The Office of Government Ethics occasionally receives subpoenas and requests for OGE employees to provide evidence in litigation in which OGE is not a party. Typically, these subpoenas and requests are for OGE records that are not available to the public under the Freedom of Information Act. Also, OGE sometimes receives subpoenas and requests for OGE employees to appear as witnesses in litigation in conjunction with a request for nonpublic records. Requesters have sought information, for example, on a particular filer of a financial disclosure report, a particular nominee or incumbent or former employee and for any ethics advice that OGE may have given to that individual, or concerning the nature of ethical advice that OGE gave to another agency and how OGE arrived at that advice.

Responding to such demands and requests sometimes results in a significant disruption in an OGE employee's work schedule. The result is that employees may be diverted from performing their official duties in order to respond to requests from parties in litigation. In order to address this problem, many agencies over the years have issued “Touhy” regulations that are similar to this proposed regulation, governing the circumstances and manner in which an employee may respond to demands for testimony or for the production of documents. Such a regulation was upheld by the United States Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

In Touhy, the Supreme Court held that a Department of Justice (DOJ) official, acting on order of the Attorney General, could not be held in contempt for declining to produce records in response to a subpoena. The employee's refusal was based upon a DOJ regulation that prohibited disclosure of agency files, documents, records, or information without the express approval of the Attorney General. The Court upheld the validity of the DOJ regulation, reasoning that it was appropriate for the Attorney General to prescribe regulations not inconsistent with law for the custody, use, and preservation of records, papers, and property pertaining to the Department of Justice.

Briefly summarized, the proposed rule would prohibit disclosure of nonpublic official records or testimony by OGE employees unless there is compliance with the rule (§§ 2608.201 and 2608.203). The proposed rule identifies the factors that OGE will consider in making determinations in response to such requests and what information requesters must provide (§§ 2608.202 and 2608.203). The proposed rule also specifies when the request should be submitted (§ 2608.203), the time period for review (§ 2608.205), potential fees (§ 2608.301), and, if a request is granted, any restrictions that may be placed on the disclosure of records or the appearance of an OGE employee as a witness (§§ 2608.207 and 2608.208). The proposed charges for witnesses are the same as those provided by the Federal courts; and the fees related to production of records are the same as those charged under FOIA. The proposed charges for time spent by an employee to prepare for testimony and for certification of records by OGE are authorized under 31 U.S.C. 9701, which permits an agency to charge for services or things of value that are provided by the agency.

The proposed rule applies to a broad range of matters in any legal proceeding in which OGE is not a named party. It also applies to former and current OGE employees (as well as OGE consultants and advisers). Former employees are prohibited from testifying about specific matters for which they had responsibility during their active employment unless permitted to testify as provided in the proposed rule. They would not be barred from appearing to testify about general matters unconnected with the specific matters for which they had responsibility.

The proposed regulation will ensure a more efficient use of OGE resources, minimize the possibility of involving OGE in issues unrelated to its responsibilities, promote uniformity in responding to such requests and subpoenas, and maintain the impartiality of OGE in matters that are in dispute between other parties. It also would serve OGE's interest in protecting sensitive, confidential, and privileged information and records that are generated in response to the requirements in the ethics laws and regulations.

The proposed OGE rule is internal (not branchwide), and is essentially procedural, not substantive. It would not create a right to obtain official records or the testimony of an OGE employee nor would it create any additional right or privilege not already available to OGE to deny any demand or request therefor. However, failure to comply with the procedures in the proposed rule would be a basis for denying a demand or request submitted to OGE.

This proposed rulemaking is in compliance with the Administrative Procedure Act (5 U.S.C. 553) and allows for a 60-day comment period. Interested persons are invited to submit written comments to OGE on this proposed regulation, to be received on or before November 23, 2001. The Office of Government Ethics will review all comments received and consider any modifications to this proposal which appear warranted in issuing its final rule.

For purposes of the Regulatory Flexibility Act (5 U.S.C. chapter 6), the proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities. The proposed rule addresses only the procedures to be followed in the production or disclosure of OGE materials and information in litigation where OGE is not a party. Accordingly, OGE has determined that a Regulatory Flexibility Analysis is not required.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), the proposed rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).

In issuing this proposed regulation, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation as set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This proposed rule has not been reviewed by the Office of Management and Budget under that Executive order since it is not a significant regulatory action within the meaning of the Executive order.

As Director of the Office of Government Ethics, I have reviewed this proposed regulation in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this proposed regulation does not contain information collection requirements that require approval by the Office of Management and Budget. The Office of Government Ethics expects the collection of information that is called for by the proposed regulation would involve fewer than ten persons each year.

The Office of Government Ethics has determined that this proposed rulemaking involves a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will, before the future final rule takes effect, provide a report thereon to the U.S. Senate, House of Representatives and General Accounting Office in accordance with that law.

Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics proposes to add a new part 2608 to 5 CFR to read as follows:

The Nuclear Regulatory Commission received a petition for rulemaking dated July 18, 2001, submitted by the Nuclear Energy Institute (the petitioner). The petition was docketed by the NRC on July 24, 2001, and has been assigned Docket No. PRM-52-2.

The petitioner (the Nuclear Energy Institute or NEI) claims representational responsibility for coordinating the combined efforts of all utilities licensed by the NRC to construct or operate nuclear power plants, and of other nuclear industry organizations, in all matters involving generic regulatory policy issues and regulatory aspects of generic operational and technical issues affecting the nuclear power industry.

The petitioner believes that the NRC, in implementing the National Environmental Policy Act of 1969 (NEPA), has imposed requirements on the content of environmental impact reviews that are unnecessary under the statute, unduly burdensome to both industry and the NRC, and outside the scope of the agency's mission. Specifically, the petitioner requests that the NRC amend part 52, subpart A, Early Site Permits, §§ 52.17(a)(2) and 52.18, to remove provisions that the petitioner believes are more appropriately dealt with through the application of 10 CFR part 51, National Environmental Policy Act—Regulations Implementing Sec. 102(2). The petitioner further requests that the NRC amend 10 CFR part 51 and revise associated NRC regulations and guidance regarding the siting, construction, operation, and license renewal of nuclear power plants (e.g., 10 CFR part 51, appendix A to subpart A) to remove the requirement for applicants and licensees to conduct an analysis of and for the NRC to evaluate alternative sites, alternative sources of energy, and the need for power. The petitioner emphasizes that its proposed amendments would not affect any other required reviews of matters pertinent to the NRC's responsibilities (e.g., seismology, hydrology, meteorology, endangered species, water use, thermal discharges).

The petitioner contends that although NEPA requires consideration of “alternatives” to proposed actions, it does not specifically require alternative site reviews. The petitioner cites several NRC regulations that specify that an alternative site review must be conducted, including 10 CFR 2.101(a)(3)(ii), 2.101(a-1)(1), 2.603(b)(1), 2.605(b)(1), 52.17(a)(2), and 52.18; 10 CFR Part 50, Appendix Q.2 and 7; 10 CFR Part 52, Appendix Q.2 and 7. Similarly, the petitioner claims that NEPA does not specifically require an analysis of alternative sources of energy or of the need for power. However, the NRC's implementing regulations in 10 CFR part 51 currently require that those matters be addressed. General guidance on how environmental reviews are to be conducted is provided in Regulatory Guide 4.2, “Preparation of Environmental Reports for Nuclear Power Plants” (July 1976), and in NUREG-1555, “Environmental Standard Review Plan” (March 2000), which, the petitioner notes, also call for a review of alternative sites, alternative energy sources, and need for power.

The petitioner contends that the NRC has the statutory authority to revise its regulations to eliminate the NRC's review of such issues. The petitioner also cites a February 28, 2001, letter from NRC Chairman Meserve to Senator Domenici, Chairman of the U.S. Senate Committee on Appropriations Subcommittee on Energy and Water Development, which states that the evaluation of alternative sites, alternative sources of power, and the need for generating capacity are matters “that are distant from NRC's mission.” The petitioner argues that the Commission can and should conclude that, because of the fundamental changes that have occurred in the electricity market, these reviews are no longer required in the NRC's implementation of NEPA.

The petitioner begins by reviewing the provisions of NEPA and their application in NRC proceedings concerning the siting, construction, and operation of nuclear power plants. The petitioner notes that Section 102(2)(C) of NEPA requires Federal agencies, as part of the decision-making process, to prepare an analysis weighing the environmental costs and benefits of all “major Federal actions significantly affecting the quality of the human environment.” The “detailed statement” that the agency is required to prepare and publicly disclose must evaluate: the environmental impacts of the proposed action; any adverse environmental effects which cannot be avoided should the proposal be implemented; alternatives to the proposed action; the relationship between local short term uses of the environment and the maintenance and enhancement of long term productivity; and any irreversible and irretrievable commitments of resources that would be involved if the proposed action were to be implemented.

The petitioner further notes that the environmental report submitted with an application requesting NRC action serves as the basis for the NRC's evaluation of the environmental impacts of major agency decisions—e.g., to issue or deny a permit or license as applied for, or to impose terms or conditions upon a permit or license in light of the NEPA review.

The petitioner then addresses the relative jurisdictions of the NRC and State and local governments with respect to the location, construction, and operation of electric power plants. The petitioner points out that the NRC's licensing process does not change the division of authority between the Federal Government and the States over the siting of electric generating facilities. The petitioner argues that an NRC license or permit constitutes approval of a site or plant only under the Federal statutes and regulations administered by the NRC, not under other applicable laws. By way of example, the petitioner notes that individual State laws may require a State determination of the need for power and an evaluation of alternative energy sources, or may require the issuance of a certificate of public convenience and necessity, as well as various environmental permits. The petitioner further notes that local zoning laws may control how a potential site is used.

Legal and Regulatory Basis of State Primacy. The petitioner claims that Section 271 of the Atomic Energy Act explicitly preserves State authority over the generation, sale, and transmission of electric power produced by nuclear plants (42 U.S.C. sec. 2018). The petitioner says that, based on this provision and clear Congressional intent, the Supreme Court has held that States have jurisdiction over “the need for additional generating capacity, the type of generating capacity to be licensed, land use, ratemaking, and the like” (Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm., 461 U.S. 190, 1983).

According to the petitioner, the NRC itself explicitly recognized the limited extent of its authority in the evaluation of alternatives in Footnote 4 to 10 CFR 51.71(e), Preliminary Recommendation, which reads: “The consideration of reasonable alternatives to a proposed action involving nuclear power reactors (e.g., alternative energy sources) is intended to assist the NRC in meeting its NEPA obligations and does not preclude any State authority from making separate determinations with respect to these alternatives and in no way preempts, displaces, or affects the authority of States or other Federal agencies to address these issues.”

Persistent State Concerns about the License Renewal Process. The petitioner claims that many States nonetheless expressed concern that the NRC's findings in license renewal proceedings, even though not legally dispositive, would establish an official Federal position that would be difficult to rebut in State proceedings. Specifically, the States expressed concern that the NRC's consideration of the need for power and alternative energy sources in the license renewal Generic Environmental Impact Statement (NUREG 1437, Chapters 8 and 9), and associated proposed amendments to part 51, would infringe on State jurisdiction over economic regulation of electric utilities.

The NRC's Response to State Concerns. The petitioner states that the NRC issued a supplement to its proposed license renewal rule in order to address the States' concerns and respond to questions raised by the U.S. Environmental Protection Agency and the Council for Environmental Quality. The petitioner says that this supplement addressed whether, under NEPA, the NRC could and should remove from its consideration issues over which States have primary jurisdiction. The petitioner claims that in the supplement the NRC, having reconsidered its NEPA responsibilities with respect to license renewal, correctly (1) recognized the primacy of State regulatory decisions regarding future energy options, (2) acknowledged that the choice of energy options will be made by the electricity generating company, and (3) stated that the purpose of the major Federal action in license renewal proceedings is “* * * to preserve the option of continued operation of the nuclear power plant for State regulatory and utility officials in their future energy planning decisions.”

The Major Federal Action in License Renewal Proceedings. The petitioner emphasizes that the NRC concluded in this supplement that the proposed major Federal action in license renewal proceedings does not involve deciding whether the plant seeking license renewal is at the best possible site or whether there is or will be a need for the power generated by the plant. The petitioner says that the NRC's definition of the proposed Federal action in the supplement accurately reflects what is really at issue in license renewal proceedings, namely, the establishment of a stable and predictable regulatory approach to determining whether the option of nuclear power as a source of generating capacity at a given site can be considered in future State energy planning decisions. The petitioner concludes that the NRC can reasonably consider only two basic alternatives in such proceedings: the agency may either renew the license and preserve the nuclear option at that particular site, or decline to renew the license (59 FR 37725; July 25, 1994).

The petitioner concedes that the NRC decided to examine alternative sources of future generating capacity as part of its NEPA review in the license renewal context. The petitioner believes that the NRC should reconsider that decision on the grounds that it is fundamentally inconsistent with related NRC decisions.

The petitioner believes that future plants will be licensed under Part 52, but stresses that the elimination of NRC requirements concerning need for power, alternative sources and alternative sites is appropriate regardless of whether plants are licensed under Part 52 or Part 50, and asks that its analysis be read accordingly.

The Role of Early Site Permits. The provisions of Subpart A of 10 CFR part 52 apply to applicants seeking an early site permit (ESP) separate from an application for a construction permit or a combined license for a nuclear power plant. According to the petitioner, the basic purpose of Subpart A, consistent with all of Part 52, is to resolve all site suitability issues in a licensing proceeding as early as possible, before large commitments of resources are made. The petitioner states that the importance of raising and resolving all environmental issues as part of the ESP proceeding is recognized in 10 CFR 52.39(a)(2), Finality of early site permit determinations, which reads in part: “In making the findings required for the issuance of a construction permit, operating license, or combined license, or the findings required by § 52.103 of this part, if the application for the construction permit, operating license, or combined license references an early site permit, the Commission shall treat as resolved those matters resolved in a proceeding on the application for issuance or renewal of an early site permit * * *” (emphasis added by the petitioner).

NEPA Review in 10 CFR Part 52. The petitioner states that, at the time Part 52 was promulgated, the NRC staff felt it was necessary to include language that further refined its interpretation of the scope of the agency's NEPA review. The petitioner says that the first change clarified that a need-for-power analysis need not be included in the environmental report that is part of the early site permit (ESP) application, but could be deferred until the combined license (COL) stage. The second change related to performing an alternative site analysis. According to the petitioner, because early site permitting is a siting decision, the NRC revised Part 52 to state explicitly that an alternative site analysis was necessary at the ESP stage to determine if there is an “obviously superior” (§ 52.18) alternative to the site proposed. As a result, 10 CFR 52.17(a)(2) and 52.18 provide that the environmental report for an ESP need not include an assessment of the need for power, but must include an evaluation of alternative sites.

The petitioner contends that the provisions of Part 52 relative to alternative site reviews are based on an interpretation of NEPA that is neither necessary, nor desirable, nor reflective of the evolving electricity marketplace.

Definition of the Major Federal Action in ESP and COL Proceedings. The petitioner notes that, in the context of an ESP, the proposed “major Federal action” is the granting of a permit for a site for one or more nuclear power plants. To actually build and operate one or more nuclear plants on that site, an applicant must also obtain a combined license (COL). In a COL proceeding, the petitioner says, the proposed “major Federal action” is the approval to build and subsequently operate a particular nuclear plant at a specified site. If the COL references an ESP, the site approval is already established, and the site suitability issue reduces to whether the proposed nuclear power plant(s) fit within the ESP's environmental envelope. The petitioner claims that, if the COL applicant does not reference an ESP, the “major Federal action” with respect to approving the specified site is the same as for an ESP. The petitioner emphasizes that in none of these cases (i.e., ESP or COL with or without a referenced ESP) is the proposed action a matter of deciding whether there is a need for power, whether an applicant should select a different site, or which of various possible sources of electric generating capacity best meets the State's or the region's needs, provides the most economic electricity to ratepayers, or is environmentally most benign.

The Applicant's Goal. The petitioner contends that its proposal to eliminate consideration of such alternatives by the NRC is based on a fundamental principle of NEPA law, namely, that an agency need only consider alternatives that will accomplish the applicant's goal. The petitioner says that the ESP applicant's goal is to determine whether the proposed site satisfies statutory and NRC regulatory requirements as a suitable location for a nuclear power plant. Similarly, the petitioner says, the goal of a COL applicant is to determine whether the proposed plant satisfies applicable safety and environmental requirements, including the criteria established in any referenced ESP. The petitioner therefore concludes that the only site suitability issue before the NRC in either an ESP or COL proceeding is whether that site is suitable for one or more nuclear facilities. Thus, alternative sites are not “reasonable alternatives” under NEPA and need not be addressed in ESP and COL applications.

Under NEPA, the NRC must consider the no-action alternative and any actions that could mitigate the environmental impact of the proposed plant. The petitioner argues that, beyond this, the NRC must consider only those alternatives that serve the purpose for which an applicant is seeking approval, and, according to the petitioner, there are none. ESP and COL applicants, the petitioner reiterates, seek to obtain a determination on whether the proposed site and facilities meet all applicable NRC requirements, not a decision as to whether one or more nuclear facilities should, or will, be built, nor how or how much or where electricity should be generated in the future. In the petitioner's view it is unnecessary and inappropriate both for the NRC to require applicants to conduct a NEPA analysis of such issues, and for the agency to expend its own limited resources to evaluate possible alternative sources of electricity, alternative sites, or the need for power.

Agency Discretion under NEPA. The petitioner maintains that each Federal agency considering a major proposed action is charged with determining what alternatives are reasonable and should be considered under NEPA. According to the petitioner, the fact that the NRC modified the scope of its NEPA review in license renewal proceedings is evidence that the agency also has the authority to determine what matters are pertinent to NEPA evaluation of applications to site and build new nuclear power plants.

Limits of NRC's Authority. The petitioner further claims that, if the NRC were to deny an application for reasons related to alternative sites or alternative energy sources, the applicant would not be required to use either the alternative site or the alternative energy source recommended by the agency. In fact, the petitioner says, the applicant would be free to develop a different alternative energy source at another site, which might result in a greater environmental impact than the nuclear power plant originally proposed. In such a case, the petitioner argues, the NRC's denial of the permit or license would, in the name of protecting the environment, actually defeat the purpose of NEPA review.

Summary. In summary, the petitioner maintains that the NRC, as part of its NEPA analysis, is not legally obligated, and thus should not attempt, to reach any conclusions related to alternative sites, alternative sources of power, or the need for power. The petitioner believes that the NRC demonstrated the proper use of its discretion when it altered its understanding of the “major Federal action” in the license renewal context, with a consequent, appropriate change in NRC's requirements for NEPA analyses. The petitioner argues that the NRC should similarly exercise that discretion to circumscribe its NEPA analysis requirements in Parts 50 and 52.

The petitioner maintains that, while NEPA has never required these analyses, the electric utility structure in the 1970's was such that a typical environmental review associated with the siting, construction and operation of a nuclear power plant included an evaluation of the need for additional generating capacity, alternative sites, and alternative sources of energy. The petitioner notes that, in the 1970's, the typical applicant for a nuclear power plant was an electric utility that was regulated by a State public utility commission. As a regulated electric utility, the applicant also had the legal authority to exercise the power of eminent domain to build generating facilities and any necessary supporting infrastructure. In the petitioner's view, many licensing decisions and judicial determinations based on the NRC's interpretation of its responsibilities under NEPA, and corresponding NRC regulations and practices, were adopted in response to this particular historical context.

Effects of Deregulation. The petitioner notes that dramatic changes have occurred in the electric power industry over the past thirty years, most notably resulting from the passage of the Energy Policy Act of 1992 and resultant actions by the Federal Energy Regulatory Commission imposing open access transmission requirements on electricity transmission providers. Today, the petitioner contends, any new nuclear power plant is likely to be constructed and operated by an unregulated merchant generator operating in a competitive marketplace. The petitioner believes that a merchant generator will not build and operate a plant unless there is a need for the proposed additional generating capacity or the proposed facility will generate electricity at a lower cost than its competitors. The petitioner contends that a merchant generator will not build and operate a nuclear power plant if there is a superior alternative source of energy. According to the petitioner, in States where utilities are still subject to regulation, the situation described relative to license renewal will be directly applicable. The petitioner argues that, given all of these factors, it is not reasonable to believe that a nuclear power plant will be built in today's environment absent a need for power or some other benefit.

The petitioner further maintains that it is not reasonable to assume that the NRC would be able to identify an alternative site or alternative energy source that is both feasible and preferable to the choices made by a merchant generator. Because the consideration of alternatives under NEPA is subject to a rule of reason, the petitioner believes that NEPA does not compel the NRC to consider these factors in today's environment. The petitioner maintains that deregulation at the State level has fundamentally altered both the marketplace for electricity and the makeup of electricity generating companies, and argues that the NRC's regulatory framework for implementing NEPA should be revised accordingly.

The petitioner concludes that, given the dramatic effect of State deregulation on electricity markets and generators, the NRC should reevaluate its implementation of NEPA. The petitioner maintains that the “major Federal action” in NRC proceedings should be described solely in terms of evaluating the suitability of siting, constructing or operating one or more nuclear power plants at a proposed site in accordance with the NRC's responsibilities under the Atomic Energy Act. The “reasonable alternatives” that must be considered under NEPA should, in turn, be defined by reference to this circumscribed understanding of the major Federal action at issue. The petitioner further argues that limited NRC, industry and other stakeholder resources should not be expended on matters that are more appropriately and effectively dealt with by State and local regulators. Given the dictates of NEPA as they apply to the decisions to be made under 10 CFR parts 50 and 52, the petitioner believes that the NRC need not, and therefore as a matter of policy should not, conduct any evaluation of alternative sites, alternative energy sources, or need for power.

The petitioner contends that the foregoing reasons support its request to eliminate the Part 52 requirements for applicants to submit, and for NRC to review, information on alternative sites. The petitioner maintains that 10 CFR parts 2, 50 and 51 should be similarly modified to eliminate provisions which require applicants requesting NRC approval to site, build and operate nuclear power plants to submit, and the NRC to review, information concerning the need for power, alternative sources and alternative sites.

The petitioner sets out a detailed series of proposed amendments. These amendments are presented verbatim in appendix A to this notice of receipt.

1. 10 CFR 52.17(a)(2) should be amended as follows: A complete environmental report as required by 10 CFR 51.45 and 51.50 must be included in the application, provided, however, that such environmental report must focus on the environmental effects of construction and operation of a reactor.

2. 10 CFR 52.18 should be amended as follows: Applications filed under this subpart will be reviewed according to the applicable standards set out in 10 CFR part 50 and its appendices and part 100 as they apply to applications for construction permits for nuclear power plants. In particular, the Commission shall prepare an environmental impact statement during a review of the application, in accordance with applicable provisions of 10 CFR part 51, provided, however, that the draft and final environmental impact statements prepared by the Commission focus on the environmental effects of construction and operation of a reactor, or reactors, which have characteristics that fall within the postulated site parameters. The Commission shall determine, after consultation with the Federal Emergency Management Agency, whether the information required of the applicant by § 52.17(b)(1) shows that there is no significant impediment to the development of emergency plans, whether any major features of emergency plan submitted by the applicant under § 52.17(b)(2)(i) are acceptable, and whether any emergency plans submitted by the applicant under Section 52.17(b)(2)(ii) provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.

1. 10 CFR 2.101(a-1)(1) should be amended as follows: Part one shall include or be accompanied by any information required by §§ 50.34(a)(1) and 50.30(f) of this chapter which relates to the issue(s) of site suitability for which an early review, hearing and partial decision are sought, except that information with respect to operation of the facility at the projected initial power level need not be supplied, and shall include the information required by §§ 50.33 (a) through (e) and 50.37 of this chapter. The information submitted shall also include: (i) Proposed findings on the issues of site suitability on which the applicant has requested review and a statement of the bases or the reasons for those findings, and (ii) a range of postulated facility design and operation parameters that is sufficient to enable the Commission to perform the requested review of site suitability issues under the applicable provisions of parts 50, 51 and 100.

2. 10 CFR 2.603(b)(1) should be amended as follows: The Director of Nuclear Reactor Regulation will accept for docketing an application for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 or is a testing facility where part one of the application as described in § 2.101(a-1) is complete. Part one of any application will not be considered complete unless it contains proposed findings as required by § 2.101(a-1)(1)(i). Upon assignment of a docket number, the procedures in § 2.101(a)(3) and (4) relating to formal docketing and the submission and distribution of additional copies of the application shall be followed.

3. 10 CFR 2.605(b)(1) should be deleted in its entirety.

4. 10 CFR Part 50, Appendix Q.2 and 10 CFR Part 52, Appendix Q.2 (which are essentially identical) should be amended as follows: The submittal for early review of site suitability issue(s) must be made in the same manner and in the same number of copies as provided in §§ 50.4 and 50.30 for license applications. The submittal must include sufficient information concerning a range of postulated facility design and operation parameters to enable the Staff to perform the requested review of site suitability issues. The submittal must contain suggested conclusions on the issues of site suitability submitted for review and must be accompanied by a statement of the bases or the reasons for those conclusions.

5. 10 CFR Part 50, Appendix Q.7(a) and 10 CFR Part 52, Appendix Q.7(a) (which are identical) should be deleted in their entirety.

6. The following sentence should be added to the end of 10 CFR 51.45(c): No discussion of need for power, alternative energy sources, or alternative sites for the facility is required in this report.

7. 10 CFR 51.53(c)(2) should be amended as follows: * * * In addition, the applicant shall discuss in this report the environmental impacts of alternatives and any other matters described in § 51.45. The report is not required to include discussion of alternative sites, alternative energy sources, or need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action except insofar as such costs and benefits are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation * * *.

8. The following sentence should be added after the first sentence of 10 CFR 51.71(d): No discussion of need for power, or of alternative energy sources, or of alternative sites for the facility will be included in the draft environmental impact statement.

9. 10 CFR 51.95(c)(2) should be amended as follows: The supplemental environmental impact statement for license renewal is not required to include discussion of alternative sites, alternative energy sources, or need for power or the economic costs and economic benefits of the proposed action or of alternatives to the proposed action except insofar as such benefits and costs are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation. . . .

10. 10 CFR Part 51, Appendix A.4 should be amended as follows: Purpose of and need for action. The statement will briefly describe and specify the need for the proposed action. The alternative of no action will be discussed.

11. The following sentence should be added to the end of 10 CFR part 51, appendix A.5: The consideration of alternatives will not include an analysis of alternative sites or alternative energy sources.

12. Additionally, conforming changes should be made in 10 CFR 2.101(a)(3)(ii) and 10 CFR 51.71 footnote 4.

13. Finally, NRC Regulatory Guide 4.2 and NUREG-1555 should be modified to reflect the Commission's determination that alternative sites, alternative sources of energy, and need for power are not to be evaluated under 10 CFR part 51 provisions pertaining to the siting, construction and operation of new nuclear power plants.

The Nuclear Regulatory Commission received a petition for rulemaking dated July 18, 2001, submitted by the Nuclear Energy Institute (petitioner). The petitioner is requesting that the regulations in 10 CFR part 52 governing early site permits and combined license applications at existing reactor sites be amended. Specifically, the petitioner requests that the NRC amend 10 CFR part 52, subpart A, Early Site Permits, to add proposed § 52.16 and amend 10 CFR part 52, subpart C, Combined Licenses, to add proposed § 52.80.

The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition has been docketed as PRM-52-1. The NRC is soliciting public comment on the petition for rulemaking.

The petitioner expects that new power reactors will be ordered by existing licensees in the near future and that the new reactors will use many of the programs currently being used by those licensees. Additionally, the petitioner anticipates that many of the new reactors will be located on existing reactor sites. The petitioner believes that, to avoid needless expenditure of NRC and licensee resources, proposed §§ 52.16 and 52.80 would use existing information as a baseline and would provide for NRC review and an opportunity for a hearing to account for changed circumstances, such as new regulations and significant new information.

The petitioner notes that subpart A to part 52 contains provisions governing issuance of early site permits (ESPs). The petitioner proposes that a new § 52.16 be added to subpart A to allow an ESP applicant to incorporate by reference all or portions of the current licensing basis for an existing reactor site to the extent that they are valid and applicable to one or more additional nuclear power plants that fit within the ESP environmental envelope. Proposed § 52.16 would also require that any information incorporated by reference be augmented to include:

• Significant new safety or environmental information that materially affects the ability of the site to support the proposed additional nuclear facility

• Information regarding the cumulative radiological and environmental impacts of the existing facility and the facility as described in the ESP application

• An analysis of the potential safety impacts of the existing facility on the suitability of the site for the facility as described in the ESP application

• An analysis of the potential safety impacts on the existing facility from the facility as described in the ESP application

• Information that addresses regulations applicable to siting issues that became effective after licensing of the current facility, to the extent that these regulations are not addressed in the current licensing basis

The petitioner states that under proposed § 52.16, the NRC would treat as resolved those matters incorporated by reference, except to the extent that those matters are subject to augmentation with new information described above. The petitioner also states that proposed § 52.16 would allow the NRC to impose a change in the application with respect to the information incorporated by reference to the extent that the change satisfies the principles underlying 10 CFR 50.109, Backfitting. The petitioner believes that in preparing the environmental impact statement for the early site permit, the NRC would adopt the applicable portions of the existing environmental impact statement associated with the site, modified or supplemented as necessary to reflect the NRC's review of the new environmental information described above.

The petitioner notes that subpart C to part 52 contains provisions governing issuance of combined construction permits and operating licenses (COLs). The petitioner states that proposed § 52.80 would be added to subpart C and would contain provisions similar to those proposed in § 52.16. The petitioner also states that proposed § 52.80 would allow a COL applicant to incorporate by reference programmatic information identified in the current licensing basis of an existing licensed facility located at the same site or owned or operated by the same licensee. Proposed § 52.80 would require this programmatic information to be augmented to include information that addresses applicable regulations that became effective after the existing facility was licensed, to the extent that these regulations are not addressed by the current licensing basis for the existing facility. The petitioner states that under proposed § 52.80, the NRC would treat as resolved those matters incorporated by reference from the existing facility, except to the extent that those matters are subject to new information as identified above. The petitioner believes that the NRC could direct that a change be made in the COL application with respect to the information incorporated by reference, to the extent that the change satisfies the principles underlying 10 CFR 50.109.

The petitioner proposes that 10 CFR part 52 be amended to add §§ 52.16 and 52.80 as follows:

The petitioner believes that proposed §§ 52.16 and 52.80 are consistent with and promote the NRC's performance goals to: Maintain safety; protection of the environment, and the common defense and security; increase public confidence; make NRC activities and decisions more effective, efficient, and realistic; and reduce unnecessary burden on stakeholders. The petitioner states that the proposed amendments not only are consistent with NRC's mission to ensure adequate protection of the public health and safety, the common defense and security, and the environment; but also, would focus NRC reviews on new information and what the petitioner believes would be an incremental impact of an additional unit at an existing site. The petitioner states that even in the absence of new information, the proposed regulations would provide the NRC with the authority to impose new requirements on previously approved information if required to ensure adequate protection of the public health and safety and the environment.

The petitioner states that the proposed amendments would serve to enhance the efficiency of the regulatory process by eliminating duplicate reviews of matters resolved in previous proceedings by focusing agency resources on new and material information and the impact of potential new units on the site. The petitioner also states that proposed §§ 52.16 and 52.80 would ensure that the public has an opportunity for a hearing on all material issues, including significant new information that would warrant further NRC review. The petitioner believes that proposed §§ 52.16 and 52.80 would reduce regulatory burden by focusing attention on matters that have not been previously decided in other proceedings.

The petitioner notes that 10 CFR 51.29(a)(3) provides that the NRC may exclude issues that have been subject to a previous environmental review. The petitioner believes that its proposed amendments support NRC initiatives to place emphasis on the early identification of regulatory issues and process improvements to handle new license applications. The petitioner states that because the costs of a new facility are affected by application preparation expenses, responding to requests for additional information (RAIs), and possible hearing expenses, ensuring that costs are predictable and commensurate with the safety significance of issues associated with ESP and COL applications and reducing the time for a new facility to be available will be determining factors in business decisions on whether to proceed with new nuclear projects.

The petitioner acknowledges that the NRC has the authority and discretion to adopt new regulations under the Atomic Energy Act of 1954, as amended (AEA), and the Administrative Procedure Act (APA) by either rulemaking or adjudication. The petitioner cites Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978) in which the Supreme Court held that the NRC is free to promulgate rules of procedure and methods for making factual findings if they satisfy APA requirements. The petitioner believes that nothing in the AEA or APA would preclude adoption of proposed §§ 52.16 and 52.80 or prohibit the NRC from promulgating a rule that would treat information the NRC reviewed and approved in a previous licensing proceeding as resolved. The petitioner emphasizes that proposed §§ 52.16 and 52.80 would require NRC consideration of new information that has not been previously reviewed or subject to a hearing.

The petitioner notes that §§ 52.39(a)(2), 52.63(a)(4), and 52.103 treat information the NRC has reviewed and approved in previous proceedings as resolved and that the courts have held that these provisions do not deprive individuals of rights to a hearing under § 189 of the AEA. The petitioner also notes that § 52.73 allows a COL application to reference a design certification and that in the COL proceeding, § 52.63(a)(4) requires the NRC to treat matters relating to issuance of the design certification as resolved, even if the design certification proceeding was a different proceeding that may have taken place 15 or more years earlier and probably did not involve the parties in the COL hearing. (See also, §§ 52.55 and 52.61.)

The petitioner indicates that § 52.73 also allows a COL application to reference an ESP and that § 52.39(a)(2) requires the NRC to treat matters resolved in the ESP proceeding as final, even though the ESP decision was a different matter that may have taken place at least 20 years earlier and may not have involved the same COL hearing parties. (See also, §§ 52.27 and 52.33.) In Nuclear Information & Resource Service v. NRC, 918 F.2d 189, 196-97 n. 14 (D.C. Cir. 1990), aff'd on rehearing 969 F.2d 1169, 1172 (D.C. Cir. 1992), the petitioner notes that the court rejected a challenge to the NRC's decision to treat matters approved in the ESP and design certification proceedings as resolved in a COL hearing in stating “that the Commission has wide latitude in structuring the scope and timing of its hearings.” The petitioner notes further that this decision found that § 189 of the AEA does not contain specific instruction on how the hearing is to be conducted or if the NRC must rehear issues already settled earlier in the licensing process. The petitioner believes that the scope and timing of ESP and COL hearings contemplated in proposed §§ 52.16 and 52.80 are fully consistent with existing provisions and court decisions.

The petitioner also believes that limitations on the scope of issues contained in proposed §§ 52.16 and 52.80 are consistent with NRC practice in other areas such as, license renewal and amendments, environmental effects associated with the nuclear fuel cycle, spent fuel storage casks, quality assurance (QA) programs, and the facility and procedure change process. The petitioner notes that the scope of issues appropriate for review in operating license renewal proceedings is limited under 10 CFR parts 51 and 54 that eliminate matters previously considered in prior licensing proceedings or rulemaking actions. The petitioner cites Vermont Yankee Nuclear Power Corp. (Vermont Yankee nuclear Power Station), ALAB-235, 8 AEC 873, 875 (1974) and Georgia Power Co. (Vogtle Nuclear Plant, Units 1 and 2) ALAB-291, 2 NRC 404, 415 (1975) in stating that the right to intervene and raise contentions in license amendment proceedings is limited to issues that directly relate to the proposed change and that it is inappropriate to revisit issues considered in initial licensing that are not affected by the amendment.

The petitioner also cites Baltimore Gas and Electric Corp. v. NRDC, 462 U.S. 87 (1983) in which the Supreme Court upheld the NRC's approach in the Table S-3 rulemaking proceeding in stating that the generic disposition of environmental issues is proper and precludes unnecessary and repetitive litigation. The petitioner notes that 10 CFR 72.46(e) prohibits review of spent fuel storage cask design issues during licensing hearings for a site-specific independent fuel storage installation (ISFSI) and when a cask was approved in a generic proceeding. The petitioner also notes that 10 CFR 72.210 and 72.212 allow use of generically approved storage casks without providing any opportunity for a plant-specific hearing. The petitioner cites Kelly v. Selin, 42 F.3d 1501 (6th Cir. 1995), cert. denied 515 U.S. 1159 (1995) in which the courts have held that this process does not deprive individuals of any hearing rights under § 189 of the AEA.

The petitioner states that 10 CFR 50.54(a) has been recently revised to eliminate the need for prior NRC review and changes to a QA program description when the change involves a QA alternative or exception previously approved in an NRC safety evaluation for another plant. The petitioner also states that 10 CFR 50.59(a)(2)(ii) and NRC Regulatory Guide 1.187 permit licensees to adopt evaluation methods approved by the NRC for use by other licensees if the method has been approved for the intended application and the licensee satisfies the applicable terms and conditions for its use. The petitioner believes that proposed §§ 52.16 and 52.80 are fully consistent with precedents in which the NRC has treated prior decisions made in rulemaking or licensing proceedings as resolved and has not permitted further review and litigation of those issues in subsequent proceedings.

The petitioner notes that § 102 of the National Environmental Policy Act of 1969 (NEPA) requires an environmental impact statement (EIS) for major Federal actions that significantly affect the quality of the environment and that 10 CFR 52.18 and 52.89 require an EIS for an ESP and a COL. However, NEPA does not require the NRC to reconsider previously settled issues to assess the environmental impacts of approving a license application to locate an additional reactor at an existing site. The petitioner cites the Council on Environmental Quality (CEQ) regulations that became effective in 1979 to standardize the NEPA process to reduce delays and eliminate duplication of governmental efforts. These regulations allow agencies to use previous environmental analyses when drafting a new EIS or to supplement an EIS if an agency makes substantive changes in a proposed action or when new circumstances or information arise that affect the environment. The petitioner acknowledges that the NRC incorporated these regulations into 10 CFR Part 51 but cites Deukmejian v. NRC, 751 F.2d 1287 (D.C. Cir. 1984) in noting that although the NRC gives substantial deference to the CEQ's regulations, it is not bound by them.

The petitioner states that 10 CFR 51.29(a)(3) permits the NRC to exclude issues that have been covered by a previous environmental review and that an EIS may provide a reference to a prior document that settled a particular environmental issue. The petitioner believes that although the NRC's regulations specifically refer to adoption of an EIS prepared by another Federal agency, nothing prevents the NRC from using a previous NRC EIS. The petitioner also believes that proposed §§ 52.16 and 52.80 are consistent with NRC and CEQ guidance on referencing and adopting previous EISs.

The petitioner has concluded that the NRC requirements governing early site permits and the combined license process in 10 CFR Part 52 should be amended to permit the NRC to treat applicable information approved in previous licensing proceedings as resolved. The petitioner also has concluded that proposed §§ 52.16 and 52.80 would accomplish this objective and ensure consideration of significant new information that could materially affect the NRC's findings. The petitioner has also concluded that the proposed amendments are consistent with § 189 of the AEA and NRC and court decisions that authorize the NRC to limit the scope of licensing proceedings to avoid additional review and litigation of previously settled issues. Lastly, the petitioner has concluded that the proposed amendments would conserve NRC resources and streamline the agency's administrative processes to eliminate what it believes are unnecessary costs and burdens on applicants for new licenses.

Interested persons are invited to participate in the making of these proposed special conditions by submitting such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The proposals described in this action may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to this action must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to NM195.” The postcard will be date stamped and returned to the commenter.

On September 18, 2000, the Boeing Commercial Airplane Group (BCAG)—Wichita Division Designated Alteration Station (DAS) applied for a Supplemental Type Certificate (STC) from the Wichita Aircraft Certification Office (ACO). The STC is to install an overhead flightcrew rest (OFCR) and an overhead attendant rest (OAR) on Boeing Model 777-200 series airplanes. The OFCR compartment adjacent to door one will include a maximum of two private berths and two seats. Occupancy of the OFCR will be limited to a maximum of four occupants. The OAR compartment, adjacent to door three, will include a combination of private berths and seats for a maximum of twelve occupants. Occupancy of the OAR will be limited to a maximum of twelve occupants. Follow-on designs may locate the OAR at either door three, or door four depending on the Model 777-200 airplane and option(s) selected by the customer.

Both crew rests, OFCR and OAR, will be accessed from the main deck by stairs. In addition, an emergency hatch which opens directly into the cabin area will be provided for each compartment. A smoke detection system, an oxygen system, and occupant amenities will also be provided. These compartments will only be occupied in flight, not during taxi, takeoff, or landing.

The Boeing Model 777-200 series airplanes are large twin engine airplanes with various passenger capacities and ranges depending upon airplane configuration, and currently do not incorporate OFCR and OAR compartments in production. While the installation of a crew rest compartment is not a new concept for large transport category airplanes, each crew rest compartment has unique features based on design, location, and use on the airplane. Crew rest compartments have been installed and certified in the main passenger area, above the main passenger area and below the passenger cabin area within the cargo compartment of the Boeing Model 777-200/-300 series airplanes. Also, overhead crew rest compartments have been installed on the Boeing Model 747 series airplanes.

The FAA has previously issued special conditions, which contain the additional safety standards that must be met for the overhead crew rests on Boeing Model 747 series airplanes. The FAA certified the lower lobe attendant rest on the Boeing Model 777-200 series airplanes by equivalent level of safety finding to the requirements of 25.819. In addition, the FAA recently issued Special Conditions No. 25-169-SC, dated December 1, 2000, for 777-200 series airplanes for overhead crew rest to support a STC for Flight Structures Inc (FSI) of Arlington, Washington. The Flight Structures, Inc. (FSI) Special Conditions No. 25-169-SC were amended on May 2, 2001.

These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Certification requirements for pilot “sleeping quarters” per the requirements of 121.485 are not addressed in these special conditions. The applicant must work directly with the Aircraft Evaluation Group (AEG) with regard to the adequacy of onboard sleeping quarters/facilities for compliance with 121.485(a), 121.523(b) and 135.269(b)(5). The AEG is responsible for making this finding.

Under the provisions of 21.101, Boeing must show that the Model 777-200 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. T00001SE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. T00001SE for the Boeing Model 777-200 series airplanes include 14 CFR part 25, as amended by Amendments 25-1 through 25-82. The U.S. type certification basis for the Boeing Model 777-200 series airplanes is established in accordance with 14 CFR 21.17 and 21.29 and the type certification application date. The type certification basis is listed in Type Certificate Data Sheet No. T00001SE.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-200 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-200 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as appropriate, are issued in accordance with § 11.19, after public notice, as required by § 11.38, and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101(a)(1).

While the installation of a crew rest compartment is not a new concept for large transport category airplanes, each compartment design has unique features by virtue of its design, location, and use on the airplane. Previously, crew rest compartments have been evaluated that are installed within the main passenger compartment area of the Boeing Model 777-200 and Model 777-300 series airplanes and the overhead area of the passenger compartment of the 777-200. Other crew rest compartments have been installed below the passenger cabin area, adjacent to the cargo compartment. Similar overhead crew rest compartments have also been installed on the Boeing Model 747 airplane. The interfaces of the modification are evaluated within the interior and assessed in accordance with the certification basis of the airplane. However, part 25 does not provide all the requirements for crew rest compartments within the overhead area of the passenger compartment. Further, these special conditions do not negate the need to address other applicable part 25 regulations.

Due to the novel or unusual features associated with the installation of this crew rest compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificate.

In general, the requirements listed in these proposed special conditions are similar to those previously approved in earlier certification programs, such as for the Boeing Model 777-200 series airplanes and Boeing Model 747 overhead crew rest compartments. These proposed special conditions establish seating, communication, lighting, personal safety, and evacuation requirements for the overhead crew rest compartment. In addition, passenger information signs, supplemental oxygen, and a seat or berth for each occupant of the crew rest compartment would be required. These items are necessary because of turbulence and/or decompression. When applicable, the proposed requirements parallel the existing requirements for a lower deck service compartment and provide an equivalent level of safety to that provided for main deck occupants.

Seats and berths must be certified to the maximum flight loads. Due to the location and configuration of the crew rest compartment, it is proposed that occupancy during taxi, takeoff, and landing would be prohibited, and occupancy limited to crewmembers during flight. Occupancy would be limited to four in the overhead flightcrew rest (OFCR) or the combined total of approved seats and berths in the OFCR, whichever is less. Occupancy would be limited to twelve in the overhead attendant rest (OAR), or the combined total of approved seats and berths in the OAR, whichever is less. Appropriate placards are proposed to prohibit passenger access, access by crewmembers not trained in evacuation procedures, smoking and hazardous quantities of flammable fluids, explosives or other dangerous cargo. Of special note is the intended meaning of the phrase “hazardous quantities” used above. The intent of this term is to continue to accept a practice that permits trained crewmembers to carry baggage containing minute quantities of flammable fluids (e.g., finger nail polish) that would pose no threat to the airplane or its occupants. This wording is consistent with the existing wording of §§ 25.831(d), 25.855 (h)(2), 25.857 (b)(2), (c)(3) & (e)(4) and 25.1353(c)(3). Requirements for door access and locking and the installation of ashtrays are proposed.

To preclude occupants from being trapped in the crew rest compartment in the event of an emergency there must be at least two emergency evacuation routes which could be used by each occupant of the crew rest compartment to rapidly evacuate to the main cabin. These two routes must be sufficiently separated to minimize the possibility of an event rendering both routes inoperative. The main entry route meeting the appropriate requirements may be utilized as one of the emergency evacuation routes or alternatively two other emergency routes must be provided. The previous special conditions allowed only one of the evacuation routes to terminate in a main aisle, cross aisle or galley complex. The idea was to ensure that one of the two routes would be clear of moving occupants under most foreseeable circumstances.

The following provides clarification in the intent of special condition 2b concerning the utility of the egress routes. There are three issues that should be considered. First, occupied passenger seats are not considered an impediment to the use of an egress route, (e.g., egress route drops into one row of seats via a hatch), provided that the seated occupants do not inhibit the opening of the egress route (e.g., hatch).

The second issue is that the proposed special conditions would allow a second route to utilize areas where normal movement of passengers occurs if it is demonstrated that the passengers would not impede egress to the main deck. If the egress means (hatch in this design) opens into a main aisle, cross aisle, or galley complex to an extent that it contacts a standing 95th percentile male, the contact should only momentarily interrupt the opening of the egress hatch. The interruption to the egress means can be considered momentary if the egress means will continue to open normally once the person has moved out of the way.

The third consideration is with respect to a passenger in the cabin re-closing the escape hatch, effectively preventing the occupants of the crew rest area from using the escape route. The escape hatch should be provided with a means to prevent it from being inadvertently re-closed by a passenger on the main deck, but allow the escape hatch to be restowed by the crew prior to landing.

Training requirements for the occupants of the crew rest area are included in the proposal.

It is proposed that each evacuation route must be designed and procedures specified to allow for removal of an incapacitated person from the crew rest compartment to the main deck. Words have been added for clarification for evacuation routes having stairways. Additional assistants to evacuate an incapacitated person may ascend up to one half the elevation change from the main deck to the overhead compartment, or to the first landing, whichever is lower. The revised FSI special conditions did provide guidance information regarding limiting the number of assistants but did not provide their position and/or stance on the stairs or landing. The proposal also allows that a single row of seats may be emptied for the purposes of demonstrating evacuation of an incapacitated person, where the escape route is over seats.

Exit signs, placards for evacuation routes, illumination for signs, placards and door handles are proposed. The proposal allows for exit signs with a reduced background area to be used. These reduced background area signs have been allowed under previous equivalent levels of safety for small transport executive jets. A proviso has been proposed that would limit the material surrounding the sign to be light in color to more closely match and enhance the illuminated background of the sign that has been reduced in area (letter size stays the same).

To prevent the occupants from being isolated in a dark area due to loss of the crew rest compartment lighting, an emergency lighting system, which is activated under the same conditions as the main deck emergency lighting system, is proposed.

It is proposed that a two-way voice communications and public address speaker(s) would be required to alert the occupants to an in-flight emergency. Also, a system to alert the occupants of the crew rest compartment in the event of decompression and to don oxygen masks is proposed.

Emergency alarm means or use of the public address system or crew interphone system to inform occupants of the OFCR or OAR of an emergency situation is proposed. Power duration to the emergency alarm after certain failures is proposed.

Proposed Special Condition No. 8 requires a means, readily detectable by seated or standing occupants of the crew rest compartment, which indicates when seat belts should be fastened. The requirement for visibility of the sign by standing occupants may be met by a general area sign that is visible to occupants standing in the main floor area or corridor of the crew rest area. It would not be essential that the sign be visible from every possible location in the crew rest area; however, the sign should not be remotely located or located where it may be easily obscured.

Since the overhead crew rest compartment is remotely located from the passenger cabin, a hand-held fire extinguisher, protective breathing equipment and a flashlight are proposed tools specified to fight a fire should a fire occur.

Since the overhead crew rest compartment is remotely located from the main passenger cabin and will not always be occupied, a smoke detection system and appropriate warnings are proposed. The smoke detection system must be capable of detecting a fire in each area of the compartment created by the installation of a curtain or door.

It is proposed that the crew rest compartment be designed such that fires within the compartment can be controlled without having to enter the compartment; or, the design of the access provisions must allow crew equipped for fire fighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the fire fighting equipment, and to gain access must not exceed the time for the crew rest compartment to become smoke filled, making it difficult to locate the fire source.

This proposed special condition requirement concerning fires within the compartment was developed for, and applied to, Boeing Model 777-200 and Model 777-300 series airplanes lower lobe crew rest compartments. It was not applied to the overhead crew rest compartment in earlier certification programs such as the Boeing Model 747. The Model 747 special conditions were issued before the new flammability requirements were developed. This requirement originated from a concern that a fire in an unoccupied crew rest compartment could spread into the passenger compartment, or affect other vital systems, before it could be extinguished. The proposed special conditions would require either the installation of a manually activated fire containment system that is accessible from outside the crew rest compartment, or a demonstration that the crew could satisfactorily perform the function of extinguishing a fire under the prescribed conditions. A manually activated built-in fire extinguishing system would be required only if a crewmember could not successfully locate and extinguish the fire during a demonstration where the crewmember is responding to the alarm.

The crew rest compartment smoke or fire detection and fire suppression systems (including airflow management features which prevent hazardous quantities of smoke or fire extinguishing agent from entering any other compartment occupied by crewmembers or passengers) is considered complex in terms of paragraph 6d of Advisory Circular (AC) 25.1309-1A, “System Design and Analysis.” In addition, the FAA considers failure of the crew rest compartment fire protection system (i.e., smoke or fire detection and fire suppression systems) in conjunction with a crew rest fire to be a catastrophic event. Based on the “Depth of Analysis Flowchart” shown in Figure 2 of AC 25.1309-1A, the depth of analysis should include both qualitative and quantitative assessments (reference paragraphs 8d, 9, and 10 of AC 25.1309-1A). In addition, it should be noted that hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from being carried in the crew rest area, a prohibition addressed in proposed Special Condition No. 1(a)(5).

The requirements to enable crewmember(s) quick entry to the crew rest compartment and to locate a fire source inherently places limits on the amount of baggage that may be carried and the size of the crew rest area. The crew rest area is limited to stowage of crew personal luggage and it is not intended to be used for the stowage of cargo or passenger baggage. The design of such a system to include cargo or passenger baggage would require additional requirements to ensure safe operation.

Oxygen equipment and a supplemental oxygen deployment warning are proposed.

For a divided crew rest compartment, requirements are proposed to address supplemental oxygen equipment and deployment means, signs, placards, curtains, doors, emergency illumination, alarms, seat belt fasten signals, and evacuation routes.

Alleviations to the requirements above for lavatories or other small areas within a crew rest area are proposed.

When waste disposal receptacle are installed, fire extinguishers are proposed.

The materials in the crew rest compartment must meet the flammability requirements of § 25.853(a), and the mattresses must meet the fire blocking requirements of § 25.853(c).

These proposed special conditions provide the regulatory requirements necessary for certification of this modification. Other special conditions may be developed, as needed, based on further FAA review and discussions with the applicant, manufacturer, and civil aviation authorities.

As discussed above, these special conditions are applicable to Boeing Model 777-200 series airplanes. Should Boeing Commercial Airplane Group, Wichita Division Designated Alternation Station, apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00001SE to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

Certification of the Boeing Model 777-200 series airplanes, modified by Boeing Commercial Airplane Group, Wichita Division Designated Alternation Station, is currently scheduled for mid-November 2001. The substance of these special conditions has been subject to the notice and public comment procedure previously. For this reason, and because a delay would significantly affect the applicant's installation of the system and certification of the airplane, the public comment period is being shortened to 30 days.

This action affects only certain novel or unusual design features on Boeing Model 777-200 series airplanes. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Boeing Model 777-200 series airplanes, as modified by Boeing Commercial Airplane Group, Wichita Division Designated Alteration Station, with overhead crew rest compartments, OFCR and/or OAR compartments.

1. Occupancy of the overhead crew rest compartment is limited to the total number of installed bunks and seats in each compartment. There must be an approved seat or berth able to withstand the maximum flight loads when occupied for each occupant permitted in the crew rest compartment. The maximum occupancy is four in the OFCR and 12 for the OAR.

(a) There must be appropriate placards, inside and outside to indicate:

(1) The maximum number of occupants allowed,

(2) That occupancy is restricted to crewmembers that are trained in the evacuation procedures for the overhead crew rest compartment,

(3) That occupancy is prohibited during taxi, take-off and landing, and

(4) That smoking is prohibited in the crew rest compartment.

(5) That hazardous quantities of flammable fluids, explosives, or other dangerous cargo are prohibited from the crew rest compartment.

(b) There must be at least one ashtray on the inside and outside of any entrance to the crew rest compartment.

(c) There must be a means to prevent passengers from entering the compartment in the event of an emergency or when no flight attendant is present.

(d) There must be a means for any door installed between the crew rest compartment and passenger cabin to be capable of being quickly opened from inside the compartment, even when crowding occurs at each side of the door.

(e) For all doors installed, there must be a means to preclude anyone from being trapped inside the compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of the compartment at any time.

2. There must be at least two emergency evacuation routes, which could be used by each occupant of the crew rest compartment to rapidly evacuate to the main cabin. In addition—

(a) The routes must be located with sufficient separation within the compartment, and between the evacuation routes, to minimize the possibility of an event rendering both routes inoperative.

(b) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure, or persons standing below or against the escape route. One of two evacuation routes should not be located where, during times in which occupancy is allowed, normal movement by passengers occurs (i.e. main aisle, cross aisle or galley complex) that would impede egress of the crew rest compartment. If an evacuation route utilizes an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If there is low headroom at or near the evacuation route, provisions must be made to prevent or to protect occupants (of the crew rest area) from head injury. The use of evacuation routes must not be dependent on any powered device. If the evacuation path is over an area where there are passenger seats, a maximum of one row of passengers may be displaced from their seats temporarily during the evacuation process. If the evacuation procedure involves the evacuee stepping on seats, the seats must not be damaged to the extent that they would not be acceptable for occupancy during an emergency landing.

(c) Emergency evacuation procedures and the emergency evacuation of incapacitated occupant procedures must be established and transmitted to the operator for incorporation into their training programs and appropriate operational manuals. If the evacuation path is over an area where there are passenger seats, a maximum of one row of passengers may be displaced from their seats temporarily during the evacuation process.

(d) There must be a limitation in the Airplane Flight Manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

3. There must be a means for the evacuation of an incapacitated person (representative of a ninety-fifth percentile male) from the crew rest compartment to the passenger cabin floor.

(a) The evacuation must be demonstrated for all evacuation routes. A flight attendant or other crewmember (a total of one assistant within the crew rest area) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. These additional assistants must be standing on the floor while providing assistance, except that for evacuation routes having stairways, the additional assistants may ascend up to one half the elevation change from the main deck to the overhead compartment, or to the first landing, whichever is lower.

(b) Procedures for the evacuation of an incapacitated person from the crew rest compartment must be established.

4. The following signs and placards must be provided in the crew rest compartment:

(a) At least one exit sign, located near each exit, meeting the requirements of § 25.812(b)(1)(i), except that a sign of reduced background area with no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color (e.g. white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one inch wide background border around the letters would also be acceptable.

(b) An appropriate placard defining the location and the operating instructions for each evacuation route.

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions.

(d) The exit handles and evacuation path operating instruction placards must be illuminated to at least 160 microlamberts under emergency lighting conditions.

5. There must be a means in the event of failure of the airplane's main power system, or of the normal crew rest compartment lighting system, for emergency illumination to be automatically provided for the crew rest compartment.

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the crew rest compartment to locate and transfer to the main passenger cabin floor by means of each evacuation route.

6. There must be means for two-way voice communications between the crewmembers on the flight deck and the occupants of the crew rest compartment. There must also be two-way communications between the occupants of the crew rest compartment and each flight attendant station required to have a public address system microphone per § 25.1423(g) in the passenger cabin.

7. There must be a means for manual activation of an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor level emergency exits to alert occupants of the crew rest compartment of an emergency situation. Use of a public address or crew interphone system would be acceptable, providing an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight, after the shutdown or failure of all engines and auxiliary power units, or the disconnection or failure of all power sources dependent on their continued operation, for a period of at least ten minutes.

8. There must be a means, readily detectable by seated or standing occupants of the crew rest compartment, which indicates when seat belts should be fastened. In the event there are no seats, at least one means must be provided to cover anticipated turbulence. Seat belt type restraints must be provided for berths and must be compatible for the sleeping attitude during cruise conditions. There must be a placard on each berth requiring that seat belts must be fastened when occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head location, there must be a placard identifying the head position.

9. The following equipment must be provided in the crew rest compartment:

(a) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur;

(b) One protective breathing equipment device approved to Technical Standard Order (TSO)-C116 or equivalent, suitable for fire fighting; and

(c) One flashlight.

10. A smoke detection system (or systems) must be provided that monitors each area within the crew rest including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide:

(a) A visual indication to the flight deck within one minute after the start of a fire;

(b) An aural warning in the crew rest compartment; and

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

11. The crew rest compartment must be designed such that fires within the compartment can be controlled without a crewmember having to enter the compartment, or the design of the access provisions must allow crewmembers equipped for firefighting to have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, to don the fire fighting equipment, and to gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the fire source.

12. There must be a means provided to exclude hazardous quantities of smoke or extinguishing agent originating in the crew rest compartment from entering any other compartment occupied by crewmembers or passengers. The means must include the time periods during the evacuation of the crew rest compartment and, if applicable, when accessing the crew rest compartment to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or passengers must dissipate within five minutes after closing the access to the crew rest compartment. Flight tests must be conducted to show compliance with this requirement.

If a built-in fire extinguishing system is used in lieu of manual fire fighting, then the fire extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by passengers or crew; the system must have adequate capacity to suppress any fire occurring in the crew rest compartment, considering the fire threat, volume of the compartment and the ventilation rate.

13. There must be a supplemental oxygen system equivalent to that provided for main deck passengers for each seat and berth in the crew rest compartment. The system must provide an aural and visual warning to warn the occupants of the crew rest compartment to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously until a reset push button in the crew rest compartment is depressed.

14. The following requirements apply to a crew rest compartment that is divided into several sections by the installation of curtains or partitions:

(a) To compensate for sleeping occupants, there must be an aural alert that can be heard in each section of the crew rest compartment that accompanies automatic presentation of supplemental oxygen masks. A minimum of two supplemental oxygen masks are required in each section whether or not seats or berths are installed in each section. There must also be a means by which the oxygen masks can be manually deployed from the flight deck.

(b) A placard is required adjacent to each curtain that visually divides or separates, for privacy purposes, the overhead crew rest compartment into small sections. The placard must require that the curtain(s) remain open when the private section it creates is unoccupied. The vestibule section adjacent to the stairway is not considered a private area and, therefore, does not require a placard.

(c) For each crew rest section created by the installation of a curtain, the following requirements of these special conditions must be met with the curtain open or closed:

(1) No smoking placard (Special Condition No. 1),

(2) Emergency illumination (Special Condition No. 5),

(3) Emergency alarm system (Special Condition No. 7),

(4) Seat belt fasten signal (Special Condition No. 8), and

(5) The smoke or fire detection system (Special Condition No. 10).

(d) Overhead crew rest compartments visually divided to the extent that evacuation could be affected must have exit signs that direct occupants to the primary stairway exit. The exit signs must be provided in each separate section of the crew rest compartment, and must meet the requirements of 25.812(b)(1)(i).

(e) Sections within an overhead crew rest compartment that are created by the installation of a rigid partition with a door physically separating the sections, the following requirements of these special conditions must be met with the door open or closed:

(1) There must be a secondary evacuation route from each section to the main deck, or alternatively, it must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment.

(2) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(3) There may be no more than one door between any seat or berth and the primary stairway exit.

(4) There must be exit signs in each section meeting the requirements of 25.812(b)(1)(i) that direct occupants to the primary stairway exit. An exit sign with reduced background area as described in Special Condition No. 4(a) may be used to meet this requirement.

(f) For each smaller section within the main crew rest compartment created by the installation of a partition with a door, the following requirements of these special conditions must be met with the door open or closed:

(1) No smoking placards (Special Condition No. 1),

(2) Emergency illumination (Special Condition No. 5),

(3) Two-way voice communication (Special Condition No. 6),

(4) Emergency alarm system (Special Condition No. 7),

(5) Seat belt fasten signal (Special Condition No. 8),

(6) Emergency fire fighting and protective equipment (Special Condition No. 9), and

(7) Smoke or fire detection system (Special Condition No. 10).

15. The requirements of two-way voice communication with the flight deck and provisions for emergency firefighting and protective equipment are not applicable to lavatories or other small areas that are not intended to be occupied for extended periods of time.

16. Where a waste disposal receptacle is fitted, it must be equipped with an automatic fire extinguisher that meets the performance requirements of 25.854(b).

17. Materials (including finishes or decorative surfaces applied to the materials) must comply with the flammability requirements of 25.853(a), as amended by Amendment 25-83. Mattresses must comply with the flammability requirements of 25.853(c), as amended by Amendment 25-83.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of this criteria, the Secretary of the Interior conditionally approved the Iowa program on January 21, 1981. You can find background information on the Iowa program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the January 21, 1981, Federal Register (46 FR 5885). You can find later actions on the Iowa program at 30 CFR 915.10, 915.15, and 915.16.

By letter dated August 17, 2001 (Administrative Record No. IA-446), Iowa sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Iowa sent the amendment in response to required program amendments at 30 CFR 915.16(b), (d), and (e). Iowa is proposing changes to its April 1999 revegetation success guidelines, entitled “Revegetation Success Standards and Statistically Valid Sampling Techniques.” Below is a summary of the changes proposed by Iowa. The full text of the Iowa program amendment is available for public inspection at the locations listed above under ADDRESSES.

Section III, Part H of Iowa's April 1999 revegetation success guidelines describes normal husbandry practices that can be used by the permittee in the repair of rills and gullies without restarting the responsibility period. It includes requirements for terrace repair and maintenance; riprap repair and maintenance; land smoothing and reseeding; and liming, fertilizing and interseeding. In our final rule dated November 26, 1999, we did not approve Section III, Part H because Iowa did not submit documentation that demonstrated that the proposed normal husbandry practices were the usual or expected state, form, amount, or degree of management performed habitually or customarily to prevent exploitation, destruction, or neglect of the resources on similar unmined lands in the State (64 FR 66388-66389). We required Iowa to either remove its guidelines for normal husbandry practices at Section III, Part H or submit documentation that support the proposed normal husbandry practices. We codified this requirement at 30 CFR 915.16(b).

In response to the required program amendment at 30 CFR 915.16(b), Iowa proposed changes to Section III, Part H of its April 1999 revegetation success guidelines and included documentation for support of the proposed normal husbandry practices. The documentation included copies of four publications: (1) Iowa Natural Resources Conservation Service (NRCS) Conservation Practice Standard 466, Land Smoothing; (2) Iowa NRCS Conservation Practice Standard 590, Nutrient Management; (3) Iowa NRCS Conservation Practice Standard 600, Terraces; and (4) Iowa State University Extension Service Publication Pm-1097, Interseeding and No-till Pasture Renovation.

Iowa is proposing the following substantive changes to Section III, Part H:

1. Iowa is revising Section III, Part H, Step 1 concerning terrace repair and maintenance by removing Item (e). Item (e) allows the extension of a terrace to intercept additional drainage area when the extension is no greater than 25 percent of the original terrace length. Items (f) and (g) were relettered as (e) and (f), respectively.

2. Iowa is revising Section III, Part H, Step 2 concerning riprap repair and maintenance by removing Item (b). Item (b) allows the extension of an undersized ditch when the extension is no more than a 25 percent increase in the length of the ditch. Items (c) and (d) were relettered as (b) and (c), respectively.

3. Iowa is revising Section III, Part H, Step 4(a) concerning lime applications. The revised provision reads as follows:

4. Iowa is revising Section III, Part H, Step 4(b) concerning fertilizer applications. The revised provision reads as follows:

5. Iowa is revising the introductory paragraph of Section III, Part H, Step 4(c) concerning interseeding by adding the following sentence to the end of the paragraph:

6. Iowa is revising Section III, Part H, Step 4(c)(ii) to read as follows:

7. Finally Iowa is deleting the existing provisions at Section III, Part H, Step 4(c)(iv) and (v).

Section IV, Part E of Iowa's April 1999 revegetation success guidelines contains the revegetation success standards for recreational areas, wildlife areas, and forested lands. In our final rule dated November 26, 1999, we approved Section IV, Part E with two exceptions (64 FR 66388). First, Iowa's guidelines did not contain any planting arrangement provisions for these land uses as required by 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i). Second, Iowa did not submit any documentation to prove that the State agencies responsible for the administration of forestry and wildlife programs approved its minimum stocking provisions as required by 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i). We required Iowa to either add planting arrangement provisions for recreational, wildlife, and forested land to its guidelines and obtain program-wide concurrence from the State agencies responsible for the administration of forestry and wildlife programs or add a provision to its guidelines that requires permit-specific concurrence for planting arrangements from the State agencies responsible for the administration of forestry and wildlife programs. We also required Iowa to either obtain program-wide concurrence for its minimum stocking provisions or add a provision to its guidelines that requires permit-specific concurrence for minimum stocking from the State agencies responsible for the administration of forestry and wildlife programs. We codified these requirements at 30 CFR 915.16(d)(1) and (2).

Iowa is proposing the following changes to Section IV, Part E to address our required program amendments at 30 CFR 915.16(d)(1) and (2).

1. Iowa is adding the following new provision to the beginning of the second paragraph of Section IV, Part E:

2. Iowa is adding the following new provision to Section IV, Part E, Step 2:

3. The existing provisions in Section IV, Part E, Step 2 were renumbered to Step 3.

Section V of Iowa's April 1999 revegetation success guidelines contains sampling procedures and techniques to determine productivity for corn, soybeans, oats, wheat, and forage crops; to determine ground cover percentage; and to determine if trees and shrubs meet minimum density standards. In our final rule dated November 26, 1999, we approved Section V of Iowa's April 1999 revegetation success guidelines with one exception (64 FR 66388). We did not fully approve Section V, Part A, Item 2, which contains the grain sampling techniques for test plot harvesting, because it did not specify how the permittee is to obtain the dry weight of the test plot grain samples. The dry weight is used in a calculation to determine the moisture percentage for each test plot sample. We required Iowa to revise its April 1999 revegetation success guidelines at Section V, Part A, Step 2 by adding a provision that specifies the standard method that permittees are to use for obtaining the dry weight of test plot grain samples. We codified this requirement at 30 CFR 915.16(e).

In response to the required amendment at 30 CFR 915.16(e), Iowa is adding the following new provision to the beginning of Step 2(l):

Under the provisions of 30 CFR 732.17(h), we are seeking comments on whether the proposed amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the Iowa program.

Written Comments: If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, should be confined to issues pertinent to the notice, and should explain the reason for your recommendation(s). We may not be able to consider or include in the Administrative Record comments delivered to an address other than the one listed above (see ADDRESSES).

Electronic Comments: Please submit Internet comments as an ASCII, WordPerfect, or Word file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS NO. IA-012-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Mid-Continent Regional Coordinating Center at (618) 463-6460.

Availability of Comments: Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours at OSM's Mid-Continent Regional Coordinating Center (see ADDRESSES). Individual respondents may request that we withhold their home address from the administrative record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the administrative record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.

Public Hearing: If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on October 9, 2001. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak at the public hearing, the hearing will not be held.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her testimony. The public hearing will continue on the specified date until all persons scheduled to speak have been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after all persons scheduled to speak and persons present in the audience who wish to speak have been heard.

If you are disabled and need a special accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT.

Public Meeting: If only one person requests an opportunity to speak at a hearing, a public meeting, rather than a public hearing, may be held. If you wish to meet with us to discuss the proposed amendment, you may request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will also make a written summary of each meeting a part of the Administrative Record.

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary under SMCRA.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866 and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

The Department of the Interior has determined that this 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.). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

VA proposes to rewrite 38 CFR 3.106 in plain language. This regulation concerns the renouncement of VA pension, compensation, or dependency and indemnity compensation (DIC) benefits. It explains who has the right to renounce benefits, how to renounce benefits, and what renouncement will mean to a beneficiary. There is also a discussion about the right to reapply for benefits that have been renounced, as well as effective dates for the termination of renounced benefits. The current regulation is located in Subpart A of Part 3. We propose to create new § 3.2145 to restate the current regulation and to amend the effective date portion of it. The new section would be located in Subpart D—Universal Adjudication Rules that Apply to Benefit Claims Governed by part 3 of this title.

Paragraph (a)(1) of proposed new § 3.2145 informs readers that only primary beneficiaries have the right to renounce VA pension, compensation, or DIC benefits, and the term “primary beneficiary” is defined as anyone who is entitled to receive benefits in his or her own right. It explains that when a primary beneficiary decides to renounce his or her benefits, the entire benefit is renounced, not just a portion of it. The renouncement must be in writing and be signed by the primary beneficiary or his or her fiduciary. This language was added to clarify that fiduciaries may sign renouncements on behalf of minors and incompetents. The effective date of the renouncement will be the last day of the month in which VA receives it or, if the award is in suspense, the date of last payment. This is a restatement of § 3.106(a), except for the last sentence. The last sentence incorporates our proposed effective date change to the regulation by adding “or, if payments have been suspended, the date of last payment.”

Prior to January 21, 1992, the effective date for renouncement under 38 CFR 3.106 was the date of last payment. The date of last payment is the last date that VA sent a beneficiary his or her regular monthly benefit payment. However, using the date of last payment created a problem due to workload differences among regional offices, as well as fluctuations within the same office. This often resulted in the termination of two beneficiaries' benefit payments on different dates even though VA had received both beneficiaries' renouncements on the same date. For example, VA receives two renouncements from two beneficiaries on April 19th. Both beneficiaries were last paid on April 1. One renouncement gets processed immediately. That beneficiary's benefits are renounced effective April 1st, the date of last payment, and no more payments are made. The other renouncement isn't processed for two weeks. That beneficiary's May 1st benefit payment has already been issued. Now the date of last payment is May 1st and that is when the renouncement becomes effective. The result is an additional payment sent to a beneficiary who wanted to terminate benefits immediately.

On January 21, 1992, the effective date for a renouncement was changed from the date of last payment to the last day of the month in which the renouncement was received. This eliminated the problem illustrated by the example in the preceding paragraph. However, it did not take into account beneficiaries whose awards were already in suspense when their renouncements were received.

VA proposes to add “or, if payments have been suspended, the date of last payment” to the existing regulation to avoid sending additional payments to a beneficiary who wants to terminate his or her benefits immediately, but currently has an award in suspended status. If a beneficiary has an award that has been suspended, it means that he or she has not received any benefit payments for some length of time. Under normal circumstances when VA is able to resume a beneficiary's suspended award, those payments that are due but not yet paid would be released to the beneficiary. In the case of renouncement, however, releasing those payments to a beneficiary seeking to terminate benefits would be inconsistent with the expressed desire of the beneficiary to stop receiving benefits. The proposed wording for paragraph (a) of § 3.2145 would make sure that beneficiaries who renounce their rights to receive VA benefits are not sent any additional benefit payments.

Paragraph (a)(2) of proposed § 3.2145 has been added to clearly state that apportionees and dependents on the awards of other persons are not primary beneficiaries and may not renounce benefits.

Paragraph (b) of proposed § 3.2145 explains that a primary beneficiary who renounces the right to receive VA benefits may reapply for the same benefit at any time. VA will treat the new application as the first claim for that benefit, and no payments may be made for any period prior to its receipt (except as noted in paragraph (c) of this section). This is a restatement of § 3.106(b).

Paragraph (c) of proposed § 3.2145 states the exception to paragraph (b), which concerns reapplication for pension or parents' DIC benefits. When an application for one of these benefits is received within one year from the date a renouncement of the same benefit was received, it will not be considered a new application. VA will determine entitlement as if the renouncement had never been received. This is a restatement of § 3.106(c).

Paragraph (d) of proposed § 3.2145 clarifies that renouncement by a primary beneficiary does not increase benefits or create independent entitlement to benefits in any other person. While current § 3.106(d) and (e) address this issue with respect to DIC only, the proposed paragraph (d) makes clear that renouncement has the same affect on compensation and pension as well.

This rulemaking reflects VA's goal of making government more responsive, accessible, and comprehensible to the public. The Plain Language Regulations Project was developed as a long-term comprehensive project to reorganize and rewrite in plain language the adjudication regulations in Part 3 of Title 38, Code of Federal Regulations. This proposed rule is part of a series of proposed revisions to those regulations.

The Unfunded Mandates Reform Act, Public Law 104-4, March 22, 1995, requires (in section 202) that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This proposed rule would have no consequential effect on State, local, or tribal governments.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

The Secretary certifies that the adoption of the proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. The proposed rule does not directly affect any small entities. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

For the reasons set forth in the preamble, VA proposes to amend 38 CFR Part 3 as follows:

This supplemental information section is organized as follows:

EPA is proposing approval of a June 18, 2001 New Jersey SIP submittal which includes: an analysis of Reasonably Available Control Measures (RACM) and the identification of the additional emission reductions needed to attain the one-hour national ambient air quality standard for ozone. After reviewing the SIP revision and considering it in light of EPA policy and guidance, EPA concludes that the emission reductions from the potential RACM measures will not advance the one-hour ozone attainment date and thus there are no additional potential RACM measures that can be considered RACM for New Jersey's two severe one-hour ozone nonattainment areas.

With respect to additional control measures designed to meet the one-hour ozone standard, New Jersey has identified the regional model rules developed by the Ozone Transport Commission as those which the State will be pursuing rulemaking for and which should result in sufficient emission reductions to achieve the reductions of volatile organic compounds (VOCs) and nitrogen oxides ( NOX) needed to attain the one-hour ozone standard. New Jersey will be taking actions to adopt these measures separately from this SIP revision.

The submittal also includes an assessment of the progress New Jersey has made in attaining the one-hour ozone standard. The assessment shows a continued downward trend in both the number of violations of the standard and the measured ozone concentrations. While New Jersey submitted this SIP revision to fulfill its commitment to provide a mid-course review of its attainment status, EPA has determined that several more years of monitored data and implementation of the Regional NOX Program are needed before a true mid-course review of the attainment demonstration can be made. Therefore, EPA is not acting on the mid-course review at this time and expects New Jersey to supplement the existing analysis after further emission reductions have accrued.

On June 18, 2001, New Jersey submitted the proposed revision to the SIP entitled “Update to Meeting the Requirements of the Alternate Ozone Attainment Demonstration Policy: Additional Emission Reductions, Reasonably Available Control Measures (RACM) Analysis, and Mid-Course Review,” and requested that EPA process the SIP revision in parallel with its administrative process. New Jersey held a public hearing on July 26, 2001 and is evaluating the comments that were received.

This revision is being proposed under a procedure called parallel processing, whereby EPA proposes rulemaking action concurrently with the state's procedures for amending its regulations. If the 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 other than those areas cited in this document, EPA will publish a final rulemaking on the revisions. The final rulemaking action by EPA will occur only after the SIP revision has been adopted by New Jersey and submitted formally to EPA for incorporation into the SIP.

This submittal applies to the New Jersey portions of two severe ozone nonattainment areas—the New York, Northern New Jersey, Long Island Area, and the Philadelphia, Wilmington, Trenton Area. For purposes of this action these areas will be referred to, respectively, as the Northern New Jersey ozone nonattainment area (NAA) and the Trenton ozone NAA. The counties located within the Northern New Jersey NAA are: Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Ocean, Passaic, Somerset, Sussex, and Union. The counties within the Trenton NAA are: Burlington, Camden, Cumberland, Gloucester, Mercer, and Salem.

Section 172(c)(1) of the Act requires SIPs to contain RACM as necessary to provide for attainment as expeditiously as practicable. EPA has previously provided guidance interpreting the RACM requirements of section 172(c)(1). See the “General Preamble for Implementation of Title I of the CAAA of 1990” (General Preamble), 57 FR 13498, 13560. In that preamble, EPA stated that potentially available measures that would not advance the attainment date for an area would not be considered RACM. EPA also indicated in the General Preamble that states should consider all potentially available measures to determine whether they were reasonably available for implementation in the area, and whether they would advance the attainment date. Further, the General Preamble indicates that states should provide in the SIP submittals a discussion of whether the measures considered are reasonably available or not. If the measures are reasonably available, they must be adopted as RACM. Finally, EPA indicated that states could reject potential RACM either because they would not advance the attainment date or would cause substantial widespread and long-term adverse impacts. States could also consider local conditions, such as economics or implementation concerns, in rejecting potential RACM. On November 30, 1999, John S. Seitz, Director, Office of Air Quality Planning and Standards, issued a memorandum on this topic, “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas' which reiterated the CAA RACM requirements and elaborated on the General Preamble.

New Jersey performed a RACM analysis which included an evaluation of potential transportation control measures (TCMs) for onroad mobile sources, potential control measures for point, area and offroad sources, and other non-TCM onroad control measures. New Jersey ranked the source categories by emission level to identify source categories with the greatest potential for additional control measure benefits. Individual measures were then evaluated with regard to their technical feasibility, economic feasibility and the speed at which they could be implemented. Finally, the sums of the estimated emissions benefits from the potentially implementable measures were then compared to the emission reductions required to advance the attainment dates for each nonattainment area. This analysis was performed for the New Jersey portions of the two severe nonattainment areas, the Trenton NAA and the Northern New Jersey NAA.

The New Jersey Department of Environmental Protection (NJDEP) examined 15 prospective mobile source measures to determine if any of these TCMs could be considered reasonably available control measures. The measures considered for this RACM analysis were identified by the New Jersey Department of Transportation in consultation with NJDEP. New Jersey initially screened the candidate measures to determine if they were available for potential implementation, and then each measure analyzed for its potential emissions reduction benefit, economic impact, practicability and potential adverse impact. New Jersey analyzed each prospective emission control measure for each nonattainment area.

The mobile source measures the State analyzed can be grouped into the following five categories; Travel Demand Management and Commuter Choice, Transportation Pricing Strategies and Scenarios, Traffic Flow Improvements, Transit Projects and Transit Oriented Design and Vehicle Fuel and Technology. The State also examined two non-mobile source land use related measures which have the potential to reduce vehicle miles traveled and vehicle emissions.

The State's analysis found that none of the TCM's, singularly or in combination, will yield emissions benefits sufficient to advance the attainment dates for the respective New Jersey ozone nonattainment areas. The range of combined emissions benefits from VOC and NOX was 0.0 tons/day to 2.054 tons/day in the New Jersey portion of the Northern New Jersey NAA and from 0.0 tons/day to 1.10 tons/day in the New Jersey portion of the Trenton NAA. In addition, the State also found that implementing certain measures is not cost effective. These TCMs are not reasonably available at this time, nor may they be able to generate significant emission reductions by the attainment date. However, over a longer period some of them may prove to be reasonable, particularly with respect to an eight-hour ozone standard with an attainment date further into the future.

Two land use measures were also reviewed and evaluated for their potential impact to reduce vehicle miles traveled and emissions. The measures were developed to achieve other State goals and include the statewide programs: Open Space Preservation Program in which the State commits to preserving 1,000,000 acres of open space over a ten-year period, and New Development and Redevelopment Plan which is based on “smart growth” principles.

The estimated emissions benefits in 2006 for the Open Space Preservation Program are approximately 0.11 tons per/day of VOCs and NOX with an estimated cost per ton of $1.78 million. However, it is important to note that this program would provide many other environmental and public benefits and costs should not be judged on air quality alone. This 10 year program can not be phased in faster and fully implemented by the attainment date for the two NAAs. Thus, it is not anticipated to advance the attainment dates in the New Jersey NAAs.

The estimated emissions benefits in 2006 for the State Development and Redevelopment Plan are approximately 0.452 ton per/day of VOCs and NOX. The cost per ton was not quantifiable in the scope of this analysis. In addition, the State plan is a voluntary plan and has no force of law under municipal home rule. This limits EPA's ability to enforce such a program as part of a SIP. Like the Open Space Preservation Program, this program would provide many other environmental and public benefits and costs should not be judged on air quality alone. Furthermore, long lead times would be required before this measure could be effective on a regional scale and it is not anticipated to advance the attainment dates in the New Jersey nonattainment areas.

The NJDEP sorted the projected attainment year VOC and NOX emission inventories (2005 for the Trenton NAA and 2007 for the Northern New Jersey NAA) by size of each source category for each nonattainment area. Considering VOC and NOX emissions separately, New Jersey examined all source categories with emissions of 5 tons per day or greater for potential application of new control measures. NJDEP evaluated 29 VOC source categories and 25 NOX source categories. The analysis for feasibility of potential controls for each source category included evaluation of the potential emissions reduction benefit, technical and economic feasibility, and analysis of whether the measure could be implemented in time to advance the attainment date. New Jersey analyzed the prospective emission control measures for each nonattainment area.

New Jersey identified six potentially implementable control measures which have a combined potential emission reduction benefit of 2.2 tons per day of VOC and 0.4 tons per day of NOX in 2004 for the Trenton NAA and 7.3 tons per day of VOC and 3.3 tons per day of NOX in 2006 for the Northern New Jersey NAA. In order to assess whether these emission reductions would advance the attainment date for each area, New Jersey compared these potential emission reductions to the emission reductions which are projected to occur in New Jersey in the year before the attainment year from the adopted control measures and the additional control measures identified in this SIP revision, (i.e, compare these reductions to the reductions projected for 2004 for the Trenton NAA and reductions projected for 2006 for the Northern New Jersey NAA). For both nonattainment areas, the combined benefit from all the potential control measures is less than the emission reductions which will be occurring in the year before the attainment year. Therefore, no TCM or other measure, either singularly or combined, has been identified which could advance the attainment dates of either area and be considered RACM.

EPA has reviewed the RACM analysis and finds that the documentation New Jersey provided supports the State's conclusions. New Jersey evaluated all source categories that could contribute meaningful emission reductions. An extensive list of potential control measures was identified and reviewed. The State considered the time needed to implement these measures as a further screen of their reasonableness and availability. However, EPA believes that some of these control measures may offer some benefits in the future for purposes of an eight-hour ozone standard, and recommends that New Jersey and other states in the OTR revisit these controls in the context of any future planning obligations.

Therefore, EPA is proposing to approve New Jersey's RACM analysis and to determine that there are no individual or combined measures that are technically and economically feasible and that would advance the one-hour ozone attainment dates for the two severe nonattainment areas in New Jersey.

When EPA evaluated New Jersey's one-hour ozone attainment demonstrations, EPA determined that additional emission reductions were needed for the two severe nonattainment areas in order to attain the one-hour ozone standard with sufficient surety (December 16, 1999, 64 FR 70380). The table below identifies the additional emission reductions needed for the two nonattainment areas.

EPA provided that the States in the OTR could achieve these emission reductions through regional control programs. New Jersey decided to participate with the other states in the Northeast in an Ozone Transport Commission (OTC) regulatory development effort. New Jersey has been an active participant in the OTC's process of developing regional control strategies that would achieve the necessary additional reductions to attain the one-hour ozone standard.

New Jersey has decided to proceed with State rulemaking efforts for the source categories for which the OTC developed model rules. This includes the following source categories:

New Jersey will be proposing rules for these source categories in separate rulemakings and taking public comment on the actual regulations and the basis and background which support the regulations. The purpose of this portion of the SIP submittal is to provide information in advance of New Jersey's rulemaking as to which source categories will be proposed and to provide a projection of the emission benefits from these proposed control measures. The State also provided evidence that the cumulative benefit from these measures will be sufficient to meet the additional emission reductions EPA identified as being needed to insure attainment of the one-hour ozone standard in the multi-state nonattainment areas. EPA will evaluate whether the adopted measures meet the shortfall at the time it evaluates the submitted measures as SIP revisions.

Applying OTC model rule's projected emission reductions to the VOC and NOX inventories, the State has determined and EPA agrees that the entire New York, Northern New Jersey, Long Island Area NAA will have sufficient emission reductions in both VOC and NOX to attain the one-hour ozone standard. In the Philadelphia, Wilmington, Trenton NAA, excess NOX emission reductions will need to be substituted for VOC reductions in order to achieve the VOC emission reduction target. Implementation of the OTC measures statewide will result in additional emission reductions that will be beneficial towards attaining the ozone standard in the Philadelphia, Wilmington, Trenton NAA. See Table 2 for estimated emission reductions and required additional emission reductions for the entire nonattainment area.

New Jersey is pursuing three additional strategies: applying the OTC model rules to the three attaining counties in New Jersey, heavy duty diesel engine compliance assurance requirements, and more stringent requirements for gasoline transfer operations.

EPA is proposing to approve New Jersey's RACM analysis along with it's conclusions that there are no additional control measures available that are technically or economically feasible and that whose emission reductions would advance the attainment dates of 2005 for the Trenton NAA or 2007 for the Northern New Jersey NAA. EPA finds that the additional control measures that New Jersey will be proposing, coupled with those to be implemented by other states in the nonattainment area, should result in sufficient additional emission reductions to attain the one-hour ozone standard by 2005 for the Trenton NAA and 2007 for the Northern New Jersey NAA. However, EPA will evaluate the measures and associated emission reductions at the time they are submitted as a SIP revision.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This 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 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 approves 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). This rule also does 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it 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 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 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. 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” issued under the executive order. This 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.).

This document concerns revisions to regulations of TNRCC which relate to definitions in Texas' general rules and to regulations relating to the permitting of new sources and modifications. For further information, please see the information provided in the direct final action that is located in the “Rules and Regulations” section of this Federal Register publication.

For additional information, see the direct final rule which is located in the Rules Section of this Federal Register.

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-245, adopted September 14, 2001, and released September 19, 2001. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW, Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MM Docket No. 01-244, adopted September 14, 2001, and released September 19, 2001. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

Additional information is contained in the Board's decision. To purchase a copy of the decision, write to, call, or pick up in person from Da-2-Da Legal. The decision is also posted on the Board's Web site at www.stb.dot.gov.

For the reasons set forth in the preamble, title 49, chapter X, part 1111 of the Code of Federal Regulations, is proposed to be amended as follows:

The fishery for American lobster takes place from North Carolina to Maine. More than 50 percent of American lobsters harvested are landed in Maine, with the balance landed mostly in or from Massachusetts, Rhode Island, Long Island Sound, and Georges Bank. Over 80 percent of the lobster harvest occurs in state waters, which extend from the coast to 3 nautical miles (5.56 km) from shore. The lobster fishery occurs year-round in the United States, including the summer and fall months when the lobsters are molting. Approximately 97 percent of lobsters are taken in lobster traps. The rest are taken in trawls, gillnets, dredges, and by divers. -

Prior to December 1999, the American lobster resource was managed in state waters by the Atlantic States Marine Fisheries Commission (ASMFC), and in Federal waters by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Acknowledging that approximately 80 percent of the American lobster harvest occurs in state waters, and in an effort to establish a more effective lobster management regime by enhancing interjurisdictional cooperation, NMFS issued a final rule in December 1999 (64 FR 68228) for the American lobster fishery. This action transferred authority for the management of the lobster resource in the EEZ from the Magnuson-Stevens Act to the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA). Consequently, NMFS has the authority under the ACFCMA to implement regulations in Federal waters that are compatible with the effective implementation of the ISFMP and consistent with the national standards of the Magnuson-Stevens Act. Such Federal regulations are promulgated pursuant to ACFCMA at 50 CFR part 697. -

Amendment 3 of the ISFMP was approved by the ASMFC in December 1997 to achieve a healthy American lobster resource and to develop a management regime that provides for sustained harvest, maintains opportunities for participation, and provides for the cooperative development of conservation measures by all stakeholders. Following the May 2000 release of an updated peer-reviewed lobster stock assessment (ASMFC Stock Assessment Peer Review Report No. 00-01), which revised lobster egg production estimates and confirmed that overfishing of lobster stocks is occurring throughout the species range, the ASMFC developed Addendum II to Amendment 3 for implementing additional measures needed to rebuild American lobster stocks. Addendum II, approved in February 2001, establishes a revised egg production schedule to restore egg production in each lobster conservation management area (LCMA) to greater than the overfishing definition by the end of 2008. Measures under the addendum to help achieve this goal include a series of minimum gauge size increases and an increase in the minimum escape vent size of lobster trap gear fished in state and Federal waters of LCMA 2 (inshore Southern New England), LCMA 3 (offshore waters), LCMA 4 (inshore Northern Mid-Atlantic), LCMA 5 (inshore Southern Mid-Atlantic), and the Outer Cape Management Area, but not of LCMA 1 (Gulf of Maine) and LCMA 6 (Long Island Sound). The addendum also calls for a revised timeline for LCMA 3 lobster trap reductions, previously approved by the ASMFC under Addendum I. By approving Addendum II, the States have agreed to implement the first annual LCMA-specific gauge increases by December 31, 2001, and to implement the escape vent increase by 2003. In a letter dated February 13, 2001, the ASMFC recommended that NMFS implement complementary Federal measures for Federal waters of LCMAs 2, 4, 5, and the Outer Cape, as well as of LCMA 3 (comprising entirely Federal waters). -

Specifically, the minimum allowable harvest size of American lobster in state waters of LCMAs 2, 4, 5 and the Outer Cape is scheduled to increase from 3 1/4 inches (in) (8.26 cm) to 3 9/32 in (8.33 cm) in 2001, and to be increasing 1/32 in (0.08 cm) annually until 2004 to an ultimate minimum size of 3 3/8 in (8.57 cm). The ASMFC recommends that the gauge increases in Federal waters of LCMAs 2, 4, 5, and the Outer Cape, as well as of LCMA 3, follow this same schedule. If the egg production targets of the ISFMP have not been reached by 2004, ASMFC further recommends additional annual increases in LCMA 3 of 1/32 in (0.08 cm), until 2008, to an ultimate minimum size of 3 1/2 in (8.89 cm). The current minimum allowable harvest size for American lobster in all Federal waters is 3 1/4 in (8.26 cm). -

Under Addendum II, states will require all lobster traps to have at least one rectangular escape vent measuring 2 in (5.08 cm) by 5 3/4 in (14.61 cm) per trap, or at least two circular escape vents per trap, measuring 2 1/2 in (6.35 cm) in diameter. The ASMFC recommends that Federal regulations implement these new lobster trap escape vent size requirements in Federal waters. At the current time, Federal regulations require that all lobster trap gear have a rectangular portal with an unobstructed opening not less than 1 15/16 in (4.92 cm) by 5 3/4 in (14.61 cm); or two circular portals with unobstructed openings not less than 2 7/16 in (6.19 cm) in diameter. -

Also, Addendum II recommends that the lobster trap reduction schedule previously adopted by the ASMFC for LCMA 3 under Addendum I of Amendment 3 to the ISFMP be updated to account for the elapsed time between the two addenda. The updated LCMA 3 trap reduction schedule requires that each LCMA 3 trap allocation of greater than 1,200 lobster traps be reduced on a sliding scale basis over 4 years, not to fall below 1,200 lobster traps. LCMA 3 allocations of less than 1,200 lobster traps would remain at their initial qualifying level and not increase from that baseline number. No allocation would exceed 2,656 lobster traps during the first year of implementation. At the end of the fourth year, the maximum number of lobster traps allowed for any vessel would be 2,267. Under current Federal regulations, lobster trap fishing effort in LCMA 3 is restricted to a fixed maximum limit of 1,800 lobster traps per vessel. Implementation of the updated lobster trap reduction schedule for LCMA 3 is contingent upon Federal rulemaking procedures currently underway to address historical participation in the lobster trap fishery as recommended by the ASMFC in Addendum I. -

Addendum II, furthermore, recommends that NMFS require LCMA 3 lobstermen to maintain vessel logs to record lobster harvest. Current Federal regulations do not require vessel logs. Another component of the addendum includes a review of management measures in all LCMAs, by June 2001, to determine whether other measures are needed to achieve ISFMP stock rebuilding objectives. Any adjustments would be adopted by ASMFC as a separate addendum by January 2002, at which time ASMFC may recommend further changes to Federal regulations.

NMFS published an advance notice of proposed rulemaking (ANPR) in the Federal Register on May 24, 2001, (66 FR 28727) to seek public comment on whether NMFS, under the ACFCMA, should implement Addendum II’s revised egg production schedule in all EEZ areas throughout the range of the lobster resource and implement the associated management measures (gauge increases, modifications to lobster trap gear requirements and LCMA 3 lobster trap reduction schedule, and vessel log reporting requirement) in the Federal waters of the applicable LCMAs. -

A total of 16 comments were received on or before the deadline in response to the ANPR, submitted by 15 individual lobster trap fishermen and 1 representative of a lobster fishermen’s organization. Fifteen comments were received in favor of the recommended minimum gauge and escape vent size increases, one of which favored Area 3 gauge increases only up to a limit of 3 3/8″. One commenter was opposed to any minimum gauge or escape vent size increases. Eleven commented that they support the implementation of an accelerated lobster trap reduction schedule for Area 3, but three fishermen supported the current 1,800 trap cap in Area 3, while still allowing only vessels that qualify under a historical participation effort reduction program to participate in the Area 3 trap fishery. Several of the comments emphasized that the implementation of the Area 3 lobster trap reduction schedule is necessary in order to benefit the lobster resource, minimize gear conflicts, and decrease the chance of interactions between lobster gear and marine mammals. Fourteen of the comments received support the implementation of a mandatory logbook requirement in Area 3. -Federal lobster permit holders will be affected by actions resulting from the subsequent EIS if regulations that restrict further the minimum legal size of lobster, implement a revised lobster trap reduction schedule for LCMA 3, increase the escape vent size, and require logbooks are promulgated. Accordingly, NMFS requests public input on these issues to assist in conducting a comprehensive assessment of the impacts of these and other associated measures to the human and natural environment in the EIS.