will, however, be responsible for compliance with this
subpart. They are responsible as employers to ensure that their
employees have protection prior to assigning them to work on or near
the track, and to ensure that their employees have been properly
trained to work safely in the railroad environment. Since contractors
were not represented on the Advisory Committee, FRA specifically
invites comments from contractors on this proposed rule.
Tourist Railroads
Tourist and excursion railroads that operate on the general system
of railroad transportation will be included. Tourist and excursion
railroads that do not operate on the general system will be excluded.
FRA realizes that adhering to the standards in this rule may appear
burdensome to railroads operating in the tourist industry. However, a
closer examination of the issue reveals that many tourist railroads
operating on the general system actually operate on track owned by
another railroad. Those tourist railroads would be required to follow
the rules of the track owners, if they were to operate over that
portion of track or conduct any maintenance on that portion of track.
[[Page 10532]]
Additionally, it is FRA's understanding that many tourist and
excursion railroads do not conduct their maintenance work under
traffic, but do so during periods when there is little or no traffic.
Therefore, any program devised to adhere to the standards of this
subpart by a tourist railroad could be fairly simple, and any required
training for roadway workers would be of a basic and general nature.
FRA does not intend to unduly burden railroads operating in the
tourist industry. However, if these railroads are going to operate in
the general system of transportation and there is any chance that their
employees will be confronted with the risk of injury and death from
trains or moving equipment, they must adhere to the standards of this
regulation. Since tourist railroads were not represented on the
Advisory Committee, FRA specifically invites comments from tourist
railroads on this proposed rule.
Rights and Responsibilities of Employees and Employers
FRA agreed with the Advisory Committee that roadway workers must
understand, and therefore must be able to review and question, on-track
safety provisions. The proposed rule therefore provides that a roadway
worker who finds that the on-track safety provisions in place do not
comply with the rules of the operating railroad has both a right and a
responsibility to occupy a place of safety until the question is
resolved. Section 214.313 imposes a reciprocal responsibility for on-
track safety onto each individual roadway worker. Accordingly, a
roadway worker has to be able to decide whether on-track safety is
being provided and if not, he or she has a right and an obligation to
remain off the track until the matter is resolved, and to notify the
employer of possible flaws in on-track safety provisions.
FRA has considerable authority in the area of railroad safety. This
authority extends to individuals as well as to railroad carriers. FRA
will act whenever it finds or receives notice of possible violations of
this rule. Should a potential violation involve the rights and
responsibilities of an individual roadway worker to question on-track
safety procedures, FRA will consider all available evidence, including
written records maintained by parties in the case, statements of
witnesses, the nature of the on-track safety provisions in effect at
the time, and whether the involved employee or employees had been
correctly informed of those on-track safety provisions.
Deviations From the Advisory Committee Reports
FRA committed to adhere to the consensus reached by the Advisory
Committee, unless the agreed upon course of action violated legal
requirements, statutory authority, departmental regulations, or in the
agency's view, did not adequately address the subject matter. The
Advisory Committee produced two documents, an initial report of
principles to be addressed in this proceeding, and later a proposed
Notice of Proposed Rulemaking which incorporated the basic principles
in language recommended by the Committee.
The two substantive deviations between the Advisory Committee
Report and the proposed NPRM involved changes in terminology. They were
enumerated in the proposed NPRM, and are retained here for reference.
Term, Positive Protection
The report submitted by the Advisory Committee used the term
Positive Protection to describe several circumstances in which roadway
workers would be safe from the threat of approaching trains, or
essentially ``protected'' from them.
Analysis of the Committee recommendation by FRA showed that two
quite different procedures were contemplated under the provision of
Positive Protection. One was a broad group of existing railroad
procedures designed to hold trains clear of certain tracks, and the
other was a procedure in which roadway workers would be warned of an
approaching train in time to clear the tracks before the train arrived.
Strictly for purposes of semantics, to permit consistency in the text
of the rule, FRA has divided the procedures grouped in the
recommendation under the term Positive Protection into two categories:
Working Limits and Train Approach Warning. Explanation of these two
categories of on-track safety procedures are found in the rule text and
corresponding section-by-section analysis.
Term, Positive Train Location System
The Advisory Committee proposed use of the term positive train
location system to identify a type of on-track safety protection
available in accordance with this rule. The term positive has greater
implications than the Committee intended. FRA does not wish to confound
the terminology of this or other proceedings by using terms already
applied to concepts that were under development for several years
before this proceeding began. FRA particularly does not wish to limit
or inhibit the development of any aspect of Advanced Train Control
Systems (ATCS), Positive Train Control (PTC), or Positive Train
Separation (PTS). Promulgating a regulation that would limit a practice
termed positive train location could be misconstrued as somehow
limiting ATCS, PTC, or PTS.
FRA therefore substitutes the term definite train location as the
name of a system which is the same as that termed by the Advisory
Committee a positive train location system. The definition will not
change. It is FRA's contention that this new term captures the meaning
of the former term. Essentially, the proposition is the same, in which
trains will only be authorized to pass certain locations at or after
definite times.
FRA also found it necessary to deviate from the exact language of
the NPRM proposed by the Advisory Committee in several instances. Most
were simple editorial changes for clarification or correction, and the
renumbering of sections for correct sequencing behind section 214.229.
Some substantive changes were also made, which are enumerated and
either explained or referenced here.
Term , Definite Train Location
FRA removed three sentences of operational requirements from the
definition, and replaced them with a reference to section 214.329 of
this part, which implements and specifies the requirements for definite
train location. The change was made to eliminate redundancy and to
conform to standards of proper regulatory language.
Term--Exclusive Track Occupancy
FRA made an editorial change, and added the cross reference to
section 214.321 of this part for reasons stated under Term, Definite
train location, above.
Term--Foul Time
FRA made an editorial change, and added the cross reference to
section 214.323 of this part for reasons stated under Term, Definite
train location, above.
Term--Inaccessible Track
FRA inserted additional clarifying language at the end of the
definition, by physically preventing entry and movement of trains and
equipment, to clarify the definition.
Term--Restricted Speed
FRA added references to train or other equipment and the range of
vision of the
[[Page 10533]]
person operating the train or other equipment. This term as originally
written is commonly found in railroad operating rules which govern the
movement of trains. In that context, the applicability is clear.
However, in this regulation FRA feels that the applicability should be
more clearly specified. There is no intent by FRA to supersede this
definition in other regulations or applications.
Term--Roadway Maintenance Work Train
FRA deleted references to roadway maintenance work train from the
rule, and from the definition of roadway maintenance machine. The term
is not used in the regulation, and was an artifact of an earlier draft.
There is no distinction between roadway maintenance work trains and
trains operated for any other purpose under the same types of controls.
Term--Working Limits
FRA made editorial changes to this definition to replace the word
limits within the definition with the word boundaries simply to avoid
use of a defined word in its own definition. The meaning of the
definition is not changed.
Section 214.317 On Track Safety Procedures, Generally
FRA proposes that a phrase be added to his section that more
clearly requires an employer to adopt a program containing specific
rules that comply with the requirements of this section. FRA also
proposes to eliminate the qualifier, roadway workers who foul a track,
because roadway workers are, by definition, employees whose duties
situate them where they may potentially foul a track.
Section 214.329 Definite Train Location
Besides the change in the definition of the term Definite train
location mentioned above, FRA proposes to add operative language,
previously found in the definition of definite train location, to this
section, which is referenced in the definition.
Section Analysis
FRA proposes to amend Part 214 of Title 49, Code of Federal
Regulations by adding a new subpart specifically devoted to the
protection of employees from the hazards associated with working near
moving trains and equipment.
1. Application: Sec. 214.3
FRA proposes that this subpart will apply to all railroads and
contractors to railroads in the general system of railroad
transportation, including commuter rail operations. Accordingly,
existing section 214.3 will not change. This means that tourist and
excursion railroads that are not part of the general system of railroad
transportation will not be subject to these rules. The data
illustrating the serious nature of the hazards addressed in this
subpart did not include tourist and excursion railroads. FRA has not
otherwise been notified that these hazards causing death and injury to
roadway workers are a serious problem for tourist and excursion
railroads or any other railroads not operating over the general system
of railroad transportation. However, FRA reserves the right to include
tourist and excursion railroads that do not operate on the general
system of railroad transportation in the final rule, if the record
reflects such a need.
2. Definitions: Sec. 214.7
Section 214.7 will be amended to add new definitions. Several
definitions are particularly important to the understanding of the
rule, and are explained here. However, many other terms are defined and
explained with the analysis of the rule text to which they apply.
Effective securing device is defined in this part as one means of
preventing a manually operated switch or derail from being operated so
as to present a hazard to roadway workers present on certain non-
controlled tracks. This definition is specifically intended to include
the use of special locks on switch and derail stands that will
accommodate them, and switch point clamps that are properly secured. It
also includes the use of a spike driven into the switch tie against the
switch point firmly enough that it cannot be removed without proper
tools, provided that the rules of the railroad prohibit the removal of
the spike by employees not authorized to do so. Every effective
securing device must be tagged. FRA will examine each railroad's on-
track safety program to determine that the rules governing the
securement of switches will provide the necessary level of protection.
Lone workers are defined in this part as roadway workers who are
not being afforded on-track safety by another roadway worker, are not
members of a roadway work group, and are not engaged in a common task
with another roadway worker. Generally, a common task is one in which
two or more roadway workers must coordinate and cooperate in order to
accomplish the objective. Other considerations are whether the roadway
workers are under one supervisor at the worksite; or whether the work
of each roadway worker contributes to a single objective or result.
For instance, a foreman and five trackmen engaged in replacing a
turnout would be engaged in a common task. A signal maintainer assigned
to adjust the switch and replace wire connections in the same turnout
at the same time as the track workers would be considered a member of
the work group for the purposes of on-track safety. On the other hand,
a bridge inspector working on the deck of a bridge while a signal
maintainer happens to be replacing a signal lens on a nearby signal
would not constitute a roadway work group just by virtue of their
proximity. FRA does not intend that a common task may be subdivided
into individual tasks to avoid the use of on-track safety procedures
required for roadway work groups.
On-track safety is defined as the state of freedom from the danger
of being struck by a moving railroad train or other railroad equipment,
provided by operating and safety rules that govern track occupancy by
personnel, trains and on-track equipment. This term states the ultimate
goal of this regulation, which is for workers to be safe from the
hazards related to moving trains and equipment while working on or in
close proximity to the track. The rule will require railroads to adopt
comprehensive programs and rules to accomplish this objective. This
rule, and required programs, will together produce a heightened
awareness among railroad employees of these hazards and the methods
necessary to reduce the related risks.
Qualified as used in the rule with regard to roadway workers
implies no provision or requirement for Federal certification of
persons who perform those functions.
Roadway worker is defined as any employee of a railroad, or of a
contractor to a railroad, whose duties include inspection,
construction, maintenance or repair of railroad track, bridges,
roadway, signal and communication systems, electric traction systems,
roadway facilities or roadway maintenance machinery on or near track or
with the potential of fouling a track, and flagmen and watchmen/
lookouts as defined in this rule.
Some railroad employees whose primary function is transportation,
that is, the movement and protection of trains, will be directly
involved with on-
[[Page 10534]]
track safety as well. These employees would not necessarily be
considered roadway workers in the rule. They must, of course, be
capable of performing their functions correctly and safely.
The rule requires that the training and qualification for their
primary function, under the railroad's program related to that
function, will also include the means by which they will fulfill their
responsibilities to roadway workers for on-track safety. For instance,
a train dispatcher would not be considered a roadway worker, but would
be capable of applying the railroad's operating rules to the
establishment of working limits for roadway workers. Likewise, a
conductor who protects a roadway maintenance machine, or who protects a
contractor working on railroad property, would not be considered a
roadway worker, but would receive training on functions related to on-
track safety as part of the training and qualification of a conductor.
Employees of contractors are included in the definition if they
perform duties on or near the track. They should be protected as well
as employees of the railroad. The responsibility for on-track safety of
employees will follow the employment relationship. Contractors are
responsible for the on-track safety of their employees and any required
training for their employees. FRA expects that railroads will require
their contractors to adopt the on-track safety rules of the railroad
upon which the contractor is working. Where contractors require
specialized on-track safety rules for particular types of work, those
rules must, of course, be compatible with the rules of the railroad
upon which the work is being performed.
The rule does not include employers, or their employees, if they
are not engaged by or under contract to a railroad. Personnel who might
work near railroad tracks on projects for others, such as cable
installation for a telephone company or bridge construction for a
highway agency, come under the jurisdiction of other Federal agencies
with regard to occupational safety.
The terms explained here are not exhaustive of the new definitions
that will be added to Section 214.7. This introduction merely provides
a sampling of the most important concepts of this proposed regulation.
Many other terms are defined and explained in the section by section
analysis when analyzing the actual rule text to which they apply.
3. Purpose and Scope: Sec. 214.301
Section 214.301 states the purpose for the minimum standards
required under this subpart to protect roadway workers. Railroads can
adopt more stringent standards as long as they are in accordance with
this subpart.
4. Railroad On-Track Safety Programs, Generally: Sec. 214.303
Section 214.303 gives the general requirement that railroads shall
adopt and implement their own program for on-track safety, which meets
Federal minimum standards. Rather than implement a command and control
rule, FRA decided to establish the parameters for such a program and
defer to the expertise of each individual railroad to adopt a suitable
on-track safety program for their railroad, in accordance with these
parameters. FRA felt that establishing an internal monitoring process
to determine compliance and effectiveness would be a necessary
component of any On-Track Safety Program. Consequently, each railroad
must incorporate an internal monitoring process as a component of its
individual program. It should be noted that this internal monitoring
will not replace FRA's inspection and monitoring efforts for compliance
with this subpart.
5. Effective Dates: Sec. 214.305
Section 214.305 establishes the schedule for the rule to go into
effect. The dates vary by class of railroad. FRA believes that
staggering effective dates allows the largest number of workers who are
exposed to the highest level of risk to benefit from the On-Track
Safety Program first. FRA hopes to be able to expedite the review
process, as the smallest number of individual programs will be put in
place by the major carriers. After this initial phase of reviews for
Class I railroads, FRA will have established review policies and
resolved many recurrent issues, making the larger number of reviews for
smaller railroads more efficient. The experience gained through the
initial phase of the review process will contribute to the next and
larger phase of reviews. Although the rule formally establishes a later
required effective date on smaller railroads, this would not prevent
smaller railroads from implementing their programs sooner.
6. Review and Approval of Individual On-track Safety Programs by FRA:
Sec. 214.307
Section 214.307 specifies the process for review and approval of
each railroad's on-track safety program by FRA. The intent of the
review and approval is to be constructive, rather than restrictive. FRA
prefers that a review of each program take place at the railroad
because an open discussion of the program would be beneficial to all
concerned. The effective date of a railroad's program will not be
delayed by FRA's scheduling of a review, or granting approval. The
railroad will be responsible for compliance with this rule regardless
of FRA review or approval of its program.
Likewise, a railroad may amend its program following FRA approval
without prior approval of the amendment from FRA. Of course, should FRA
later disapprove the amendment, the program would have to be changed to
secure FRA's approval. The railroad will still be responsible for
compliance with this rule, and subject to compliance monitoring and
enforcement by FRA. FRA will make every effort, when requested, to
provide a timely review of a program or amendment before its effective
date, and to assist in any manner possible to enhance the on-track
safety afforded to roadway workers.
Contractors will be required to conform to the on-track safety
programs on the railroads upon which they are working. Contractors
whose employees are working under a railroad's approved on-track safety
program need not submit a separate on-track safety program to FRA for
review and approval.
Some contractors operate highly specialized equipment on various
railroads on a regular basis. That equipment might require special
methods to provide on-track safety for railroad and contractor
employees. Such a special method will require a clear and reasonable
way to mesh with the on-track safety programs of the railroads upon
which the equipment is operated.
The rule does not specifically call for the involvement of
employees or their representatives in the program design or review
process, because the responsibility for the program's compliance with
this rule lies with the employer. However, it should be noted that this
rule itself is the product of a successful proceeding in which
management, employee representatives and the Federal government were
fully involved from the beginning. That fact should be an encouragement
to all concerned to realize that the success of an on-track safety
program will require the willing cooperation of all persons whose
duties or personal safety are affected by the program.
7. On-track Safety Program Documents: Sec. 214.309
Section 214.309 specifies the type of on-track safety manual each
railroad
[[Page 10535]]
must have. Essentially, the railroad must have all on-track safety
rules in one place, easily accessible to roadway workers. This
provision is intended to provide the roadway worker with a single
resource to consult for on-track safety, to avoid fragmentation of the
rules and the ultimate dilution of their vital message.
All on-track safety rules could be placed together as an on-track
safety section of an already existent manual. FRA is aware that many
railroads use a binder system for railroad manuals. Adding a section to
such a binder might be less burdensome than creating a separate manual,
and would clearly comply with this provision.
An employer, such as a contractor, whose roadway workers work on
another employer's railroad, will usually adopt and issue the on-track
safety manual of that railroad for use by their employees. It will be
the employer's responsibility to provide the manual to its employees
who are required to have it and to know that each of its employees is
knowledgeable about its contents.
This section also sets forth the responsibility of the employer to
provide this manual to all employees who are responsible for the on-
track safety of others, and those who are responsible for their own on-
track safety as lone workers. Workers who are responsible for the
protection of others must have the manual at the work site for easy
reference. Lone workers must also have this manual easily available to
them. FRA does not intend that the individual must necessarily have
this manual on his or her person while performing work, but to have it
available and readily accessible at the work site.
FRA also does not intend that all related operating rules,
timetables or special instructions must be reproduced in this manual.
Any related publications or documents should be cross-referenced in the
On-Track Safety Manual and provided to employees whose duties require
them.
Lastly, the manual must be at the work site available for reference
by all roadway workers. Many roadway workers will not be responsible
for providing protection for themselves or others, but still must
comply with the rules. All employees have a responsibility to remain at
a safe distance from the track unless they are assured that adequate
protection is provided. Although not responsible for providing
protection for others, they must be familiar with the rules to
determine whether adequate protection is provided and have the rules
readily available if it is necessary to consult them.
8. Responsibility of Employers: Sec. 214.311
Section 214.311 addresses the employer's responsibility in this
rule. This section applies to all employers of roadway workers.
Employers may be railroads, contractors to railroads, or railroads
whose employees are working on other railroads. Although most on-track
safety programs will be implemented by railroads rather than
contractors, the employer is responsible to its employees to provide
them with the means of achieving on-track safety.
Railroads are specifically required by Sec. 214.303 to implement
their own on-track safety programs. Section 214.311 however, places
responsibility with all employers (whether they are railroads or
contractors) to see that employees are trained and supervised to work
with the on-track safety rules in effect at the work site. The actual
training and supervision of contractor employees might be undertaken by
the operating railroad, but the responsibility to see that it is done
rests with the employer.
The guarantee required in paragraph (b) of an employee's absolute
right to challenge on-track safety rules compliance will be a required
part of each railroads's on-track safety program, as will be the
process for resolution of such challenges. On-track safety depends upon
the faithful and intelligent discharge of duty by all persons who
protect or are protected by it. Any roadway worker who is in doubt
concerning the on-track safety provisions being applied at the job
location should resolve that uncertainty immediately.
The term at the job location is not meant to restrict who can raise
an issue or where an issue can be raised. Rather, the challenge must
address the on-track safety procedures being applied at a particular
job location.
A fundamental principle of on-track safety is that a roadway worker
who is not entirely certain that it is safe to be on the track should
not be there. A discrepancy might be critical to the safety of others,
and the first roadway worker who detects it should take the necessary
action to provide for the safety of all.
The Advisory Committee used the term No-Fault Right in its report
to describe the absolute right of each employee to challenge, without
censure, punishment, harm or loss, the on-track safety compliance
expressed in paragraph (b) of this section. A challenge must be made in
good faith in order to fall within the purview of this rule. A good
faith challenge would trigger the resolution process called for in
paragraph (c).
The written process to resolve challenges found in paragraph ( c)
is intended to provide a prompt and equitable resolution of these
concerns. This is necessary in order that any problems that arise
regarding on-track safety should be resolved and that any possible
lapses in safety be quickly corrected.
The resolution process should include provisions to permit
determination by all parties as to the safe, effective application of
the on-track safety rule(s) being challenged at the lowest level
possible, and for successive levels of review in the event of inability
to resolve a concern at lower levels. FRA believes it best for
employers, consulting with employees and their representatives where
applicable, to write effective processes to accomplish these
objectives.
A railroad's on-track safety program will be reviewed and approved
in accordance with section 214.307(b). FRA will consider this written
process during its review and approval of the overall on-track safety
submission. FRA will consider whether the written processes afford a
prompt and equitable resolution to concerns asserted in good faith and
their effectiveness in promoting the intelligent, reasoned application
of the on-track safety principles.
9. Responsibility of Individual Roadway Workers: Sec. 214.313
Section 214.313 addresses the individual responsibility of each
roadway worker. Each roadway worker has a responsibility to comply with
this subpart which is enforceable under the provisions of individual
liability. Paragraph (a) requires that each roadway worker follow the
railroad's on-track safety rules. Paragraph (b) prohibits roadway
workers from fouling a track unnecessarily. It is FRA's opinion, as
well as that of the Advisory Committee, that roadway workers should
under no circumstances foul a track unless it is necessary to
accomplish their duties.
A reference to the definition of fouling a track is useful to
understand when protection is required. Fouling a track describes the
circumstance in which a person is in danger of being struck by a moving
train.
Under paragraphs (c) and (d), each roadway worker has the
responsibility to know that on-track safety is being provided before
actually fouling a track, and to remain clear of the track and inform
the employer when the required
[[Page 10536]]
level of protection is not provided. If a roadway worker is not sure
that sufficient on-track safety is being provided, he or she can
satisfy paragraph (c) by simply not fouling the track.
It is a roadway worker's responsibility to advise the employer of
exceptions taken to the application of a railroad's rules, or
provisions of this subpart, in accordance with paragraph (d). Employees
must approach this responsibility in good faith. Essentially an
employee must have honest concerns whether the on-track safety
procedures being used provide the necessary level of safety in
accordance with the rules of the operating railroad. Furthermore,
employees must be able to articulate those concerns in order to invoke
the resolution process of the railroad. Initiating an action under the
resolution process, absent a good faith concern regarding the on-track
safety procedures being applied, would not be in compliance with this
subpart.
10. Supervision and Communication: Sec. 214.315
Section 214.315 details supervision and communication of on-track
safety methods prior to working. Employees must be notified and
acknowledge understanding of the on-track safety methods they are to
use, prior to commencing duties on or near the track. Paragraphs (a)
and (b) establish the duty of notification by the employer and the
reciprocal duty of communicating acknowledgment by the employee. These
sections essentially require a job briefing to inform all concerned of
on-track safety methods at the beginning of each work period. The
acknowledgment is an indication by the employee of understanding, or
the opportunity to request explanation of any issues that are not
understood.
Paragraph (c) requires that an employer designate at least one
roadway worker to provide on-track safety while a group is working
together. This designation can either be for a specific job or for a
particular work situation. This section is vital to the success of any
on-track safety program because the mere presence of two or more
persons together can be distracting for all persons involved. FRA
believes that awareness will be enhanced and confusion limited by
requiring railroads to formally designate a responsible person. This
designation must be clearly understood by all group members in order to
be effective. An individual, such as a foreman, may generally be
designated to be responsible for his or her group, but if two groups
are working together or roadway workers of different crafts are
assisting one another, it is imperative that this formal designation be
communicated to and understood by all affected employees.
Paragraph (d) explains the duties of the roadway worker designated
to provide on-track safety for the work group. Before roadway workers
foul a track, the designated person must inform each roadway worker in
the group of the on-track safety methods to be used at that time and
location. Essentially, the designated person must conduct an on-track
safety briefing prior to the beginning of work on or near the track.
This briefing might also fulfill the requirements of paragraph (a) of
this section.
Before changing on-track safety methods during a work period, the
designated roadway worker must again inform the group of the new
methods to be used for their safety. If, for example, roadway workers
are working on a track within working limits when the on-track safety
method changes to train approach warning, all roadway workers fouling
the track must first be informed that trains might approach on that
track, and that they will be warned of the approaching train by
watchmen/lookouts. They must also know that they can no longer depend
on that track as a place of safety when a train approaches.
This provision also establishes methods to be used in the face of
unforeseen circumstances. In these emergency situations, where
notification of a change in methods cannot be accomplished, an
immediate warning to leave the fouling space and not return until on-
track safety is reestablished is required.
Paragraph (e) addresses the lone worker. The lone worker must also
have a job briefing before fouling the track. This briefing will be
slightly different, since the lone worker is not working under direct
supervision. At the beginning of the duty period, and prior to fouling
the track, the lone worker must communicate with a supervisor or
another designated employee to advise of his itinerary and the means by
which he plans to protect himself. This briefing should include his
geographical location, approximate period of time he is expected to be
in this general locality, different locations planned for the day, and
the planned method of protection. This paragraph assumes that in
accordance with other sections, the lone worker is capable of
determining the proper means to achieve his own on-track safety.
This paragraph also provides for emergencies in which the channels
of communication are disabled. In those cases, the briefing must be
conducted as soon as possible after communication is restored. An
interruption in communication does not prevent the lone worker from
commencing work. However, since the lone worker will not have described
his itinerary and the on-track safety methods to be used in this
location to another qualified employee, he must do all that is
necessary to maintain the requisite awareness of his surroundings.
11. On-track Safety Procedures, Generally: Sec. 214.317
Section 214.317 refers to the following sections 214.319 through
214.335 that prescribe several different types of procedures that may
be used to achieve on-track safety. It requires employers to use one or
more of these types of procedures whenever employees foul a track.
The definition of fouling a track includes a minimum distance limit
of four feet from the field, or outer, side of the running rail nearest
to the roadway worker. A person could be outside that distance and
still be fouling the track under this rule if the person's expected or
potential activities or surroundings could cause movement into the
space that would be occupied by a train, or if components of a moving
train could extend outside the four-foot zone.
Railroad equipment is commonly 10 feet 8 inches wide. Standard
track gauge is 4 feet 8\1/2\ inches but when adding the nominal width
of the rail, the rail spacing can be taken as 5 feet 0 inches for the
purposes of this rule. The fouling space would therefore be 13 feet
wide (5+4+4 feet).
One exception to the four-foot minimum distance is found in
paragraph Sec. 214.339(c) (Roadway maintenance machines) and is
discussed in the analysis of that section.
The report of the Advisory Committee includes the statement that
``The provisions of restricted speed do not solely provide protection
for track equipment, or roadway workers, performing maintenance.'' The
rule does not recognize restricted speed as a sole means of providing
on-track safety.
The Advisory Committee also found, and FRA agrees, that although
the definitions of ``restricted speed'' found in this rule and in use
throughout the railroad industry provide adequate separation between
trains and on-track machines in a traveling mode, a blanket provision
that would rely upon restricted speed to protect persons working while
fouling the track would not be effective. Individual locations at which
unusual circumstances could result in sufficient protection for
[[Page 10537]]
roadway workers from trains moving at restricted speed would be
addressed by FRA through the waiver process.
12. Working Limits, Generally: Sec. 214.319
Section 214.319 prescribes the general requirements for the
establishment of working limits. A reference to the definition of
Working Limits is helpful to the understanding of this section.
Working limits is an on-track safety measure which when established
eliminates the risk of being struck by trains. Several methods of
establishing working limits are found in this subpart. Those methods
are distinguished by the method by which trains are authorized to move
on a track segment, the physical characteristics of the track, and the
operating rules of the railroad.
Paragraphs (a) and (b) specifically refer to the roadway worker who
is given control over working limits. These requirements assure that
the roadway worker has the requisite knowledge and training, and
prevent confusion by giving control to only one qualified roadway
worker.
Paragraph (c) provides the restrictions under which trains and
roadway maintenance machines will be allowed to operate within working
limits. The intent is that the roadway worker in charge will be able to
communicate with a train while it is within the working limits, and to
control its movement to prevent conflicts between trains, machines and
roadway workers.
The requirement that trains move at restricted speed in working
limits unless otherwise authorized by the roadway worker in charge is
intended as a fail-safe provision to afford the highest level of safety
in the absence of authority for higher speed. FRA does not contemplate,
nor would it condone, a situation in which a roadway worker could
authorize a higher speed for a train than would be otherwise permitted
by the operating rules and instructions of the railroad.
Paragraph (d) addresses the procedure when working limits are
released. It requires that all affected roadway workers be notified
before trains will begin moving over the affected track. They must be
either away from the track, or provided with another form of on-track
safety.
An example is a work group using a crane to replace rail. Rails are
removed from the track, the crane is on the track, and on-track safety
is provided by the establishment of working limits. When the rails have
been replaced, the crane moves out of the working limits onto another
track, the roadway worker in charge stations watchmen/lookouts to
provide train approach warning and notifies all the roadway workers at
the work site that train approach warning is now in effect and the
working limits are to be released. The roadway worker in charge then
releases the working limits to the train dispatcher to permit the
movement of trains. The roadway workers at the work site continue to
work with hand tools while on-track safety is provided by the watchmen/
lookouts.
13. Exclusive Track Occupancy: Sec. 214.321
Section 214.321 prescribes working limits on controlled track as
one form of on-track safety allowed in accordance with the provisions
of this subpart. Reference to the definitions of Controlled Track and
Exclusive Track Occupancy are helpful to the understanding of this
section.
Controlled track is track on which trains may not move without
authorization from a train dispatcher or a control operator. On most
railroads, trains move on main tracks outside of yard limits, and
through interlockings, only when specifically authorized by a train
dispatcher or control operator. This authorization might take the form
of an indication conveyed by a fixed signal, or a movement authority
transmitted in writing, orally, or by digital means. Such track would
conform to the definition of controlled track.
Some railroads extend the control of a train dispatcher to main
tracks within yard limits. This control is exercised by requiring the
crew of every train and engine to obtain a track warrant specifying the
limits of the territory in which the crew may operate. The track
warrant lists all restrictions that are in effect within the limits
specified, including any working limits established to protect roadway
workers or train movements. The working limits are delineated by flags
as specified in section 214.321(c)(5). Track from which trains can be
effectively withheld by such a procedure would conform to the
definition of controlled track.
Exclusive track occupancy is the means prescribed in this section
to establish working limits on controlled track. The procedures
associated in this section with exclusive track occupancy are intended
to assure that unauthorized train movements will not occur within
working limits established by exclusive track occupancy.
This section addresses controlled track, as it is the type of track
upon which exclusive track occupancy can be established by the
dispatcher or control operator. By virtue of their authority to control
train movements on a segment of controlled track, a dispatcher or
control operator can also hold trains clear of that segment by
withholding movement authority from all trains. The procedure depends
upon communication of precise information between the train dispatcher
or control operator, the roadway worker in charge of the working
limits, and the crews of affected trains. This section is intended to
prescribe that level of precision.
Paragraph (a) requires that authority for exclusive track occupancy
may only be granted by the train dispatcher or control operator who has
control of that track to a roadway worker who has been trained and
designated to hold such an authority. No other person may be in control
of the same track at the same time.
Paragraph (b) and corresponding subparagraphs prescribe the methods
for transferring the authority for exclusive track occupancy to the
roadway worker with the requisite level of accuracy.
Paragraph (c) and corresponding subparagraphs prescribe physical
markers or features that may be used to indicate the extent of working
limits established under this paragraph with the requisite level of
precision. Flagmen are included as a valid means of establishing
exclusive track occupancy because they are effective, and they might be
the only means available on short notice or at certain locations.
14. Foul Time: Sec. 214.323
Section 214.323 prescribes another form of on-track safety
involving the establishment of working limits through exclusive track
occupancy. This method of protection is called foul time and is only
prescribed for use on controlled track. The definition of foul time
should be referenced for a complete understanding of this concept. Foul
time requires oral or written notification by the train dispatcher or
control operator to the responsible roadway worker that no trains will
be operating within a specific segment of track during a specific time
period. The steps to obtain foul time are detailed in this section.
Once foul time is given, a dispatcher or control operator may not
permit the movement of trains onto the protected track segment until
the responsible roadway worker reports clear.
15. Inaccessible Track: Sec. 214.325
Section 214.325 requires that working limits on non-controlled
track be established by rendering the track physically inaccessible to
trains and equipment. A reference to the definitions of non-controlled
track and inaccessible track is useful to the
[[Page 10538]]
understanding of this section. Trains and equipment can operate on non-
controlled track without having first received specific authority to do
so. Trains and equipment cannot be held clear of non-controlled track
by simply withholding their movement authority. The roadway worker in
charge of the working limits must therefore render non-controlled track
within working limits physically inaccessible to trains and equipment,
other than those operating under the authority of that roadway worker,
by using one or more of the provisions of this section.
Typical examples of non-controlled track to which this section
would apply include main tracks within yard limits where trains are
authorized by an operating rule to move without further specific
authority, yard tracks, and industrial side tracks. Paragraphs (a)
through (d) detail the physical features that may be used to block
access to non-controlled track within working limits.
16. Train Approach Warning Provided by Watchmen/Lookouts: Sec. 214.327
Section 214.327 establishes the procedures for on track safety of
groups that utilize train approach warning. A reference to the
definition of train approach warning would be useful to the
understanding of this section. Section 214.327 specifies the
circumstances and the manner in which roadway work groups may use this
method of on-track safety. Prescribed here is the minimum amount of
time for roadway workers to retreat to a previously arranged place of
safety, the duties of the watchman/lookout and the fundamental
characteristics of train approach warning communication.
This section further imposes a duty upon the employer to provide
the watchman/lookout employee with the requisite equipment necessary to
carry out his on-track safety duties. It is intended that a railroad's
on-track safety program would specify the means to be used by watchmen/
lookouts to communicate a warning, and that they be equipped according
to that provision.
The rule does not include a provision for train approach warning by
any means other than the use of watchmen/lookouts. FRA is not aware of
any other means of effectively performing this function with the
requisite reliability, and will not place requirements for an untried
system in this rule. However, the Advisory Committee report states that
``FRA will incorporate a near-term time-specific requirement to utilize
on-track personal warning systems for roadway workers working alone
under any conditions not requiring positive protection.'' FRA realizes
that the technological advancements incorporated in ATCS, PTC or PTS
might in the future provide another method of establishing on-track
safety in compliance with this subpart. Although such technology is not
specifically provided for in the current rule. Opportunities to employ
advancements in this area will be handled pursuant to the waiver
process. FRA will therefore be most interested in knowing when such
systems are developed, tested, and proven reliable.
17. Definite Train Location: Sec. 214.329
Section 214.329 describes a system of on-track safety which
provides roadway workers with information as to the earliest times at
which trains may leave certain stations, having been restricted at
those stations by the train dispatcher or control operator. This form
of on-track safety is called Definite Train Location. A reference to
its definition is helpful to distinguish it from an informati
FR Doc. 96-6175 Roadway Worker Protection
onal
lineup of trains, which is addressed in Sec. 214.331.
Paragraph (a) limits the use of definite train location for on-
track safety by Class I railroads to track where such a system was
already in use on the effective date of this rule.
Paragraph (b) requires that a Class I railroad using a definite
train location system must phase it out according to a schedule
submitted to FRA with that railroad's on-track safety program.
Paragraph (c) establishes that definite train location can be used
on certain subdivisions owned by railroads other than Class I railroads
under certain specified conditions. These conditions include whether
the system was in use before the effective date of this rule, or
whether the subdivision has railroad traffic density below certain
levels specified in that section during periods when roadway workers
are normally on and about the track. Advisory Committee members felt
that the amount and frequency of the traffic on a particular track
dictated whether this form of on-track safety was feasible. FRA
therefore proposes to incorporate this factor into the rule to allow
some short lines and regional railroads to utilize this system.
Paragraph (d) and corresponding subparagraphs (1) through (6) set
forth the requirements for a definite train location system and the
qualifications that a roadway worker must have before using this system
as a form of on-track safety.
18. Informational Line-ups of Trains: Sec. 214.331
Section 214.331 specifies conditions for the use of informational
line-ups of trains. Some railroads have used a form of informational
line-ups to provide on-track safety for roadway workers for many years.
Such a procedure requires the roadway worker to have a full
understanding of the particular procedure in use, and the physical
characteristics of the territory in which they are working. The
Advisory Committee addressed this issue with the following specific
recommendation:
The Committee realizes that line-ups are being used less as a
form of protection in the industry and recommends that line-up use
be further reduced, eventually discontinued and replaced with
Positive Protection as quickly as feasible, grand fathering line-up
systems presently in use. * * *
Line-ups as used in this section differ from lists of trains in
Sec. 214.329 in that line-ups need not include definite restriction as
to the earliest times at which trains may depart stations. FRA
therefore follows the Advisory Committee recommendation by allowing
railroads presently using line-ups to continue doing so under
conditions presently in effect, provided that their on-track safety
programs that are reviewed and approved by FRA contain adequate
provisions for safety, and a definite date for completion of phase-out.
19. On-track Safety Procedures for Roadway Work Groups: Sec. 214.333
Section 214.333 specifies requirements for on-track safety to be
provided for roadway work groups. Other sections of the regulation
discuss matters affecting the group such as the different types of on-
track safety protection available to a group and the job briefing
necessary for a group, but this section prescribes what procedures are
required to fully comply with this subpart. The definition of roadway
work group enables the distinction between general methods of providing
on-track safety for groups and for individuals working alone. Examples
of roadway work groups are a large or small track gang, a pair of
signal maintainers, a welder and welder helper, and a survey party.
Paragraph (a) indicates that employers shall not require or permit
roadway work groups to foul a track unless they have established on-
track safety through working limits, train approach warning, or
definite train location.
The reciprocal responsibility for the roadway worker is expressed
in Paragraph (b). He should not foul a track without having been
informed by the roadway worker in charge that on-track safety is being
provided.
The concept of protecting roadway workers from the hazards of
trains and
[[Page 10539]]
other on-track equipment on adjacent tracks is also important in this
rule. A reference to the definition of adjacent tracks will clarify the
meaning of paragraph (c) which details the conditions under which train
approach warning must be used on adjacent tracks that are not within
working limits. These are conditions in which the risk of distraction
is significant, and which require measures to provide on-track safety
on adjacent tracks.
The principle behind the reference to large scale maintenance or
construction is the potential for distraction, or the possibility that
a roadway worker or roadway maintenance machine might foul the adjacent
track and be struck by an approaching or passing train. This issue was
addressed in the report of the Advisory Committee with the
recommendation:
Before performing any work that requires Fouling the track or
Adjacent Track(s) Positive Protection must be obtained and verified
to be in effect by the roadway worker assigned responsibility for
the work. Large scale track maintenance and/or renovations, such as
but not limited to, rail and tie gangs, production in-track welding,
ballast distribution, and undercutting, must have Positive
Protection on Adjacent Tracks as well.
FRA will consider the provisions made for this situation when reviewing
each railroad's on-track safety program.
The spacing of less than 25 feet between track centers, which
defines adjacent tracks for the purpose of this rule, represents a
consensus decision of the Advisory Committee. Several railroads have
recently extended their lateral track spacing to 25 feet. Tracks spaced
at that distance may not cause a hazard to employees in one track from
trains and equipment moving on the other track. FRA believes that no
purpose would be served by requiring these tracks to be again spaced at
a slightly greater distance. Therefore, tracks spaced at 25 feet are
not defined as adjacent tracks, but tracks spaced at a lesser distance
will be so defined. Tracks that converge or cross will be considered as
adjacent tracks in the zone through which their centers are less than
25 feet apart.
As a practical matter, FRA will apply a rule of reason to the
precision used in measuring track centers, so that minor alignment
deviations within the limits of the Federal Track Safety Standards (49
CFR 213) would not themselves place such short segments of track within
the definition of adjacent tracks.
20. On-track Safety Procedures for Lone Workers: Sec. 214.335
Section 214.335 establishes specific on-track safety procedures for
the lone worker. Paragraph (a) sets forth the general requirement that
restricts the use of individual train detection to circumstances
prescribed in this section and the corresponding on-track safety
program of the railroad.
Paragraph (b) represents the clear consensus of the Advisory
Committee that a decision to not use individual train detection should
rest solely with the lone worker, and may not be reversed by any other
person. On the other hand, improper use of individual train detection
where this rule or the on-track safety program of the railroad prohibit
it would be subject to review. This provision was stated by the
Advisory Committee as part of its Specific Recommendation 3, which part
reads, ``All roadway workers have the absolute right to obtain positive
protection at any time and under any circumstances if they deem it
necessary, or to be clear of the track if adequate protection is not
provided.''
Paragraph (c) establishes a method of on-track safety for the lone
worker, in which the roadway worker is capable of visually detecting
the approach of a train and moving to a previously determined location
of safety at least 15 seconds before the train arrives. A reference to
the definition of individual train detection is useful to understand
this concept.
It is important to note that the Advisory Committee decided that
the use of individual train detection is appropriate only in limited
circumstances. FRA has therefore drafted this section to prescribe
strictly limited circumstances in which an individual may foul a track
outside of working limits while definitely able to detect the approach
of a train or other on-track equipment in ample time to move to a place
of safety. This safety method requires the lone worker to be in a state
of heightened awareness, since no other protection system will be in
place to prevent one from being struck by a train or other on-track
equipment. The corresponding subparagraphs to paragraph (c) provide
detailed requirements for the use of this form of on-track safety.
Paragraph (f) prescribes the concept of a written Statement of On-
track safety, prepared by the lone roadway worker. The reasoning behind
this requirement is to assist the roadway worker in focusing on the
nature of the task, the risks associated with the task, and the form of
on-track safety necessary to safely carry out assigned duties.
21. Audible Warning from Trains: Sec. 214.337
Section 214.337 requires audible warning from locomotives before
trains approach roadway workers. The implementation of this requirement
will necessitate railroad rules regarding notification to trains that
roadway workers are on or about the track. This notification could take
the form of portable whistle posts, train movement authorities, or
highly visible clothing to identify roadway workers and increase their
visibility. This section is not optional with a railroad, and FRA
intends that it will preempt any local restrictions on the sounding of
locomotive whistles.
22. Roadway Maintenance Machines: Sec. 214.339
Section 214.339 addresses specific issues concerning roadway
maintenance machines that need to be included in individual railroad
program submissions. FRA decided to address the hazards associated with
these machines separately from those associated with trains, as the
nature of the hazard is different. Referencing the definition of this
term is a good place to start to understand this section. Roadway
maintenance machines are devices, the characteristics or use of which
are unique to the railroad environment. The term includes both on-track
and off-track machines. A roadway maintenance machine need not have a
position for the operator on the machine nor need it have an operator
at all; it could operate automatically, or semi-automatically.
This provision excludes hand-powered devices in order to
distinguish between hand tools which are essentially portable, and
devices which either are larger, move faster, or produce more noise
than hand tools. Hand-held power tools are not included in the
definition, but because of the noise they produce, and because of the
attention that must be paid to their safe operation they are addressed
specifically in Sec. 214.335, On-track safety for lone workers.
Examples of devices covered by this section include, but are not
limited to, crawler and wheel tractors operated near railroad tracks,
track motor cars, ballast regulators, self-propelled tampers, hand-
carried tampers with remote power units, powered cranes of all types,
highway-rail cars and trucks while on or near tracks, snow plows-self
propelled and pushed by locomotives, spreader-ditcher cars, locomotive
[[Page 10540]]
cranes, electric welders, electric generators, air compressors--on-
track and off-track.
Roadway maintenance machines have a wide variety of configurations
and characteristics, and new types are being developed regularly. Each
type presents unique hazards and necessitates unique accident
prevention measures. Despite the wide diversity of the subject matter,
FRA attempted to provide some guidance for the establishment of on-
track safety when using roadway maintenance machines.
FRA believes that it is most effective to promulgate a general
requirement for on-track safety around roadway maintenance machines,
and require that the details be provided by railroad management,
conferring with their employees, and industry suppliers. Several
railroads have adopted comprehensive rules that accommodate present and
future machine types, as well as their own operating requirements. FRA
has seen the text of such rules, as well as witnessed their application
and believes that they can set examples for other railroads. The
requirement for issuance of on-track safety procedures for various
types of roadway maintenance machines may be met by general procedures
that apply to a group of various machines, supplemented wherever
necessary by any specific requirements associated with particular types
or models of machines.
23. Training and Qualification, General: Sec. 214.341
Section 214.341 requires that each roadway worker be given on-track
safety training once every calendar year. Adequate training is integral
to any safety program. Hazards exist along a railroad, not all of which
are obvious through the application of common sense without experience
or training. An employee who has not been trained to protect against
those hazards presents a significant risk to both himself and others.
Roadway workers can be qualified to perform various duties, based
on their training and demonstrated knowledge. Training will vary
depending on the designation of a roadway worker. Furthermore, roadway
workers should generally know the designations of others in their
group, so that proper on-track safety protection arrangements can be
made. Written or electronic records must be kept of these
qualifications, available for inspection and copying by the
Administrator.
The term ``demonstrated proficiency'' is used in this and other
sections relative to employee qualification in a broad sense to mean
that the employee being qualified would show to the employer sufficient
understanding of the subject that the employee can perform the duties
for which qualification is conferred in a safe manner. Proficiency may
be demonstrated by successful completion of a written or oral
examination, an interactive training program using a computer, a
practical demonstration of understanding and ability, or an appropriate
combination of these in accordance with the requirements of this
subpart.
24. Training for All Roadway Workers: Sec. 214.343
Section 214.343 represents the basic level of training required of
all roadway workers who work around moving railroad trains and on-track
equipment. All persons subject to this rule must have this training.
This basic level of training is required in addition to any specialized
training required for particular functions called for in Secs. 214.345
through 214.353. Any testing required to demonstrate qualification need
not be written, because the requirements can be fulfilled by a
practical demonstration of ability and understanding.
25. Training and Qualification for Lone Workers: Sec. 214.345
Section 214.345 requires a higher degree of qualification, as the
lone worker is fully responsible for his or her own protection.
26. Training and Qualification of Watchmen/lookouts: Sec. 214.347
Section 214.347 details the standards for qualification of a
lookout, who by definition is responsible for the protection of others.
The definition of watchman/lookout is useful to understand the
functions of roadway workers discussed in this section. Watchmen/
lookouts must be able to perform the proper actions in the most timely
manner without any chance of error in order to provide proper
protection for those who are placed in their care.
27. Training and Qualification of Flagmen: Sec. 214.349
Section 214.349 requires that flagmen be qualified on the operating
rules of the railroad on which they are working. Referencing the
definition of flagman would be useful to identify the class of roadway
workers discussed in this section. Generally, flagmen are already
required to be qualified on the operating rules that apply to their
work. Flagging is an exacting procedure, and a flagman must be ready to
act properly at all times in order to provide proper protection for
those under his care. The distinction between flagmen and watchmen/
lookouts should be noted, in that flagmen function to restrict or stop
the movement of trains, while watchmen/lookouts detect the approach of
trains and provide warning thereof to other roadway workers.
28. Training and Qualification of Roadway Workers Who Provide On-track
Safety for Roadway Work Groups: Sec. 214.351
Section 214.349 details training standards applicable to the
roadway worker who is qualified to provide on-track safety for roadway
work groups. This roadway worker has the most critical responsibilities
under this subpart. This individual must be able to apply the proper
on-track safety rules and procedures in various circumstances, to
communicate with other railroad employees regarding on-track safety
procedures, and to supervise other roadway workers in the performance
of their on-track safety responsibilities.
This section is unique in this subpart in requiring a recorded
examination as part of the qualification process. This requirement
reflects the additional responsibility of this position. The recorded
examination might be written, or it might be, for example, a computer
file with the results of an interactive training course.
29. Training and Qualification in On-track Safety for Operators of
Roadway Maintenance Machines: Sec. 214.353
Section 214.353 requires training for those roadway workers
operating roadway maintenance machines. As noted earlier, there is a
wide variety of equipment requiring specific knowledge. However, FRA
determined that establishing minimum qualifications closely associated
with the type of machine to be operated, and the circumstances and
conditions under which it is to be operated, was necessary.
Environmental Impact
FRA has evaluated these proposed regulations in accordance with its
procedures for ensuring full consideration of the potential
environmental impacts of FRA actions, as required by the National
Environmental Policy Act (42 U.S.C. 4321 et seq) and related
directives. These proposed regulations meet the criteria that establish
this as a non-major action for environmental purposes.
[[Page 10541]]
Appendix
FRA plans to revise Appendix A to Part 214.--Schedule of Civil
Penalties, to include penalties for violations of the provisions of
this Subpart to be included in the final rule. Because such penalty
schedules are statements of policy, notice and comment are not required
prior to their issuance. (see 5 U.S.C. 553(b)(3)(A)). Nevertheless,
interested parties are welcome to submit their views on what penalties
may be appropriate.
Regulatory Impact
Executive Order 12866 and DOT Regulatory Policies and Procedures
This proposed rule has been evaluated in accordance with existing
policies and procedures. It is considered to be significant under both
Executive Order 12866 and DOT policies an procedures (44 FR 11034;
February 26, 1979). FRA has prepared and placed in the docket a
regulatory analysis addressing the economic impact of the proposed
rule. It may be inspected and photocopied at Office of Chief Counsel,
Federal Railroad Administration, 400 Seventh Street, S.W., Room 8201,
Washington, D.C. 20590. Photocopies may also be obtained by submitting
a written request to the FRA Docket Clerk at the above address.
Consistent with the mandate of Executive Order 12866 for regulatory
reform, FRA conducted a Negotiated Rulemaking which provided the basis
for this proposed rule. This collaborative effort included
representatives from the railroad industry and railroad labor, along
with an agency representative as members on a Federal Advisory
Committee. This Advisory Committee held several negotiation sessions
throughout the past year to reach consensus on the concepts that this
proposed rule would embody. As envisioned by regulatory reform, public
participation was encouraged by holding open Advisory Committee
meetings. This negotiated Rulemaking's success has clearly met many of
the objectives highlighted in this Executive Order.
As part of the benefit-cost analysis the FRA has assessed
quantitative measurements of costs and benefits expected from the
adoption of the proposed rule. The Net Present Value (NPV) of the net
benefits is 28.7 million. Over a ten year period, the NPV of the
estimated quantifiable societal benefits is $252.6 million, and the NPV
of the estimated societal quantified costs is $223.87 million.
The NPV of major benefits anticipated from adopting the proposed
rule include:
$10 million from averted roadway worker injuries;
$174 million from worker productivity increases that are a
due to a safer working environment;
$62 million from averted roadway workers fatalities (a
statsitical estimation of 32.6 lives saved); and
$1.5 million from the reduction in lost work days.
The NPV of major costs (including estimated paperwork burdens) over
the ten year period expected to accrue from adopting the proposed rule
include:
$26 million for additional dispatching resources;
$47 million for watchmen/lookouts;
$22 million for miscellaneous forms of positive
protection;
$63 million for job briefings; and
$53 million for the various types of roadway training.
Sections 8.0--10.0 of this analysis outline the above findings in
greater detail. FRA anticipates significant other qualitative benefits
accruing from the proposed rule which are not factored into the
quantified benefit-cost analysis. These non-quantified benefits include
a possible increase in the capacity or volume of some rail lines, and
an improved employee morale.
FRA's quantified cost estimate includes time alloted for daily job
briefings. Many railroads currently conduct job briefings and others
have alloted the time for such briefings. FRA contends that the
proposed rule will structure time already alloted or spent in job
briefings. Although FRA considered this 2 minute briefing a cost and
included it within the quantified benefit-cost calculations, it is
conceivable that structuring the existing job briefing time actually
means no additional cost. The job briefing requirement essentially
mandates a more efficient use of already allotted time.
With respect to the quantified benefits anticipated, expected
savings from a one percent increase in workplace productivity was
included. FRA estimates that productivity of roadway workers should
increase because adoption of the proposed rule will decrease the amount
of risk that exists in their work environment. This is especially true
in certain work areas where the risk is the highest such as within
interlocking limits. Individual worker productivity should increase
since there will be less time and concentration being focused on
whether a train is approaching. The requirements for positive
protection in this rule will provide this mental and physical relief in
numerous roadway work situations. The productivity increases will be
reflected in less time needed to complete work that will be performed
on or near the track. FRA estimates that a one percent increase in rail
workplace productivity, or less than 5 minutes per day, is a reasonable
and conservative estimate.
FRA's sensitivity assessment conducted as part of this regulatory
impact analysis (see Section 14.0) calculates a three percent increase
in productivity as well. If a three percent productivity is achieved as
a result of this rulemaking the expected quantified benefits would
increase to a NPV of $600.1 million. The sensitivity assessment also
shows estimated benefits given an assumption of no increased
productivity. FRA does not believe this is a reasonable assumption. If
productivity did not increase at all as a result of this rule and the
other non-quantified benefits discussed above are not considered then
the benefits would be reduced by a NPV of $174 million.
FRA also conducted sensitivity assessments on key components of the
cost estimates. The cost estimates were sensitive to assumptions about
the incremental time for job briefings (including the proportion of
briefings that take place during ``down time'') and the number of
additional employee years necessary to comply with the proposal. Under
alternative assumptions regarding these parameters, the discounted 10-
year cost estimates range from $187 million to $338 million.
FRA's regulatory impact analysis finds the proposed rule to be cost
beneficial (greater benefits than costs), and further identifies
substantial qualitative benefits. The recommendation of the Roadway
Worker Safety Federal Advisory Committee that the FRA adopt the
proposed rule reflects the consensus of the rail labor and management
representatives on the committee that the proposed rule is beneficial.
As previously noted, FRA is allowing 60 days for comments and
invites public comment on the issue of regulatory impact. FRA seeks
comment and or data to help identify or quantify other factors that may
affect the benefits or costs of the proposal, including alternatives
that were not explored by the advisory committee and any costs or
benefits associated with such alternatives. FRA specifically invites
comments from contractors and tourist railroads on regulatory impact,
since they were not members of the Advisory Committee. Comments
received after May 13, 1996 will be considered to the extent possible
[[Page 10542]]
without incurring additional expense or delay. In addition, a public
hearing will be scheduled only if requested by April 15, 1996. It
should be noted that a final rule may change based on comments
received. However, FRA will take the appropriate prompt action at the
close of the comment period.
Federalism Implications
This proposed rule has been analyzed in accordance with the
principles of Executive Order 12612 (``Federalism''). As noted
previously, there are potential preemption issues resulting from a
provision of this proposed rule, requiring audible warning before
entering worksites. Various States and local authorities have ``whistle
bans'' preventing railroads from sounding whistles or ringing
locomotive bells while operating through those communities. FRA
acknowledges an impact on scattered States and localities throughout
the country, depending on the time of day and the frequency with which
track maintenance occurs. However, these measures are necessary to
protect roadway workers from possible death and injury. Sufficient
Federalism implications have been identified to warrant the preparation
of a Federalism Assessment and it has been placed in the docket. It may
be inspected and photocopied at Office of Chief Counsel, Federal
Railroad Administration, 400 Seventh Street, S.W., Room 8201,
Washington, D.C. 20590. Photocopies may also be obtained by submitting
written requests to the FRA Docket Clerk at the above address.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires a review of proposed rules to assess their impact on small
entities. In reviewing the economic impact of the proposed rule, FRA
has concluded that it will have a moderate economic impact on small
entities. There are no direct or indirect adverse economic impacts for
small units of government, businesses, or other organizations.
Paperwork Reduction Act
The proposed rule contains information collection requirements. FRA
will submit these information collection requirements to the Office of
Management and Budget for review and approval in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) et seq.). FRA has
endeavored to keep the burden associated with this proposal as simple
and minimal as possible. The proposed sections that contain information
collection requirements and the estimated time to fulfill each
requirement are as follows:
------------------------------------------------------------------------
Proposed
section Brief description Estimated average time
------------------------------------------------------------------------
214.303.. Railroad On-Track Safety 2,000 hrs. Class I.
Programs.
214.309.. .............................. 1,400 hrs. Class II.
214.337.. .............................. 250 hrs. Class III.
214.307.. .............................. 3,500 hrs. Blanket Class II.
214.311.. .............................. 3,000 hrs. Blanket Class III.
214.329..
214.313.. Responsibility of Individual 4 hrs.
Road Workers.
214.315.. Supervision and 2 minutes.
Communications--Job Briefings.
214.333..
214.319.. Working Limits................ Usual & Customary Procedure--
No new paperwork.
214.321.. Exclusive Track Occupancy-- 40 seconds.
Working Limits Authorities.
214.323.. Foul Time Working Limit Usual & Customary Procedure--
Procedures. No new paperwork.
214.325.. Inaccessible Track............ 10 minutes.
214.327.. Train Approach Warning 15 seconds.
Provided by Watchman/Lookouts.
214.335.. On-Track Safety Procedures for 30 seconds.
Lone Workers.
214.339.. Training Requirements--Record 2 minutes.
of Qualifications.
214.343..
214.345..
214.347..
214.349..
214.351..
------------------------------------------------------------------------
All estimates include the time for reviewing instructions;
searching existing data sources; gathering or maintaining the needed
data; and reviewing the information. FRA solicits comments on the
accuracy of the estimates, the practical utility of the information,
and alternative methods that might be less burdensome to obtain this
information. Persons desiring to comment on this topic should submit
their views in writing to Gloria D. Swanson, Federal Railroad
Administration, 400 Seventh Street, S.W., Washington D.C. 20590; and to
the Office and Regulatory Affairs, Office of Management and Budget,
Attention: Desk Officer (DOT/FRA), New Executive Office Bldg., 726
Jackson Place, N.W., Washington, D.C. 20530. Copies of any such
comments should also be submitted to the docket of this rulemaking at
the address provided above.
List of Subjects in 49 CFR Part 214
Bridges, Occupational safety and health, Penalties, Railroad
safety, Reporting and recordkeeping requirements.
The Proposed Rule
In consideration of the foregoing, FRA proposes to amend Part 214,
Title 49, Code of Federal Regulations as follows:
PART 214--[AMENDED]
1. Revise the authority citation for Part 214 to read as follows:
Authority: 49 U.S.C. Chs. 210-213; 49 CFR 1.49.
2. Amend Sec. 214.7 by removing the paragraph designations for each
definition, removing the definition for Railroad employee or employee,
and adding new definitions in alphabetical order to read as follows:
Sec. 214.7 Definitions.
Adjacent tracks mean two or more tracks with track centers spaced
less than 25 feet apart.
* * * * *
Class I, Class II, and Class III have the meaning assigned by,
Title 49 CFR part 1201, General Instructions 1-1.
* * * * *
Control operator means the railroad employee in charge of a
remotely controlled switch or derail, an interlocking, or a controlled
point, or a segment of controlled track.
Controlled track means track upon which the railroad's operating
rules require that all movements of trains must be authorized by a
train dispatcher or a control operator.
* * * * *
Definite train location means a system for establishing on-track
safety by providing roadway workers with information about the earliest
possible time that approaching trains may pass specific locations as
prescribed in Sec. 214.329.
[[Page 10543]]
Effective securing device when used in relation to a manually
operated switch or derail means one which is:
(1) Vandal resistant;
(2) Tamper resistant; and
(3) Designed to be applied, secured, uniquely tagged and removed
only by the class, craft or group of employees for whom the protection
is being provided.
Employee means an individual who is engaged or compensated by a
railroad or by a contractor to a railroad to perform any of the duties
defined in this part.
Employer means a railroad, or a contractor to a railroad, that
directly engages or compensates individuals to perform any of the
duties defined in this part.
* * * * *
Exclusive track occupancy means a method of establishing working
limits on controlled track in which movement authority of trains and
other equipment is withheld by the train dispatcher or control
operator, or restricted by flagmen, as prescribed in Sec. 214.321.
Flagman, when used in relation to roadway worker safety, means an
employee designated by the railroad to direct or restrict the movement
of trains past a point on a track to provide on-track safety for
roadway workers, while engaged solely in performing that function.
Foul time is a method of establishing working limits on controlled
track in which a roadway worker is notified by the train dispatcher or
control operator that no trains will operate within a specific segment
of controlled track until the roadway worker reports clear of the
track, as prescribed in Sec. 214.323.
Fouling a track means the placement of an individual or an item of
equipment in such proximity to a track that the individual or equipment
could be struck by a moving train or on-track equipment, or in any case
is within four feet of the field side of the near running rail.
* * * * *
Inaccessible track means a method of establishing working limits on
non-controlled track by physically preventing entry and movement of
trains and equipment.
Individual train detection means a procedure by which a lone worker
acquires on-track safety by seeing approaching trains and leaving the
track before they arrive and which may be used only under circumstances
strictly defined in this part.
Informational line-up of trains means Information provided in a
prescribed format to a roadway worker by the train dispatcher regarding
movements of trains authorized or expected on a specific segment of
track during a specific period of time.
* * * * *
Lone worker means an individual roadway worker who is not being
afforded on-track safety by another roadway worker, who is not a member
of a roadway work group, and who is not engaged in a common task with
another roadway worker.
* * * * *
Non-controlled track means track upon which trains are permitted by
railroad rule or special instruction to move without receiving
authorization from a train dispatcher or control operator.
On-track safety means a state of freedom from the danger of being
struck by a moving railroad train or other railroad equipment, provided
by operating and safety rules that govern track occupancy by personnel,
trains and on-track equipment.
* * * * *
Qualified means a status attained by an employee who has
successfully completed any required training for, has demonstrated
proficiency in, and has been authorized by the employer to perform the
duties of a particular position or function.
* * * * *
Railroad bridge worker or bridge worker means any employee of, or
employee of a contractor of, a railroad owning or responsible for the
construction, inspection, testing, or maintenance of a bridge whose
assigned duties, if performed on the bridge, include inspection,
testing, maintenance, repair, construction, or reconstruction of the
track, bridge structural members, operating mechanisms and water
traffic control systems, or signal, communication, or train control
systems integral to that bridge.
Restricted speed means a speed that will permit a train or other
equipment to stop within one-half the range of vision of the person
operating the train or other equipment, but not exceeding 20 miles per
hour, unless further restricted by the operating rules of the railroad.
Roadway maintenance machine means a device powered by any means of
energy other than hand power which is being used on or near railroad
track for maintenance, repair, construction or inspection of track,
bridges, roadway, signal, communications, or electric traction systems.
Roadway maintenance machines may have road or rail wheels or may be
stationary.
Roadway work group means two or more roadway workers organized to
work together on a common task.
Roadway worker means any employee of a railroad, or of a contractor
to a railroad, whose duties include inspection, construction,
maintenance or repair of railroad track, bridges, roadway, signal and
communication systems, electric traction systems, roadway facilities or
roadway maintenance machinery on or near track or with the potential of
fouling a track, and flagmen and watchmen/lookouts as defined in this
part.
* * * * *
Train approach warning means a method of establishing on-track
safety by warning roadway workers of the approach of trains in ample
time for them to move to or remain in a place of safety in accordance
with the requirements of this part.
Train dispatcher means the railroad employee assigned to control
and issue orders governing the movement of trains on a specific segment
of railroad track in accordance with the operating rules of the
railroad that apply to that segment of track.
Watchman/lookout means an employee who has been annually trained
and qualified to provide warning to roadway workers of approaching
trains or on-track equipment. Watchmen/lookouts shall be properly
equipped to provide visual and auditory warning such as whistle, air
horn, white disk, red flag, lantern, fusee. A watchman/lookout's sole
duty is to look out for approaching trains/on-track equipment and
provide at least fifteen seconds advanced warning to employees before
arrival of trains/on-track equipment.
Working limits means a segment of track with definite boundaries
established in accordance with this rule upon which trains and engines
may move only as authorized by the roadway worker having control over
that defined segment of track. Working limits may be established
through ``exclusive track occupancy,'' ``inaccessible track,'' or
``foul time'' as defined in this section.
3. Add subpart C to read as follows:
Subpart C--Roadway Worker Protection
Sec.
214.301 Purpose and scope.
214.303 Railroad on-track safety programs, generally.
214.305 Effective dates.
214.307 Review and approval of individual on-track safety programs
by FRA.
214.309 On-track safety program documents.
214.311 Responsibility of employers.
214.313 Responsibility of individual roadway workers.
[[Page 10544]]
214.315 Supervision and communication.
214.317 On-track safety procedures, generally.
214.319 Working limits, generally.
214.321 Exclusive track occupancy.
214.323 Foul time.
214.325 Inaccessible track.
214.327 Train approach warning provided by watchmen/lookouts.
214.329 Definite train location.
214.331 Informational line-ups of trains.
214.333 On-track safety procedures for roadway work groups.
214.335 On-track safety procedures for lone workers.
214.337 Audible warning from trains.
214.339 Roadway maintenance machines.
214.341 Training and qualification, general.
214.343 Training for all roadway workers.
214.345 Training and qualification for lone workers.
214.347 Training and qualification of watchmen/lookouts.
214.349 Training and qualification of flagmen.
214.351 Training and qualification of roadway workers who provide
on-track safety for roadway work groups.
214.353 Training and qualification in on-track safety for operators
of roadway maintenance machines.
Subpart C--Roadway Worker Protection
Sec. 214.301 Purpose and scope.
(a) The purpose of this subpart is to prevent accidents and
casualties caused by moving railroad cars, locomotives or roadway
maintenance machines striking roadway workers or roadway maintenance
machines.
(b) This subpart prescribes minimum safety standards for roadway
workers. Each railroad and railroad contractor may prescribe additional
or more stringent operating rules, safety rules, and other special
instructions that are consistent with this subpart.
(c) This subpart prescribes safety standards related to the
movement of roadway maintenance machines where such movements affect
the safety of roadway workers. This subpart does not otherwise affect
movements of roadway maintenance machines that are conducted under the
authority of a train dispatcher, a control operator, or the operating
rules of the railroad.
Sec. 214.303 Railroad on-track safety programs, generally.
(a) Each railroad to which this part applies shall adopt and
implement a program that will afford on-track safety to all roadway
workers whose duties are performed on that railroad. Each such program
shall provide for the levels of protection specified in this subpart.
(b) Each on-track safety program adopted to comply with this part
shall include procedures to be used by each railroad for monitoring
effectiveness of and compliance with the program.
Sec. 214.305 Effective dates.
Each program adopted by a railroad to comply with this Rule shall
be effective not later than the date specified in the following
schedule:
(a) For each Class I railroad (including National Railroad
Passenger Corporation) and each railroad providing commuter service in
a metropolitan or suburban area, June 1, 1996.
(b) For each Class II railroad, September 1, 1996.
(c) For each Class III railroad, switching and terminal railroad,
and any railroad not otherwise classified, December 1, 1996.
(d) For each railroad commencing operations after the pertinent
date specified in this paragraph, the date on which operations
commence.
Sec. 214.307 Review and approval of individual on-track safety
programs by FRA.
(a) Each railroad shall notify the Associate Administrator for
Safety, Federal Railroad Administration, RRS-15, 400 Seventh Street SW,
Washington, DC 20590, not less than one month before its on-track
safety program becomes effective. The notification shall include the
effective date of the program, the address of the office at which the
program documents are available for review by representatives of the
Federal Railroad Administrator, and the name, title, address and
telephone number of the primary person to be contacted with regard to
review of the program.
(b) After receipt of the notification from the railroad, the
Federal Railroad Administration will conduct a formal review of the on-
track safety program. The Federal Railroad Administration will notify
the primary railroad contact person of the results of the review,
whether the on-track safety program has been approved by the
Administrator, and if not approved, the specific points in which the
program is deficient.
(c) A railroad's on-track safety program will take effect by the
date established in Sec. 214.305, without regard to the date of review
or approval by the Federal Railroad Administration.
Sec. 214.309 On-track safety program documents.
Rules and operating procedures governing track occupancy and
protection shall be maintained together in one manual and be readily
available to all roadway workers. Each roadway worker responsible for
the on-track safety of others, and each lone worker, shall be provided
with and shall maintain a copy of the program document.
Sec. 214.311 Responsibility of employers.
(a) Each employer is responsible for the understanding and
compliance by its employees with its rules and the requirements of this
part.
(b) Each employer shall guarantee each employee the absolute right
to challenge in good faith whether the on-track safety procedures to be
applied at the job location comply with the rules of the operating
railroad, and to remain clear of the track until the challenge is
resolved.
(c) Each employer shall have in place a written procedure to
achieve prompt and equitable resolution of challenges made in
accordance with paragraph (b) of this section and Sec. 214.313(d).
Sec. 214.313 Responsibility of individual roadway workers.
(a) Each roadway worker is responsible for following the on-track
safety rules of the railroad upon which the roadway worker is located.
(b) A roadway worker shall not foul a track except when necessary
for the performance of duty.
(c) Each roadway worker is responsible to ascertain that on-track
safety is being provided before fouling a track.
(d) Each roadway worker may refuse any directive to violate an on-
track safety rule, and shall inform the employer in accordance with
Sec. 214.311 whenever the roadway worker makes a good faith
determination that on-track safety provisions to be applied at the job
location do not comply with the rules of the operating railroad.
Sec. 214.315 Supervision and communication.
(a) When an employer assigns duties to a roadway worker that call
for that employee to foul a track, the employer shall provide the
employee with a job briefing that includes information on the means by
which on-track safety is to be provided, and instruction on the on-
track safety procedures to be followed.
(b) A job briefing for on-track safety shall be deemed complete
only after the roadway worker has acknowledged understanding of the on-
track safety procedures and instructions presented.
(c) Every roadway work group whose duties require fouling a track
shall have one roadway worker designated by the employer to provide on-
track safety for all members of the group. The designated person shall
be qualified under the rules of the railroad that conducts train
operations on those
[[Page 10545]]
tracks to provide the protection necessary for on-track safety of each
individual in the group. The responsible person may be designated
generally, or specifically for a particular work situation.
(d) Before any member of a roadway work group fouls a track, the
designated person providing on-track safety for the group under
paragraph (c) of this section shall inform each roadway worker of the
on-track safety procedures to be used and followed during the
performance of the work at that time and location. Each roadway worker
shall again be so informed at any time the on-track safety procedures
change during the work period. Such information shall be given to all
roadway workers affected before the change is effective, except in
cases of emergency. Any roadway workers who, because of an emergency,
cannot be notified in advance shall be immediately warned to leave the
fouling space and shall not return to the fouling space until on-track
safety is re-established.
(e) Each lone worker shall communicate at the beginning of each
duty period with a supervisor or another designated employee to receive
a job briefing and to advise of his or her planned itinerary and the
procedures that he or she intends to use for on-track safety. When
communication channels are disabled, the job briefing shall be
conducted as soon as possible after the beginning of the work period
when communications are restored.
Sec. 214.317 On-track safety procedures, generally.
Each employer subject to the provisions of this part shall provide
on-track safety for roadway workers by adopting a program that contains
specific rules for protecting roadway workers that comply with the
provisions of Secs. 214.319 through 214.335.
Sec. 214.319 Working limits, generally.
Working limits established on controlled track shall conform to the
provisions of Sec. 214.321 Exclusive track occupancy, or Sec. 214.323
Foul time. Working limits established on non-controlled track shall
conform to the provisions of Sec. 214.325 Inaccessible track. Working
limits established under any procedure shall, in addition, conform to
the following provisions:
(a) Only a roadway worker who is qualified in accordance with
Sec. 214.351 shall establish or have control over working limits for
the purpose of establishing on-track safety.
(b) Only one roadway worker shall have control over working limits
on any one segment of track.
(c) Movements of trains and roadway maintenance machines within
working limits shall be made only under the direction of the roadway
worker having control over the working limits. Such movements shall be
at restricted speed unless a higher speed has been specifically
authorized by the roadway worker in charge of the working limits.
(d) All affected roadway workers shall be notified before working
limits are released for the operation of trains. Working limits shall
not be released until all affected roadway workers have either left the
track or have been afforded on-track safety through train approach
warning in accordance with Sec. 214.327.
Sec. 214.321 Exclusive track occupancy.
Working limits established on controlled track through the use of
exclusive track occupancy procedures shall comply with the following
requirements:
(a) The working limits shall be placed under the control of one
roadway worker, who is designated in accordance with Sec. 214.351, by
the train dispatcher or control operator in charge of the track.
(b) The authority for exclusive track occupancy given to the
roadway worker in charge of the working limits shall be transmitted on
a written or printed document directly, by relay through a designated
employee, in a data transmission, or by oral communication, to the
roadway worker by the train dispatcher or control operator in charge of
the track:
(1) Where authority for exclusive track occupancy is transmitted
orally, the authority shall be written as received by the roadway
worker in charge and repeated to the issuing employee for verification.
(2) The roadway worker in charge of the working limits shall
maintain possession of the written or printed authority for exclusive
track occupancy while the authority for the working limits is in
effect.
(3) The train dispatcher or control operator in charge of the track
shall make a written or electronic record of all authorities issued to
establish exclusive track occupancy.
(c) The extent of working limits established through exclusive
track occupancy shall be defined by one of the following physical
features clearly identifiable to a locomotive engineer or other person
operating a train or railroad equipment:
(1) A flagman with instructions and capability to hold all trains
and equipment clear of the working limits.
(2) A fixed signal that displays an aspect indicating ``Stop''.
(3) A station shown in the time-table, and identified by name with
a sign, beyond which train movement is prohibited by train movement
authority or the provisions of a direct train control system.
(4) A clearly identifiable milepost beyond which train movement is
prohibited by train movement authority or the provisions of a direct
train control system.
(5) A clearly identifiable physical location prescribed by the
operating rules of the railroad which that trains may not pass without
proper authority.
Sec. 214.323 Foul time.
Working limits established on controlled track through the use of
foul time procedures shall comply with the following requirements:
(a) Foul time may be given orally or in writing by the train
dispatcher or control operator only after that employee has withheld
the authority of all trains to move into the working limits during the
foul time period.
(b) Each roadway worker to whom foul time is transmitted orally
shall repeat the track number, track limits and time limits of the foul
time to the issuing employee for verification before the foul time
becomes effective.
(c) Each roadway worker who obtains foul time shall first have been
trained and qualified by the operating railroad to provide on-track
safety to roadway work groups or as a lone worker.
(d) The train dispatcher or control operator shall not permit the
movement of trains or other on-track equipment onto the working limits
protected by foul time until the roadway worker who obtained the foul
time has reported clear of the track.
Sec. 214.325 Inaccessible track.
Working limits on non-controlled track shall be established by
rendering the track within working limits physically inaccessible to
trains. No operable locomotives or other items of on-track equipment,
except those moving under the direction of the roadway worker in
charge, shall be located within working limits on non-controlled track.
The extent of working limits established as inaccessible track shall be
defined by one of the following physical features:
(a) A flagman with instructions and capability to hold all trains
and equipment clear of the working limits.
(b) A switch or derail aligned to prevent access to the working
limits and
[[Page 10546]]
secured with an effective securing device by the roadway worker in
charge of the working limits.
(c) A remotely controlled switch aligned to prevent access to the
working limits and secured by the control operator of such remotely
controlled switch by application of a locking or blocking device to the
control of that switch, when:
(1) The control operator has secured the remotely controlled switch
by applying a locking or blocking device to the control of the switch;
and
(2) The control operator has notified the roadway worker who has
established the working limits that the requested protection has been
provided; and
(3) The control operator is not permitted to remove the locking or
blocking device from the control of the switch until receiving
permission to do so from the roadway worker who established the working
limits.
(d) A discontinuity in the rail that precludes passage of trains or
engines into the working limits.
Sec. 214.327 Train approach warning provided by watchmen/lookouts.
Roadway workers in a roadway work group who foul any track outside
of working limits shall be given warning of approaching trains and
engines by one or more watchmen/lookouts in accordance with the
following provisions:
(a) Train approach warning shall be given in sufficient time to
enable each roadway worker to move to and occupy a previously arranged
place of safety not less than 15 seconds before a train moving at the
maximum speed authorized on that track can pass the location of the
roadway worker.
(b) Watchmen/lookouts assigned to provide train approach warning
shall devote full attention to detecting the approach of trains and
communicating a warning thereof, and shall not be assigned any other
duties while functioning as watchmen/lookouts.
(c) The means used by a watchman/lookout to communicate a train
approach warning shall be distinctive and shall clearly signify to all
recipients of the warning that a train or other on-track equipment is
approaching.
(d) Every roadway worker who depends upon train approach warning
for on-track safety shall maintain a position that will enable him or
her to receive a train approach warning communicated by a watchman/
lookout at any time while on-track safety is provided by train approach
warning.
(e) Watchmen/lookouts shall communicate train approach warnings by
a means that does not require a warned employee to be looking in any
particular direction at the time of the warning, and that can be
detected by the warned employee regardless of noise or distraction of
work.
(f) Every roadway worker who is assigned the duties of a watchman/
lookout shall first be trained, qualified and designated in writing by
the employer to do so in accordance with the provisions of
Sec. 214.345.
(g) Every watchman/lookout shall be provided by the employer with
the equipment necessary for compliance with the on-track safety duties
which the watchman/lookout will perform.
Sec. 214.329 Definite train location.
A roadway worker may establish on-track safety by using definite
train location only where permitted by and in accordance with the
following provisions:
(a) A Class I railroad may only use definite train location to
establish on-track safety at points where such procedures were in use
on the effective date of the final rule.
(b) Each Class I railroad shall include in its on-track safety
program submitted to FRA in accordance with Sec. 214.307 a schedule for
phase-out of the use of definite train location to establish on-track
safety.
(c) A railroad other than a Class I railroad may use definite train
location to establish on-track safety on subdivisions only where:
(1) such procedures were in use on the effective date of this rule;
or
(2) the number of trains operated on the subdivision does not
exceed:
(i) three during any nine-hour period in which roadway workers are
on duty; and
(ii) four during any twelve-hour period in which roadway workers
are on duty.
(d) Definite train location shall only be used to establish on-
track safety according to the following provisions:
(1) Definite train location information shall be issued only by the
one train dispatcher who is designated to authorize train movements
over the track for which the information is provided.
(2) A definite train location list shall indicate all trains to be
operated on the track for which the list is provided, during the time
for which the list is effective.
(3) Trains not shown on the definite train location list shall not
be operated on the track for which the list is provided, during the
time for which the list is effective, until each roadway worker to whom
the list has been issued has been notified of the train movement, has
acknowledged the notification to the train dispatcher, and has canceled
the list. A list thus canceled shall then be invalid for on-track
safety.
(4) Definite train location shall not be used to establish on-track
safety within the limits of a manual interlocking, or on track over
which train movements are governed by a Traffic Control System or by a
Manual Block System.
(5) Roadway workers using definite train location for on-track
safety shall not foul a track within ten minutes before the earliest
time that a train is due to depart the last station at which time is
shown in approach to the roadway worker's location nor until that train
has passed the location of the roadway worker.
(6) A railroad shall not permit a train to depart a location
designated in a definite train location list before the time shown
therein.
(7) Each roadway worker who uses definite train location to
establish on-track safety must be qualified on the relevant physical
characteristics of the territory for which the train location
information is provided.
Sec. 214.331 Informational line-ups of trains.
(a) A railroad is permitted to include informational line-ups of
trains in its on-track safety program for use only on subdivisions of
that railroad upon which such procedure was in effect on March 14,
1996.
(b) Each procedure for the use of informational line-ups of trains
found in an on-track safety program shall include all provisions
necessary to protect roadway workers using the procedure against being
struck by trains or other on-track equipment.
(c) Each on-track safety program that provides for the use of
informational line-ups shall include a schedule for discontinuance of
the procedure by a definite date.
Sec. 214.333 On-track safety procedures for roadway work groups.
(a) No employer subject to the provisions of this part shall
require or permit a roadway worker who is a member of a roadway work
group to foul a track unless on-track safety is provided by either
working limits, train approach warning, or definite train location in
accordance with the applicable provisions of Secs. 214.319, 214.321,
213.323, 214.325, 214.327, 214.329 and 214.331.
(b) No roadway worker who is a member of a roadway work group shall
foul a track without having been informed by the roadway worker
responsible for the on-track safety of the
[[Page 10547]]
roadway work group that on-track safety is provided.
(c) Roadway work groups engaged in large-scale maintenance or
construction shall be provided with train approach warning in
accordance with Sec. 214.327 on adjacent tracks that are not included
within working limits.
Sec. 214.335 On-track safety procedures for lone workers.
(a) A lone worker who fouls a track while performing routine
inspection or minor correction may use individual train detection to
establish on-track safety only where permitted by this section and the
on-track safety program of the railroad.
(b) A lone worker retains an absolute right to use on-track safety
procedures other than individual train detection if he or she deems it
necessary, and to occupy a place of safety until such other form of on-
track safety can be established.
(c) Individual train detection may be used to establish on-track
safety only:
(1) by a lone worker who has been trained, qualified, and
designated to do so by the employer in accordance with Sec. 214.345;
(2) while performing routine inspection and minor correction work;
(3) on track outside the limits of a manual interlocking, a
controlled point, or a remotely controlled hump yard facility;
(4) where the lone worker is able to visually detect the approach
of a train moving at the maximum speed authorized on that track, and
move to a previously determined place of safety, not less than 15
seconds before the train would arrive at the location of the lone
worker;
(5) where no power-operated tools or roadway maintenance machines
are in use within the hearing of the lone worker; and
(6) where the ability of the lone worker to hear and see
approaching trains and other on-track equipment is not impaired by
background noise, lights, precipitation, fog, passing trains, or any
other physical conditions.
(d) The place of safety to be occupied by a lone worker upon the
approach of a train may not be on a track, unless working limits are
established on that track.
(e) A lone worker using individual train detection for on-track
safety while fouling a track may not occupy a position or engage in any
activity that would interfere with that worker's ability to maintain a
vigilant lookout for, and detect the approach of, a train moving in
either direction as prescribed in this section.
(f) A lone worker who uses individual train detection to establish
on-track safety shall first complete a written Statement of On-track
Safety. The Statement shall designate the limits of the track for which
it is prepared and the date and time for which it is valid. The
statement shall show the maximum authorized speed of trains within the
limits for which it is prepared, and the sight distance that provides
the required warning of approaching trains. The lone worker using
individual train detection to establish on-track safety shall produce
the Statement of On-track Safety when requested by a representative of
the Federal Railroad Administrator.
Sec. 214.337 Audible warning from trains.
Each railroad shall require that the locomotive whistle be sounded,
and the locomotive bell be rung, by trains approaching roadway workers
on or about the track. Such audible warning shall not substitute for
on-track safety procedures prescribed in this part.
Sec. 214.339 Roadway maintenance machines.
(a) Each employer shall include in its on-track safety program
specific provisions for the safety of roadway workers who operate or
work near roadway maintenance machines. Those provisions shall address:
(1) Training and qualification of operators of roadway maintenance
machines.
(2) Establishment and issuance of safety procedures both for
general application and for specific types of machines.
(3) Communication between machine operators and roadway workers
assigned to work near or on roadway maintenance machines.
(4) Spacing between machines to prevent collisions.
(5) Space between machines and roadway workers to prevent personal
injury.
(6) Maximum working and travel speeds for machines dependent upon
weather, visibility, and stopping capabilities.
(b) Instructions for the safe operation of each roadway machine
shall be provided and maintained with each machine large enough to
carry the instruction document:
(1) No roadway worker shall operate a roadway maintenance machine
without having been trained in accordance with Sec. 214.353.
(2) No roadway worker shall operate a roadway maintenance machine
without having complete knowledge of the safety instructions applicable
to that machine.
(3) No employer shall assign roadway workers to work near roadway
machines unless the roadway worker has been informed of the safety
procedures applicable to persons working near the roadway machines and
has acknowledged full understanding.
(c) Components of roadway maintenance machines shall be kept clear
of trains passing on adjacent tracks. Where operating conditions permit
roadway maintenance machines to be less than four feet from the rail of
an adjacent track, the on-track safety program of the railroad shall
include the procedural instructions necessary to provide adequate
clearance between the machine and passing trains.
Sec. 214.341 Training and qualification, general.
(a) No employer shall assign an employee to perform the duties of a
roadway worker, and no employee shall accept such assignment, unless
that employee has received training in the on-track safety procedures
associated with the assignment to be performed, and that employee has
demonstrated the ability to fulfill the responsibilities for on-track
safety that are required of an individual roadway worker performing
that assignment.
(b) Each employer shall provide to all roadway workers in its
employ initial or recurrent training once every calendar year on the
on-track safety rules and procedures that they are required to follow.
(c) Railroad employees other than roadway workers, who are
associated with on-track safety procedures, and whose primary duties
are concerned with the movement and protection of trains, shall be
trained to perform their functions related to on-track safety through
the training and qualification procedures prescribed by the operating
railroad for the primary position of the employee, including
maintenance of records and frequency of training.
(d) Each employer of roadway workers shall maintain written or
electronic records of each roadway worker qualification in effect. Each
record shall include the name of the employee, the type of
qualification made, and the most recent date of qualification. These
records shall be kept available for inspection and copying by the
Federal Railroad Administrator during regular business hours.
Sec. 214.343 Training for all roadway workers.
The training of all roadway workers shall include, as a minimum,
the following:
[[Page 10548]]
(a) Recognition of railroad tracks and understanding of the space
around them within which on-track safety is required.
(b) The functions and responsibilities of various persons involved
with on-track safety procedures.
(c) Proper compliance with on-track safety instructions given by
persons performing or responsible for on-track safety functions.
(d) Signals given by watchmen/lookouts, and the proper procedures
upon receiving a train approach warning from a lookout.
(e) The hazards associated with working on or near railroad tracks,
including review of on-track safety rules and procedures.
Sec. 214.345 Training and qualification for lone workers.
Each lone worker shall be trained and qualified by the employer to
establish on-track safety in accordance with the requirements of this
section, and must be authorized to do so by the railroad that conducts
train operations on those tracks.
(a) The training and qualification for lone workers shall include,
as a minimum, consideration of the following factors:
(1) Detection of approaching trains and prompt movement to a place
of safety upon their approach.
(2) Determination of the distance along the track at which trains
must be visible in order to provide the prescribed warning time.
(3) The rules and procedures prescribed by the railroad for
individual train detection, establishment of working limits, and
definite train location.
(4) The on-track safety procedures to be used in the territory on
which the employee is be qualified and permitted to work alone.
(b) Initial and periodic qualification of a lone worker shall be
evidenced by demonstrated proficiency .
Sec. 214.347 Training and qualification of watchmen/lookouts.
(a) The training and qualification for roadway workers assigned the
duties of watchmen/lookouts shall include, as a minimum, consideration
of the following factors:
(1) The detection and recognition of approaching trains.
(2) The effective warning of roadway workers of the approach of
trains.
(3) The determination of the distance along the track at which
trains must be visible in order to provide the prescribed warning time.
(4) The rules and procedures of the railroad to be used for train
approach warning.
(b) Initial and periodic qualification of a watchman/lookout shall
be evidenced by demonstrated proficiency .
Sec. 214.349 Training and qualification of flagmen.
(a) The training and qualification for roadway workers assigned the
duties of flagmen shall include, as a minimum, the content and
application of the operating rules of the railroad pertaining to giving
proper stop signals to trains and holding trains clear of working
limits.
(b) Initial and periodic qualification of a flagman shall be
evidenced by demonstrated proficiency .
Sec. 214.351 Training and qualification of roadway workers who provide
on-track safety for roadway work groups.
(a) The training and qualification of roadway workers who provide
for the on-track safety of groups of roadway workers through
establishment of working limits or the assignment and supervision of
watchmen/lookouts or flagmen shall include, as a minimum:
(1) All the on-track safety training and qualification required of
the roadway workers to be supervised and protected.
(2) The content and application of the operating rules of the
railroad pertaining to the establishment of working limits.
(3) The content and application of the rules of the railroad
pertaining to the establishment or train approach warning.
(4) The relevant physical characteristics of the territory of the
railroad upon which the roadway worker is qualified.
(b) Initial and periodic qualification of a roadway worker to
provide on track safety for groups shall be evidenced by a recorded
examination.
Sec. 214.353 Training and qualification in on-track safety for
operators of roadway maintenance machines.
(a) The training and qualification of roadway workers who operate
roadway maintenance machines shall include, as a minimum:
(1) Procedures to prevent a person from being struck by the machine
when the machine is in motion or operation.
(2) Procedures to prevent any part of the machine from being struck
by a train or other equipment on another track.
(3) Procedures to provide for stopping the machine short of other
machines or obstructions on the track.
(4) Methods to determine safe operating procedures for each machine
that the operator is expected to operate.
(b) Initial and periodic qualification of a roadway worker to
operate roadway maintenance machines shall be evidenced by demonstrated
proficiency.
Issued this 11th Day of March, 1996.
Jolene M. Molitoris,
Administrator. Federal Railroad Administration
[FR Doc. 96-6175 Filed 3-12-96; 8:45 am]
BILLING CODE 4910-06-P
Complete official Federal Register PDF
FR Doc. 96-6160 Medical Devices; Classification/Reclassification; Restricted Devices; Analyte Specific Reagents
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10483-10489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6160]
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[[Page 10484]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
21 CFR Parts 809 and 864
[Docket No. 96N-0082]
Medical Devices; Classification/Reclassification; Restricted
Devices; Analyte Specific Reagents
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is proposing to
classify/reclassify analyte specific reagents (ASR) presenting a low
risk to the public health into class I (general controls), and to
exempt these class I analyte specific reagents from the premarket
notification (510(k)) requirements. FDA is also proposing to designate
class I analyte specific reagents as restricted devices under the
Federal Food, Drug, and Cosmetic Act (the act), and to establish
restrictions on their sale, distribution and labeling. Finally, FDA is
proposing that ASR's presenting a high risk be classified into or
retained in class III (premarket approval). The scope of products
covered by this proposal includes both pre-1976 devices which have not
been previously classified, as well as post-1976 devices which are
statutorily classified into class III. The intention of this proposal
is to regulate these pre- and post-1976 devices in a consistent
fashion. Therefore, FDA is proposing classification or reclassification
of these products, as applicable.
DATES: Written comments on the proposed rule by June 12, 1996.
Written comments on the information collection requirements should
be submitted by April 15, 1996.
ADDRESSES: Written comments on the proposed rule to the Dockets
Management Branch (HFA-305), Food and Drug Administration, 12420
Parklawn Dr., rm. 1-23, Rockville, MD 20857.
Submit written comments on the information collection requirements
to the Office of Information and Regulatory Affairs, OMB, New Executive
Office Bldg., 725 17th St. NW., rm. 10235, Washington, DC 20503, Attn:
Desk Officer for FDA.
FOR FURTHER INFORMATION CONTACT: Steven Gutman, Center for Devices and
Radiological Health (HFZ-440), Food and Drug Administration, 2098
Gaither Rd., Rockville, MD 20850, 301-594-3084.
SUPPLEMENTARY INFORMATION: The act (21 U.S.C. 201 et seq.) as amended
by the Medical Device Amendments of 1976 (Pub. L. 94-295) (the
amendments) and the Safe Medical Devices Act of 1990 (Pub. L. 101-
629)(SMDA) established a comprehensive system for the regulation of
medical devices intended for human use. Section 513 of the act (21
U.S.C. 360c) established three categories (classes) of devices,
depending on the degree of regulatory controls needed to provide
reasonable assurance of their safety and effectiveness. The three
categories of devices are as follows: Class I, general controls; class
II, special controls; class III, premarket approval.
Devices that were in commercial distribution before May 28, 1976
(the date of enactment of the amendments) are classified under 21
U.S.C. 360c after FDA has: (1) Received a recommendation from a
classification panel (an FDA advisory committee); (2) published the
panel's recommendation for comment, along with a proposed regulation
classifying the device; and (3) published a final regulation
classifying the device. A device that is first offered in commercial
distribution after May 28, 1976, and is substantially equivalent to a
device classified under this scheme, is also classified into the same
class as the device to which it is substantially equivalent.
A device that was not in commercial distribution prior to May 28,
1976, and that is not substantially equivalent to a preamendments
device, is classified by statute into class III without any FDA
rulemaking proceedings. The agency determines whether new devices are
substantially equivalent to previously offered devices by means of the
premarket notification procedure in section 510(k) of the act (21
U.S.C. 360(k)) and part 807 of the regulations (21 CFR part 807).
I. Background
There has been a growing trend in recent years for more
sophisticated clinical laboratories to develop and prepare their own
tests that are intended to diagnose various medical conditions, using
ingredients that they frequently purchase from biological or chemical
suppliers. The ingredients and other materials used in developing these
tests may be divided into two groups. The first group is referred to as
general purpose reagents, which include the laboratory apparatus,
collection systems, and chemicals used broadly in a wide variety of
tests. The second group is composed of chemicals or antibodies that may
be thought of as the ``active ingredients'' of a test and which are
useful only in testing for one specific disease or condition. It is
this group of active ingredients that FDA is proposing to identify as
ASR's. These in-house developed tests (sometimes referred to as ``home
brew'' tests) include a wide variety used in the diagnosis of
infectious diseases, cancer, genetic, and various other conditions. FDA
currently regulates the safety and effectiveness of diagnostic tests
that are traditionally manufactured and commercially marketed as
finished products. However, in-house developed tests have not been
actively regulated by the Agency and the ingredients used in them
generally are not produced under FDA assured manufacturing quality
control. Other general controls also have not been applied routinely to
these products. FDA is not proposing a comprehensive regulatory scheme
over the final tests produced by these laboratories and is focusing
instead on the ``active ingredients'' (ASR's) provided to the
laboratories. However, at a future date, the agency may reevaluate
whether additional controls over the in-house tests developed by such
laboratories may be needed to provide an appropriate level of consumer
protection. Such controls may be especially relevant as testing for the
presence of genes associated with cancer or dementing diseases becomes
more widely available. Additional controls might include a broad array
of approaches, ranging from full premarket review by FDA to use of
third parties to evaluate analytical or clinical performance of the
tests. The laboratories producing tests from ASR's and offering the
tests as laboratory services are currently regulated by the Health Care
Financing Administration (HCFA) under the Clinical Laboratory
Improvement Amendments of 1988 (CLIA-88) for compliance with general
laboratory standards regarding personnel, proficiency testing, quality
control, and quality assurance. However, these HCFA regulations do not
include the same product controls provided by FDA. As a result, neither
patients nor practitioners have assurance that all ingredients in the
laboratory developed tests are of high quality and capable of producing
consistent results.
FDA is concerned that the present situation with respect to in-
house developed tests, in which these ingredients are essentially
unregulated and therefore of unpredictable quality, may create a risk
to the public health. FDA also is concerned that continuing
uncertainties about the regulatory status of commercially marketed
ASR's may create an unpredictable business climate for manufacturers
and suppliers. On the other hand, the agency recognizes the clinical
importance of in-house developed testing as a mechanism for
[[Page 10485]]
providing novel, highly specialized tests in a relatively short time,
sometimes for diseases that affect a relatively small proportion of the
population.
FDA's primary goals in this rulemaking proceeding are to assure
that ASR's are high quality reagents and that performance claims are
restricted to those made by the final test developer. In addition, for
those select ASR's whose use present a particularly high risk to public
health, FDA seeks to ensure a higher and more appropriate level of
regulatory review.
To seek public and expert input on these issues, FDA held a meeting
of its Immunology Devices Panel (the Panel) on January 22, 1996. In the
notice announcing that meeting (61 FR 74-75, January 2, 1996), FDA set
forth its preliminary thinking regarding a regulatory framework for
ASR's. That framework included placing the majority of ASR's into class
I and exempting them from premarket notification requirements;
maintaining other general controls, including registration, listing,
and compliance with current good manufacturing practice (CGMP) and
medical device reporting (MDR) requirements; and restrictions on the
sale, distribution or use of these devices. Also, under that framework,
a small number of ASR's presenting a high risk to public health would
be placed in class III.
At the public session of the Panel meeting, a variety of health
professional and industry organizations presented their views. These
groups included: American Association for Clinical Chemistry, American
Clinical Laboratories Association, Association for Molecular Pathology,
College of American Pathologists, Centocor, Inc., Health Industry
Manufacturers Association, IBT Reference Laboratory, Joint Council of
Immunohistochemical Manufacturers, and Specialty Laboratories Inc. In
general, these groups supported the broad outline of the FDA approach
(Ref. 1).
II. The Immunology Devices Panel Recommendation
At the January 22, 1996 meeting, the Panel made the following
recommendations regarding the classification of analyte specific
reagents.
1. Identification: The Panel recommended that these devices be
identified as follows: ``Analyte specific reagents are antibodies (both
monoclonal and polyclonal), specific receptor proteins, nonhuman
nucleic acids and fragments of nonhuman nucleic acids and similar
biological reagents which, through specific chemical binding or
reaction, are intended for diagnostic identification or quantification
of specific analytes in a biological specimen.'' (Ref. 1.)
2. Recommended classifications: The Panel recommended that most of
these devices be classified into Class I (general controls); that these
devices be exempted from the premarket notification (510(k))
requirements; and that these devices be subject to the good
manufacturing practices regulation as well as to other general
controls, including restrictions on their distribution and labeling.
The panel also recommended that certain ASR's should be classified into
class II or class III, or as regulated by the Center for Biologics
Evaluation and Research, because their use presents particularly high
risks.
3. Summary of reasons for recommendation: The Panel recommended
that most analyte specific reagents be classified into class I because
they believed that general controls are sufficient to provide
reasonable assurance of their safety and effectiveness.The Panel did
not believe that premarket review was an appropriate or necessary
mechanism for assuring the safe and effective use of these reagents.
The Panel's classification recommendation was based on the
applicability of the general controls usually associated with class I
products (e.g., registration, listing, CGMP, and MDR) as well as the
inclusion of restrictions on distribution, use, and labeling. The Panel
believed that compliance with CGMP's by ASR suppliers was essential to
ensure the quality and purity of ASR's purchased by clinical
laboratories. The Panel also believed that restricting distribution of
these ASR's to laboratories certified as high complexity laboratories
under CLIA would ensure that these devices would be properly used by
qualified health professionals. The Panel also believed that it would
be appropriate to require that high complexity laboratories, when
reporting results from in-house developed tests using ASR's, include a
disclaimer stating that the in-house developed tests had not been
reviewed by FDA. The Panel believed that this disclaimer would provide
clinicians with additional information to be used in deciding how much
weight to place on the test results being reported. Finally, the Panel
recommended that manufacturers of ASR's be prohibited from labeling
their product with analytical or clinical performance claims. The Panel
believed that it would be inappropriate for manufacturers to make
specific claims because these products are intended to be used as
ingredients in a variety of ways by high complexity laboratories. Under
these circumstances, performance would be established by the laboratory
using the ASR's.
While the Panel believed that class I designation and exemption
from 510(k) was appropriate for most analyte specific reagents, the
Panel was of the opinion that there were some instances in which
general controls would not be sufficient. They suggested that:
those analyte specific reagents intended to diagnose
communicable diseases or where the Agency has established a
recommendation for use of the test in safeguarding the blood supply
or establishing the safe use of blood and blood products and/or
tests to predict genetic disease or predisposition to disease in
healthy or apparently healthy individuals are more properly
classified into Class II or III and subject to premarket controls,
510(k) or PMA as applicable to such classifications. (Ref. 1.)
The Panel believed that ASR's used in these settings present risks to
the public health that require heightened regulatory control.
4. Summary of data on which panel recommendation is based: The
Immunology Devices Panel based its recommendation on the Panel members
personal knowledge of, and clinical experience with, the devices and
presentations by Panel members and interested parties (Ref. 1).
5. Risks to health: The primary risk to health presented by these
products is that they may be manufactured with variable quality, or be
inappropriately labeled, or be used by persons without adequate
qualifications. There is also concern that clinicians ordering the
tests made from ASR's may be unaware that the clinical performance
characteristics of these tests have not been independently reviewed by
FDA. The Panel also identified a subset of ASR's whose use posed unique
risks to public health because of the substantial clinical impact of
the information generated using these devices.
The Panel discussed FDA's approach to regulating ASR's without
regard to whether the particular ASR's are pre-1976 or post-1976
devices. FDA believes that the Panel's thinking and conclusions may be
reasonably applied to the classification of pre-1976 ASR's as well as
to the reclassification of post-1976 ASR's (which, by statute, are
already in class III).
III. FDA's Proposed Rule
FDA is proposing that most active ingredients used in preparing in-
house developed tests be classified as class I and regulated as
follows:
1. The biological or chemical suppliers would have to register with
[[Page 10486]]
FDA and provide the agency with a list of the ASR's they are supplying
to laboratories for use in developing tests. These suppliers would be
required to follow good manufacturing practices, as applicable, in
accordance with 21 CFR part 820. The suppliers would also have to
report to FDA, under 21 CFR part 803, adverse events that may have been
due to their ingredients.
2. These class I devices would be exempt from the premarket
notification requirements of section 510(k) of the act. Most recently,
in the Federal Register of July 21, 1994 (59 FR 37378), FDA set out its
criteria for exempting devices from premarket notification. In part,
this document states that a device may be exempted if the following
factors apply:
(a) Characteristics of the device necessary for its safe and
effective performance are well established; (b) anticipated changes
in the device that could affect safety and effectiveness will
either: (1) be readily detectable by users by visual examination or
other means such as routine testing, before causing harm, e.g.,
testing of a clinical laboratory reagent with positive and negative
controls; or (2) not materially increase the risk of injury,
incorrect diagnosis, or ineffective treatment; and any changes in
the device would not be likely to result in a change in the device's
classification.
(59 FR 37378).
FDA believes that these criteria apply to class I analyte specific
reagents and that, therefore, they may be exempted from premarket
notification.
3. Section 520(e) of the act (21 U.S.C. 360j(e)) provides that FDA
may by regulation require that a device be restricted in its sale,
distribution, or use only upon the written or oral authorization of a
practitioner licensed by law to administer or use such device, or upon
such other conditions as FDA may prescribe in the regulation, if,
because of its potentiality for harmful effect or the collateral
measures necessary to its use, FDA determines that there cannot
otherwise be reasonable assurance of its safety and effectiveness. FDA
is proposing that use of these active ingredients to produce in-house
developed tests be restricted to those clinical laboratories certified
under CLIA-88 as ``high-complexity laboratories.'' These laboratories
have the expertise and qualifications required to use these active
ingredients in making in-house tests, and to assess the performance of
the ASR's. FDA believes that these qualifications are necessary to
provide reasonable assurance of the safe and effective use of these
devices.
4. Under the proposal, the labeling for the active ingredients to
be used in these in-house tests would be restricted to describing the
identity and purity of the material being sold in addition to most of
the standard information already required for general purpose reagents
(e.g., net weight; storage instructions). However, under this proposal
no specific analytical or clinical performance claims could be made in
the labeling or in promotional material. This is because the laboratory
producing the test, not the manufacturer of the ingredients, is
accountable for use of the ingredient and its performance as part of a
test. Also, under section 520(e) of the act, the advertising and
promotional material for ASR's would be restricted in a manner
consistent with the labeling. As discussed in section IV of this
document, FDA invites comments on the Panel's recommendation regarding
labeling in test reports from clinical laboratories to health
professionals. Finally, FDA is proposing to revise the definition of
general purpose reagents to complement and be consistent with the
definition being proposed for ASR's.
In addition to the proposed classification of most ASR's in class
I, FDA is proposing that certain active ingredients used in in-house
developed tests be classified either in class III subject to premarket
approval because of the serious health risks associated with their use
or in the class of the test in which the ASR is being used, or
regulated under other appropriate mechanisms. These include active
ingredients used in tests intended to diagnose potentially fatal
contagious conditions (e.g., human immunodeficiency virus (HIV) or
tuberculosis) or intended to safeguard the blood supply. The proposed
restrictions on the distribution, use, and labeling of ASR's in class I
would also apply to any ASR placed in class II or class III. As
described in section IV of this document, the agency is seeking public
input on the Panel's recommendation that this group of reserved ASR's
should also include those active ingredients which are intended for use
in human genetic testing.
If this proposal is made final, marketing of post-1976 ASR's in
class III would need to cease following publication of the final rule
until premarket approval applications (PMA's) were submitted and
approved. The number of firms and products that would be affected would
be a function of how many ASR's are classified in class III in the
final rule. FDA believes that, as proposed, only a very few companies
and products would be affected. For pre-1976 devices, following
publication of a final rule on classification, companies would be
required to submit 510(k)'s as an interim measure. Companies would then
have a minimum of 30 months to develop safety and effectiveness data
necessary to support a PMA.
IV. Unresolved Questions; Request for Comments
A number of important issues were raised during the Panel
discussion as specified below. FDA is inviting comments on all of these
issues.
1. The Panel expressed concern that the controls recommended by FDA
for analyte specific reagents used in in-house developed tests were not
sufficiently stringent for the active ingredients used in human genetic
testing, and suggested that these ingredients be regulated as class II
or class III devices. FDA believes that this recommendation by the
panel may be too broad. For example, FDA is not certain that making a
distinction among tests that directly identify genetic material (i.e.,
deoxyribonucleic acid (DNA), which the panel recommended for class II
or III) as opposed to transcribed genetic material (i.e., m-RNA) or
gene products (i.e.,proteins and post-translationally modified
proteins, which the panel recommended for class I) provides a
meaningful basis for differing regulatory treatment of ASR's that are
used to develop these tests. FDA is therefore soliciting comments on
the full range of options available to regulate ASR's intended for use
in human genetic testing: From regulating these ASR's as class I exempt
products to regulating them as class III devices subject to premarket
approval. Intermediate options include regulating a subset of these
ASR's as class III devices. For example, FDA could regulate as class
III devices only those ASR's used in tests intended for use in overtly
healthy people to identify a genetic predisposition to a dementing
disease, or to fatal or potentially fatal medical disorders (e.g.,
cancers or Alzheimer's disease), in situations where penetrance is
poorly defined or variable and latency is long (5 years or longer). FDA
is soliciting comments on the degree of regulatory control needed for
these tests and reasonable bases for distinction , if any, among the
ASR's used for human genetic testing.
2. The panel recommended that the definition of ASR's not include
human nucleic acids. (See ``Panel Recommendation'' above.) FDA believes
that this would be too narrow and has excluded the word ``nonhuman''
from its proposed definition. FDA believes that if ASR's for human
genetic sequencing are to be excluded in a final rule from class I
exempt status, it would
[[Page 10487]]
be preferable to do so by describing the basis for such exclusion in
the rule and explicitly reserving those ASR's for class II or III, as
has been proposed for ASR's used in tests intended to safeguard the
blood supply. FDA also believes that the use of the phrase ``specific
analytes'' in the Panel's recommended definition of ASR's is circular
and has replaced it in the definition with: ``and quantification of an
individual chemical substance or ligand in biological substances.'' FDA
invites comments on these changes.
3. FDA is also soliciting comments on the suitability of the term
``analyte-specific reagent'' to describe the active ingredients in in-
house developed tests.
4. The Panel recommended that a disclaimer be appended to the test
report informing the ordering practitioner of the test results. The
disclaimer would inform the practitioner that the test was developed,
and its performance characteristics defined, by the laboratory without
FDA review. The agency is seeking comment on whether such a disclaimer
should be required and, if so, how it should be worded. One possible
statement would be: ``This test was developed and its performance
characteristics determined by [Laboratory Name]. It has not been
reviewed by the U.S. Food and Drug Administration.'' In addition, FDA
solicits comments on whether the tests developed by the laboratories
using ASR's should be made available only on the order of a physician,
or, alternatively, whether ASR's intended for use in tests made
directly available to consumers should be regulated in class II or III.
V. Comments
Interested persons may, on or before June 12, 1996, submit to the
Dockets Management Branch (address above) written comments regarding
this proposal. Two copies of any comments are to be submitted, except
that individuals may submit one copy. Comments are to be identified
with the docket number found in brackets in the heading of this
document. Received comments may be seen in the office above between 9
a.m. and 4 p.m., Monday through Friday.
VI. Reference
The following reference has been placed on display in the Dockets
Management Branch (address above) and may be seen by interested persons
between 9 a.m. and 4 p.m., Monday through Friday.
1. Transcript of the Immunology Devices Panel of the Medical
Devices Advisory Committee meeting, January 22, 1996.
VII. Environmental Impact
The agency has determined under 21 CFR 25.24(e)(2) that this action
is of a type that does not individually or cumulatively have a
significant effect on the human environment. Therefore, neither an
environmental assessment nor an environmental impact statement is
required.
VIII. Analysis of Impacts
FDA has examined the impacts of the proposed rule under Executive
Order 12866 and the Regulatory Flexibility Act (Pub. L. 96-354).
Executive Order 12866 directs agencies to assess all costs and benefits
of available regulatory alternatives and, when regulation is necessary,
to select regulatory approaches that maximize net benefits (including
potential economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity). The agency believes that
this proposed rule is consistent with the regulatory philosophy and
principles identified in the Executive Order. In addition, the proposed
rule is not a significant regulatory action as defined by the Executive
Order and so is not subject to review under the Executive Order.
The Regulatory Flexibility Act requires agencies to analyze
regulatory options that would minimize any significant impact of a rule
on small entities. Because this proposed rule would not require
premarket review of the vast majority of products, the agency certifies
that the proposed rule will not have a significant economic impact on a
substantial number of small entities. Therefore, under the Regulatory
Flexibility Act, no further analysis is required.
IX. Paperwork Reduction Act of 1995
This proposed rule contains information collections which are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995. The title, description, and
respondent description of the information collection are shown below
with an estimate of the annual reporting burden. Included in the
estimate is the time for reviewing instructions, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
With respect to the following collection of information, FDA
invites comments on: (1) Whether the proposed collection of information
is necessary for proper performance of FDA's functions, including
whether the information will have practical utility; (2) the accuracy
of FDA's estimate of the burden of the proposed collection of
information, including validity of the methodology and assumptions
used; (3) ways to enhance the quality, utility, and clarity of the
information to be collected; and (4) ways to minimize the burden of the
collection of information on respondents, including through the use of
automated collection techniques, when appropriate and other forms of
information technology.
Title: Labeling Requirements for Analyte Specific Reagents-Labeling
for Laboratories
Description: The proposed rule would amend the labeling
requirements for certain in vitro diagnostic products to require that
manufacturers of analyte specific reagents provide certain information
concerning the reagents to laboratories that will develop tests using
the reagents. The proposed regulation would also require that
advertising and promotional material for analyte specific reagents
include information about the identity and purity of the reagent and
not make any claims about analytic or clinical performance. The purpose
of the regulation is to assure that laboratories developing tests using
these reagents have sufficient information about their identity and
purity.
Description of Respondents: Businesses and other for profit
organizations.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Annual Reporting Burden
---------------------------------------------------------------------------------------------------------------------------------------------------------
21 CFR Section No. of Respondents Annual Frequency per Response Total Annual Responses Hours Per Response Total Hours
--------------------------------------------------------------------------------------------------------------------------------------------------------
809.10(e) 100 1 100 40 4,000
809.30(d) 100 1 100 20 2,000
Total 6,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 10488]]
There are no capital costs or operating and maintenance costs
associated with these information collections.
As required by section 3507(d) of the Paperwork Reduction Act of
1995, FDA has submitted the collections of information contained in the
proposed rule to OMB for review. Other organizations and individuals
desiring to submit comments regarding the burden estimate or any aspect
of these information collection requirements, including suggestions for
reducing the burden, should direct them to the Office of Information
and Regulatory Affairs, OMB, New Executive Office Bldg., 725 17th St.
NW., rm. 10235, Washington, DC 20503, Attn: Desk Officer for FDA.
Written comments on the information collection requirements should be
submitted by April 15, 1996.
List of Subjects
21 CFR Part 809
Labeling, Medical devices.
21 CFR Part 864
Blood, Medical devices, Packaging and containers.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under
authority delegated to the Commissioner of Food and Drugs, it is
proposed that 21 CFR parts 809 and 864 be amended as follows:
PART 809--IN VITRO DIAGNOSTIC PRODUCTS FOR HUMAN USE
1. The authority citation for 21 CFR part 809 continues to read as
follows:
Authority: Secs. 301, 501, 502, 505, 507, 512, 513, 514, 518,
519, 520, 701, 702, 704, 801 of the Federal Food, Drug, and Cosmetic
Act (21 U.S.C. 331, 352, 352, 355, 357, 360b, 360c, 360d, 360h,
360i, 360j, 371, 372, 374, 381).
2. Section 809.10 is amended in paragraph (a) by adding at the end
of the first sentence ``or as provided in paragraph (e) of this
section'' and by adding new paragraph (e) to read as follows:
Sec. 809.10 Labeling for in vitro diagnostic products.
* * * * *
(e) The labeling for analyte specific reagents (e.g., monoclonal
antibodies, deoxyribonucleic acid (DNA) probes, viral antigens) shall
bear the following information:
(1) The proprietary name and established name (common or usual
name), if any, of the reagent.
(2) A declaration of the established name (common or usual name),
if any, and quantity, proportion or concentration of the reagent
ingredient; and for a reagent derived from biological material, the
source and, where applicable, a measure of its activity. The quantity,
proportion, concentration or activity shall be stated in the system
generally used and recognized by the intended user, e.g., metric,
international units, etc.
(3) A statement of the purity and quality of the reagent, including
a quantitative declaration of any impurities present. The requirement
for this information may be met by a statement of conformity with a
generally recognized and generally available standard which contains
the same information, e.g., those established by the American Chemical
Society, U.S. Pharmacopeia, National Formulary, National Research
Council.
(4) A statement of warnings or precautions for users as established
in the regulations contained in 16 CFR part 1500 and any other warnings
appropriate to the hazard presented by the product.
(5) Appropriate storage instructions adequate to protect the
stability of the product. When applicable, these instructions shall
include such information as conditions of temperature, light, humidity,
and other pertinent factors. The basis for such instructions shall be
determined by reliable, meaningful, and specific test methods such as
those described in Sec. 211.166 of this chapter.
(6) A declaration of the net quantity of contents, expressed in
terms of weight or volume, numerical count, or any combination of these
or other terms which accurately reflect the contents of the package.
The use of metric designations is encouraged, wherever appropriate.
(7) Name and place of business of manufacturer, packer, or
distributor.
(8) A lot or control number, identified as such, from which it is
possible to determine the complete manufacturing history of the
product.
(9) The statement ``Analytical and performance characteristics are
not established.''
(10) In the case of immediate containers too small or otherwise
unable to accommodate a label with sufficient space to bear all such
information, and which are packaged within an outer container from
which they are removed for use, the information required by paragraphs
(e)(1) through (e)(6) of this section may appear in the outer container
labeling only.
3. New Sec. 809.30 is added to subpart C read as follows:
Sec. 809.30 Restrictions on the sale, distribution and use of analyte
specific reagents.
(a) Analyte specific reagents (Sec. 864.4020 of this chapter) are
restricted devices under section 520(e) of the act subject to the
restrictions set forth in this section.
(b) Analyte specific reagents may only be sold to:
(1) In vitro diagnostic manufacturers;
(2) Clinical laboratories certified as high complexity laboratories
under 42 CFR part 493; or
(3) Organizations that use the reagents to make tests for purposes
other than providing diagnostic information to patients and
practitioners, e.g., forensic or underwriting laboratories.
(c) Analyte specific reagents must be labeled in accordance with
Sec. 809.10(e).
(d) Advertising and promotional materials for analyte specific
reagents:
(1) Shall include the identity and purity of the analyte specific
reagent and the identity of the analyte;
(2) Shall include the statement ``Analytical and performance
characteristics are not established''; and
(3) Shall not make any statement regarding analytical or clinical
performance.
PART 864--HEMATOLOGY AND PATHOLOGY DEVICES
4. The authority citation for 21 CFR part 864 continues to read as
follows:
Authority: Secs. 501, 510, 513, 515, 520, 701 of the Federal
Food, Drug, and Cosmetic Act (21 U.S.C. 351, 360, 360c, 360e, 360j,
371).
5. Section 864.4010 is amended by revising paragraph (a) to read as
follows.
Sec. 864.4010 General purpose reagent.
(a) A general purpose reagent is a chemical reagent that has
general laboratory application, that is used to collect, prepare, and
examine specimens from the human body for diagnostic histopathology,
cytology, and hematology, and that is not labeled or otherwise intended
for a specific diagnostic application. It may be either an individual
substance, or multiple substances reformulated, which, when combined
with or used in conjunction with an appropriate analyte specific
reagent and other general purpose reagents, is part of a diagnostic
test procedure or system constituting a finished in vitro diagnostic
(IVD) test. General purpose reagents are appropriate for combining with
more than one analyte specific reagent in producing such systems and
include labware or disposable constituents of tests but do not include
laboratory
[[Page 10489]]
machinery, automated or powered systems. General purpose reagents
include cytological preservatives, decalcifying reagents, fixatives and
adhesives, tissue processing reagents, isotonic solutions and pH
buffers. Reagents used in tests for more than one individual chemical
substance or ligand are general purpose reagents (e.g., TAQ polymerase,
substrates for enzyme immunoassay (EIA)).
* * * * *
6. New Sec. 864.4020 is added to subpart E to read as follows:
Sec. 864.4020 Analyte specific reagents.
(a) Identification. Analyte specific reagents are antibodies, both
polyclonal and monoclonal, specific receptor proteins, nucleic acid
sequences, and similar biological reagents which, through chemical
binding or reaction with substances in a specimen, are intended for
identification and quantification of an individual chemical substance
or ligand in biological specimens.
(b) Classification.
(1) Class I (General Controls), except as described in paragraph
(b)(2) of this section. These devices are exempt from the premarket
notification requirements in part 807, subpart E of this chapter.
(2) These devices are in Class III (Premarket Approval), when:
(i) The analyte is used to develop a test intended to diagnose a
contagious condition and the condition is highly likely to result in a
fatal outcome and prompt accurate diagnosis offers the opportunity to
mitigate the public health impact of the condition (e.g., human
immunodeficiency virus (HIV) or tuberculosis); or
(ii) The analyte is used to develop a test intended to diagnose a
condition for which FDA has established a recommendation or requirement
for the use of the test in safeguarding the blood supply or
establishing the safe use of blood and blood products (e.g., hepatitis,
syphilis, or blood grouping antisera).
(3) ASR's that meet the criteria in paragraph (b)(2) of this
section but are used to develop tests that have been classified by FDA
into class I or class II are classified into the same class as the test
for which they are being used.
(c) Date PMA or notice of completion of a PDP is required:
(1) Preamendments ASR's; No effective date has been established for
the requirement for premarket approval for the device described in
paragraph (b)(2) of this section. See Sec. 864.3.
(2) For postamendments ASR's; (effective date of the final rule).
Dated: March 8, 1996.
William B. Schultz,
Deputy Commissioner for Policy.
[FR Doc. 96-6160 Filed 3-11-96; 4:01 pm]
BILLING CODE 4160-01-F
Complete official Federal Register PDF
FR Doc. 96-6156 Federal-State Joint Board on Universal Service
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10499-10522]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6156]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 36 and 69
[CC Docket No. 96-45; FCC 96-93]
Federal-State Joint Board on Universal Service
AGENCY: Federal Communications Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: On March 8, 1996, the Federal Communications Commission
(``Commission'') adopted a Notice of Proposed Rulemaking and Order
Establishing Joint Board. The Commission initiates this rulemaking: to
define the services that will be supported by Federal universal service
support mechanisms; to define those support mechanisms; and to
otherwise recommend changes to our regulations to implement the
universal service directives of the Telecommunications Act of 1996.
DATES: Comments must be filed on or before April 8, 1996, and reply
comments must be filed on or before May 3, 1996.
ADDRESSES: Comments should be addressed to Office of the Secretary,
Federal Communications Commission, 1919 M Street, NW., Washington, DC
20554.
FOR FURTHER INFORMATION CONTACT: Deborah A. Dupont, Senior Attorney,
202-418-0850, Accounting and Audits Division, Common Carrier Bureau.
SUPPLEMENTARY INFORMATION:
Table of contents Paragraph
I. Introduction.............................................. 1
II. Goals and Principles of Universal Service Support
Mechanisms.................................................. 3
III. Support for Rural, Insular, and High-Cost Areas and Low-
Income Consumers............................................
A. Goals and Principles.................................... 13
B. Support for Rural, Insular, and High Cost Areas.........
1. What Services to Support.............................. 15
2. How to Implement...................................... 24
3. Who Is Eligible for Support........................... 41
C. Support for Low-Income Consumers........................
1. What Services to Support.............................. 50
2. How to Implement and Who Is Eligible for Support...... 59
D. Ensuring that Supported Services for Rural, Insular, and
High-Cost Areas and Low-Income Consumers Evolve........... 66
IV. Schools, Libraries, and Health Care Providers
A. Goals and Principles.................................... 71
B. Schools and Libraries...................................
1. What Services to Support.............................. 77
2. How to Implement...................................... 82
3. Who Is Eligible for Support........................... 87
C. Health Care Providers...................................
1. What Services to Support.............................. 89
2. How to Implement...................................... 95
3. Who Is Eligible for Support........................... 104
V. Enhancing Access to Advanced Services for Schools,
Libraries, and Health Care Providers
A. Goals and Principles.................................... 107
B. How to Implement........................................ 109
C. Who Is Eligible for Support............................. 111
VI. Other Universal Service Support Mechanisms............... 112
VII. Administration of Support Mechanisms....................
A. Goals and Principles.................................... 116
B. Administration
1. Who Should Contribute................................. 118
2. How Should Contributions Be Assessed.................. 121
3. Who Should Administer................................. 127
VIII Composition of the Joint Board.......................... 132
IX. Procedural Matters
A. Ex Parte................................................ 134
B. Regulatory Flexibility Analysis......................... 135
C. Comment Dates........................................... 143
X. Ordering Clauses.......................................... 145
Attachment: Service List
[[Page 10500]]
I. Introduction
1. This Notice of Proposed Rulemaking and Order Establishing Joint
Board (Notice) implements, in part, the Congressional directives set
out in Section 254 of the Communications Act of 1934, as added by the
Telecommunications Act of 1996 (1996 Act).1 As required by Section
254(a)(1), we initiate this rulemaking to do the following: (1) Define
the services that will be supported by Federal universal service
support mechanisms; (2) define those support mechanisms; and (3)
otherwise recommend changes to our regulations to implement the
universal service directives of the 1996 Act.2 We seek comment on
all the matters discussed in this Notice. Also, pursuant to Section
254(a)(1), we order that a Federal-State Joint Board be convened in
this docket, we appoint the individual members of the Federal-State
Joint Board, and we refer the issues raised in this Notice to that
Joint Board for the preparation of a Recommended Decision on these
matters by November 8, 1996.3
\1\ Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56 (1996) (to be codified at 47 U.S.C. 151 et seq.). For
clarity, we refer to provisions of the 1996 Act using the sections
at which they will be codified.
\2\ 1996 Act sec. 101(a), Section 254(a)(1).
\3\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 131 (1996).
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2. We intend that our undertaking in this Notice be consistent with
the language of the 1996 Act and the underlying Congressional intent.
We are further guided by our past experience in addressing universal
service issues, but only to the extent that experience can assist us in
interpreting and effectuating our new statutory mandate. This Notice
reflects our newly articulated statutory obligation to ensure that the
definition of services supported by universal service support
mechanisms and those mechanisms themselves evolve as advances in
telecommunications and information technologies continue to present
consumers with an ever increasing array of telecommunications and
information services.4 In accordance with Section 254(c)(2) of the
1996 Act, and as described below, we will periodically review, after
obtaining further Joint Board recommendations, the definition of
services supported by universal service mechanisms that we adopt in
this proceeding, as well as the regulations adopted to implement the
universal service mandates of the 1996 Act.5
\4\ 1996 Act sec. 101(a), Sec. 254(c)(1).
\5\ Id. Sec. 254(c)(2).
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II. Goals and Principles of Universal Service Support Mechanisms
3. Section 254(a)(1) of the Communications Act, as amended,
requires the Commission to ``institute and refer to a Federal-State
Joint Board under section 410(c) a proceeding to recommend changes to
any of its regulations in order to implement sections 214(e) and
[Section 254], including the definition of the services that are
supported by Federal universal service support mechanisms and a
specific timetable for completion of such recommendations.'' 6
Section 254(b) requires that:
\6\ Id. Sec. 254(a)(1).
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[T]he Joint Board and the Commission shall base policies for the
preservation and advancement of universal service on the following
principles:
(1) QUALITY AND RATES.--Quality services should be available at
just, reasonable, and affordable rates.
(2) ACCESS TO ADVANCED SERVICES.--Access to advanced
telecommunications and information services should be provided in
all regions of the Nation.
(3) ACCESS IN RURAL AND HIGH COST AREAS.--Consumers in all
regions of the Nation, including low-income consumers and those in
rural, insular, and high cost areas, should have access to
telecommunications and information services, including interexchange
services and advanced telecommunications and information services,
that are reasonably comparable to those services provided in urban
areas and that are available at rates that are reasonably comparable
to rates charged for similar services in urban areas.
(4) EQUITABLE AND NONDISCRIMINATORY CONTRIBUTIONS.--All
providers of telecommunications services should make an equitable
and nondiscriminatory contribution to the preservation and
advancement of universal service.
(5) SPECIFIC AND PREDICTABLE SUPPORT MECHANISMS.--There should
be specific, predictable and sufficient Federal and State mechanisms
to preserve and advance universal service.
(6) ACCESS TO ADVANCED TELECOMMUNICATIONS SERVICES FOR SCHOOLS,
HEALTH CARE, AND LIBRARIES.--Elementary and secondary schools and
classrooms, health care providers, and libraries should have access
to advanced telecommunications services as described in subsection
(h).
(7) ADDITIONAL PRINCIPLES.--Such other principles as the Joint
Board and the Commission determine are necessary and appropriate for
the protection of the public interest, convenience, and necessity
and are consistent with this Act.7
\7\ Id. 254(b).
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Prior to the 1996 Act, the Commission relied on Section 1 of the
Communications Act of 1934 8 as the touchstone for virtually all
major universal service policy discussions. The principles in Section
254(b) particularize and supplement our responsibility under that
section of the Communications Act, as amended by the 1996 Act, ``to
make available, so far as possible, to all the people of the United
States without discrimination on the basis of race, color, religion,
national origin, or sex a rapid, efficient, Nation-wide, and world-wide
wire and radio communication service with adequate facilities at
reasonable charges. * * *'' 9
\8\ 47 U.S.C. 151.
\9\ 47 U.S.C. 151, as amended by 1996 Act sec. 104, 151 (new
language emphasized).
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4. We solicit comment on how each of the seven principles
enunciated in Section 254(b) should influence our policies on universal
service. For example, the first principle introduces the concept of
``quality services.'' 10 We seek comment on how we can assess
whether quality services are being made available. In particular, we
seek comment on the utility of performance-based measurements to
evaluate our success in reaching that Congressional objective. The
first principle also directs us to ensure that quality service be
available at ``just, reasonable, and affordable rates.'' 11 While
the Commission has often determined ``just and reasonable'' rates, we
have not generally grappled with the notion of ``affordable'' 12
in the context of universal service. We seek comment on whether there
are appropriate measures that could help us assess whether
``affordable'' service is being provided to all Americans.13
\10\ 1996 Act sec. 101(a), Sec. 254(b)(1).
\11\ Id.
\12\ Webster's New World Dictionary defines the term ``afford''
as follows: ``to have enough or the means for; bear the cost of
without serious inconvenience.'' Webster's New World Dictionary at
23 (William Collins, Second College ed. 1980).
\13\ For example, one such measure might be the level of
telecommunications service subscribership among targeted
populations.
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5. As to the second principle, we seek comment on how to design our
policies to foster access to advanced telecommunications and
information services for ``all regions of the Nation.'' 14 While
in the past, the Commission has focused on bringing basic
telecommunications services to as many American homes as possible, this
principle instructs us to focus specifically on advanced
telecommunications and information services. We seek comment on which
advanced telecommunications and information services should be
provided, and how to provide access effectively to Americans in various
[[Page 10501]]
geographic regions. We also seek comment on the cost of providing such
access.
\14\ 1996 Act Sec. 101(a), Sec. 254(b)(2).
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6. The third principle stresses that consumers in ``rural, insular,
and high-cost areas'' and ``low-income consumers'' should have access
to ``telecommunications and information services'' that are
``reasonably comparable to those services provided in urban areas.''
15 In light of the further legislative intent to ``accelerate
rapidly private sector deployment of advanced services to all
Americans,'' 16 we believe that our goal should be to ensure that
consumers ``in all regions of the Nation'' 17 and at all income
levels, including low-income consumers, enjoy affordable access to the
range of services available to urban consumers generally. We recognize,
however, that the range of services is not likely to be identical for
all urban areas, and may, as a practical matter, vary according to the
demographic characteristics of consumers located in a given urban area.
We seek comment on how best to incorporate that variation in our use of
urban area service as a benchmark for comparative purposes.
\15\ Id. Sec. 254(b)(3). ``Insular'' areas refer to areas such
as the Pacific Island territories. S. Conf. Rep. No. 104-230, 104th
Cong., 2d Sess. at 131.
\16\ S. Conf. Rep. No. 104-230, 104th Cong. 2d Sess 1 (1996).
\17\ Id. Sec. 254(b)(2).
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7. The fourth and fifth principles refer to support mechanisms for
universal service and will guide our efforts to establish those
mechanisms through which funding essential to realizing our universal
service goals will be collected and distributed. The fourth principle
calls for ``equitable and non-discriminatory contributions: from ``all
providers of telecommunications services,'' 18 while the fifth
principle directs that the ``Federal and State mechanisms'' be
``specific, predictable and sufficient.'' 19 The sixth principle
that will shape our deliberations states that ``elementary and
secondary schools and classrooms, health care providers, and libraries
should have access to advanced telecommunications services. * * *''
20 We discuss these principles in Sections V and VI, below.
\18\ Id. Sec. 254(b)(4).
\19\ Id. Sec. 254(b)(5).
\20\ Id. Sec. 254(b)(6).
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8. The final principle listed in Section 254 of the new legislation
authorizes the Commission and the Federal-State Joint Board to base
universal service policies on ``[s]uch other principles as [they]
determine are necessary and appropriate for the protection of the
public interest, convenience, and necessity and are consistent with
this Act.'' 21 We invite interested parties to propose additional
principles relevant to the choice of services that should receive
universal service support. We note, for example, a fundamental
underlying principle of the 1996 Act is the Congressional desire ``to
provide for a pro-competitive, de-regulatory national policy framework
designed to accelerate rapidly private sector deployment of advanced
telecommunications and information technologies to all Americans.''
22 In that context, we seek comment on whether we should ensure
that the means of distributing universal service support should be
competitively-neutral,23 and the least regulatory possible,
consistent with our statutory obligations. In addition, we specifically
ask that commenters address whether and to what extent concerns for low
income consumers or those in rural, insular, or high cost areas can or
should be articulated as additional universal service principles
pursuant to Section 254(b)(7) or should be considered in determining
whether a particular service is ``consistent with the public interest,
convenience, and necessity under Section 254(c)(1)(D).'' 24 We
request the Joint Board's recommendations regarding all of these
general policy issues raised by Section 254(b).
\21\ Id. Sec. 254(b)(7).
\22\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1 (1996).
\23\ The contribution mechanism is expressly required to be
``equitable and non-discriminatory.'' 1996 Act sec. 101(a),
Sec. 254(d).
\24\ Id. Sec. 254(b)(7).
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9. Section 254(c)(1) of the Act directs that:
[T]he Joint Board in recommending, and the Commission in
establishing, the definition of the services that are supported by
Federal universal service support mechanisms shall consider the
extent to which such telecommunications services--
(A) are essential to education, public health, or public safety;
(B) have, through the operation of market choices by customers,
been subscribed to by a substantial majority of residential
customers;
(C) are being deployed in public telecommunications networks by
telecommunications carriers; and
(D) are consistent with the public interest, convenience, and
necessity.25
\25\ Id. Sec. 254(c)(1).
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We interpret the statutory language of Section 254(c)(1) as
manifesting Congressional intent that the Joint Board and the
Commission consider all four criteria when deciding what services to
support through Federal universal service. We interpret this language,
however,--particularly the use of the word ``consider''--to allow the
Joint Board and the Commission to include services that do not
necessarily meet all of the four criteria. We seek comment and the
Joint Board's recommendation on this interpretation. We also ask how we
should evaluate whether a service or feature is ``essential to
education, public health, or public safety.'' 26
\26\ See Id. Sec. 254(c)(1)(A).
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10. The fourth principle dictates that we must collect the revenues
required to fund the universal service support mechanisms discussed
here in an equitable and non-discriminatory manner. We seek detailed
comments on the implications of this directive with respect to the
mechanisms that will be employed to collect universal service
contributions, below. Here, however, we seek comment on what standards
we might use to help determine which, if any, ``providers of
telecommunications services'' might be treated differently than others
for ``equitable'' reasons.
11. The 1996 Act provides universal service support for two primary
categories of services, each of which has two separate subcategories of
intended beneficiaries: (1) A ``core'' group of services, the provision
of which is to be supported for consumers with low incomes or in rural,
insular, and high cost areas; and (2) additional services, including
advanced telecommunications and information services, for providers of
health care or educational services, as described in Sections 254(b)(6)
and 254(h). As we interpret the 1996 Act, our first responsibility is
to identify what core group of services should be supported by Federal
universal support mechanisms, to enable the first group of
beneficiaries to purchase those services at just, reasonable, and
affordable rates. As to the second category of services, advanced
telecommunications services for schools, libraries, and health care
providers, Section 254(c)(3) authorizes the Commission ``to designate a
separate definition of universal service applicable only to public
institutional telecommunications users.'' 27 We note that, in
regard to this provision, ``the conferees expect the Commission and the
Joint Board to take into account the particular needs of hospitals, K-
12 schools and libraries.'' 28 In Section 254(h), the Act created
two distinct mechanisms for assuring the availability of these
additional services to schools, libraries and health care providers.
Section 254(h)(1) contemplates that there will be Federal support
[[Page 10502]]
mechanisms to enable eligible health care providers in rural areas,
schools and libraries to obtain access to these additional services, as
well as the core services discussed above. In addition, the second
mechanism, found in Section 254(h)(2), directs the Commission to adopt
competitively neutral rules to enhance for all eligible health care
providers,29 libraries and schools access to advanced
telecommunications and information services to the extent technically
feasible and economically reasonable. In this Notice, we will address
both of these definitions and their respective potential support
mechanisms separately.
\27\ S. Conf. Rep. No. 104-230, 104th Conf., 2d Sess. 133
(1996).
\28\ Id.
\29\ Section 254(h)(5)(B) defines ``health care provider'' to
mean:
(i) post-secondary educational institutions offering health care
instruction, teaching hospitals, and medical schools;
(ii) community health centers or health centers providing health
care to migrants;
(iii) local health departments or agencies;
(iv) community mental health centers;
(v) not-for-profit hospitals;
(vi) rural health clinics; and
(vii) consortia of health care providers consisting of one or
more entities described in clauses (i) through (vi).
1996 Act sec. 101(a), 254(h)(5)(B).
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12. We do not address Sections 254(f), 254(g), or the last sentence
in Section 254(k) in this Notice, nor do we refer issues relating to
them to the Federal-State Joint Board convened by this Order. Section
254(f) is directed to the states and to what they may or may not do to
advance universal service goals. Section 254(g) has an explicit
timetable separate and distinct from that in Section 254(a),\30\ and we
believe these separate timetables, which are not reconcilable, indicate
that Section 254(g) does not need Joint Board consideration. The last
sentence in Section 254(k) states that ``[t]he Commission, with respect
to interstate services, and the States, with respect to intrastate
services, shall establish any necessary cost allocation rules,
accounting safeguards, and guidelines to ensure that the services
included in the definition of universal service bear no more than a
reasonable share of the joint and common costs of facilities used to
provide those services.'' \31\ The explicit use of the language ``the
Commission, with respect to interstate services, and the States, with
respect to intrastate services,'' indicates that Congress intended to
give the separate jurisdictions the flexibility to review these issues
separately.\32\
\30\ Section 254(a) requires the Joint Board to make its
recommendation to the Commission nine months after the date of
enactment of the 1996 Act and requires the Commission to complete
its proceedings within 15 months of the date of enactment. Id.
Sec. 254(a). Section 254(g), however, requires the Commission to
adopt rules ``within 6 months after the date of enactment'' of the
1996 Act ``to require that the rates charged by providers of
interexchange telecommunications services to subscribers in rural
and high cost areas shall be no higher than the rates charged by
each such provider to its subscribers in urban areas.'' Id.
Sec. 254(g).
\31\ Id. Sec. 254(k).
\32\ We are planning to commence a rulemaking shortly to
implement the provision in Section 254(k) calling for the Commission
``with respect to interstate services * * * [to] establish any
necessary cost allocation rules, accounting safeguards, and
guidelines to ensure that services included in the definition of
universal service bear no more than a reasonable share of the joint
and common costs of facilities used to provide those services.'' Id.
Sec. 254(k). This proceeding will be a vehicle for all interested
parties, including State regulators and consumer advocates, to
address issues of common concern and interest relating to
development of accounting safeguards for universal service support
mechanisms.
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III. Support for Rural, Insular, and High-Cost Areas and Low-Income
Consumers
A. Goals and Principles
13. In this section, we seek to answer several basic questions
concerning the design and operation of the support mechanisms for
rural, insular, and high cost areas as well as for low-income
consumers. In our search, we are guided by the principles in Section
254 relating to our obligations toward rural, insular, and high-cost
areas and low-income consumers.
14. The first universal service principle relevant to consumers in
rural, insular, and high-cost areas set forth in the 1996 Act is that
``[q]uality services should be available at just, reasonable, and
affordable rates.'' \33\ Prior to the 1996 Act, the Communications Act
of 1934 required that rates for telephone services subject to our
jurisdiction be just and reasonable, without unjust or unreasonable
discrimination,\34\ but did not expressly require that the rates be
affordable to the average telephone subscriber or to any designated
group of subscribers. The 1996 Act makes explicit that our universal
service policies should promote affordability of quality
telecommunications services. We seek comment proposing standards for
evaluating the affordability of telecommunications services. We note
that the Act specifically provides that telecommunications services--
not just the narrow category of telephone exchange service--be
affordable.\35\ The second relevant principle is that ``[a]ccess to
advanced telecommunications and information services should be provided
in all regions of the Nation.'' \36\ We seek comment on whether the Act
requires that all regions of the country must have access to all
telecommunications and information services, and if so, how this can
best be effectuated in a ``pro-competitive, de-regulatory
environment.'' \37\ The third principle we address here is that
``[c]onsumers in all regions of the Nation, including low-income
consumers and those in rural, insular, and high-cost areas, should have
access to telecommunications and information services, including
interexchange services and advanced telecommunications and information
services'' reasonably comparable to those provided in urban areas and
at reasonably comparable rates.\38\ This principle directs us to go
beyond the purpose and approach of the current Universal Service Fund
(USF) program \39\ by focusing on the comparability of access to
services available throughout the country, as well as on the
comparability of rates.\40\
\33\ Id. Sec. 254(b)(1).
\34\ See 47 U.S.C. 201-202.
\35\ See 1996 Act sec. 101(a), Sec. 254 (c), (i). The 1996 Act
defines ``telecommunications service'' as ``the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.'' Id. Sec. 153(51).
\36\ 1996 Act sec. 101(a), Sec. 254(b)(2).
\37\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1 (1996).
\38\ 1996 Act sec. 101(a), Sec. 254(b)(3).
\39\ The current USF program is designed to ``preserve universal
service by enabling high cost companies to establish local exchange
rates that do not substantially exceed rates charged by other
companies.'' MTS and WATS Market Structure, Third Report and Order,
93 FCC 2d 241 (1983).
\40\ By means other than through the USF, the Commission has
also sought to ensure service to rural areas. For example, in Basic
Exchange Telecommunications Radio Service, Report and Order, 3 FCC
Rcd 214 (1988), we acknowledged that many rural households do not
have standard telephone service because the cost of wiring remote
locations is prohibitive. In response, the Commission established
the Basic Exchange Telephone Radio Systems (BETRS) to allow access
by LECs to shared frequencies to provide wireless local loops. More
recently, in amending our rules for competitive bidding for Personal
Communications Systems (PCS) licenses, we permitted rural telephone
companies to obtain broadband PCS licenses that are geographically
partitioned from larger PCS service areas (through a partial license
transfer) in an effort to ensure that rural areas receive broadband
PCS. Implementation of Section 309(j) of the Communications Act--
Competitive Bidding, Fifth Report and Order, 9 FCC Rcd 5532 (1994).
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B. Support for Rural, Insular, and High Cost Areas
1. What Services to Support
15. In this section, we discuss specific telecommunications
services we propose to include among the services that, with respect to
rural, insular, and high cost areas, should receive universal service
support. As to each of these ``core'' services, we seek comment on our
proposal to designate the service for
[[Page 10503]]
universal service support. We also ask commenters to discuss the extent
to which each of the proposed services is in accordance with the
principles and criteria in Sections 254(b) and 254(c)(1), discussed
above. In accordance with the principle of the 1996 Act that support
mechanisms should be ``specific, predictable, and sufficient,'' \41\ we
also ask the commenters to identify the total amount currently required
for each included service.
\41\ 1996 Act sec. 101(a), Sec. 254(b)(5).
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16. We seek comment regarding whether the following services should
be included among those core services receiving universal service
support: (1) Voice grade access to the public switched network, with
the ability to place and receive calls; (2) touch-tone; (3) single
party service; (4) access to emergency services (911); and (5) access
to operator services.
17. We invite commenters to identify additional services that meet
the statutory criteria of Section 254(c)(1) and therefore should be
among the services that should receive universal service
support.42 Commenters should discuss the extent to which each of
the proposed services specifically meet those statutory criteria and
further the principles established in Section 254(b). In addition,
given that the 1996 Act specifies that common carriers ``shall * * *
offer the services that are supported by Federal universal service
support mechanisms'' in order to be designated as eligible
telecommunications carriers and thus eligible for universal service
support,43 and that the Joint Statement stresses the importance of
``opening all telecommunications markets to competition,'' 44 we
seek comment regarding the competitive effect of our proposed
definition. Specifically, we ask whether providing universal service
support for each proposed service could serve as a barrier to entry by
new competitors or favor one technology over another, perhaps more
efficient, technology. Our goal is to adopt universal service rules
that are competitively and technologically neutral so that our rules do
not unreasonably advantage one particular technology or class of
service provider over another technology or service provider.45
\42\ We have expressly not included Telecommunications Relay
Services (TRS) within the list of services proposed for universal
service support, because those services are already served by the
existing TRS support mechanism, established pursuant to Section 401
of the Americans with Disabilities Act, 47 U.S.C. 225.
\43\ 1996 Act sec. 102(a), Sec. 214(e)(1).
\44\ See S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1
(1996).
\45\ See, e.g., 1996 Act sec. 101(a), Sec. 254(h)(2) (directing
Commission to ``establish competitively neutral rules--to enhance *
* * access to advanced * * * services for * * * school classrooms,
health care providers, and libraries'') (emphasis added).
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18. Voice Grade Access to the Public Switched Telecommunications
Network. We believe that voice grade service, whether provided by
wireline or wireless technologies,46 should be considered
indispensable because it enables direct calling into the network, is
provided throughout public telecommunications networks,47 and is
subscribed to by a substantial majority of residential
customers.48 Because it enables consumers to reach schools,
emergency medical assistance, doctors, law enforcement authorities, and
fire departments, it appears to be essential to education, public
health, and public safety.49 Including voice grade service among
the services that should receive universal service support would also
appear to be consistent with the public interest, convenience, and
necessity. We seek comment as to whether, and at what performance
level, voice grade service should be included among the services that
should receive universal service support.
\46\ We recognize that all voice grade services may not have
identical transmission characteristics and, in particular, that
there may in some cases be differences in the capacity of wireline
and wireless services.
\47\ 1996 Act sec. 101(a), Section 254(c)(1)(C).
\48\ Id. Sec. 254(c)(1)(B).
\49\ Id. Sec. 254(c)(1)(A).
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19. Touch-tone. Touch-tone is a generic term for technology that
involves the use of a push-button telephone set that transmits, and a
local switch that receives, a dual-tone multifrequency signal (DTMF).
Touch-tone is widely deployed throughout public telecommunications
networks, and consumers widely subscribe to it.50 We note that
touch-tone is becoming increasingly indispensable for subscribers in
order for them to interact with automated information systems, and thus
may be essential for effective use of educational services. It also
increases the speed at which subscribers are able to reach emergency
service providers, and thus appears essential for public health and
safety.51 Including touch-tone service among the services that
should receive universal service support would also appear to be
consistent with the public interest, convenience and necessity.52
We seek comment as to whether touch-tone service should be included
among those supported services. We also request that interested parties
provide information regarding any service other than touch-tone that
would serve the same general function as touch-tone service.53 In
addition, we ask whether the provision of such services should be
treated the same as the provision of touch-tone service for purposes of
determining a carrier's designation as an eligible carrier.54
\50\ Id. Sec. 254(c)(1) (B)-(C).
\51\ Id. Sec. 254(c)(1)(A).
\52\ Id. Sec. 254(c)(1)(D).
\53\ Push button telephone sets are used with ISDN lines but
signalling typically is accomplished through the transmission of
digital signals instead of DTMF signals. Bellcore's BOC Notes on the
LEC Networks, 1994, Section 14. These digital signals provide all of
the functionalities available with DTMF signals.
\54\ See 1996 Act sec. 102(a), Sec. 214(e)(1)(A).
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20. Single Party Service. Single party service is also generally
available throughout the public telecommunications network and is
subscribed to by a majority of residential customers.55 Single
party service helps ensure that subscribers will be able to reach
emergency service and health care providers without delay and may
therefore be essential to public health and public safety.56 In
addition to affording subscribers privacy, single party service
facilitates access to many information technologies. Many residential
subscribers use modems to access advanced services like home banking,
the Internet and commercial computing services. Because modems
currently are required for computer users to have access to those
services, single party service may be becoming even more important to
residential computer users in the future, and requiring it may
therefore be consistent with the public interest, convenience, and
necessity. We seek comment as to whether single party service should be
included among the services that should receive universal service
support.
\55\ Id. Sec. 254(c)(1) (B)-(C). Single party service occurs
when exactly one subscriber may use a local loop to originate or
terminate calls.
\56\ Id. Sec. 254(c)(1) (A), (D).
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21. Access to Emergency Services. Access to emergency services,
including 911 service, is essential to public health or public safety
and, as such, consistent with the public interest, convenience, and
necessity.57 Additionally, such services are widely deployed
throughout public telecommunications networks and, though generally
provided as part of residential service without any customer
intervention, are available to a substantial majority of residential
customers.58 In much of the nation, 911 service merely connects
subscribers with an emergency service that includes local police and
fire
[[Page 10504]]
departments. Enhanced 911 service adds capabilities, such as automatic
number identification and automatic location information,59 to the
basic 911 service. These additional capabilities ``are being deployed
in public telecommunications networks by telecommunications carriers''
60 and appear ``consistent with the public interest, convenience,
and necessity.'' 61 They also may be ``essential to ``public
health[] or public safety,'' 62 and, in the future, provided to a
substantial majority of residential subscribers.63 To ensure a
complete record on this issue, we invite comment on whether we should
include access to enhanced 911 service among the services that should
receive universal service support in the event we include basic 911
service in that group.
\57\ Id.
\58\ Id. Sec. 254(c)(1)(B)-(C).
\59\ Automatic number identification provides the called party
with the telephone number from which the call was placed. Automatic
location information allows the called party to use that telephone
number to determine the address or other location from which the
call was placed.
\60\ 1996 Act sec. 101(a), Sec. 254(c)(1)(C).
\61\ Id. Sec. 254(c)(1)(D).
\62\ Id. Sec. 254(c)(1)(A).
\63\ See id. Sec. 254(c)(1)(B).
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22. Access to Operator Services. Similarly, access to operator
services would appear indispensable for both at-home and away-from-home
users in public health or public safety emergencies and, as such, would
appear to be consistent with the public interest, convenience, and
necessity.64 Operator services are available throughout the public
switched network and are used by at least a substantial majority of
residential customers, even though customers are often charged for
using those services.65 We seek comment as to whether access to
operator services should be included among the services that should
receive universal service support.
\64\ Id. Sec. 254(c)(1)(A), (D).
\65\ Id. Sec. 254(c)(1)(D).
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23. We also invite commenters to identify services other than those
listed above that should be included among the services that should
receive universal service support, based on the four criteria specified
in Section 254(c)(1). For instance, interested parties may wish to
address the inclusion of relay services, directory listings, and equal
access, to the extent that such a requirement would be consistent with
the Act.66 In particular, because of the directive in Section
254(b)(3) relating to ``access to * * * interexchange services,''
67 we seek comment on whether access to interexchange services
should also be included among those services receiving universal
service support. Finally, we invite parties to discuss advanced
services that may warrant inclusion, now or in the future, in the list
of services that are supported by universal service support mechanisms.
For example, within the context of the criteria discussed in Section
254(c)(1),68 commenters may wish to discuss Internet access
availability, data transmission capability, optional Signalling System
Seven features or blocking of such features, enhanced services, and
broadband services.
\66\ We note, for example, that Section 705 of the 1996 Act
leaves, for a future Commission proceeding, the issue of whether
commercial mobile service providers should be required to provide
equal access. Any proposal to include unblocked access as an element
of universal service obligation for commercial mobile service
providers thus would be premature. 1996 Act sec. 705.
\67\ Id. Sec. 254(b)(3).
\68\ Id. Sec. 254(c)(1).
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2. How to Implement
24. With respect to each support mechanism, we must determine the
beneficiaries of the support. For example, we ask parties to address
whether support for rural, insular, and high-cost areas should be
limited to residential users or residential and single-line business
users, or should be provided to all users in such areas. We also seek
comment on the method for calculating support amounts. We ask parties
to address whether support should be calculated based on inputs (for
example, facility costs would determine subsidy amounts) or based on
outputs (the price of services would determine support levels). In
answering these questions, commenters should consider all applicable
provisions of the 1996 Act, especially the three general principles
enumerated in the Act applicable to support for rural, insular and
high-cost areas and for low-income consumers.69 We seek comment on
how assistance for rural, insular, and high cost areas should be
calculated and distributed, and request that the Federal-State Joint
Board prepare recommendations in this regard.
\69\ See part III.B.1, supra.
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a. How to Determine ``Affordable'' and ``Reasonably Comparable''.
25. Section 254(b)(3) states that rates for services in rural,
insular, and high cost areas should be reasonably comparable to rates
charged for similar services in urban areas of the country.'' 70
Section 254(i) charges this Commission and the States with
responsibility for assuring that the service rates throughout this
country should be ``just, reasonable and affordable.'' 71 We seek
comment on how we should determine rate levels that would be
``affordable'' and ``reasonably comparable'' for services identified as
requiring universal service support. We ask commenters to identify the
criteria or principles that should guide this determination, the
methods we should use to evaluate the required rate levels, and whether
there should be procedures to recalibrate these rate levels to reflect
changes in inflation or other factors that may make such recalibration
periodically necessary.
\70\ 1996 Act sec. 101(a), Sec. 254(b)(3).
\71\ Id. Sec. 254(i).
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26. We seek comment on, for example, whether support should be
based on achieving specific end-user prices. We also seek comment on
how we should determine the level of prices for designated
telecommunications services that are ``comparable to rates charged for
similar services in urban areas.'' 72 In addition, we ask whether
prices should vary depending on whether the customer is a non-business
subscriber, a single-line business subscriber, or a multi-line business
subscriber. Finally, we seek comment on the extent to which a subsidy
should be provided to assure affordable and reasonably comparable rates
for services using other than a primary line to a principal residence.
We refer these issues to the Joint Board for its recommendation.
\72\ Id. Sec. 254(b)(3).
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b. How to Calculate the Subsidy.
27. We also seek comment to identify methods for determining the
level of support required to assure that carriers are financially able
to provide the services identified for inclusion among those to be
supported by universal service funds in rural, insular, and high-cost
areas. The method we ultimately adopt should be as simple to administer
as possible, technology-neutral, and designed to identify the minimum
subsidy required to achieve the statutory goal of affordable and
reasonably comparable rates throughout the country. It should be
equitable and non-discriminatory in the burden that it imposes upon
contributors, and its distribution procedures should be direct,
explicit, and specific.
28. The existing universal fund mechanism operates through our Part
36 rules. The subpart that concerns the universal service fund allows
LECs with above-average costs to recover a designated portion of those
above-average costs from the interstate jurisdiction and, in
particular, from the universal service fund, to which only some
interexchange carriers must contribute. This frees the LEC recipients
[[Page 10505]]
from the need to recover all of their costs from their own customers
and in so doing is intended to moderate local rate levels. The existing
mechanism may, however, give recipients of assistance, currently
limited to incumbent LECs, a substantial advantage over competitors who
must recover all of their costs from their customers. It may also not
be the sort of ``explicit'' support mechanism contemplated in Section
254(e).73
\73\ Id. Sec. 254(e).
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29. The dial equipment minute (DEM) weighting assistance program is
based on the theory that smaller telephone companies have higher local
switching costs than larger LECs have, because the smaller companies
cannot take advantage of certain economies of scale.74 Our
jurisdictional separations rules allow LECs with fewer than 50,000
access lines to allocate to the interstate jurisdiction a greater
proportion of these local switching costs than larger LECs may
allocate. For these small LECs, the actual DEM is weighted (i.e.
multiplied by a factor) to shift some intrastate costs to the
interstate jurisdiction. DEM weighting is specifically provided outside
of, and unrelated to, the USF program. Unlike the USF, DEM weighting
applies only to small LECs, and to all small LECs, regardless of their
actual costs.
\74\ Dial equipment minutes are the minutes of holding time of
originating and terminating local dial switching equipment. The
jurisdictional separations rules allocate local switching equipment
costs between the interstate and intrastate jurisdictions on the
basis of each jurisdiction's relative number of dial equipment
minutes of use.
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30. We seek comment on whether continuing to use the Commission's
jurisdictional separations rules to subsidize LECs with above-average
loop costs, or the local switching costs of small LECs, is consistent
with Congress's intent ``to provide for a pro-competitive, de-
regulatory national policy framework * * * opening all
telecommunications markets to competition,'' 75 or with its intent
relating to the characteristics of universal service support mechanisms
to be adopted pursuant to Section 254. Many entities, among them non-
wireline and non-dominant carriers, that might be designated ``eligible
telecommunications carrier[s]'' by the appropriate State commission,
are not now subject to our separations rules, which apply only to
LECs.76 We also seek comment in this connection regarding the
statutory requirement ``that any support mechanisms continued or
created under new section 254 should be explicit,'' 77 and we
request the Joint Board to address this principle in its
recommendation.
\75\ See S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1
(1996).
\76\ 1996 Act sec. 102(a), Sec. 214(e).
\77\ Id. Sec. 254(e).
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31. We also request comment regarding a specific proxy model
submitted to this Commission by several telecommunications carriers
(Joint Sponsors), which we specifically incorporate by reference into
this proceeding.78 Once we determine what constitutes affordable
rates for services designated for universal service support, this model
might be used to determine the level of subsidy required to bring
services priced at affordable levels to consumers in high-cost, rural,
and insular areas. We seek comment on how this objective could be
achieved. The Joint Sponsors collaborated during the past year to
develop a Benchmark Costing Model (Model) for calculating a
``benchmark'' cost, or standard assumed level of expense, for the
provision of local telecommunications access in every census block
group 79 in the United States, excluding Alaska and the
territories, if service is provided by a wireline carrier.80
\78\ MCI Communications Inc., NYNEX Corporation, Sprint/United
Management Co., and US West, Inc., Benchmark Costing Model: A Joint
Submission, Copyright 1995, CC Docket No. 80-286 (Dec. 1, 1995)
(Joint Submission). The Joint Sponsors are US West, Nynex, MCI, and
Sprint.
\79\ A census block group is a geographic unit defined by the
Bureau of the Census. Each census block group contains approximately
400 households.
\80\ See Joint Submission.
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32. The purpose of the Model is to identify areas where the cost of
service can reasonably be expected to be so high as to require explicit
high-cost support for the preservation of universal service. The Model
produces a benchmark cost range for a defined set of residential
telecommunications services assuming efficient wireline engineering and
design, and using current technology. It is not based upon the costs
reported by any company, nor the embedded cost to a company of
providing service today. The Model bases projected costs on the least-
cost wireline technology to serve a particular area, given that area's
geographic and population characteristics. As a threshold inquiry, we
ask whether the model should be made technology neutral, in order to
provide for non-wireline service where such service would be
economical. In addition, we ask whether, in addressing the Model
specifically or these issues generally, we should base our
determinations on embedded costs or forward-looking costs, to the
extent that costs are relevant to the support mechanisms for rural,
insular, and high-cost areas.
33. We also solicit comment regarding a proxy model that
incorporates data showing the location of actual residential and
business customers.81 The party offering this model claims it can
be adapted for use by wire center, or even by specific consumer, as
well as by census block group, but also acknowledges that, as currently
designed, it relies on proprietary information that cannot be reviewed
by other interested parties. We seek comment regarding the merits of
this proxy model. Specifically, we ask whether using an incumbent LEC's
wire centers as the geographic unit for calculating universal service
support accords with our policy of competitive and technological
neutrality.
\81\ See ex parte submission in CC Docket No. 80-286 by Gina
Harrison, Director, Federal Regulatory Relations, Pacific Telesis
Group (February 29, 1996).
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34. In addition, we ask whether census block groups are the best
geographic units for developing a proxy model, or whether alternative
units would be more accurate or easier to administer. We invite comment
regarding the Model's assumptions about the likely distribution of
subscribers within a census block group. For example, we seek comment
whether the assumption of uniform population distribution adequately
reflects the possibility that in some rural areas, despite the
theoretical sparsity, all lines are clustered near a single location.
The Model also excludes business lines from its analysis.82 We
invite comment as to whether the Model might therefore show unduly high
residential costs in some census block groups, in that the exclusion of
business lines could produce an overstated calculation of the projected
cost per line. We also ask whether a model that included business lines
might be more accurate. We also seek comment regarding the engineering
assumptions on which the Joint Sponsors rely, and whether the Model
could be improved by the addition of other variables, such as climate
or slope. Conversely, we seek comment on whether the Model contains any
redundant or superfluous variables.
\82\ Joint Submission at I-2.
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35. We also solicit comment on whether relying on a competitive
bidding process to set the level of subsidies required in rural,
insular, and high-cost areas would be consistent with Section 214(e),
which addresses the circumstances under which telecommunications
carriers are eligible
[[Page 10506]]
to receive universal service support.83 Carriers offering all of
the services supported by universal service mechanisms would bid on the
level of assistance per line that they would need to provide all
supported services. Such an approach would attempt to harness
competitive forces to minimize the level of high-cost assistance needed
to implement our statutory mandate in areas where competition has
developed.84
\83\ Amendment of Part 36 of the Commission's Rules and
Establishment of a Joint Board, Notice of Proposed Rulemaking and
Notice of Inquiry, 10 FCC Rcd 12309 (1995). We discuss Section
214(e) in part III.B.3., infra.
\84\ We acknowledge that, at present, there may be only one
eligible carrier in some rural, insular, or high cost areas. Bidding
to set the level of support payments cannot take place until
competitors enter the market.
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36. In such areas, competing carriers would bid to set the level of
assistance per line that any carrier serving a specified area would
receive, with the lowest bid winning. Although the low bidder would
determine the amount of support per line served that eligible carriers
would receive, any authorized carrier would be able to receive
assistance at that level. The low bidder, however, would receive an
additional ``incentive bonus.'' The bonus would be necessary to induce
competitors to underbid one another, rather than merely accepting the
established level of assistance.
37. We acknowledge that market conditions may not warrant the
introduction of this plan at present. Nevertheless, we believe
competitive local exchange markets may develop even in high-cost areas,
and therefore request comment regarding distributing high-cost
assistance on the basis of competitive bids.
38. We request that the Federal-State Joint Board prepare
recommendations regarding the best means of establishing a new
universal service support mechanism for rural, insular, and high-cost
areas. In preparing its recommendation, we ask the Joint Board to give
the greatest weight to effective implementation of the
Telecommunications Act of 1996, enabling us to carry out the
requirements of the Act in the manner most consistent with the
principles and intentions expressed in the Act itself.
39. The legislative history of the 1996 Act makes clear that we are
to take a new approach in designing support mechanisms for universal
service, and that the proceeding in CC Docket No. 80-286 is not an
appropriate foundation on which to base this proceeding.85 We
wish, however, to preserve the relevant portion of the record that
would be consistent with the principles of the 1996 Act. To avoid
unnecessary duplication of efforts by interested parties and
regulators, we are incorporating by reference that portion of the CC
Docket No. 80-286 record that relates to changing the support
mechanisms in our jurisdictional separations rules into this
proceeding.86 With respect to the proposals raised in that
proceeding, we request that interested parties specifically comment on
which, if any, of those proposals are consistent with the requirements
and intent of the 1996 Act.
\85\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 131
(1996).
\86\ Amendment of Part 36 of the Commission's Rules and
Establishment of a Joint Board, Notice of Inquiry, 9 FCC Rcd 7404
(1994), and comments, reply comments, and ex parte submissions
responsive thereto; Amendment of Part 36 of the Commission's Rules
and Establishment of a Joint Board, Order, 9 FCC Rcd 7962 (1994)
(Data Request) and responses thereto; and Amendment of Part 36 of
the Commission's Rules and Establishment of a Joint Board, Notice of
Proposed Rulemaking and Notice of Inquiry, 10 FCC Rcd 12309 (1995),
and comments, reply comments, and ex parte submissions responsive
thereto.
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c. Transition Issues.
40. At present, LECs with loop costs more than 115 percent above
the national average receive support from the Universal Service Fund
described in part II.B.2.b., above. At present, there is a cap on the
rate at which the fund may grow. That cap is scheduled to expire on
July 1, 1996. We seek comment on whether we should extend the cap until
the completion of the Joint Board's and our deliberations in this
proceeding. We also seek comment on whether the principles governing
our deliberation would permit, or even require, a transition period for
carriers, particularly recipients of subsidies achieved through our
separations rules (e.g., the USF and DEM weighting rules), to adjust to
operating the statutory framework erected by the Telecommunications Act
of 1996.
3. Who Is Eligible for Support
41. In addition to instructing us to define which
telecommunications services carriers receiving support must provide,
the 1996 Act also specifies the eligibility requirements carriers must
satisfy in order to receive universal service support. Under Section
214(e), support is available only to ``common carrier[s]'' designated
as ``eligible telecommunications carrier[s]'' by the appropriate State
commissions.87 Section 254(e) also requires that ``[a]ny carrier
that receives support shall use that support only for the provision,
maintenance, and upgrading of facilities and services for which the
support is intended.'' We request comment, and a corresponding
recommendation from the Joint Board, regarding the need for any
measures to ensure that support is used for its intended purpose.
Similarly, we ask for comment regarding the need for additional
measures to ensure that ``telecommunications carrier[s]'' do not ``use
services that are not competitive to subsidize services that are
subject to competition.'' 88 We also invite commenters to propose
means to ensure that all eligible carriers--and no ineligible
carriers--receive the appropriate amount of universal service support.
\87\ 1996 Act sec. 102(a), Sec. 214(e).
\88\ Id. Sec. 254(k).
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42. In areas served by a ``rural telephone company,'' as defined by
Section 3 of the 1996 Act,89 the State commission may choose to
designate ``more than one common carrier as an eligible
telecommunications carrier for a service area designated by the State
commission'' if that commission finds ``that the designation is in the
public interest.'' 90 In other areas, the State commission must
upon request designate as an ``eligible carrier'' any common carrier
meeting the universal service requirements specified in Section
214(e)(1).
\89\ Id. Sec. 153(47).
\90\ Id. Sec. 214(e)(2).
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43. Section 214(e)(1) requires an eligible carrier to offer ``the
services that are supported by Federal universal service support
mechanisms under Section 254(c), either using its own facilities or a
combination of its own facilities and resale of another carrier's
services.'' 91 Each eligible carrier must also ``advertise the
availability of such services'' and the charges for those services
``using media of general distribution.'' 92 We seek comment
regarding, and ask the Joint Board to recommend, standards for
compliance with these requirements.
\91\ Id.
\92\ Id. Sec. 214(e)(1)(B).
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44. Each State commission may specify the ``service area'' within
which a common carrier is classified as an ``eligible carrier.'' The
1996 Act defines ``the term `service area' [to mean] a geographic area
established by a State commission for the purpose of determining
universal service obligations and support mechanisms.'' 93 With
respect to rural telephone companies, ``service area'' means a
company's study area,94 ``unless and
[[Page 10507]]
until the Commission and the States, taking into account the
recommendations of a Federal-State Joint Board instituted under Section
410(c), establish a different definition of service area for such a
company.'' 95 The 1996 Act defines ``rural telephone company'' as
a ``local exchange carrier operating entity to the extent that such
entity--(A) Provides common carrier service to any local exchange
carrier study area that does not include either--(i) Any incorporated
place of 10,000 inhabitants or more, or any part thereof, based on the
most recently available population statistics of the Bureau of the
Census; or (ii) any territory, incorporated or unincorporated, included
in an urbanized area, as defined by the Bureau of the Census as of
August 10, 1993; (B) provides telephone exchange service, including
exchange access, to fewer than 50,000 access lines; (C) provides
telephone exchange service to any local exchange carrier study area
with fewer than 100,000 access lines; or (D) has less than 15 percent
of its access lines in communities of more than 50,000 on the date of
enactment of the Telecommunications Act of 1996.'' 96
\93\ Id. Sec. 214(e)(5).
\94\ ``Each study area'' is generally a LEC's service area in a
given State. The study area boundaries are fixed as of November 15,
1984. MTS and WATS Market Structure; Amendment of Part 67 of the
Commission's Rules and Establishment of a Joint Board, Decision and
Order, 50 FR 939 (1985) (1985 Lifeline Order) (adopting, with minor
modifications the Joint Board recommendations issued in MTS and WATS
Market Structure; Amendment of the Commission's Rules and
Establishment of a Joint Board, Recommended Decision and Order, 49
FR 28325 (1984)) (1984 Recommended Decision).
\95\ 1996 Act sec. 102(a), Sec. 214(e)(5).
\96\ Id. Sec. 153(47).
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45. We solicit comment on how to define ``study area'' in the way
that best comports with the Congress's expressed objective ``to provide
for a pro-competitive, de-regulatory national policy framework'' for
the ``rapid[ ] private sector deployment of advanced telecommunications
and information technologies.'' 97 Currently, a wireline LEC's
study area generally includes all the territory of a single state
within which that carrier operates. We ask that interested parties
propose an appropriate basis for defining the ``service area'' of a
``rural telephone company,'' taking into account the likely possible
effect on competition of a ``service area'' definition for rural
telephone companies. In conjunction with this issue, we request comment
on whether we should amend our rules to revise existing study area
boundaries. In the context of implementing a ``pro-competitive, de-
regulatory national policy framework,'' 98 as required by the 1996
Act, we ask that the Joint Board prepare recommendations regarding the
appropriate ``service area'' boundaries of areas served by a ``rural
telephone company.''
\97\ See S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1
(1996).
\98\ Id.
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46. The Act also requires ``eligible telecommunications
carrier[s]'' to ``advertise the availability of such services and the
charges therefore using media of general distribution.'' 99 The
Joint Explanatory Statement adds that ``such services must be
advertised generally throughout'' the service area.100 To avoid
future disputes, we believe it may be useful for us to adopt guidelines
defining the steps that would be sufficient to advertise the
availability of, and charges for, services. We ask interested persons
to comment on this approach and suggest appropriate guidelines.
\99\ 1996 Act sec. 102(a), Sec. 214(e)(1)(B).
\100\ See S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 141
(1996).
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47. Section 214(e)(3) permits any unserved community--an area or a
portion of a defined service area in which ``no common carrier will
provide the services that are supported by Federal universal service
support mechanisms''--to request the Commission (for interstate
services) and State commission (for intrastate services) to designate
an eligible telecommunications carrier.101 Upon such request, the
Commission or State commission shall order a common carrier or carriers
to provide service to the requesting community.102 Pursuant to
Section 214(e)(3) of the 1996 Act, such carriers shall be designated as
an eligible telecommunications carrier. We ask commenters to address
how we should implement our responsibilities under Section 214(e)(3),
and whether we and the State commissioners should develop a cooperative
program to ensure that all areas receive each of the services supported
by Federal universal service support mechanisms.
\101\ 1996 Act sec. 102(a), Sec. 214(e)(3).
\102\ Id.
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48. Section 214(e)(4) provides procedures for a carrier to
relinquish its designation as an eligible telecommunications carrier.
States must permit this to occur if the requesting carrier gives
advance notice to the State and if there is more than one eligible
telecommunications carrier serving the area. The State commission must
require the remaining telecommunications carrier or carriers in the
area to ensure that all of the relinquishing carrier's customers will
continue to be served. The State commission must also require
sufficient notice to permit the purchase or construction of adequate
facilities by any remaining telecommunications carrier. Section
214(e)(4) requires that the State commission must establish a time, not
to exceed one year from the date of approval of relinquishment, for the
purchase or construction of adequate facilities.103
\103\ Id. Sec. 214(e)(4).
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49. Section 214(e)(2) and (e)(4) reserve consideration of requests
for relinquishment of the designation of eligible telecommunications
carriers to the States.104 We must amend any of our regulations
that would be inconsistent with that reservation, and we invite
commenters to identify any such regulations.105 We refer these
issues, and all of the issues raised above with respect to support for
rural and high-cost areas, to the Joint Board for its recommendation.
\104\ Id. Sec. 214(e)(2), (4).
\105\ Id. Sec. 254(a).
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C. Support for Low-Income Consumers
1. What Services To Support
50. In Part III.B.1 of this Notice, supra, we discuss the services
that may be included among the services to consumers in rural, insular,
and high-cost areas that should receive support.106 We propose
that these services should also be services supported by Federal
universal service support mechanisms with respect to low-income
consumers. In this part of our Notice, we seek comment on whether
designation of additional services that would be specifically
appropriate for low-income users. We note that the Joint Explanatory
Statement added persons with low-income ``to the list of consumers to
whom access to telecommunications and information services should be
provided.'' 107 Through the Commission's monitoring of
subscribership levels and census data, we know that subscribership
levels for low-income individuals fall substantially below the national
average.108 We request comment regarding the Commission's overall
responsibilities under Sections 1 and 254 with regard to low-income
consumers. We invite the commenters to address whether there are any
particular services, technical capabilities, or features that would be
of benefit to low-income consumers and that meet one or more of the
criteria for inclusion among the services that should receive universal
service support. Consistent with the Act's
[[Page 10508]]
principle that support mechanisms should be ``specific, predictable,
and sufficient,'' 109 we ask commenters to address potential costs
associated with such support. We request a recommendation from the
Federal-State Joint Board convened in this proceeding regarding all of
the matters discussed in this part of the Notice.
\106\ Id. Sec. 254(b)(3).
\107\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 131
(1996).
\108\ See Subscribership Notice at 13003-4.
\109\ 1996 Act sec. 101(a), Sec. 254(b)(5).
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51. Free Access to Telephone Service Information. In an Interim
Opinion regarding universal service,110 the California Public
Utilities Commission tentatively concluded that free telephone access
by subscribers to the telephone company central office, for purposes
such as reporting the need for repairs and inquiring about bills or
eligibility for special programs, is an essential telephone
service.111 Such free telephone access to the telephone company
central office would be of primary significance for measured rate
subscribers, who are charged for each local call they make on either a
per call or per minute basis, because subscribers with flat rate local
service generally may make routine service inquiries without incurring
extra charges.
\110\ Rulemaking on the Commission's Own Motion into Universal
Service and to Comply with the Mandates of Assembly Bill 3643, R.95-
01-020; and Investigation on the Commission's Own Motion into
Universal Service and to Comply with the Mandates of Assembly Bill
3643, I.95-01-020, Interim Opinion (Cal. Pub. Utils. Comm'n, filed
Jan. 24, 1995) (CPUC Interim Opinion).
\111\ Id. at 18.
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52. Many measured rate subscribers choose that service as a less
expensive alternative to the flat rate, and thus would be expected to
be especially sensitive to charges for service inquiries. Similarly, it
appears likely that potential Lifeline and Link Up customers could
benefit significantly from free access to information regarding those
subsidy programs.\112\ Indeed, such access may be needed to if we are
to fulfill our statutory mandate to ensure that universal service is
available at affordable rates.\113\
\112\ We describe those programs in part III.C.2., infra.
\113\ 1996 Act sec. 101(a), Sec. 254(i).
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53. We seek comment on whether free access to the telephone service
provider for low-income customers should be included within the group
of services receiving universal service support, in order to allow
those customers to receive information about telephone service
activation, termination, repair, and information regarding subsidy
programs.\114\ Because access by subscribers to certain basic
information concerning their telephone service may be a prerequisite to
maintaining their service, we seek comment on whether, like access to
the loop itself, access to that information is essential to public
health and safety and is otherwise consistent with the public interest,
convenience, and necessity.\115\ Commenters should also address the
applicability of the criteria set forth in both Sections 254(c)(1)(B)
and (C) to this service. We invite
FR Doc. 96-6156 Federal-State Joint Board on Universal Service
interested parties to provide
information regarding the current availability of free access to
information regarding telephone service activation and termination,
repairs, and telephone subsidy programs.
\114\ Id. Sec. 254(c)(1)(B), (C).
\115\ See id. Sec. 254(c)(1)(A), (D).
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54. Toll Limitation Services. In discussing toll limitation
services, we consider both toll blocking and toll control services.
Some LECs offer a service that limits only long-distance calls for
which the subscribers would be charged (a form of toll blocking) or
limits the toll charges a subscriber can incur during a billing period
(a toll call control service). To the extent that toll blocking or
limiting services allow low-income customers to avoid involuntary
termination of their access to telecommunications services, we seek
comment on whether such services are ``essential to education, public
health, or public safety'' and ``consistent with the public interest,
convenience, and necessity.'' \116\ Moreover, many LECs apparently
offer toll limiting services to their subscribers at tariffed
rates,\117\ indicating that toll limiting service is ``being deployed
in public telecommunications networks by telecommunications carriers.''
\118\ We seek comment regarding the remaining criterion for including
services in the definition of ``universal service,'' the issue of
whether toll limiting has, ``through the operation of market choices by
customers, been subscribed to by a substantial majority of residential
customers.'' \119\ We seek comment on whether, where such services are
available, they should be offered to low-income subscribers without
charge or at a discount and what criteria we should use to determine
the support for which a carrier offering such services would be
eligible.\120\
\116\ Id.
\117\ For example, the Bell Atlantic Telephone Companies offer
voluntary toll restriction services in Maryland, the District of
Columbia and Pennsylvania; Pacific Bell offers voluntary toll
restriction service in California.
\118\ 1996 Act sec. 101(a), Sec. 254(c)(1)(C).
\119\ Id. Sec. 254(c)(1)(B).
\120\ We recognize that there is potential tension between
affording consumers the ability to receive toll limitation services
and the principle set forth in the Act that consumers should have
access to ``telecommunications and information services, including
interexchange services.'' 1996 Act sec. 101(a), Sec. 254(b)(3).
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55. We recognize that various methods may exist to advance Section
254(b)(3)'s statutory principle that the Commission ensure that ``low-
income consumers * * * have access to * * * interexchange services.''
\121\ We also note that, in the context of the Commission's regulation
of the interstate interexchange marketplace, one interexchange carrier
has voluntarily committed to institute an optional calling plan for
low-income consumers in order to mitigate the impact of recent
increases in basic schedule interstate long-distance rates in the
marketplace.\122\ For example, under the calling plan, low-income
residential customers can place one hour of interstate direct dial
service, during a one-month period, at a rate frozen at 15 percent
below current basic schedule rates.\123\ We solicit comment on whether
and how we should encourage domestic interstate interexchange carriers
to provide optional calling plans for low-income consumers to promote
the statutory principles enumerated in Section 254(b)(3). We also seek
comment on the potential impact of such plans upon subscribership to
telecommunications services.
\121\ Id.
\122\ Motion of AT&T Corp. to be Reclassified as a Non-dominant
Carrier, FCC 95-427 (rel. Oct. 23, 1995).
\123\ Id. at para. 84.
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56. Reduced Service Deposit. Recent studies indicate that
disconnection for non-payment of toll charges, and the high deposits
carriers charge to cover the cost of noncollectible charges, may be
more significant barriers to universal service than the cost of local
service itself.\124\ In our Subscribership Notice, we noted that LECs
generally require deposits before connecting subscribers, and that, for
many low-income subscribers, these deposits present a formidable
obstacle to initiating service.\125\ The availability of affordable
toll limiting service, along with the lower deposits carriers would
impose on customers who have limited the toll charges they can incur,
appears likely to determine whether many low-income consumers have
``affordable'' access to any public telecommunications services.\126\
Moreover, some states which require affordable voluntary toll limiting
service have subscribership rates that are above the national average,
suggesting that the means to control toll usage is an important
component of
[[Page 10509]]
universal service, particularly for low-income households. We ask
interested parties to present a reasoned analysis of whether, based on
consideration of all four criteria in Section 254(c)(1), we should
require discounted toll limiting service and reduced deposits for low-
income consumers, and we request that the Federal-State Joint Board
present recommendations on this proposal.
\124\ Subscribership Notice at 13005-06.
\125\ Id. at 13003-05.
\126\ 1996 Act sec. 101(a), Sec. 254(i).
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57. Services Other Than Conventional Residential Services. In the
past, the Commission's universal service policies focused on the cost
of traditional residential service. Nevertheless, we recognize that
some individuals with low incomes do not have access to residential
service.\127\ For some individuals who move frequently or have no
residence, access to conventional residential telecommunications
service may not be practical. We therefore seek comment on specific
services which may enable such low-income customers to gain access to
the telecommunications network. We seek comment from parties to
identify any historically underserved segments of the population and
potential services and features \128\ that the Joint Board may consider
in addressing the provision of telecommunications services to these
highly mobile groups. To determine whether these services should be
included in our list of supported services, we seek comment on: whether
these services are essential to the public health and public safety;
whether a substantial majority of residential customers have subscribed
to the services; the extent to which telecommunications carriers
deploy, or plan to deploy, them in public networks; and, generally, how
offering these service as part of universal service is consistent with
the public interest, convenience, and necessity.\129\ We also seek
comment on how best to measure the extent to which low-income
populations that are unable to maintain traditional residential service
have access to facilities for making and receiving calls. We invite
parties to address the potential for provision of these services by
wireless carriers.
\127\ Seasonal workers and homeless individuals, for example,
are unlikely to subscribe to residential telephone service.
\128\ For example, these may include services like community
phone banks, availability of public interest payphones, community
access centers, special discounted service plans for short-term
subscribers, or low-cost voice mailboxes, which may provide a viable
alternative for providing telecommunications service to the highly
mobile populations. We note that we will not address public interest
payphones in this proceeding because they will be addressed in a
separate proceeding, as required under Section 276(b)(2) of the 1996
Act. See 1996 Act sec. 151(a), Sec. 276(b)(2).
\129\ 1996 Act sec. 101(a), Secs. 254(c)(1) (A)-(D).
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58. Other Services For Low-Income Subscribers. We seek comment on
whether there are other services that, with respect to low-income
consumers, should be included in universal service support mechanisms.
We note that low-income subscribers have significantly lower telephone
subscribership rates than other subscribers,\130\ and seek comment on
the reasons underlying this disparity. Any commenter proposing
inclusion of an additional service within the definition of services to
be supported by federal universal service support mechanisms should
discuss the extent to which the proposed service meets each of the
criteria enumerated in Section 254(c)(1), and how inclusion of the
proposed service would promote access by low-income consumers to
telecommunications and information services.
\130\ For example, according to Census Bureau statistics, 98
percent of households with annual income above $30,000--the median
income--have a telephone in the home, while only 84 percent of
households with annual income under $12,000--the poverty level for a
family of three--have a telephone in the home.
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2. How To Implement and Who Is Eligible for Support
59. New Support Mechanisms. We generally seek comment on how to
determine the subsidy that would be necessary to make the services
identified as the ``core services'' eligible for universal service
support available to low-income consumers. We pose the same question
with respect to any additional services specifically targeted to low-
income users discussed above. As a threshold matter, we seek comment
and a Joint Board recommendation on how to define eligible low-income
customers. We seek comment on whether we should require a discount on
all supported services and the amount of that discount. Parties
endorsing specific services for low-income users, such as free toll
limitation services, should propose specific mechanisms to define and
distribute support for those offerings. For example, parties asserting
that the support should be cost-based should describe how those costs
should be determined. We intend to implement Section 254(k) consistent
with the expressed Congressional intent ``to provide for a pro-
competitive, de-regulatory national policy framework.'' 131 We
therefore seek comment on support methodologies involving the least
regulatory methods.
\131\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1 (1996).
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60. We seek specific comment on how our proposed support mechanisms
should apply to the services discussed in this part of our Notice. We
are particularly interested in comment on how support should be
calculated and paid if the provider of the service is not the local
telephone company. We ask the Joint Board to address these issues in
its recommended decision.
61. Existing Support Mechanisms. Currently we have two support
mechanisms targeted to low-income consumers: the Lifeline Assistance
Plan and Link Up America. States may choose to participate in either of
two Lifeline Assistance plans. Plan 1 provides for a reduction in a
subscriber's monthly telephone bill equal to the $3.50 federal
subscriber line charge (SLC) for residential subscribers.132 Half
of the reduction comes from a 50 percent waiver of the charge; the
other half comes from the participating state, which matches the
federal contribution by an equal reduction in the local rate. Under
this plan, subscribers who satisfy a state-determined means test may
receive assistance for a single telephone line in their principal
residence. Of the 38 states and territories participating in Lifeline,
only California still offers a Lifeline program under Plan 1.133
\132\ 1985 Lifeline Order.
\133\ Indus. Analysis Div., FCC, Monitoring Report May 1995 CC
Docket No. 87-339, at tbl. 2.1 (1995) (Monitoring Report).
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62. Under Plan 2, which expands Plan 1 to provide for waiver of the
entire residential SLC (up to the amount matched by the state), a
subscriber's bill may be reduced by twice the SLC (or more, if the
state more than matches the value of the federal waiver).134 The
state contribution may come from any intrastate source, including state
assistance for basic local telephone service, connection charges, or
customer deposit requirements. Companies in 37 states or territories
reported subscribers receiving Plan 2 Lifeline assistance as of April
1995.135 In 1994, about 4.4 million households received $123
million in federal Lifeline assistance through full or partial waiver
of the SLC.136 Under both plans, the interstate portion of
Lifeline Assistance is billed to interexchange carriers by the National
Exchange Carrier Association, Inc. (NECA).
\134\ MTS and WATS Market Structure; Amendment of Part 67 of the
Commission's Rules and Establishment of a Joint Board, Decision and
Order, 51 FR 1371, paras. 4-6 (1986).
\135\ Monitoring Report, tbl. 2.3.
\136\ Id.
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63. The 1996 Act states that ``[n]othing in this section shall
affect the
[[Page 10510]]
collection, distribution, or administration of the Lifeline Assistance
Program provided for by the Commission under regulations set forth in
section 69.117 of title 47, Code of Federal Regulations, and other
related sections of such title.'' 137 Section 69.117 addresses the
conditions and mechanisms for waiver of subscriber line
charges.138
\137\ 1996 Act sec. 101(a), Sec. 254(j).
\138\ See 47 CFR 69.117.
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64. The Link Up program helps low-income subscribers begin
telephone service by paying half of the first $60 of connection
charges.139 Where a LEC has a deferred payment plan, Link Up will
also pay the interest on any balance up to $200, for up to one
year.140 To be eligible, subscribers must meet a state-established
means test, and may not, unless over 60 years old, be a dependent for
federal income tax purposes.141 Link Up is available in all but
two states (California and Delaware) and in the District of
Columbia.142 The 1996 Act does not directly address our rules
relating to the Link Up program. Nonetheless, like the universal
service fund, the Link Up support is a function of jurisdictional
separations.143 The Link Up program's support comes, in part,
through shifting LEC costs that would otherwise be recovered through
rates for intrastate services to the interstate jurisdiction.
Consistent with the Act's requirement that support mechanisms be
explicit, propose to amend our rules to remove the Link Up provisions
from our jurisdictional separations rules. We further propose that the
support mechanism for Link Up be the same as that developed to support
other services that receive Federal universal service support.
\139\ MTS and WATS Market Structure; Amendment of Part 67 of the
Commission's Rules and Establishment of a Joint Board, Report and
Order, 2 FCC Rcd 2953, 2955, (1987) (1987 Report and Order); MTS and
WATS Market Structure Link-Up America, and Amendment of Part 36 of
the Commission's Rules and Establishment of a Joint Board, Decision
and Order, 4 FCC Rcd 3634 (1989).
\140\ 1987 Report and Order at 2955.
\141\ Id. at 2956.
\142\ Monitoring Report, tbl. 2.2.
\143\ See 47 CFR 36.711-741.
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65. We also seek comment on whether changes to the level of support
or other changes to our Lifeline and Link Up programs should be made as
part of an overall mechanism to ensure that quality services are
available at just, reasonable, and affordable rates for low-income
subscribers. Interested parties may, however, propose changes to the
level of support. Parties suggesting changes to the level of support
should provide evidence of the need for such changes and should address
how the proposed changes further the principle of universal service as
stated in the 1996 Act, and should identify the effect of their
suggested change on the level of subsidy required to fund these
programs.
D. Ensuring That Supported Services for Rural, Insular, and High-Cost
Areas and Low-Income Consumers Evolve
66. The 1996 Act states that ``[u]niversal service is an evolving
level of ____ telecommunications services'' and requires that the
Commission periodically establish the definition, ``taking into account
advances in telecommunications and information technologies and
services.'' 144 Thus, our list of services receiving universal
service support should continue to evolve, as changes in technology and
subscriber needs and preferences affect both the availability and
subscribership patterns of various telecommunications services. That
evolution should, however, be achieved in the context of regulatory
objectives that include promoting competition and reducing regulation
in a manner that is technology-neutral.145 We, therefore, seek
comment on how and with what frequency we should evaluate our initial
list of services adopted in this proceeding in accordance with the
Congressional recognition that universal service is an evolving level
of telecommunications services.
\144\ 1996 Act sec. 101(a), 254(c)(1).
\145\ Id.
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67. Parties in a California Public Utilities Commission proceeding
have suggested that any universal service definition should be
revisited at fixed intervals, such as every three or five
years.146 Whether we decide to revisit the topic even sooner
depends on the information we collect in the proceeding on advanced
services mandated in Section 706 of the Act.147 Moreover, although
periodic review could help to ensure that the definition does not
remain static, it could also entail the expenditure of resources on
unnecessary proceedings. To apply the definitional criteria that
Congress has set forth in Section 254(c)(1), we shall need to gather
relevant facts, including the extent to which particular services ``are
being deployed in public telecommunications networks'' and ``have been
subscribed to * * * by a substantial majority of residential
customers.'' 148 At the same time, we fully recognize that it
could be unduly burdensome to impose extensive information collection
requirements relating to those criteria. Since the list of services
that should receive universal service support is partially defined by
consideration of what services are widely subscribed to by residential
customers,149 it may be that we can rely on the marketplace to
register its preferences without soliciting those preferences
indirectly through burdensome data collection activities. We propose,
instead, to rely on information sources that already exist, and to
initiate additional information collection efforts only if that
information proves inadequate and only when we contemplate changes in
the list of services that should receive universal service support.
Should it appear advisable to collect additional information, we would
first conduct a cost/benefit analysis to ensure that the burden of
collection would not outweigh the value of the information we would
request. We seek comment on this proposal and, in addition, we ask that
interested parties identify specific sources of information relevant to
this list of services in accordance with the criteria set forth in
Section 254(c)(1), including information sources available at State
commissions and procedures for obtaining such information.
\146\ CPUC Interim Opinion at 20.
\147\ 1996 Act sec. 706, Sec. 706(b). Section 706 requires the
Commission to ``initiate a notice of inquiry concerning the
availability of advanced telecommunications to all Americans
(including, in particular, elementary and secondary schools and
classrooms) * * *.''
\148\ Id. Sec. 254(c)(1)(B)-(C).
\149\ See id. Sec. 254(c)(1)(B).
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68. The 1996 Act also states that ``[q]uality services should be
available at just, reasonable, and affordable rates.'' 150 As to
the technical parameters of specific telecommunications services, we do
not intend, in implementing Section 254, to prescribe technical
standards for telecommunications carriers or other service providers.
This Commission, historically, has let affected entities (IXCs, LECs,
equipment manufacturers, and customers) develop technical standards and
performance standards,151 and implement those standards without
our direct intervention, except as necessary. At present, there are
several industry bodies that address standards for various aspects of
communications networks.152 Our preference, in implementing
section 254, is to
[[Page 10511]]
encourage existing standard-setting bodies to discuss and establish
relevant technical standards.
\150\ Id. Sec. 254(b)(1) (emphasis added).
\151\ For example, a ``technical standard'' would apply to the
electrical and signaling parameters at the interface between
carriers. A ``performance standard'' would apply to the speed,
accuracy, dependability, availability, and survivability of the
transmission/switching path.
\152\ Those include the American National Standards Institute
Committee T-1, Electronic Industry Association, and
Telecommunications Industry Association.
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69. The 1996 Act requires the Commission to ensure that
``[c]onsumers in all regions of the Nation, * * * have access to
telecommunications and information services * * * that are reasonably
comparable to those services provided in urban areas.'' 153 As
stated above, the 1996 Act also requires that the Commission ensure
that ``[q]uality services should be available.'' 154 We seek
comment on whether it would be useful to collect and publish certain
basic information regarding technical performance levels of carriers
subject to our jurisdiction. Information on service quality that would
enable comparisons between the performance levels of various
telecommunications carriers would potentially create a market-based
incentive for carriers to provide quality services. By providing
consumers with easy access to publicly available data on the
performance level of various carriers, we could potentially spur
carriers to compete for customers, among other things, on the basis of
service quality in an increasingly competitive telecommunications
marketplace.155 We note, however, that because competition will
probably not develop in a uniform fashion throughout the Nation, we
seek comment on whether it may be necessary to obtain data that could
be used by the public, regulators, and regulated entities, to monitor
service quality performance from carriers, particularly those serving
in rural areas, that are not currently subject to our existing service
quality monitoring program.156 In proposing to collect and publish
this information, we wish to impose the least possible cost on the
companies involved. We, therefore, solicit comment on whether industry
organizations or State commissions already collect the information that
should be contained in these performance reports, and whether it would
be reasonable to rely upon such information rather than extending our
existing requirements to all carriers. We also ask that the commenters
attempt to estimate the potential costs associated with these
alternatives, in accordance with the principles stated in Section
254(b)(5) that support mechanisms should be ``specific, predictable,
and sufficient.'' 157
\153\ 1996 Act sec. 101(a), Sec. 254(b)(3).
\154\ Id. Sec. 254(b)(1).
\155\ Airline on-time information is published in ``Air Travel
Consumer Report,''Aviation Consumer Protection Div., Dep't of
Transp. (issued monthly).
\156\ See 47 CFR 43.21-22. Information reported by LECs
includes, inter alia, service installation and repair intervals,
trunk blockage rates and switch outage information. These are
reported on Automated Reporting and Management Information System
(ARMIS) Report Nos. 43-05, 43-06 and 43-07.
\157\ 1996 Act sec. 101(a), Sec. 254(b)(5).
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70. Finally, we recognize that such reports may not, in the near
future, be necessary for many urban and suburban areas, as local
service competition develops and the technical characteristics of
competitors' respective services are determined in response to market
demands. We therefore ask whether we should take action at some fixed
date to evaluate the need for continuing the performance reports,
covering services offered to all or some areas of the nation. We
request that the Joint Board prepare a recommended decision addressing
all of the issues raised in this Notice with respect to monitoring of
telecommunications services.
IV. Schools, Libraries, and Health Care Providers
A. Goals and Principles
71. Among the seven universal service principles established in the
1996 Act is the principle that ``elementary and secondary schools and
classrooms, health care providers, and libraries should have access to
advanced telecommunications services.'' 158 The Act allows the
Commission to designate additional, special services for universal
service support for eligible schools, libraries and health care
providers.159 In this section we propose to implement Sections
254(c)(3) (allowing the Commission to designate additional services for
such support mechanisms for schools, libraries, and health care
providers) and 254(h)(1) (providing guidance on rates and discounts for
rural health care providers and educational providers and libraries).
As to Section (h)(1), we discuss and seek comment on what services, in
addition to the core services discussed in Section III, should be made
available to schools, libraries and rural health care providers at a
discount.160 We also seek comment on issues relating to the
implementation of Section 254(h)(1) relating to support mechanisms that
would enable eligible schools, libraries, and rural health care
providers to receive both the core and advanced telecommunications
services included among those eligible for universal service
support.161
\158\ Id. Sec. 254(b)(6).
\159\ Id. Sec. 254(c)(3). We note that Section 254(h)(4) denies
eligibility for discounts to any school or library that ``operates
as a for-profit business.'' Id. Sec. 254(h)(4). In addition, the
discounts are not available to any elementary and secondary school
having an ``endowment of more than $50,000,000'' or library that is
``not eligible for participation in State-based'' applications for
library services and technology funds under Title III of the Library
Services and Construction Act. Id. Sec. 254(h)(A). See further
discussion infra at part V.B.3.
\160\ 1996 Act Sec. 254(h)(1).
\161\ We note that the statutory scheme of Section 254
distinguishes between eligible health care providers generally and
rural health care providers. The support mechanisms created by
Section 254(h)(1) would extend only to rural health care providers.
Section 254(h)(2), which we discuss in part V., embraces all
eligible health care providers as defined in Section 254(h)(5)(B)
and not just those operating in rural areas.
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72. Access to telecommunications services is important to schools,
classrooms, libraries and rural health care providers for a number of
reasons. Congress explicitly recognized the importance of
telecommunications to these educational institutions and rural health
care providers in enacting this legislation:
The ability of K-12 [kindergarten to 12th grade] classrooms,
libraries and rural health care providers to obtain access to
advanced telecommunications services is critical to ensuring that
these services are available on a universal basis. The provisions of
subsection (h) will help open new worlds of knowledge, learning and
education to all Americans rich and poor, rural and urban. They are
intended, for example, to provide the ability to browse library
collections, review the collections of museums, or find new
information on the treatment of illness, to Americans everywhere via
schools and libraries. This universal access will assure that no one
is barred from benefiting from the power of the Information
Age.162
\162\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 132-33
(1996).
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Modern two-way, interactive capabilities will not only enable users at
schools, libraries and rural health care facilities to access
information, but also give students the ability to participate in
educational activities at other schools, including universities; allow
students, teachers, librarians and rural health care providers to
consult with colleagues or experts at other institutions; may allow
parents to participate more easily in their children's education by
communicating with the school's telecommunications system; and may
facilitate the transmission of data for the practice of telemedicine.
Finally, as advanced telecommunications services become ubiquitous,
technological literacy will become even more important to our economy.
Exposure to telecommunications services for our nation's school
children will provide them with skills needed for jobs in a
technologically advanced society.
73. In this section, we focus on three tasks that are essential to
the implementation of the provisions of the 1996 Act discussed in the
foregoing paragraph. First, we seek to identify the
[[Page 10512]]
services to be supported by federal universal service support
mechanisms for schools, libraries and rural health care
providers.163 For schools and libraries, the Act requires that
services provided by telecommunications carriers receiving universal
service support be ``for educational purposes.'' 164 For rural
health care providers, services provided by telecommunications carriers
supported by universal service support mechanisms must be those that
are ``necessary for the provision of health care services in a State.''
165
\163\ 1996 Act sec. 101(a), Secs. 254(h)(1) & 254(C)(3).
\164\ 1996 Act sec. 101(a), Sec. 254(h)(1)(B).
\165\ Id. Sec. 254(h)(1)(A).
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74. Next, we consider ways to implement the support mechanisms for
schools, libraries and rural health care providers. For schools and
libraries, we seek comment on how to formulate discount methodologies
that ensure that each discount is ``an amount that * * * is appropriate
and necessary to ensure affordable access to and use of such services
by such entities.'' 166 For rural health care providers, this task
includes, inter alia, determination of the method to be used by each
carrier in calculating the ``amount equal to the difference, if any,
between the rates for services provided to health care providers for
rural areas in a State and the rates for similar services provided to
other customers in comparable rural areas in that State,'' for purposes
of defining the offset or reimbursement due the carrier under our
universal service support rules.167
\166\ Id. Sec. 254(h)(1)(B).
\167\ Id. Sec. 254(h)(1)(A).
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75. We also seek to determine the terms and conditions for the
provision of interstate support to telecommunications carriers serving
schools and libraries and rural health care providers. We discuss the
identification of the health care providers that serve ``persons who
reside in rural areas,'' and, correspondingly, the ``urban areas in
that State.'' 168 Finally, we discuss which telecommunications
carriers may receive universal support pursuant to Section 254.
\168\ Id.
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76. In addition to seeking comment on the approach to the
implementation of Section 254(h)(1)(A) discussed below, we seek comment
on additional measures that may be necessary to implement this section.
We also refer all these issues to the Joint Board for its
recommendation.
B. Schools and Libraries
1. What Services To Support
77. Section 254(h)(1)(B) of the Act states:
All telecommunications carriers serving a geographic area shall,
upon bona fide request for any of its services that are within the
definition of universal service under subsection (c)(3), provide
such services to elementary schools, secondary schools, and
libraries for educational purposes at rates less than the amounts
charged for similar services to other parties. The discount shall be
an amount that the Commission, with respect to interstate services,
and the States, with respect to intrastate services, determine is
appropriate and necessary to ensure affordable access to and use of
such services by such entities.
Section 254(c)(3), in turn, states that ``[i]n addition to the services
included in the definition of universal service under paragraph (1),
the Commission may designate additional services for such support
mechanisms for schools [and] libraries * * * for the purposes of
subsection (h).'' We propose that the set of services designated for
federal universal service support pursuant to Section 254(c)(1) and any
other services designated for support pursuant to Section 254(c)(3) be
made available to schools and libraries pursuant to the discount to be
considered in this proceeding.
78. We seek comment and Joint Board recommendation on the
additional services that carriers must make available to schools and
libraries under Section 254(h)(1)(B). As the legislative history makes
clear, Congress ``expect[ed] the Commission and the Joint Board to take
into account the particular needs of * * * K-12 [kindergarten to 12th
grade] schools and libraries'' in determining which services should be
provided at a discount.169
\169\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 133
(1996).
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79. A February 1996 study, Advanced Telecommunications in U.S.
Public Elementary and Secondary Schools, 1995, commissioned by the
National Center for Education Statistics, part of the United States
Department of Education, observes that these services are not yet
widely available in classrooms. Only 9 percent of all instructional
rooms (classrooms, labs, and library media centers) are currently
connected to the Internet.170 Schools with large proportions of
students from poor families are half as likely to provide Internet
access as schools with small proportions of such students.171
Funding and inadequate telecommunications links were the most
frequently cited barriers to acquiring or using advanced
telecommunications services in public schools.172
\170\ National Ctr. for Educ. Statistics, U.S. Dep't of Educ.,
Advanced Telecommunications in U.S. Public Elementary and Secondary
Schools 1995, (Feb. 1996).
\171\ Id.
\172\ Id. at 3. In the survey instrument used for the study,
public schools were asked which services they now make available to
their students, including: (1) Computers connected to a local area
network; (2) computers with connection or access to a wide area
network; and (3) computers connected to the Internet. With respect
to Internet access, the survey asked which Internet resources or
capabilities a school has access to, including: (1) Electronic-mail;
(2) news groups; (3) resource locations services; and (4) World Wide
Web access. Id. at app. G.
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80. In determining which telecommunications services to support
through universal service mechanisms, our goal is to help elementary
and secondary schools and classrooms and libraries to have access to
advanced telecommunications services 173 and to help minimize the
barriers which exist to provision of telecommunications services to
schools and libraries. We seek comment on what functionalities should
be supported through universal service mechanisms for schools and
libraries and what facilities are required to provide those
functionalities.174 In this regard, we seek guidance on how to
determine which services will be provided to schools and libraries at a
discount pursuant to Section 254(h)(1)(B), without prescribing a
specific technical standard for each funded service. We also seek
comment on how we should define ``geographic area'' for purposes of
Section 254(h)(1)(B).
\173\ 1996 Act sec. 101(a), Sec. 254(b)(6).
\174\ For example, we note that many of the basic voice grade
loops that would be available to schools and libraries at discounted
prices as part of the basic package of services would permit them to
connect to the Internet at the full 28.8 kilobyte per second (kbps)
speed of the current fastest popular computer modems. If schools and
libraries find it important to have instantaneous transmissions or
to handle multiple connections simultaneously, they are likely to
require higher capacity, higher speed links. Schools that desire
video links to permit teleconferencing will generally find 1.5 Mbps
T1 links quite adequate for the ``talking head'' lecture style of
presentations that most teachers present. Yet others may note that
to provide high-quality full-motion video in real time today may
require a 45 Mbps DS3 link. Technical Personnel Bellcore and Bell
Operating Companies, Telecommunications Transmission Engineering 363
(1990).
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81. In addition, we seek comment on whether wireless technologies
may provide a more efficient way of delivering any of the services
designated for support. Finally, we also invite comment on how our
special definition of services for schools and libraries should reflect
future ``advances in telecommunications and information
[[Page 10513]]
technologies and services.'' 175 We seek comment and Joint Board
recommendation on all of these issues.
\175\ 1996 Act sec. 101(a), Sec. 254(c)(1).
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2. How To Implement
a. Establishment of the Interstate Discount for Schools and
Libraries.
82. As discussed above,176 we interpret Section 254(h)(1)(B)
of the new Act to entitle schools and libraries to receive discounts on
all services falling either within our list of services under Section
254(c)(1) that should receive universal service support, or our list of
services for schools and libraries under Section 254(c)(3). Each
discount must produce a ``rate[] less than the amounts charged for
similar services to other parties'' and be ``an amount that * * * is
appropriate and necessary to ensure affordable access to and use of
such services by such entities.'' 177 The 1996 Act gives the
Commission the responsibility to establish the discounts on interstate
services, while the States are charged with establishing the discounts
on intrastate universal services.178
\176\ See Section V.B.1., supra.
\177\ 1996 Act sec. 101(a), Sec. 254(h)(1)(B).
\178\ Id.
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83. We seek comment and Joint Board recommendation on the factors
to be used in formulating a discount methodology for universal service
support for schools and libraries. The methodology could reflect
whether the services used are tariffed or whether the charges are for
capital investments or recurring expenses. The methodology could also
be based on the incremental costs of providing services rather than
retail prices. We also seek comment on the estimated costs associated
with each discount methodology, and how each methodology would comport
with the Act's principle of providing ``specific, predictable and
sufficient Federal and State mechanisms to preserve and advance
universal service.'' 179 Overall, we seek comment and a Joint
Board recommendation on how the respective State and Federal discount
methodologies can be harmonized to ensure that we fulfill Congress's
goal that, throughout the nation, elementary and secondary schools,
classrooms and libraries have access to advanced telecommunications
services.
\179\ Id. Sec. 254(b)(5).
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b. Terms and Conditions of Interstate Support for
Telecommunications Carriers Providing Discounted Universal Services to
Schools and Libraries.
84. Section 254(h)(1)(B) specifies that schools and libraries are
entitled to a discount on telecommunications services only if the
requested services will be used ``for educational purposes.'' 180
We invite comment on what steps we should take to ensure that this
requirement is met. One possible approach would be to have the school
or library provide the carrier with a written certification that the
requested services will be used for educational purposes and will not
be ``sold, resold, or otherwise transferred by such user in
consideration for money or any other thing of value.'' 181 We
invite comment and Joint Board recommendation on this proposal. To
ensure that schools and libraries have a meaningful opportunity to
benefit from the discounts, we propose to require each carrier to
inform annually each school and library within its geographic serving
area of the available discounts.
\180\ Id. Sec. 254(h)(1)(B).
\181\ Id. Sec. 254(h)(3).
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85. Under the 1996 Act, each ``telecommunications carrier[] serving
a geographic area shall, upon bona fide request for any of its services
that are within the definition of universal service'' provide such
service to schools and libraries ``for educational purposes.'' 182
We propose that any person qualified under State or local law to order
telecommunications services for schools or libraries be deemed capable
of making a ``bona fide request'' for service. We ask for comment and
Joint Board recommendation on how to determine with as much precision
as possible whether such a request is ``bona fide.''
\182\ Id. Sec. 254(h)(1)(B).
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86. The Act instructs that ``telecommunications services and
network capacity'' provided to schools and libraries through universal
service support mechanisms ``may not be sold, resold, or otherwise
transferred by such user in consideration for money or any other thing
of value.'' 183 We ask commenters and the Joint Board to address
whether this provision will affect the ability of schools and libraries
to receive universal service support if they are sharing a network with
parties who are not eligible to receive support and what mechanisms
could ensure that this provision does not discourage partnerships
between schools and libraries and their communities.
\183\ Id. Sec. 254(h)(3).
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3. Who Is Eligible for Support
87. The term ``elementary and secondary schools'' is defined for
purposes of Section 254 by reference to the definition found in the
Elementary and Secondary Education Act of 1965.184 The term
``elementary school'' is defined there to be ``a nonprofit
institutional day or residential school that provides elementary
education, as determined under State law.'' 185 The term secondary
school means ``a nonprofit institutional day or residential school that
provides secondary education, as determined under State law, except
that such term does not include any education beyond grade 12.''
186 Consortia of educational institutions providing distance
learning to elementary and secondary schools are considered as
educational providers eligible for universal service support.187
Section 254(h)(4) denies eligibility for discounts to any school or
library that ``operates as a for-profit business.'' In addition, the
discounts are not available to any elementary and secondary school
having an ``endowment of more than $50,000,000'' or library that is
``not eligible for participation in State-based'' applications for
library services and technology funds under Title III of the Library
Services and Construction Act.188 To help ensure that these
conditions are met, we propose to require that any certification
address these eligibility requirements.
\184\ Id. 254(h)(5)(A).
\185\ 20 U.S.C. 8801(14).
\186\ Id. 8801(25).
\187\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 134
(1996).
\188\ 1996 Act sec. 101(a), Sec. 254(h)(4); see also 20 U.S.C.
353.
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88. Each telecommunications carrier providing discounted service to
schools and libraries is permitted either to have ``the discount
treated as an offset to its obligation to contribute to the mechanisms
to preserve and advance universal service'' or ``receive reimbursement
utilizing the support mechanisms to preserve and advance universal
service.'' 189 Unlike all other universal service support, which
is to be restricted to ``eligible telecommunications carriers'' under
the terms of Section 214(e) of the Act,190 the offset or
reimbursement provided under Section 254(h)(1)(B), pertaining to
schools and libraries, must be given to ``all telecommunications
carriers serving a geographic area.'' We ask for comment and Joint
Board recommendation on how to implement these provisions. Section
254(h)(1)(B) specifies that all discounts shall apply to ``the amounts
charged for similar services to other parties.'' 191 We invite
comment and Joint Board recommendation on how we might determine those
amounts.
\189\ 1996 Act sec. 101(a), Sec. 254(h)(1)(B).
\190\ Id. 214(e).
\191\ Id. Sec. 254(h)(1)(B).
[[Page 10514]]
C. Health Care Providers
1. What Services to Support
89. Section 254(h)(1)(A) requires telecommunications carriers
``upon receiving a bona fide request, [to] provide telecommunications
services which are necessary for the provision of health care services
in a State, including instruction relating to such services, to any
public or nonprofit health care provider that serves persons who reside
in rural areas in that State at rates that are reasonably comparable to
rates charged for similar services in urban areas in that State.''
192 According to the Joint Statement, Section 254(h) ``is intended
to ensure that health care providers for rural areas * * * have
affordable access to modern telecommunications services that will
enable them to provide medical * * * services to all parts of the
Nation.'' 193 The Section is also intended to ensure that ``rural
health care provider[s] receive an affordable rate for the
[telecommunications] services necessary for the purposes of
telemedicine and instruction relating to such services.'' 194
\192\ Id. Sec. 254(h)(1)(A).
\193\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 132
(1996).
\194\ Id. at 133.
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90. Section 254(c)(3) authorizes the Commission to designate
support for ``additional services'' that are not included in the list
of services that should receive universal service support under the
four definitional criteria of Section 254(c)(1), when those services
are provided to ``health care providers for the purposes of
[S]ubsection [254](h).'' 195 Pursuant to Sections 254(c)(3) and
254(h), we propose to ``designate additional services'' provided to
rural health service providers for support. We propose to designate for
support these additional telecommunications services to the extent
``necessary for the provision of [rural] health care services in a
State.'' 196 We ask interested parties to propose descriptions of
the kinds of telecommunications services that are ``necessary for the
provision of [rural] health care services.'' 197
\195\ 1996 Act sec. 101(a), Sec. 254(c)(3).
\196\ Id. Sec. 254(h)(1)(A).
\197\ See id. Sec. 254(h)(1)(A).
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91. Current applications of telemedicine include storage and
dissemination of patient records for diagnostic purposes, image
compression for efficient storage and retrieval of image data, image-
processing for diagnostic purposes, digital transmission of large two-
dimensional and three-dimensional medical images, and computerized
remote-control of medical equipment.198 They may also include the
ability to gain easy and rapid access to medical databases, such as
those of transplant candidates. Emerging telemedical applications
include real-time transmission of video images (i.e., for physician-to-
physician and physician-to-patient consultations); direct transmission
of medical data to hospitals from medical devices to patients at home;
and ``data mining'' of large databases of patient records for use in
medical education and diagnostics.199 In transmitting medical
information, some aspects of telemedicine may require
telecommunications services meeting high technical standards, such as
standards for quality of visual resolutions.200
\198\ Peter A. Ensminger, Telemedicine, Northeast Parallel
Architectures Center (1996).
\199\ Id.
\200\ See American College of Radiology Standard for
Teleradiology, Res. 21 (1994) (available from the American College
of Radiology).
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92. Many of the telemedical applications discussed above require
high-speed telecommunications capability. Asynchronous transfer mode
(ATM) and integrated systems digital network (ISDN) technologies may
provide the most promising choices for transfer of telemedicine
data.201 In describing telecommunications services that they
believe ``necessary for the provision of [rural] health care
services,'' commenters should discuss the number of simultaneous use
transmission paths and the speed of transmission required by
telemedicine practitioners. To the extent that specific
telecommunications services constitute ``advanced telecommunications
and information services,'' as described in Section 254(h)(2)(A), we
request that commenters evaluate the extent to which providing health
care providers with access to those services is ``technically feasible
and economically reasonable.'' 202
\201\ Ensminger, supra. n. 194. Because they have capacity to
transmit large quantities of data quickly, ATM and ISDN would
facilitate the high-speed transfer of telemedicine data.
\202\ 1996 Act sec. 101(a), Sec. 254(h)(2).
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93. We seek comment on what ``additional services'' 203 are
necessary ``for the provision of [rural] health care services in a
state.'' 204 In addition, we seek comment on the nature of the
``instruction relating to such [health care] services''
telecommunications carriers provide their subscribers.205
\203\ Id. Sec. 254(c)(3).
\204\ Id. Sec. 254(h)(1)(A).
\205\ Id.
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94. We seek technology-neutral descriptions of the
telecommunications functionalities that health care providers require
as well as the names of the current technologies they are using to
provide these functionalities. We also request comment on whether
limiting discounts to outgoing services would be sufficient to meet the
needs of rural health care providers or whether incoming services
should also be discounted. We ask the Joint Board convened herein to
prepare a recommended decision regarding these issues.
2. How to Implement
95. To implement Sections 254(h)(1)(A) of the 1996 Act, we must
designate areas as either urban or rural. This is necessary to
determine whether a particular health care provider ``serves persons
who reside in rural areas'' and to identify the ``urban areas in that
State,'' for purposes of establishing ``reasonably comparable'' rates
for ``telecommunications services which are necessary for the provision
of health care services in a State.'' For these purposes, we seek a
methodology that is based on publicly available data, is neither under-
inclusive nor over-inclusive, and that is easily administered.206
\206\ See S. Conf. Rep. No. 104-230, 104th Cong., 2nd Sess. 1
(1996) (expressing a congressional intent to create a ``pro-
competitive, de-regulatory national policy framework'').
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96. One alternative could be to adopt the existing classification
system developed by the Office of Rural Health Policy of the Health
Resources and Services Administration (HRSA) for its Rural Health
Services Outreach Grant Program.207 The HRSA classifications are
based initially on Metropolitan Statistical Areas (MSAs) designated by
the Office of Management and Budget (OMB). MSAs divide the nation into
metropolitan and nonmetropolitan counties, which we would treat as
urban and rural areas, respectively. The HRSA criteria, however,
recognize that some MSAs are extremely large and contain some very
rural areas.
\207\ See Health Resources and Servs. Admin., Dep't of Health
and Human Servs., Notice of Availability of Funds, 60 FR 64168,
64169 (1995).
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97. Another approach would use data prepared by the United States
Department of Agriculture's Economic Research Service.208 The
Economic Research Service divides nonmetropolitan areas into six
categories, depending on whether or not they are adjacent to a
metropolitan county and whether the population of the county is a) less
than 2,500, b) between 2,500 and 20,000, or c) greater than
20,000.209 Because these data do
[[Page 10515]]
not define urban and rural areas, we invite the commenters to suggest
ways we could use them to determine whether areas should be considered
urban or rural.
\208\ See U.S. Congress, Office of Technology Assessment, Rural
America at the Crossroads: Networking for the Future 36-38 (1991).
\209\ Id. at 38.
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98. We ask interested parties to comment on these methods for
defining rural areas in a state for the purposes of the sections of the
Act pertaining to rural health care providers. We also invite comment
on alternative methodologies for delineating urban and rural areas for
these purposes. We ask commenters to discuss whether each proposed
methodology is based on publicly available data, is neither under-
inclusive nor over-inclusive, and could be easily administered. In
addition, we seek comment on use of these evaluative criteria and on
the costs associated with these proposals pursuant to Section
254(b)(5), which requires universal service support mechanisms to be
``specific, predictable and sufficient.''
99. Section 254(h)(1)(A) requires telecommunications carriers to
provide rural health care providers with the services that we define as
necessary ``at rates that are reasonably comparable to rates charged
for similar services in urban areas in [their] State.'' 210 We
believe that fulfillment of our responsibilities under Sections
254(h)(1)(A) and 254(h)(2) may require that we adopt guidelines for
telecommunications carriers to follow in establishing such rates. We
ask commenters to address whether compliance with those guidelines
should be a condition of eligibility for telecommunications carriers to
receive interstate support for telecommunications services provided to
rural health care providers under Section 254(h).
\210\ 1996 Act sec. 101(a), Sec. 254(h)(1)(A).
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100. In establishing an appropriate methodology for ensuring
``reasonably comparable'' rates, we wish to minimize, to the extent
consistent with Section 254, the administrative burden on regulators
and carriers. It could, for example, prove unduly burdensome to require
the submission of information necessary to calculate weighted averages
of the rates in all urban areas in order that the telecommunications
services which are ``necessary'' for the provision of health care to be
provided to rural health care providers are priced at reasonably
comparable rates.211 We interpret the ``reasonably comparable''
requirement as requiring less than absolute precision in determining
the appropriate rates for rural health care providers under these
provisions of the new Act. Accordingly, we request comment on how
carriers should derive the rates applicable to rural health care
providers to ensure they are priced at a reasonably comparable rate.
\211\ Id.
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101. In addition, the amount of credit or reimbursement to carriers
from the health care support mechanism is based on the difference
between the price actually charged to eligible health care providers
and the rates for similar, if not identical, services provided to
``other customers'' in rural areas in that State.212 We invite
comments on how to determine the rate for rural non-health care
providers and the rate for urban health care providers necessary to
calculate the amount of credit. Commenters should discuss whether
average rates should be computed or whether some other method would be
more appropriate.
\212\ Id.
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102. While it may be difficult for carriers to establish the rates
for similar services provided to rural areas in a State if identical
services are not provided, it is likely that similar services will
generally be available. We seek comment, however, on whether there is a
need to define when services are comparable and, if so, how we might do
so.
103. We also ask that interested parties address the appropriate
safeguards to ensure that telecommunications carriers providing service
pursuant to Section 254(h)(1)(A) are, in fact, responding to the
receipt of a ``bona fide request'' for ``telecommunications services
which are necessary for the provision of [rural] health care services
in a State.'' 213 We seek comment on whether we might require
certification from rural health care providers requesting
telecommunications services under Section 254(h)(1)(A) or from
telecommunications carriers that provide such services. One approach to
such certification would be to require each telecommunications carrier
providing telecommunications services to rural health care providers
under this provision to obtain written certification that the services
are necessary for the provision of health care services. We seek
comment on this approach, as well as suggestions for alternative or
additional measures to ensure that universal service support provided
to telecommunications carriers under Section (h)(1)(A) is used for its
intended purpose.
\213\ Id.
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3. Who Is Eligible for Support
104. In order to receive support under the universal service
support mechanisms for service to rural health care providers, a
telecommunications carrier must meet two criteria. First, it must
provide service to a ``health care provider'' as defined by Section
254(h)(5)(B). Section 254(h)(5)(B) defines ``health care provider'' to
mean:
(i) post-secondary educational institutions offering health care
instruction, teaching hospitals, and medical schools;
(ii) community health centers or health centers providing health
care to migrants;
(iii) local health departments or agencies;
(iv) community mental health centers;
(v) not-for-profit hospitals;
(vi) rural health clinics; and
(vii) consortia of health care providers consisting of one or
more entities described in clauses (i) through (vi).214
\214\ Id. Sec. 254(h)(5)(B).
Second, a telecommunications carrier must provide service to
``persons who reside in rural areas'' in the state in which the health
care services proposal for support are provided under Section
254(h)(1)(A).215
\215\ Id. Sec. 254(h)(1)(A).
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105. Section 254(h)(1)(A) states that a ``telecommunications
carrier'' providing service under this paragraph ``shall be entitled to
have an amount equal to the difference, if any, between the rates for
services provided to health care providers for rural areas in a State
and the rates for similar services provided to other customers in
comparable rural areas in that State treated as a service obligation as
a part of its obligation to participate in the mechanisms to preserve
and advance universal service.'' 216 This language differs from
that of Section 254(h)(1)(B), which explicitly permits ``[a]ll
telecommunications carriers serving a geographic area'' providing
designated services to schools and libraries to be reimbursed for
services, either through ``an offset to its obligation to contribute to
the mechanisms to preserve and advance universal service,'' or through
``reimbursement utilizing the support mechanisms to preserve and
advance universal service.'' 217
\216\ Id.
\217\ Id. Sec. 254(h)(1)(B).
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106. In view of the differences described in the foregoing
paragraph, we request comment on whether any statutory or policy
rationale requires treating telecommunications carriers providing
service under Section 254(h)(1)(A) differently than telecommunications
carriers providing service under Section 254(h)(1)(B) for reimbursement
purposes. We invite commenters to address whether Section 254(h)(1)(A)
provides for an offset to contributions, and whether it prohibits
direct compensation payments. Finally,
[[Page 10516]]
we request comment addressing the desirability of using the same offset
or reimbursement alternatives set forth in Section 254(h)(1)(B). We
request the Joint Board's recommendation regarding the appropriate
resolution of the issues described in this section.
V. Enhancing Access to Advanced Services for Schools, Libraries,
and Health Care Providers
A. Goals and Principles
107. Section 254(b)(6) directs the Commission and the Joint Board
to adopt policies designed to assure ``elementary and secondary schools
and classrooms, health care providers, and libraries * * * access to
advanced telecommunications services.'' 218 Section 254(c)(3)
enables the Commission to designate additional, special services for
universal service support for eligible schools, libraries and health
care providers.
\218\ Id. Sec. 254(b)(6).
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108. Section 254(h)(2) directs the Commission to establish
``competitively neutral rules * * * to enhance, to the extent
technically feasible and economically reasonable, access to advanced
telecommunications and information services for all public and
nonprofit elementary and secondary school classrooms, health care
providers, and libraries.'' 219 As the Joint Statement explains
with respect to advanced services:
\219\ Id. Sec. 254(h)(2)(A).
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New subsection (h)(2) requires the Commission to establish rules
to enhance the availability of advanced telecommunications and
information services to public institutional telecommunications
users. For example, the Commission could determine that
telecommunications and information services that constitute
universal service for classrooms and libraries shall include
dedicated data links and the ability to obtain access to educational
materials, research information, statistics, information on
Government services, reports developed by Federal, State, and local
governments, and information services which can be carried over the
Internet.220
\220\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 133
(1996).
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The Commission is further directed to ``define the circumstances
under which a telecommunications carrier may be required to connect its
network to such public institutional telecommunications users.''
221
\221\ 1996 Act sec. 101(a), Sec. 254(h)(2)(B). ``Public
institutional telecommunications user'' is defined as an elementary
or secondary school, a library or health care provider as defined in
Section 254 (h)(5)(C). Id. Sec. 254(h)(5)(C).
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B. How to Implement
109. In Section IV, we sought to identify a set of
telecommunications services to be supported by Federal universal
service support mechanisms for schools, libraries and rural health care
providers. We now seek to identify those advanced telecommunications
and information services that carriers should make available to all
eligible health care providers, libraries and school classrooms to the
extent technically feasible and economically reasonable. We ask
commenters to identify such services and to identify the features and
functionalities required to give eligible health care providers,
libraries and school classrooms access to those services. We also ask
commenters to suggest competitively neutral rules that we could adopt
``to enhance, to the extent technically feasible and economically
reasonable, access to advanced telecommunications and information
services for all public and nonprofit elementary and secondary school
classrooms, health care providers, and libraries.'' Specifically, we
ask whether the ``advanced telecommunications and information
services'' addressed in Section 254(h)(2) should be a broader,
narrower, or identical group to those supported under Section
254(h)(1). Further, we request suggestions as to any additional
measures, other than discounts and financial support, that would
promote deployment of advanced services to school classrooms, libraries
and health care providers.
110. For each measure, we ask commenters to address: whether it
would be competitively neutral for carriers, telecommunications
providers, and any other affected entities, and whether it complies
with the Act's requirement that ``telecommunications services and
network capacity'' provided to public institutional telecommunications
users ``may not be sold, resold, or otherwise transferred by such user
in consideration for money or any other thing of value.'' 222 We
seek comment on how we should assess whether particular services that
provide access to advanced telecommunications and information services
are ``technically feasible and economically reasonable.'' 223 We
also ask that the commenters attempt to estimate the potential costs
associated with such measures, pursuant to the principle stated in
Section 254(b)(5) that support mechanisms should be ``specific,
predictable and sufficient.'' 224 Similarly, we request proposals
to implement our responsibility, under Section 254(h)(2)(B), ``to
define the circumstances under which a telecommunications carrier may
be required to connect its network to such public institutional
telecommunications users.'' 225 We also refer these issues to the
Joint Board for its recommendation.
\222\ Id. Sec. 254(h)(3).
\223\ Id. Sec. 254(h)(2)(A).
\224\ Id. Sec. 254(b)(5).
\225\ Id. Sec. 254(h)(2)(B).
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C. Who Is Eligible for Support
111. For purposes of Section 254(h)(2), schools and libraries have
definitions identical to those in Section 254(h)(1), discussed at part
V.B.3., above. Congress also intended to benefit ``all * * * health
care providers,'' as defined in Section 254(h)(5)(B),226 not just
rural health care providers. We invite interested parties to comment
and ask the Joint Board's recommendation regarding this interpretation.
\226\ Id. Sec. 254(h)(2)(A). See discussion supra at part V.C.3.
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VI. Other Universal Service Support Mechanisms
112. The 1996 Act states that any federal universal service support
provided to eligible carriers ``should be explicit'' and should be
recovered from all telecommunications carriers that provide interstate
telecommunications service ``on an equitable and nondiscriminatory
basis.'' 227 Currently, approximately 25 percent of the
unseparated cost of incumbent LECs' subscriber loops (the lines
connecting subscribers to local telephone company central offices) is
allocated to the interstate jurisdiction. These carriers recover a
significant portion of their loop costs allocated to the interstate
jurisdiction directly from subscribers through flat monthly subscriber
line charges (SLCs), but the Commission's rules impose caps on the SLC
rate at $3.50 per month for residential and single-line business users
and $6.00 per month for multi-line business users.228 The
incumbent LECs' remaining interstate allocated loop costs are currently
recovered through a per-minute carrier common line (CCL) charge paid by
IXCs, and ultimately by subscribers in the form of increased interstate
long distance rates.
\227\ 1996 Act sec. 101(a), Sec. 254 (d), (e).
\228\ 47 CFR 69.104(c)-(e), 69.203(a). If the interstate
allocation of common line costs in a study area is lower than the
SLC cap, the lower number is used.
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113. Many interested persons have argued that all costs associated
with facilities dedicated to the use of a single subscriber should be
recovered through
[[Page 10517]]
a flat, non-traffic sensitive charge assessed on end users.229
They contend that the existing CCL charge artificially raises rates for
interstate long distance usage and distorts competitive incentives in
the local exchange marketplace. Moreover, the imposition of per-minute
charges on one class of service--interstate interexchange long
distance--to reduce flat rates for end users (with the goal of
increasing telephone subscribership) appears to constitute a universal
service support flow. High-volume interstate long distance customers
contribute more than the full cost of their subscriber lines, while
low-volume customers contribute less. The Federal-State Joint Board
that recommended a mandatory cap on the SLCs emphasized that this
limitation was designed to support universal service.230 The
current CCL charge appears to be inconsistent with the directives of
the 1996 Act that universal service support flows ``be explicit'' and
be recovered on a ``nondiscriminatory basis'' from all
telecommunications carriers providing interstate telecommunications
service.231 The Commission and a Federal-State Joint Board have
found, in the past, that increased flat rate recovery of LECs'
subscriber loop costs has substantially stimulated demand for
interstate switched services, and has produced major economic
efficiency gains with minimal impact on subscribership.232 At the
same time, recovery of the full interstate allocation of common line
costs directly from end-users might cause the flat monthly rates paid
by certain subscribers to exceed acceptable levels, and could have an
adverse impact on telephone subscribership.
\229\ See Com. Car. Bur., FCC, Preparation for Addressing
Universal Service Issues: A Review of Current Interstate Support
Mechanisms 90-97 (1996); cf. Interconnection between Local Exchange
Carriers and Commercial Mobile Radio Service Providers; Equal Access
and Interconnection Obligations Pertaining to Commercial Mobile
Radio Service Providers, Notice of Proposed Rulemaking, CC Docket
Nos. 95-185, 94-54, FCC 95-505, para. 43 (rel. Jan. 11, 1996),
summarized in 61 FR 3644 (1996).
\230\ MTS and WATS Market Structure; Amendment of Part 67 of the
Commission's Rules and Establishment of a Joint Board, Recommended
Decision and Order, 2 FCC Rcd 2324 (1987) (1987 Recommended
Decision); 1984 Recommended Decision.
\231\ 1996 Act sec. 101(a), Sec. 254 (d), (e).
\232\ 1987 Report and Order, at 2954, 2957; see also Jerry
Hausman et al., The Effects of the Breakup of AT&T on Telephone
Penetration in the United States, 83 Am. Econ. Ass'n Papers & Proc.
178, 183 (1993).
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114. In the mid-1980s, we referred to a Federal-State Joint Board
questions relating to the recovery of interstate-allocated subscriber
loop costs.233 We do so again here. We now seek comment on whether
to continue the existing subsidy so as to preserve reduced end user
common line charges, or to eliminate or reduce the subscriber loop
portion of the interstate CCL charge and, instead, permit LECs to
recover these costs from end users.234 We invite parties to
comment on whether the existing method for recovery of common line
costs allocated to the interstate jurisdiction comports with economic
efficiency and the specific mandates of the 1996 Act. We also seek
comment on the extent to which increases in SLCs would reduce telephone
subscribership, if at all, and the effect on subscribership across
different income levels and teleco
FR Doc. 96-6156 Federal-State Joint Board on Universal Service
mmunications consumption patterns. We
seek comment on the level of explicit universal service support that
would be required to avoid unacceptable harm to subscribership under
such a scenario, and the extent to which such support could be provided
through the targeted support mechanisms to low-income customers and
customers in rural, insular, or high-cost areas discussed
above.235 In the alternative, we seek comment on whether all or a
portion of the current level of support for subscriber loop rates
should be retained but restructured, consistent with the mandate of the
1996 Act, to ``be explicit'' and to be funded in a
``nondiscriminatory'' manner.236 A combination of these approaches
is also possible: For example, the caps on interstate SLCs could be
increased gradually but not eliminated, with the balance recovered from
the universal service support fund proposed below. We also seek comment
on whether eligibility for these support mechanisms must, or should, be
limited to state-certified eligible carriers, under the 1996 Act.
\233\ See 1985 Lifeline Order (adopting, with minor
modifications, the Joint Board recommendations issued in 1984
Recommended Decision); 1987 Report and Order (adopting, with minor
modifications, the Joint Board recommendations issued in 1987
Recommended Decision).
\234\ The LECs' interstate CCL charge currently also recovers
revenues associated with the provision of payphone service. Pursuant
to the 1996 Act, within nine months after the date of its enactment,
the Commission will initiate a proceeding to discontinue this
element of the CCL charge and replace it with a per-call
compensation system for recovering payphone costs. 1996 Act sec.
151(a), Sec. 276(b)(1)(A), (B). The CCL charge also recovers common
line long-term support (LTS) payments, which are discussed in the
following paragraph.
\235\ See supra part III.B., C.
\236\ 1996 Act sec 101(a), Sec. 254(d), (e).
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115. The CCL charge assessed by larger incumbent LECs also recovers
revenues associated with long-term support (LTS) payments remitted to
the National Exchange Carrier Association, Inc. (NECA).237 Until
1989, the Commission's rules required all LECs to participate in a
nationwide averaged common line pool. That mandatory pooling
arrangement was replaced in 1989 by the current system, which permits
LECs to leave the pool and set their CCL rates based on their own
interstate separated costs of subscriber loops. The LECs that withdrew
from the common line pool are required to remit LTS payments to NECA,
which distributes the LTS payments to LECs remaining in the nationwide
common line pool. With the introduction of price cap regulation, the
uniform CCL rate assessed by LECs remaining in the pool is based on the
average CCL rate charged by price cap LECs.238 LTS payments, which
directly increase interstate access charges assessed by some LECs so as
to reduce charges assessed by other LECs, are an identifiable support
flow in the existing interstate access charge system. We propose to
eliminate the recovery of LTS revenues through incumbent LECs'
interstate CCL charges, and we seek comment on whether the LTS system
should be eliminated or restructured in an explicit and
nondiscriminatory manner, consistent with the universal service support
mechanisms described elsewhere in this Notice and with the principles
espoused in the 1996 Act. We also seek comment on whether the
principles governing our deliberations in this proceeding permit, or
even require, a transition period for carriers that receive LTS to
adjust to any changes in the LTS system or rate structure for
recovering loop costs allocated to the interstate jurisdiction. We seek
a Joint Board recommendation on all of these issues.
\237\ 47 CFR 69.603(e), 69.612.
\238\ Com. Car. Bur., FCC, Preparation for Addressing Universal
Service Issues: A Review of Current Interstate Support Mechanisms
71-77 (1996).
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VII. Administration of Support Mechanisms
A. Goals and Principles
116. The 1996 Act states that ``[a]ll providers of
telecommunications services should make an equitable and
nondiscriminatory contribution to the preservation and advancement of
universal service'' 239 through ``specific, predictable and
sufficient Federal and State mechanisms.'' 240 To accomplish this,
the Act stipulates that ``[e]very telecommunications carrier that
provides interstate telecommunications services shall contribute, on an
[[Page 10518]]
equitable and nondiscriminatory basis, to the specific, predictable,
and sufficient mechanisms established by the Commission to preserve and
advance universal service.'' 241 It further stipulates that
``[e]very telecommunications carrier that provides intrastate
telecommunications services shall contribute, on an equitable and
nondiscriminatory basis, in a manner determined by the State to the
preservation and advancement of universal service in that State.''
242
\239\ 1996 Act sec. 101(a), Sec. 254(b)(4).
\240\ Id. Sec. 254(b)(5).
\241\ Id. Sec. 254(d).
\242\ Id. Sec. 254(f).
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117. In view of these provisions, we seek comment on how financial
responsibility should be divided between interstate telecommunications
carriers and intrastate telecommunications carriers for the costs
associated with the universal service support mechanisms authorized
under Section 254. We invite commenters to discuss possible approaches
for allocating this financial obligation, detailing the advantages and
disadvantages of each approach. We ask, in particular, that interested
parties address the question of whether passage of the 1996 Act should
change existing assumptions about the sources of universal service
support. Finally, we request that the Joint Board in this proceeding
recommend an appropriate basis, with reference to the 1996 Act, upon
which to assign responsibility between the interstate and intrastate
jurisdictions for contributions needed to fund support for universal
service.
B. Administration
1. Who Should Contribute
118. Under the 1996 Act, we must ensure that telecommunications
carriers' contributions that fund universal service support are
collected ``on an equitable and nondiscriminatory basis'' using
``specific, predictable, and sufficient mechanisms.'' 243 The Act
states that ``[a]ll providers of telecommunications services should
make an equitable and nondiscriminatory contribution to the
preservation and advancement of universal service.'' 244 To
fulfill this obligation, Section 254(d) requires that ``[e]very
telecommunications carrier that provides interstate telecommunications
services'' 245 contribute to ``preserve and advance universal
service'' 246 and that ``[a]ny other provider of interstate
telecommunications may be required to contribute to the preservation
and advancement of universal service if the public interest so
requires.'' 247 The Act defines the term ``telecommunications
carrier'' as ``any provider of telecommunications services,'' and the
term ``telecommunications service'' as ``the offering of
telecommunications for a fee directly to the public, or to such classes
of users as to be effectively available directly to the public,
regardless of the facilities used.'' 248 In addition, the Act
defines ``telecommunications'' as ``the transmission, between or among
points specified by the user, of information of the user's choosing,
without change in the form or content of the information as sent and
received.'' 249
\243\ Id. Sec. 254(d).
\244\ Id. Sec. 254(b)(4).
\245\ Id. Sec. 254(d).
\246\ Id.
\247\ Id.
\248\ Id. Sec. 153(49), (51) (emphasis added).
\249\ Id. Sec. 153(48). For example, the switched message and
private line services offered by LECs and IXCs provide
``telecommunications'' to end users.
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119. We seek comments that identify which service providers fall
within the scope of the term ``telecommunications carrier[s] that
provide[] interstate telecommunications services.'' 250 We also
seek comment on whether support obligations associated with universal
service mechanisms should extend only to telecommunications carriers
providing interstate telecommunications services, or whether we should
impose universal service support obligations more broadly, as Section
254(d) of the Act authorizes us to do. Under Section 254(d), universal
service support obligations could be imposed upon ``other provider[s]
of interstate telecommunications,'' which, pursuant to the definition
of ``telecommunications'' in Section 3 of the 1996 Act, would include
entities that provide interstate ``transmission, between or among
points specified by the user, of information of the user's choosing,
without change in the form or content of the information as sent and
received.'' 251 We seek comment and Joint Board recommendations on
whether ``the public interest * * * requires'' that we extend support
obligations to ``[a]ny other provider[s] of interstate
telecommunications,'' 252 and, if so, what categories of
providers, other than telecommunications carriers, should be so
obligated.
\250\ See id. Sec. 254(d).
\251\ Id.
\252\ Id. Sec. 254(d).
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120. Section 254(d) authorizes the Commission to ``exempt a carrier
or class of carriers from [the obligation to make contributions] if the
carrier's telecommunications activities are limited to such an extent
that the level of such carrier's contribution to the preservation and
advancement of universal service would be de minimis.'' 253 The
Joint Explanatory Statement of the Committee of Conference clarifies
that such exemption should be given ``only * * * in cases where the
administrative cost of collecting contributions from a carrier or
carriers would exceed the contribution that carrier would otherwise
have to make under the formula for contributions selected by the
Commission.'' 254 We seek comment on whether we should establish
rules of general applicability for exempting very small
telecommunications providers, and if so, what the basis should be for
determining that the administrative cost of collecting support would
exceed a carrier's potential contribution. Within those parameters, we
also specifically seek comment on measures to avoid significant
economic harm to small business entities, as defined by Section 601(3)
of the Regulatory Flexibility Act.255 In its Recommended Decision,
we request that the Joint Board consider all of these issues related to
defining the contributors to universal service support.
\253\ Id.
\254\ S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 131
(1996).
\255\ 5 U.S.C. 601(3).
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2. How Should Contributions Be Assessed
121. Section 254(d) requires that ``[e]very telecommunications
carrier that provides interstate telecommunications services shall
contribute, on an equitable and nondiscriminatory basis, to the
specific, predictable, and sufficient mechanisms established by the
Commission to preserve and advance universal service.'' 256
Furthermore, in evaluating different approaches to collecting
contributions, we must ensure that ``[a]ll providers of
telecommunications services make an equitable and nondiscriminatory
contribution to the preservation and advancement of universal
service.'' 257
\256\ 1996 Act sec. 101(a), Sec. 254(d).
\257\ Id. Sec. 254(b)(4).
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122. Contributions Based on Gross Revenues. One potential approach
might be to adopt the mechanism used for the approximately $30 million-
per-year Telecommunications Relay Services (TRS) program. TRS provides
``a telephone transmission service that allows persons with hearing or
speech disabilities to communicate by telephone in a manner
functionally equivalent to the ability of persons without such
disabilities.'' 258 Each
[[Page 10519]]
contributor's TRS payment is based on a pro rata share of its gross
interstate revenues.259
\258\ 47 U.S.C. 225(a)(3). TRS facilities have specialized
equipment and staff who relay conversations between persons using
text telephones and persons using traditional telephones.
\259\ Telecommunications Relay Services, and the Americans with
Disabilities Act of 1990, Third Report and Order, 8 FCC Rcd 5300
(1993).
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123. Contributions Based on Revenues Net of Payments to Other
Carriers. Alternatively, we could consider the mechanism employed for
the assessment and collection of regulatory fees to recover part of the
cost of the Commission's regulatory activities. This mechanism was
established in our Regulatory Fees Order,260 where we evaluated
the advantages and disadvantages of alternative mechanisms for
collecting Commission fees on a per line, per minute of use, and per
dollars of revenue basis. That Order directed that fees be assessed
based on gross interstate revenues net of payments made to other
telecommunications carriers.
\260\ Assessment and Collection of Regulatory Fees for Fiscal
Year 1995, Price Cap Treatment of Regulatory Fees Imposed by Section
9 of the Act, Report and Order, 10 FCC Rcd 13512 (1995) (Regulatory
Fees Order).
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124. Contributions Based on Per-Line or Per-Minute Units. We also
could adopt a mechanism based on per-line or per-minute charges. These
approaches, however, would require the Commission to adopt and
administer ``equivalency ratios'' for calculating the contributions
owed by providers of services that were not sold on a per-line or per-
minute basis into their respective per-line or per-minute units. In
addition, these approaches may favor certain services or service
providers over others.
125. We invite comment on the relative merits of these approaches
and the extent to which they do or do not satisfy the requirements of
the Act..261 We seek comment on whether, for purposes of funding
federal universal service support mechanisms, we should base
contributions from interstate carriers (and, possibly, from other
interstate service providers) on both their interstate and intrastate
revenues or on their interstate revenues only. If commenters propose
that contributions should be based on interstate revenues only, we ask
for proposals on how to determine the interstate revenues for the many
and varied telecommunications carriers and telecommunications service
providers that are not subject to our jurisdictional separations rules
and, in some cases, may not have a clear basis for delineating
interstate and intrastate services. In particular, we ask for comment
on the practicality of the approach used for the TRS fund.262
\261\ In using the TRS program and our Regulatory Fees Order as
potential models, we are only proposing their methodologies. We are
not suggesting that the range of contributors providing universal
support should be limited to the contributors to those programs.
Questions regarding who should contribute to universal fund support
are discussed above in part VIII.B.1. of this Notice.
\262\ The TRS work sheet instructs carriers to, wherever
possible, calculate the percentage of total revenues that are
interstate by using information from their books of accounts and
other internal data reporting systems. Carriers that cannot
calculate a percentage from their books or from internal data may
elect to rely on special studies to determine interstate
percentages.
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126. We also invite commenters to suggest alternative methodologies
for calculating a carrier's or service provider's contribution to
universal service support. The comments should address which method
would be the most easily administered and competitively neutral in its
effect upon contributing carriers and service providers. In addition,
commenters should address how these methods could be adapted if we were
to require non-carrier providers of telecommunications services to make
contributions to the universal service funds. We ask the Joint Board to
address these issues in its Recommended Decision.
3. Who Should Administer
127. Section 254(b)(4) of the 1996 Act states that ``[a]ll
providers of telecommunications services should make an equitable and
nondiscriminatory contribution to the preservation and advancement of
universal service.'' 263 Moreover, Section 254(d) requires that
``[e]very telecommunications carrier that provides interstate
telecommunications services shall contribute, on an equitable and
nondiscriminatory basis, to the specific, predictable, and sufficient
mechanisms established by the Commission to preserve and advance
universal service.'' 264 The rules for assessing support
obligations discussed above not only must conform to these provisions,
but also must be administered fairly, consistently, and efficiently. We
seek comment on the best approach to administer the universal service
mechanisms fairly, consistently, and efficiently.
\263\ 1996 Act sec. 101(a), Sec. 254 (b)(4).
\264\ Id. Sec. 254(d).
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128. One way to administer the fund would be through a non-
governmental fund administrator. We believe the fund should be
administered by the candidate who can administer it in the most
efficient, fair, and competitively neutral manner. In addition,
considering the large number of potential contributors and recipients
of universal service funds under Section 254, it would appear that
administration of the funds will require large-scale information
processing and data base capabilities. Moreover, the administrator
should have the ability to apply eligibility criteria consistently,
ensuring that all carriers eligible for support, but no ineligible
carriers, are properly compensated by the support mechanisms. Finally,
the administrator should assure that all entities required to
contribute to the fund do so, and in the appropriate amounts.
129. We ask that commenters discuss these criteria and any others
we might use to assess qualifications of any candidates to administer
the funds, for how long an administrator should be appointed, and any
other matters related to the selection and appointment of a fund
administrator. We also invite parties to suggest the most efficient and
least costly methods to accomplish the administrative tasks associated
with fund administration.
130. Rather than appoint a non-governmental fund administrator, we
could have the funds collected and distributed by state public utility
commissions. Under this approach, individual state commissions or
groups of state commissions would be responsible for administering the
funds' collection and distribution, operating under plans approved by
the Commission. They might delegate the administration of the fund to a
governing board composed of representatives from the state commissions,
the fund contributors, and the fund recipients. This board could also
function as a central clearinghouse to the extent collection and
distribution issues extended beyond the boundaries of individual
states. We request comment on this alternative approach and on what
provisions should be incorporated in any plan that the Commission
approves for administering the funds under this option. We also invite
proposals for other means of administering support mechanisms.
131. Pursuant to the 1996 Act's principle that support for
universal service should be ``predictable,'' 265 we seek comment
estimating the cost of administration estimating the cost of
administration using either of the two approaches that we have
discussed. Commenters proposing an alternative method should also
identify the costs of administration associated with their suggested
method. Finally, we request that the Joint Board address these issues
[[Page 10520]]
regarding fund administration in its Recommended Decision.
\265\ Id. Sec. 254(b)(5).
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VIII. Composition of the Joint Board
132. Under Section 254(a) of the 1996 Act, the Joint Board in this
proceeding must consist of eight members: three Commissioners from this
Commission; four State Commissioners nominated by the National
Association of Regulatory Utility Commissioners (NARUC); and one State-
appointed utility consumer advocate nominated by the National
Association of State Utility Commissioners.266 Section 410(c) also
specifies that ``the Chairman of the Commission, or another
Commissioner designated by the Commission, shall serve as Chairman of
the Joint Board.'' 267
\266\ Id. Sec. 254(a).
\267\ 47 U.S.C. Sec. 410(c).
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133. In accordance with these provisions, the three Commissioners
from this Commission are the Honorable Reed E. Hundt, the Honorable
Andrew C. Barrett, and the Honorable Susan Ness. The four Commissioner
nominated by NARUC are the Honorable the Honorable Julia L. Johnson of
the Florida Public Service Commission, the Honorable Kenneth McClure of
the Missouri Public Service Commission, the Honorable Sharon L. Nelson
of the Washington Utilities and Transportation Commission, and the
Honorable Laska Schoenfelder of the South Dakota Public Utilities
Commission,268 The utility consumer advocate nominated by NASUCA
is Martha S. Hogerty, Public Counsel for the State of Missouri.269
The Honorable Reed E. Hundt shall serve as Chairman of the Joint Board.
\268\ The National Association of Regulatory Utility
Commissioners (NARUC) nominated Ms. Johnson, Mr. McClure, Ms.
Nelson, and Ms. Schoenfelder to serve on the Federal-State Joint
Board. Letter from James Bradford Ramsay, Deputy Assistant General
Counsel, NARUC, to Mr. William F. Caton, Secretary, Federal
Communications Commission, February 28, 1996.
\269\ Nominated pursuant to 1996 Act sec. 101, Sec. 254(a)(1),
by the National Association of State Utility Consumer Advocates
(NASUCA). Letter from Debra Berlyn, Executive Director, NASUCA, to
The Honorable Reed E. Hundt, Chairman, Federal Communications
Commission, February 26, 1996.
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IX. Procedural Matters
A. Ex Parte
134. This is a non-restricted notice and comment rulemaking
proceeding. Ex parte presentations are permitted, except during the
Sunshine Agenda period, provided they are disclosed as provided in the
Commission's rules.270
\270\ See generally 47 CFR 1.1202, 1.1203, 1.1206(a).
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B. Regulatory Flexibility Analysis
135. Pursuant to Section 603 of the Regulatory Flexibility Act, the
Commission has prepared the following regulatory flexibility analysis
(IRFA) of the expected impact of these proposed policies and rules on
small entities. Written public comments are requested on the IRFA.
These comments must be filed in accordance with the same filing
deadlines as comments on the rest of the Notice, but they must have a
separate and distinct heading designating them as responses to the
regulatory flexibility analysis. The Secretary shall cause a copy of
the Notice, including the initial regulatory flexibility analysis, to
be sent to the Chief Counsel for Advocacy of the Small Business
Administration in accordance with Section 603(a) of the Regulatory
Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5 U.S.C. Sec. 601
et seq. (1981).
136. Reason for Action. The Telecommunications Act of 1996 requires
the Commission to initiate a rulemaking to define the services
generally supported by Federal universal service support mechanisms.
This Notice addresses issues of the services that should receive
universal service support with respect to elementary and secondary
schools and classrooms, libraries, health care providers, as well as
universal support service mechanisms. Issues raised in this Notice will
be referred to a Federal-State Joint Board.
137. Objectives. To propose rules to implement Sections 101 and 102
of the Telecommunications Act of 1996. We also desire to adopt rules
that will be easily interpreted and readily applicable and, whenever
possible, minimize the regulatory burden on affected parties.
138. Legal Basis. Action as proposed for this rulemaking is
contained in Sections 101 and 102 of the Telecommunications Act of 1996
(to be codified at 47 U.S.C. 254 and 214(e), respectively).
139. Description, potential impact and number of small entities
affected. Until we receive more data, we are unable to estimate the
number of small telecommunications service providers that would be
affected by any of the proposals discussed in the Notice. We have,
however, attempted to reduce the administrative burdens and cost of
compliance for small telecommunications service providers.
140. Reporting, record keeping and other compliance requirements.
The proposals under consideration in this Notice do not include the
reporting and record keeping requirements of telecommunications service
providers.
141. Federal rules which overlap, duplicate, or conflict with this
rule. None.
142. Any significant alternatives minimizing impact on small
entities and consistent with stated objectives. Wherever possible, the
Notice proposes general rules, or alternative rules to reduce the
administrative burden and cost of compliance for small
telecommunications service providers. In addition, the Notice invites
comment on exemptions from the proposed rules for small
telecommunications companies. Finally, the Notice seeks comment on
measures to avoid significant economic impact on small business
entities, as defined by Section 601(3) of the Regulatory Flexibility
Act.
C. Comment Dates
143. We invite comment on the issues and questions set forth above.
Pursuant to applicable procedures set forth in Sections 1.415 and 1.419
of the Commission's Rules,271 interested parties may file comments
on or before April 8, 1996, and reply comments on or before May 3,
1996. Comments and Reply Comments will be limited to 25 pages apiece,
not including appendices of factual material. To file formally in this
proceeding, interested parties must file an original and four copies of
all comments, reply comments, and supporting comments. Interested
parties should send comments and reply comments to Office of the
Secretary, Federal Communications Commission, Washington, D.C. 20554.
Parties must also serve comments on the Federal-State Joint Board in
accordance with the service list. Parties should send one copy of any
documents filed in this docket to the Commission's copy contractor,
International Transcription Service, Room 640, 1990 M Street, N.W.,
Washington, D.C. 20036. Comments and reply comments will be available
for public inspection during regular business hours in the FCC
Reference Center, Room 239, 1919 M Street, N.W., Washington, D.C.
20554.
\271\ 47 CFR 1.415, 1.419.
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144. Parties are also asked to submit comments and reply comments
on diskette. Such diskette submissions would be in addition to and not
a substitute for the formal filing requirements addressed above.
Parties submitting diskettes should submit them to Ernestine Creech,
Common Carrier Bureau, Accounting and Audits Division, 2000 L Street,
N.W., Suite 257, Washington, D.C. 20554. Such a submission should be on
a 3.5 inch diskette formatted in an IBM compatible form using
WordPerfect 5.1 for
[[Page 10521]]
Windows software. The diskette should be submitted in ``read only''
mode. The diskette should be clearly labelled with the party's name,
proceeding, type of pleading (comment or reply comment) and date of
submission. The diskette should be accompanied by a cover letter.
X. Ordering Clauses
145. Accordingly, it is ordered That, pursuant to Sections 1, 4(i),
4(j), and 403, of the Communications Act of 1934, as amended, 47 U.S.C.
151, 154(i), 154(j), and 403, and Sections 101 and 102 of the
Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56 (1996)
(to be codified at 47 U.S.C. 254 and 47 U.S.C. 214(e), respectively),
that notice is hereby given of proposed amendments to Parts 36 and 69
of the Commission's Rules, 47 CFR Parts 36 and 69, as described in this
Notice of Proposed Rulemaking.
146. It is further ordered That, pursuant to Section 410(c) of the
Communications Act of 1934, 47 U.S.C. 410(c), and Sections 101 of the
Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56 (1996)
(to be codified at 47 U.S.C. 254), that the Federal-State Joint Board
on Universal Service be convened.
147. It is further ordered That, pursuant to Section 410(c) of the
Communications Act of 1934, 47 U.S.C. 410(c), and Sections 101 and 102
of the Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56
(1996) (to be codified at 47 U.S.C. 254 and 47 U.S.C. 214(e),
respectively), the proposals set forth in the Notice of Proposed
Rulemaking are hereby referred to the Federal-State Joint Board
established in this proceeding for the preparation of a recommended
decision within nine months from enactment of the Telecommunications
Act of 1996.
148. It is further ordered, pursuant to Section 410(c) of the
Communications Act of 1934, 47 U.S.C. 410(c), and Sections 101 and 102
of the Telecommunications Act of 1996, Public Law 104-104, 110 Stat. 56
(1996) (to be codified at 47 U.S.C. 254 and 47 U.S.C. 214(e),
respectively), that the Honorable Reed E. Hundt, the Honorable Andrew
C. Barrett, the Honorable Susan Ness, the Honorable Julia L. Johnson of
the Florida Public Service Commission, the Honorable Kenneth McClure of
the Missouri Public Service Commission, the Honorable Sharon L. Nelson
of the Washington Utilities and Transportation Commission, and the
Honorable Laska Schoenfelder of the South Dakota Public Utilities
Commission,272 and Martha S. Hogerty,273 Public Counsel for
the State of Missouri are appointed to, and the Honorable Reed E. Hundt
shall serve as Chairman of, the Federal-State Joint Board.
\272\ The National Association of Regulatory Utility
Commissioners (NARUC) nominated Ms. Johnson, Mr. McClure, Ms.
Nelson, and Ms. Schoenfelder to serve on the Federal-State Joint
Board. Letter from James Bradford Ramsay, Deputy Assistant General
Counsel, NARUC, to Mr. William F. Caton, Secretary, Federal
Communications Commission, February 28, 1996.
\273\ Nominated pursuant to 1996 Act sec. 101, Sec. 254(a)(1),
by the National Association of State Utility Consumer Advocates
(NASUCA). Letter from Debra Berlyn, Executive Director, NASUCA, to
The Honorable Reed E. Hundt, Chairman, Federal Communications
Commission, February 26, 1996.
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149. It is further ordered, That a copy of all filings in this
proceeding shall be served on each of the appointees and staff
personnel on the attached service list.
150. It is further ordered That, pursuant to Sections 410(c),
154(i) and 154(j) of the Communications Act of 1934, 47 U.S.C. 410(c),
154(i) and 154(j), and Sections 101 and 102 of the Telecommunications
Act of 1996, Public Law No. 104-104, 110 Stat. 56 (1996) (to be
codified at 47 U.S.C. 254 and 47 U.S.C. 214(e), respectively), the
material described in part III.B. of this Notice of Proposed Rulemaking
and Order Establishing a Joint Board is incorporated into the record in
this proceeding.
151. It is further ordered That, the Secretary shall send a copy of
this notice of proposed rulemaking, including the regulatory
flexibility certification, to the Chief Counsel for Advocacy of the
Small Business Administration, in accordance with paragraph 603(a) of
the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (1981).
List of Subjects
47 CFR Part 36
Communications common carriers, Reporting and recordkeeping
requirements, Telephone, Uniform System of Accounts.
47 CFR Part 69
Communications common carriers, Reporting and recordkeeping
requirements, Telephone.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Attachment: Service List
The Honorable Reed E. Hundt, Chairman, Federal Communications
Commission, 1919 M Street NW.--Room 814, Washington, D.C. 20554
The Honorable Andrew C. Barrett, Commissioner, Federal Communications
Commission, 1919 M Street NW.--Room 826, Washington, D.C. 20554
The Honorable Susan Ness, Commissioner, Federal Communications
Commission, 1919 M Street NW.--Room 832, Washington, D.C. 20554
The Honorable Julia Johnson, Commissioner, Florida Public Service
Commission, Capital Circle Office Center, 2540 Shumard Oak Blvd.,
Tallahassee, FL 32399-0850
The Honorable Kenneth McClure, Vice Chairman, Missouri Public Service
Commission, 301 W. High Street, Suite 530, Jefferson City, MO 65102
The Honorable Sharon L. Nelson, Chairman, Washington Utilities and
Transportation Commission, P.O. Box 47250, Olympia, WA 98504-7250
The Honorable Laska Schoenfelder, Commissioner, South Dakota Public
Utilities Commission, 500 E. Capital Avenue, Pierre, SD 57501
Martha S. Hogerty, Public Counsel for the State of Missouri, P.O. Box
7800, Harry S. Truman Building, Room 250, Jefferson City, MO 65102
Deborah Dupont, Federal Staff Chair, Federal Communications Commission,
2000 L Street NW., Suite 257, Washington, D.C. 20036
Paul E. Pederson, State Staff Chair, Missouri Public Service
Commission, P.O. Box 360, Truman State Office Building, Jefferson City,
MO 65102
Eileen Benner, Idaho Public Utilities Commission, P.O. Box 83720,
Boise, ID 83720-0074
Charles Bolle, South Dakota Public Utilities Commission, State Capital,
500 E. Capital Avenue, Pierre, SD 57501-5070
William Howden, Federal Communications Commission, 2000 L Street NW.,
Suite 812, Washington, D.C. 20036
Lorraine Kenyon, Alaska Public Utilities Commission, 1016 West Sixth
Avenue, Suite 400, Anchorage, AK 99501
Debra M. Kriete, Pennsylvania Public Utilities Commission, P.O. Box
3265, Harrisburg, PA 17105-3265
Clara Kuehn, Federal Communications Commission, 2000 L Street NW.,
Suite 257, Washington, D.C. 20036
Mark Long, Florida Public Service Commission, 2540 Shumard Oak Blvd.,
Gerald Gunter Building, Tallahassee, FL 32399-0850
Samuel Loudenslager, Arkansas Public Service Commission, P.O. Box 400,
Little Rock, AR 72203-0400
Sandra Makeeff, Iowa Utilities Board, Lucas State Office Building, Des
Moines, IA 50319
[[Page 10522]]
Philip McClelland, Pennsylvania Office of Consumer Advocate, 1425
Strawberry Square, Harrisburg, PA 17120
Michael A. McRae, D.C. Office of the People's Counsel, 1133 15th Street
NW.--Suite 500, Washington, D.C. 20005
Rafi Mohammed, Federal Communications Commission, 2000 L Street NW.,
Suite 812, Washington, D.C. 20036
Terry Monroe, New York Public Service Commission, Three Empire Plaza,
Albany, NY 12223
Andrew Mulitz, Federal Communications Commission, 2000 L Street NW.,
Suite 257, Washington, D.C. 20036
Mark Nadel, Federal Communications Commission, 1919 M Street NW., Room
542, Washington, D.C. 20554
Gary Oddi, Federal Communications Commission, 2000 L Street NW., Suite
257, Washington, D.C. 20036
Teresa Pitts, Washington Utilities and Transportation Commission, P.O.
Box 47250, Olympia, WA 98504-7250
Jeanine Poltronieri, Federal Communications Commission, 2000 L Street
NW., Suite 257, Washington, D.C. 20036
James Bradford Ramsay, National Association of Regulatory Utility
Commissioners, 1201 Constitution Avenue NW., Washington, D.C. 20423
Jonathan Reel, Federal Communications Commission, 2000 L Street NW.,
Suite 257, Washington, D.C. 20036
Brian Roberts, California Public Utilities Commission, 505 Van Ness
Avenue, San Francisco, CA 94102-3298
Gary Seigel, Federal Communications Commission, 2000 L Street NW.,
Suite 812, Washington, D.C. 20036
Pamela Szymczak, Federal Communications Commission, 2000 L Street NW.,
Suite 257, Washington, D.C. 20036
Whiting Thayer, Federal Communications Commission, 2000 L Street NW.,
Suite 812, Washington, D.C. 20036
Deborah S. Waldbaum, Colorado Office of Consumer Counsel, 1580 Logan
Street, Suite 610, Denver, Colorado 80203
Alex Belinfante, Federal Communications Commission, 1919 M Street NW.,
Washington, D.C. 20554
Larry Povich, Federal Communications Commission, 1919 M Street NW.,
Washington, D.C. 20554.
[FR Doc. 96-6156 Filed 3-11-96; 4:11 pm]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-6146 Open Video Systems
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10496-10499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6146]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[CS Docket No. 96-46; FCC 96-99]
Open Video Systems
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Notice of Proposed Rulemaking (``NPRM'') requests comment
on issues concerning the implementation of the open video system
provisions of the Telecommunications Act of 1996. The NPRM will assist
the Commission in devising regulations in this area. The NPRM will
provide interested parties an opportunity to submit comments that will
provide the Commission with a sufficient record on which to base
ultimate regulations.
DATES: Interested parties may file comments on or before April 1, 1996
and reply comments on or before April 11, 1996. Written comments by the
public on the proposed and/or modified information collections are due
on or before April 1, 1996. Written comments must be submitted by the
Office of Management and Budget (OMB) on the proposed and/or modified
information collections on or before May 13, 1996.
ADDRESSES: Comments and reply comments should be sent to Office of the
Secretary, Federal Communications Commission, 1919 M Street, N.W., Room
222, Washington, D.C. 20554, with a copy to Larry Walke of the Cables
Services Bureau, 2033 M Street, N.W., Room 408A, Washington, D.C.
20554. Parties should also file one copy of any documents filed in this
docket with the Commission's copy contractor, International
Transcription Services, Inc., 2100 M Street, N.W., Suite 140,
Washington, D.C. 20037. Comments and reply comments will be available
for public inspection during regular business hours in the FCC
Reference Center, 1919 M Street, N.W., Room 239, Washington, D.C.
20554.
In addition to filing comments with the Secretary, a copy of any
comments on the information collections contained herein should be
submitted to Dorothy Conway, Federal Communications Commission, Room
234, 1919 M Street, N.W., Washington, D.C. 20054, or via the Internet
to [email protected], and to Timothy Fain, OMB Desk Officer, 10236 NEOB,
725-17th Street, N.W., Washington, D.C. 20503 or via the Internet to
[email protected].
FOR FURTHER INFORMATION CONTACT: Rick Chessen or Larry Walke, Cable
Services Bureau, (202) 416-0800. For additional information concerning
the information collections contained herein, contact Dorothy Conway at
202-418-0217, or via the Internet at [email protected].
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's NPRM
in CS Docket No. 96-46, FCC No. 96-99, adopted March 11, 1996 and
released March 11, 1996. The full text of this decision is available
for inspection and copying during normal business hours in the FCC
Reference Center (room 239), 1919 M Street, NW., Washington, D.C.
20554, and may be purchased from the Commission's copy contractor,
International Transcription Service, (202) 857-3800, 1919 M Street,
NW., Washington, D.C. 20554.
Paperwork, Reduction Act
This NPRM contains proposed or modified information collections
subject to the Paperwork Reduction Act of 1995 (PRA). It has been
submitted to the OMB for review under Section 3507(d) of the PRA. OMB,
the general public, and other Federal agencies are invited to comment
on the proposed or modified information collections contained in this
proceeding.
OMB Approval Number: None.
Title: Open Video System Operator Notification of Video Programming
Providers.
Type of Review: New Third Party Disclosure.
Respondents: 20. This number is our preliminary estimation of open
video system operators that may exist in the next year.
Number of Responses: 40. We anticipate that each open video system
operator may make two notifications, annually.
Estimated Time Per Response: 8 hours per response.
Total Annual Burden: 320 hours. This is the estimated total annual
burden though this burden will be determined by comments received.
Estimated costs per Respondent: At this stage in the rulemaking
process, it is too preliminary to determine the specific requirements
for the notifications to be made by open video system operators. This
will be determined by comments received. It is possible that
notifications may be required to be made in newspapers or trade
journals. Should this be required, the Commission estimates publication
costs of $1000 per notification. Estimated annual costs per respondent
are therefore $2000 (2 notifications @ $1000 each).
Needs and Uses: This notification will inform video programming
providers that the open video system operator intends to establish an
open video system. This will permit video programming providers to
assess their interest in seeking carriage on such systems.
I. Notice of Proposed Rulemaking
The 1996 Act repeals the Commission's ``video dialtone'' rules and
regulations, which were established to permit telephone companies to
participate in the video marketplace in a manner that was consistent
with the telephone-cable cross-ownership ban. The 1996 Act also repeals
the telephone-cable cross ownership rules imposed by the 1984 Cable
Act, which prohibited telephone companies from providing video
programming directly to subscribers in their telephone service
[[Page 10497]]
area. The general regulatory treatment for video programming services
provided by telephone companies is now set forth in Section 302 of the
1996 Act, which establishes new Sections 651-653 of Title VI of the
Communications Act of 1934 (``Communications Act'').
2. The 1996 Act has adopted a different regulatory approach, and
establishes various options for telephone companies to enter video
programming markets, one of which is providing cable service over an
``open video system'' under new Section 653 of the Communications Act.
Open video systems will be a new service offered by telephone companies
that will contain certain elements of both traditional cable service
and common carriage. In this NPRM, we seek comment on how the
Commission should implement the open video system provisions of the
1996 Act in a way that will promote Congress' goals of flexible market
entry, enhanced competition, streamlined regulation, diversity of
programming choices, investment in infrastructure and technology, and
increased consumer choice. In setting forth questions in the NPRM, we
do not mean to imply that we will find it necessary to adopt rules
addressing each of the issues raised. Rather, these questions are
designed to develop a record that will enable us to determine what
rules, if any, the Commission should adopt.
3. Generally, Section 653 provides that, if a telephone company
certifies that it complies with certain non-discrimination and other
requirements established by the Commission, it's open video system will
not be subject to regulation under Title II and will be entitled to
reduced regulation under Title VI. The 1996 Act provides that the
Commission must act upon a certification request within ten days of
receipt. The 1996 Act also states that the Commission has the authority
to resolve disputes regarding open video systems, but must do so within
180 days. The 1996 Act states that certain Title VI provisions shall
not apply to open video systems, including, leased access obligations,
franchise requirements and fees, cable rate regulation, and consumer
protection and customer service rules.
4. This NPRM solicits comment on a number of relevant issues.
First, new subsection 653(b)(1) of the Communications Act requires the
Commission to prescribe regulations that (1) prohibit an open video
system operator from discriminating among video programming providers
with regard to carriage on the system, and (2) if demand exceeds
capacity, prohibit the system operator and its affiliates from
selecting the programming on more than one-third of the system's
capacity. In order to implement Congress' directive, the NPRM seeks
comment on the best method of implementing this provision. We seek
comment on various issues related to implementing these provisions,
including: (1) permitting open video system operators to allocate
capacity on their system; (2) how much flexibility should be afforded
to system operators in complying with these provisions; (3) a system
operator's notifying video providers of its intent to establish an open
video system; (4) an operator's discretion regarding programming: (5)
how to measure capacity; (6) issues related to the distinction between
analog and digital channels; (7) allocating capacity where demand for
carriage exceeds capacity of the system; and (8) allocating capacity
where the level of demand changes after the initial allocation of
capacity.
5. Second, new subsection 653(b)(1)(A) also requires the Commission
to prescribe rules that will ensure that rates, terms, and conditions
for the carriage of video programming on an open video system meet the
conditions described above. In order to implement this directive, the
NPRM solicits comment on methods for the Commission's enforcement of
rules implementing this statutory provision, including whether the
rates determined under market forces will comport with this statutory
provision. We also seek comment on whether the Commission, if it were
to adopt rules in this area, should permit some measure of
discrimination consistent with the Act.
6. Third, new subsection 653(b)(1)(C) of the Communications Act
requires the Commission to prescribe regulations that permit an open
video system operator ``to carry on only one channel any video
programming service that is offered by more than one video programming
provider, provided that subscribers have ready and immediate access to
any such video programming service.'' In order to carry out this
Congressional mandate, we first tentatively conclude that the open
video system operator may administer channel sharing arrangements
consistent with the Act. In addition, the NPRM solicits comment on
issues relating to this provision, including: (1) the system operator's
designation of another entity to administer channel sharing; (2)
whether the Commission should prescribe any terms and conditions under
which channels may be shared; (3) any technical differences exist
between shared and non-shared channels that may permit system operators
to discriminate among video providers in designating certain channels
as shared; and (4) how to ensure that subscribers have ``ready and
immediate access'' to the shared channels.
7. Fourth, the 1996 Act directs the Commission to prescribe
regulations that extend our regulations concerning sports exclusivity,
network non-duplication, and syndicated exclusivity to the distribution
of video programming over open video systems. In order to implement
Congress' directives, we seek comment on our tentative conclusion that
these existing cable policies and procedures should be extended to open
video systems, and any related issues.
8. Fifth, the 1996 Act directs the Commission to prescribe
regulations that prohibit an open video system operator from
unreasonably discriminating in favor of the operator or its affiliates
with regard to material provided to subscribers for the purposes of
selecting programming on the system, or in the way such material is
presented to subscribers.
In addition, the Commission must require an open video system
operator to ensure that video programming providers or copyright
holders are able to identify their programming services to subscribers.
Finally, the 1996 Act directs that the Commission prescribe regulations
that prohibit an open video system operator from ``omitting television
broadcast or other unaffiliated video programming services carried on
such system from any navigational device, guide or menu.'' In order to
implement Congress' directives, we seek comment on how to implement the
various provisions of this subsection, including: (1) the meaning of
the term ``material or information;'' (2) the meaning of the term
``selecting programming;'' (3) whether the prohibition against omitting
broadcast stations and unaffiliated programmers from any ``navigational
device, guide or menu'' applies to programmers that are not part of the
subscriber's package; and (4) what would constitute proper
identification of programming services.
9. Sixth, the 1996 Act provides that any provision that applies to
cable operators under our PEG access, must-carry and retransmission
consent rules shall apply ``to any [certified] operator of an open
video system.'' It also provides that the Commission shall, to the
extent possible, impose obligations that are no greater or lesser than
the obligations imposed on cable operators. In order to carry out this
Congressional mandate, we solicit comment on issues relating to this
provision, including: (1)
[[Page 10498]]
how PEG obligations should be established given that the 1996 Act does
not require a video system operator to obtain a local franchise; (2)
the treatment of situations where an open video system overlaps several
cable franchise jurisdictions; (3) the general effect of technological
and administrative differences between open video systems and cable
television systems on implementing these provisions. With respect to
program access, the 1996 Act provides that these rules shall apply to
any operator of an open video system. In order to carry out this
Congressional mandate, the Commission should solicit comment on issues
relating to this provision, including: (1) what entity should be
subject to the rules, and (2) applying the program access provisions'
requirement that ``competing distributors'' be involved. We also seek
comment on applying other rules provisions of Title VI of the
Communications Act to open video systems, pursuant to the 1996 Act,
including those concerning ownership restrictions, regulation of
carriage agreements, negative option billing, subscriber privacy, and
equal employment opportunity.
10. Seventh, the 1996 Act provides generally that a local exchange
carrier may provide cable service to its cable service subscribers in
its telephone service area through an open video system, and that, to
the extent permitted by Commission regulations, consistent with the
public interest, convenience, and necessity, an operator of a cable
system or any other person may provide video programming through an
open video system that complies with this section. In order to
implement Congress' directives, we seek comment on: (1) whether this
language means that cable operators and others may or may not become
open video system operators, or may only provide video programming on
others' open video systems the circumstances under which this language
permits cable operators and others to become open video system
operators or programmers; (2) what public interest factors should be
considered in permitting cable operators to either become open video
system operators or provide video programming on open video systems;
and (3) the treatment of the situation where a local exchange carrier
jointly markets or bundles the offering of regulated telephone service
and open video system video programming.
11. Eighth, the 1996 Act provides that an operator of an open video
system shall qualify for reduced regulatory burdens under subsection
653(c) if the operator certifies to the Commission that it complies
with the Commission's regulations under subsection 653(b) and the
Commission approves such certification. The Commission must act on the
certification within 10 days of receiving the certification. In order
to implement Congress' directives, we seek comment on interpreting this
language, including: (1) the approach we should take in establishing
certification procedures, especially in light of this short statutory
review period; and (2) the type of information that an open video
system operator would be required to submit.
12. Ninth, the 1996 Act states that the Commission shall have the
authority to resolve disputes under this section. The Commission must
resolve any such dispute within 180 days, and may, in the case of a
violation, require carriage, award damages, or both. In order to
implement Congress' directives, we seek comment on: (1) whether the
Commission should establish a dispute resolution procedure, such as the
one employed to resolve program access disputes; and (2) in the
alternative, establish more informal procedures which would require or
encourage parties to first try to resolve the dispute without the
Commission's direct involvement.
II. Initial Regulatory Flexibility Analysis
13. Pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C.
601-612, the Commission's Initial Regulatory Flexibility Analysis with
respect to the NPRM is as follows:
14. Reason for action: The Commission is issuing this NPRM to seek
comment on various issues concerning implementation of the open video
system provisions of the 1996 Act.
15. Objectives: To provide an opportunity for public comment and to
provide a record for a Commission decision on the issues discussed in
the NPRM.
16. Legal Basis: The NPRM is adopted pursuant to Section 302 of the
1996 Act; and sections 1, 2, 4(i), 201-205, 215, 220, 303(r), 601-602,
611-616, 621-624, and 625-634 of the Communications Act of 1934, as
amended, 47 U.S.C. 151, 152, 154, 201-205, 215, 220, 303(r), 521-522,
531-536, and 545-554.
17. Description, potential impact, and number of small entities
affected: Amending our rules to, for example, increase the programming
distribution outlets for video programming providers, may directly
impact entities which are small business entities, as defined in
Section 601(3) of the Regulatory Flexibility Act.
18. Reporting, recordkeeping, and other compliance requirements:
None.
19. Federal rules which overlap, duplicate, or conflict with the
Commission's proposal: None.
20. Any significant alternatives minimizing impact on small
entities and consistent with state objectives: The NPRM solicits
comments on implementing the provisions of the 1996 Act concerning
carriage by open video system operators of PEG access channels.
21. Comments are solicited: Written comments are requested on this
Initial Regulatory Flexibility Analysis. These comments must be filed
in accordance with the same filing deadlines set for comments on the
other issues in this NPRM, but they must have a separate and distinct
heading designating them as responses to the Regulatory Flexibility
Analysis. The Secretary shall send a copy of the Notice to the Chief
Counsel for Advocacy of the Small Business Administration in accordance
with Section 603(a) of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq.
III. Initial Paperwork Reduction Act of 1995 Analysis
22. This NPRM contains either a proposed or modified information
collection. As part of our continuing effort to reduce paperwork
burdens, we invite the general public and the Office of Management and
Budget (``OMB'') to take this opportunity to comment on the information
collections contained in this NPRM, as required by the Paperwork
Reduction Act of 1995, Pub. L. No. 104-13. Public and agency comments
are due at the same time as other comments on the NPRM; OMB comments
are due May 13, 1996. Comments should address: (a) whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information
shall have practical utility; (b) the accuracy of the Commission's
burden estimates; (c) ways to enhance the quality, utility, and clarity
of the information collected; and (d) ways to minimize the burden of
the collection of information on the respondents, including the use of
automated collection techniques or other forms of information
technology.
IV. Procedural Provisions
23. Ex parte Rules--Non-Restricted Proceeding. This is a non-
restricted notice and comment rulemaking proceeding. Ex parte
presentations are permitted, except during the Sunshine Agenda period,
provided that they are disclosed as provided in Commission's
[[Page 10499]]
rules. See generally 47 CFR 1.1202, 1.1203, and 1.1206(a).
24. Pursuant to applicable procedures set forth in Sections 1.415
and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested
parties may file comments on or before April 1, 1996, and reply
comments on or before April 11, 1996. We find these periods for the
filing of comments and reply comments to be reasonable in light of the
1996 Act's mandate that the Commission complete all actions necessary
(including any reconsideration) to prescribe certain regulations
concerning open video systems. See Florida Power & Light Co, v. United
States, 846 F.2d 765 (D.C. Cir. 1988) cert. denied, 490 U.S. 1045
(1989). To file formally in this proceeding, you must file an original
and four copies of all comments, reply comments, and supporting
comments. If you want each Commissioner to receive a personal copy of
your comments, you must file an original and nine copies. Comments and
reply comments should be sent to Office of the Secretary, Federal
Communications Commission, 1919 M Street, N.W., Room 222, Washington,
D.C. 20554, with a copy to Larry Walke of the Cables Services Bureau,
2033 M Street, N.W., Room 408A, Washington, D.C. 20554. Parties should
also file one copy of any documents filed in this docket with the
Commission's copy contractor, International Transcription Services,
Inc., 2100 M Street, N.W., Suite 140, Washington, D.C. 20037. Comments
and reply comments will be available for public inspection during
regular business hours in the FCC Reference Center, 1919 M Street,
N.W., Room 239, Washington, D.C. 20554.
25. Parties are also asked to submit comments and reply comments on
diskette. Such diskette submissions would be in addition to and not a
substitute for the formal filing requirements addressed above. Parties
submitting diskettes should submit them to Larry Walke of the Cable
Services Bureau, 2033 M Street, N.W., Room 408A, Washington, D.C.
20554. Such a submission should be on a 3.5 inch diskette formatted in
an IBM compatible form using MS DOS 5.0 and WordPerfect 5.1 software.
The diskette should be submitted in ``read only'' mode. The diskette
should be clearly labelled with the party's name, proceeding, type of
pleading (comment or reply comments) and date of submission. The
diskette should be accompanied by a cover letter.
V. Ordering Clauses
26. It is ordered that, pursuant to Section 302 of the 1996 Act;
and sections 1, 2, 4(i), 201-205, 215, 220, 303(r), 601-602, 611-616,
621-624, and 625-634 of the Communications Act of 1934, as amended, 47
U.S.C. 151, 152, 154, 201-205, 215, 220, 303(r), 521-522, 531-536, and
545-554, Notice is hereby given of proposed amendments to Part 76, in
accordance with the proposals, discussions, and statement of issues in
this NPRM and that comment is sought regarding such proposals,
discussion, and statements of issues.
27. It is further ordered that, the Secretary shall send a copy of
this NPRM, including the IRFA, to the Chief Counsel for Advocacy of the
Small Business Administration in accordance with paragraph 603(a) of
the Regulatory Flexibility Act, Pub. L. No. 96-354, 94 Stat. 1164, 5
U.S.C. 601 et seq. (1981).
28. For additional information regarding this proceeding, contact
Rick Chessen or Larry Walke, Policy & Rules Division, Cable Services
Bureau (202) 416-0800.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
[FR Doc. 96-6146 Filed 3-11-96; 3:40 pm]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 96-6131 Denial of Petition for Rulemaking; Federal Motor Vehicle Safety Standards
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10556-10557]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6131]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety Administration
49 CFR Part 571
Denial of Petition for Rulemaking; Federal Motor Vehicle Safety
Standards
AGENCY: National Highway Traffic Safety Administration (NHTSA),
Department of Transportation.
ACTION: Notice of denial of petition for rulemaking.
-----------------------------------------------------------------------
SUMMARY: This notice denies the petition by Darrin L. Johnson for the
issuance of a mandatory order requiring that all motor vehicles be
equipped with front stop lamps. NHTSA's analysis of the petition
concludes that requiring front stop lamps on all motor vehicles does
not further the cause of reducing the risk of motor vehicles related
fatalities, injuries and accidents. The denial notice concludes that
the likely consequence of implementing such a system will be higher
risk behavior by motorists and pedestrians.
FOR FURTHER INFORMATION CONTACT: Kenneth O. Hardie, Safety Performance
Standards, NHTSA, 400 Seventh Street, SW., Washington, DC 20590. Mr.
Hardie's telephone number is (202) 366-6987.
SUPPLEMENTARY INFORMATION: By letter dated September 19, 1995, Darrin
L. Johnson of North Hollywood, California petitioned the NHTSA to issue
a rule that would mandate the equipping of all motor vehicles with
front ``brake lights.'' The petitioner stated that front ``brake
lights'' will save lives because it is necessary for other drivers and
pedestrians to know the intended maneuvers of a vehicle, from the front
of the vehicle as well as the rear. The petitioner stated that it is
important to know from the front if an approaching driver intends to
decrease his speed and/or is applying the brakes at certain crucial
periods. The petitioner would require the front ``brake lights'' to be
steady burning and red in color. The front ``brake lights'' would light
simultaneously with the rear stop lamps, when the brake is depressed
and/or applied. The petitioner estimates that the cost for the front
``brake light'' system to be as follows:
Production Cost--$35.00
Wholesale Cost--$70.00
Retail Price--$150.00
Analysis of Petition
The petition contains a number of scenarios that suggest that
forward-facing stop signals will reduce the risk of fatalities,
injuries and accidents by minimizing the amount of driver guesswork of
when to maneuver a vehicle into traffic. The petitioner's rationale for
mandating a rule requiring all motor vehicles to be equipped with front
stop lamps is these lamps would communicate an approaching driver's
intent to brake or decrease speed. Presumably, other drivers or
pedestrians would have information on the intent of the approaching
vehicle based upon whether the front stop lamps had been activated. The
observing individual could then act accordingly or maneuver onto
traffic.
The petitioner presents a number of scenarios to support a claim
that front stop lamps will result in a reduction of accidents involving
a vehicle that is attempting to enter traffic from a driveway, street,
or entrance road of a freeway. The petitioner claims that a motorist
would have additional safety information when attempting to enter
traffic by monitoring the front stop lamps of an approaching vehicle.
The petitioner claims that vehicles entering traffic would avoid a
higher percentage of collisions with oncoming vehicles because the
driver attempting to enter traffic would know whether the driver with
the right-of-way was giving up the right-of-way, thus, allowing him/her
to more safely enter traffic. The petitioner claims that this could be
done by observing if the approaching vehicle's front stop lamps were
illuminated, thus, indicating braking or stopping. The assumption of
the petitioner appears to be that an illuminated front stop lamp means
that the approaching driver has relinquished the right-of-way.
It is NHTSA's belief that forward-facing stop lamps might provide
some useful information to drivers, but that a front stop signal might
also produce ambiguity and could lead to dangerous driver or pedestrian
action if it is not interpreted by the viewer in an appropriate manner.
For example, a driver whose vehicle is not slowing down but who taps
the brake pedal as a precaution when approaching an intersection could
find a car pulling out dangerously close in front of him/her, because
the other drivers assumed that the vehicle would be making a turn or
[[Page 10557]]
relinquishing the right-of-way. There are a number of scenarios that
could be hypothesized which could cause false signals to be given to
other drivers. Drivers would need to determine which signals are true
and which are false. There is little time for such behavior during
normal driving. The front stop lamp could encourage drivers to violate
the right-of-way laws that exist in each state.
Consequently, NHTSA is concerned that illuminated front stop lamps
could lure drivers who are attempting to enter traffic into high risk
behavior. This is because the presence of an illuminated front stop
lamp is not assurance that an approaching driver has relinquished the
right-of-way to the merging or entering traffic. Making decisions
regarding when to merge or enter traffic based upon the illumination of
front stop lamps would be risky behavior. NHTSA does not believe that
there will be a net positive benefit from a rule that requires front
stop lamps on all motor vehicles.
In two scenarios involving a motor vehicle and a pedestrian the
petitioner suggested that front stop lamps should be installed on all
motor vehicles because they would provide additional information to a
pedestrian who was preparing to cross the street. The petitioner
claimed that the potential for disaster would be minimized or
eliminated because the pedestrian would be able to determine if it were
safe to enter the street based upon the illumination status of the
front stop lamps. The agency has concluded that the same problem exists
with pedestrians as with motorists evaluating whether to enter traffic
based upon whether front stop lamps are illuminated. The pedestrian
should never presume that drivers of vehicles will respect the right-
of-way of pedestrians.
In accordance with CFR part 552, this completes the agency's review
of the petition. The agency has concluded that front stop lamps do not
have the promise of producing reductions in fatalities, injuries, or
accidents. The agency believes that the likely consequence of requiring
such a system will be higher risk behavior by motorists and
pedestrians. The agency has concluded that there is no reasonable
possibility that the amendment requested by the petitioner would be
issued at the conclusion of a rulemaking proceeding. Accordingly, it
denies the petition submitted by Darrin L. Johnson.
Authority: 49 U.S.C. 30103, 30111, 30162; delegations of
authority at 49 CFR 1.50 and 501.8.
Issued on March 11, 1996.
Barry Felrice,
Associate Administrator for Safety Performance Standards.
[FR Doc. 96-6131 Filed 3-13-96; 8:45 am]
BILLING CODE 4910-59-P
Complete official Federal Register PDF
FR Doc. 96-6130 Safety Performance History of New Drivers
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10548-10556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6130]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 382, 383, 390, and 391
[FHWA Docket No. MC-96-6]
RIN 2125-AD66
Safety Performance History of New Drivers
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
-----------------------------------------------------------------------
SUMMARY: The FHWA proposes to amend its regulations to specify minimum
safety information that new and prospective employers must seek from
former employers during the investigation of a driver's employment
record. This notice of proposed rulemaking (NPRM) also proposes to
increase the period of time for which carriers must record accident
information in the accident register from one to three years. This
proposal is mandated by section 114 of the Hazardous Materials
Transportation Authorization Act of 1994 (HazMat Act). The proposed
rules would ensure that employers would be cognizant of critical
information concerning a driver's prior safety performance, while also
affording the driver the opportunity to review and comment on that
information.
DATES: Comments must be received on or before May 13, 1996.
ADDRESSES: All signed, written comments should refer to the docket
number that appears at the beginning of this document and must be
submitted to the Docket Clerk, Room 4232, Office of the Chief Counsel,
Federal Highway Administration, 400 Seventh Street, SW., Washington, DC
20590. All comments received will be available for examination at the
above address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard or envelope.
FOR FURTHER INFORMATION CONTACT: Ms. Valerie Height, Office of Motor
Carrier Research and Standards, (202) 366-
[[Page 10549]]
1790, or Ms. Grace Reidy, Office of the Chief Counsel, (202) 366-0834,
Federal Highway Administration, Department of Transportation, 400
Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Background
The FHWA is initiating this rulemaking in response to section 114
of the HazMat Act, Public Law 103-311, August 26, 1994, 108 Stat. 1677.
Section 114 directs the FHWA to amend its regulations to require a
motor carrier to request from previous employers specific safety
information when investigating a driver's employment record pursuant to
49 CFR 391.23. The former employers would be required to respond to
such requests within 30 days. The driver would be afforded an
opportunity to review and comment on any information obtained from a
former employer.
Currently, Sec. 391.23(a)(2) of title 49 of the Code of Federal
Regulations (CFR) requires motor carriers to make ``an investigation of
the driver's employment record during the preceding three years,''
without specifying the type of information to be sought. The current
regulation does not require a former employer to respond to the new and
prospective employer's inquiry. For this reason, former employers may
refuse to respond to such requests, and new and prospective employers
are, therefore, unable to obtain important safety information about the
driver.
The FHWA proposes to amend 49 CFR parts 382, 383, 390, and 391 to
incorporate the changes mandated by the HazMat Act. Section 391.23
would be amended to require a motor carrier to obtain, for the
preceding three-year period, information about a driver's accident
record, hours-of- service violations resulting in an out-of-service
order, violations of the prohibitions in subpart B of part 382, and
failure to undertake or complete a rehabilitation program recommended
by a substance abuse professional (SAP) under Sec. 382.605. Former
employers would be required to respond within 30 days to such requests.
Drivers would be afforded an opportunity to review and comment on this
information. Conforming changes would be made to Secs. 383.35(f) and
391.21(d) to reflect the driver applicant's right to review and comment
on information obtained from previous employers. To facilitate
information exchange, Sec. 390.15 would be amended to expand the time
period for which carriers must record and retain accident information
in an accident register from one to three years and require that the
information in the accident register be provided to a subsequent
employer in response to a request made during an employment
investigation.
Part 382 would also be amended to incorporate the drug and alcohol
provisions of section 114 of the HazMat Act. Consistent with
Sec. 391.23(c), Sec. 382.413 would be amended to require employers to
investigate whether a driver failed to undertake or complete
rehabilitation or violated the prohibitions in subpart B of part 382.
Employers subject to part 382 would also be required to obtain
information concerning whether a driver violated the drug and alcohol
rules of other DOT agencies as well as the prohibitions in subpart B of
part 382. Other conforming changes are proposed for part 382 that do
not affect Sec. 391.23(c) and are discussed in greater detail under the
section entitled ``Conforming Changes to Part 382.''
Applicability
Motor carriers subject to part 391 would be required to investigate
the specific safety information proposed for Sec. 391.23(c). They would
be required to obtain information relative to a driver's accident
experience and hours-of-service violations from all of the driver's
motor carrier employers during the preceding three years. These motor
carriers would also be required to request certain drug and alcohol
information from employers that employed the driver to operate a
commercial motor vehicle (CMV) requiring a commercial driver's license
(CDL) under part 383 concerning events that occurred during the
preceding three years. The source of the Sec. 391.23(c) drug and
alcohol information has been limited to motor carriers because, under
this part, the FHWA only has authority to require a response from these
employers. New and prospective employers would only be required to
investigate the drug and alcohol information for drivers who operated a
CMV requiring a CDL within the preceding three years because only these
drivers are subject to the part 382 drug and alcohol testing program.
Under Sec. 391.23, motor carriers may request general employment
information from any employer who hired the driver within the preceding
three years. The FHWA proposes to require that new and prospective
employers request the safety information required under section 114 of
the HazMat Act only of previous employers that are motor carriers.
Although section 114 states that the requests for the safety
information must be made to ``former employers,'' only motor carriers
and persons who operate CMVs must comply with the requirements of 49
CFR Part 391. Thus, the proposed inquiry requirements of 49 CFR 391.23
would only apply to former employers that are (or were) motor carriers.
Section 114(a)(2) of the HazMat Act requires former employers to
respond within 30 days to requests for safety information on a driver.
Section 391.23(c) requires the motor carrier to make this investigation
within 30 days of hiring the driver. To avoid prolonging the employment
investigation process to 60 days (up to 30 days for the motor carrier
to initiate the investigation plus up to 30 days for former employers
to respond), the FHWA proposes to clarify Sec. 391.23(c) to require a
motor carrier to commence the investigation as soon as possible, but
not later than 30 days after hiring the driver. Section 391.23(c)(2) is
added to require former employers to provide the information in
Sec. 391.23(c) within 30 days of receiving the request. The former
employer's 30-day response period commences from the postmarked date on
a mailed request, the date of transmission on a facsimile request, or
the date that the former employer was contacted for a personal or
telephone interview. The 30-day period refers to calendar days and
includes weekends and holidays. The 30-day response period concludes as
of the date of postmark on a mailed response, date of transmission on a
facsimile response, or the date that the former employer provides the
information in a personal or telephone interview.
Under these proposed regulations, the driver would be given a
reasonable opportunity to review and comment on any information
obtained during the overall employment investigation. The motor carrier
would be required to notify the driver applicant of such right when
applying for employment.
The items of information proposed in Sec. 391.23(c) are minimum
safety indicators that would be investigated under Sec. 391.23, in
addition to general employment information. The specified information
should not necessarily be regarded as an exclusive list of the
information that would be obtained during the driver's employment
record investigation. Employers would be allowed to continue to
investigate, generally, an applicant's employment record. Employers who
are subject to part 382 would also be required to obtain the
information required by that part (See the section entitled
[[Page 10550]]
``Conforming Amendments to Part 382'').
Specific Minimum Safety Information To Be Sought When Investigating
the Driver's Employment Record Under Sec. 391.23
Under Sec. 391.23, motor carriers would be required to request the
following safety information from a motor carrier employer who, within
the preceding three years, hired the driver to operate a CMV:
1. Accidents (as defined in Sec. 390.5) in which the driver was
involved during the past three years; and
2. Hours-of-service violations that resulted in an out-of-service
order being issued to the driver during the past three years.
Motor carriers would also be required to request information
regarding the following safety violations from an employer who, within
the preceding three years, hired the driver to operate a CMV requiring
a CDL under part 383:
3. Failure of the driver to undertake or complete a rehabilitation
program prescribed by a substance abuse professional pursuant to
Sec. 382.605 during the past three years; and
4. Violations of the prohibitions in subpart B of part 382 during
the past three years.
A discussion of each of the minimum safety indicators follows.
Accidents
The FHWA proposes to require new and prospective employers to
investigate accidents occurring within the preceding three years
involving a driver applicant. An accident is defined in Sec. 390.5 as
follows:
[A]n occurrence involving a commercial motor vehicle operating on a
public road in interstate or intrastate commerce which results in--
(i) A fatality;
(ii) Bodily injury to a person who, as a result of the injury,
immediately receives medical treatment away from the scene of the
accident; or
(iii) One or more motor vehicles incurring disabling damage as a
result of the accident, requiring the motor vehicle to be transported
away from the scene by a tow truck or other motor vehicle.
Section 390.5 provides that the definition of an accident does not
include the following:
(i) An occurrence involving only boarding and alighting from a
stationary motor vehicle; or
(ii) An occurrence involving only the loading or unloading of
cargo; or
(iii) An occurrence in the course of the operation of a passenger
car or a multipurpose passenger vehicle (as defined in 49 CFR 571.3 of
this title) by a motor carrier and is not transporting passengers for
hire or hazardous materials of a type and quantity that require the
motor vehicle to be marked or placarded in accordance with 49 CFR
177.823 of this title.
``Disabling damage'' is defined in Sec. 390.5 as ``damage which
precludes departure of a motor vehicle from the scene of the accident
in its usual manner in daylight after simple repairs.'' This includes
``damage to motor vehicles that could have been driven but would have
been further damaged if so driven.'' However, Sec. 390.5 provides that
disabling damage does not include--
(i) Damage which can be remedied temporarily at the scene of the
accident without special tools or parts.
(ii) Tire disablement without other damage even if no spare tire is
available.
(iii) Headlamp or taillight damage.
(iv) Damage to turn signals, horn, or windshield wipers which makes
them inoperative.
The FHWA proposes that only accidents, as defined in Sec. 390.5, be
investigated instead of ``any motor vehicle accidents'' as stated in
the HazMat Act for the following reasons. First, the FMCSR's definition
of ``accident'' contained in 49 CFR 390.5 is not as all inclusive as
``any motor vehicle accident''; and the FMCSR's definitions apply to
part 391. Section 390.15 already requires motor carriers to retain a
record of ``accidents'' as defined in Sec. 390.5. Broadening the term
``accident'' to include occurrences beyond those described in
Sec. 390.5 would make its definition inconsistent with the National
Governors' Association (NGA) definition and would, therefore, skew the
data contained in the SAFETYNET System. Such action could also
significantly increase the paperwork burden placed upon the motor
carrier industry. The FHWA published a final rule on February 2, 1993,
in the Federal Register (58 FR 6729) which incorporated into the FMCSRs
the accident definition recommended in the NGA study entitled, ``Truck
and Bus Accidents: Getting the Facts'' (1990). In that final rule, the
FHWA eliminated the requirements that motor carriers submit accident
reports to the FHWA and notify the agency telephonically of fatal
accidents, adopted a new accident reporting system (SAFETYNET Accident
Module) which collects information from police accident reports and
incorporates the NGA accident reporting data elements, and required
motor carriers to maintain a register of accidents for a period of one
year after the accident occurs. Each of the actions put into effect by
the February 2, 1993, final rule is based upon the uniform definition
of the term ``accident.'' Therefore, the FHWA proposes to restrict the
accidents investigated under Sec. 391.23(c)(1)(i) to those accidents
defined in Sec. 390.5 so that (1) the relationship between the
definition of an accident and the actions accomplished by the February
2, 1993, final rule is maintained and (2) motor carrier employers may
comply with the HazMat Act requirements without undue burden or
confusion.
To facilitate implementation of the accident information
requirements, the FHWA also proposes to broaden the use of the accident
register. Currently, the accident register may be used to assist
investigations and special studies conducted by representatives or
special agents of the FHWA. The FHWA proposes to encourage motor
carriers also to use it when responding to a new or prospective
employer's request for information about a driver applicant's accident
record.
The FHWA proposes to extend the period of time that the register
must be retained from one to three years. Extending the retention
period to three years would enable a motor carrier employing a driver
for three or more years to provide an accident history to a subsequent
employer for the entire period required by the proposed rule.
This proposal to require inquiries of former employers would not
set aside the motor carrier's responsibility to investigate a driver's
driving record under Sec. 391.23(a)(1). Motor carriers are still
required to inquire about a driver's driving record from the
appropriate State agency in accordance with Sec. 391.23(a)(1). Accident
information obtained from previous employers would supplement any
information from State agencies and, therefore, provide a more
comprehensive safety profile of the driver.
Hours-of-Service Violations Resulting in an Out-of-Service Order
The FHWA considers a driver's hours-of-service violations to be a
major safety indicator. The FHWA would require this information to be
included in the employment investigation under the authority in section
114(b)(4) of the HazMat Act that authorizes ``any other matters
determined by the Secretary of Transportation to be appropriate and
useful for determining the driver's safety performance,'' to be a part
of the investigation. Drivers who violate the hours-of-service rules
often have insufficient rest to safely operate a CMV. The fatigue and
loss of alertness
[[Page 10551]]
resulting from insufficient rest may place them and other highway users
at higher risk. This information, therefore, will help new and
prospective employers identify potentially unsafe drivers.
Failure to Undertake or Complete Drug or Alcohol Rehabilitation
The FHWA proposes to amend Sec. 391.23 so that motor carriers would
be required to investigate whether, within the preceding three years, a
driver failed to undertake or complete a rehabilitation program
pursuant to 49 U.S.C. 31306 after having been found to have used drugs
or alcohol in violation of law or Federal regulation. (Section
114(b)(2) of the HazMat Act incorrectly references 49 U.S.C. 31302 in
addressing this issue; the drafters of the Act clearly intended to
reference the rehabilitation program under section 31306. This
intention is evidenced by earlier versions of Senate Bill 1640 that
relate the rehabilitation program to section 12020 of the Commercial
Motor Vehicle Safety Act of 1986.)
Under 49 U.S.C. 31306, the Secretary of Transportation is directed
to ``prescribe regulations establishing requirements for rehabilitation
programs that provide for the identification and opportunity for
treatment of operators of commercial motor vehicles who are found to
have used alcohol or a controlled substance in violation of law or a
Government regulation.'' The regulations implementing the
rehabilitation requirements of section 31306 appear in 49 CFR 382.605
and apply generally to drivers of CMVs with a gross vehicle weight
rating (GVWR) in excess of 26,000 lbs., vehicles transporting hazardous
materials which are required to be placarded, or vehicles designed to
transport more than 15 passengers, including the driver. Part 382
contains alcohol and drug rules pertaining to motor carriers and
provides procedures and regulations for referring drivers who violate
its prohibitions to a SAP, to determine what, if any, rehabilitation
programs are needed to resolve problems associated with alcohol misuse
and substance abuse. Section 382.501(b) also prohibits an employer from
using a driver who was found to have illegally used drugs or alcohol in
a safety-sensitive function until that driver has received the
recommended treatment.
The amendments proposed under Sec. 391.23(c)(1)(iii) and (iv) would
better enable a motor carrier that operates CMVs with a GVWR between
10,000 and 26,000 lbs. in interstate commerce to comply with
Sec. 382.501(b). Although such an employer is not subject to the entire
part 382, he or she may not use a driver in safety-sensitive functions,
including driving a CMV, if that driver has been found to have
illegally used drugs or alcohol until that driver has received the
recommended treatment. Section 391.23(c)(1)(iv) would require a motor
carrier to investigate whether a driver had illegally used drugs or
alcohol within the previous three years. Section 391.23(c)(1)(iii)
would require a motor carrier to determine whether a driver had failed
to undertake or complete recommended treatment after having been found
to have illegally used drugs or alcohol. This information would assist
the motor carrier that is not subject to part 382 in determining
whether a driver was qualified to operate a CMV.
Determining whether a driver completed rehabilitation may not
always be a straightforward process. Section 382.605(b) requires
employers to refer CDL holders violating the prohibitions of part 382
to a SAP. The SAP must determine what, if any, assistance the driver
needs in resolving problems associated with controlled substance use
and alcohol misuse. If a SAP refers a driver to a rehabilitation
program, the employer may not use that driver in a safety-sensitive
function until assured that the driver has complied with the treatment
recommended by the SAP. The employer is required to maintain records
pertaining to a SAP's determination concerning a driver's need for
assistance and records concerning a driver's compliance with the SAP's
recommendations. Even if a SAP does not refer a driver to a
rehabilitation program, the employer is still required to maintain a
record of the SAP's evaluation.
However, if a driver quits working for the employer before seeing a
SAP or undertaking or completing rehabilitation, that employer is not
required to ensure that the driver completes the SAP reference and
evaluation process. An employer is only prohibited from using the
driver in a safety-sensitive function until the driver complies with a
SAP's recommendations. If the driver terminates employment before the
SAP evaluation or rehabilitation, the employer may not know if
rehabilitation was undertaken, completed or even recommended. A new or
prospective employer would also have no evidence that the driver
complied with the SAP's recommendations.
Therefore, to comply with this requirement, a new employer would
have to investigate whether (1) the driver was ever referred to a SAP,
(2) the SAP referred the driver to a rehabilitation program, and (3) a
SAP's evaluation certified the driver was qualified to return to duty.
Violations of the Prohibitions in Subpart B of Part 382
Section 114(b)(3) of the HazMat Act mandates the investigation of
``any use by the driver, during the preceding 3 years, in violation of
law or Federal regulation, of alcohol or a controlled substance
subsequent to completing such a rehabilitation program.'' This mandate
requires that a motor carrier determine whether a driver continued to
abuse alcohol and/or a controlled substance subsequent to treatment for
such abuse. Section 114(b)(4) authorizes the Secretary to include in
the required information other matters that are appropriate and useful
to determine a driver's safety record. In conjunction with section
114(b)(3), the FHWA proposes to execute the authority granted in
section 114(b)(4) to clarify and enhance the substance abuse safety
information requirement.
Under Sec. 391.23, the FHWA proposes to require that only
violations of the prohibitions listed in 49 CFR Part 382, subpart B, be
required as reportable violations of ``law or Federal regulation, of
alcohol or a controlled substance,'' pursuant to section 114(b)(3). It
is impractical for the FHWA to enforce a rule requiring a motor carrier
to investigate all illegal uses of drugs and alcohol. The statutory
language, ``in violation of law or Federal regulation,'' is broad and
includes drug and alcohol use in violation of State, Federal, or local
law or Federal regulation. A previous employer may have knowledge of
whether a driver used drugs or alcohol ``in violation of law or Federal
regulation,'' but, under this part, the FHWA could only require
employers subject to its regulations to provide it. Most employers may
not willingly respond to such requests for fear of a lawsuit by the
driver.
It is more feasible to clarify the term, ``in violation of law or
Federal regulation,'' to mean violations of the prohibitions in subpart
B of part 382. Subpart B contains drug and alcohol regulations that
pertain to CMV operators. Transmission of the required information will
be aided by the fact that employers subject to part 383 already
maintain a record of a driver's violations under part 382.
The FHWA also proposes to utilize the section 114(b)(4) authority
to require that all part 382, subpart B, violations occurring within
the previous three years be transmitted to the inquiring motor carrier
from the previous
[[Page 10552]]
employer. This requirement expands the provision that required
violations occurring subsequent to rehabilitation be transmitted to the
motor carrier requesting the information. The FHWA believes that a
three-year period, as specified in section 114(b) for other required
information, is in accordance with the intent of the HazMat Act to
grant new and prospective employers sufficient knowledge about safety
histories of drivers.
Extending the reporting period to three years is also efficient
because it may be difficult to determine when rehabilitation was
completed. Many times when a driver is found to have illegally used
drugs or alcohol, an employer provides the driver a list of SAPs,
terminates the driver's employment, and makes a record of the referral.
In this case, the employer would not know whether rehabilitation was
recommended or completed, nor is he or she required to know. Thus, it
could be very difficult, if not impossible, for a new or prospective
employer to ascertain when rehabilitation was recommended or completed.
Removing the ``after rehabilitation'' limitation would satisfy the
intent of the HazMat Act within the authority granted FHWA and enable
motor carriers to more easily implement the requirement. A new or
prospective employer would only be required to know whether, during the
past three years, the driver operated a CMV requiring a CDL under part
383, to determine whether this information must be obtained. If so, the
motor carrier would be required to seek the information only from
employers that hired the driver to operate a CMV requiring a CDL under
part 383 during the past three years.
The Driver's Written Consent for Drug or Alcohol Information
Part 382 requires that drug and alcohol information pertaining to a
driver be released pursuant to the terms of the driver's written
consent. For this reason, the FHWA proposes to add Sec. 391.23(e) to
similarly require employers to request the drug and alcohol information
pursuant to the driver's written consent. Thus, employers could avoid
processing delays caused when the request is not accompanied by the
driver's written authorization.
Driver's Right to Review and Comment on Information
The motor carrier must allow the driver a reasonable opportunity to
review and comment on any safety information obtained. This proposal
does not define ``a reasonable opportunity'' but proposes to leave this
to the motor carrier's discretion. We invite public comment on whether
it is necessary for the FHWA to define what constitutes ``reasonable
opportunity'' and include a specific time frame for compliance.
The driver's right to review and comment on the information is
clearly established by section 114(a)(3) of the HazMat Act. The FHWA
believes that the motor carrier should inform the driver of this right
when the application for employment is completed. The driver's
comments, if any, could be made orally or in writing. However, the
motor carrier is not responsible for correcting any information
obtained. The driver should contact the former employer to settle
disputes over allegedly incorrect information.
Conforming Amendments to Part 382
Because much of the information mandated by section 114 of the
HazMat Act is similar to information currently shared by employers
under part 382, conforming changes are being proposed for Secs. 382.405
and 382.413 to ensure consistency with the HazMat Act. Accordingly,
Sec. 382.413 would be amended to require an employer to seek
information from former employers regarding (1) a driver's failure,
during the preceding three years, to undertake or complete a
rehabilitation program after being found to have violated alcohol or
controlled substances laws or regulations, and (2) any use by the
driver, during the preceding three years, of alcohol or a controlled
substance in violation of 49 CFR Part 382, subpart B or the rules of
other DOT agencies. The congressional mandate in the HazMat Act
requires that this information be released by former employers within
30 days, and that the driver to whom the information applies would have
a reasonable opportunity to review and comment on the information.
Section 382.413, as currently written, requires much of the same
information to be shared between new and prospective employers and
former employers as proposed in this action. Section 382.413 requires
the sharing of information on certain violations of part 382: positive
drug test results, alcohol results of 0.04 alcohol concentration or
greater, and refusals to be tested. Section 114(b)(3) of the HazMat Act
is both broader and narrower than part 382's requirements since section
114(b)(3) mandates the sharing of information on all prohibited uses of
drugs and alcohol by drivers, but limits the inquiry to those
violations that occurred after completing rehabilitation. Section
382.413(a) would be revised to include all violations of subpart B by a
driver, not just testing violations. In addition, based on the
authority granted by section 114(b)(4) of the HazMat Act, which
empowers the Secretary to include other matters ``appropriate and
useful for determining a driver's safety performance'', such violations
would continue to include, but not be limited to, those occurring after
rehabilitation. The FHWA believes that all violations of the
prohibitions in part 382 are important indicators of the driver's
safety performance.
The information required by section 114(b)(2) of the HazMat Act
relative to a driver's failure to complete rehabilitation (already
required implicitly by Sec. 382.413(g)) which must be obtained before a
violator may be permitted to return to driving would be listed as a
separate item in Sec. 382.413(a)(1)(ii).
It should be noted that the records required to be obtained under
Sec. 382.413 would be limited only to those records generated under
part 382 and the alcohol and drug testing rules of other DOT agencies
after January 1, 1995. Interstate motor carriers must maintain their
records, generated under part 391, for the periods of time specified in
Sec. 382.401. Because of the significant difference between the testing
programs in parts 382 and 391, the FHWA would not require new or
prospective employers to obtain the information maintained by former
employers prior to January 1, 1995, for large employers, and January 1,
1996, for small employers. See Sec. 382.413(i).
Other amendments are necessary to conform 49 CFR part 382 to the
HazMat Act. First, Sec. 382.413(a)(1)(i) would extend the period of
shared information from two to three years. Second, Sec. 382.413(h)
would afford drivers a reasonable opportunity to review and comment on
any information obtained by new or prospective employers under
Sec. 382.413(a)(1). Third, Sec. 382.405(f) would allow former employers
30 days to respond to requests for information. The amendment to
Sec. 382.405(f) recognizes that a great majority of requests for
testing information from former employers will occur pursuant to
Sec. 382.413. There is no reason for two standards for response
periods. The 30-day response period provided in the HazMat Act for
information requests to former employers would be made a general
standard in Sec. 382.405(f), thus applying to all requests for drug and
alcohol testing information from employers. Of course, employers may
only disclose a driver's drug and alcohol
[[Page 10553]]
records under part 382 pursuant to the driver's written consent.
The current 14-day limit for new employers to obtain the
information after first using a driver, when not feasible to do so
before using the driver, would be extended to 30 days. Employers would
be required to request the information from former employers as soon as
the employer expects to use or hire the driver to drive or perform
other safety-sensitive functions. The 30-day period should be
sufficient to accommodate information requests and responses made by
mail. Although there is no requirement that the inquiries and responses
be processed by mail, the prudent employer may wish to employ the
faster and confidential communication methods authorized in
Sec. 382.413(e) to meet the 30-day time limit requirement.
Part 382 would continue to require, if feasible, the employer to
obtain the information prior to the first performance of safety-
sensitive functions by a driver. If obtaining the information prior to
the driver's first performance of safety-sensitive functions for the
employer is not feasible, the information would have to be obtained as
soon as possible, but no more than 30 days after first using the driver
to perform safety-sensitive functions.
Beyond incorporating the HazMat Act requirements into part 382, the
source of the violations enumerated in Sec. 382.413 would also be
amended to include all DOT agencies'' alcohol and controlled substances
regulations. The FHWA believes that some drivers may apply for
positions that require driving CMVs after they have violated the
alcohol or drug use prohibitions of another DOT agency. The FHWA has,
therefore, included a requirement that employers request information
from all past employers for which a driver worked in a position covered
by the alcohol and/or drug prohibitions and testing requirements of
another DOT agency. This would ensure that persons applying for
positions that require operating a CMV would have all of their relevant
records of violations investigated. It would also ensure that persons
who test positive are evaluated by a SAP, and, before returning to
perform safety-sensitive functions, complete a recommended
rehabilitation program.
Section 382.413(a)(2) was incorporated into the FMCSRs by a final
rule published in the Federal Register on March 8, 1996, (61 FR 9546).
That action allows previous employers to include information obtained
from other previous employers when responding to requests for a
driver's drug and alcohol information under Sec. 382.413(a)(1), as long
as that information falls within the previous two- year period. Because
the March 8, 1996, final rule was a technical amendment, the FHWA was
unable to mandate the requirements now proposed in Sec. 382.413(a)(2).
Such an action would have made a substantive change to the regulations
requiring public notice before becoming a final rule. This notice
proposes to mandate the requirements proposed in Sec. 382.413(a)(2) in
accordance with the intent of section 114(b) of the HazMat Act by
changing the word ``may'' to ``shall.''
New and prospective employers should ensure that the driver's
written consent authorizes former employers to disclose all
prohibitions listed under Sec. 382.413(a)(1), that occurred within the
previous three years, of which the former employer has knowledge.
Otherwise, a former employer may be prohibited by Sec. 382.405(f) from
passing along to the inquiring employer any Sec. 382.413(a)(1)
information that was obtained from another previous employer. Section
382.405(f) states that records under part 382 may only be released to a
subsequent employer upon receipt of written authorization from a
driver. Disclosure of the part 382 records by the subsequent employer
is also permitted only as expressly authorized by the terms of the
driver's signed authorization. If the driver's authorization had
prohibited the subsequent employer from disclosing the information,
sharing that information with the inquiring employer would be in
violation of Sec. 382.405(f).
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable. In addition to late comments, the
FHWA will also continue to file in the docket relevant information that
becomes available after the comment closing date. Interested persons
should continue to examine the docket for new material. Nevertheless,
the FHWA may issue a final rule on this matter at any time after the
close of the comment period.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not constitute a
significant regulatory action for the purposes of Executive Order 12866
or a significant regulation under the regulatory policies and
procedures of the DOT. These proposed changes to the Federal Motor
Carrier Safety Regulations would not cause an annual impact on the
economy of over $1 million, and they would not adversely affect a
sector of the economy in a material way. These changes would not create
an inconsistency or otherwise interfere with another agency's actions,
nor do they raise novel legal or policy issues. These changes merely
implement a recently enacted legislative mandate directing the FHWA to
amend its regulations to require a motor carrier to request from
previous employers specific safety information when investigating a
driver's employment record pursuant to 49 CFR 391.23. Motor carriers
are already required by section 391.23(a)(2) to make ``an investigation
of the driver's employment record during the preceding three years.''
These proposed changes merely specify the types of information to be
sought, increase the period of time for which carriers must record
accident information from one to three years, direct former employers
to respond to information requests within thirty days, and require that
drivers be afforded an opportunity to review and comment on any
information obtained from a former employer. Thus, in light of this
analysis, especially the finding that the economic impact of this
action is likely to be minimal, the FHWA has determined that a full
regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. It is anticipated that the economic impact of this rulemaking
on all employers, regardless of size, will be minimal. This NPRM
proposes to set forth minimum safety information that new and
prospective employers would request when investigating a driver
applicant's employment record. Employers are already required to
maintain this safety information. These amendments would clarify
existing requirements and would impose only a minor additional
requirement on employers to record and retain accident information for
three years instead of one. Accordingly, the
[[Page 10554]]
FHWA certifies that under the criteria of the Regulatory Flexibility
Act this action will not have a significant economic impact on a
substantial number of small entities.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that these proposed changes would not preempt any State law or State
regulation, and no additional costs or burdens would be imposed on the
States. In addition, these changes would have no effect on the States'
ability to discharge traditional State governmental functions. Motor
carrier safety is a matter of national concern to which Congress has
responded by enacting section 114 of the HazMat Act which directs the
FHWA to amend its regulations to specify the safety information a motor
carrier must request from a driver's former employers. Thus, in light
of the importance to the nation as a whole of ensuring that motor
carrier vehicles are operated by safety conscious drivers, this Federal
action regarding the safety performance history of drivers is justified
and does not have sufficient federalism implications to warrant the
preparation of a federalism assessment.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Paperwork Reduction Act
This action would impact existing collection of information
requirements for purposes of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501--3520). It would affect the period of retention for an
existing accident record keeping requirement, extend the period of
inquiry relating to a driver's alcohol and controlled substance
history, and require additional information relating to a driver's
employment investigation under Sec. 391.23 to be retained in the
driver's qualification file. Because of these changes, existing Office
of Management and Budget (OMB) approvals are being revised.
Motor carriers are required under 49 CFR 390.15 to maintain and
retain an accident register for a period of one year. That requirement
was approved by the OMB under control number 2125-0526. This NPRM
proposes to extend the period for which the accident register must be
retained from one to three years under the previous OMB authority.
Extending the retention period would enable motor carriers to satisfy,
with an existing resource, the accident reporting requirements of
section 114(b) of the HazMat Act for the full three-year period. The
information collection requirements imposed by this proposed amendment
have been submitted to the OMB under OMB Control Number 2125-0526 for
approval under the Paperwork Reduction Act.
Section 391.23(c) proposes to require motor carriers to request
from previous employers information about a driver's accidents, illegal
drug and alcohol use, failure to complete recommended treatment for
such abuse, and certain hours of service violations. Currently, motor
carriers are only required to request general employment information
from the previous employer. The amendments proposed in Sec. 391.23(c)
are mandated by Congress and would ensure that employers are cognizant
of critical information concerning a driver's safety performance. The
information collection requirements imposed by these proposed
amendments have been submitted to the OMB under OMB Control Number
2125-0065 for approval under the Paperwork Reduction Act.
Similarly, employers of both interstate and intrastate drivers that
must hold commercial drivers licenses are required, under 49 CFR
382.413, to seek testing information from previous employers for only
the preceding two years. OMB approval for that requirement was granted
under control number 2125-0543. This NPRM would require all motor
carriers to request three years of drug and alcohol testing information
on new drivers who operate in interstate commerce. Therefore, employers
subject to 49 CFR 382.413 would be required to seek drug and alcohol
information about a driver for the previous three years instead of two.
Additionally, not just testing information would be requested from
former employers. Employers would be required to obtain information
about violations of the prohibitions of subpart B of part 382 or the
drug and alcohol rules of another DOT agency or a driver's failure to
undertake or complete recommended treatment. These conforming
amendments are mandated by section 114 of the HazMat Act. The
information collection requirements imposed by these proposed
amendments have been submitted to the OMB under OMB Control Number
2125-0543 for approval under the Paperwork Reduction Act. The FHWA
requests public comment on these new and revised paperwork collection
requirements.
National Environmental Policy Act
This agency has analyzed this proposed action for the purpose of
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.)
and has determined that it would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulatory identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR 382, 383, 390, and 391
Alcohol concentration, Alcohol testing, Commercial motor vehicles,
Controlled substances testing, Drivers, Driver qualifications, Highway
safety, Highways and roads, Hours of Service, Intermodal
transportation, Motor carriers, Motor vehicle safety, Reporting and
recordkeeping requirements, Safety, Transportation.
Issued on: March 6, 1996.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, CFR, subtitle B, chapter III, parts 382, 383, 390, and 391 as set
forth below:
PART 382--[AMENDED]
1. The authority citation for 49 CFR part 382 is revised to read as
follows:
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec.
114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.
2. In Sec. 382.405, paragraph (f) is revised to read as follows:
Sec. 382.405 Access to facilities and records.
* * * * *
(f) Records shall be made available, within 30 days, to a
subsequent employer upon receipt of written authorization from a
driver. Disclosure by the subsequent employer is permitted only as
expressly authorized by the terms of the driver's signed authorization.
* * * * *
3. Section 382.413 is revised to read as follows:
[[Page 10555]]
Sec. 382.413 Inquiries for alcohol and controlled substances
information from previous employers.
(a) (1) An employer, including a prospective employer, shall,
pursuant to the driver's written authorization, inquire about the
following information relating to the driver from the driver's previous
employers:
(i) Violations of the prohibitions contained in subpart B of this
part, or the alcohol or controlled substances rules of other DOT
agencies, during the past three years; and
(ii) Failure to undertake or complete a rehabilitation program
prescribed by a substance abuse professional pursuant to Sec. 382.605,
or the alcohol or controlled substances rules of another DOT agency,
during the past three years.
(2) The information obtained from a previous employer must contain
any alcohol and drug information the previous employer obtained from
other previous employers under paragraph (a)(1) of this section.
(b) If feasible, the information in paragraph (a) of this section
must be obtained and reviewed by the employer prior to the first time
the driver performs safety-sensitive functions for the employer. If not
feasible, the information must be obtained and reviewed as soon as
possible, but no later than 30 calendar days after the first time a
driver performs safety-sensitive functions for the employer. An
employer shall not permit a driver to perform safety-sensitive
functions after 30 days without having made a good faith effort to
obtain the information as soon as possible. If a driver hired or used
by the employer ceases performing safety-sensitive functions for the
employer before expiration of the 30-day period or before the employer
has obtained the information in paragraph (a) of this section, the
employer must still make a good faith effort to obtain the information.
(c) An employer shall maintain a written, confidential record of
the information obtained under paragraph (a) or (f) of this section.
If, after making a good faith effort, an employer is unable to obtain
the information from a previous employer, a record shall be made of the
efforts to obtain the information and retained in the driver's
qualification file.
(d) The new/prospective employer must provide to each of the
driver's previous employers the driver's specific, written
authorization for release of the information in paragraph (a) of this
section.
(e) The release of any information under this section may take the
form of personal interviews, telephone interviews, letters, or any
other method of transmitting information that ensures confidentiality.
The written authorization for release of this information may be
transmitted to the previous employer by any method that ensures
confidentiality.
(f) The information in paragraph (a) of this section may be
provided directly to the prospective employer by the driver, provided
the employer assures itself that the information is true and accurate.
(g) An employer may not use a driver to perform safety-sensitive
functions if the employer obtains information on a violation of the
prohibitions in subpart B of this part by the driver, without obtaining
information on subsequent compliance with the referral and
rehabilitation requirements of Sec. 382.605 of this part.
(h) An employer shall afford the driver a reasonable opportunity to
review and comment on any information obtained by the employer under
paragraph (a) of this section. The employer shall notify the driver of
this provision at the time of application for employment.
(i) Employers need not obtain information under paragraph (a) of
this section generated by previous employers prior to the starting
dates in Sec. 382.115 of this part.
PART 383--[AMENDED]
4. The authority citation for 49 CFR part 383 is revised to read as
follows:
Authority: 49 U.S.C. 3102, 31101 et seq.; and 31136; sec. 114,
Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.
5. In Sec. 383.35, paragraph (f) is revised to read as follows:
Sec. 383.35 Notification of previous employment.
* * * * *
(f) Before an application is submitted the employer shall inform
the applicant that the information he/she provides in accordance with
paragraph (c) of this section may be used, and the applicant's previous
employers will be contacted, for the purpose of investigating the
applicant's work history. The employer shall also inform the applicant
that he/she will be provided an opportunity to review and comment on
any information obtained from previous employers.
PART 390--[AMENDED]
6. The authority citation for 49 CFR part 390 is revised to read as
follows:
Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and
31504; sec. 114, Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR
1.48.
7. Section 390.15 is revised to read as follows:
Sec. 390.15 Assistance in investigations and special studies.
(a) A motor carrier shall make all records and information
pertaining to an accident available to an authorized representative or
special agent of the Federal Highway Administration upon request or as
part of any inquiry within such time as the request or inquiry may
specify. A motor carrier shall give an authorized representative of the
Federal Highway Administration all reasonable assistance in the
investigation of any accident including providing a full, true and
correct response to any question of the inquiry.
(b) Motor carriers shall maintain for a period of three years after
an accident occurs, an accident register containing at least the
following information:
(1) A list of accidents containing for each accident:
(i) Date of accident,
(ii) City or town in which or most near where the accident occurred
and the State in which the accident occurred,
(iii) Driver name,
(iv) Number of injuries,
(v) Number of fatalities, and
(vi) Whether hazardous materials, other than fuel spilled from the
fuel tanks of motor vehicle(s) involved in the accident, were released.
(2) Copies of all accident reports required by State or other
governmental entities or insurers.
(c) Motor carriers shall make available, within 30 days after
receiving a request for information about a driver's accident record
from a new or prospective employer, all records and information within
the accident register that pertain to that driver's accident record.
PART 391--[AMENDED]
8. The authority citation for 49 CFR part 391 is revised to read as
follows:
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; sec. 114,
Pub. L. 103-311, 108 Stat. 1673, 1677; and 49 CFR 1.48.
9. In Sec. 391.21, paragraph (d) is revised to read as follows:
Sec. 391.21 Application for employment.
* * * * *
(d) Before an application is submitted, the motor carrier shall
inform the applicant that the information he/she provides in accordance
with paragraph (b)(10) of this section may be used, and the applicant's
prior employers will be
[[Page 10556]]
contacted for the purpose of investigating the applicant's background
as required by Sec. 391.23. The employer shall also inform the
applicant that he/she will be provided an opportunity to review and
comment on any information obtained from previous employers.
10. In Sec. 391.23, paragraph (c) is revised and new paragraphs (d)
and (e) are added to read as follows:
Sec. 391.23 Investigation and inquiries.
* * * * *
(c) The investigation of the driver's employment record required by
paragraph (a)(2) of this section must commence as soon as possible, but
no later than 30 days after the date the driver's employment begins.
The investigation shall consist of personal interviews, telephone
interviews, letters of inquiry, or any other method of obtaining
information that the motor carrier deems appropriate. Each motor
carrier must make a written record with respect to each previous
employer that was contacted. The record must include the previous
employer's name and address, the date the previous employer was
contacted, and its comments with respect to the driver. The record
shall be maintained in the driver's qualification file.
(1) The following information, as a minimum, must be obtained from
all previous employers that employed the driver to operate a commercial
motor vehicle:
(i) Any accidents, as defined by Sec. 390.5 of this subchapter, in
which the driver was involved during the preceding three years;
(ii) Any hours-of-service violations resulting in an out-of-service
order being issued to the driver within the preceding three years;
(iii) Any failure of the driver, during the preceding three years,
to undertake or complete a rehabilitation program pursuant to
Sec. 382.605, after being found to have used, in violation of law or
Federal regulation, alcohol or a controlled substance;
(iv) Any use by the driver, during the preceding three years, in
violation of law or Federal regulation, of alcohol or a controlled
substance subsequent to completing such a rehabilitation program.
(2) Previous employers shall respond to requests for the
information in paragraph (c)(1) of this section within 30 days after
the request is received.
(d) The motor carrier shall afford the driver a reasonable
opportunity to review and comment on any information obtained during
the employment investigation, including the information described in
paragraph (c)(1) of this section. The motor carrier shall notify the
driver of this right at the time of application for employment.
(e) The information required under paragraphs (c)(1)(iii) and (iv)
of this section must be obtained pursuant to the driver's written
authorization.
[FR Doc. 96-6130 Filed 3-13-96; 8:45 am]
BILLING CODE 4910-22-P
Complete official Federal Register PDF
FR Doc. 96-6126 Airworthiness Directives; Aerospace Technologies of Australia Nomad Models N22B, N22S, and N24A Airplanes
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10478-10479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6126]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 61, No. 51 / Thursday, March 14, 1996 /
Proposed Rules
[[Page 10478]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 95-CE-93-AD]
Airworthiness Directives; Aerospace Technologies of Australia
Nomad Models N22B, N22S, and N24A Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes to adopt a new airworthiness directive
(AD) that would apply to Aerospace Technologies of Australia (ASTA)
Nomad Models N22B, N22S, and N24A airplanes. The proposed action would
require inspecting the flap and aileron control rod fork ends for water
accumulation and corrosion inside the internally drilled holes, and
replacing the control rod fork ends if there is visible corrosion or
sealing the hole if no corrosion is found. Reports of water entering
the internal holes of the flap and aileron control rod fork ends and
causing corrosion prompted the proposed AD action. The actions
specified by the proposed AD are intended to prevent corrosion and
water accumulation in the flap and aileron control rod fork ends,
which, if not detected and corrected, could cause loss of control of
the flaps and aileron and possible loss of control of the airplane.
DATES: Comments must be received on or before May 24, 1996.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 95-CE-93-AD, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106. Comments may be inspected at
this location between 8 a.m. and 4 p.m., Monday through Friday,
holidays excepted.
Service information that applies to the proposed AD may be obtained
from Aerospace Technologies of Australia, Limited, ASTA DEFENCE,
Private Bag No. 4, Beach Road Lara 3212, Victoria, Australia. This
information also may be examined at the Rules Docket at the address
above.
FOR FURTHER INFORMATION CONTACT: Mr. Ron Atmur, Aerospace Engineer,
Aircraft Certification Office, FAA, 3960 Paramount Blvd., Lakewood,
California, 90712; telephone (310) 627-5224; facsimile (310) 627-5210.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report that summarizes each FAA-public contact concerned
with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 95-CE-93-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Central Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 95-CE-93-AD, Room 1558, 601 E. 12th Street,
Kansas City, Missouri 64106.
Discussion
The Civil Airworthiness Authority (CAA), which is the airworthiness
authority for Australia, notified the FAA in 1982 that an unsafe
condition may exist on ASTA Nomad Models N22B, N22S, and N24A
airplanes. At that time, the FAA determined that an AD action was not
necessary. In July, 1995, the FAA has re-examined the proposed action
and determined that it is now necessary to propose an airworthiness
directive on these ASTA Nomad airplanes. The Australian CAA has
reported incidents of corrosion from water accumulation in the flap and
aileron control rod fork ends, part number (P/N) 1/N-45-351 and P/N 1/
N-45-1059. Further investigation revealed that the internally drilled
holes in the control rods are what allowed the water to accumulate
inside the rods. This condition could lead to corrosion and a loss of
static strength capability.
Nomad Service Bulletin (Nomad SB) NMD-27-24, dated October 8, 1982,
specifies inspecting for corrosion and water accumulation inside the
flap and aileron control rods' internally drilled holes. If corrosion
is present, the Nomad service bulletin specifies replacing the part and
sealing the drilled holes. If no corrosion is present, seal the drilled
holes to prevent future corrosion.
The Australian CAA classified this service bulletin as mandatory
and issued AD/GAF-N22/48, dated September, 1984 in order to assure the
continued airworthiness of these airplanes in Australia.
These airplane models are manufactured in Australia and are type
certificated for operation in the United States under the provisions of
section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and
the applicable bilateral airworthiness agreement between Australia and
the United States. Pursuant to this bilateral airworthiness agreement,
the Australian CAA has kept the FAA informed of the situation described
above. The FAA has examined the findings of the Australian CAA,
reviewed all available information, and determined that AD action is
necessary for products of this type design that are certificated for
operation in the United States.
Since an unsafe condition has been identified that is likely to
exist or develop in other ASTA Nomad Models N22B, N22S, and N24A
airplanes of the
[[Page 10479]]
same type design, the proposed AD would require inspecting for water
accumulation and corrosion inside the internally drilled holes of the
flap and aileron control rod fork ends and replacing any corroded
control rod or sealing any internally drilled holes that are without
corrosion.
The compliance time of the proposed AD is presented in calendar
time instead of hours time-in- service (TIS). The FAA has determined
that a calendar time compliance is the most desirable method because
the unsafe condition described by the proposed AD is caused by
corrosion. Corrosion initiates as a result of airplane operation, but
can continue to develop regardless of whether the airplane is in
service or in storage. Therefore, to ensure that the above-referenced
condition is detected and corrected on all airplanes within a
reasonable period of time without inadvertently grounding any
airplanes, a compliance schedule based upon calendar time instead of
hours TIS is proposed.
The FAA estimates that 15 airplanes in the U.S. registry would be
affected by the proposed AD, that it would take approximately 3
workhours per airplane to accomplish the proposed action, and that the
average labor rate is approximately $60 an hour. In estimating the
total cost impact of the proposed AD on U.S. operators, the FAA is only
using the inspection criteria (3 workhours). The FAA has no way of
knowing how many airplanes have incorporated the modification. With
this in mind and based on those figures above, the total cost impact of
the proposed AD upon U.S. operators of the affected airplanes is
estimated to be $2,700. This figure only includes the cost for the
initial inspection and does not include replacement costs of the
corroded part. The FAA has no way of determining how many control rods
may be corroded.
The regulations proposed herein would not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated,
will not have a significant economic impact, positive or negative, on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. A copy of the draft regulatory evaluation
prepared for this action has been placed in the Rules Docket. A copy of
it may be obtained by contacting the Rules Docket at the location
provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
Aerospace Technologies of Australia (ASTA): Docket No. 95-CE-93-AD.
Applicability: Nomad Models N22B, N22S, and N24A airplanes with
the following serial numbers, certificated in any category.
Nomad N22B and N22S
N22B-5M, N22B-6M, N22B-7, N22B-11M, N22B -12M, N22B-15M, N22B-
16M, N22B-18M, N22B-19M, N22B-20M, N22B-21M, N22B-22M, N22B-23M,
N22B-25, N22B-27, N22B-31M, N22B-33, N22B-35, N22B-37, N22B-50,
N22B-53, N22B-56, N22B-57, N22B-58, N22B-59, N22B-61, N22B-65M,
N22B-66, N22B-67M, N22B-68, N22B-69, N22B-70, N22S-82, N22B-83,
N22S-84, N22B-85M, N22S-86, N22S-87, N22B-88M, N22S-90, N22B-91M,
N22S-92, N22B-93, N22B-95, N22B-97M, N22B-100M, N22B-102, N22B-103,
and N22B-104
Nomad N24A
N24A-44, N24A-46, N24A-62, N24A-64, N24A-71, N24A-72, N24A-73,
N24A-74, N24A-75, N24A-76, N24A-77, N24A-78, and N24A-79
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required within 1 year after the effective date of
this AD, unless already accomplished.
To prevent corrosion and water accumulation in the flap and
aileron control rod fork ends, which, if not detected and corrected,
could cause loss of control of the flaps and aileron and possible
loss of control of the airplane, accomplish the following:
(a) Inspect for corrosion and water accumulation inside the
internally drilled holes of the flap and aileron control rod fork
ends in accordance with the ACCOMPLISHMENT INSTRUCTIONS section of
Aerospace Technologies of Australia (ASTA) Nomad Service Bulletin
(SB) NMD-27-24, dated October 8, 1982.
(b) If corrosion is present, prior to further flight, replace
the control rod fork ends, part number (P/N) 1/N-45-351 or P/N 1/N-
45-1059 and seal the drilled holes in accordance with the
ACCOMPLISHMENT INSTRUCTIONS section of ASTA Nomad Service Bulletin
(SB) NMD-27-24, dated October 8, 1982.
(c) If no corrosion is present, prior to further flight, seal
the drilled holes to prevent future corrosion in accordance with
ACCOMPLISHMENT INSTRUCTIONS section of ASTA Nomad Service Bulletin
(SB) NMD-27-24, dated October 8 1982.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an equivalent level of safety may be
approved by the Manager, Los Angeles Aircraft Certification Office,
FAA, 3960 Paramount Blvd., Lakewood, California, 90712. The request
shall be forwarded through an appropriate FAA Maintenance Inspector,
who may add comments and then send it to the Manager, Los Angeles
Aircraft Certification Office.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Los Angeles Aircraft Certification Office.
(f) All persons affected by this directive may obtain copies of
the document referred to herein upon request to Aerospace
Technologies of Australia, Limited, ASTA DEFENCE, Private Bag No. 4,
Beach Road Lara 3212, Victoria, Australia; or may examine this
document at the FAA, Central Region, Office of the Assistant Chief
Counsel, Room 1558, 601 E. 12th Street, Kansas City, Missouri 64106.
Issued in Kansas City, Missouri, on March 7, 1996.
James E. Jackson,
Acting Manager, Small Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 96-6126 Filed 3-13-96; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 96-6124 Migratory Bird Hunting and Conservation Stamp (Federal Duck Stamp) Contest
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10557-10558]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6124]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 91
RIN 1018-AD71
Migratory Bird Hunting and Conservation Stamp (Federal Duck
Stamp) Contest
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Fish and Wildlife Service (Service) is revising the
regulations governing the conduct of the annual Migratory Bird Hunting
and Conservation Stamp (Federal Duck Stamp) Contest. This proposed rule
would allow the Service to keep pace with the increasing costs of
running the 1996-97 Federal Duck Stamp Contest (Contest) and cover
expenses associated with the program. The following changes are
proposed by the Service: eligible species list; deadline for submitting
entry; age requirement established to participate in contest; entry fee
increase; subject matter of entry; and contest voting procedures.
DATES: Comments concerning these amendments must be received no later
than April 15, 1996.
ADDRESSES: Send comments to: Manager of Licensing, Federal Duck Stamp
Contest, U.S. Fish and Wildlife Service, Department of the Interior,
1849 C Street, NW, Suite 2058, Washington, D.C. 20240.
FOR FURTHER INFORMATION CONTACT: Mrs. Lita F. Edwards, (202) 208-4354.
SUPPLEMENTARY INFORMATION: The Federal Duck Stamp Contest is the only
Federal agency-run art contest and has been in existence since 1949
with the 1950 stamp the first to be selected in open competition. The
Federal Duck Stamp's main use is a revenue stamp needed by waterfowl
hunters. This year's Contest and species information follows:
1. Contest schedule:
1996-97 Federal Duck Stamp Contest--October 15-17, 1996
Public viewing--Tuesday, October 15 from 10:00 a.m. to 2:00 p.m.
Judging--Wednesday, October 16 at 10:30 a.m. through Thursday, October
17 at 9:00 a.m.
2. The Contest will be held at the Department of the Interior
building, Auditorium (C Street entrance), 1849 C Street, NW,
Washington, DC.
3. The five eligible species for the Contest: (1) Black Duck; (2)
Canada Goose; (3) Greater Scaup; (4) American Green-winged Teal; and
(5) Northern Pintail.
As part of an effort to keep pace with the cost of administering
and making minor improvements to the Contest, the Service proposes the
following changes to this year's contest:
1. The Service is correcting the common and Latin name of American
Green-winged Teal.
2. Persons wishing to enter this year's Contest may submit entries
anytime after July 1, but all entries must be postmarked no later than
midnight Friday, August 30, 1996.
3. The Service is increasing the fee for art contest entrants to
$100.00. Contest expenses have escalated each year and this increase
will defray Service expenses in administering the Contest.
4. The Service is requiring that all entrants must be 18 years of
age as of July 1 to participate in the Contest, as 18 is considered the
general age of majority by most jurisdictions.
5. The Service is clarifying that other living creatures, scenes,
designs may be part of the design as long as living migratory birds are
the dominant feature.
6. Contest procedures are modified for the third round of judging
to allow more consistent scores.
This regulation was not subject to Office of Management and Budget
review under Executive Order 12866. These proposed regulations have
been examined under the Paperwork Reduction Act of 1995 and have been
found to contain no information collection requirements. The Department
of the interior has determined that this regulation will not have
significant economic effect on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) as the
changes/revisions to the Contest will affect individuals not businesses
or other small entities as defined in the Act. Due to tight timeframes
associated with the contest rules, the Service is allowing only 30 days
for public comment.
List of Subjects in 50 CFR Part 91
Hunting, Wildlife.
Accordingly, Title 50, Part 91 of the Code of Federal Regulations
is proposed to be amended as follows:
[[Page 10558]]
PART 91--[AMENDED]
1. The authority citation for Part 91 continues to read as follows:
Authority: 5 U.S.C. 301; 16 U.S.C. 718j; 31 U.S.C. 9701.
2. Section 91.4 is amended by revising paragraph (e)(4) to read as
follows:
Sec. 91.4 Eligible species.
* * * * *
(e) * * *
(4) American Green-winged Teal (Anas crecca carolinensis)
* * * * *
3. Section 91.11 is amended by revising paragraph (b) to read as
follows:
Sec. 91.11 Contest deadlines.
* * * * *
(b) Entries must be postmarked no later than midnight of August 30.
4. Section 91.12 is revised to read as follows:
Sec. 91.12 Contest eligibility.
United States citizens, nationals, or resident aliens are eligible
to participate in the contest. Any person who has won the contest
during the preceding three years will be ineligible to submit an entry
in the current year's contest. All entrants must be 18 years of age as
of July 1 to participate in the Federal Duck Stamp Contest. Contest
judges and their relatives are ineligible to submit an entry. All
entrants must submit a non-refundable fee of $100.00 by a cashiers
check, certified check, or money order made payable to: U.S. Fish and
Wildlife Service. (Personal checks will not be accepted.) All entrants
must submit signed Reproduction Rights and Display and Participation
Agreements.
5. Section 91.14 is revised to read as follows:
Sec. 91.14 Restrictions on subject matter of entry.
A live portrayal of any bird(s) of the five or fewer identified
eligible species must be the dominant feature of the design. The design
may depict more than one of the eligible species. Designs may include,
but are not limited to, hunting dogs, hunting scenes, use of waterfowl
decoys, National Wildlife Refuges as the background of habitat scenes,
and other designs that depict the sporting, conservation, stamp
collecting and other uses of the stamp. The overall mandate will be to
select the best design that will make an interesting, useful and
attractive duck stamp that will be accepted and prized by hunters,
stamp collectors, conservationists, and others. The design must be the
contestant's original creation and may not be copied or duplicated from
previously published art, including photographs. An entry submitted in
a prior contest that was not selected for the Federal or a state stamp
design may be submitted in the current contest if it meets the above
criteria.
6. Section 91.24 is amended by revising paragraph (h) to read as
follows:
Sec. 91.24 Contest procedures.
* * * * *
(h) In the third round of judging, the judges will vote on the
remaining entries using the same method as in round two, except they
would indicate a numerical score from 3 to 5 for each entry. The
Contest Coordinator will tabulate the final votes and present them to
the Director, U.S. Fish and Wildlife Service, who will announce the
winning entry as well as the entries that placed second and third.
* * * * *
Dated: March 1, 1996.
George T. Frampton, Jr.,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 96-6124 Filed 3-13-96; 8:45 am]
BILLING CODE 4310-55-M
Complete official Federal Register PDF
FR Doc. 96-6086 Disclosure and Notice of Change of Rates and Other Service Terms for Pipeline Common Carriage
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10526-10528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6086]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Surface Transportation Board
49 CFR Chapter X
[STB Ex Parte No. 538]
Disclosure and Notice of Change of Rates and Other Service Terms
for Pipeline Common Carriage
AGENCY: Surface Transportation Board, DOT.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The ICC Termination Act of 1995 (ICCTA) eliminated the tariff
and tariff filing requirements formerly applicable to pipeline
carriers, but imposed in lieu thereof certain obligations to disclose
common carriage rates and service terms as well as a requirement for
advance notice of an increase in such rates or change in service terms.
ICCTA requires the Board to promulgate regulations to administer these
new obligations by June 29, 1996. The Board seeks public comment on
appropriate regulations for that purpose, and encourages the affected
interests groups to discuss and seek mutually agreeable regulations to
propose.
DATES: Comments are due on April 15, 1996.
ADDRESSES: Send comments (an original and 10 copies) referring to STB
Ex Parte No. 538 to: Surface Transportation Board, Office of the
Secretary, Case Control Branch, 1201 Constitution Avenue, N.W.,
Washington, DC 20423.
FOR FURTHER INFORMATION CONTACT: Beryl Gordon, (202) 927-5610. [TDD for
the hearing impaired: (202) 927-5721.]
SUPPLEMENTARY INFORMATION: The ICC Termination Act of 1995, Pub. L. No.
104-88, 109 Stat. 803 (ICCTA), enacted on December 29, 1995, abolished
the Interstate Commerce Commission (ICC) and transferred the
responsibility for the economic regulation of pipeline transportation
(of commodities other than water, gas, or oil) to a new Surface
Transportation Board (the Board). See ICCTA Section 101 (abolition of
the ICC). See also new 49 U.S.C. 701(a) (establishment of the Board),
as enacted by ICCTA Section 201(a). The transfer took effect on January
1, 1996. See ICCTA Section 2 (effective date).1
\1\ ICCTA also made several changes to the pipeline regulatory
authority that had been exercised by the ICC. In this notice, when
referring to the provisions of the United States Code affected by
ICCTA we use the word former to refer to the law in effect prior to
January 1, 1996, and the word new to refer to the law in effect on
and after January 1, 1996.
---------------------------------------------------------------------------
The substantive provisions of the new law differ in several
important respects from the former law. As pertinent here, the former
law required that pipeline carriers (of commodities other than water,
gas, or oil) file with the ICC tariffs containing the specific rates
and charges (or the basis for calculating them) for their common
carriage transportation services. Pipeline carriers had to adhere to
the rates and terms contained in their tariffs. See former 49 U.S.C.
10761 and 10762. See also 49 CFR Part 1312 (1995).
The ICCTA eliminated the pipeline tariff requirements, effective
January 1, 1996. Accordingly, no new pipeline
[[Page 10527]]
carrier tariffs are to be filed with the Board, and the pipeline
carrier tariffs that were previously filed with the ICC are no longer
effective tariffs as of January 1, 1996. The ICC regulations at 49 CFR
Part 1312 are likewise not effective with respect to transportation
provided by a pipeline carrier on and after that date.
Nevertheless, new 49 U.S.C. 15701 requires both disclosure of
pipeline common carriage rates and service terms and advance notice of
certain changes therein. (These requirements, it must be noted, apply
only to transportation by pipeline of commodities other than water,
gas, or oil). In particular, new 49 U.S.C. 15701(b) requires disclosure
of pipeline common carriage rates and service terms, new 49 U.S.C.
15701(c) requires that pipeline carriers, when providing common
carriage, not increase their rates or change their service terms
without advance notice, and new 49 U.S.C. 15701(d) requires pipeline
carriers to adhere to the rates and service terms published or
otherwise made available under new 49 U.S.C. 15701(b) and/or (c).2
\2\ A central feature of both the former and new law is the
requirement that a pipeline carrier adhere to its established rates.
Therefore, as a transition matter, a question that arises is whether
a pipeline carrier must continue to adhere to its established rates
and service terms--those that were in effect (in tariffs on file
with the ICC) on December 31, 1995--unless and until changed in a
manner consistent with the requirements of new section 15701.
Otherwise, it could be argued that there could be a break in the
continuity of rates that Congress did not intend.
---------------------------------------------------------------------------
New 49 U.S.C. 15701(e) directs the Board to establish rules to
implement the requirements of new 49 U.S.C. 15701. In accordance with
this directive, we intend to promulgate new regulations to implement
the requirements of new 49 U.S.C. 15701(b) and (c). We do not believe
that implementing rules are required for new 49 U.S.C. 15701(a), which
simply reenacts the longstanding common carrier obligation that the
carrier provide transportation or service on reasonable request. We
believe that this obligation, which has been well developed through
case law, is best addressed on a case-by-case basis.
Similarly, our preliminary view is that implementing rules are not
required for new 49 U.S.C. 15701(d), which requires a pipeline carrier
to provide transportation or service in accordance with the rates and
service terms, and any changes thereto, as published or otherwise made
available under new 49 U.S.C. 15701(b) or (c). This requirement appears
to be clear on its face.
The regulations implementing new section 15701 would appear to
apply to any transportation or service provided by a pipeline carrier
subject to our jurisdiction under new 49 U.S.C. 15301, with one
exception. They would not apply, it would seem, to transportation or
service provided by a pipeline carrier covered by an exemption issued
under new 49 U.S.C. 15302, to the extent that such exemption applies to
rate notice and disclosure requirements. We would also again point out
that, under new 49 U.S.C. 15301, the Board has jurisdiction over
transportation by pipeline, or by pipeline and either railroad or
water, only as respects the transportation of commodities other than
water, gas, or oil.
The new regulations would first need to address the requirement of
new 49 U.S.C. 15701(b) that a pipeline carrier promptly provide to any
person, on request, its rates and other service terms. It would appear
that this requirement applies both to the disclosure of an existing
rate (and related service terms) and to the establishment of a new rate
(and related service terms) where none exists.
In the situation where the carrier has existing rates covered by
the rate information request, the provisions of 49 U.S.C. 15701(b) and
(e) require the carrier ``immediate[ly]'' to disclose its ``rates and
service terms, including classifications, rules, and practices'' to any
person requesting such information. We seek suggestions for a rule that
would implement these provisions in a way that would provide the rate
requestor with complete information about all relevant terms and
conditions. We also seek input on whether we should attempt to define
the word immediately, or instead should simply establish general
guidelines to be applied on a case-by-case basis, setting up broad
parameters governing disclosure.
There may be instances in which a shipper or prospective shipper
requests the carrier to establish a rate for a type of traffic for
which no existing rate is in place. Again, the provisions of 49 U.S.C.
15701(b) appear to require that the pipeline carrier provide a rate, as
well as any related charges and service terms, promptly. We seek input
on whether we ought to define the word promptly, or instead should
simply adopt broadly applicable guidelines.
The new regulations also need to address the requirement of new 49
U.S.C. 15701(c) that a pipeline carrier may not increase a common
carriage rate or change a common carriage service term without first
giving 20 days' notice to any person who, within the previous 12
months, (1) has requested that rate or term under new subsection (b),
or (2) has made arrangements with the carrier for a shipment that would
be subject to the increased rate or changed term. It seems to us that
the advance notice requirement would apply to known users of the
transportation or service to which the increase or change is applicable
(i.e., a person who has made a shipment within the past year or has
already made arrangements for a future shipment) and also to known
prospective users of such transportation or service (i.e., a person who
has requested that rate to be established). Our preliminary view is
that it would not be necessary or appropriate to require a carrier to
keep a record of and notify all persons who have requested rate
information but are not users of the affected transportation service.
We request comment on what guidance, if any, should be given for
determining which members of the shipping public are covered by the 20-
day notice period.
We note that the notice requirement does not apply to a rate
decrease, which a carrier may apply without notice. Similarly, it would
not seem that the notice requirement should apply to, and hence delay,
a change in service terms that is clearly beneficial to shippers. Our
initial view is that it is not necessary to establish rules addressing
how to determine whether a service change is clearly beneficial to
shippers. Commenters may wish to address this issue.
Finally, the new regulations should provide for the required
information to be supplied either in writing or in electronic form. It
would appear that the form chosen would depend upon the technical
capacities of the carrier to transmit, and of the requestor to receive,
the information.
Request for Comments
We invite all interested persons to comment and to offer
suggestions for the new regulations. Commenters may wish to address,
among other things, whether we should exercise our authority under new
49 U.S.C. 15701(e) to modify the 20-day advance notice period provided
by new 49 U.S.C. 15701(c).
We encourage affected interest groups to discuss the new
requirements with each other and to seek a mutually agreeable set of
regulations that would meet the needs of all affected interests--both
shipper and carrier, and both large and small.
Comments (an original and 10 copies) must be in writing, and are
due on April 15, 1996.
We encourage any commenter that has the necessary technical
wherewithal to submit its comments as computer
[[Page 10528]]
data on a 3.5-inch floppy diskette formatted for WordPerfect 5.1, or
formatted so that it can be readily converted into WordPerfect 5.1. Any
such diskette submission (one diskette will be sufficient) should be in
addition to the written submission (an original and 10 copies).
Small Entities
Because this is not a notice of proposed rulemaking within the
meaning of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), we
need not conduct at this point an examination of impacts on small
entities. We will certainly welcome, of course, any comments respecting
whether regulations that commenters may suggest would have significant
economic effects on any substantial number of small entities.
Environment
The issuance of this advance notice of proposed rulemaking will not
significantly affect either the quality of the human environment or the
conservation of energy resources. Furthermore, we would not expect that
regulations suggested for implementing new 49 U.S.C. 15701 would
significantly affect either the quality of the human environment or the
conservation of energy resources. We certainly welcome, of course, any
comments respecting whether suggested regulations would have any such
effects.
Authority: 49 U.S.C. 721(a) and 15701.
Decided: March 6, 1996.
By the Board, Chairman Morgan, Vice Chairman Simmons, and
Commissioner Owen.
Vernon A. Williams,
Secretary.
[FR Doc. 96-6086 Filed 3-13-96; 8:45 am]
BILLING CODE 4915-00-P
Complete official Federal Register PDF
FR Doc. 96-6085 Proposed Flood Elevation Determinations
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10494-10496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6085]
=======================================================================
-----------------------------------------------------------------------
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 67
[Docket No. FEMA-7170]
Proposed Flood Elevation Determinations
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: Technical information or comments are requested on the
proposed base (1% annual chance) flood elevations and proposed base
flood elevation modifications for the communities listed below. The
base flood elevations and modified base flood elevations are the basis
for the floodplain management measures that the community is required
either to adopt or to show evidence of being already in effect in order
to qualify or
[[Page 10495]]
remain qualified for participation in the National Flood Insurance
Program (NFIP).
DATES: The comment period is ninety (90) days following the second
publication of this proposed rule in a newspaper of local circulation
in each community.
ADDRESSES: The proposed base flood elevations for each community are
available for inspection at the office of the Chief Executive Officer
of each community. The respective addresses are listed in the following
table.
FOR FURTHER INFORMATION CONTACT: Michael K. Buckley, P.E., Chief,
Hazard Identification Branch, Mitigation Directorate, 500 C Street SW.,
Washington, DC 20472, (202) 646-2756.
SUPPLEMENTARY INFORMATION: The Federal Emergency Management Agency
proposes to make determinations of base flood elevations and modified
base flood elevations for each community listed below, in accordance
with Section 110 of the Flood Disaster Protection Act of 1973, 42
U.S.C. 4104, and 44 CFR 67.4(a).
These proposed base flood and modified base flood elevations,
together with the floodplain management criteria required by 44 CFR
60.3, are the minimum that are required. They should not be construed
to mean that the community must change any existing ordinances that are
more stringent in their floodplain management requirements. The
community may at any time enact stricter requirements of its own, or
pursuant to policies established by other Federal, State, or regional
entities. These proposed elevations are used to meet the floodplain
management requirements of the NFIP and are also used to calculate the
appropriate flood insurance premium rates for new buildings built after
these elevations are made final, and for the contents in these
buildings.
National Environmental Policy Act
This proposed rule is categorically excluded from the requirements
of 44 CFR Part 10, Environmental Consideration. No environmental impact
assessment has been prepared.
Regulatory Flexibility Act
The Associate Director, Mitigation Directorate, certifies that this
proposed rule is exempt from the requirements of the Regulatory
Flexibility Act because proposed or modified base flood elevations are
required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104,
and are required to establish and maintain community eligibility in the
NFIP. No regulatory flexibility analysis has been prepared.
Regulatory Classification
This proposed rule is not a significant regulatory action under
the criteria of Section 3(f) of Executive Order 12866 of September 30,
1993, Regulatory Planning and Review, 58 FR 51735.
Executive Order 12612, Federalism
This proposed rule involves no policies that have federalism
implications under Executive Order 12612, Federalism, dated October 26,
1987.
Executive Order 12778, Civil Justice Reform
This proposed rule meets the applicable standards of Section
2(b)(2) of Executive Order 12778.
List of Subjects in 44 CFR Part 67
Administrative practice and procedure, Flood insurance, Reporting
and recordkeeping requirements.
Accordingly, 44 CFR Part 67 is proposed to be amended as follows:
PART 67--[AMENDED]
1. The authority citation for Part 67 continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of
1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR,
1979 Comp., p. 376.
Sec. 67.4 [Amended]
2. The tables published under the authority of Sec. 67.4 are
proposed to be amended as follows:
--------------------------------------------------------------------------------------------------------------------------------------------------------
#Depth in feet above
ground. *Elevation in
State City/town/county Source of flooding Location feet. (NGVD)
-------------------------
Existing Modified
--------------------------------------------------------------------------------------------------------------------------------------------------------
California..................... Red Bluff (city) Reeds Creek....... Approximately 430 feet upstream of Southern Pacific *267 *268
Tehama County. Railroad.
Just downstream of South Jackson Street.............. *267 *271
Approximately 180 feet downstream of the western *275 *279
corporate limits.
East Sand Slough.. Just upstream of Gilmore Ranch Road extended, at the *267 *267
corporate limits.
Approximately 150 feet downstream of Antelope *269 *269
Boulevard.
Approximately 550 feet upstream of Antelope Boulevard *270 *271
Brewery Creek Approximately 750 feet downstream of Monroe Avenue... None *274
Tributary.
Approximately 130 feet downstream of Monroe Avenue... None *280
Just upstream of Monroe Avenue....................... None *291
Maps are available for inspection at the Community Development Department, City of Red Bluff, City Hall, 555 Washington Street, Red Bluff, California.
Send comments to The Honorable Richard Bull, City Manager, City of Red Bluff, P.O. Box 400, Red Bluff, California 96080.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Wyoming........................ Laramie (city) Laramie River..... Approximately 2,260 feet downstream of Curtis Street. *7,129 *7,129
Albany County.
Just upstream of Curtis Street....................... *7,131 *7,132
Just downstream of new Wyoming Highway............... *7,136 *7,137
Just upstream of Interstate Highway 80............... *7,141 *7,1412
[[Page 10496]]
Approximately 1,000 feet upstream of Interstate *7,143 *7,143
Highway 80.
Maps are available for inspection at the City of Laramie, City Engineer's Office, City Hall, 406 Ivinson Street, Laramie, Wyoming.
Send comments to the Honorable Jim Rose, Mayor, City of Laramie, 406 Ivinson Street, Laramie, Wyoming 82070.
--------------------------------------------------------------------------------------------------------------------------------------------------------
(Catalog of Federal Domestic Assistance No. 83.100, ``Flood
Insurance'')
Dated: March 7, 1996.
Richard W. Krimm,
Acting Associate Director for Mitigation.
[FR Doc. 96-6085 Filed 3-13-96; 8:45 am]
BILLING CODE 6718-04-P
Complete official Federal Register PDF
FR Doc. 96-6056 Safety Zones: Elizabeth River and York River, VA
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10493-10494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6056]
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DEPARTMENT OF TRANSPORTATION
Coast Guard
33 CFR Parts 165
[CGD 05-96-008]
RIN 2115-AA97
Safety Zones: Elizabeth River and York River, VA
AGENCY: Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Coast Guard is proposing to establish three temporary
safety zones on the Elizabeth and York Rivers during the dismantling
and replacement of the Coleman Bridge. The proposed safety zones would
include moving zones around the tugs and tows carrying the bridge spans
as they transit the thirty miles between Norfolk International
Terminals (NIT) and the Coleman Bridge, a stationary zone in the
Elizabeth River at NIT, and a stationary in the York River at the
Coleman Bridge. The safety zones are needed to ensure the safety of
mariners operating in the vicinity and to ensure the safety of all
personnel involved with the movement of the bridge spans.
DATES: Comments must be received on or before April 3, 1996.
ADDRESSES: Comments may be mailed to Commanding Officer, Marine Safety
Office Hampton Roads, 200 Granby Street, Norfolk, VA 23510, or may be
delivered to suite 700 at the same address between 8 a.m. and 3 p.m.,
Monday through Friday, except Federal holidays. The telephone number is
(804) 441-3290.
Comments will become part of the docket for this rulemaking and
will be available for inspection or copying at suite 700, Marine Safety
Office Hampton Roads between 8 a.m. and 3 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Lieutenant Katherine Weathers, Chief, Port Safety and Security Branch,
(804) 441-3290.
SUPPLEMENTARY INFORMATION:
Request for Comments
The Coast Guard encourages interested persons to participate in
this rulemaking by submitting written data, views, or arguments.
Persons submitting comments should include their names and addresses,
identify this rulemaking (CGD 05-96-008) and the specific section of
this proposal to which each comment applies, and give the reason for
each comment. Persons wanting acknowledgment of receipt of comments
should enclose stamped, self-addressed postcards or envelopes.
The Coast Guard will consider all comments received during the
comment period. It may change this proposal in view of the comments.
The Coast Guard plans no public hearing. Persons may request a
public hearing by writing to Commanding Officer, Marine Safety Office
Hampton Roads at the address under ADDRESSES. The request should
include the reasons why a hearing would be beneficial. If it determines
that the opportunity for oral presentations will aid this rulemaking,
the Coast Guard will hold a public hearing at a time and place
announced by a later notice in the Federal Register.
Background and Purpose
The Coleman Bridge, which crosses the York River, connecting
Yorktown, Virginia to Gloucester, Virginia, is scheduled to be
dismantled and replaced during April and May 1996. The new bridge is
being constructed in six sections at NIT. These six spans will then be
transported via barge thirty miles to the existing bridge site. The
existing bridge will be dismantled in six sections and transported to
NIT by the same method. The bridge spans range between 210 feet long
and 559 feet long and will be resting perpendicular to the barges
transporting them. Due to the size of the tows, the distance to be
covered, and the busy port area in which the tows will be transiting,
moving safety zones around the bridge spans while in transit and
stationary safety zones at both NIT and the bridge site are necessary
to protect those in the maritime community operating in the vicinity
and those taking part in the project.
Discussion of Proposed Rule
The Coast Guard is proposing to establish a 500-yard moving safety
zone around the tugs and tows transporting the bridge spans being used
in the Coleman Bridge Replacement Project. Tows consisting of two or
three barges abreast connected by pipe bracing and tension rods will be
pulled by two tugs. The bridge spans will sit perpendicular to the
barges atop steel towers simulating the height of the bridge piers. The
barges are specially configured for the carriage of these spans and
will be severely restricted in their ability to maneuver and
susceptible to wake damage. Therefore, these moving safety zones are
needed while the vessels transit each way between NIT and the Coleman
Bridge in both loaded and unloaded conditions.
The stationary zones are needed at both the Coleman Bridge and at
NIT
[[Page 10494]]
where the new spans are currently located. The proposed safety zone at
the Coleman Bridge will consist of a 1000 yard zone, extending west
upstream 500 yards from the bridge and east downstream 500 yards from
the bridge. This safety zone would be in effect during the entire
dismantling and replacement evolution. The proposed safety zone at NIT
would include all waters within a line connecting red buoy 12 to red
buoy 14, from buoy 12 due east across the Norfolk Harbor Reach of the
Elizabeth River to land, and from buoy 14 due east across the reach to
land. This proposed safety zone would only be enforced during the
loading and unloading of the spans.
Regulatory Evaluation
This proposal is not a significant regulatory action under section
3(f) of Executive Order 12866 and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that order. It
has not been reviewed by the Office of Management and Budget under that
order. It is not significant under the regulatory policies and
procedures of the Department of Transportation (DOT) (44 FR 11040;
February 26, 1979). The Coast Guard expects the economic impact of this
proposal to be so minimal that a full Regulatory Evaluation under
paragraph 10e of the regulatory policies and procedures of DOT is
unnecessary.
Small Entities
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the
Coast Guard must consider whether this proposal, if adopted, will have
a significant economic impact on a substantial number of small
entities. ``Small entities'' may include: (1) Small businesses and not-
for-profit organizations that are independently owned and operated and
are not dominant in their fields; and (2) governmental jurisdictions
with populations of less than 50,000. Because it expects the impact of
this proposal to be minimal, the Coast Guard certifies under 5 U.S.C.
605(b) that this proposal, if adopted, will not have a significant
economic impact on a substantial number of small entities.
Collection of Information
This proposal contains no collection-of-information requirements
under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Federalism
The Coast Guard has analyzed this proposal under the principles and
criteria contained in Executive Order 12612 and has determined that
this proposal does not have sufficient federalism implications to
warrant the preparation of a Federalism Assessment.
Environment
The Coast Guard considered the environmental impact of this
proposal and concluded that under paragraph 2.B.2.e(34) of Commandant
Instruction M16475.1B (as revised by 59 FR 38654; July 29, 1994), this
proposal is categorically excluded from further environmental
documentation. A ``Categorical Exclusion Determination'' is available
in the docket for inspection or copying where indicated under
ADDRESSES.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.
Proposed Rule
For the reasons set out in the preamble, the Coast Guard proposes
to amend 33 CFR part 165 as follows:
PART 165--[AMENDED]
1. The authority citation for Part 165 continues to read as
follows:
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g),
6.04-1, 6.04-6, and 160.5; and 49 CFR 1.46.
2. A temporary Sec. 165.T05-008 is added to read as follows:
Sec. 165.T05-008 Safety Zone: James River, Elizabeth River, Chesapeake
Bay, Port of Hampton Roads, VA.
(a) Location: The following areas are safety zones:
(1) All waters within 500 yards of any tug and tow involved in
moving the Coleman Bridge spans while in both loaded and unloaded
condition while transiting in either direction between Norfolk
International Terminals (NIT) located on the Elizabeth River at the
Norfolk Harbor Reach and the Coleman Bridge, which crosses the York
River connecting Yorktown, Virginia with Gloucester Point, Virginia.
(2) All waters within 500 yards upstream and 500 yards downstream
of the Coleman Bridge in the York River.
(3) All waters within a line connecting red buoy 12 to red buoy 14,
and a line drawn due east from buoy 12 due east across the Norfolk
Harbor Reach of the Elizabeth River to land, and from buoy 14 due east
across the reach to land. This zone will be enforced during the loading
and unloading of the bridge spans at NIT.
(b) Effective date: This section is effective from 10 p.m. on April
26, 1966 to 10 p.m. May 30, 1996, unless sooner terminated by the
Captain of the Port.
(c) Definitions:
Captain of the Port means the Captain of the Port of Hampton Roads,
VA.
Designated representative of the Captain of the Port means any
Coast Guard commissioned, warrant, or petty officer who has been
authorized by the Captain of the Port Hampton Roads to act on his
behalf.
(d)(1) In accordance with the general provisions in Secs. 165.23
and 165.501 of this part, entry into the zones described in paragraph
(a) of this section is prohibited unless authorized by the Captain of
the Port or his designated representative. The general requirements of
Secs. 165.23 and 165.501 also apply to this section.
(2) Persons or vessels requiring entry into or passage through the
safety zones must first request authorization from the Captain of the
Port or his designated representative. The Coast Guard vessels
enforcing the safety zone can be contacted on VHF Marine Band Radio,
channels 13 and 16. The Captain of the Port's representative at the
Marine Safety Office, Hampton Roads, VA, can be contacted at telephone
number (804) 441-3314.
(e) The Captain of the Port will notify the public of vessel
movements and changes in the status of these zones by Marine Safety
Broadcast on VHF Marine Band Radio, Channel 22 (157.1 MHz).
Dated: February 29, 1996.
Dennis A. Sande,
Captain, U.S. Coast Guard, Captain of the Port.
[FR Doc. 96-6056 Filed 3-13-96; 8:45 am]
BILLING CODE 4910-14-M
Complete official Federal Register PDF
FR Doc. 96-6034 Family Educational Rights and Privacy
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10664-10669]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6034]
[[Page 10663]]
_______________________________________________________________________
Part III
Department of Education
_______________________________________________________________________
34 CFR Part 99
Family Educational Rights and Privacy; Proposed Rule
Federal Register / Vol. 61, No. 51 / Thursday, March 14, 1996 /
Proposed Rules
[[Page 10664]]
DEPARTMENT OF EDUCATION
34 CFR Part 99
RIN 1880-AA71
Family Educational Rights and Privacy
AGENCY: Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations implementing
the Family Educational Rights and Privacy Act (FERPA). The amendments
are needed to implement section 249 of the Improving America's Schools
Act of 1994 (IASA) (Pub. L. 103-382, enacted October 20, 1994), to
eliminate unnecessary requirements and reduce regulatory burden, and to
incorporate several technical changes.
DATES: Comments must be received on or before May 13, 1996.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to LeRoy Rooker, U.S. Department of Education, 600
Independence Avenue, SW., Room 1366, Washington, D.C. 20202-4605.
Comments may also be sent through the Internet to
FERPA____C[email protected].
To ensure that public comments have maximum effect in developing
the final regulations, the Department urges that each comment clearly
identify the specific section or sections of the regulations that the
comment addresses and that comments be in the same order as the
regulations.
Comments that concern information collection requirements must be
sent to the Office of Management and Budget at the address listed in
the Paperwork Reduction Act of 1995 section of this preamble. A copy of
those comments may also be sent to the Department representative named
in the preceding paragraph.
FOR FURTHER INFORMATION CONTACT: Sharon Shirley, U.S. Department of
Education, 600 Independence Avenue, SW., Room 1366, Washington, D.C.
20202-4605. Telephone: (202) 260-3887. Individuals who use a
telecommunications device for the deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8
p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: These proposed regulations have been
reviewed and revised in accordance with the Department's ``Principles
for Regulating,'' which were developed to ensure that the Department
regulates in the most flexible, most equitable, and least burdensome
way possible. These principles advance the regulatory reinvention and
customer service objectives of the Administration's National
Performance Review II and are essential to an effective partnership
with States and localities. The Secretary proposes these regulations
because he believes they are necessary to implement the law and give
the greatest flexibility to local governments and schools. In addition,
the regulations minimize burden while protecting parents' and students'
rights.
Summary of Major Provisions
The following is a summary of the regulatory provisions the
Secretary proposes as necessary to implement the statute, such as
interpretations of statutory text or standards and procedures for the
operation of the program. The summary does not address provisions that
merely restate statutory language. The Secretary is not authorized to
change statutory requirements. Commenters are requested to direct their
comments to the regulatory provisions that would implement the statute.
Section 99.1 Applicability
FERPA applies to educational agencies and institutions to which
funds are made available under any program which is administered by the
Secretary. The proposed clarification of the terms ``educational
agency'' and ``educational institution'' is necessary to indicate that
FERPA does not, as a whole, apply to State educational agencies (SEAs),
which provide supervision of, but no administrative control or
direction of, public elementary and secondary schools. The proposed
clarification of ``educational agency'' is adapted from the definition
of ``local educational agency'' in 34 CFR 77.1 and is modified, in
particular, to reflect that FERPA applies to certain postsecondary
administrative agencies, such as those found in university systems.
FERPA was amended by the IASA to require SEAs to afford parents access
to their children's education records. In general, that right of access
to records is the only right parents are afforded by FERPA with regard
to education records maintained by SEAs.
Section 99.3 Definitions
The Secretary proposes to amend the definition of the term
``record'' in the regulations to reflect changing technology and
changing modes of maintaining information. The proposed term ``computer
media'' is intended to cover any manner of maintaining information that
is stored through and retrieved by a computer, including information
stored on CD-ROM.
Section 99.7 Annual Notification of Rights
The statute requires that educational agencies and institutions
effectively inform parents and eligible students of their rights. The
statute does not, however, require that educational agencies and
institutions adopt a formal written student records policy. The
Secretary proposes to remove the requirement in Sec. 99.6 that
educational agencies and institutions adopt a formal written student
records policy. The Secretary further proposes to amend the regulations
so that each educational agency and institution will be required to
notify parents and eligible students not only of their basic rights
under FERPA but also of how to pursue those rights at that specific
agency or institution.
The current regulations require that educational agencies or
institutions inform parents and eligible students of their basic
rights. The current regulations also require that the procedures for
pursuing those rights be set forth in a student records policy, a copy
of which parents and eligible students may have upon request. However,
the Secretary believes that, based on the nature of recent complaints
under FERPA, parents and eligible students rarely seek access to the
student records policy and thus remain uninformed of how to pursue
their rights at that particular school, such as the appropriate
procedure to seek access to education records. The Secretary also
believes that removing the requirement for a student records policy and
adding additional requirements to the annual notification of rights
will lessen burden on institutions and will reduce administrative costs
because only one document will be required.
The Secretary believes that implementation of Congress' mandate
that students and parents be ``effectively'' notified of their rights
can best be achieved by requiring additional information in the annual
notification of rights. In that way, parents and eligible students
would receive more effective notification of their rights and how to
pursue them. The Secretary further believes that, because many of the
items required by current regulations to be in a formal written student
records policy are not necessary to implement the law, the removal of
the requirements would give educational agencies and institutions
greater flexibility. Initially, there may be an additional cost because
schools will have to change their annual notifications, but this is
outweighed by
[[Page 10665]]
the elimination of the student records policy requirement. These two
changes together would reduce burden on educational agencies and
institutions and would ensure that parents and eligible students are
more aware of how to pursue their rights.
The Secretary would allow educational agencies and institutions up
to three years to transfer from the current requirements and to
implement the new requirements. In order to provide guidance to
educational agencies and institutions, the Department would develop a
model annual notice that meets the new requirements and will make it
available upon publication of the final regulations. Also, for those
agencies and institutions that choose to adopt a formal written student
records policy, the Department would continue to update and make
available its model student records policy.
Section 99.10 Right To Inspect and Review Education Records
Under section 444(a) of GEPA, SEAs that maintain education records
are required to afford parents the right to inspect and review their
children's education records. The Secretary believes that this new
statutory requirement should be implemented, to the greatest extent
possible, in the same manner as the current regulations for educational
agencies and institutions to afford parents access to education
records. Therefore, the Secretary proposes to amend the access
provisions in the current regulations to set forth the new requirements
for SEAs to afford parents access to education records. The Secretary
proposes to apply to SEAs the same requirement that applies to
educational agencies and institutions, i.e., that they provide a parent
or eligible student access to education records within 45 days of
receipt of a request. The Secretary requests comments regarding whether
this time frame for SEAs to retrieve records and provide access to them
is reasonable.
The Secretary recognizes that this statutory amendment will impose
new burdens for SEAs, and seeks comments in particular from the SEAs as
to how this provision can be administered without significantly
impeding the duties and day-to-day operations of the SEAs. The
Secretary seeks comments on how this provision can be implemented with
minimal burden on SEAs while still affording parents their full
statutory right of access under FERPA. Finally, the Secretary also
seeks comments from the SEAs as to what types of records they maintain
that are directly related to students.
Section 99.31(a)(5) Prior Consent Not Required for Disclosure to
Juvenile Justice Systems
The proposed regulations implement a new statutory provision that
permits, under certain circumstances, the disclosure of education
records if allowed by State law and if the disclosure concerns the
juvenile justice system's ability to serve, prior to adjudication, the
student whose records are released. The Secretary has not proposed to
define the terms ``juvenile justice system'' and ``prior to
adjudication'' to give States flexibility to define these terms
consistent with State law and practice. The Secretary is not aware of
any advantage or need for a uniform definition.
Section 99.31(a)(9) Prior Consent Not Required for Disclosures
Pursuant to Court Orders and Lawfully Issued Subpoenas
The Secretary proposes that educational agencies and institutions
shall not be required to notify parents or eligible students prior to
disclosures of education records pursuant to a federal grand jury
subpoena or a subpoena issued for a law enforcement purpose. The
Secretary also proposes a new regulatory provision regarding the
disclosure of education records when an educational agency or
institution initiates legal action against a parent or student.
The new regulatory provision would clarify that FERPA permits an
educational agency or institution to release education records in court
without a parent's or eligible student's prior written consent if the
educational agency or institution is initiating legal action against
the parent or student, and the agency or institution has made a
reasonable effort to notify the parent or eligible student of the
intent to disclose in advance. The purpose of this notification
requirement is to give the parent or eligible student the opportunity
to seek a protective order, if the parent or student does not want
personally identifiable information disclosed to the public. This new
provision will impose a minimal burden on schools; however, the cost of
notification to parents is outweighed by the benefit to parents who
will be notified prior to the release of their children's education
records to a court.
Section 99.36 Disclosure of Information From Disciplinary Records
The statute was amended by the IASA to make explicit that FERPA
does not prevent educational agencies and institutions from maintaining
records related to a disciplinary action taken against a student for
behavior that posed a significant risk to the student or others or from
disclosing this information to school officials who have been
determined to have a legitimate educational interest in the behavior of
the student. These matters were implicit in the statute prior to the
change.
The statutory amendment also permits the disclosure of information
regarding disciplinary action to school officials in other schools that
have a legitimate educational interest in the behavior of the student.
The Secretary interprets the statute to allow a school official to
disclose information regarding disciplinary action to school officials
in schools where a student is not in attendance. The Secretary believes
that officials in other schools have a legitimate educational interest
in cultivating a safe school environment.
For example, if a school official knows that a student, who has
been disciplined for carrying a weapon, is planning to attend a school-
sponsored activity at another high school, FERPA would not prohibit the
school official from notifying school officials at the other high
school.
The Secretary believes this interpretation is consistent with
Congress' intent. The Secretary welcomes comment on this provision.
While this provision imposes a potential cost to students and parents,
because education records may be released without their consent, that
cost is minimal and is outweighed by the interests of others whose
safety may be at stake.
Executive Order 12866
1. Assessment of Costs and Benefits
These proposed regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary has
assessed the potential costs and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those determined by the
Secretary to be necessary to administer this program effectively and
efficiently. Burdens specifically associated with information
collection requirements, if any, are identified and explained elsewhere
in this preamble under the heading Paperwork Reduction Act of 1995.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Secretary has
[[Page 10666]]
determined that the benefits of the proposed regulations justify the
costs.
To assist the Department in complying with specific requirements of
Executive Order 12866, the Secretary invites comment on whether there
may be further opportunities to reduce any potential costs or increase
potential benefits resulting from these proposed regulations without
impeding the effective and efficient administration of the program.
The potential costs and benefits of these proposed regulations are
discussed elsewhere in this preamble under the following topic
headings: Sec. 99.7 Annual notification of rights; Sec. 99.10 Right to
inspect and review education records; Sec. 99.31 Prior consent not
required for disclosure; and Sec. 99.36 Disclosure of information from
disciplinary records.
2. Clarity of the Regulations
Executive Order 12866 requires each agency to write regulations
that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following: (1) Are the requirements in the proposed regulations
clearly stated? (2) Do the regulations contain technical terms or other
wording that interferes with their clarity? (3) Does the format of the
regulations (grouping and order of sections, use of headings,
paragraphing, etc.) aid or reduce their clarity? Would the regulations
be easier to understand if they were divided into more (but shorter)
sections? (A ``section'' is preceded by the symbol ``Sec. '' and a
numbered heading; for example, Sec. 99.1 To which educational agencies
or institutions do these regulations apply?) (4) Is the description of
the regulations in the ``Supplementary Information'' section of this
preamble helpful in understanding the regulations? How could this
description be more helpful in making the regulations easier to
understand? (5) What else could the Department do to make the
regulations easier to understand?
A copy of any comments that concern how the Department could make
these proposed regulations easier to understand should be sent to
Stanley M. Cohen, Regulations Quality Officer, U.S. Department of
Education, 600 Independence Avenue, SW. (Room 5121 FOB-10B),
Washington, D.C. 20202-2241.
Regulatory and Flexibility Act Certification
The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
The small entities that would be affected by these proposed
regulations are small local educational agencies (LEAs) receiving
Federal funds from the Department. However, the regulations would not
have a significant economic impact on the small LEAs affected because
the regulations would not impose excessive regulatory burdens or
require unnecessary Federal supervision. The regulations would impose
minimal requirements to ensure that LEAs comply with the educational
privacy protection requirements in FERPA.
Paperwork Reduction Act of 1995
Sections 99.7 and 99.32 contain information collection
requirements. As required by the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education has submitted a copy of
these sections to the Office of Management and Budget (OMB) for its
review.
Collection of Information: Family Educational Rights and Privacy.
SEAs, LEAs, postsecondary institutions, and other recipients may be
affected by these regulations. The Department needs and uses the
information to ensure compliance with requirements in FERPA. Annual
public reporting burden for this collection of information is estimated
to be .25 hours per response for 28,075 respondents, including the time
for reviewing instructions, searching existing data sources, gathering
and maintaining the data needed, and completing and reviewing the
collection of information. Thus, the total annual reporting and
recordkeeping burden for this collection is estimated to be 7,018.75
hours.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 10235, New Executive
Office Building, Washington, DC 20503; Attention: Wendy Taylor, Desk
Officer for U.S. Department of Education.
The Department considers comments by the public on this proposed
collection of information in--
Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
Department, including whether the information will have a practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collection of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology; e.g., permitting
electronic submission of responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations 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. This does not affect
the deadline for the public to comment to the Department on the
proposed regulations.
Invitation to Comment
Interested persons are invited to submit comments and
recommendations regarding these proposed regulations. This section
highlights those issues already discussed in the preamble on which the
Secretary would particularly like comment.
The Secretary has attempted to balance a desire to ensure that
parents are afforded their rights under the law with a desire to be as
flexible as possible in imposing requirements on educational agencies
and institutions. The Secretary believes this balance can be achieved
through these proposed amendments to the regulations, in particular
through the changes to the annual notification of rights and the
removal of the requirement to adopt a written student records policy.
The Secretary requests specific comments on these proposed changes to
the notice, in particular regarding the extent to which they will
affect schools and parents and students.
As previously stated in the preamble, the Secretary would like
comments on whether the proposed regulations regarding the requirement
of SEAs to afford access to education records will create significant
burden and disruption of operations on the SEAs and any suggestions as
to how to minimize any such burdens or disruptions.
All comments submitted in response to these proposed regulations
will be available for public inspection, during and after the comment
period, in Room 1366, FOB-10B, 600 Independence Avenue, SW.,
Washington, D.C., between the hours of 8:30 a.m. and 4:00 p.m., Monday
through Friday of each week except Federal holidays.
[[Page 10667]]
Assessment of Educational Impact
The Secretary particularly requests comments on whether the
proposed regulations in this document would require transmission of
information that is being gathered by or is available from any other
agency or authority of the United States.
List of Subjects in 34 CFR Part 99
Administrative practice and procedure, Education, Information,
Privacy, Parents, Records, Reporting and recordkeeping requirements,
Students.
Dated: January 11, 1996.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number does not apply)
The Secretary proposes to amend Part 99 of Title 34 of the Code of
Federal Regulations as follows:
PART 99--FAMILY EDUCATIONAL RIGHTS AND PRIVACY
1. The authority citation for Part 99 continues to read as follows:
Authority: 20 U.S.C. 1232g, unless otherwise noted.
2. Section 99.1 is amended by removing paragraph (b), redesignating
paragraphs (c), (d), and (e) as paragraphs (b), (c), and (d),
respectively, and by revising paragraph (a) to read as follows:
Sec. 99.1 To which educational agencies or institutions do these
regulations apply?
(a) Except as otherwise noted in Sec. 99.10, this part applies to
an educational agency or institution to which funds have been made
available under any program administered by the Secretary, if--
(1) The educational institution provides educational services or
instruction, or both, to students; or
(2) The educational agency provides administrative control of or
direction of, or performs service functions for, public elementary or
secondary schools or postsecondary institutions.
* * * * *
Sec. 99.2 [Amended]
3. Section 99.2 is amended by removing the number ``438'' and
adding, in its place, the number ``444''.
4. Section 99.3 is amended by removing in the definition of ``Act''
the number ``438'' and adding, in its place, the number ``444'' and by
revising the definitions of ``Disclosure'' and ``Record'' to read as
follows:
Sec. 99.3 What definitions apply to these regulations?
* * * * *
Disclosure means to permit access to or the release, transfer, or
other communication of personally identifiable information contained in
education records to any party, by any means, including oral, written,
or electronic means.
* * * * *
Record means any information recorded in any way, including, but
not limited to, handwriting, print, computer media, video or audio
tape, film, microfilm, and microfiche.
* * * * *
Sec. 99.6 [Removed and reserved]
5. Section 99.6 is removed and reserved.
6. Section 99.7 is revised to read as follows:
Sec. 99.7 What must an educational agency or institution include in
its annual notification?
(a)(1) Each educational agency or institution shall annually notify
parents of students currently in attendance, or eligible students
currently in attendance, of their rights under the Act and this part.
(2) The notice must inform parents or eligible students that they
have the right to--
(i) Inspect and review the student's education records;
(ii) Seek amendment of the student's education records that the
parent or eligible student believes to be inaccurate, misleading, or
otherwise in violation of the student's privacy rights;
(iii) Consent to disclosures of personally identifiable information
contained in the student's education records, except to the extent that
the Act and Sec. 99.31 authorize disclosure without consent; and
(iv) File with the Department a complaint under Secs. 99.63 and
99.64 concerning alleged failures by the educational agency or
institution to comply with the requirements of the Act and this part.
(3) The notice must include the following:
(i) The procedure for exercising the right to inspect and review
education records.
(ii) The procedure for--
(A) Requesting amendment of records under Sec. 99.20;
(B) Obtaining a hearing regarding a denial of a request for
amendment of records under Secs. 99.21 and 99.22; and
(C) Adding a statement to the record under Sec. 99.21.
(iii) The conditions in Sec. 99.31 under which the educational
agency or institution may disclose education records without a parent's
or eligible student's prior written consent.
(iv) If the educational agency or institution has a policy of
disclosing education records under Sec. 99.31(a)(1), a specification of
criteria for determining who constitutes a school official and what
constitutes a legitimate educational interest.
(v) If the educational agency or institution has a policy of
disclosing education records under Sec. 99.31(a)(11), in accordance
with Sec. 99.37, a specification of--
(A) The types of personally identifiable information the agency or
institution has designated as directory information;
(B) A parent's or eligible student's right to refuse to allow the
agency or institution to designate specific types of information about
the student as directory information; and
(C) The period of time which a parent or eligible student has to
notify the agency or institution that he or she does not want the
agency or institution to designate specific types of information about
the student as directory information.
(b) An educational agency or institution may provide this notice by
any means that are reasonably likely to inform the parents or eligible
students of their rights.
(1) An educational agency or institution shall effectively notify
parents or eligible students who are disabled.
(2) An agency or institution of elementary or secondary education
shall effectively notify parents who have a primary or home language
other than English.
(Authority: 20 U.S.C. 1232g(e) and (f)).
7. Section 99.10 is amended by adding in paragraphs (c) and (e) ``,
or SEA or its component'' following the word ``institution'' and by
revising paragraphs (a), (b), and (d), and the authority citation to
read as follows:
Sec. 99.10 What rights exist for a parent or eligible student to
inspect and review education records?
(a) Except as limited under Sec. 99.12, a parent or eligible
student shall be given the opportunity to inspect and review the
student's education records. This provision applies to--
(1) Any educational agency or institution; and
(2) Any State educational agency (SEA) and its components.
(i) For the purposes of subpart B of this part, an SEA and its
components constitute an educational agency or institution.
(ii) An SEA and its components are subject to Subpart B of this
part if the
[[Page 10668]]
SEA maintains education records on students who are or have been in
attendance at any school of an educational agency or institution
subject to the Act and this part.
(b) The educational agency or institution, or SEA or its component,
shall comply with a request for access to records within a reasonable
period of time, but not more than 45 days after it has received the
request.
* * * * *
(d) If circumstances effectively prevent the parent or eligible
student from exercising the right to inspect and review the student's
education records, the educational agency or institution, or SEA or its
component, shall--
(1) Provide the parent or eligible student with a copy of the
records requested; or
(2) Make other arrangements for the parent or eligible student to
inspect and review the requested records.
* * * * *
(Authority: 20 U.S.C. 1232g(a)(1)(A) and (B))
Sec. 99.12 [Amended]
8. Section 99.12 is amended by removing in paragraph (a) the commas
after ``inspect'' and after ``review'' and by adding after the word
``inspect'' the word ``and'' and by revising the authority citation to
read as follows:
(Authority: 20 U.S.C. 1232g(a)(1)(A), (B), (C), and (D))
Sec. 99.20 [Amended]
9. Section 99.20 is amended by removing in paragraph (a) the words
``or other rights''.
Sec. 99.21 [Amended]
10. Section 99.21 is amended by removing in paragraphs (a), (b)(1),
and (b)(2) the words ``or other''.
11. Section 99.31 is amended by redesignating paragraph (a)(6)(iii)
as paragraph (a)(6)(iv), by adding a new paragraph (a)(6)(iii) and by
revising paragraphs (a)(5)(i) and (a)(9) and the authority citation to
read as follows:
Sec. 99.31 Under what conditions is prior consent not required to
disclose information?
(a) * * *
(5)(i) The disclosure is to State and local officials or
authorities to whom this information is specifically--
(A) Allowed to be reported or disclosed pursuant to State statute
adopted before November 19, 1974, if the allowed reporting or
disclosure concerns the juvenile justice system and the system's
ability to effectively serve the student whose records are released; or
(B) Allowed to be reported or disclosed pursuant to State statute
adopted after November 19, 1974, subject to the requirements of
Sec. 99.38.
* * * * *
(6) * * *
(iii) If this Office determines that a third party outside the
educational agency or institution to whom information is disclosed
under this paragraph (a)(6) violates paragraph (a)(6)(ii)(B) of this
section, the educational agency or institution may not allow that third
party access to personally identifiable information from education
records for at least five years.
* * * * *
(9)(i) The disclosure is to comply with a judicial order or
lawfully issued subpoena.
(ii) The educational agency or institution may disclose information
under paragraph (a)(9)(i) of this section only if the agency or
institution makes a reasonable effort to notify the parent or eligible
student of the order or subpoena in advance of compliance unless the
disclosure is in compliance with--
(A) A Federal grand jury subpoena and the court has ordered that
the existence or the contents of the subpoena or the information
furnished in response to the subpoena not be disclosed; or
(B) Any other subpoena issued for a law enforcement purpose and the
court has ordered that the existence or the contents of the subpoena or
the information furnished in response to the subpoena not be disclosed.
(iii) If the educational agency or institution initiates legal
action against a parent or student and has complied with paragraph
(a)(9)(ii) of this section, it may disclose education records to the
court without a court order or subpoena.
* * * * *
(Authority: 20 U.S.C. 1232g (a)(5)(A), (b)(1), (b)(2), (b)(4)(B),
and (f)).
12. Section 99.32 is amended by removing the word ``or'' following
paragraph (d)(3), replacing the period at the end of paragraph (d)(4)
with a semicolon and adding the word ``or'' after the semicolon, adding
a new paragraph (d)(5), and revising the authority citation to read as
follows:
Sec. 99.32 What recordkeeping requirements exist concerning requests
and disclosures?
* * * * *
(d) * * *
(5) A party seeking or receiving the records as directed by a
Federal grand jury or other law enforcement subpoena and the issuing
court has ordered that the existence or the contents of the subpoena or
the information furnished in response to the subpoena not be disclosed.
(Authority: 20 U.S.C. 1232g (b)(1) and (b)(4)(A))
13. Section 99.33 is amended by revising paragraphs (c) and (d) and
by adding a new paragraph (e) to read as follows:
Sec. 99.33 What limitations apply to the redisclosure of information?
* * * * *
(c) Paragraph (a) of this section does not apply to disclosures
made pursuant to court orders or lawfully issued subpoenas under
Sec. 99.31(a)(9), to disclosures of directory information under
Sec. 99.31(a)(11), or to disclosures to a parent or student under
Sec. 99.31(a)(12).
(d) Except for disclosures under Sec. 99.31(a)(9), (11), and (12),
an educational agency or institution shall inform a party to whom
disclosure is made of the requirements of this section.
(e) If this Office determines that a third party improperly
rediscloses personally identifiable information from education records
in violation of Sec. 99.33(a) of this section, the educational agency
or institution may not allow that third party access to personally
identifiable information from education records for at least five
years.
14. Section 99.34(a)(1)(ii) is amended by removing the word
``policy'' and adding, in its place, the words ``annual notification''.
15. Section 99.36 is amended by revising paragraph (b), adding
paragraph (c) and revising the authority citation to read as follows:
Sec. 99.36 What conditions apply to disclosure of information in
health and safety emergencies?
* * * * *
(b) Nothing in this Act or this part shall prevent an educational
agency or institution from--
(1) Including in the education records of a student appropriate
information concerning disciplinary action taken against the student
for conduct that posed a significant risk to the safety or well-being
of that student, other students, or other members of the school
community;
(2) Disclosing appropriate information maintained under paragraph
(b)(1) of this section to teachers and school officials within the
agency or institution who the agency or institution has determined have
legitimate educational interests in the behavior of the student; or
(3) Disclosing appropriate information maintained under paragraph
(b)(1) of this section to teachers and school officials in other
schools that have been determined to have legitimate
[[Page 10669]]
educational interests in the behavior of the student.
(c) Paragraphs (a) and (b) of this section will be strictly
construed.
(Authority: 20 U.S.C. 1232g (b)(1)(I) and (h))
16. A new Sec. 99.38 is added to subpart D to read as follows:
Sec. 99.38 What conditions apply to disclosure of information as
permitted by State statute adopted after November 19, 1974 concerning
the juvenile justice system?
(a) If reporting or disclosure allowed by State statute concerns
the juvenile justice system and the system's ability to effectively
serve, prior to adjudication, the student whose records are released,
an educational agency or institution may disclose education records
under Sec. 99.31(a)(5)(i)(B).
(b) The officials and authorities to whom the records are disclosed
shall certify in writing to the educational agency or institution that
the information will not be disclosed to any other party, except as
provided under State law, without the prior written consent of the
parent of the student.
(Authority: 20 U.S.C. 1232g(b)(1)(J))
Sec. 99.63 [Amended]
17. Section 99.63 is amended by removing the word ``person'' and
adding, in its place, the words ``parent or eligible student''.
[FR Doc. 96-6034 Filed 3-13-96; 8:45 am]
BILLING CODE 4000-01-P
Complete official Federal Register PDF
FR Doc. 96-6028 Food Labeling; Statement of Identity, Nutrition Labeling and Ingredient Labeling of Dietary Supplements; Correction
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10479-10483]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-6028]
=======================================================================
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[[Page 10480]]
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Food and Drug Administration
21 CFR Part 101
[Docket No. 95N-0245]
Food Labeling; Statement of Identity, Nutrition Labeling and
Ingredient Labeling of Dietary Supplements; Correction
AGENCY: Food and Drug Administration, HHS.
ACTION: Proposed rule; correction.
-----------------------------------------------------------------------
SUMMARY: The Food and Drug Administration (FDA) is correcting a
proposed rule that appeared in the Federal Register of December 28,
1995 (60 FR 67194). The document proposed to amend the food labeling
regulations to require that dietary supplements be identified with the
statement of identity ``Dietary Supplement'' and modify the nutrition
labeling and ingredient labeling requirements for these foods. The
document was published with some inadvertent typographical and
editorial errors. This document corrects those errors.
DATES: Written comments by March 13, 1996. The agency is proposing that
any final rule that may issue based upon this proposal become effective
on January 1, 1997.
ADDRESSES: Submit written comments to the Dockets Management Branch
(HFA-305), Food and Drug Administration, 12420 Parklawn Dr., rm. 1-23,
Rockville, MD 20857.
FOR FURTHER INFORMATION CONTACT: Susan Thompson, Center for Food Safety
and Applied Nutrition (HFS-165), Food and Drug Administration, 200 C
St. SW., Washington, DC 20204, 202-205-5587.
In FR Doc. 95-31196, appearing on page 67194 in the Federal
Register of Thursday, December 28, 1995, the following corrections are
made:
Sec. 101.36 [Corrected]
1. On page 67218, in paragraphs (e)(10)(i) and (e)(10)(ii), the
sample labels are corrected to read as follows:
BILLING CODE 6028-F
[[Page 10481]]
[GRAPHIC] [TIFF OMITTED] TP14MR96.002
[[Page 10482]]
3. On page 67220, in paragraphs (e)(10)(iv) and (e)(10)(v), the
sample labels are corrected to read as follows:
[GRAPHIC] [TIFF OMITTED] TP14MR96.003
[[Page 10483]]
5. On page 67223, in paragraph (e)(11), the sample label is
corrected as shown below. The Reference Daily Intakes (RDI's) values in
this sample label inadvertently reflected the RDI's for these nutrients
that were contained in the proposed rule entitled ``Food Labeling:
Reference Daily Intakes'' that published in the Federal Register of
January 4, 1994 (59 FR 427). They are being corrected to reflect the
RDI's for these nutrients as revised by the final rule of December 28,
1995 (60 FR 67164) entitled ``Food Labeling: Reference Daily Intakes.''
[GRAPHIC] [TIFF OMITTED] TP14MR96.004
Dated: March 7, 1996.
William K. Hubbard,
Associate Commissioner for Policy Coordination.
[FR Doc. 96-6028 Filed 3-13-96; 8:45 am]
BILLING CODE 4160-01-C
Complete official Federal Register PDF
FR Doc. 96-5675 Allocation of Accrued Benefits Between Employer and Employee Contributions; Correction
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Page 10489]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5675]
=======================================================================
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 1
[EE-35-95]
RIN 1545-AT82
Allocation of Accrued Benefits Between Employer and Employee
Contributions; Correction
AGENCY: Internal Revenue Service, Treasury.
ACTION: Correction to notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This document contains corrections to the notice of proposed
rulemaking (EE-35-95) which was published in the Federal Register on
Friday, December 22, 1995 (60 FR 66532), relating to proposed
regulations that provide guidance on calculation of an employee's
accrued benefit derived from the employee's contributions to a
qualified defined pension plan.
FOR FURTHER INFORMATION CONTACT: Janet A. Laufer, (202) 622-4606, (not
a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The notice of proposed rulemaking that is the subject of this
correction proposes amendments that reflect changes made to section
411(c)(2) by the Omnibus Budget Reconciliation Act of 1987 and the
Omnibus Budget Reconciliation Act of 1989.
Need for Correction
As published, the notice of proposed rulemaking (EE-35-95) contains
errors which may prove to be misleading and are in need of
clarification.
Correction of Publication
Accordingly, the publication of the notice of proposed rulemaking
(EE-35-95), which was the subject of FR Doc. 95-31006, is corrected as
follows:
Sec. 1.411(c)-1 [Corrected]
1. On page 66535, column 1, Sec. 1.411(c)-1 (c)(6)(ii), paragraphs
(1) through (8) of Example 1., are correctly designated as paragraphs
(A) through (H) of Example 1.
2. On page 66535, column 1, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (D) of Example 1., line 4, the language
``determined in paragraph (3) of this Example'' is corrected to read
``determined in paragraph (C) of this Example''.
3. On page 66535, column 1, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (D) of Example 1., the last line, the language
``$11,913 - 9.196 = $1,295.'' is corrected to read ``$11,913
9.196 = $1,295.''.
4. On page 66535, column 1, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (H) of Example 1., second and third lines from the
bottom of the column, the language ``contributions, the sum of
paragraphs (4) and (7) of this Example 1. ($1,295 + $1,654 ='' is
corrected to read ``contributions, the sum of paragraphs (D) and (G) of
this Example 1. ($1,295 + $1,654 =''.
5. On page 66535, column 2, Sec. 1.411(c)-1 (c)(6)(ii), paragraphs
(1) through (5) of Example 2. are correctly designated as paragraphs
(A) through (E) of Example 2.
6. On page 66535, column 2, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (B) of Example 2., last line, the language
``($6,480 from paragraph 2 of Example 1).'' is corrected to read
``($6,480 from paragraph (B) of Example 1).''.
7. On page 66535, column 2, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (C) of Example 2., last line, the language ``from
paragraph 3 of Example 1).'' is corrected to read ``from paragraph (C)
of Example 1).''.
8. On page 66535, column 2, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (D) of Example 2., line 4, the language
``determined in paragraph (3) of this Example'' is corrected to read
``determined in paragraph (C) of this Example''.
9. On page 66535, column 2, Sec. 1.411(c)-1 (c)(6)(ii), newly
designated paragraph (D) of Example 2., last line, the language
``($1,295 from paragraph 4 of Example 1)'' is corrected to read
``($1,295 from paragraph (D) of Example 1)''.
Cynthia E. Grigsby,
Chief, Regulations Unit, Assistant Chief Counsel (Corporate).
[FR Doc. 96-5675 Filed 3-13-96; 8:45 am]
BILLING CODE 4830-01-U
Complete official Federal Register PDF
FR Doc. 96-5588 Gasoline
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10492-10493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5588]
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
26 CFR Parts 48, 301, and 602
[LR-115-86; LR-77-88]
Gasoline
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Withdrawal of notices of proposed rulemaking.
-----------------------------------------------------------------------
[[Page 10493]]
SUMMARY: This document withdraws the notices of proposed rulemaking
relating to gasoline that were published in the Federal Register on
November 18, 1987, and September 27, 1988, because of amendments to
sections 4081 and 4101 of the Internal Revenue Code made by the Omnibus
Budget Reconciliation Act of 1990 and the Omnibus Budget Reconciliation
Act of 1993.
FOR FURTHER INFORMATION CONTACT: Frank Boland, (202) 622-3130 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Background
On November 18, 1987, the IRS issued proposed regulations (LR-115-
86) relating to tax on the sale or removal of gasoline (52 FR 44141)
which were later proposed to be amended on September 27, 1988 (53 FR
37590). On September 27, 1988, the IRS issued proposed regulations (LR-
77-88) relating to gasoline excise tax bond requirements (53 FR 37590).
The Omnibus Budget Reconciliation Act of 1990 and the Omnibus Budget
Reconciliation Act of 1993 amended sections 4081 and 4101. On July 22,
1992, final regulations (TD 8421) relating to gasoline tax under
section 4081 as amended were published in the Federal Register (57 FR
32424). On November 30, 1993, temporary regulations (TD 8496) relating
to registration requirements under section 4101 as amended were
published in the Federal Register (58 FR 63069). Therefore, the earlier
proposed rules are withdrawn.
List of Subjects
26 CFR Part 48
Excise taxes, Reporting and recordkeeping requirements.
26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Withdrawal of Notices of Proposed Rulemaking
Accordingly, under the authority of 26 U.S.C. 7805, the notices of
proposed rulemaking that were published in the Federal Register on
November 18, 1987 (52 FR 44141) and September 27, 1988 (53 FR 37590)
are withdrawn.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 96-5588 Filed 3-13-96; 8:45 am]
BILLING CODE 4830-01-P
Complete official Federal Register PDF
FR Doc. 96-5587 Gasoline and Diesel Fuel Excise Tax; Dye Injection Systems and Markers; Measurement
[Federal Register Volume 61, Number 51 (Thursday, March 14, 1996)]
[Proposed Rules]
[Pages 10489-10492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-5587]
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[[Page 10490]]
DEPARTMENT OF THE TREASURY
26 CFR Part 48
[PS-6-95]
RIN 1545-AT18
Gasoline and Diesel Fuel Excise Tax; Dye Injection Systems and
Markers; Measurement
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Notice of proposed rulemaking and notice of public hearing.
-----------------------------------------------------------------------
SUMMARY: This document contains proposed regulations relating to the
gasoline and diesel fuel excise tax. The proposed regulations reflect
and implement certain changes made by the Revenue Reconciliation Act of
1990 and the Omnibus Budget Reconciliation Act of 1993 (the 1993 Act).
They affect certain enterers, refiners, terminal operators, and
throughputters. This document also provides a notice of public hearing
on these proposed regulations.
DATES: Written comments and outlines of oral comments to be presented
at the public hearing scheduled for June 20, 1996, must be received by
June 12, 1996.
ADDRESSES: Send submissions to: CC:DOM:CORP:R (PS-6-95), room 5228,
Internal Revenue Service, POB 7604, Ben Franklin Station, Washington,
DC 20044. In the alternative, submissions may be hand delivered between
the hours of 8 a.m. and 5 p.m. to: CC:DOM:CORP:R (PS-6-95), Courier's
Desk, Internal Revenue Service, 1111 Constitution Avenue, NW.,
Washington, DC. The public hearing will be held in the IRS Auditorium,
Seventh Floor, 7400 Corridor, Internal Revenue Building, 1111
Constitution Avenue, NW., Washington, DC.
FOR FURTHER INFORMATION CONTACT: Concerning the proposed regulations,
Frank Boland, (202) 622-3130; concerning submissions and the hearing,
Christina Vasquez at (202) 622-7190; (not toll-free numbers).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collection of information contained in this notice of proposed
rulemaking has been submitted to the Office of Management and Budget
for review in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507).
Comments on the collection of information should be sent to the
Office of Management and Budget, Attn: Desk Officer for the Department
of the Treasury, Office of Information and Regulatory Affairs,
Washington, DC 20503, with copies to the Internal Revenue Service,
Attn: IRS Reports Clearance Officer, T:FP, Washington, DC 20224.
Comments on the collection of information should be received by May 13,
1996.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless the collection of
information displays a valid control number.
The collection of information is in Sec. 48.4082-1(c). This
information is required by the IRS to monitor manual dyeing at
terminals. This information will be used to ensure the collection of
the proper amount of tax imposed by section 4081. The likely
recordkeepers are business or other for-profit institutions and
organizations. Responses to this collection of information are required
to obtain exemption from the diesel fuel excise tax.
Books or records relating to a collection of information must be
retained as long as their contents may become material in the
administration of any internal revenue law. Generally, tax returns and
tax return information are confidential, as required by 26 U.S.C. 6103.
Estimated total annual recordkeeping burden: 200 hours.
Estimated average annual burden per recordkeeper: 1 hour.
Estimated number of recordkeepers: 200.
Background
Section 4081 imposes a tax on certain removals, entries, and sales
of diesel fuel. However, under section 4082, the tax is not imposed if,
among other conditions, the diesel fuel (1) is indelibly dyed in
accordance with regulations that the Secretary shall prescribe, and (2)
meets such marking requirements (if any) as may be prescribed by the
Secretary in regulations.
The regulations currently provide that the section 4082 exemption
applies only to diesel fuel that contains a prescribed type and amount
of dye. However, the regulations do not prescribe the time or method
for adding the dye to diesel fuel and do not require the use of a
marker.
Dye Injection Systems
Dyeing Methods
Diesel fuel is usually dyed at a terminal rack by either manual
dyeing or mechanical injection.
At a terminal using a typical manual dyeing technique, a measured
amount of dye is manually placed into an empty tank compartment of a
transport trailer while the trailer is at the terminal rack. Then, as
diesel fuel is pumped into the compartment at the rack, the dye and the
fuel are mixed together. Further mixing occurs through the motion of
the trailer as it moves on the highway.
At a terminal using a typical mechanical injection system, a
measured amount of dye is automatically injected into the diesel fuel
as the fuel is delivered into a compartment of a transport trailer at
the terminal rack.
Conerns About Manual Dyeing
The Federal government, State governments, and various segments of
the petroleum industry have long been concerned with the problem of
diesel fuel tax evasion, and to address this problem Congress changed
the law to require that untaxed diesel fuel be indelibly dyed. The IRS
is concerned, however, that tax can still be evaded through removals at
a terminal of undyed fuel that has been designated as dyed.
Manual dyeing is inherently difficult to monitor. It occurs after
diesel fuel has been withdrawn from a terminal storage tank, generally
requires the work of several people, is imprecise, and does not
automatically create a reliable record.
Mechanical dye injection, on the other hand, occurs while the fuel
is still under the control of the terminal operator, is computer
regulated, and can automatically create a reliable record of the amount
of dye that was injected and fuel that was dyed. Thus, dye injection is
the preferred method of combining diesel fuel and dye at a terminal.
Explanation of Provisions
Diesel fuel removed from a terminal at the rack may be dyed before
the fuel is received at the terminal, while the fuel is in a bulk
storage tank at the terminal, or at the terminal rack. Under the
proposed regulations, as under existing law, diesel fuel must contain a
prescribed type and amount of dye at the time of the removal, entry, or
sale that would otherwise be subject to tax. For example, high-sulfur
diesel fuel, which is required to be dyed at a refinery under
Environmental Protection Agency regulations, must contain the
prescribed type and amount of dye at the time of the removal at the
terminal rack even if additional dye must be added at that point.
Under the proposed regulations, a terminal operator that dyes
diesel fuel at a terminal generally must use a prescribed mechanical
injection system or else give a bond to the district
[[Page 10491]]
director as a condition of retaining its registration. The prescribed
system contains calibrated measurement devices, shut-off devices, and
locks and similar equipment to secure these devices. If the system
malfunctions at a particular terminal, the terminal operator may
manually dye the fuel if the operator notifies the district director of
the malfunction.
The proposed regulations also prescribe the records that the
terminal operator must maintain with respect to any manual dyeing
performed at its terminals.
Markers
A marker is a material that is placed in diesel fuel to designate
the fuel as untaxed. Unlike dye, a marker does not reveal its presence
until the fuel into which it is introduced is subjected to a special
test. Markers are effective even if diluted and can be detected even if
there is no visual evidence of dye.
The proposed regulations do not require the use of markers.
However, the IRS expects to issue a notice of proposed rulemaking with
respect to markers within the next year. In the meantime, the IRS is
interested in receiving comments relating to the type and concentration
of markers, the cost of markers, and whether lower concentrations of
dye could be used in conjunction with a marker.
Measurement
Existing regulations provide that gallons of taxable fuel may be
measured on the basis of actual volumetric gallons, gallons adjusted to
60 degrees Fahrenheit, or any other temperature adjustment method
approved by the Commissioner.
These proposed regulations modify this rule by generally providing
that measurement is to be made on the basis of actual volumetric
gallons or gallons adjusted to 60 degrees Fahrenheit, whichever is the
basis for measurement under the position holder's terminaling agreement
with the terminal operator.
Special Analyses
It has been determined that this notice of proposed rulemaking is
not a significant regulatory action as defined in EO 12866. Therefore,
a regulatory assessment is not required. It also has been determined
that section 553(b) of the Administrative Procedure Act (5 U.S.C.
chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do
not apply to these regulations, and, therefore, a Regulatory
Flexibility Analysis is not required. Pursuant to section 7805(f) of
the Internal Revenue Code, this notice of proposed rulemaking will be
submitted to the Chief Counsel for Advocacy of the Small Business
Administration for comment on its impact on small business.
Comments and Public Hearing
Before these proposed regulations are adopted as final regulations,
consideration will be given to any written comments (a signed original
and eight (8) copies) that are submitted timely to the IRS. All
comments will be available for public inspection and copying.
A public hearing has been scheduled for Thursday, June 20, 1996, at
10 a.m. in the Auditorium, Internal Revenue Building, 1111 Constitution
Avenue NW., Washington, DC. Because of access restrictions, visitors
will not be admitted beyond the building lobby more than 15 minutes
before the hearing starts.
The rules of 26 CFR 601.601(a)(3) apply to the hearing.
Persons that wish to present oral comments at the hearing must
submit written comments and an outline of topics to be discussed and
the time to be devoted to each topic (signed original and eight (8)
copies) by June 12, 1996.
A period of 10 minutes will be allotted to each person for making
comments.
An agenda showing the scheduling of the speakers will be prepared
after the deadline for receiving outlines has passed. Copies of the
agenda will be available free of charge at the hearing.
Drafting Information. The principal author of these regulations
is Frank Boland, Office of Assistant Chief Counsel (Passthroughs and
Special Industries). However, other personnel from the IRS and
Treasury Department participated in their development.
List of Subjects in 26 CFR Part 48
Excise taxes, Reporting and recordkeeping requirements.
Proposed Amendments to the Regulations
Accordingly, 26 CFR part 48 is proposed to be amended as follows:
PART 48--MANUFACTURERS AND RETAILERS EXCISE TAXES
Paragraph 1. The authority citation for part 48 continues to read,
in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 48.4081-8 is revised to read as follows:
Sec. 48.4081-8 Taxable fuel; measurement.
(a) Removals from a terminal. For purposes of the tax imposed under
Secs. 48.4081-2 and 48.4081-3(d), taxable fuel is measured on the basis
of actual volumetric gallons or gallons adjusted to 60 degrees
Fahrenheit, whichever is the basis for measurement under the position
holder's terminaling agreement with the terminal operator.
(b) Other taxable events. For purposes of the taxes imposed under
Secs. 48.4081-3(b), 48.4081-3(c), 48.4081-3(e), and 48.4082-4, and the
tax imposed on the removal of taxable fuel under Sec. 48.4081-3(g),
taxable fuel is measured on the basis of actual volumetric gallons or
gallons adjusted to 60 degrees Fahrenheit. For purposes of the tax
imposed under Sec. 48.4081-3(f) and the tax imposed on the sale of
taxable fuel under Sec. 48.4081-3(g), taxable fuel is measured on the
basis of actual volumetric gallons or gallons adjusted to 60 degrees
Fahrenheit, whichever basis is used to invoice the buyer.
(c) Effective date. This section is applicable as of October 1,
1996.
Par. 3. Section 48.4082-1 is amended as follows:
1. In the introductory text of paragraph (a), the language ``if--''
is removed and ``if, at the time of the removal, entry, or sale--'' is
added in its place.
2. Paragraph (d) is revised.
The revision reads as follows:
Sec. 48.4082-1 Diesel fuel tax; exemption
* * * * *
(d) Time for adding the dye and marker--(1) Removals from a
terminal at the terminal rack; in general. With respect to any removal
from a terminal at the terminal rack, diesel fuel satisfies the dyeing
and marking requirements of this paragraph (d) only if the dye and
marker required by paragraphs (b) and (c) of this section are combined
with diesel fuel--
(i) Before the fuel is received at the terminal;
(ii) While the fuel is in a bulk storage tank at the terminal; or
(iii) At the terminal rack by means of--
(A) A mechanical injection system described in paragraph (d)(2) of
this section; or
(B) Nonconforming dyeing, under the conditions of paragraph (d)(3)
of this section.
(2) Removals from a terminal at the terminal rack; mechanical
injection systems. A mechanical injection system is described in this
paragraph (d)(2) only if the district director has determined (and such
determination has not been withdrawn) that the system contains--
(i) Features that automatically inject a measured amount of dye and
marker into diesel fuel as the fuel is delivered
[[Page 10492]]
into the transport compartment of a truck, trailer, railroad car, or
other means of nonbulk transfer;
(ii) Calibrated devices that accurately measure and record the
amount of dye, marker, and fuel that is dispensed at the rack for each
removal;
(iii) Shut-off devices that prevent the removal of more than 50
gallons of undyed diesel fuel in the case of a system malfunction; and
(iv) Locks or similar security equipment that secure the
measurement devices and shut-off devices.
(3) Removals from a terminal at the terminal rack; conditions for
nonconforming dyeing. Nonconforming dyeing meets the conditions of this
paragraph (d)(3) only if diesel fuel is dyed and marked in the manner
described in paragraph (d)(4) of this section and--
(i) The terminal operator has given a bond as a condition of
registration under the provisions of Sec. 48.4101-1(f)(4)(i); or
(ii) In the case of a terminal containing a mechanical injection
system described in paragraph (d)(2) of this section--
(A) The accurate mechanical injection of dye and marker at the
terminal cannot occur because of an equipment malfunction or a shutdown
for maintenance purposes;
(B) Before beginning any nonconforming dyeing described in
paragraph (d)(4) of this section, the terminal operator notifies the
district director of the time, location, and type of malfunction or
maintenance shutdown; and
(C) Immediately after correction of the malfunction or completion
of the maintenance, the terminal operator notifies the district
director that mechanical injection has resumed.
(4) Removals from a terminal at the terminal rack; description of
nonconforming dyeing--(i) In general. Diesel fuel is dyed and marked in
a manner described in this paragraph (d)(4) only if the diesel fuel is
dyed and marked by means of a mechanical injection system described in
paragraph (d)(4)(ii) of this section or manual dyeing described in
paragraph (d)(4)(iii) of this section.
(ii) Mechanical injection. Diesel fuel is dyed and marked in a
manner described in this paragraph (d)(4)(ii) if the diesel fuel is
dyed and marked by means of a mechanical injection system that is not
described in paragraph (d)(2) of this section and, with respect to the
diesel fuel so dyed and marked, the terminal operator maintains a
record of--
(A) The identity and registration number of the position holder;
(B) The identity and taxpayer identification number of the
individual that physically receives the fuel at the terminal;
(C) The identity and taxpayer identification number of any
individual that physically operates the mechanical injection equipment;
and
(D) The volume of the fuel dyed and marked and the date and time of
the dyeing.
(iii) Manual dyeing. Diesel fuel is dyed and marked in a manner
described in this paragraph (d)(4)(iii) if--
(A) The terminal operator places a dye and marker of the type and
concentration required by paragraphs (b) and (c) of this section into a
compartment of a truck, trailer, railroad car, or other means of
nonbulk transfer;
(B) The diesel fuel is removed from the terminal at the rack and is
immediately delivered into the compartment described in paragraph
(d)(4)(iii)(A) of this section; and
(C) With respect to the diesel fuel so dyed and marked, the
terminal operator maintains a record of--
(1) The identity and registration number of the position holder;
(2) The identity and taxpayer identification number of the
individual that physically receives the fuel at the terminal;
(3) The identity and taxpayer identification number of the
individual that physically places the dye and marker into the
compartment described in paragraph (d)(4)(iii)(A) of this section; and
(4) The volume of the fuel dyed and marked and the date and time of
the manual dyeing.
(5) Removals from refineries, sales or entries. With respect to any
removal from a refinery, sale, or entry, diesel fuel satisfies the
dyeing and marking requirements of this paragraph (d) only if the dye
and marker required by paragraphs (b) and (c) of this section are
combined with diesel fuel before the removal, sale, or entry that would
otherwise be subject to the tax imposed by section 4081. Thus, for
example, diesel fuel that is entered into the United States by means of
nonbulk transfer (such as in a railroad car) does not satisfy the
requirements of this paragraph (d)(5) if the required dye and marker
are combined with the diesel fuel after the fuel has been entered into
the United States.
(6) Cross reference. For rules allowing inspection of equipment
used for the dyeing of fuel, see section 4083.
(7) Effective date. This paragraph (d) is applicable as of April 1,
1997.
* * * * *
Par. 4. Section Sec. 48.4101-1 is amended as follows:
1. Paragraph (b)(7) is added.
2. Paragraph (f)(4)(i) is amended by adding a sentence at the end
of the paragraph.
3. In the first sentence of paragraph (j)(2) introductory text, the
language ``A bond'' is removed and ``Except as provided in the last
sentence of paragraph (f)(4)(i) of this section, a bond'' is added in
its place.
4. Paragraph (l)(4) is added
The additions read as follows
Sec. 48.4101-1 Registration.
* * * * *
(b) * * *
(7) Nonconforming dyeing amount. The nonconforming dyeing amount is
the product of--
(i) The rate of tax on diesel fuel provided by section 4081(a)(2);
and
(ii) An amount up to the total number of gallons of diesel fuel
expected to be dyed by nonconforming dyeing (and removed at terminal
racks of the applicant that do not have a mechanical injection system
described in Sec. 48.4082-1(d)(2)) during a representative one-month
period (as determined by the district director).
* * * * *
(f) * * *
(4) * * * (i) * * * An applicant that operates a terminal where
diesel fuel is dyed by nonconforming dyeing (and removed at a rack that
is not equipped with a mechanical injection system described in
Sec. 48.4082-1(d)(2)) meets the adequate security test only if the
applicant has given a bond (in addition to any bond given under
paragraph (j) of this section) equal to the nonconforming dyeing
amount.
* * * * *
(l) * * *
(4) The last sentence of paragraph (f)(4)(i) of this section is
applicable as of April 1, 1997.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
[FR Doc. 96-5587 Filed 3-13-96; 8:45 am]
BILLING CODE 4830-01-P
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