The Board administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514, which has been codified, as amended, largely at 5 U.S.C. 8351 and 8401-8479. The TSP is a tax-deferred retirement savings plan for Federal employees, which is similar to cash or deferred arrangements established under section 401(k) of the Internal Revenue Code (I.R.C.) (26 U.S.C. 401(k)). The TSP is qualified under section 7701(j) of the I.R.C. (26 U.S.C. 7701(j)). Sums in the TSP are held in trust for the TSP participant.

Part 1650 was published in final form in the Federal Register on September 18, 1997 (62 FR 49112), and was subsequently amended by a final rule published in the Federal Register on June 9, 1999 (64 FR 31052). This proposed rule further amends the final rule.

The Board proposes to revise § 1650.42(b) to provide that a financial hardship withdrawal may no longer be transferred to an IRA or other eligible retirement plan. The Board proposes to eliminate this option to transfer because transfer is available only for distributions which meet the Internal Revenue Service (IRS) requirements for an eligible rollover distribution. However, the IRS no longer considers a financial hardship withdrawal to be an eligible rollover distribution. See 26 U.S.C. 402(c)(4). Instead, a financial hardship withdrawal is treated as a nonperiodic payment.

Section 402(c)(4) applies to plans qualified under section 401(k) of the I.R.C. (26 U.S.C. 401(k)); this does not include the TSP, which is a plan qualified under section 7701(j) (26 U.S.C. 7701(j)). Nevertheless, the Board proposes to follow the IRC rule that applies to private sector plans. (An age-based in-service withdrawal continues to be eligible for transfer to an IRA or other qualified plan.)

As a consequence of this change, the Board also proposes to eliminate § 1650.31(b) which allows a participant to elect additional tax withholding from a financial hardship in-service withdrawal to ensure that he or she receives an amount adequate to cover the entire financial hardship, after withholding. However, unlike an eligible rollover distribution, a participant can avoid withholding (or can increase withholding) on a nonperiodic distribution by submitting an IRS Form W-4P, Withholding Certificate for Pension or Annuity Payments. Since the participant can obtain the full amount of the withdrawal by submitting this form to the TSP record keeper, the option to increase the amount of the withdrawal is no longer necessary.

Other changes to § 1650.31 include changes to (b)(2) to clarify that the documentation supporting a financial hardship withdrawal request based upon an extraordinary expense must be dated within 45 days of the request. Proposed § 1650.31 also includes a new paragraph (d). The new paragraph explains that a participant who has a pending Chapter 13 bankruptcy action is not eligible for a financial hardship withdrawal because the TSP presumes that the bankruptcy court is providing adequate funds for the participant's living expenses.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act of 1980.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, and 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under section 1532 is not required.

For the reasons set out in the preamble, the Board proposes to amend 5 CFR part 1650 as follows:

This rule has been determined to be significant and was reviewed by the Office of Management and Budget under Executive Order 12866. This rule, however, is not economically significant, since it is not expected to have an economic impact on the economy of $100 million or more in any one year.

The Food Stamp Program is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in the final rule in 7 CFR Part 3015, Subpart V and related Notice (48 FR 29115), this Program is excluded from the scope of Executive Order 12372 which requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments and consult with them as they develop and carry out those policy actions. The Food and Nutrition Service (FNS) has considered the impact of this rule which proposes numerous changes to the requirements for approval and operations of Electronic Benefit Transfer (EBT) systems to deliver food stamp benefits. All of the provisions in this rule are discretionary. FNS is not aware of any case where any of these provisions would in fact preempt State law. Prior to drafting this proposed rule, we received input from State agencies at various times. Several of the provisions are in direct response to State agency concerns and some, in fact, codify policies already implemented by State agencies operating EBT systems. Since the Food Stamp Program (FSP) is a State administered, federally funded program, our national headquarters staff and regional offices have informal and formal discussions with State and local officials on an ongoing basis regarding EBT implementation issues. This arrangement allows State agencies to provide feedback that forms the basis for many discretionary decisions in this and other FSP rules. In addition, we sent representatives to regional, national, and professional conferences to discuss our issues and receive feedback on EBT implementation.

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612). Eric M. Bost, the Under Secretary for Food, Nutrition, and Consumer Services has certified that this proposed rule will not have a significant economic impact on a substantial number of small entities. State and local welfare agencies will be the most affected to the extent that they administer the Program.

In accordance with the Paperwork Reduction Act of 1995, this proposed rule announces our intent to revise information collection 0584-0083 and reduce the amount of information collected as part of the Advanced Planning Documents (APD) required of State agencies requesting funding for an Electronic Benefit Transfer (EBT) system for food stamps.

Comments on this proposed rule must be received by September 10, 2001.

Send comments to Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for FNS, Washington, DC, 20503. Please also send a copy of your comments to Jeffrey N. Cohen, Chief, Electronic Benefit Transfer Branch, Benefit Redemption Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Alexandria, VA 22302. For further information, or for copies of the information collection, please contact Mr. Cohen at the above address.

Comments are invited on: (a) Whether the proposed collection of information is necessary for the performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

For Further Information Contact: Jeffrey N. Cohen, (703) 305-2522.

Title: Operating Guidelines, Forms and Waivers.

OMB Number: 0584-0083.

Type of Request: Revision of a currently approved collection.

Abstract: Under section 7(i) of the Food Stamp Act of 1977, as amended (FSA), (7 U.S.C. 2016(i)) the Secretary is authorized to permit State agencies to implement Electronic Benefit Transfer (EBT) systems. The Secretary is authorized to establish standards for the required testing prior to implementation of any EBT system and may require analysis of the implementation results in a limited pilot project area before expansion of the system. Any State requesting funding for an EBT system must submit a written plan of action called an Advance Planning Document (APD) to the Food and Nutrition Service (FNS).

In this proposed rulemaking, we are revising Food Stamp Program rules affecting the standards for approval and operation of Food Stamp EBT systems. Several of the provisions will reduce the amount of information required for a State agency to submit as part of the standard APD. We are proposing these revisions in response to the evolution of EBT over time, which has rendered some of the information we are currently collecting unnecessary.

With provisions in this regulation, we are proposing to eliminate or reduce the reporting requirements as described below.

• State agencies will no longer need to provide FNS with the written planning and implementation APD approvals from other participating Federal agencies, or indicate that approval is being sought simultaneously from other participating Federal agencies.

• State agencies will be required to submit a substantially abbreviated planning APD compared to what is currently required. The document will include a brief letter of intent, a budget, a cost allocation plan and a schedule of activities and deliverables.

• State agencies will no longer need to submit an acceptance test report unless FNS is not present at the testing or if serious problems are found during the test.

• State agencies will no longer have to submit quarterly pilot project reports, but rather, report problems or issues to FNS when they occur or are identified.

• State agencies will not be required to submit a pilot cost analysis.

• The State agency will not need to submit an APD update requesting FNS approval to expand EBT operations beyond the pilot area unless there are substantive changes to the implementation plan. State agencies may expand EBT simultaneously with pilot operations, unless significant problems arise.

As currently approved by OMB, the estimated time to gather information and complete an EBT APD is 45 hours per respondent. The recordkeeping burden includes maintaining a copy of the system design specifications, the APD submission, approvals and APD updates. A total of 39 States are operational with EBT systems and we expect 41 States to operate EBT systems within the next year. In addition to the remaining States, some EBT States will be entering new contracts as their current contracts expire. We estimate 10 State agencies will submit an APD each year, for a total of 450 hours.

Estimates of Burden: We estimate the provisions of this proposed rule, as listed above, will reduce the amount of time each State agency spends on an APD for EBT by 10 hours, for an overall decrease in burden hours of 100 hours annually, bringing the total time down to 35 hours per respondent.

Respondents: State agencies.

Estimated number of Respondents: 10 State agencies per year.

Estimated number of Responses per respondent: One.

Estimated annual number of responses: 10.

Estimated Total Annual Burden on Respondents: 350 hours.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless so specified in the “Effective Date” paragraph of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted. In the Food Stamp Program, the administrative procedures are as follows: (1) For Program benefit recipients—State administrative procedures issued pursuant to 7 U.S.C. 2020(e)(1) of the FSA and regulations at 7 CFR 273.15; (2) for State agencies—administrative procedures issued pursuant to 7 U.S.C. 2023 of the FSA and regulations at 7 CFR 276.7 (for rules related to non-quality control (QC) liabilities) or 7 CFR Part 283 (for rules related to QC liabilities); (3) for Program retailers and wholesalers—administrative procedures issued pursuant to Section 14 of the FSA (7 U.S.C. 2023) and 7 CFR 278.8.

Title II of the Unfunded Mandate Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Under section 202 of the UMRA, the FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with the “Federal mandates” that may result in expenditures to State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector of $100 million or more in any one year. Thus, this rule is not economically significant, nor subject to the requirements of sections 202 and 205 of the UMRA.

In this rule, FNS is proposing to revise food stamp regulations affecting the standards for approval and operation of Food Stamp Electronic Benefit Transfer Systems. The revisions will streamline administration of the program, offer greater flexibility to State agencies in enacting policy, and improve customer service. Other provisions have been clarified in order to facilitate implementation by State agencies.

On April 1, 1992, the Department issued a final rule establishing standards for operation of on-line Electronic Benefit Transfer (EBT) Systems as an alternative to coupons. Those regulations were promulgated in accordance with the Mickey Leland Memorial Domestic Hunger Relief Act of 1990 (Leland Act), Pub. L. 101-624, as part of a package of items aimed at improving the efficiency and effectiveness of program operations.

The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA) signed by the President August 22, 1996, further authorizes use of off-line EBT technology, which uses a self-contained benefit access device, commonly known as a smartcard, to access benefits. The provisions of this rulemaking pertain to both on-line and off-line systems, unless otherwise specified. Currently, no industry standards exist for off-line smartcard systems. We intend to propose standards for off-line EBT systems in the future once those industry standards are developed. However, we have learned a great deal about off-line EBT systems from those currently operating. State agencies interested in implementing off-line systems may submit proposals for approval which will be evaluated on a case by case basis, pending the publication of specific off-line standards.

When the EBT regulations were initially issued, EBT systems were still in their infancy and had only been implemented in a few pilot areas. However, as more and more State agencies went on-line with EBT, other State and federal agencies implementing EBT were able to learn and benefit from those early efforts. As a result, State agencies have been able to roll-out their systems more aggressively and with greater ease by replicating the system designs of operational State agencies, with some State-specific modifications. In order to keep pace with the strides made in EBT implementation, the Department has reviewed the EBT regulations and is proposing modifications to the rules to reflect a more standardized and streamlined approach to EBT system approvals. Provisions which would improve program administration through greater State agency flexibility, automation and integrity have also been proposed in this rulemaking. Other provisions would be clarified by reorganizing or deleting paragraphs, in order to simplify implementation for State agencies. The major revisions are discussed below.

Current regulations at 7 CFR 274.12(b)(1) require that State agencies submit APDs for approval of EBT systems. We are clarifying in this proposed rule our expectation that State agencies continue to follow the APD process when procuring subsequent EBT systems after the initial system contract comes to an end.

Current regulations at 7 CFR 274.12(b)(4) require that the State agency provide written approval to FNS of the Planning and Implementation Advanced Planning Documents from other participating Federal agencies or indicate that approval is being sought simultaneously from participating Federal agencies. This requirement was intended to keep FNS informed on where other Federal agencies were in the EBT project approval process, including any issues that could potentially effect project approval by other agencies. However, in May 1994, FNS was designated the “lead program agency” for the Federal Government with regard to State EBT systems. In this role, FNS now coordinates document approvals and provides State agencies with a single point of contact in the Federal Government, when necessary. Since State agencies no longer need to coordinate document approvals from relevant Federal agencies, we propose eliminating this requirement.

The Department is also proposing to reduce the amount of State EBT planning documentation to be submitted for EBT systems approval, as required in 7 CFR 274.12(c)(1). The Department is confident that State agencies recognize the importance of careful and thorough project planning for EBT system implementation. There is no longer a need for FNS to receive the current level of detail on planning activities to provide sufficient agency oversight. Therefore, this rule proposes to modify regulations at 7 CFR 274.12(c)(1)(i) and 274.12(c)(1)(ii) to make Planning Advanced Planning Documents (PAPD) less burdensome and less prescriptive in terms of the information required, by:

(1) Eliminating the specifications contained in (i) and (ii) for pilot project site and expanded site descriptions and description of major contacts; and

(2) Indicating that only minimal information be contained in the PAPD, including a brief letter of intent, planning budget, cost allocation plan, and schedule of activities and deliverables.

To further decrease the burden on State agencies to document all aspects of the EBT planning process, the proposed regulations at 7 CFR 274.12(c)(2)(i) would no longer require a functional demonstration test plan or report. This was operationalized in our streamlined procedures implemented in 1994. Although we no longer require the documentation, we continue to recommend that State agencies demand a functional demonstration test of their vendors, particularly if functions of the system are new for that vendor. Without such a test for the State agency's benefit, avoidable functional problems could arise later in the acceptance test and result in the project's delay.

In general, extensive acceptance testing must be successfully completed prior to system operation, as stipulated in section 274.12(c)(2)(iii)(B). Since experience has shown that EBT systems are often modified over the life of a State agency's contract with a particular vendor, it may be necessary to repeat any or all of these tests if significant changes are made to the system after the system is operational. Therefore, the Department is clarifying this provision by indicating that FNS reserves the right to require such re-testing, if warranted.

The Department is also proposing to revise the current provisions at 7 CFR 274.12(c)(2)(iv), which require the State agency to provide an acceptance test report. Under most circumstances, FNS will no longer require this report; however, a report will be necessary if FNS is not present at the testing or serious problems are uncovered during the test.

Current requirements at 7 CFR 274.12(c)(4)(i) stipulate that pilot project reports contain standard information as prescribed in subparagraphs (A) through (R). Now that EBT is no longer in its infancy, this information has proven to be excessive, and is often irrelevant to the task of identifying issues that have surfaced during the pilot shakedown period. The general intent of pilot project reports is to identify any problems which need to be resolved prior to expansion. The Department is proposing to delete 7 CFR 274.12(c)(4)(i)(A) through (c)(4)(i)(R) and replace them with less rigid requirements and to allow State agencies latitude to discern which details are relevant for their particular pilot. Reporting would no longer be required on a quarterly basis, rather, it would occur as issues or problems arise.

Current regulations at 7 CFR 274.12(c)(5) require the State agency to conduct a cost analysis comparing the actual EBT pilot project costs to the costs of the EBT system operations projected in the Implementation APD and the costs of the coupon issuance system being replaced. This data was collected for information purposes only. However, it is a particularly cumbersome and costly requirement for State agencies and FNS has been waiving the requirement for some time. Therefore, the Department is proposing that this requirement be eliminated.

Current regulations at 7 CFR 274.12(d) require a minimum of three months of full pilot project operation prior to obtaining approval for expansion. State agencies complained that this requirement led to unnecessary delays in project expansion and additional costs while they wait for completion of analyses and FNS approval. FNS recognized that EBT systems have matured to the point where it is unusual to have significant problems. There remains, however, a statutory requirement for a pilot.

Consequently, FNS has been allowing State agencies to expand beyond the pilot area prior to the end of the three month period as long as they provide the required information on the pilot area. In keeping with this policy, we are now proposing that FNS negotiate a suitable pilot area with each State agency to be the basis of the three-month analysis and reporting. State agencies will not need to cease expansion activities as long as this pilot area operates without major difficulties. Expansion may continue as agreed in the implementation plan; however, FNS reserves the right to halt roll-out activities if problems arise during pilot or project expansion.

Current regulations at 7 CFR 274.12(f)(4)(v) require State agencies to ensure that retailer equipment is replaced or repaired within 24 hours. We have found, however, that under certain circumstances, particularly in rural settings, it may be impossible for State agencies to guarantee this standard. Therefore, we propose that this timeframe be extended to 48 hours.

Current regulations at 7 CFR 274.12(f)(4)(vi) require State agencies to ensure that retail store employees are trained in system operation prior to implementation. This requirement was originally established to facilitate EBT conversion and to ensure that retailers were provided with the training needed to effectively participate in the program. However, the infrastructure has matured, commercial POS deployment is more prevalent and more stores are using their own systems. Consequently, mandating that all retailers receive specialized training provided by the State agency is no longer necessary. We are, therefore, proposing that State agencies continue to ensure that training is offered to all retailers, but allow retailers to opt out of this instruction if they desire. For tracking purposes, State agencies shall direct retailers to confirm in writing that they are waiving their training option.

Current regulations at 7 CFR 274.12(f)(4)(vii) require that FNS compliance investigators be provided access to State EBT systems in order to conduct investigations of program abuse and alleged violations. We are expanding this requirement for “access” to include other FNS staff involved in compliance activity from FNS regional and field offices and as well as staff from the Department's Office of Inspector General, and specifying that they have on-line access to a State agency's EBT system. This may demand the deployment of administrative terminals to Compliance Branch Area offices, Regional offices and Field offices in order to achieve this requirement. Also, FNS compliance investigators, as well as investigators from the Department's Office of Inspector General, must have access to EBT cards with accounts that are updated as necessary for use in food stamp investigations.

Current regulations at 7 CFR 274.12(g)(3)(ii) require that the information contained on transaction receipts comply with the requirements of 12 CFR part 205 (Regulation E). The provisions of 12 CFR part 205 allow card numbers to be truncated on the printed receipt. However, it does not require truncation. Regulations at 7 CFR 274.12(g)(3)(iii) require that the primary account number or a coded transaction number be included on the receipt. FNS recognized the vulnerability that results from printing the entire card number on a receipt in EBT systems due to the existence of manual and key-entered transactions and recommended to State agencies that a truncated card number be printed on the receipt. While this policy has been adopted in every operational project to date, we want to be sure it remains this way. Therefore, in the interest of consistently protecting client information, FNS proposes to require truncation of the card number in addition to requirements of 12 CFR part 205.

The Department is proposing a revision to the regulations at 7 CFR 274.12(g)(5)(i) which require Personal Identification Number (PIN) selection. The use of PIN assignment is becoming more widespread in the commercial world and is of interest to State agencies because of the potential cost savings it provides. Several States have requested waivers to allow this approach and it has already been implemented in many States. Therefore, we propose that this section be amended to allow PIN assignment in accordance with commercial industry standards, as long as clients have the ability to later select their PIN if they so desire and are informed of this alternative.

Current regulations at 7 CFR 274.12(g)(5)(ii) require a State agency to replace lost or stolen EBT cards within two days. At the same time, the preamble in our April 1, 1992 rule (57 FR 11230) invites the State agency to request a waiver to allow for a replacement time up to five days if the State agency is using centralized issuance. Several State agencies have received such a waiver and have not reported any significant inconvenience to clients.

In order to save costs, many State agencies now issue EBT cards centrally through the mail rather than over-the-counter at the local office. This approach also saves recipients from having to make a separate trip to have their cards issued. However, it is impossible for State agencies to meet a 24-hour time limit for card replacements when issuing cards centrally. Moreover, for security purposes, State agencies are required to send the EBT card and the PIN separately when cards are issued through the mail. Security expectations are generally that there should be at least 3 days between when the card arrives at a home and when the PIN arrives. For these reasons, we propose that this section be amended to permit up to five days for card replacement when a State is using centralized mail issuance.

At the same time, we are clarifying that the intent of “card replacement” requirements is to ensure that clients are given access to their benefits within the specified time frame. This means that regardless of what time frame the State agency has indicated for card replacement (e.g., 2 days, 5 days) the client must have in hand an active card and PIN, with available benefits on the card, within the time frame specified by the State agency.

Current provisions at 7 CFR 274.12(g)(10) call for a “hands-on” approach to household training. This leads to considerable costs for State agencies and is not the only effective means to provide this service to clients. In EBT projects to date, several State agencies have sought waivers in this area to allow for mail training, videos, and kiosk approaches in lieu of a “hands-on” component. Since State agencies are in the best position to decide which approach is most viable for their particular environment and client population, the Department proposes amending this section to continue to require household training without specifying a particular method for the general population. However, hands-on training must be available as a back-up for those clients who request it, for special needs populations such as the elderly, or for those individuals identified as having problems with the EBT system.

FNS Authorization: Current regulations at 7 CFR 274.12(h)(1)(ii) include procedural directions for FNS field offices regarding authorizations of Food Stamp retailers. Since these requirements are not directed at State agencies, we are proposing to delete the provisions from this citation. This would not change current policy.

Fees: Current law at section 7(h)(2) of the Food Stamp Act (7 U.S.C. 2016(h)(2)) and regulations at 7 CFR 274.12(h)(2) state that authorized retailers shall not be required to pay costs essential to EBT system operations that are utilized solely for the Food Stamp Program. The Department wishes to reiterate that retailers cannot be required to pay for costs related to EBT for Food Stamps. This includes any fees associated with food stamp transactions. Note that while retailers cannot be charged fees for such transactions on government-provided terminals, they can be charged for commercial/third party processor food stamp transactions. This issue has also surfaced in operating projects with regard to potential bank charges. There have been some instances where banks have attempted to impose a fee on retailers for food stamp EBT redemption services. This is contrary to regulations.

State agencies have argued and the Department agrees that this prohibition on charging retailers should not be extended to cover the following costs which result from abuses, breach of contract, or negligence on the part of the retailer:

(1) cost for the replacement of lost, stolen or damaged equipment;

(2) materials and supplies for POS terminals not provided by the State agency; and

(3) telecommunication costs for any non-EBT use by retailers when lines are provided by the State agency. This would also allow the State agency to remove phone lines that they have installed and maintained for food stamp transactions in instances where there is significant misuse of the lines.

Several State agencies have sought waivers to allow charges to retailers in these circumstances in the interest of avoiding abuses in these areas. Therefore, we propose to revise this section to allow State agencies to charge retailers reasonable fees only in the circumstances outlined above.

POS Deployment: Current regulations at 7 CFR 274.12(h)(4)(ii) prescribe a formula for minimum POS deployment “up to the number of lanes in each store.” The Department believes that this provision has been interpreted by some to be unnecessarily restrictive. State agencies have the flexibility under current regulation to deploy terminals at customer service booths or other locations in the store for balance inquiry or other purposes, as many State agencies have done. However, because this policy has been often misinterpreted to prohibit such deployment, we are proposing to clarify that State agencies may deploy terminals beyond the number of lanes in a store at the State agency's discretion.

Current regulations at 7 CFR 274.12(i)(6)(i)(B) require that FNS's statement of non-discrimination be printed on the card or card jacket. Several issues have arisen as a result of this requirement. Since many States are implementing multi-benefit programs on a single card, the inclusion of this statement, which is specific to FNS benefit programs, is no longer practical. In addition, many households are unclear about the circumstances under which they should contact the State, the State's contractor, or FNS about a particular problem. Consequently, the address provided to notify FNS of discrimination incidents has been misused and has been a source of client confusion and frustration.

Furthermore, since publication of the regulations, a Departmental non-discrimination statement has been issued in Departmental Regulation 4300 (DR 4300) and now replaces the FNS statement. The non-discrimination statement in DR 4300 differs from that in the EBT rules by directing recipients to report instances of discrimination to the USDA Office of Civil Rights rather than to FNS. The statement reads, “In accordance with Federal law and the U.S. Department of Agriculture policy, this institution is prohibited from discriminating on the basis of race, color, national origin, sex, age, religion, political beliefs, or disability. To file a complaint of discrimination, write USDA, Director, Office of Civil Rights, Room 326-W, Whitten Building, 1400 Independence Avenue, SW., Washington, DC 20250-9410 or call (202) 720-5964 (voice and TDD). USDA is an equal opportunity provider and employer.”

Since State Agencies are already expected to provide this non-discrimination statement on application forms, handbooks, manuals and other material distributed to the system users, the Department is proposing that this statement be removed from the card or card jacket. Recipients must be notified of their non-discrimination protections as part of household training. FNS regulations at 7 CFR 274.12(g)(10) would be revised to reflect this change.

Current regulations at 7 CFR 274.12(j)(1)(iii) describe the reimbursement procedures for crediting retailers through the Payment Management System. This mechanism has been phased-out and replaced by the Automated Standard Application for Payment (ASAP) system developed for the U.S. Treasury Department by the Federal Reserve Bank of Richmond. Therefore, the Department is proposing revisions to this section which update the new crediting procedures. ASAP improves service to retailers in that it allows for a much later cut-off window than the previous system, and, at the same time, ensures next-day reimbursement even with the later cut-off time. State agencies will need to accommodate the new communication linkages and data flow requirements as prescribed by FNS.

In conjunction with the ASAP system, FNS has entered into a partnership with the Federal Reserve Bank of Richmond to develop the Account Management Agent (AMA) system. The AMA system supports the Department's efforts to improve accountability, oversight and management of State EBT systems. State agencies will need to provide data in a format established by FNS to the FNS Account Management Agent. This proposed requirement is specified in section 274.12(k)(2)(iii).

In order to take advantage of the extensive audit trail available in EBT systems, FNS has designed and implemented the Anti-fraud Locator for EBT Redemption Transaction (ALERT) system to collect and examine EBT transaction data for the purpose of detecting and investigating retailer fraud and abuse. In support of the system, State agencies will need to provide retailer transaction data to FNS on a monthly basis in accordance with the format specified by FNS. The standardized format was developed in consultation with EBT processors. This provision would replace the current requirement specified in 7 CFR 274.12(k)(2)(ii) for EBT exception reports.

Current regulations at 7 CFR 274.12(l)(2) indicate that State agencies can receive enhanced funding for development of EBT systems that are fully integrated components of the State's complete automated data processing (ADP) system. This enhanced funding has not been available for ADP development since the April 1, 1994 enactment of Public Law 103-66 amending the FSA. Therefore, this provision has been removed.

Current regulations at 7 CFR 274.12(m) require the State agency to ensure that a manual purchase system is available for use during times when the EBT system is inaccessible. Electronic store-and-forward transactions are available to retailers in commercial debit systems and are preferable to manual vouchers for some retailers who do not wish to spend time obtaining telephone authorization for the transaction when the system is down. This type of transaction is stored in the POS device with an encrypted PIN and sent to the host at a later point in time. Several operational EBT States obtained FNS approval to incorporate this into their system. In keeping with this policy, the Department is proposing to allow use of a store-and-forward alternative for those retailers who elect to assume liability for these transactions. In order to protect against applying the transaction to future months' benefits, the retailer would be able to forward the transaction to the host one time within 24 hours of when the transaction occurred. If the system is inoperable for more than a 24 hour period, the retailer would have 24 hours from the point when the system resumes operation. In an instance where the store and forward transaction is denied due to insufficient funds, the retailer could re-present for the balance in the account. The balance of this transaction could not be re-presented in future months.

The Department is proposing that the provisions of this rulemaking be implemented no later than 180 days after publication of the final rule.

Accordingly, 7 CFR part 274 is proposed to be amended as follows:

With the installation in the mid and late 1980s of very sensitive portal monitors, many nuclear power plants detected contamination of individuals and their clothing by small, usually microscopic, highly radioactive beta or beta-gamma emitting particles having relatively high specific activity. These particles, known as “discrete radioactive particles” (DRPs) and sometimes “hot particles,” most commonly contain 60 Co or fission products. DRPs apparently become electrically charged as a result of radioactive decay and, therefore, tend to be fairly mobile. DRP movement in the workplace is unpredictable and thus worker contamination is difficult to control. A unique aspect of DRPs on or very near the skin is that very small amounts of tissue can be exposed to large, highly nonuniform doses. These intense localized irradiations may produce deterministic effects, such as reddening of the skin, transient breaks in the skin or necrosis of small areas of the skin.

In the late 1990s, reports of DRP exposures by a materials licensee were made when workers were exposed to DRPs while manufacturing radiographic sources. In addition to the DRP concern, several events have occurred involving very small areas (< 1. 0 square centimeters) of skin contamination, primarily in the handling of solutions of highly concentrated radiopharmaceuticals. These contamination events produce relatively large doses to very small areas of skin, resulting in an insignificant health detriment. Under existing provisions in NRC regulations, several of these contamination events have resulted in overexposures, as well as enforcement actions, with the result that workers could not be assigned work in radiation areas for the balance of the year. The consequences of these overexposures were not commensurate with the actual health detriment.

The principal stochastic risk associated with irradiation of the skin is non-melanoma skin cancer, that is, basal cell and squamous cell skin cancers. The risk of skin cancer following irradiation of the skin by DRPs, or from very small areas of contamination, is not comparable to irradiation of extended areas of the skin because of the very small number of cells involved and the greater potential for high local beta particle dose to kill cells rather than cause transformation to a precancerous stage. The Congressionally-chartered National Council on Radiation Protection and Measurements (NCRP) in Report No. 106, Limit for Exposure to “Hot Particles” on the Skin (1989), conservatively estimated the risk of skin cancer following a DRP dose of 50 rem (0.5 Sv) to an area of 2 mm 2 to be 7 x 10 −7 Gy −1 (7 × 10 −9 rad −1 ), and the risk of skin cancer mortality to be about 1 × 10 −9 Gy −1 (1 × 10 −11 rad −1 ). Because the risk of stochastic effects (i.e., cancer) from gamma and beta radiation from DRPs has been shown to be negligible for DRP exposures to the skin, induction of skin cancer is of less concern than the potential for deterministic effects.

In 1991, the NRC revised 10 CFR part 20 and its occupational dose limit for the skin of the whole body to 50 rem (0.5 Sv) SDE per year to prevent deterministic effects (56 FR 23360; May 21, 1991) that might result from a lifetime exposure at the dose limit. This dose limit for the skin is in 10 CFR 20.1201(a)(2)(ii) and is intended to prevent damage to areas of the skin that are large relative to areas exposed by DRPs, on the skin, and that could compromise skin function or appearance. The NRC noted in that rulemaking that certain issues “are being resolved in other rulemaking proceedings because of either their scope, complexity, or timing.” One of the issues that was listed concerned limits and calculational procedures for dealing with the DRP issue. It was recognized that the current skin dose limit was overly conservative for DRP doses and SDE to very small areas of the skin. The final rule stated that there would be a rulemaking to set limits for skin irradiation by DRPs. This proposed amendment to Part 20 responds, in part, to that commitment.

The existing Part 20 skin dose limit of 50 rem (0.5 Sv) averaged over 1 cm 2 is intended to apply to a relatively uniform dose to a larger area of skin than that usually exposed by DRPs and was intended to prevent deterministic damage to the skin. Because this limit was considered by the NCRP to be overly conservative for DRPs on or very near the skin, the NRC announced an interim enforcement discretion policy in Information Notice (IN) 90-48, “Enforcement Policy for Hot Particle Exposures” (55 FR 31113, July 31, 1990), that addressed reporting and mitigation if a DRP dose exceeded the existing 50 rem over 1 cm 2 limit, and enforcement action for overexposures would be taken if the DRP beta emission exceeded 75 μCi-hrs (300-500 rads). To avoid DRP doses greater than 50 rem (0.5 Sv) and the resulting reporting requirement, licensees monitor workers frequently during the work shift for DRP contamination. This results in additional external dose either to the workers, who incur additional exposure time in exiting and reentering the restricted area, or to the radiation protection staff, who must enter the restricted area to perform the monitoring.

In 1988, the NRC contracted with Brookhaven National Laboratory (BNL) to study the health effects of DRPs on the skin and initiated a contract with the NCRP to develop guidance on controlling DRP doses. In NUREG/CR-6531, “Effects of Radioactive Hot Particles on Pig Skin,” June 1997, BNL provided data on the probability of producing breaks in the skin from irradiation of the skin by DRPs in contact with or near the skin and demonstrated that these effects would not pose any serious health problems to workers. On the basis of the BNL data, and many other reported studies and similar experiments performed by the Electric Power Research Institute (EPRI) and reported on in EPRI TR-104781, “Skin Injuries From Discrete Radioactive Particles,” (1994) the NCRP recommended in Report No. 130, “Biological Effects and Exposure Limits for “Hot-Particles,” (1999) a dose-limiting guideline for DRPs of 50 rads (0.5 Gy) averaged over the most highly exposed 10 square centimeters. The BNL work only examined the nonuniform, highly concentrated dose to 1 square centimeter from DRPs in contact with or near the skin and not the dose that would be delivered to the adjacent skin tissue.

In October 1998, the NRC staff submitted a rulemaking plan (SECY-98-245) entitled “Protection Against Discrete Radioactive Particle (DRP) Exposures (10 CFR part 20).” The NRC staff proposed establishing a constraint of 300 rads (3 Gy) over 1 cm 2 as a program design guideline or action level, and a limit of 1000 rads (10 Gy) per 1 cm 2 for DRPs on or near the skin. The existing skin dose limit would have been retained for all other skin doses. The intent of that proposed amendment was to reduce the additional external dose incurred by workers in monitoring for DRPs during work shifts and to reduce unnecessary regulatory burden by adopting more realistic thresholds for DRP dose control and reporting requirements. In a staff requirements memorandum (SRM) dated December 23, 1998, the Commission directed the NRC staff to proceed with rulemaking as proposed, but to use 500 rads (5 Gy) per 1 cm 2 as the dose limit to be consistent with the NCRP recommendations in NCRP Report No. 106.

In March 1999, several industry experts who had reviewed the publicly available rulemaking plan and SRM suggested that the planned action would not accomplish one of the intended objectives of the proposed rulemaking, that is, to reduce the frequency of worker monitoring. The following industry concerns were raised arguing against use of a DRP dose constraint with a 500-rem (5.0 Sv) limit and supporting use of the NCRP recommended skin dose limit that is proposed in this rule: Of all DRP events, fewer than 10 percent are on, or near enough to, the skin for the proposed constraint and limit to apply. Most DRP events (>90 percent) are DRPs on clothing, on hair, or are far enough away from the skin (and most likely moving) so that the dose to the skin is more uniform and is spread over a larger area. In that case the existing 50-rem (0.5 Sv) skin dose limit would be applicable. This information suggested that a reduction in DRP monitoring frequency, and the associated external dose, could not be realized for most DRP exposures, because of the need to prevent exceeding the existing skin dose limit. Because the licensee may not know in advance whether the DRP is on the skin or moving the licensee would need to assume that the existing skin dose limit was applicable.

The justification for proposing a constraint, or action level, of 300 rads (3.0 Gy) over 1 cm 2 was in large part to reduce the additional external dose incurred by plant staff from frequent monitoring to avoid having to report a DRP dose that exceeded the existing 50-rem (0.5 Sv) skin dose limit. If more than 90 percent of DRPs are off the skin and irradiating a relatively large area, the existing skin dose limit would be controlling and the constraint would only rarely be used. The NRC staff concluded that little relief from monitoring dose would result from implementing the constraint and the 500 rad (5 Gy) limit. In a memorandum to the Commission dated October 27, 1999 (COMSECY-00-0009) the staff explained why the constraint with a limit of 500 rads (5 Gy) would not accomplish this intended objective, and recommended further staff work to identify an effective regulatory approach. In an SRM dated March 16, 2000, the Commission directed the staff to contract with the NCRP to provide additional technical support on this issue.

In December 1999, the NCRP had published Report No. 130, “Biological Effects and Exposure Limits for “Hot Particles.” The NCRP recommended that the dose to skin at a depth of 70 μ (7 mg/cm 2 ) from hot particles on skin (including the ear), hair, or clothing be limited to no more than 50 rads (0.5 Gy) averaged over the most highly exposed 10 cm 2 of skin.

The averaging area of 10 cm 2 , recommended by the NCRP, would permit treating both the case when a DRP is on the skin or a very small area of skin is contaminated, and the case when a DRP is on clothing and moving about exposing an area on the order of 10 cm 2 or more. In the former case, averaging the very localized dose over 10 cm 2 results in a dose value that more appropriately reflects the risk associated with a small area exposure. In the latter case, averaging relatively uniform dose to the entire 10 cm 2 , results in an dose limit that is equivalent to the current 50 rem over 1 cm 2 . Thus the limit decreases as the exposed skin area increases to 10 cm 2 , consistent with the expectation that the risk of an effect increases with increasing area of skin exposed to a given dose level. This averaging area is also consistent with the skin dose limiting system adopted by the Department of Energy in 10 CFR part 835.

In an effort to find the least burdensome regulatory requirement for controlling DRP doses, as well as other skin doses, while maintaining an adequate level of worker protection, the NRC staff requested the NCRP to consider the advisability of applying its proposed limit for DRP exposures to all skin dose geometries. In March 2001, the NCRP published Statement No. 9, “Extension of the Skin Exposure Limit for Hot Particles to Other Sources of Skin Irradiation.” The statement can be found on the NCRP website at www.ncrp.com/statemnt.html. In this statement, the NCRP recommended that the absorbed radiation dose to skin at a depth of 70 μm (7 mg/cm 2 ) from any source of irradiation be limited to 50 rads (0.5 Gy) averaged over the most highly exposed 10 cm 2 of skin.

Dr. John Baum, Ph.D., an NRC consultant, reviewed the health effects implications of the NCRP recommendation. Dr. Baum wrote a technical paper that was published in the June 2001 issue (pp. 537-543) of the peer-reviewed journal, Health Physics, entitled “Analysis of Potential Radiobiological Effects Related to a Unified Skin Dose Limit.” In this paper, the probabilities and severity of both stochastic and deterministic risks were estimated by Dr. Baum for a wide range of exposure scenarios based on the research done at Brookhaven National Laboratory, at other research facilities, and on additional information found in NCRP Reports Nos. 106 and 130. Published data from experimental and epidemiological studies, as well as calculations of radial-and depth-dose distributions, show that skin exposures at the dose limit of 50 rem (0.5 Sv) of SDE averaged over 10 cm 2 could result in stochastic risks of <3.3 × 10 −7 fatal skin cancers and <1.6 × 10 −4 nonfatal skin cancers, confirming that stochastic risks at the proposed limit are small.

Given exposures at the proposed skin dose limit, i.e., 50 rem (0.5 Sv) averaged over 10 square centimeters, the worst case deterministic effects were estimated by Dr. Baum to be a 5 percent probability of erythema if all of the dose (500 rem) were delivered to an area of 2.5 cm 2 , and a 50 percent probability that measurable dermal thinning would be observable if all of the dose were delivered to an area <0.5 cm 2 . At this dose, no acute cell killing or skin ulceration was predicted for DRPs 3 or more mm off of the skin because the dose is distributed over too large an area. The worst case probability of producing a barely detectable scab due to acute cell killing was estimated at 10 percent for 60 Co or activated fuel DRPs located about 0.4 mm off the skin. A copy of this copyrighted article is available for viewing during the public comment period for this rulemaking at NRC's Public Document Room located in Rockville, MD.

Additional discussion of implications of the health effects associated with the proposed unified skin dose limit can be found in the regulatory analysis developed for this rulemaking.

The Commission is proposing to amend § 20.1003, § 20.1201(a)(2)(ii), and § 20.1201(c).

In § 20.1003 Definitions, the definition of shallow-dose equivalent would be revised to delete the words “averaged over an area of 1 square centimeter.” The purpose of these words was to specify the area over which the dose to the skin was to be measured or calculated for comparison to the limit. The proposed revision to permit averaging over 10 square centimeters for measuring and recording SDE would be found in § 20.1201(c), along with other procedural requirements.

Section 20.1201, Occupational Dose Limits for Adults, would be changed in two places. Section 20.1201(a)(2)(ii) would be changed to make it clear that the SDE limit of 50 rem (0.5 Sv) is the dose limit to the skin of any extremity as well as the skin of the whole body. The Commission believes that this specification makes it clear that the only dose limit for the extremities is a SDE limit on the dose delivered at a depth of 0.007 cm (7 mg/cm 2 ), not a deep dose limit.

Section 20.1201(c) would be amended to specify that the assigned SDE must be the dose averaged over the 10 contiguous square centimeters of skin receiving the highest exposure. This is the significant change proposed in this rulemaking.

Note that the NCRP made recommendations regarding limiting dose from DRPs in the ear and on the eye. The NRC staff believes that these are special cases only with respect to measuring or calculating the dose, and that the proposed skin dose limit, and the existing limit for dose to the lens of the eye, are adequate to control DRP doses to these areas.

It is also important to note that it had been considered relevant to distinguish between doses from DRPs that were on or off the skin. With the proposed rule, this distinction is only relevant to dosimetric consideration, and the proposed limit is independent of source or exposure geometry.

The NRC staff has elected to retain the units rem and Sievert for the skin dose limit. According to data published in reports of the International Commission on Radiation Protection, the unit for dose equivalent, rem (Sv) is acceptable for deterministic effects, especially at lower doses. The highest Relative Biological Effectiveness (RBE) values for deterministic effects in the skin are all less than the Q values, or dose weighting factors that are used to convert dose in rads (Gy) to dose equivalent in rem (Sv). The use of dose equivalent in units of rem (Sv) would be conservative and would have the advantage that all of the dose limits would be in the same units. The Department of Energy, in its regulations, uses the rem and Sievert for SDE.

NCRP Statement No. 9 referred to NCRP Report No. 130 (NCRP 1999) for guidance on good practices, and recommended that in addition to numerical limits, observation of the exposed area of skin should be performed for four to six weeks whenever the DRP dose at a depth of 70 μm exceeds 10 rads (0.1 Gy) averaged over the most highly exposed 10 cm 2 of skin. The observational level of 0.1 Gy is well below the proposed limit of 0.5 Gy, and is essentially equivalent to the current skin dose limit, at which no clinically significant effects have ever been reported. For those reasons the NRC is not proposing to incorporate the NCRP recommendation into the proposed rule.

The objective of the rulemaking is to establish a uniform, risk-informed skin dose limit for all sources of SDE, including DRPs, and small area contamination that: trades a higher risk of occurrence of deterministic effects to the skin for a reduction in the risk of whole-body stochastic effects; allows licensees to reduce whole-body exposures and nonradiological health risks such as heat stress to workers subject to unnecessary DRP monitoring; and provides a common limit for SDE from all external sources of ionizing radiation. The proposed rule also reduces the unnecessary regulatory burden on licensees for reporting skin exposures that have insignificant health implications.

The current statement of the skin and extremity dose limit, along with the current definition of SDE, requires that skin doses be averaged over 1 square centimeter. The proposed rule would permit averaging the SDEs delivered to the 10 most highly exposed, and contiguous, square centimeters. It is important to discuss the consequences of this proposed change in the context of different source geometries.

In the case of large-area exposures of the skin from surface contamination or other external sources, areas on the order of 10 square centimeters or more would be likely to receive a relatively uniform dose. There is little difference to be expected in recorded doses from the current requirement that would attempt to identify the most highly exposed 1 square centimeter and the new approach that would sum the SDE to the 10 highest-exposed, adjacent square centimeters and divide by 10. The recorded doses would be identical for the large-area (10 square centimeters or more) exposures that form the great majority of skin dose events.

Under the proposed rule, exposed areas of the skin less than 10 square centimeters would be treated in a less restrictive manner. For example, a dose of 250 rem (2.5 Sv) to each of 2 square centimeters would result in a 50-rem (0.5 Sv) SDE when averaged over 10 square centimeters. A dose as high as 500 rem (5.0 Sv) would be permitted to 1 square centimeter and would be recorded as 50 rem (0.5 Sv) when averaged over 10 square centimeters. This change would effectively permit higher doses to small areas of skin than currently permitted by regulations.

Although, as previously noted, the Commission is proposing a skin dose limit that in some source geometries is likely to permit more frequent occurrence of observable though transient deterministic effects, it is expected that the less restrictive limit would permit a reduction in the conservative use of protective clothing and other devices intended to prevent contamination and skin doses. As a result, workers should experience reduced exposure to nonradiological health hazards such as heat stress, and be subject to fewer industrial accidents caused by impaired motion. By reducing the overly conservative use of protective equipment, work should be performed more efficiently. Reduced time in the restricted area is expected along with a concomitant reduction in whole-body dose and stochastic risks. The Commission intends this change to lead to a reduction in overly conservative efforts to prevent skin contaminations, that will result in decreased stress and lower whole-body doses. Numerous studies of the impacts on worker efficiency and safety resulting from the use of protective clothing and equipment have been published in the journal, Health Physics, in Radiation Protection Management, and by the Electric Power Research Institute (EPRI). A recent discussion of this issue and specific references can be found in NUREG/CR-0041, “Manual of Respiratory Protection Against Airborne Radioactive Material,” January 2001.

A final geometry of interest is the case of DRPs on or very near the skin, such that a relatively small volume of tissue receives a large dose, resulting in cell killing and possible observable breaks in the skin. Under the current dose limit a DRP could deliver 50 rem (0.5 Sv) to an area of 1 square centimeter that when averaged over 1 square centimeter would yield a recorded dose of 50 rem (0.5 Sv). Under the proposed rule, the NCRP recommended limit, a dose of 500 rem (5.0 Sv) delivered to 1 square centimeter, when averaged over 10 square centimeters, would yield a recorded dose of 50 rem (0.5 Sv). Thus, for DRPs on the skin, and other small area exposures, the proposed rule change is in effect a tenfold relaxation of the current limit and might permit some increased number of observable, transient deterministic effects to the skin. This new limit would be approximately equivalent to the emission criterion of 75 μCi-hr in the interim enforcement policy stated in IN 90-48. The 500 rem (5.0 Sv) to 1 square centimeter (worst) case is estimated to result in a 50 percent chance of an observable but transient effect. NRC records include only one DRP dose that was calculated to exceed 500 rem (5.0 Sv), and no effects were observed in that case.

On the basis of extensive research performed at BNL and elsewhere, the NCRP stated in Report No. 130 that “if exposures are maintained below the recommended limits, few, if any, deterministic biological effects are expected to be observed, and those effects would be transient in nature. If effects from a hot-particle exposure are observed, the result is an easily treated medical condition involving an extraordinarily small stochastic risk. Such occurrences would be indicative of the need for improvement in radiation protection practices, but should not be compared in seriousness to exceeding whole-body exposure limits.”

Reactor licensees are currently monitoring workers frequently during each work shift to prevent exceeding the interim 50-rem (0.5 Sv) reporting threshold for doses from DRPs. Industry estimated that up to 5 person-rem (0.05 person-Sv) of whole-body dose per outage could be attributed to this monitoring. Workers are either brought out of the workplace to be monitored, incurring nonproductive exit-entry dose, or technicians enter the restricted area to monitor workers for DRPs. The proposed, less restrictive, skin dose limit would eliminate the need to perform this DRP monitoring during work shifts for all but the highest activity DRPs 1 , especially those having a high gamma component. The possibility of some additional number of observable deterministic effects, such as a small break in the skin, is considered by the NRC to be justified by the reduction of the whole-body dose and associated stochastic risks from monitoring for DRPs.

The Radiation Exposure Information Reporting System (REIRS) database includes reports of nearly 15,000 individual DRP doses since 1990. Fewer than 10 have exceeded the current 50-rem (0.5 Sv) reporting limit. It is unlikely that this proposed revision of the skin dose limit will result in any large increase in the number of DRP doses. The as-low-as-is-reasonably-achievable (ALARA) principle will continue to apply to any occupational doses, so the revised skin dose limit should not permit a large number of high DRP doses. It would be unacceptable for a licensee to permit large numbers of high DRP exposures on a continuing basis without attempting some mitigating procedures or engineering controls.

The Commission believes that the less restrictive limit on skin dose to small areas that might permit more observable, transient, deterministic effects will also result in a less hazardous workplace and reduced whole-body occupational dose. The Commission considers this tradeoff to represent a substantial increase in worker protection. This represents a shift in emphasis toward a risk-informed approach that would possibly permit more frequent deterministic effects in order to avoid the physical stress and whole-body doses associated with monitoring workers and the use of protective measures. The NRC is specifically soliciting comments on the acceptability of this approach.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs”, which became effective on September 3, 1997 (62 FR 46517), NRC program elements, including regulations, are assigned compatibility categories. In addition, NRC program elements can also be identified as having particular health and safety significance or as being reserved solely to the NRC.

Compatibility Category A includes those program elements that are basic radiation protection standards and scientific terms and definitions that are necessary to understand radiation protection concepts. An Agreement State should adopt Category A program elements in an essentially identical manner in order to provide uniformity in the regulation of agreement material on a nationwide basis.

Compatibility Category B includes those program elements that apply to activities that have direct and significant effects in multiple jurisdictions. An Agreement State should adopt Category B program elements in an essentially identical manner.

Compatibility Category C includes those program elements that do not meet the criteria of Category A or B but represent essential objectives that an Agreement State should adopt to avoid conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in the regulation of agreement material on a nationwide basis. An Agreement State should adopt the essential objectives of the Category C program elements.

Compatibility Category D includes those program elements that do not meet any of the criteria of Category A, B, or C above and, thus, do not need to be adopted by Agreement States for purposes of compatibility.

Health and Safety (H&S) includes program elements that are not required for compatibility (i.e., Category D) but that have been identified as having a particular health and safety role (i.e., adequacy) in the regulation of agreement material within the State. Although not required for compatibility, the State should adopt program elements in this category that embody the essential objectives of the NRC program elements because of particular health and safety considerations.

Compatibility Category NRC includes those program elements that address areas of regulation that cannot be relinquished to Agreement States pursuant to the Atomic Energy Act (AEA) or provisions of Title 10 of the Code of Federal Regulations. These program elements should not be adopted by Agreement States.

The proposed modifications to §§ 20.1003 and 20.1201, which contain definitions and basic radiation protection standards that are necessary to understand radiation protection concepts, are designated as compatibility Category A. Therefore, the Agreement State program element should be essentially identical to NRC's in order to provide uniformity in skin dose determinations on a nationwide basis.

These proposed amendments were provided to the Agreement States via the NRC Technical Conferencing Forum. As of 5/24/01, only one comment had been received from the States.

The Presidential memorandum dated June 1, 1998, entitled “Plain Language in Government Writing” directed that the Government's writing be in plain language. This memorandum was published on June 10, 1998 (63 FR 31883). The NRC requests comments on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the ADDRESSES heading of the preamble.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this proposed rule, the NRC is modifying its definition of Shallow-dose equivalent. This action does not constitute the establishment of a standard that contains generally applicable requirements.

The NRC has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51 that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required.

An environmental assessment has determined that the proposed amendment addresses technical and procedural improvements in the provisions for determining by measurement or by calculation the dose to the skin for comparison to the skin dose limit for the whole body or for the extremities. None of the impacts associated with this rulemaking have any effect on any places or entities outside of a licensed site. An effect of this proposed rulemaking is expected to be a decrease in the use of protective equipment used by nuclear power plant workers and others potentially exposed to skin contamination, to prevent the skin contaminations. No changes are expected in licensee programs and procedures designed to mitigate the production and spread of DRPs in the workplace and to prevent the unauthorized release of radioactive materials off site. It is expected that there would be no change in radiation dose to any member of the public as a result of the revised regulation. The proposed amendment is expected to result in a reduction in external occupational dose to workers onsite.

The determination of this environmental assessment is that there will be no significant offsite impact to the public from this action. However, the general public should note that the NRC is seeking public participation. The NRC has also committed to complying with Executive Order (E.O.) 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income populations,” dated February 11, 1994. The NRC evaluated environmental justice for this environmental assessment and has determined that there are no disproportionate high and adverse impacts on minority and low-income populations. In the letter and spirit of E.O. 12898, the NRC is requesting public comment on any environmental justice considerations or questions that the public thinks may be related to this proposed rule but somehow were not addressed. E.O. 12898 describes environmental justice as “identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.” Comments on any aspect of the environmental assessment, including environmental justice, may be submitted to the NRC as indicated under the ADDRESSES heading.

The NRC has sent a copy of the environmental assessment and this proposed rule to every State Liaison Officer and requested their comments on the environmental assessment.

The draft environmental assessment is available for inspection at the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Single copies of this document are available as indicated in the ADDRESSES heading.

This proposed rule would decrease the burden on licensees reporting under

Section 20.2202(b)(iii) on DRP and other small area skin overexposures. The public burden for this information collection is estimated to average 40 hours per request. Fewer than 10 reports have been received by the NRC over the past 12 years. Because the burden for this information collection is insignificant, Office of Management and Budget (OMB) clearance is not required. Existing requirements were approved by the OMB, approval number 3150-0114.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

The NRC has prepared a regulatory analysis for the proposed amendment. The analysis examines the benefits and impacts considered by the NRC. The regulatory analysis is available for inspection in the NRC Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. Single copies of the analysis are available as indicated in the ADDRESSES heading.

The Commission requests public comment on the analysis. Comments on the analysis may be submitted to the NRC as indicated under the ADDRESSES heading.

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the NRC certifies that, if adopted, this proposed rule would not have a significant economic impact on a substantial number of small entities. The anticipated impact of the proposed changes would not be significant because the revised regulation basically represents a continuation of current practice. The benefit of the proposed rule is that it would permit averaging doses to the skin over the most highly exposed 10 square centimeters, incorporate an NCRP recommendation for a less restrictive skin dose limiting procedure, and permit reduced use of protective equipment known to expose workers to workplace stresses and unnecessary whole-body radiation dose.

The NRC is seeking public comment on the initial regulatory flexibility certification. The NRC is seeking comment particularly from small entities as defined under the NRC's size standards in 10 CFR 2.810 as to how the proposed regulations would affect them and how the regulations may be implemented or otherwise modified to impose less stringent requirements on small entities while still adequately protecting the public health and safety. Any small entity subject to this regulation that determines that because of its size it is likely to bear a disproportionate adverse economic impact should offer comments that specifically discuss the following items:

(a) The licensee's size and how the proposed regulation would result in a significant economic burden or whether the resources necessary to implement this amendment could be more effectively used in other ways to optimize public health and safety, as compared to the economic burden on a larger licensee;

(b) How the proposed regulation could be modified to take into account the licensees' differing needs or capabilities;

(c) The benefits that would accrue, or the detriments that would be avoided, if the proposed regulation were modified as suggested by the licensee;

(d) How the proposed regulation, as modified, could more closely equalize the impact of NRC regulations or create more equal access to the benefits of Federal programs as opposed to providing special advantages to any individual or group; and

(e) How the proposed regulation, as modified, would still adequately protect the public health and safety.

The comments should be sent to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemaking and Adjudications Staff. Hand-deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:30 a.m. and 4:15 p.m. on Federal workdays.

Although the NRC has concluded that the changes being proposed constitute a reduction in unnecessary regulatory burden, the implementation of these changes will require revisions to licensee procedures, thereby constituting a potential backfit under 10 CFR 50.109(a)(1). Under § 50.109(a)(2), a backfit analysis is required unless the proposed rule meets one of the exceptions listed in § 50.109(a)(4). This proposed rule meets the exception at § 50.109(a)(4)(iii) in that it is redefining the level of adequate protection embodied in the occupational dose limit for doses to the skin of the whole body and to the skin of the extremities. In addition, the implementation of this proposed rule is expected to result in a substantial increase in worker industrial safety.

Section II, Summary and Discussion of the Proposed Changes, discusses the proposed changes to the definition of shallow-dose equivalent (SDE) and the provision for averaging SDE over the most highly exposed 10 square centimeters. This change would, in effect, raise the skin dose limit for discrete radioactive particles (DRPs) on or near the skin and for small-area (<1.0 cm 2 ) contaminations. This revision makes it possible for licensees to measure or calculate skin doses for comparison to the 50-rem (0.5 Sv) limit that when divided by 10, result in dose values according to NCRP that more appropriately reflect the risk associated with small area exposures. The increased limit in the case of DRPs will remove the need to frequently monitor workers for DRP contamination during work shifts for all but the highest activity DRPs, especially those having a high gamma component. This reduced monitoring will eliminate most of the whole-body dose and stochastic risk associated with monitoring performed to avoid exceeding the current more restrictive skin dose limit. In addition, the relaxed skin dose limit, based on NCRP recommendations, should make it clear that the consequences of transient skin contamination are less significant than the radiological and nonradiological risks incurred by workers as a result of licensee efforts to avoid skin contaminations. The overly conservative use of multiple layers of protective clothing and other devices worn to prevent skin contamination cause exposure to nonradiological hazards such as heat stress, as well as a reduction in worker efficiency estimated by industry to be as much as 15-25 percent which, in turn, increases whole-body dose. Licensees will be able to choose to use less protective gear at the cost of more frequent skin contamination, but with the benefit of less physical stress and reduced whole-body dose to workers.

In conclusion, the Commission believes that the proposed changes constitute a reduction in unnecessary regulatory burden that redefines the level of adequate protection and that should result in a substantial increase in worker safety. The proposed changes are therefore the type of change for which a backfit analysis is not required under § 50.109(a)(4)(iii).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR part 20.

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 shall 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 action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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 summarizing 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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 98-NM-196-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 98-NM-196-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On October 21, 1997, the FAA issued AD 97-22-07, amendment 39-10179 (62 FR 55732, October 28, 1997), applicable to certain Boeing Model 737 series airplanes, to require repetitive inspections to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking found. That action also adds a requirement for modification of the fuselage lap joints at certain locations, which constitutes terminating action for repetitive inspections of the modified areas. That action was prompted by reports of numerous fatigue cracks in the lower skin of the fuselage lap joints at the lower row of fasteners. The requirements of that AD are intended to prevent such fatigue cracking, which could result in sudden decompression of the airplane.

Since the issuance of AD 97-22-07, the FAA has received additional reports of fatigue cracking in the lower skin of the lap joints of the fuselage on Model 737 series airplanes that had accumulated between 57,000 and 84,400 flight cycles, and were previously inspected per that AD. Further investigation revealed additional cracking in various areas of the skin lap joints at the fastener locations that initiated away from the edge of the fastener hole in multiple locations. The majority of these cracks occurred at left and right stringers 4, 10, and 14. The FAA finds that this damage can occur at those stringer locations between 40,000 and 50,000 flight cycles. These cracks are not always detectable using the open hole eddy current inspection procedures and can link up with adjacent cracks causing multiple site damage. In addition, cracking has been found in the window corners adjacent to the lap joints on certain airplanes.

Based on these findings, the FAA has determined that the current inspection procedures specified in AD 97-22-07 are not adequate for detection of cracks in these locations, and that the preventive change that was required by that AD does not guarantee crack removal. Therefore, the FAA finds that additional rulemaking is necessary to require additional inspections for cracking, removal of the preventive change, and accomplishment of a lap joint modification.

A joint Federal Aviation Administration (FAA) and Boeing meeting was held on July 25-27, 2000, to inform industry of the activity on Boeing Model 727 and 737 fuselage lap joints. Others in attendance were representatives from air carriers and repair stations, as well as Principal Maintenance Inspectors (PMI) from FAA's Flight Standards Service. The objective of the meeting was to provide an overview of the FAA rulemaking process; discuss the recommendations of Boeing Service Bulletins 727-53A0222 and 737-53A1177, including background information; standardize the 727 and 737 service bulletins, where possible; and discuss the impact that the recommended service bulletin modifications would have on industry.

During the meetings, holders of certain supplemental type certificates presented information pertaining to service bulletin activity for those airplanes that have been modified from a passenger to an all-cargo configuration. The meeting accomplished the objective of exchanging information between the FAA, Boeing, and industry on various aspects of Boeing Models 727 and 737 fuselage lap joints, including compliance planning. As a result of the meeting, attendees recognized the importance of modifying certain lap joints before reaching the point of widespread fatigue damage. Suggestions to improve the service bulletins and clarify AD compliance issues were made by operators and PMIs, and have been incorporated into the service bulletins and the proposed ADs discussed below. In addition, minutes of the public meeting are retained in the docket.

At this time, the FAA is considering two other separate rulemaking actions to address the remaining potential unsafe conditions relating to the cracking of the lap joints of the fuselage. Those two other actions would address:

• Replacement of certain repairs with improved repairs in certain fuselage lap joints done per the procedures described in the structural repair manual (SRM); and a high frequency eddy current inspection to find cracking of the SRM repairs of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking found on Model 737 series airplanes, line numbers 292 through 2595 inclusive. And

• Repetitive inspections to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and a lap joint modification of Model 737-200 and -200C series airplanes, line numbers 1 through 291 inclusive.

The FAA has reviewed and approved Boeing Service Bulletin 737-53A1177, Revision 6, dated May 31, 2001, which describes, among other things, procedures for the following:

• Removal of the existing preventive modification and the installation of an improved lap joint cutout repair, which eliminates the need for certain repetitive inspections;

• Repetitive low frequency eddy current (LFEC) inspections to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking;

• Post-mod inspections, installation of a lap joint repair, and follow-on LFEC inspections;

• Modification of the tearstrap splice straps; and

• Repetitive high frequency eddy current inspections of the fastener holes of the window corner of the lap joint area, and repair of any cracking.

The service bulletin also specifies contacting the manufacturer for accomplishment of certain repairs. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 97-22-07 to continue to require repetitive inspections to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking found. This proposed AD would add repetitive inspections, adjust inspection thresholds, and require an improved modification. Accomplishing the improved modification would terminate the inspections required by the existing AD. In addition, this proposed AD would require inspections of some airplanes on which the “Preventive Change” (NACA modification) specified in AD 97-22-07 already had been accomplished. This proposed AD also would require inspections following accomplishment of the improved modifications, and would require tear strap splice conditions for airplanes on which lap joints previously had been repaired per AD 97-22-07. This proposed AD also would require inspections on some airplanes in window corners in areas already being inspected per AD 91-07-04, amendment 39-6933 (56 FR 11355, March 18, 1991), on other airplanes. The actions would be required to be accomplished per the service bulletin described previously, except as discussed below.

The FAA recognizes that the lap joint modification specified in this proposed AD would require jacking, shoring, removing interior components, and modifying certain lap joints, which would require taking the airplane out of service for as much as 22 days. This lengthy shop visit, as well as the relatively short compliance time required to accomplish this proposed AD, make it necessary for operators to engage in compliance planning to ensure that, when the deadline for compliance arrives, all of the required actions have been completed on all affected airplanes. Therefore, paragraph (f) of this proposed AD would require that operators submit to the FAA a compliance plan within 3 months after the effective date of this AD. This will enable the FAA to verify that all operators will be able to meet the deadlines imposed by this proposed AD.

Operators also should note that, in light of the complexity of the service bulletin, three separate rulemaking actions are being issued to address the potential unsafe conditions relating to the cracking of the lap joints of the fuselage. This proposed rule will address only Model 737 series airplanes having line numbers (L/N) 292 through 2565 inclusive.

Paragraph (m) of this AD addresses only Model 737 series airplanes having L/N 520 through 2565 inclusive for accomplishment of the HFEC inspection to find cracking of the window corner fastener holes. Model 737 series airplanes having L/N 1 through 519 inclusive were addressed in AD 91-07-04, amendment 39-6933. That AD requires ultrasonic and high frequency eddy current inspections for delamination of window belt skin doubler from fuselage skin.

In addition, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair/modification conditions, this proposed AD requires the repair/modification of those conditions to be done per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

There are approximately 2,203 Model 737 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 905 airplanes of U.S. registry would be affected by this proposed AD.

Cost estimates for the actions required by this proposed AD for U.S. operators over the life of the AD are included in the following table:

The cost estimates are based on the following criteria:

• Lap joint inspection cost estimates reflect costs for a single inspection cycle, and the work hours vary between groups of airplanes. Refer to paragraph 1.G. of Boeing Service Bulletin 737-53A1177 for more detailed information. An average of 100 work hours was used in determining the cost estimates.

• An average of 24 work hours was used in estimating the costs for compliance planning.

• Lap joint modification work hours vary between groups of airplanes. Refer to paragraph 1.G of Boeing Service Bulletin 737-53A1177 for more detailed information. An average of 4,200 work hours and $12,000 for parts were used in estimating these costs. Modification costs are spread over the estimated life of the AD, which is approximately 20 to 25 years.

• Window corner inspection work hours vary between groups of airplanes. Refer to paragraph 1.G of Boeing Service Bulletin 737-53A1177 for more detailed information. An average of 14 work hours was used in estimating the costs of the inspections only.

The FAA estimates that during the 10-year period after issuance of the proposed AD, worldwide operators would be required to modify 805 Model 737 series airplanes. The new modification required by the proposed AD would take an average of approximately 4,200 work hours to accomplish, at an average labor rate of $60 per work hour. The worldwide cost impact of the required modification is estimated to be $212,701,000 over 10 years, or an average of $21,270,000 per year. The highest impact year is the third year after issuance of the AD: an estimated 155 Model 737 series airplanes would require modification in that year. Therefore, the worldwide cost impact of the modification is estimated to be $40,955,000 in that year. The affected Model 737 airplanes operated by U.S. operators comprise approximately 41 percent of the total worldwide costs. Therefore, the highest cost impact in any given year for the modifications is estimated to be $16,791,000 for U.S. operators.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 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 is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

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:

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 shall 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 action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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 summarizing 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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-73-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-73-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On October 21, 1997, the FAA issued AD 97-22-07, amendment 39-10179 (62 FR 55732, October 28, 1997), applicable to certain Boeing Model 737 series airplanes, which requires repetitive inspections to detect cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking detected. That action also requires modification of the fuselage lap joints at certain locations.

Since issuance of that AD, the manufacturer has informed the FAA that during fatigue testing of the skin panels on certain airplanes repaired in accordance with the existing AD, premature cracking in certain lap joint repairs was detected. Multiple cracks were detected underneath the repairs on airplanes that had accumulated between 10,000 and 15,000 test cycles since repair per AD 97-22-07. These repairs were accomplished using the manufacturer's structural repair manual (SRM). Such repairs also may have been installed at times other than that required by AD 97-22-07. This condition, if not detected and corrected, could result in sudden decompression of the airplane.

At this time, the FAA is considering two other separate rulemaking actions to address the remaining potential unsafe conditions relating to the cracking of the lap joints of the fuselage. Those two other actions would address:

• Additional repetitive inspections to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and replacement of the preventive modification with an improved modification on Model 737 series airplanes, line numbers 292 through 2565 inclusive. And

• Repetitive inspections to find cracking of certain fuselage lap joint areas and modification of those areas, which would constitute terminating action for the repetitive inspections. The actions would be applicable to Model 737 series airplanes, line numbers 1 through 291 inclusive.

The FAA has reviewed and approved Boeing Service Bulletin 737-53A1177, Revision 6, dated May 31, 2001, which describes, among other things, procedures for replacement of certain SRM repairs in the fuselage lap joints with improved repairs. The service bulletin also describes a high frequency eddy current (HFEC) open-hole rotating probe inspection to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking found. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require the replacement of certain repairs in certain fuselage lap joints with improved repairs. This proposed AD also would require a high frequency eddy current inspection to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking found. The actions would be required to be done per the service bulletin described previously, except as discussed below.

In light of the complexity of the service bulletin, three separate rulemaking actions are being issued to address the potential unsafe conditions relating to the cracking of the lap joints of the fuselage. This proposed rule will address only the sections in the service bulletin that pertain to inadequate lap joint repairs done per the SRM.

Although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair/modification conditions, this proposed AD requires the repair/modification of those conditions to be done per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

There are approximately 2,359 Model 737 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 958 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 14 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $804,720, or $840 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 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 is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

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:

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 shall 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 action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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 summarizing 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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-105-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-105-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On February 10, 1999, the FAA issued AD 99-04-22, amendment 39-11047 (64 FR 7774, February 17, 1999), applicable to all Boeing Model 727, 727-100, 727-200, 727C, 727-100C, and 727-200F series airplanes, to require repetitive inspections to find cracking of the lower skin panel at the lower row of fasteners in certain lap joints of the fuselage, and repair, if necessary. That AD also provides for optional terminating action for certain repetitive inspections. That action was prompted by a report of fatigue cracking in the lower skin panel at the lower row of fasteners of the fuselage lap joints. The requirements of that AD are intended to find and fix such fatigue cracking, which could result in sudden fracture and failure of the lower skin lap joints, and rapid decompression of the airplane.

Since the issuance of AD 99-04-22, the FAA has received additional reports of fatigue cracking in the lower skin of the lap joints of the fuselage on Model 727 series airplanes that had accumulated as few as 36,781 total flight cycles, and several airplanes that had accumulated more than 50,000 flight cycles. The airplanes having more than 50,000 flight cycles were previously inspected per that AD. Further investigation revealed additional cracking and corrosion in various areas of the crown skin lap joints at the fastener locations. The majority of the cracks occurred at left and right stringers 4 and 26. The FAA finds that this damage can occur at those stringer locations between 30,000 and 50,000 flight cycles. These cracks are not always detectable using the external inspection procedures required by AD 99-04-22, and can link up with adjacent cracks causing multiple site damage, which can result in a rapid decompression of the fuselage.

Based on these findings, the FAA has determined that the current repetitive external detailed visual inspection procedures required by AD 99-04-22 are not adequate for finding cracks in these locations. Therefore, the FAA finds that additional rulemaking is necessary to require accomplishment of certain lap joint modifications and pre-and post-mod inspections, instead of the repetitive external detailed visual inspections.

The FAA has determined that approximately half of the airplanes specified in the applicability of this proposed rule have been modified from a passenger configuration to an all-cargo configuration. The FAA has approved several service bulletins (listed below) that could be approved as alternative methods of compliance for the proposed modification requirements, but based on the number of affected airplanes, will instead be included in the proposed rule. The holders of STCs for these modified airplanes have developed these service bulletins to address modification/repair of the longitudinal lap joints in the area of the cargo door doubler only, but all other applicable areas also must be inspected and modified per Boeing Service Bulletin 727-53A0222, Revision 1, dated March 15, 2001.

A joint FAA and Boeing meeting was held on July 25-27, 2000, to inform industry of the activity on Boeing Model 727 and 737 fuselage lap joints. Others in attendance were representatives from STC holders, air carriers, and repair stations, as well as Principal Maintenance Inspectors (PMI) from the FAA's Flight Standards Service. The objective of the meeting was to provide an overview of the FAA rulemaking process; discuss the recommendations of Boeing Service Bulletins 727-53A0222 and 737-53A1177, including background information; standardize the 727 and 737 service bulletins, where possible; and discuss the impact that the recommended service bulletin modifications would have on industry.

During the meetings, holders of certain STCs presented information pertaining to service bulletin activity for those airplanes that have been modified from a passenger to an all-cargo configuration. The meeting accomplished the objective of exchanging information between the FAA, Boeing, and industry on various aspects of Boeing Models 727 and 737 fuselage lap joints, including compliance planning. As a result of the meeting, attendees recognized the importance of modifying certain lap joints before reaching the point of widespread fatigue damage. Suggestions to improve the service bulletins and clarify AD compliance issues were made by operators and PMIs, and have been incorporated into the service bulletins and the proposed ADs discussed below. The minutes of the meeting have been placed in the public docket.

In addition to Boeing Service Bulletin 727-53A0222, Revision 1, the FAA has approved four service bulletins for STCs that modify affected airplanes from a passenger to an all-cargo configuration. These service bulletins address the areas of the lap joints that are physically externally covered by the addition of large doublers in the area of the cargo door. These doublers affect the loads in the lap joints, and for this reason the STC service bulletins provide inspections and modification instructions for those lap joint areas covered by the doublers.

The FAA has reviewed and approved the following service bulletins:

The Boeing Service Bulletin describes, but is not limited to, the following procedures:

• Either a Low Frequency Eddy Current (LFEC) or internal detailed visual and Medium Frequency Eddy Current (MFEC) inspection for cracking of the lower row of fasteners in the lower skin of fuselage sections 41, 43, and 46 of the lap joints.

• A High Frequency Eddy Current (HFEC) inspection of the fastener holes to verify crack indications if cracks are found during the LFEC inspection; or accessing the inboard side of the skin to do an MFEC inspection of the lower row of fasteners for verification of cracking in the lower skin.

• After crack indications are verified: An internal detailed visual inspection and an MFEC inspection for damage of the entire skin panel of the lap joint.

• Repair of the damage per the structural repair manual if the damage is within one bay. And

• Modification of the fuselage lap joints, and a post-modification inspection for cracking in the skin. The modification consists of cutting out the lap joint for the entire skin panel and installing an external doubler and tripler at stringers S-4L, S-4R, and S-26L.

The STC service bulletins listed above describe procedures for a one-time pre-modification inspection for cracking of the lower row of fasteners in the lower skin of the lap joint, modification of the surrounding structure of the main cargo door and doublers, and repetitive post-modification HFEC inspections for cracking in the cargo door area. This is to be done concurrent with the modification of the fuselage lap joints specified in the Boeing service bulletin described above.

Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 99-04-22 to continue to require certain repetitive inspections to find cracking of the lower skin panel at the lower row of fasteners in certain lap joints of the fuselage, and repair, if necessary. The proposed AD also would limit the applicability; add certain repetitive inspections; revise certain compliance times; and add certain modifications. The actions would be required to be accomplished per the service bulletins described previously, except as discussed below.

The FAA recognizes that the lap joint modification specified in this proposed AD would require jacking, shoring, removing interior components, and modifying certain lap joints, which would require taking the airplane out of service for as much as 22 days. This lengthy shop visit, as well as the relatively short compliance time required to accomplish this proposed AD, make it necessary for operators to engage in compliance planning to ensure that, when the deadline for compliance arrives, all of the required actions have been completed on all affected airplanes. Therefore, paragraph (c) of this proposed AD would require that operators submit to the FAA a compliance plan within 3 months after the effective date of this AD. This will enable the FAA to verify that all operators will be able to meet the deadlines imposed by this proposed AD.

While the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposal would require that the repair of those conditions be accomplished per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the Manager, Seattle Aircraft Certification Office, to make such findings.

There are approximately 900 Model 727 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 700 airplanes of U.S. registry would be affected by this proposed AD.

The inspections that are currently required by AD 99-04-22 take approximately 8 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $480 per airplane.

The FAA estimates that the inspections proposed by this NPRM will impose the following costs, given an average labor rate of $60 per work hour:

The FAA estimates that, during the 10-year period after issuance of the proposed AD, worldwide operators will be required to modify 360 Model 727 series airplanes. The modification required by the proposed AD would take approximately 1,200 work hours to accomplish, at an average labor rate of $60 per work hour. The worldwide cost impact of the required modification is estimated to be $37,413,000 over 10 years, or an average of $3,741,000 per year. The highest impact year is the first year after issuance of the AD; an estimated 56 Model 727 series airplanes would require modification in that year. The affected Model 727 airplanes operated by U.S. operators comprise approximately 78 percent of the total worldwide costs. Therefore, the highest cost impact of the modification in any given year is estimated to be $4,527,000 for U.S. operators.

The compliance plan that is proposed in this AD action would take approximately 24 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the compliance plan on U.S. operators is estimated to be $1,008,000, or $1,440 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 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 is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

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:

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 shall 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 action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification (e.g., reasons or data) for each request.

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 summarizing 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 action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-74-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-74-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On April 28, 1988, a Boeing Model 737 series airplane was involved in an accident in which a 15-foot long section of fuselage structure peeled open during flight. In light of this, the FAA initiated an Aging Fleet Program. The objective of that program is to identify and implement procedures to ensure the continuing structural airworthiness of aging transport category airplanes.

As part of the Aging Fleet Program, the airplane manufacturer conducted cyclic pressure (fatigue) tests to evaluate the performance of the various fuselage skin panel lap joint configurations. The fuselage skin panel joint consists of two adjacent panels that overlap each other longitudinally and are joined together by three rows of fasteners at the overlap (hence, lap joint). Cracks in the upper skin of the lap joint led to the structural failure that occurred in the 1988 accident discussed previously. These lap joints, installed on early Model 737 series airplanes having line numbers 1 through 291, were modified by replacing the countersunk fasteners in the upper fastener row of the lap joint with protruding head fasteners to correct and prevent cracking in the upper skin of the lap joint. To date, no cracking has been detected in the lower fastener row of these (modified) lap joints.

However, at some locations on these same airplanes, the lap joint has a different configuration that includes a doubler, and cracking has been found in the lower row of fasteners in the lower skin of these joints. This type of joint was used extensively on subsequent airplanes (line numbers 292 through 2565 inclusive) to improve the lap joint and to prevent cracks in the upper skin. In 1994, tests were conducted on lap joints that incorporate doublers; test results revealed cracks in the lower skin of this lap joint. The airplane manufacturer determined that these cracks were caused by increased stresses in this area due to the increased bending stresses associated with the installation of the doubler on the upper skin.

In light of these test results, the manufacturer inspected this type of lap joint on five aging airplanes and detected a total of 273 fatigue cracks. The use of eddy current inspection techniques was required as the cracks in the lower skin are not detectable visually due to the positioning of the lower skin between the upper skin and the circumferential tear strap. Many of these cracks were found to have occurred simultaneously at adjacent fastener hole locations in the lower skin of the fuselage lap joint.

This type of cracking of the lap joint is known as multiple site damage (MSD). MSD is characterized by the simultaneous presence of fatigue cracks in the same structural element (such as the lower skin panel of the lap joint). Coalescence of cracks at adjacent fastener holes in the lower skin can lead to sudden fracture and failure of the lap joint, which could result in rapid decompression of the airplane due to the reduction in the residual strength of a lap joint in the presence of MSD. This reduction of the structural integrity of the fuselage may occur at loads significantly below those that would be expected for structure having a single large crack. The accident discussed previously has demonstrated dramatically that small cracks acting together can have a significant effect on the residual strength of the aircraft structure.

On October 21, 1997, the FAA issued AD 97-22-07, amendment 39-10179 (62 FR 55732, October 28, 1997), applicable to Boeing Model 737 series airplanes, line numbers 292 through 2565 inclusive, which requires repetitive inspections to detect cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage that have this doubler, and repair of any cracking detected. That action also requires modification of the fuselage lap joints at stringers S10 and S14, located between body stations (BS) 360 and BS 540, and located between BS 727 and BS 908.

A joint Federal Aviation Administration (FAA) and Boeing meeting was held on July 25-27, 2000, to inform industry of the activity on Boeing Model 727 and 737 fuselage lap joints. Others in attendance were representatives from air carriers and repair stations, as well as Principal Maintenance Inspectors (PMI) from the FAA Flight Standards Service. The objective of the meeting was to provide an overview of the FAA rulemaking process; discuss the recommendations of Boeing Service Bulletins 727-53A0222 and 737-53A1177, including background information; standardize the 727 and 737 service bulletins, where possible; and discuss the impact that the recommended service bulletin modifications would have on industry.

During the meetings, holders of certain supplemental type certificates presented information pertaining to service bulletin activity for those airplanes that have been modified from a passenger to an all-cargo configuration. The meeting accomplished the objective of exchanging information between the FAA, Boeing, and industry on various aspects of Boeing Models 727 and 737 fuselage lap joints, including compliance planning. As a result of the meeting, attendees recognized the importance of modifying certain lap joints before reaching the point of widespread fatigue damage. Suggestions to improve the service bulletins and clarify AD compliance issues were made by operators and PMIs, and have been incorporated into the service bulletins and the proposed ADs discussed below. In addition, minutes of the public meeting are retained in the docket.

At this time, the FAA is considering two other separate rulemaking actions to address the remaining potential unsafe conditions relating to the cracking of the lap joints of the fuselage. Those two other actions would address:

• Additional repetitive inspections to find cracking of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and replacement of the preventive modification with an improved modification on Model 737 series airplanes, line numbers 292 through 2565 inclusive. And

• Replacement of certain repairs with improved repairs in certain fuselage lap joints done per the procedures described in the structural repair manual (SRM); and a high frequency eddy current inspection to find cracking of the SRM repairs of the lower skin at the lower row of fasteners in the lap joints of the fuselage, and repair of any cracking found on Model 737 series airplanes, line numbers 292 through 2565 inclusive.

The FAA has reviewed and approved Boeing Service Bulletin 737-53A1177, Revision 6, dated May 31, 2001, which describes, among other things, procedures for repetitive low frequency eddy current inspections to find cracking of the left and right stringer S-10 and S-14 lap joint areas, between BS 360 and BS 540, and BS 727 and BS 908, and repair, if necessary. The service bulletin also describes procedures for the installation of a lap joint modification, which, when accomplished, would eliminate the need for the repetitive inspections. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require repetitive inspections to find cracking of certain fuselage lap joint areas, and repair of any cracking found. The proposed AD also would require eventual modification of those areas, which would constitute terminating action for the repetitive inspections. The actions would be required to be accomplished per the service bulletin described previously, except as discussed below.

The FAA recognizes that the lap joint modification specified in this proposed AD would require jacking, shoring, removing interior components, and modifying certain lap joints, which would require taking the airplane out of service for as much as 22 days. This lengthy shop visit, as well as the relatively short compliance time required to accomplish this proposed AD, make it necessary for operators to engage in compliance planning to ensure that, when the deadline for compliance arrives, all of the required actions have been completed on all affected airplanes. Therefore, paragraph (d) of this proposed AD would require that operators submit to the FAA a compliance plan within 3 months after the effective date of this AD. This will enable the FAA to verify that all operators will be able to meet the deadlines imposed by this proposed AD.

Operators should note that, in light of the complexity of the service bulletin, three separate rulemaking actions are being issued to address the potential unsafe conditions relating to the cracking of the lap joints of the fuselage. This proposed rule will address only Model 737-200 and -200C series airplanes having line numbers 1 through 291 inclusive.

Operators also should note that, although the service bulletin specifies that the manufacturer may be contacted for disposition of certain repair/modification conditions, this proposed AD requires the repair/modification of those conditions to be accomplished per a method approved by the FAA, or per data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

There are approximately 159 Model 737-200 and -200C series airplanes of the affected design in the worldwide fleet. The FAA estimates that 55 airplanes of U.S. registry (over 10 years) would be affected by this proposed AD.

It would take approximately 16 work hours per airplane to accomplish the proposed inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $52,800, or $960 per airplane, per inspection cycle.

It would take approximately 75 work hours per airplane to accomplish the proposed modifications, at an average labor rate of $60 per work hour. Required parts would cost approximately $1,500 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $330,000, or $6,000 per airplane.

The compliance plan that is proposed in this AD action would take approximately 24 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the compliance plan on U.S. operators is estimated to be $79,200, or $1,440 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); 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 is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

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:

This proposed rule implements guidance from section 21 of the Internal Security Act of 1950 (50 U.S.C. 797 and DoD Directive 5200.8, Security of DoD Installations and Resources).

For the reasons set forth in the preamble, the Department of the Air Force is proposing to amend 32 CFR, Chapter VII by redesignating Part 809a as 808 and revising it to read as follows:

The Coast Guard encourages interested parties to participate in this rulemaking by submitting written data, views, or arguments. Persons submitting comments should include their names and addresses, identify this rulemaking (CGD08-01-003), and the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and attachments in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you would like confirmation of receipt of your comments, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of comments received.

We do not now plan to hold a public meeting. You may submit a request for a public meeting by writing to the Commander, Eighth Coast Guard District, Bridge Administration Branch at the address under ADDRESSES explaining why a public meeting would be beneficial. If we determine that a public meeting would aid this rulemaking, we will hold one at a time and place to be announced by notice in the Federal Register .

The Coast Guard published a notice of proposed rulemaking on March 19, 2001 (66 FR 15373). The proposed rule would have permitted the draws of the S3087 bridge, the Howard Avenue bridge, and the Daigleville bridge to open on signal if at least four hours notice is given, except that, the draw need not open for the passage of vessels Monday through Friday, except Federal holidays, from 6 a.m. to 8 a.m. and 4 p.m. to 6 p.m.

Comments received prompted the Coast Guard to reevaluate the proposal. Two letters were received in response to the public notice. The Louisiana Department of Agriculture offered no comments. Mr. Richard Block of the Gulf Coast Mariners Association stated that the changes requested were unacceptable as proposed. These letters were forwarded to the Louisiana Department of Transportation and Development (LDOTD) for their reevaluation.

LDOTD responded to the Coast Guard with a new proposal. They determined that the special operating regulations for the S3087 bridge and the Daigleville bridge would remain unchanged and they would only request a change to the operation of the Howard Avenue Bridge. They requested that the Howard Avenue bridge be operated on a similar schedule to the Daigleville bridge which is 0.5 miles upstream of the Howard Avenue bridge. As the Howard Avenue bridge is located between the Daigleville bridge and the S3087 bridge, the requirement for opening the bridge on signal is not needed as the bridge is located between two bridges with special operating regulations.

Currently, all three drawbridges, the S3087 Bridge (33 CFR 117.505(c)), the Howard Avenue Bridge, and the Daigleville Bridge (33 CFR 117.505(d)) across Terrebonne Bayou are required to open on signal during the day. However, both the S3087 Bridge and Daigleville Bridge have drawbridge operation regulations that require a four-hour advance notice be given. The S3087 Bridge will open on signal if at least four hours notice is given from 5 p.m. to 9 a.m. The Daigleville Bridge will open on signal if at least four hours notice is given from 10 p.m. to 6 a.m. The Daigleville Bridge is also allowed to remain closed-to-navigation Monday through Friday, except holidays, from 7 a.m. to 8:30 a.m. and 4:30 p.m. to 6 p.m.

The Coast Guard proposes to change the regulation in 33 CFR 117.505 to require the draw of the Howard Avenue bridge to open on signal; except that, the draw need not open for the passage of vessels Monday through Friday except holidays from 7 a.m. to 8:30 a.m. and 4:30 p.m. to 6 p.m. From 10 p.m. to 6 a.m., the draw shall open on signal if at least four hours notice is given.

The Howard Avenue bridge is located between the Daigleville bridge and the S3087 bridge. These bridges have existing special operating regulations that are more restrictive than the open on signal requirement imposed upon the Howard Avenue bridge. LDOTD now wishes to have the operating schedule of the Howard Avenue bridge conform to the requirement of the Daigleville bridge. The Coast Guard has determined that the request by the bridge owner, to have the Howard Avenue bridge operate on the same schedule as the Daigleville bridge is reasonable and meets the needs of navigation.

This proposed rule 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. The Office of Management and Budget has not reviewed it 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 proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This proposed rule allows commercial fishing vessels ample opportunity to transit this waterway before and after the peak vehicular traffic period which occurs between 7 a.m. and 8:30 a.m. and 4:30 p.m. and 6 p.m. according to the vehicle traffic surveys.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. The proposed rule has considered the needs of the local commercial fishing vessels and it has been determined that, under 5 U.S.C. 605(b), it would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Bridge Administration Branch, Eighth Coast Guard District at the address above.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this proposed rule under Executive Order 13132 and have determined that this proposed rule would not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not economically significant and does not cause an environmental risk to health or risk to safety that may disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The Coast Guard considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph 32(e), of Commandant Instruction M16475.lD, this proposed rule is categorically excluded from further environmental documentation. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

For the reasons set out in the preamble, the Coast Guard proposes to amend Part 117 of Title 33, Code of Federal Regulations, as follows:

We encourage you to participate in this rulemaking by submitting comments or related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD01-01-0), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know if they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to the First Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The Monmouth County highway bridge, at mile 4.0, across the Shrewsbury River has a vertical clearance of 15 feet at mean high water and 17 feet at mean low water. The existing regulations are listed at 33 CFR 117.755.

The bridge owner, Monmouth County, asked the Coast Guard to temporarily change the drawbridge operation regulations to facilitate structural repairs at the bridge. This proposed temporary rule would allow the bridge owner to open the bridge at 6 a.m., 10 a.m., 2 p.m., and 6 p.m., only, from November 1, 2001 through February 28, 2002. A twelve-hour advance notice would be required for all bridge openings.

This proposed temporary change to the drawbridge operation regulations would allow the bridge owner to open the bridge at 6 a.m., 10 a.m., 2 p.m., and 6 p.m., only, after a twelve-hour advance notice is given, while structural repairs are underway at the bridge.

The timed openings and the advance notice requirement are necessary to assist in scheduling repairs and to allow the contractor sufficient time to remove equipment and materials from the bridge in order to provide bridge openings.

The number of bridge openings from November through February in past years have been relatively low. The bridge opening log data for November through February for the past two years is as follows:

The Coast Guard believes this rulemaking is reasonable based upon the relatively low number of bridge opening requests during past years November through February and the fact that this work is necessary maintenance required to assure continued uninterrupted operation of the bridge.

This proposed rule 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 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, Feb. 26, 1979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation, under paragraph 10e of the regulatory policies and procedures of DOT, is unnecessary. This conclusion is based on the fact that the bridge will still continue to open daily for navigation.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under section 5 U.S.C. 605(b), that this proposed rule would not have a significant economic impact on a substantial number of small entities. This conclusion is based upon the fact that the bridge will still continue to open daily for navigation.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

We have analyzed this proposed rule under E.O. 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this proposed rule is categorically excluded from further environmental documentation because promulgation of drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this rule.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

For the reasons set out in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CCGD13-01-006), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander Thirteenth Coast Guard District (oan) at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The operating regulations currently in effect for these drawbridges at 33 Code of Federal Regulations 117.899 provide that the spans need not open for the passage of vessels from 5 a.m. to 9 p.m. daily unless at least a half hour notice is provided. During these daily hours notice may be given by marine radio, telephone, or other suitable means. At all other times a minimum of four hours notice is required by telephone only. The three drawbridges have operated according to this schedule since 1993 without complaint from vessel operators. The proposed rule would enable the Oregon Department of Transportation, owner of the bridges, to reduce staffing on half-hour standby during the hours when the bridges have been less frequently opened and to apply these savings to maintenance expenses.

The proposed change would reduce the Monday through Friday periods that require only a half hour notice to open the bridge for the passage of vessels by one hour in the morning and three in the evening. On Saturdays and Sundays the same period would be reduced by three hours in the morning and five in the evening. In effect, this would likewise increase the daily periods when four hours notice is the minimum requirement for notice by the same number of hours. The change is based on the general reduction in the number of requests for opening by vessel operators and the reduction of requests specific to the hours that would be changed.

In the year 2000 the New Youngs Bay Bridge opened a total of 335 times for an average of less than once a day. The Old Youngs Bay Bridge opened only 47 times in the same year, while the Lewis and Clark River Bridge opened 325 times. Records indicate a significant reduction in openings for the three bridges since 1996. There is less demand for draw openings on the weekends and for the hours of the day that would be added to the period in which four hours notice is required. Based on the data from the year 2000, only four openings occurred during the proposed one-hour change in the morning, Monday through Friday. More openings would have been affected in the evening addition of three hours to the four-hour notice category. However, this number is 27, still a small fraction of the total. The records indicate a marked decrease in the demand for openings from 5 p.m. to 7 p.m.

This proposed rule 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. The Office of Management and Budget has not reviewed it 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).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This conclusion is based on the fact that the bridges are not frequently requested to open. The majority of vessels are clients of a boatyard upstream of the Lewis and Clark River Bridge. The advance notice requirement does not obstruct passage for any vessels. Currently, vessels have operated under similar notice requirements without complaint.

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, or on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. Some vessel owners might be temporarily inconvenienced by the change, if effected, but the greater advance notice required in part of the morning and evening should not be significant, especially after vessel operators learn of the change and can therefore plan their trips accordingly. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

We have analyzed this proposed rule under E.O. 13132 and have determined that this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This proposed rule would not impose an unfunded mandate.

This proposed rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.

We considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (32)(e) of Commandant Instruction M16475.lC, this proposed rule is categorically excluded from further environmental documentation because promulgation of drawbridge regulations have been found not to have a significant effect on the environment. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [USCG-2000-6927], indicate the specific section of this document to which each comment applies, and give the reason for each comment. You may submit your comments and material by mail, hand delivery, fax, or electronic means to the Docket Management Facility at the address under ADDRESSES ; but please submit your comments and material by only one means. If you submit them by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

At Coast Guard Headquarters in Washington, DC, we held a public meeting on this project on January 20, 1995 (59 FR 65522; December 20, 1994), regarding amendments contained in the Oil Pollution Act of 1990 (OPA 90) (Pub. L. 101-380) that require certain U.S. and foreign-flag vessels to report marine casualties.

On November 2, 2000, the Coast Guard published a notice of proposed rulemaking (NPRM) entitled Reporting Marine Casualties in the Federal Register (65 FR 65808).

The Coast Guard received 24 letters commenting on the NPRM, nine of which related to the Federalism section. Several comments also requested a public meeting to discuss the Federalism section. This supplemental notice addresses only the comments regarding the Federalism section and the requests for a public meeting. The remaining comments will be considered as we develop the final rule.

Current marine casualty reporting requirements for U.S.-flag vessels worldwide and foreign-flag vessels in U.S. navigable waters are contained in 46 CFR part 4. The proposed amendments would add “significant harm to the environment” as a reportable marine casualty under 46 CFR 4.05-1 for these vessels.

This rulemaking will help the Coast Guard track and investigate marine casualties that may result in significant harm to the environment. In addition, it will lessen the effects of marine casualties by requiring timely notification needed to ensure a timely and appropriate pollution response clean-up. It would also require foreign-flag tank vessels in the U.S. Exclusive Economic Zone (EEZ) to report marine casualties that occur within the U.S. EEZ, involving material damage affecting the seaworthiness or efficiency of a vessel, or significant harm to the environment.

In accordance with § 4106 of OPA 90, the Coast Guard proposes to amend the marine casualty reporting requirements to require U.S. vessels anywhere, foreign vessels in the U.S. navigable waters and foreign tank vessels in the U.S. EEZ to report a discharge or a substantial threat of discharge involving oil, hazardous substances, marine pollutants, or Noxious Liquid Substances (NLS) to the Coast Guard.

We propose to adopt the MARPOL 73/78 standard for reporting discharges and probable discharges.

The Coast Guard received 10 comments on the Federalism section of the November 2, 2000 NPRM. These comments stated that the Federalism section appears to preempt states from regulating the reporting of discharges of oil or hazardous substances in U.S. waters as a casualty, and therefore, this section should be revised.

We have considered the comments submitted by the eight States, one regional group, and one corporation. We now recognize that the Federalism statement as published in the NPRM could be interpreted to mean that this rulemaking would preempt State regulations requiring reporting of discharges to State officials. The Coast Guard did not intend such an interpretation, and proposes to revise the Federalism statement accordingly.

In the case of United States v. Locke , 529 U.S. 89 (2000), the Supreme Court held the States may not regulate in categories reserved for regulation to the Coast Guard, including design, construction, alteration, repair, maintenance, operation, equipping, personnel certification and manning of vessels, among others. Included in the categories reserved to the Coast Guard are regulations requiring the reporting of marine casualties. The Supreme Court recognized that marine casualties resulting in significant harm to the marine environment would be included in the preempted category. The Federalism statement in the NPRM was drafted to reflect that aspect of the Locke decision. However, the Court also discussed Section 1018 of OPA 90 at length. Section 1018(a) states, in part, that “nothing in the Act shall affect, or be construed or interpreted as preempting the authority of any State or any political subdivision thereof from imposing any additional liability or requirements with respect to—(A) the discharge of oil or other pollution by oil within such State or (B) any removal activities in connection with such a discharge.” Section 1018(c) allows for “additional liability or additional requirements” relating to “the discharge or substantial threat of a discharge of oil.” While the Court held that Section 1018 did not affect the preemptive impact of the categories described above, State requirements regarding reporting to it of the actual discharge or the substantial threat of a discharge of oil so that it could undertake its proper role in respect of the removal of such a discharge (and its rules in respect of liability and compensation for that discharge) were unaffected by the decision.

The Coast Guard believes that reporting of discharges or of the substantial threat of a discharge of oil is within the ambit of State regulation contemplated by Section 1018 of OPA, because without such reports, State removal, liability and penalty actions could not commence. Therefore, while State regulation requiring reports of marine casualties that ultimately cause discharges of oil are preempted, State regulations requiring reports of the discharge itself, or the substantial threat of such a discharge, are not preempted. The Coast Guard proposes to revise the Federalism Statement for this rulemaking as follows:

A rule has implications for Federalism under Executive Order 13132 if the rule has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled, now, that all of the categories covered in 46 U.S.C. 3306, 3703, 6101, 7101 and 8101 (design, construction, alteration, repair, maintenance, operation, equipping, personnel certification, manning and the reporting of marine casualties on vessels), and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. (See the decision of the Supreme Court in the consolidated cases of United States v. Locke and Intertanko v. Locke , 529 U.S. 89, 120 S.Ct. 1135 (2000)). This proposed rule concerns the reporting of marine casualties, including the reporting of casualties causing significant harm to the marine environment. Because States may not regulate within this category, preemption under Executive Order 13132 is not an issue.

However, the determination that States are precluded from regulating in the category of marine casualties does not impact the ability of a State to require reports of the discharge, or the substantial threat of a discharge of oil. Pursuant to Section 1018 of OPA 90, States retain their rights to impose additional requirements regarding reports of the discharge or substantial threat of a discharge of oil for the purpose of responding to the discharge or substantial threat of a discharge and instituting liability and compensation proceedings, providing those requirements do not touch on preempted categories described in the Locke decision. Therefore, present and future State discharge reporting requirements that do not touch on the preemptive marine casualty reporting category are unaffected by the Locke decision and this proposed rule, so in that regard, this proposed rule likewise has no implications for Federalism.

We also received comments stating that the Coast Guard should hold a public meeting to address the Federalism section in the NPRM. The Coast Guard believes that this SNPRM addresses these comments and clarifies the Federalism section and that a public meeting will not be necessary.

On December 22, 2000, George W. Bush, then Governor of Texas, submitted rule revisions to 30 TAC, Chapter 117, “Control of Air Pollution From Nitrogen Compounds,” as a revision to the SIP for point sources in the H/GA. The State of Texas submitted this revision to us as a part of the NO X reductions needed for the H/GA area to attain the 1-hour ozone standard. These NO X reductions will assist H/GA to attain the 1-hour ozone standard.

The December 22, 2000, submittal required an 89 percent reduction in emissions of NO X from point sources in the H/GA area. In this document we are taking six separate actions:

(1) We are proposing to approve the December 22, 2000, rule revision to the Texas SIP.

(2) We are proposing to approve that the CO and ammonia emission limits found in 30 TAC Chapter 117 in conjunction with NO X emission limits, not be a part of the federally approved Texas SIP. In our 65 FR 64148 document published on October 26, 2000, and 65 FR 64914 document published on October 31, 2000, we included CO and ammonia emission limits, in addition to the NO X emission limits, as a part of the federally approved Texas SIP, by mistake. Texas did not originally request their inclusion and subsequently requested not to have these limits included as a part of the federally approved SIP. We are now correcting that error and are proposing that the limits on CO and ammonia emissions, resulting from use of post combustion controls, not be a part of the federally approved SIP for Texas.

(3) We are proposing to approve, through parallel processing, a procedure explained below, revisions made to sections of 30 TAC, Chapter 117 that Texas proposed on May 30, 2001, and submitted to us, concerning stationary diesel engines or stationary dual-fuel engines under Part D of the Act because Texas is relying on these NO X reductions to demonstrate attainment of the 1-hour ozone standard in the H/GA 1-hr ozone nonattainment area.

(4) We are proposing to approve, through parallel processing, revisions made to sections of 30 TAC, Chapter 117 that Texas proposed on May 30, 2001, and submitted to us, concerning NO X emissions specifications and compliance schedules for utility electric generation and ICI sources in the H/GA area. Section 9, Table VI, section 14, Table XII, and section 16, Table XIV of this document contain more information about action number four.

(5) We are proposing to approve, through parallel processing, revisions made to sections of 30 TAC, Chapter 117 that Texas proposed on May 30, 2001, and submitted to us, concerning both the lean-burn and rich-burn reciprocating internal combustion engines. Section 10, Table VIII of this document contains more information about action number five.

We will explain action number six in section 3 of this document. To better understand action number six in this document we strongly recommend you read section 2, first.

The public comment period for this proposed State rule revision closes on July 2, 2001. If the State makes significant changes between the version we are parallel processing and the final adopted version, other than those changes resulting from issues discussed in this proposed rulemaking, we will issue an additional notice of proposed rulemaking before taking final action. If there are no significant changes and the State submits the final rule revision to us for approval, then we will go ahead with a final rulemaking.

In this document we are not proposing to approve the alternate or less stringent NO X emissions specifications and less stringent emissions reductions that are part of the proposed May 30, 2001, Texas SIP revision, at this time. Section 9, Table VII, section 11, Table IX, section 13, Table XI, section 15, Table XIII, and section 17, Table XV of this document contain more information about parts of the proposed May 31, 2001, Texas SIP revision that we are not proposing to approve in this rulemaking action.

Table I contains a summary list of the sections of 30 TAC, Chapter 117 that Texas proposed on May 30, 2001, for sources of NO X in the H/GA.

On January 19, 2001, a coalition of industries known as the BCCA Appeal Group, joined by Enterprise Products Operating, L.P., Equistar Chemicals, L.P., Lyondell Chemical Company, Lyondell-Citgo Refining, L.P., and Reliant Energy, Incorporated (collectively, Plaintiffs) filed a law suit against the TNRCC, TNRCC's Commissioners, and its Executive Director (Defendants) in the District Court of Travis County of Texas. Among other issues, the suit challenged the requirements of the December 22, 2000, submittal concerning revisions to 30 TAC, Chapter 117 for point sources of NO X in the H/GA area. The Plaintiffs and Defendants arrived at a negotiated settlement on May 18, 2001. As a result of this settlement, the TNRCC proposed a revision to the 30 TAC, Chapter 117, “Control of Air Pollution From Nitrogen Compounds,” for point sources in the H/GA area, on May 30, 2001.

On June 15, 2001, Texas Governor Rick Perry submitted a request letter to us asking to process the May 30, 2001, proposed rule revisions to 30 TAC, Chapter 117, as a revision to the SIP from point sources in the H/GA, through parallel processing. The State of Texas submitted this revision to us as a part of the NO X reductions needed for the H/GA area to attain the 1-hour ozone standard.

Under the settlement agreement with BCCA, the TNRCC will conduct a scientific study (Study) examining the causes and possible solutions to the H/GA area's 1-hour ozone nonattainment problem. This Study will assess the impact of reducing emissions of the industrial based VOC due to episodic releases. If the Study shows that the area can reach attainment by 2007 with fewer NO X emission reductions from point sources of NO X concurrent with other emission reduction strategies and plans, then the alternate (less stringent when compared with Table II) NO X emission specifications may take effect for attainment demonstration purposes in the H/GA area.

The TNRCC will have to make its determination and decision in the form of a rulemaking on the Study no later than June 1, 2002. The State will then need to submit any resulting rulemaking to EPA for evaluation and review as a SIP revision.

The Study may also show that reducing VOCs emissions from episodic releases or other emission reduction strategies may not result in the area reaching attainment. In that case, the alternate NO X emission specifications and less stringent NO X emission reductions will not be appropriate choices to bring the H/GA area into attainment.

We want to make it clear that regardless of the findings of this Study, or its potential follow up study, the 2007 deadline for compliance with the federal 1-hr ozone standard in the H/GA area will remain unchanged. Any new control strategy will have to achieve attainment with the federal 1-hr ozone standard by 2007.

We want to make it clear that our listing of the alternate NO X emissions specifications, alternate compliance schedules, and alternate overall point sources NO X reductions (May 30, 2001, revision) in this document is by no means indicative of EPA's approval of these listings for point sources of NO X in the H/GA area.

(6) We are listing, not approving, the requirements of the May 30, 2001, revision to the Texas SIP, including its alternate (less stringent) NO X emission specifications and reduction plans, in this document. By listing the requirements of the May 30, 2001, revision to the Texas SIP, including its alternate NO X emission specifications and reduction plans, we are not approving these requirements. We will evaluate the alternate emission specifications and requirements proposed in the May 30, 2001, revision to the Texas SIP under the following conditions: (1) the area can reach attainment by 2007 with fewer NO X emission reductions from point sources, and (2) the State renews the request to include the alternative specifications and requirements in the SIP, or (3) an evaluation is otherwise appropriate.

To find out more about the proposed May 30, 2001, revision to the Texas SIP, including its alternate NO X emission specifications and plans, see sections 9 through 17 of this document.

This rule revision requires reductions of NO X emissions from point sources in the H/GA ozone nonattainment area. The following table contains a summary of the NO X emission specifications for attainment demonstration purposes that the State adopted in the December 22, 2000, SIP revision for point sources in the H/GA.

The proposed rulemaking will control/reduce NO X emissions in the H/GA area in two phases or Tiers. We will refer to these two emission reduction phases as Tier I and Tier II Reductions. The following Table contains a summary of the 1997 NO X emissions and the proposed emission reductions for each point source category in the H/GA area.

We are proposing approval of the above-listed NO X emissions specifications for point sources of NO X in the H/GA as a part of the Texas 1-hour ozone SIP under Part D of the Act because Texas is relying on the NO X control measures to demonstrate attainment of the 1-hour ozone standard in the H/GA nonattainment area.

The combined NO X emission reductions of Tier I and Tier II in the proposed rulemaking will be 595 tpd or 89 percent, when compared to the 1997 emission levels. We are proposing approval of the overall NO X point sources reductions in the H/GA as a part of the Texas 1-hour ozone SIP under part D of the Act because Texas is relying on the NO X control measures to demonstrate attainment of the 1-hour ozone standard in the H/GA nonattainment area.

As stated before, this rule revision offers a phased-in approach concerning the emission reductions and compliance schedule for point sources of NO X in the H/GA. The following table contains a summary of the time-table/compliance schedule for the affected point sources of NO X in the H/GA.

We are of the opinion that the above listed compliance dates and time-table combined with the cap and trade provisions of the rule offer operational flexibility to the affected point sources in the H/GA. We are proposing approval of the above-listed compliance dates for point sources of NO X in the H/GA as a part of the Texas 1-hour ozone SIP under Part D of the Act because Texas is relying on the NO X control measures to demonstrate attainment of the 1-hour ozone standard in the H/GA nonattainment area.

None. Prior to May 30, 2001, the TNRCC had not proposed regulations in the Texas SIP limiting NO X emissions from stationary diesel engines or stationary dual-fuel engines.

This proposed rule revision requires reductions of NO X emissions from stationary diesel engines in the H/GA area. The following table contains a summary of the proposed May 30, 2001, SIP revision for stationary diesel engines in the H/GA area.

We are of the opinion that these emission specifications are in agreement with those found in Code of Federal Regulations (CFR), Title 40, § 89.112, and EPA's Document Number 420-R-98-016 dated August 1998, entitled “Final Regulatory Impact Analysis: Control of Emissions from Nonroad Diesel Engines.” We are also of the opinion that these NO X emission specifications will contribute to the attainment of the 1-hr ozone standard in the H/GA area. The estimated NO X emission reductions attributed to the stationary diesel engines or stationary dual-fuel engines provisions of this rule revision is 1.00 tpd.

We are proposing approval of these stationary diesel engines or stationary dual-fuel engines rule revisions under Part D of the Act because Texas is relying on these NO X reductions to demonstrate attainment of the 1-hour ozone standard in the H/GA 1-hr ozone nonattainment area.

Under the May 30, 2001, Texas SIP revision, the proposed compliance date for stationary diesel engines and stationary dual-fuel engines in the H/GA area is April 1, 2002. See sections 117.520 and 117.534 of the proposed rule. We consider the April 1, 2002, compliance date for stationary diesel engines and dual-fuel engines, in the H/GA area, as expeditious as practicable.

We are proposing approval of these stationary diesel engines or stationary dual-fuel engines compliance schedules under Part D of the Act because Texas is relying on these NO X reductions to demonstrate attainment of the 1-hour ozone standard in the H/GA 1-hr ozone nonattainment area.

This rule revision requires reductions of NO X emissions from point sources in the H/GA ozone nonattainment area. The following table contains a summary of the NO X emission specifications for attainment demonstration purposes that the State has proposed to adopt in the SIP revision for point sources in the H/GA.

We are of the opinion that NO X emission specifications listed in Table VI will contribute to attainment of the 1-hr ozone standard in the H/GA area. We are proposing approval of the above-listed NO X emissions specifications for affected point sources of NO X in the H/GA as a part of the Texas 1-hour ozone SIP under part D of the Act because Texas is relying on the NO X control measures to demonstrate attainment of the 1-hour ozone standard in the H/GA nonattainment area.

We are not proposing to approve, through parallel processing, the alternate scenario listed in Table VII of this document.

Instead of adopting NO X emission specifications listed in Tables II or VII of this document for affected sources with an annual capacity factor of 0.0383 or less, a source or operator can use an emission specification of 0.060 lb NO X per million Btu. This option will allow for operational flexibility in the rule.

You can find proposed NO X emissions specifications for the ICI source category within the H/GA for attainment demonstration purposes in the H/GA in the following table.

We are proposing approval of the above-listed NO X emissions specifications for point sources of NO X in the H/GA as a part of the Texas 1-hour ozone SIP under part D of the Act because Texas is relying on the NO X control measures to demonstrate attainment of the 1-hour ozone standard in the H/GA nonattainment area.

Instead of adopting NO X emission specifications listed in Table VIII of this document for affected sources with an annual capacity factor of 0.0383 or less, a source or operator can use an emission specification of 0.060 lb NO X per million Btu. This option will allow for operational flexibility in the rule.

You can find the proposed alternate NO X emissions specifications in the ICI source category for attainment demonstration within the H/GA area in the following table:

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

The Governor of Texas submitted an attainment demonstration SIP for the HGA 8-county nonattainment area on December 20, 2000. The SIP contained measures for reducing Nitrogen Oxides ( NO X ), the pollutant identified as controlling the formation of ozone in this area. The LED fuel program was submitted as part of the attainment demonstration. This LED rule was codified in Chapter 114 of the Texas Administrative Code (TAC)(sections 114.6, 114.312-114.317 and 114.319, December 6, 2000).

Numerous changes to State air pollution control laws occurred during Texas' 77th legislative session. One of these changes relates to the LED program. House Bill 2912 limits the State's authority to regulate fuel content. Unless the Governor vetoes the Bill by June 17, 2001, it will become law. The Bill bans the establishment of fuel control measures more stringent than EPA's between September 1, 2000 and January 1, 2004. The Bill specifically authorizes the LED program, but mandates that implementation be delayed until February 1, 2005. Finally, this Bill allows refiners flexibility in complying with the LED requirements. In anticipation of this legislation, the Texas Natural Resource Conservation Commission (TNRCC) proposed amendments to the LED rule on May 10, 2001.

In a letter to EPA dated June 15, 2001, the Governor requested “parallel processing” of the LED regulations with the proposed amendments, which reduce the covered area, change the implementation date, and add a new section providing for an alternative means of compliance. See 30 TAC 114.314, 114.318, 114.319 (May 10, 2001). In today's action, we are proposing approval of the LED regulations with the proposed amendments as they apply to the HGA, Beaumont-Port Arthur, and Dallas Fort Worth nonattainment area counties as well as 95 attainment counties in east Texas.

The State's LED SIP submittal for the HGA non-attainment area requires that diesel fuel produced for delivery and ultimate sale within the affected counties have a maximum sulfur content of 500 ppm, have no more than 10% aromatic hydrocarbons by volume, and have a cetane number of 48 or greater. Alternative diesel fuel formulations that achieve equivalent emission reductions may also be used.

The regulations apply to diesel fuel sold in the HGA nonattainment counties of Harris, Galveston, Brazoria, Fort Bend, Montgomery, Liberty, Chambers, and Waller; Beaumont-Port Arthur nonattainment counties of Jefferson, Orange and Hardin; and Dallas-Fort Worth nonattainment counties of Dallas, Tarrant, Collin, and Denton; as well as 95 attainment counties in East Texas including Anderson, Angelina, Aransas, Atascosa, Austin, Bastrop, Bee, Bell, Bexar, Bosque, Bowie, Brazos, Burleson, Caldwell, Calhoun, Camp, Cass, Cherokee, Colorado, Comal, Cooke, Coryell, De Witt, Delta, Ellis, Falls, Fannin, Fayette, Franklin, Freestone, Goliad, Gonzales, Grayson, Gregg, Grimes, Guadalupe, Harrison, Hays, Henderson, Hill, Hood, Hopkins, Houston, Hunt, Jackson, Jasper, Johnson, Karnes, Kaufman, Lamar, Lavaca, Lee, Leon, Limestone, Live Oak, Madison, Marion, Matagorda, McLennan, Milam, Morris, Nacogdoches, Navarro, Newton, Nueces, Panola, Parker, Polk, Rains, Red River, Refugio, Robertson, Rockwall, Rusk, Sabine, San Jacinto, San Patricio, San Augustine, Shelby, Smith, Somervell, Titus, Travis, Trinity, Tyler, Upshur, Van Zandt, Victoria, Walker, Washington, Wharton, Williamson, Wilson, Wise, and Wood Counties in the attainment area.

The State regulations require compliance with the cetane, aromatic hydrocarbon, and 500 ppm sulfur components by April 1, 2005. Starting June 1, 2006, the sulfur level shall be reduced to 15 ppm.

Section 211(c)(4)(A) of the Act generally prohibits the State from prescribing or attempting to enforce controls respecting motor vehicle fuel characteristics or components that EPA has controlled under section 211(c)(1), unless the State control is identical to the Federal control. Under section 211(c)(4)(C), EPA may approve a non-identical state fuel control as a SIP provision, if the state demonstrates that the measure is necessary to achieve the NAAQS. We may approve a state fuel requirement as necessary if no other measures would bring about timely attainment, or if other measures exist and are technically possible to implement but are unreasonable or impracticable.

In this rulemaking, EPA does not need to determine whether the State requirements for LED fuel used in motor vehicles are preempted under section 211(c)(4)(A) before acting to approve the SIP submittal because EPA is finding the fuel requirements necessary under section 211(c)(4)(C) to achieve the ozone standard in the HGA nonattainment area.

The State submitted the LED rules as part of the HGA attainment demonstration SIP by letter from the Governor dated December 20, 2000. The SIP submittal contains 30 TAC Chapter 114 rules as adopted on December 6, 2000, a request for a waiver from Federal preemption pursuant to section 211(c)(4)(C) of the Act, and Texas laws providing the authority for the State to adopt and implement revisions to the SIP. The State also submitted a request to “parallel process” revisions to the LED rules in a letter from the Governor dated June 15, 2001. These revisions were proposed by the State on May 10, 2001.

Texas previously submitted a waiver request and EPA proposed approval of LED rules for nine counties in the DFW Consolidated Metropolitan Statistical area (66 FR 20415, April 23, 2001). For the HGA nonattainment area, Texas submitted data and analyses to support a finding under section 211(c)(4)(C) that the LED fuel requirement for the affected counties is necessary for the HGA nonattainment area to achieve the ozone NAAQS. The State has (1) identified the quantity of reductions of NO X needed to achieve attainment of the ozone NAAQS; (2) identified all other control measures and the quantity of reductions each would achieve; (3) identified those control alternatives that were deemed unreasonable or impracticable; and (4) shown that even with the implementation of all reasonable and practicable control measures, the State would need additional emissions reductions for the nonattainment area to meet the ozone NAAQS on a timely basis, and that the LED fuel requirement would supply some of such additional reductions.

Texas submitted its demonstration of necessity for the LED fuel requirement in the State's attainment demonstration for the HGA nonattainment area. The State's submission used photochemical modeling to estimate the quantity of NO X emission reductions necessary to achieve the ozone NAAQS by 2007. Based on this analysis, Texas estimates that NO X reductions of 977.07 tons per day (tpd) are necessary to achieve the ozone NAAQS by 2007. Without the LED requirements for the affected counties in the HGA, BPA, and DFW nonattainment areas and the named attainment counties (the “covered area”), implementation of the reasonable and practicable non-fuel control measures would reduce NO X emissions by only 918.53 tpd.

The primary benefit of LED fuel in the HGA attainment demonstration is reduction of NO X emissions. Without the proposed fuel controls, the area subject to the proposed fuel control would receive diesel fuel for nonroad use that is subject to no federal emissions-related standards or diesel fuel for on-highway use that meets the less stringent, current Federal standards.

Texas is controlling three components of diesel fuel for on-highway vehicles: aromatic hydrocarbons, cetane number and sulfur. The State's sulfur standard, however, is the same as the current Federal requirement for diesel fuel used in motor vehicles. Texas estimated that the 10% cap on aromatic hydrocarbons reduces NO X from diesel combustion. The cetane number is an indication of ignition properties of the fuel. A fuel with better ignition properties will ignite at a lower heat of compression, thereby reducing the amount of NO X produced during combustion.

For nonroad engines, Texas' sulfur content standards will provide additional emissions reductions. There is no direct NO X benefit from controlling sulfur in fuel. However, the State is including the sulfur requirement for nonroad engines because lower sulfur levels prevent fouling of after-treatment NO X emission control devices that may be installed on nonroad diesel equipment. The State does not need a waiver of preemption for fuel components of nonroad diesel fuel because section 211(c)(4)(A) applies only to State controls respecting motor vehicle (i.e., on-highway) fuel characteristics or components. In addition, there are no Federal requirements promulgated under section 211(c)(1) for characteristics or components of nonroad diesel fuel.

EPA recently reviewed and analyzed all available data on the emission reduction effects of low emission diesel fuels. The final outcome of this evaluation may or may not suggest a need to reconsider the emission reduction estimates used by the State for its LED rule. If the final results of EPA's evaluation indicate that Texas has incorrectly estimated the emission reductions attributable to the LED rule, then EPA will work with the State to adjust the emissions benefit as necessary.

The State evaluated a broad range of potential control measures and estimated the quantity of reductions that could be achieved through implementation of these measures. Over two hundred potential control strategies were initially considered by the State and HGA regional stakeholders as part of the planning process. This list is included in Appendix L of the HGA Attainment SIP (December 2000). The measures that were selected for the attainment demonstration are in Table 1.

The State adopted some controls for implementation within only a portion of the nonattainment area. Heavy-duty diesel operating restrictions and Small, Spark-Ignition Engine Operating Restrictions are applicable to the five (5) urbanized counties of the nonattainment area. All 8 counties were not included because the State decided that it was impracticable to implement these rules beyond the five (5) urbanized counties of the HGA nonattainment area. Recent State legislation, if signed, would require the State to submit a SIP revision removing the Construction Shift rule and Accelerated Tier 2/Tier 3 Purchase from State regulations. (See footnote 2)

Expanding LED and several other measures beyond the HGA nonattainment area can be justified, but other controls beyond the 8 county nonattainment area were considered unreasonable or impracticable by the State, and we concur.

Major Point Source NO X reductions: Major point source NO X reductions are mandated only for the 8 county area because NO X controls for those sources in the attainment areas are mandated by other rules. These rules are NO X reductions of 30% for grandfathered sources, 50% reductions for grandfathered Electric Generating Facilities, and 30% reductions for Cement Kilns. Therefore the extreme cost of adding additional controls does not justify the relatively small benefit that would result.

Vehicle Inspection and Maintenance: This measure is not reasonable or practicable to implement in rural attainment counties of East Texas because changes in state law would be required, and the time required to seek such changes and implement them make the success of such a measure unpredictable. The State has no legislative authority to mandate this program. The Legislature provides the authority for counties to voluntarily opt in to I/M. In addition, the cost for small business, which would conduct the testing, is prohibitive based on the number of tests that would be conducted in rural areas in comparison to an urban area.

Voluntary Mobile Emission Reductions: This EPA policy provides States flexibility in designing SIPs to meet the NAAQS. The policy contemplates that up to 3% of the total needed emission reductions that can be included in this category. Reasonable and practicable VMEP programs totaling 3% have already been set up within nonattainment counties. A further expansion of this program would be inconsistent with this policy.

Speed Limit Reduction: The reduced speed limit measure is based on vehicle emission information from EPA's MOBILE5 model. There is not a significant amount of vehicle miles traveled and ample fleet size in the attainment counties to justify expanding this measure beyond the 8-county area.

Airport Ground Support Equipment Electrification: It is not necessary (or reasonable) to impose airport GSE electrification in the attainment counties because there are no major airports in those counties.

Internal Combustion Engine—Oil category (stationary diesel engines): The restrictions are designed to reduce unnecessary NO X emissions in the nonattainment area. It is neither reasonable nor practicable to implement this type of restriction in rural, low density counties of the attainment area.

Vehicle Idling Restrictions: The restrictions are designed to reduce unnecessary vehicle exhaust in congested, nonattainment areas. It is neither reasonable nor practicable to implement this type of restriction in rural, low density counties of the attainment area.

Transportation Control Measures: A TCM is a project that attempts to reduce vehicle use, change traffic flow, or reduce congestion conditions. Due to the semi-rural nature of the attainment counties, reducing vehicle use is not a viable option in this lower population density area. Generally traffic flow is satisfactory and congestion is not an issue. Therefore, implementing TCMs is not reasonable or practicable in the attainment counties.

Measures that were quantified but not selected for the SIP are listed in Tables 2 and 3. They fall into two categories: (1) direct NO X reductions, and (2) VOC reductions that can be substituted for NO X as achieving equivalent ozone reductions. VOC reduction substitutes for NO X that produced less than one ton of equivalent NO X reductions of ozone were rejected. (See the TSD for a more detailed discussion of these measures.) In each case the tons per day available for control were below the 1 ton per day NO X equivalent reduction of ozone and were therefore rejected as unreasonable or impracticable due to the high cost of implementing VOC controls as NO X controls.

In conducting the point source analysis on reasonably available NO X control measures, the State discovered one category of sources that may warrant additional controls to meet the RACM threshold. This is the Internal Combustion Engine—Oil category (stationary diesel engines). This category is estimated to produce reductions of about 1 tpd of NO X . On May 10, 2001, the State proposed controls on this category of sources. This measure has been submitted along with a request for “parallel processing” and is the subject of a separate rulemaking. Even assuming the reductions from implementation of this measure, the LED program is still necessary for the attainment of the NAAQS.

Of the NO X control measures initially considered, there were relatively few that were rejected as unreasonable or impracticable due to either economic or technological infeasibility. In addition there was another small cluster of measures about which there was insufficient information to make a determination. Table 3 lists the other rejected measures.

Of the control measures identified above, for purposes of section 211(c)(4)(C), all measures in Tables 2 and 3 are considered unreasonable or impracticable for the HGA nonattainment area to implement at this time in comparison to the State's LED requirement. (See the TSD for a more detailed discussion.)

Based on the discussion above, we propose to find that reasonable or practicable non-fuel measures which would bring the HGA nonattainment area into attainment in a timely manner do not exist.

Requiring LED fuel in the covered area will reduce emissions of NO X in the HGA nonattainment area by ensuring that the fuel used by intrastate fleets and long-haul truckers that transit the area but purchase fuel in Texas outside the nonattainment area but within the covered area meets the required fuel characteristics for lowering NO X .

Requiring LED in the covered area which surrounds the HGA nonattainment area will reduce emissions of NO X in those areas, which, in turn, benefits the HGA nonattainment area by reducing the transport of ozone and NO X from the surrounding covered area to the nonattainment area.

Transport into the HGA nonattainment area is not considered a major contributor of ozone, but with the State implementing every ozone reduction measure in the HGA nonattainment area that has ever been implemented elsewhere in the nation, the State is counting on every possible benefit. The Coastal Oxidant Assessment for Southeast Texas (COAST) Study documented the on-shore/off-shore phenomenon called flow reversal. This coastal phenomenon has its influence inland at least 50 km, and perhaps as far as 400 km, easily reaching into the attainment areas surrounding the HGA area.

In the COAST Study, researchers collected aerometric (meteorological and air quality) data to improve understanding of the causes of high ozone in Southeast Texas. This data was then used in conjunction with photochemical modeling to determine control strategy effectiveness including the sensitivity of ozone concentrations in the nonattainment areas to emission reductions in the attainment region. This sensitivity modeling indicated there was an influence of emission reductions in the attainment areas on the nonattainment areas.

EPA policy recognizes that ozone precursors emitted in attainment areas that surround nonattainment areas may be transported into those nonattainment areas and contribute to ozone problems therein. With the December 29, 1997, Guidance for Implementing 1-Hour Ozone and Pre-Existing PM10 NAAQS, EPA recognized that both VOCs and NO X outside the nonattainment areas at 100 km and 200 km respectively could influence the nonattainment area. We allowed taking credit from sources within these areas of influence in the 9 percent Rate of Progress Plans. The fact that NO X influence has been shown to be meaningful within 200 km of a nonattainment area supports Texas' justification for controlling the components of diesel fuel in many of the attainment areas surrounding the HGA nonattainment area. We believe it is appropriate to conclude that NO X emission reductions within this area will benefit the nonattainment area.

Without the LED program, implementation of all reasonable and practicable non-fuel control measures would reduce NO X emissions by only 918.53 tpd. An additional 52 tpd of NO X emissions reductions is necessary for the HGA nonattainment area to achieve timely attainment of the ozone NAAQS. The LED fuel program will supply additional reductions needed for the HGA area to demonstrate attainment. Therefore, we propose to find the LED fuel requirements for the HGA, BPA, and DFW nonattainment counties and 95 attainment counties in East Texas necessary to achieve timely attainment of the ozone NAAQS in the HGA nonattainment area. This satisfies the requirement of necessity in section 211(c)(4)(C).

The LED fuel control program meets the requirements outlined in section 110. Texas submitted the fuel portion of the HGA attainment SIP under a Governor's letter December 20, 2000. In a letter dated June 15, 2001, the Governor requested “parallel processing” of proposed revisions to the LED rules which were proposed for public comment on May 10, 2001. The submittals contain the appropriate hearing actions, a preamble, and the LED fuel rules.

The TNRCC will implement the LED fuel rule. Anyone, including producers and importers, who sells, offers for sale, supplies, or offers for supply to affected counties the LED fuel are subject to provisions of this rule. Registration, recordkeeping, reporting, and certification requirements are included. This rule will be enforced in the same way as other regulations implemented by the State. State law allows collection of administrative penalties up to $10,000 per day and civil penalties up to $25,000 per day for violations of air quality regulations. See Vernon's Texas Statutes & Codes, Annotated (VTCA) Water Code, sections 7.002, and 7.051. The State may also seek injunctive relief under section 7.032 of the Water Code.

Because of the urgency associated with the October 15, 2001, approval deadline imposed by a consent decree order affecting, among others, the Houston Attainment SIP ( Natural Resources Defense Council v . Browner , Civ No. 99-2976, November 30, 1999), Texas requested that EPA proceed with an expedited decision process for this revision to the SIP. Therefore, approval of this revision is being proposed under a procedure called “parallel processing”, whereby EPA proposes rulemaking action concurrently with the State's procedures for approving a SIP submittal and amending its regulations (40 CFR part 51, appendix V, 2.3). If the State's proposed revision is substantially changed in areas other than those identified in this document, EPA will evaluate those changes and may publish another notice of proposed rulemaking. If no substantial changes are made, EPA will publish a final rulemaking on the revisions after responding to any submitted comments. Final rulemaking action by EPA will occur only after the SIP revision has been fully adopted by Texas and submitted formally to EPA for incorporation into the SIP. In addition, any action by the State resulting in undue delay in the adoption of the rules may result in a re-proposal, altering the approvability of the SIP.

We are proposing to approve rules establishing a LED fuel requirement for all diesel fuel sold in the HGA, DFW, and BPA nonattainment counties plus 95 attainment counties of East Texas beginning in 2005. We are also proposing to find, under section 211(c)(4)(C), that the State has demonstrated the fuel measure is necessary for attainment of the NAAQS and that no other measures exist which would bring about timely attainment, or if such measures exist, they are not reasonable or practicable.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future implementation plan. Each request for revision to the State Implementation Plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The proposed rule does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings.” This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Comments. Comments and data may be submitted by electronic mail (e-mail) to: a-and-r-docket@epa.gov. Electronic comments must be submitted as an ASCII file to avoid the use of special characters and encryption problems and will also be accepted on disks in WordPerfect®” version 5.1, 6.1 or Corel 8 file format. All comments and data submitted in electronic form must note the docket number A-90-45. No confidential business information (CBI) should be submitted by e-mail. Electronic comments may be filed online at many Federal Depository Libraries.

Commenters wishing to submit propriety information for consideration must clearly distinguish such information from other comments and clearly label it as CBI. Send submissions containing such propriety information directly to the following address, and not to the public docket, to ensure that propriety information is not inadvertently placed in the docket: Attention: Mr. Roberto Morales, U.S. EPA, OAQPS Document Control Officer, 411 W. Chapel Hill Street, Room 740, Durham NC 27701. The EPA will disclose information identified as CBI only to the extent allowed by the procedures set forth in 40 CFR part 2. If no claim of confidentiality accompanies a submission when it is received by the EPA, the information may be made available to the public without further notice to the commenter.

Docket. The docket is an organized and complete file of information compiled by EPA in development of this rulemaking. The docket is a dynamic file because material is added throughout the rulemaking process. The docketing system is intended to allow members of the public and industries involved to readily identify and locate documents so that they can effectively participate in the rulemaking process. Along with the proposed and promulgated standards and their preambles, the docket contains the record in the case of judicial review. The docket number for this rulemaking is A-90-45, which contains supporting information used in developing the standards and guidelines. An index for each docket, as well as individual items contained within the dockets, may be obtained by calling (202) 260-7548 or (202) 260-7549. A reasonable fee may be charged for copying docket materials. Docket indexes are also available by facsimile, as described on the Office of Air and Radiation, Docket and Information Center Website at http://www.epa.gov/airprogm/oar/docket/faxlist.html.

World Wide Web. In addition to being available in the docket, an electronic copy of today's action will be posted on the Technology Transfer Network's (TTN) policy and guidance information page http://www/epa/gov/ttn/caaa. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Regulated Entities. The regulated categories and entities that potentially will be affected by this amendment include the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that we are now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility, company, business, organization, etc., is regulated by this action, you should carefully examine the applicability criteria in §§ 60.50b and 60.32b of the rules. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

For a complete discussion of all of the administrative requirements applicable to this action see the parallel direct final rule in the Rules and Regulations section of this Federal Register .

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) a small business in the regulated industry that has a gross annual revenue less than $6 million; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities because it does not impose any additional regulatory requirements.

For additional information, see the direct final rule published in the Rules and Regulations section of this Federal Register publication.