Section 203 of the Immigration and Nationality Act (the Act) provides for the allocation of preference visas for both family and employment-based immigrants. The fourth preference employment-based category (EB-4) allows for the immigration of a variety of aliens who possess various specialized job skills or abilities. See section 203(b)(4) of the Act. The Act at section 101(a)(27) also offers definitions of the various jobs or professions that aliens must hold or possess in order to qualify for the EB-4 category.

On November 22, 2000, the President approved enactment of the Special Immigrant Status For Certain United States International Broadcasting Employees Act (IBE Act), Public Law 106-536. Section 1 of the IBE Act amends section 101(a)(27) of the Act by adding a new subparagraph (M). The amendment establishes a special fourth preference employment-based immigrant category for immigrants seeking to enter the United States to work as a broadcaster in the United States for the BBG or a BBG grantee. (Currently, BBG grantees are Radio Free Asia, Inc., and Radio Free Europe/Radio Liberty, Inc.) This interim rule is necessary to codify the provisions of the IBE Act and to put into place procedures for the BBG, its grantees and Service officers to follow.

The BBG and its grantees are charged by Congress to broadcast internationally on behalf of the United States Government. This requires that the BBG attract and retain a large number of foreign language broadcasters. These broadcasters must have the unique combination of native fluency in the broadcast language combined with an in-depth knowledge of the people, history, and culture of the broadcast area. Historically, the BBG has experienced difficulty in finding and employing members of the domestic workforce possessing this unusual combination of skills to meet the United States Government's international broadcasting needs.

By creating a new special EB-4 category, the IBE Act allows the BBG to directly petition for alien broadcasters. Being able to offer immigrant status to an alien broadcaster and his or her spouse and children may assist the BBG in fulfilling its obligation as the international broadcasting conduit for the United States Government.

Yes, the IBE Act plainly stipulates a yearly limit of 100 visas available to the BBG and its grantees for alien broadcasters. The accompanying spouse and children of alien broadcasters are not counted towards this yearly limit. See section 203(b)(4) of the Act.

In order for the BBG and its grantees to meet their Congressional charge of broadcasting internationally on behalf of the United States Government, the Service consulted with the BBG to identify what positions within the BBG or its grantees fall under the term “broadcaster.” To that end, this rule describes the term “broadcaster” as encompassing: reporters, writers, translators, editors, producers or announcers for news broadcasts; hosts for news broadcasts, news analysis, editorial and other broadcast features; or news analysis specialists. Technicians and other support personnel are not included in the definition since such positions do not call for the skills that prompted the new special immigrant category to be created. See 8 CFR 204.13(a).

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant has been designated as the appropriate petition for other fourth preference employment-based immigrant categories. The BBG and its grantees shall also use Form I-360 to petition for EB-4 alien broadcasters. See 8 CFR 204.13(c).

In addition to the information required on Form I-360, the interim rule at 8 CFR 204.13(d) requires the BBG or its grantee to submit an attestation that reflects the job title and a full description of the job to be performed and the experience held by the alien broadcaster, including the number of years, if any, the alien has been performing the duties that relate to the prospective position.

The Service is seeking public comments regarding all aspects of this interim rule. The Service welcomes suggestions concerning the information contained within this interim rule.

The Service's implementation of this rule as an interim rule, with provisions for post-promulgation public comments, is based on the “good cause” exceptions found at 5 U.S.C. 553(b)(B) and (d)(3). The reason and necessity for immediate implementation of this interim rule without prior notice and comment is that the new legislation became effective retroactive to enactment (October 1, 2000), and thus immediately requires the Service to establish a petitioning procedure for this new category of fourth preference employment-based immigrants. Issuing an interim rule allows the regulatory provisions to become effective and allows the BBG and its grantees to begin taking advantage of the new provisions without delay.

The Service notes that the BBG has been consulted and has been provided draft versions of this interim rule for review and comment. Comments and suggestions from this Government entity have been included in this rulemaking. The Service also notes that the amendment is clear that the BBG and its grantees are the only organizations that are eligible to take advantage of this new category of special employment-based immigrants. They are the only organizations that will be able to petition for this category of broadcasters.

The Commissioner has determined that because this rule establishes an immigrant preference category that only the BBG (an independent and autonomous Federal entity) can use, that public comment is unnecessary. Further, because the BBG broadcasts internationally on behalf of the United States, it would be contrary to the public interest to delay allowing the BBG to use this new congressionally-established preference category to more effectively carry out its public mission. Therefore, there is good cause for dispensing with the requirements of prior notice. However, the Service welcomes public comment on this interim rule and will address those comments prior to issuance of the final rule.

The Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that the rule will not have a significant economic impact on a substantial number of small entities. This interim rule provides a special process that benefits individuals who will be coming to the United States to work as broadcasters. It does not affect small entities as that term is defined in 5 U.S.C. 601(6).

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient Federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The supplemental evidence requirements contained in § 204.13(d) that must be submitted with the Form I-360 are considered information collections. Since this interim rule is effective 30 days from the date of publication in the Federal Register , the Service is using emergency review procedures for review and clearance by the Office of Management and Budget (OMB) in accordance with the Paperwork Reduction Act (PRA) of 1995.

The OMB approval has been requested by October 26, 2001. If granted, the emergency approval is only valid for 180 days. Comments concerning the information collection should be directed to: Office of Information and Regulatory Affairs, OMB Desk Officer for the Immigration and Naturalization Service, Office of Management and Budget, Room 10235, Washington, DC 20503.

During the first 60 days of this same period a regular review of this information will also be undertaken. Written comments are encouraged and will be accepted until December 10, 2001. Your comments should address one or more of the following points:

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

(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

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

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

The Service, in calculating the overall burden this requirement will place upon the public, notes that a maximum of 100 broadcasters may petition for these EB-4 visas annually. The Service also estimates that it will take broadcasters approximately 2 hours to comply with the new requirements as noted in this interim rule. This amounts to 200 total burden hours.

Organizations and individuals interested in submitting comments regarding this burden estimate or any aspect of this information collection requirement, including suggestions for reducing the burden, should direct them to: Immigration and Naturalization Service, Director, Policy Directives and Instructions Branch, 425 I Street NW., Room 4034, Washington, DC 20536.

The GVWP waives the nonimmigrant visa requirement for certain aliens who apply for admission as a nonimmigrant visitor for business or pleasure for the sole purpose of visiting Guam for a period not exceeding 15 days.

The Omnibus Territories Act of 1986, Public Law 99-396, provided statutory authority to implement the GVWP. On December 18, 1987, the Service published a final rule in the Federal Register at 52 FR 48082, implementing the provisions of Public Law 99-396. The final rule also designated several countries including Burma to the list of countries authorized to participate in the GVWP.

For a country to participate in the GVWP:

• The Attorney General, Secretary of State, and Secretary of Interior, acting jointly, after consultation with the Governor of Guam, must designate the country for the GVWP;

• The country must have a nonimmigrant visa refusal rate of 16.9 percent or less or have an established pre-inspection or pre-clearance program pursuant to a bilateral agreement with the United States;

• The country must be in geographical proximity to Guam, unless the country has a substantial volume of nonimmigrant travel to Guam and extends reciprocal privileges to citizens of the United States;

• The Department of State must not have designated the country as being of special humanitarian concern; and

• The waiver of a nonimmigrant visa must pose no threat to the welfare, safety, or security of the United States, its territories, or commonwealths.

The Commissioner shall immediately remove a country from the GVWP if he or she determines that the program country poses a potential threat to the welfare, safety, or security of the United States (including enforcement of the immigration laws of the United States).

• The Service consulted with the Department of Justice, the Department of State, the Department of Interior, and the Governor of Guam and determined that Burma no longer met the eligibility requirements for participating in the GVWP;

• Although Congress intended to limit the GVWP to short-term visitors to Guam, in the first quarter of fiscal year 2001, the Agana Port-of-Entry experienced an increasing number of Burmese GVWP applicants for admission who require administrative proceedings. Consequently, the Service expended disproportionate resources in order to process Burmese travelers to Guam. These expenditures created significant obstacles for the orderly enforcement of the U.S. immigration laws in Guam, including extended wait times for arriving travelers seeking to enter Guam;

• The refusal rate for Burmese applicants for visitor's visas exceeded 40 percent during the 4-year period between 1996 and 1999;

• The United States has not established a pre-inspection or pre-clearance program in Burma;

• Burma is a country in economic and political turmoil;

• Despite multiparty elections in 1990 that resulted in a decisive victory for the main opposition party, the military junta ruling Burma has refused to relinquish power; and

• Burma lacks the will and ability to effectively participate in the anti-drug effort.

On January 3, 2001, the Service published an interim rule in the Federal Register at 66 FR 235. This interim rule amended the Service's regulations by removing Burma (internationally recognized as the Union of Myanmar) from the list of countries authorized to participate in the Guam Visa Waiver Program (GVWP). The Service provided the public with a 60-day comment period that ended March 5, 2001. The Service has not received any comments from the public. Accordingly, the Service is adopting the interim rule as a final rule without change.

The Acting Commissioner of the Immigration and Naturalization Service, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Burmese nationals who wish to travel to Guam temporarily for legitimate business or pleasure purposes will still be permitted to visit Guam, if, prior to their journey, they acquire a nonimmigrant visa at a U.S. Embassy or consulate. This rule furthers the law enforcement and national security interests of the United States without significantly restricting legitimate travel to Guam. It does not affect small entities as that term is defined in 5 U.S.C. 601(6).

This rule is not considered by the Department of Justice, Immigration and Naturalization Service, to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and the Office of Management and Budget has waived its review process under section 6(a)(3)(A).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1-year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The Nuclear Regulatory Commission received a petition for rulemaking dated November 2, 1995, submitted by Portland General Electric Company. The petition was docketed as PRM-72-2 and published in the Federal Register , with a 75-day comment period, on February 1, 1996 (61 FR 3619).

The petitioner requested that the NRC amend 10 CFR part 72 to add the authority to store radioactive waste that exceeds the concentration limits of radionuclides established for Class C waste in 10 CFR 61.55. 1 This radioactive material is commonly referred to as “Greater than Class C” waste or GTCC waste. GTCC waste is generally unsuitable for near-surface disposal as low-level waste (LLW), even though it is considered as LLW. Section 61.55(a)(2)(iv) requires that this type of waste be disposed of in a geologic repository unless approved for an alternative disposal method on a case-specific basis by the NRC.

The petitioner is an NRC-licensed utility responsible for the Trojan Nuclear Plant (Trojan). In the petition, the petitioner anticipated that it would need to dispose of GTCC waste during decommissioning. The decommissioning plan discussed the transfer of spent reactor fuel being stored in the spent fuel pool, to an onsite Independent Spent Fuel Storage Installation (ISFSI) licensed under 10 CFR part 72. The petitioner requested that 10 CFR part 72 be revised to permit GTCC waste to be stored at the ISFSI pending transfer to a permanent disposal facility. The petitioner suggested that because the need to provide interim storage for GTCC waste is not specific to Trojan, but is generic, the regulations in 10 CFR part 72 should be amended to explicitly provide for storage of GTCC waste in a licensed ISFSI. 2

The petitioner stated that storage of GTCC waste under 10 CFR part 72 would ensure safe interim storage. This storage would provide for public health and safety and environmental protection as required for spent fuel located at an ISFSI or spent fuel and high-level waste stored at a Monitored Retrievable Storage Installation (MRS).

The specific changes proposed in the petition would explicitly include interim storage of GTCC waste within the Purpose, Scope, and Definitions sections of 10 CFR part 72, thereby enabling licensees to manage GTCC waste generated or used by commercial nuclear power plants in a manner similar to that for spent nuclear fuel. The revised definitions would only apply to the interim storage of GTCC waste under the authority of 10 CFR part 72.

With this final rule, the petition is granted in part and denied in part. This rule will grant the petitioner's request to authorize GTCC waste storage under a 10 CFR part 72 license, but as discussed later, uses a different approach.

The notice of receipt of the petition for rulemaking invited interested persons to submit written comments concerning the petition. The NRC received six comment letters. Five comment letters were received from nuclear facilities and one from the Nuclear Energy Institute (NEI). NEI provided another letter on this subject directly to the NRC Chairman on February 2, 1999, and the NRC responded on March 25, 1999. The comments were reviewed and considered in the development of NRC's decision on this petition. These comments are available in the NRC Public Document Room.

All six commenters supported the petition. Two of the commenters (Sacramento Municipal Utility District and Yankee Atomic Electric Company) are currently decommissioning their reactors.

As a result of the petition and the comment letters, the NRC developed a draft rulemaking plan to further consider the development of a rule that would meet the intent of the petition. In SECY-97-056, dated March 5, 1997, the NRC staff provided a draft rulemaking plan to the Commission outlining a rule that would modify 10 CFR part 72 to allow storage of material, which when disposed of would be classified as GTCC waste, under the authority of 10 CFR part 72 using the performance criteria of this part. As discussed in this draft rulemaking plan, licensees are currently authorized to store GTCC waste under the regulations in 10 CFR part 30 and/or part 70. Therefore, the draft rulemaking plan discussed adding an option to store GTCC waste under 10 CFR part 72 while maintaining the existing option to store this waste using the authority of 10 CFR parts 30 and 70. This plan was sent to the Agreement States for their comments on April 18, 1997. Five States provided comments—Illinois, Maine, New York, Texas, and Utah.

The draft rulemaking plan described how an ISFSI or an MRS might be regulated by both the NRC and an Agreement State (this is discussed in more detail in the Discussion section). The draft rulemaking plan did not require that the licensing jurisdiction for GTCC waste remain with NRC, but did suggest that Agreement States could voluntarily relinquish their licensing authority for GTCC waste stored at an ISFSI. The draft rulemaking plan specifically requested Agreement State input relative to their likelihood of voluntarily relinquishing their authority for licensing when an ISFSI or an MRS is used for storing GTCC waste.

One State supported the concept. Three States indicated that they were opposed to voluntarily relinquishing their authority and preferred to maintain their licensing authority for GTCC waste. One doubted that inefficiencies would result from Agreement State jurisdiction over GTCC waste at a reactor site concurrent with NRC regulation of spent fuel remaining at the site. The commenter noted that similar situations already exist when LLW is stored at the site. A second noted that there “* * * have been many instances where an agreement state and NRC have effectively collaborated in the regulation of a single facility.” A third noted that the NRC recently informed the States that they could voluntarily relinquish their authority for sealed sources and devices and that it was “* * * vehemently opposed to any rule that automatically usurps a State's licensing authority without the State's consent.”

The NRC published the proposed rule, “Interim Storage for Greater than Class C Waste” in the Federal Register on June 16, 2000 (65 FR 37712). The NRC received 18 comment letters on the proposed rule. These comments and responses are discussed in the “Comments on the Proposed Rule” section.

Current NRC regulations are silent on the acceptability of storing reactor-related GTCC waste co-located at an ISFSI or an MRS. Co-location is the storage of spent fuel with other radioactive material in their respective separate containers. This situation has created confusion and uncertainty on the part of decommissioning reactor licensees and may create inefficiency and inconsistency in the way the NRC handles GTCC waste licensing matters.

The NRC believes that decommissioning activities at commercial nuclear power plants will generate small volumes of GTCC waste relative to the amount of spent fuel that exists at these sites. GTCC waste exceeds the concentration limits of radionuclides established for Class C in §§ 61.55(a)(3)(ii), 61.55(a)(4)(iii), or § 61.55(a)(5)(ii). GTCC waste is not generally acceptable for near-surface disposal at licensed low-level radioactive waste disposal facilities. Currently there are no routine disposal options for GTCC waste.

In general, reactor-related GTCC wastes can be grouped into two categories. The first, which is the more typical form, is activated metals components from nuclear reactors such as core shrouds, support plates, nozzles, core barrels, and in-core instrumentation. The second is process wastes such as filters and resins resulting from the operation and decommissioning of reactors. In addition, there may be a small amount of GTCC waste generated from other activities associated with the reactor's operation (e.g., reactor start-up sources). GTCC waste may consist of either byproduct material or special nuclear material.

The Low-Level Radioactive Waste Policy Amendments Act of 1985 gave the Federal Government (U.S. Department of Energy (DOE)) the primary responsibility for developing a national strategy for disposal of GTCC waste. The Act also gave the NRC the licensing responsibility for a disposal facility for GTCC waste. Until a disposal facility is licensed, there is a need for interim storage of GTCC waste.

Currently, 10 CFR part 50 licensees (Domestic Licensing of Production and Utilization Facilities) are authorized to store all types of reactor-related radioactive materials, including material that, when disposed of, would be classified as GTCC waste. The GTCC waste portion is currently being stored either within the reactor vessel, in the spent fuel pool, or in a radioactive material storage area, pending development of a suitable permanent disposal facility.

The authority to license the possession and storage of GTCC waste is contained within 10 CFR part 30 for byproduct material and in 10 CFR part 70 for special nuclear material. Under 10 CFR 50.52, the Commission may combine multiple licensable activities of an applicant that would otherwise be licensed individually in single licenses. Thus, the 10 CFR part 50 license authorizing operation of production and utilization facilities currently includes, within it, the authorization to possess byproduct and special nuclear material that would otherwise need to be separately licensed under 10 CFR parts 30 or 70.

Under the current regulations, before the 10 CFR part 50 licensee can terminate its 10 CFR part 50 license, the licensee must transfer all of its spent fuel to another licensed facility; typically an ISFSI for storage or to a geologic repository for disposal. The ISFSI can be either at the reactor site under a specific 10 CFR part 72 license, or at an away-from-reactor site. The general license issued under 10 CFR 72.210 would terminate when the 10 CFR part 50 license is terminated. Because the 10 CFR part 72 general license would be terminated coincident with the termination of the 10 CFR part 50 reactor license, the licensee must have a 10 CFR part 72 specific license in order to continue to store spent fuel in an ISFSI located at the reactor site. Under a 10 CFR part 50 license, a reactor licensee undergoing decommissioning can store GTCC waste at its site based on the authority of the 10 CFR parts 30 and 70 license conferred to reactor licensees. However, the 10 CFR parts 30 and 70 licenses incorporated within the 10 CFR part 50 license are also terminated when the 10 CFR part 50 license is terminated. Consequently, termination of the 10 CFR part 50 license would require the licensee to either obtain a 10 CFR part 30 or 70 license to store any reactor-related GTCC waste, or transfer the GTCC waste to a geologic repository for disposal.

The NRC's current understanding of industry's approach to reactor decommissioning indicates that many reactor licensees currently undergoing decommissioning, as well as those considering future plans for decommissioning, may or may not pursue early termination of their 10 CFR part 50 license, for a variety of reasons. Consequently, with retention of the 10 CFR part 50 license, licensees also will retain the 10 CFR part 72 general license and their incorporated 10 CFR parts 30 and 70 licenses (i.e., the authority to store reactor-related GTCC waste under the 10 CFR part 50 license). However, the NRC believes that some licensees may wish to have the option of early termination of their 10 CFR part 50 license (and thus the 10 CFR part 72 general license). In that case, the issue of storage of reactor-related GTCC waste under a 10 CFR part 72 specific license which was identified in the proposed rule is still valid. The NRC continues to believe that storing reactor related GTCC waste either under a 10 CFR part 50 license or under a 10 CFR part 72 specific license provides an adequate level of protection of public health and safety. Accordingly, the NRC is issuing this final rule to provide reactor licensees with flexibility in selecting a regulatory approach to storing reactor-related GTCC waste. This final rule maintains Federal jurisdiction over reactor-related GTCC waste under either approach.

The changes in this rulemaking will allow 10 CFR part 72 specific licensees to co-locate reactor-related GTCC waste within an ISFSI or an MRS. Applicants for a specific license to store reactor-related GTCC waste will be required to provide a Safety Analysis Report (SAR) describing their programs that will (1) ensure that adequate protective measures are in place to ensure safe storage within the ISFSI or MRS, and (2) ensure that the co-location of this radioactive material will not have an adverse effect on the safe storage of spent fuel and the operation of the ISFSI or MRS. Safe storage of GTCC waste will be governed by the provisions of 10 CFR parts 20 and 72 and applicable guidance that is being developed in conjunction with this rule. Based on an acceptable review of the SAR, the NRC would issue a 10 CFR part 72 specific license. Current 10 CFR part 72 specific license holders would be required to submit a similar application to amend their 10 CFR part 72 licenses if they desire to store GTCC waste at their ISFSIs.

In developing the rule, the NRC was cognizant of both potential DOE disposal criteria for GTCC waste (to preclude allowing a storage option that is unacceptable for disposal) and potential adverse interactions between spent fuel and various types of GTCC waste. The NRC believes that properly addressing potential adverse conditions from commingling spent fuel with certain types of GTCC waste presents significant safety and technical issues. In addition, because the DOE has not yet identified criteria for a disposal package, the NRC is concerned that storage of GTCC waste and spent fuel in the same container may be unacceptable for placement in the geologic repository. Therefore, the rule precludes the commingling of GTCC waste and spent fuel, except on a case-by-case basis, because the NRC desires to formulate regulations that both reduce radiological exposure and costs associated with repackaging the spent fuel and GTCC waste into two separate containers for disposal. Note that this in no way changes the current NRC and industry practice of allowing the commingling of spent fuel and certain specific components associated with, and integral to, spent fuel (e.g., burnable poison rod assemblies, control rod elements, and thimble plugs). See the responses to comments 3 and 10 in the Comments on the Proposed Rule section for more specific information. In support of this rulemaking, the NRC is developing Interim Staff Guidance for NRC staff and licensee use in utilizing 10 CFR part 72 storage criteria for various GTCC waste types.

This rule also precludes storage of liquid GTCC waste under 10 CFR part 72. However, there are alternatives for a 10 CFR part 50 licensee that desires to terminate its license yet still possesses liquid GTCC waste. These alternatives include the licensee's submission of an application for a 10 CFR part 30 or 70 license, with the appropriate conditions for storage of liquid GTCC waste.

The Commission sought input from stakeholders on various technical topics associated with the storage of GTCC waste. The stakeholders input and NRC's responses are contained in the Comments on the Proposed Rule section. The Commission considered these comments in the development of the final rule.

The NRC is amending 10 CFR parts 30, 70, 72, and 150. The changes to these parts are necessary to allow the interim storage of NRC-licensed reactor-related GTCC waste within an ISFSI or an MRS and to require that the licensing responsibility for this waste remain under Federal jurisdiction. This action addresses only GTCC waste used or generated by a commercial power reactor licensed under 10 CFR part 50 (i.e., not a research reactor) and does not include any other sources of GTCC waste, nor does it include other forms of LLW generated under a 10 CFR part 50 license. Because reactor-related GTCC waste is initially under Federal jurisdiction while the reactor facility is operated and the ultimate disposal of GTCC waste also is under Federal jurisdiction, the NRC believes that the interim period between termination of a reactor license and ultimate disposal also should remain under Federal jurisdiction. GTCC waste could become eligible for disposal in a geologic repository in the future. Spent fuel can be stored in an ISFSI or an MRS pending ultimate disposal. This Federal jurisdiction is unlike the Federal or Agreement State jurisdiction for the storage of Class A, B, and C reactor-related LLW that are currently being disposed in LLW disposal sites regulated by Agreement States. In addition, the storage time for Class A, B, and C LLW is expected to be short in comparison to the relatively long-term interim storage of GTCC waste. Therefore, for efficiency and consistency of licensing, the NRC concludes that 10 CFR part 72 should also be modified to allow the storage of GTCC waste within these facilities under exclusive NRC jurisdiction. A regulatory scheme which would allow for Federal jurisdiction over the generation of the GTCC waste, followed by State jurisdiction for interim storage, followed again by Federal jurisdiction over the disposal of GTCC waste, is an inefficient approach, that could lead to inconsistent regulation. Moreover, it is inefficient for NRC to spend scarce resources to license and inspect an ISFSI that stores spent fuel and for a State to spend scarce resources to license and inspect the same ISFSI for co-located GTCC waste. The NRC requested Agreement State input on ways in which Agreement States, if permitted to take jurisdiction over reactor-related GTCC waste, would ensure consistency with a national regulatory scheme. Only two States responded to this request. Though both States asserted that their programs would be compatible with Federal regulations, neither said that their programs would be identical. Indeed, one State argued that each State program should be evaluated on its own. The States have rightly pointed out that States have already developed regulatory programs for Class A, B, C, and non-reactor GTCC waste that adequately protect health and safety. The issue, however, is whether a regulatory scheme that would call for back and forth federal jurisdiction over reactor-related GTCC waste, and multiple States' jurisdiction over the same waste in between, promotes a reasonably predictable and stable regulatory environment. In NRC's view, the better reading of the applicable statutes is that reactor-related GTCC waste deserves special treatment, especially because of Federal responsibility for disposal of such waste, and it should be set apart from other waste and be subject to exclusive Federal jurisdiction over the storage of reactor-related GTCC waste. 10 CFR parts 30, 70, and 150 require conforming changes.

In the section, “NRC to Maintain Authority for Reactor-Related GTCC Waste,” the Commission provides the regulatory basis upon which the NRC has determined that jurisdiction for storage of reactor-related GTCC waste will remain with the NRC. (Also see comment number 15.)

This final rule will allow storage of reactor-related GTCC waste under a 10 CFR part 72 specific license. The changes will modify 10 CFR part 72 to allow storage of GTCC waste under this part using the appropriate criteria of 10 CFR part 72. This will provide a more efficient means of implementing what is essentially already permitted by the regulations (storage of GTCC waste co-located at an ISFSI or an MRS). When storing GTCC waste within an ISFSI or MRS, the licensee or applicant must provide a description of its program that ensures the storage of the GTCC waste will not have an adverse effect on the ISFSI or MRS or on public health and safety and the environment.

The rule will not eliminate the current availability of storing GTCC waste under the authority of a 10 CFR part 30 or 70 license. However, neither 10 CFR parts 30 nor 70 include explicit criteria for storage of GTCC waste. Therefore, a licensing process conducted under 10 CFR parts 30 or 70 regulations would be more resource intensive because the licensee would need to develop new proposed storage criteria. If the licensee decides to obtain a 10 CFR part 30 or 70 license, the NRC will still maintain Federal jurisdiction over the reactor-related GTCC waste stored under 10 CFR parts 30 and 70.

Comparing these two approaches, the NRC recognizes that the licensing process will be simpler with less regulatory burden if all the radioactive waste to be stored at an ISFSI or MRS is stored under the authority of one 10 CFR part 72 license. The regulations in 10 CFR part 72 were developed specifically for storage of spent fuel at an ISFSI and spent fuel and high-level waste at an MRS. Appropriate 10 CFR part 72 criteria will be applied to GTCC waste storage. Under 10 CFR parts 30 and 70, GTCC waste criteria would need to be developed on a case-by-case basis to support licensing under these parts. Also, using 10 CFR part 72 to store reactor-related GTCC waste would eliminate the need for multiple licenses for the storage of spent fuel and GTCC waste.

The NRC has evaluated the technical issues arising from the commingling of spent fuel and reactor-related GTCC waste in the same storage container, and issues arising from the storage of reactor-related liquid GTCC waste, under a 10 CFR part 72 specific license. This final rule will permit the co-locating of spent fuel and solid reactor-related GTCC waste in different casks and containers within an ISFSI or MRS. However, the rule will not permit the commingling of spent fuel and GTCC waste in the same storage cask except on a case by case basis. The rule does not change the current practice of storing specific components associated with, and integral to, the spent fuel with spent fuel. Additionally, the rule will not permit the storage of liquid reactor-related GTCC waste.

Without this change, prior to termination of the 10 CFR part 50 license, a licensee would need to obtain multiple licenses to continue to store spent fuel and GTCC waste—10 CFR part 72 for spent fuel and 10 CFR part 30 or 70 (or both) for GTCC waste. Having one license for the ISFSI (or MRS) under 10 CFR part 72 will be simpler for both licensees and the NRC.

The NRC believes that the concept proposed in the petition of storing GTCC waste under the provisions of 10 CFR part 72 is valid. However, the NRC also concludes that the method proposed by the petitioner, that is modifying the definition of spent fuel to include GTCC waste, could lead to confusion and inefficiency. If GTCC waste is defined as spent fuel, DOE would be required to dispose of this waste in a deep geologic repository and would not have the flexibility to explore potentially more efficient disposal plans. The proposal could also require that GTCC waste use limited disposal space meant for wastes that require more stringent confinement.

Therefore, the NRC is adding a definition of GTCC waste within § 72.3 that will be consistent with 10 CFR 61.55. The NRC has evaluated 10 CFR part 72 to determine which sections need to be modified to accommodate storage of separate containers of solid GTCC waste co-located with spent fuel within an ISFSI or an MRS. The majority of the changes to 10 CFR part 72 will simply add the term “GTCC waste” to the appropriate sections and paragraphs (typically immediately after the terms “spent fuel” or “high-level waste”). In support of this rulemaking, the NRC is developing Interim Staff Guidance for NRC staff and licensee use in applying 10 CFR part 72 storage criteria for various GTCC waste types.

The regulations in 10 CFR part 150 are being modified to be consistent with the changes in 10 CFR part 72. The change to 10 CFR part 150 (Exemptions and Continued Regulatory Authority in Agreement States and in Offshore Waters Under Section 274) will specify that any GTCC waste stored in an ISFSI or an MRS is under NRC jurisdiction. 10 CFR part 150 also is being modified to indicate that licensing the storage of any GTCC waste that originates in, or is used by, a facility licensed under 10 CFR part 50 (a production or utilization facility) is the responsibility of the NRC.

The NRC has made changes to the final rule based on public comments (see the Response to Public Comments section) and has also determined (not based on public comments) that additional sections within 10 CFR part 72 needed to be removed or modified.

A public comment resulted in the recognition of the need to modify 10 CFR parts 30 and 70 to provide exceptions to the requirements in these parts when the GTCC waste is being stored under the provisions of 10 CFR part 72. Without these changes, licensees would need 10 CFR part(s) 30 and/or 70 licenses in addition to the 10 CFR part 72 license. Other comments resulted in clarification of the preamble and § 72.120 with regard to the commingling of material that is associated with spent fuel assemblies.

In addition, during the review of comments, NRC staff identified the need for several clarifications in the final rule that are not specifically based on public comments. The clarifying changes that NRC made are: § 72.2(a) regarding power reactor-related GTCC waste is being modified to clarify that GTCC waste does not have to be stored in a complex that is designed and constructed specifically for storage of spent fuel; the definition in § 72.3 of “spent fuel cask or cask” in the proposed rule is being withdrawn to eliminate an unnecessary storage requirement; § 72.6 is being revised to indicate clearly that reactor-related GTCC waste, if stored under 10 CFR part 72, can only be stored under the provisions of a 10 CFR part 72 specific license; § 72.24(r) in the proposed rule is being removed for consistency with 10 CFR part 50's handling of radioactive material; § 72.40(b) in the proposed rule is being revised to correct an error (the proposed rule inadvertently removed existing text instead of adding a new introductory sentence) and to remove reference to the Atomic Safety and Licensing Appeal Board, which no longer exists; and §§ 72.72, 72.76, and 72.78 are being modified to clarify the reporting requirements for special nuclear material as specified in 10 CFR 74.13(a)(1).

In a previous final rulemaking, “Clarification and Addition of Flexibility” (65 FR 50606; August 21, 2000), changes were made to 10 CFR part 72. Section 72.140(c)(2) is the only section that is changed in both the previous and current rulemaking. The changes to this section in the current rulemaking are consistent with the “Clarification” rulemaking changes.

The NRC will continue to recover costs for generic activities related to the storage of GTCC waste under 10 CFR part 72 by means of annual fees assessed to the spent fuel storage/reactor decommissioning class of licensees under 10 CFR part 171. Subsequent to issuing the final revision to 10 CFR part 72, 10 CFR part 170 will be amended to clarify that full cost fees will be assessed for amendments and inspections related to the storage of GTCC waste under 10 CFR part 72.

Under section 274 of the Atomic Energy Act of 1954 (AEA), Agreement States possess regulatory authority over radioactive waste only where the Commission has relinquished its pre-existing authority. Section 274 agreements cannot be understood as a general matter to relinquish Commission authority over reactor-related GTCC waste. These wastes are integrally related to the operation of reactors, because these wastes consist for the most part of activated metal reactor components such as core shrouds, support plates, nozzles, core barrels, and in-core instrumentation. When, under the section 274 program, the Commission reaches agreements with States and relinquishes regulatory jurisdiction to them, the Commission specifically retains authority over the “operation” of reactors, as required by an NRC rule promulgated nearly 40 years ago. See 10 CFR 150.15(a)(1). That rule defines “operation” as follows:

In short, NRC concludes that a State entering a section 274 Agreement with the NRC does not (and cannot) acquire regulatory authority over reactor-related GTCC waste. Contrary to the view of a commenting State, issuance of a final rule asserting ongoing NRC jurisdiction over reactor-related GTCC waste does not take back previously-granted State authority or terminate an NRC-State agreement without abiding by the process set out in section 274(j) of the AEA. Nothing in the AEA, in NRC rules, or in NRC agreements with any of the commenting States even mentions reactor-related GTCC waste, let alone discontinues NRC jurisdiction over it. Hence, the Commission's decision in this rulemaking to exercise ongoing jurisdiction over this form of waste does not violate any provision of law.

Specifically, with regard to the storage of reactor-related GTCC waste, the NRC will continue Federal authority over the GTCC waste after termination of the 10 CFR part 50 license. Thus, under the option of obtaining 10 CFR part 30 and/or 70 licenses, the GTCC waste will remain under Federal authority. If the option of obtaining a specific license under 10 CFR part 72 is chosen, the GTCC waste will also remain under Federal authority. This licensing authority will be irrespective of the physical location of the storage facility (either on or off the originating reactor site).

However, this rule does not affect the States' long-standing practice of exercising regulatory jurisdiction over non-GTCC low-level radioactive waste originally generated at reactors, or over GTCC waste generated by materials licensees regulated by Agreement States. However, under 10 CFR 72.128(b), any LLW generated by the ISFSI (or an MRS) must be treated and stored onsite awaiting transfer to a disposal site. The licensing authority for treatment and storage of ISFSI or MRS generated LLW would be under 10 CFR part 72, and therefore, reserved to the NRC.

For a more detailed discussion of jurisdictional issues, please see the responses to comments 15, 16, and 17.

This analysis presents a summary of the comments received on the proposed rule, the NRC's response to the comments, and changes made to the final rule as a result of these comments.

The NRC received 18 comment letters. Five were from Agreement States (South Carolina, Illinois, Utah, New York, and Maine), ten from industry (including the Portland General Electric Company, the petitioner, and the Nuclear Energy Institute), one from the Department of Energy (DOE), one from a private citizen, and one from a consulting firm.

In general, none of the commenters were opposed to the idea of storing reactor-related GTCC waste in an Independent Spent Fuel Storage Installation licensed under the provisions of 10 CFR part 72. However, four of the Agreement State commenters were opposed to restricting the licensing authority solely to the NRC and believe that NRC is not correctly interpreting the Atomic Energy Act. Utah is opposed to applying NRC sole jurisdiction to “away-from-reactor ISFSIs” because the State believes it could likely end up with GTCC waste indefinitely stored within its borders with no disposal option. South Carolina and New York believe the NRC and the State can effectively collaborate in the regulation of a single facility. Maine believes the rulemaking should be reconsidered because it is not advisable to allow the commingling of spent fuel and GTCC waste. The industry, DOE, the private citizen, and the consulting firm all generally supported the rulemaking and some provided specific recommendations to improve the final rule.

The NRC, in the proposed rule, invited comments on (1) six specific topics dealing with safety, technical or licensing issues for the storage of GTCC waste and (2) three specific questions for Agreement State consideration. The comments on the proposed rule are generally contained within four categories. The first category contains general comments, followed by comments on commingling GTCC waste and spent fuel (these are mostly the comments identified in number 1 above), followed by State issues (these are mostly the comments identified in number 2 above), and then other comments.

1. Support of the proposed rule (or support of the comments submitted by the Nuclear Energy Institute (NEI)).

Comment: Thirteen of the 18 commenters provided specific comments in support of the concept of the proposed rule to store GTCC waste in an ISFSI. One of the supportive commenters was NEI, representing the industry, and three commenters also endorsed NEI's comments. As an example, one commenter noted that it had been actively involved with NEI on this issue and fully endorsed NEI's comments on behalf of the industry. The commenter specifically agreed with NRC's proposal to retain regulatory authority over GTCC waste during the interim period between reactor shutdown and prior to disposal. The commenter noted that there is no benefit to public safety and there is only a burden placed upon public resources to have regulatory authority shift to State authorities during this time.

Another industry commenter stated that it supports NRC's proposed rulemaking and encouraged the NRC to continue the development of a rule which is prudent, practical, reasonable and consistent to ensure that the interim storage for GTCC waste is fair and equitable to all involved stakeholders. The commenter noted that the proposed rulemaking will: (1) Clarify NRC's handling of GTCC licensing, (2) be simpler, (3) result in less regulatory burden on licensees, (4) continue to consider the need to protect public health and safety, and (5) allow these waste streams to be stored in an ISFSI or an MRS under the authority of one 10 CFR part 72 license.

Response: Since these comments support the rulemaking, no response is necessary.

2. Flexibility.

Comment: An industry commenter believes that flexibility to manage GTCC waste using other methods than 10 CFR part 72 is in the best interest of public safety. The commenter noted that GTCC waste has been approved, on a case-by-case basis, for disposal at licensed LLW disposal facilities and believes this practice should be allowed to continue.

Response: This rulemaking concerns only the storage of GTCC waste. However, see the response to comment numbers 15 and 17 for additional information regarding GTCC waste disposal.

3. Definition of spent fuel and GTCC waste.

Comment: Two industry commenters believe the definition of GTCC waste should be changed. One commenter believes it should be defined as spent fuel, as recommended in the petition, and the other believes it should be defined as high-level waste. In either case, the commenters believe this change would simplify disposal.

Three commenters, including DOE and NEI, note that the definition of spent fuel includes the special nuclear material, byproduct material, source material, and other radioactive materials associated with fuel assemblies (i.e., the non-fuel components associated with those fuel assemblies). See 10 CFR 72.3. Non-fuel components may be included as part of the spent fuel delivered for disposal under the “Standard Contract for Disposal of Spent Nuclear Fuel and/or High-Level Radioactive Waste.” See 10 CFR 961.11, Appendix E, B.2. The Standard Contract includes as non-fuel components, but is not limited to: control spiders, burnable poison rod assemblies, control rod elements, thimble plugs, fission chambers, primary and secondary neutron sources that are contained within the fuel assembly, and BWR channels that are an integral part of the fuel assembly. These same non-fuel components will ultimately be disposed of in the Federal repository in accordance with the Standard Contract. The commenters believe that the definition of reactor-related GTCC waste is unclear in that it might be seen to include those non-fuel components. The commenters believe that reactor-related GTCC waste should be limited to items such as reactor internals, filters, and resins.

The commenters further state that the rule should clearly state that a licensing basis is being proposed for storage of both categories of material, spent fuel associated material and reactor-related GTCC waste in an ISFSI or an MRS under Federal jurisdiction. The commenters believe that without this clarification the rule could be misinterpreted to impose new requirements for licensees to demonstrate that non-fuel components also meet the radiological classification of GTCC waste as a condition of storage.

Response: The NRC believes, at this time, that defining all GTCC waste as spent fuel or high-level waste for use in 10 CFR part 72 could lead to confusion and inefficiency. If GTCC waste is defined as spent fuel or high-level waste, DOE would be required to dispose of this waste in a deep geologic repository (e.g., Yucca Mountain) and would not have the flexibility to explore potentially more efficient disposal plans. This definition could also require that GTCC waste use limited disposal space meant for wastes that require more stringent confinement.

The commenters noting that the definition of spent fuel in 10 CFR 72.3 includes associated materials are correct. The NRC never intended to classify such material as GTCC waste. The proposed rule did not make it clear that, if this material were separated from the spent fuel, some of it might be GTCC waste. However, it is not deemed to be GTCC waste when it is placed within a spent fuel cask with the associated fuel assemblies. The NRC currently allows the storage of this material with spent fuel and this rulemaking will not make any change to this practice.

Accordingly, the final rule is modified as follows: The NRC has clarified that the material associated with spent fuel assemblies is not GTCC waste and currently can and will continue to be allowed to be stored with spent fuel. The clarifications are being made within the preamble and §§ 72.120(b), (c), and (e) have been modified to clarify what can and cannot be stored with spent fuel. In addition, the NRC is developing Interim Staff Guidance that will provide additional information for the NRC staff and licensees in determining which materials are associated with spent fuel.

4. Proposed rule is premature.

Comment: A State commenter believes that the rulemaking is premature and not within the spirit or letter of the Administrative Procedure Act because the proposed rule contains no separate design criteria for GTCC waste storage containers and reflects an expectation that the applicant will ensure that the co-location of GTCC waste does not adversely affect the safe storage of spent fuel and the operation of the ISFSI. The proposed rule solicited input on a number of issues, such as commingling, performance criteria, and the scope of material subject to the rule. Therefore, the commenter believes that the proposed rule is still in the beginning stages as there are significant decisions relating to technical, safety, and performance criteria yet to be made. In the commenter's view, the NRC should be soliciting comments on an explicit proposal. The commenter also believes that the NRC is seeking a way to make it financially more attractive for utilities to store GTCC waste after decommissioning and, in part, to solicit information from DOE on its GTCC disposal policies.

Response: The Commission does not agree that this rulemaking is “premature and not within the spirit or the letter of the Administrative Procedure Act.” In addition, this rulemaking responds to a petition for rulemaking submitted by Portland General Electric Company (PRM-72-2). The proposed rule provided a complete regulatory proposal and a set of questions for the purpose of soliciting additional information that would help form the basis for the final rule. We have received and reviewed all comments and thus have gained the additional information needed to finalize the Statement of Considerations and rule. Through this process, the public has had an adequate opportunity to respond.

Based on public comments, the Commission has developed a final rule which is quite similar to the proposed rule. Changes made within the final rule clarify and correct inadvertent errors within the proposed rule, but do not make any fundamental changes in how the NRC proposed to license the storage of reactor-related GTCC waste in the proposed rule. The final rule addresses and responds to the issues raised by the commenters. The Commission does not anticipate any further rulemaking on the storage of reactor-related GTCC waste unless; (1) based on discussions with DOE and others, changes to the definition of GTCC waste are made, or (2) DOE develops disposal criteria for GTCC waste that would require corresponding changes.

5. General license versus specific license.

Comment: An industry commenter believes the wording in 10 CFR 72.40(b) must be revised. As written, the application to convert a general license to a specific license for an existing ISFSI would be denied. As proposed, it would deny a license if construction on the facility begins before a finding approving issuance of the license with any appropriate conditions to protect environmental values. The ISFSI licensed under 10 CFR 72.210, a general license, is very likely to have been designed, constructed, and operated for years prior to the need to apply for a specific license. The commenter also believes the rule should clearly indicate which sections apply to a general license and which do not. The rule should provide for the storage of GTCC waste at an ISFSI for both general and specific licenses until the 10 CFR part 50 license terminates.

Response: This rulemaking relates to authorizing a 10 CFR part 72 specific license holder, or applicant for a license, to store reactor-related GTCC waste in an ISFSI or an MRS. The comments on transitioning from a 10 CFR part 72 general license to a 10 CFR part 72 specific license are beyond the scope of this rulemaking. With regard to the commenter's request to indicate clearly which sections of 10 CFR part 72 apply to general licensees and which apply to specific licensees, the NRC previously addressed this issue by adding a new § 72.13 to 10 CFR part 72, in a final rule titled “Clarification and Addition of Flexibility” (65 FR 50606; August 21, 2000).

The NRC disagrees with the commenter's suggestion to provide for the storage of GTCC waste under both 10 CFR part 72 general and specific licenses. As indicated in the proposed rule, because a 10 CFR part 72 general license is granted to a person holding a 10 CFR part 50 license to possess or operate a power reactor and a 10 CFR part 50 licensee would already be authorized (see § 50.52) to possess radioactive material (including GTCC waste), there is no need for additional authority to possess and store reactor-related GTCC waste under the general license provisions of 10 CFR part 72. (See also response below).

6. General license.

Comment: A consulting firm commented that the changes to 10 CFR 72.6 extend the general license authorization for spent fuel in an ISFSI to include reactor-related GTCC waste. For clarity the proposed rule should include: (1) GTCC waste in the title of Subpart K, (2) the authorization for reactor-related GTCC waste in 10 CFR 72.210, (3) reactor-related GTCC waste in 10 CFR 72.212(a)(1) and (a)(2), (4) reactor-related GTCC waste in 10 CFR 72.212(b)(5)(ii), and (5) the authorization for reactor-related GTCC waste in 10 CFR 72.230(b).

Response: The NRC agrees with the commenter that § 72.6 of the proposed rule could be read as allowing the storage of reactor-related GTCC waste at an ISFSI under a general license. This was done inadvertently and was inconsistent with the overall intent of the proposed rule. Therefore, the NRC has revised § 72.6 to indicate clearly that reactor-related GTCC waste only can be stored under the provisions of a specific license. 3

7. Question from the proposed rule: If reactor licensees, after termination of their 10 CFR part 50 license, elect to store reactor-related GTCC waste under the provisions of 10 CFR parts 30 and 70, is additional guidance needed to provide a more efficient licensing process?

Comment: One State commenter believes that the same technical criteria should be developed and applied to storage of GTCC waste regardless of which licensing option a licensee selects.

Of six industry commenters, some believe that additional guidance is needed while others do not believe additional guidance is needed. One commenter believes the NRC should spend its resources on legislative and regulatory changes that eliminate dual regulation and set one standard protecting public health and safety. Another commenter believes additional guidance should be provided regarding the steps to obtain a 10 CFR parts 30 and 70 license prior to termination of a 10 CFR part 50 license. The guidance should be simple and include consideration of facility history, design, experience, and backfit costs of upgrading to newer regulations as a result of transfer to 10 CFR parts 30 and 70 licenses.

Response: The NRC does not believe that additional guidance specifically for 10 CFR parts 30 and 70 licenses is needed. However, if the NRC were to develop guidance for storage of reactor-related GTCC waste under a 10 CFR part 30 or 70 license, such guidance would be consistent with 10 CFR part 72. The NRC prefers that reactor-related GTCC waste be stored under the provisions of 10 CFR part 72. Therefore, to promote effectiveness and efficiency, the NRC is deferring development of any guidance for 10 CFR parts 30 and 70. However, any application for a 10 CFR part 30 or 70 license may use, to the extent appropriate (considering the case-by-case criteria the application would be proposing), the guidance developed for 10 CFR part 72 in submission of an application. In conjunction with this rule NRC staff is developing Interim Staff Guidance for storage of reactor-related GTCC waste under a 10 CFR part 72 specific license.

8. Standard Review Plan revisions.

Comment: An industry commenter believes that associated changes to the Standard Review Plan to clarify the regulations after their issuance should be given high priority.

Response: In support of this rulemaking, the NRC is developing Interim Staff Guidance for NRC staff and licensee use in utilizing 10 CFR part 72 storage criteria for various GTCC waste types. This guidance will be incorporated into the next revision of the Spent Fuel Project Office Standard Review Plans.

9. Necessary changes to other 10 CFR Parts.

Comment: An industry commenter believes additional changes are necessary to 10 CFR parts 30 and 70, (and 10 CFR part 40 for completeness) for licensees to take full advantage of the proposed changes to 10 CFR part 72. The regulations in 10 CFR parts 30 and 70 need to identify exceptions in order to identify that 10 CFR part 72 would address possession of GTCC waste for those licensees who utilize an ISFSI following termination of their 10 CFR part 50 licenses. The exception in 10 CFR 70.1(c) needs to be expanded to include GTCC waste. Similar changes to 10 CFR 30.1 (and 10 CFR 40.1 for completeness), which do not currently include exception language similar to 10 CFR 70.1(c), also need to be made. The commenter believes that without these changes to 10 CFR part 30 and 70, specific licenses would continue to be required under these parts, as appropriate.

Response: The NRC agrees in part with the commenter. Changes to 10 CFR 30.11(b) and 10 CFR 70.1(c) are made to identify that 10 CFR part 72 specific licensees who possess power reactor-related GTCC waste within an ISFSI will be exempt from the requirements in 10 CFR parts 30 and 70, to the extent that its activities are licensed under the requirements of 10 CFR part 72. However, the NRC does not believe that changes are necessary to 10 CFR part 40 because there should be no need for a source material license at an ISFSI or an MRS.

Accordingly, the final rule will revise 10 CFR 30.11 (b) and 10 CFR 70.1(c) as follows:

30.11(b) Any licensee's activities are exempt from the requirements of this part to the extent that its activities are licensed under the requirements of part 72 of this chapter.

70.1(c) The regulations in part 72 of this chapter establish requirements, procedures, and criteria for the issuance of licenses to possess:

(1) Spent fuel, power reactor-related Greater than Class C (GTCC) waste, and other radioactive materials associated with spent fuel storage in an independent spent fuel storage installation (ISFSI), or

(2) Spent fuel, high-level radioactive waste, power reactor-related GTCC waste, and other radioactive materials associated with the storage in a monitored retrievable storage installation (MRS), and the terms and conditions under which the Commission will issue such licenses.

10. Question from the proposed rule: Should the storage of certain forms of GTCC waste and spent fuel in the same cask be prohibited? Or, should storage be permitted if performance criteria can be established? If so, what criteria should be used?

Comment: A State commenter believes that commingling should be prohibited without firm criteria for each chemical type of GTCC waste and the particular cask design. Assurance of chemical compatibility and ultimate cask structural integrity must be established. Without DOE disposal criteria for multi-purpose casks, spent fuel may have to be handled more than once prior to disposal, and commingling will just complicate matters even more. The commenter believes that DOE should promptly promulgate disposal criteria. Another State commenter opposes any commingling of spent fuel and GTCC waste that contain resins which are composed of water and plastic because the high heat in spent fuel canisters can evaporate and build up pressure within a canister. A third State commenter urges the NRC to reconsider the proposed rulemaking as it believes that it is not advisable to allow commingling of spent fuel and GTCC waste at this time. The commenter noted that the incremental cost of additional GTCC waste canisters would be small relative to the total ISFSI costs and there would be a substantial risk by a licensee given the absence of criteria governing what constitutes an acceptable disposal package. Precluding commingling would also avoid technical issues when either moving the canisters or if re-licensing becomes necessary for spent fuel storage containers at the end of a 20-year license.

DOE supports the position that storage of commingled non-fuel bearing GTCC waste with spent fuel is acceptable under certain conditions. However, the DOE shares NRC's concern that commingled canisters may need to be opened and the GTCC waste separated prior to disposal. Therefore, any commingling decision needs to consider potential additional costs and radiological exposures associated with reopening a canister and removing the GTCC waste prior to acceptance by DOE of the spent fuel.

All six industry commenters on this topic support commingling when justified through a safety analysis. For example, one commenter believes that commingling has significant advantages and noted that many decommissioning reactors will only have about 15 cubic feet of GTCC waste. The advantages are reduced costs and reduced waste volume due to the more efficient utilization of canister volume. However, the commenter noted that, without a clear and defined position from DOE that it will accept commingled canisters, the utilities would take significant risks to commingle because the casks may need to be opened and the waste separated. This could be a tremendous burden for decommissioned reactor licensees because they would no longer have the necessary facilities and personnel to reopen the cask and repackage the waste. However, one commenter noted that in DOE's, “Viability Assessment of a Repository at Yucca Mountain, Volume 2,” dated December 1998, that it is DOE's design intention to open packages of commercial spent fuel received at Yucca Mountain. Therefore, DOE clearly has the opportunity to segregate the GTCC waste with little impact upon operations. The commenter also noted that commingling allows safer and more efficient management of GTCC waste. In some cases, during the first 20 years or more after reactor shutdown, GTCC waste, on a weight basis, can produce higher radiation doses than a spent fuel assembly. The GTCC waste could be placed in the center of a container and surrounded by spent fuel bundles to provide additional shielding.

Response: In 10 CFR 72.3, other radioactive materials associated with fuel assemblies are defined as spent fuel and storage of such materials within an ISFSI is the industry standard practice. These non-fuel components associated with fuel assemblies were designed for use inside the operating plant's reactor vessel with no risk to plant safety. The rule is not intended to change the previous guidance given on the storage of non-fuel components such as control rod elements, burnable poison rod assemblies, and thimble plugs. The NRC expectation is that these types of components will be stored and disposed of as part of the spent fuel assembly packages. The NRC recognizes that some of these components, if removed from fuel assemblies, could be classified as GTCC waste. The NRC's approach is to consider these non-fuel components as spent fuel and not as GTCC waste if they are stored with the associated spent fuel. The NRC believes that appropriate interim storage for these non-fuel components should be with the associated spent fuel.

However, with respect to GTCC waste which is not integral to spent fuel assemblies, the NRC has concluded that, in general, GTCC waste should not be stored in the same cask with spent fuel. The NRC believes that properly addressing potential adverse conditions from commingling spent fuel with certain types of GTCC waste presents significant safety and technical issues. In addition, because the DOE has not yet identified criteria for a disposal package, the NRC is concerned that storage of GTCC waste and spent fuel in the same container may be unacceptable for placement in the geologic repository. Therefore, the rule precludes the commingling of GTCC waste and spent fuel, except on a case-by-case basis, because the NRC desires to formulate regulations that both reduce radiological exposure and costs associated with repackaging the spent fuel and GTCC waste into two separate containers for disposal.

The NRC would review and approve certain commingling on a case-by-case basis for GTCC waste composed of solid metal components. This storage arrangement would be undertaken at the licensee's risk that segregation of this material may be required prior to transporting the spent fuel for final disposal. The NRC would expect that a licensee's decision to commingle solid metal components with spent fuel would consider economic factors regarding the possibility that future segregation may be required for transportation and final disposal within a high-level waste repository or at a separate GTCC waste disposal facility. The incremental cost of storing separate GTCC waste canisters might be a relatively small increase in the total ISFSI costs. However, when DOE does provide disposal criteria, the NRC expects to revise the regulations for storage of GTCC waste to be consistent with DOE disposal requirements, if necessary.

The NRC agrees that resin and plastic material should not be commingled with spent fuel. Resins and plastic materials may contain organic compounds that may degrade under the thermal and radiolytic conditions present inside a spent fuel storage cask. The products of this decomposition may be corrosive and/or flammable (both solids and gases). As a result, these decomposition products might adversely affect the integrity of the spent fuel cladding. The NRC concludes, however, that resins and plastics that may be classified as GTCC waste can be safely stored at an ISFSI in a separate container as long as the material has been solidified.

With respect to the comment that DOE intends to open packages at Yucca Mountain, the NRC specifically requested additional information from DOE on its current intentions with regard to disposal of GTCC waste. In response to the proposed rule, DOE did not provide information that causes the NRC to conclude that GTCC waste will be accepted for disposal at Yucca Mountain if this site should be selected as a repository. Therefore, after disposal criteria have been established by DOE, the NRC can revise its regulations and guidance, if necessary.

11. Question from the proposed rule: Should the storage of explosive, pyrophoric, combustible, or chemically reactive GTCC waste be prohibited in either commingled or separate GTCC casks? Or should storage be permitted if performance criteria can be established? If so, what criteria should be used?

Comment: The one State commenter believes its comment to question 10 applies to questions 11 through 14; that is, to prohibit commingling. Also, if the waste is explosive, pyrophoric, combustible, or chemically reactive, it should not be stored, or stored in its own specially designed cask.

Five industry commenters believe that with the proper conditions (e.g., limited capacity, relief devices, neutron absorbers, and the introduction of a moderator) these waste types can be safely stored but, as noted by one commenter, storage with these waste characteristics should only be allowed after appropriate conditioning to eliminate such characteristics. Also, storage should be allowed only if under worst-case conditions, an accident would not endanger public health and safety. Another commenter noted that it is highly unlikely that such material would be in reactor decommissioning GTCC waste.

Response: The NRC has concluded that GTCC waste that is explosive, pyrophoric, combustible or chemically reactive should only be stored at an ISFSI or an MRS if this material is solidified and stabilized. For these types of materials, the licensee programs must ensure that an analysis is conducted to show that these materials can be safely stored for the full period of the ISFSI or MRS license. The NRC concludes that this type of material, once stabilized and solidified, should be stored within a separate container as noted in response to question 9. The expectation is that the licensee's programs would ensure the design criteria address accident conditions, pressure buildup, and special shielding requirements, and that released gases meet off-site radiological limits.

12. Question from the proposed rule: Should the storage of GTCC that may generate or release gases via radiolytic or thermal decomposition, including flammable gases, be prohibited in either commingled or separate GTCC casks? Or should storage be permitted if performance criteria can be established? If so, what criteria should be used?

Comment: One State commenter believes its comment to question 10 applies to questions 11 through 14; that is, to prohibit commingling. The other State commenter opposes any commingling of spent fuel and GTCC waste that contain resins which are composed of water and plastic because the high heat in spent fuel canisters can cause evaporation and the build up of pressure within a canister. The commenter opposes any mixture of gas-generating materials within a storage container.

Five industry commenters believe that with the proper conditions (e.g., quantities of gas released will not exceed safe limits) this waste type can be safely stored. Also, storage should be allowed only, if under worst-case conditions, an accident would not endanger public health and safety. Another commenter noted that it is highly unlikely that such material would be in reactor decommissioning GTCC waste.

Response: The NRC has concluded that GTCC waste that may release gases via radiolytic or thermal decomposition, including flammable gases, should only be stored at an ISFSI if this material is solidified and stabilized to minimize these characteristics. For these types of materials, the licensee programs must ensure that an analysis is conducted to show that these materials can be safely stored for the full period of the ISFSI or MRS license. The NRC concludes that this type of material, once stabilized and solidified, should be stored within a separate container as noted in response to question 9. The expectation is that the licensee's programs would ensure the design criteria address accident conditions, pressure buildup, and that released gases meet off-site radiological limits.

13. Question from the proposed rule: Should the storage of solid GTCC waste that may contain free liquid (e.g., dewatered resin) be prohibited in either commingled or separate GTCC casks? Or should storage be permitted if performance criteria can be established? If so, what criteria should be used?

Comment: The one State commenter believes its comment to question 10 applies to questions 11 through 14; that is, to prohibit commingling.

Five industry commenters provided differing views: some believe that GTCC waste that may contain free liquids should not be commingled with spent fuel, while others believe that it should be allowed if supported by a Safety Analysis Report. One commenter noted that it is highly unlikely that such material would be in reactor decommissioning GTCC waste (i.e., dewatered resins from reactor plants are not GTCC waste).

Response: The NRC has concluded that solid GTCC waste that contains free liquids should be treated to remove excess free liquids prior to storage at an ISFSI or an MRS. For this solidified material, the licensee's programs must ensure that an analysis is conducted to show that these materials can be safely stored for the full period of the ISFSI or MRS license. The NRC concludes that this type of material, once solidified, should be stored within a separate container as noted in response to question 9. The expectation is that the licensee's programs would ensure the design criteria address accident conditions, pressure buildup, and that released gases meet off-site radiological limits.

14. Question from the proposed rule: Should the storage of liquid GTCC waste be prohibited in either commingled or separate GTCC casks? Or should storage be permitted if performance criteria can be established? If so, what criteria should be used?

Comment: The one State commenter believes its comment to question 10 applies to questions 11 through 14; that is, to prohibit commingling.

Five industry commenters provided differing views: some believe that liquid GTCC waste should not be commingled with spent fuel, while others believe that it should be allowed if supported by a Safety Analysis Report. One commenter noted that it is highly unlikely that such material would be in reactor decommissioning GTCC waste.

Response: The NRC has concluded that liquid GTCC waste should be solidified prior to storage at an ISFSI or an MRS. For this solidified material, the licensee's programs must ensure that an analysis is conducted to show that these materials can be safely stored for the full period of the ISFSI or MRS license. The NRC concludes that this type of material, once solidified, should be stored within a separate container as noted in response to question 9. The expectation is that the licensee's programs would ensure the design criteria address accident conditions, pressure buildup, and that release gases meet off-site radiological limits.

15. From the proposed rule: What is the position of the Agreement States on NRC assuming jurisdiction of storage of GTCC waste generated during the operation of a 10 CFR part 50 license after termination of the 10 CFR part 50 license?

Comment: Only four of the 32 Agreement States responded to this question, but none supported the NRC's exercise of jurisdiction. The four States' reasons varied. The first State commenter, South Carolina, does not view favorably relinquishing what it regards as its jurisdiction over reactor-related GTCC waste because, in South Carolina's view, the waste is composed of radioactive materials which Agreement States can be authorized to regulate under the AEA. South Carolina also noted that, although the Low Level Radioactive Waste Policy Amendments Act of 1985 (LLRWPAA) clearly makes the Federal government responsible for the disposal of GTCC waste, it is silent on the responsibility for the interim storage of this waste. Therefore, South Carolina believes that the States can have some jurisdiction over the management and storage of these wastes and other low-level waste at decommissioned 10 CFR part 50 facilities. South Carolina says that it may also want to have all GTCC waste stored at a central location rather than at numerous sites throughout the State. South Carolina also believes that the NRC and an Agreement State could effectively collaborate in the regulation of a single facility to avoid duplication of efforts and dual regulation. South Carolina believes that any GTCC waste storage facility constructed outside the restricted exclusion area of a reactor would be clearly subject to State jurisdiction. Further, South Carolina reports that, on a case-by-case basis, it allows temporary storage of selected GTCC waste (less than one percent above Class C limits) from 10 CFR part 50 licensees at its Barnwell low-level waste disposal facility prior to disposing of this waste and wants to maintain licensing authority for reactor-related GTCC waste in order to continue this practice.

The second State commenter, Illinois, objects to what it sees as the NRC's disregard of the AEA of 1954, as amended, and of the Agreement between the NRC and the State of Illinois under section 274b of the AEA. Illinois noted that section 274b authorizes the NRC to discontinue, and an Agreement State to assume, regulatory authority over radioactive material, including byproduct material, source material, and special nuclear material in quantities not sufficient to form a critical mass, and Illinois believes that the NRC has relinquished its authority over these materials in its Agreement with Illinois. Further, section 274j of the AEA specifies the conditions under which the NRC can terminate or suspend all or part of an Agreement and reassert authority. Illinois also argues that neither of the two reasons the AEA gives for termination of an Agreement with an Agreement State—that the Agreement State has either failed to protect the public health and safety or failed to comply with requirements in section 274 of the AEA—is applicable to licensing the storage of GTCC waste, and neither reason is asserted in the proposed rule. Illinois says that the AEA provides the NRC with no authority to unilaterally modify Agreements with Agreement States, either by administrative fiat or by rule. Illinois disputes that the requirement, in section 274c of the AEA, that forbids NRC discontinuance of its authority to license the construction and operation of production and utilization facilities provides NRC with the authority “to dictate that Agreement States no longer have authority to license storage of GTCC waste at a facility that is no longer licensed as a production or utilization facility.”

The third State commenter, Utah, does not believe that the NRC should “usurp” State authority for licensing GTCC waste under 10 CFR parts 30, 70, or 72, once a reactor is decommissioned. The State says there are other areas in which jurisdiction over AEA materials may be either State or Federal. The State believes that, after decommissioning, and especially where spent fuel is shipped offsite, the State should have a significant regulatory presence. (The commenter also believes that only the NRC should license GTCC waste storage casks.)

The fourth State commenter, New York, does not support what it calls the “carte blanche” relinquishment of its regulatory authority. New York believes that it has effectively collaborated with the NRC in the regulation of single facilities and is not aware of any problems. New York believes that cooperative effort can minimize duplication and maximize the value of limited resources while still allowing both regulatory entities to retain their current regulatory authority. New York believes relinquishment could be considered on a case-by-case basis where regulatory duplication could not be minimized or a Memorandum of Understanding could not be developed to resolve problematic issues.

Response: Until this rulemaking, which opens a clear path to storage of reactor-related GTCC waste co-located with spent fuel in an ISFSI or an MRS after termination of a 10 CFR part 50 license, the Commission has not had occasion to examine systematically the interplay between NRC and Agreement State jurisdiction over reactor-related GTCC waste. The LLRWPAA assigns to the Federal government the ultimate responsibility for disposal of GTCC waste, but no statute or regulation has explicitly addressed the storage of such waste. After considering all comments received during the rulemaking, and after examining carefully the underlying regulatory and statutory scheme, the Commission concludes that the NRC should retain regulatory jurisdiction over reactor-related GTCC waste after termination of a reactor's 10 CFR part 50 license.

The Commission's position follows directly from the existing Agreements the NRC and the States have entered into under section 274 of the AEA, and it is consistent with other law and with sound policy. Under section 274, Agreement States possess regulatory authority over radioactive waste only where the Commission has relinquished its preexisting authority. No Agreement explicitly mentions reactor-related GTCC waste, and though some Agreement States have programs for storage and disposal of non-reactor-related GTCC waste—programs that have been found compatible with the NRC's own program for regulating such wastes—section 274 Agreements cannot be understood as a general matter to relinquish Commission authority over reactor-related GTCC waste. These wastes are integrally related to the operation of reactors because these wastes consist for the most part of activated metal reactor components such as core shrouds, support plates, nozzles, core barrels, and in-core instrumentation. The Commission has reserved to itself matters integral to the operation of reactors. Thus, when, under the section 274 program, the Commission reaches Agreements with States and relinquishes regulatory jurisdiction to them, the Commission specifically retains authority over the “operation” of reactors, as required by an NRC rule promulgated nearly 40 years ago. Section 150.15(a)(1) of 10 CFR defines “operation” as follows:

In short, a State entering a section 274 Agreement with the NRC does not, and cannot, acquire regulatory authority over reactor-related GTCC waste. Thus, the Commission's assertion of ongoing NRC jurisdiction over reactor-related GTCC waste does not take back previously-granted State authority or terminate an NRC-State Agreement. 4

The approach just outlined is consistent with the AEA. Section 274 itself requires continued Commission authority over basic reactor operation even after entry of Agreements. See AEA, section 274(c)(1). Section 274 also contemplates continued Commission authority over “disposal” of certain types of waste material “because of the hazards or potential hazards thereof.” See AEA, section 274(c)(4). The final rule the Commission issues today is consistent with these statutory provisions, because the GTCC waste over which the rule retains Commission jurisdiction was used by or generated at operating reactors and can reasonably be regarded as waste whose “potential hazards” warrant ultimate disposal under NRC supervision.

This conclusion is strongly reinforced by more recent statutory enactments specifically dealing with the handling of radioactive wastes. The Low Level Radioactive Waste Policy Amendments Act assigns to the Federal government the ultimate responsibility for disposal of GTCC waste, and to the NRC the responsibility for regulating the disposal of GTCC waste generated by NRC licensees. See sections 3(b)(1)(D) and 3(b)(2) of the LLRWPAA. 5 The two principal facts behind these sections were that most States did not want to be ultimately responsible for the disposal of GTCC waste, and that the States did not want the GTCC waste buried in DOE's existing unlicensed low-level waste burial sites. Nonetheless, these sections have been read broadly enough to permit disposal of GTCC waste in facilities run by States or private entities—as long as the Federal government was satisfied that the disposal provided adequate protection of public health and safety—and to permit compatible Agreement State regulation of some GTCC waste stored and disposed of in a State or private facility. See, e.g., 54 FR 22578, 22579 (May 25, 1989).

However, the same statutory language cannot be read so broadly as to empower States to regulate storage and disposal of any and all GTCC waste. That is clearly the case with disposal. Indeed, the language of these two sections could more reasonably be read to prohibit the States from any regulation of disposal of reactor-related GTCC waste whatsoever. As for storage, these sections cannot be interpreted as allowing to Agreement States blanket and unlimited authority over storage of GTCC waste. Because the NRC indisputably has jurisdiction over GTCC waste while a reactor licensed under 10 CFR Part 50 is being operated and similarly has jurisdiction over its disposal, it is reasonable for the NRC to retain regulatory authority over GTCC waste during the interim period—i.e., between the time when the reactor is shut down and the time the GTCC waste goes to disposal. This is especially the case when, as many reactor owners contemplate, the GTCC waste could be stored along with NRC-regulated spent fuel in an NRC-regulated ISFSI or MRS. Low-level radioactive waste not exceeding the Class C limits is different, because no statute assigns the Federal government ultimate responsibility for disposal, or the NRC explicit responsibility for regulating disposal of such waste. Thus, issuance of this final rule does not affect the States' long-standing practice of exercising regulatory jurisdiction over non-GTCC low-level radioactive waste originally generated at reactors, or over GTCC waste generated by materials licensees regulated by Agreement States.

The alternative to NRC jurisdiction over reactor-related GTCC waste stored onsite or in an ISFSI or MRS is a regulatory scheme that calls for not one shift of regulatory authority, as in the case of Class A, B, or C low-level reactor waste, but two shifts of regulatory authority, one at plant shutdown, and the other at disposal. It is difficult to see the practical sense in this, let alone a practical necessity.

The NRC agrees that States can work well with the NRC, and although the NRC is retaining regulatory authority over the storage and disposal of reactor-related GTCC waste, there are a number of ways States may participate in NRC regulation, as the States know from experience. For example, the Commission will continue to adhere to its Policy Statement, “Cooperation with States at Commercial Nuclear Power Plant and Other Nuclear Production or Utilization Facilities” (57 FR 6462; February 25, 1992), which allows States to develop specific arrangements, such as exchange of information, State observation of NRC inspection activities, and placement of State resident engineers at nuclear power plants. Nonetheless, that the NRC and an Agreement State can work well together does not prove that they both should have regulatory authority at an NRC-regulated ISFSI that contains a cask with spent fuel, regulated by the NRC, co-located with reactor-related GTCC waste.

16. From the proposed rule: What controls and regulatory frameworks would the Agreement States envision, assuming they have jurisdiction over GTCC waste generated during the operation under a 10 CFR Part 50 license after termination of the 10 CFR part 50 license? How would the Agreement States plan to ensure consistency with a national regulatory scheme?

Comment: Only two States responded. The first said that it cannot say what other Agreement States could do, and that each State should be evaluated on its own. But this State nevertheless claimed that GTCC waste is similar to Class B and C waste, which States have regulated for years. The State believes it has the experience and capability needed to establish the controls and regulatory framework comparable to NRC standards. It therefore believes that it is capable of administering 10 CFR part 72 standards. The second State argued that consistency with a national regulatory scheme for storage of GTCC waste would be ensured in the same manner in which the consistency of other Agreement State regulation in other areas is ensured. The second State envisions establishing controls and a regulatory framework that are compatible with the NRC's for this type of waste storage.

Response: With so few responses, the NRC cannot form a clear picture of how the Agreement States would regulate storage of reactor-related GTCC waste so as to ensure consistency with a national program for regulating such waste. As we note in the response to the next question, some State regulation of the storage and disposal of some marginally reactor-related GTCC waste has already occurred in a way that is consistent with a coherent national program that protects public health and safety. But the question here is whether such a program can be established that would permit State regulation of all GTCC waste as a general matter, no matter what the activity level, no matter how integrally related to reactor operation, and no matter whether stored with spent fuel or not. It is certainly true, as one of the States said, that the NRC has authority under section 274 of the AEA to take steps that help assure that State programs are “compatible” with the NRC's own programs. Indeed, it is the NRC's responsibility to work to ensure such compatibility. Nonetheless, only the Agreement States can establish and maintain compatible programs. The NRC can only assess the degree of compatibility and protection of health and safety, through the Integrated Materials Performance Evaluation Program, and take the steps necessary to seek to ensure compatibility and protection of health and safety where it is missing. Under circumstances in which the NRC must exercise jurisdiction of GTCC waste during reactor operations and at the time of disposal, the NRC does not have a strong practical justification for allowing States to exercise jurisdiction over storage in the interim period before disposal. At this time, it is unclear whether a consistent national regulatory scheme could be established and maintained if States exercised jurisdiction over storage of all such wastes.

17. From the proposed rule: The NRC staff is not aware of any current Agreement State license for the storage of reactor-related GTCC waste. Are there any such licenses within your State or are you aware of any such Agreement State licenses?

Comment: Two States commented. Illinois reports that it does not have any reactor-related GTCC waste under license. South Carolina reports that it allows temporary storage of some approved GTCC waste from 10 CFR part 50 licensees (less than 1 percent above Class C limits) while awaiting disposal at its licensed Barnwell low-level waste facility. South Carolina also licenses the partially decommissioned Carolinas-Virginia Nuclear Power Associates (CVNPA) reactor, a commercial test reactor sponsored by a consortium of power companies. This reactor was formerly licensed by the Atomic Energy Commission (AEC), but its AEC 10 CFR part 50 license was terminated after the reactor was shut down and placed in a SAFSTOR decommissioned status. Concurrent with the termination of the facility license, the AEC issued a Byproduct Material License which authorized CVNPA to possess and store the byproduct material in the remaining structures and dismantled parts. In 1969, the AEC transferred this Byproduct Material License to South Carolina. The site is currently undergoing complete decommissioning and dismantlement. South Carolina states that “(a)lthough waste classification of the irradiated reactor components (is) not complete, it is likely there will be some GTCC waste that may require licensure by the State for interim storage, or may be transferred to one of their parent 10 CFR part 50 licensees for storage.”

Response: We note that South Carolina currently regulates storage and disposal of some reactor-related GTCC waste at its Barnwell low-level waste disposal facility. It is South Carolina's practice, as noted in its comment, to accept for storage and disposal at Barnwell only reactor-related waste that is less than 1 percent above the NRC's limits for Class C low-level waste on a case-by-case basis. There is no significant difference between the way such waste should be handled and the way South Carolina handles Class C low-level waste. Thus the Commission does not seek any change in South Carolina's practice. Moreover, there is no question that the States will continue to exercise their current jurisdiction over low-level waste other than GTCC waste, and over GTCC waste that is not reactor-related. With respect to the CVNPA site, if it turns out that some reactor-related GTCC waste results from the further characterization and decommissioning work planned for this site, South Carolina will need to consult with the NRC as to the appropriate management of this waste.

18. Blending GTCC waste within the reactor vessel.

Comment: The private citizen commenter believes that the NRC is not following ALARA principles by requiring that small quantities of GTCC waste be segregated from other low-level waste within the reactor vessel. If GTCC waste were left within the reactor vessel and blended with the lower activity material within the vessel, it could be safely disposed of as low level waste. The collective dose to segregate the GTCC waste versus burial of the reactor vessel, averaged to be below Class C, would be significantly less. Therefore, the NRC should develop additional rulemaking and/or guidance on the blending of reactor internals to reduce worker dose.

Response: This rulemaking is designed to add flexibility for the storage of GTCC waste and has not eliminated any current option that licensees may wish to use to store GTCC waste. If the licensee desires to dispose of the reactor vessel, the NRC and appropriate Agreement States will review this on a case-by-case basis. The regulatory process and review could be similar to that used by the NRC and Washington State in approving Portland General Electric Company's (i.e., the Trojan nuclear facility) transportation and disposal of its reactor vessel at a LLW facility. The NRC expects the licensee will consider ALARA principles in determining the best disposal option.

19. Away from reactor storage.

Comment: The State of Utah is greatly concerned, and adamantly opposes, the storage of GTCC waste at away-from-reactor ISFSIs, including something such as the proposed Private Fuel Storage facility for spent fuel. The commenter believes that there is the potential that most of the nation's spent nuclear fuel and GTCC waste could be shipped to Utah and that, once there, it will never leave the State. The commenter noted that there are no long term GTCC waste disposal plans. The commenter believes that the NRC must restrict storage to at-reactor ISFSIs and not allow GTCC waste to be shipped across the country unless, and until, decisive plans have been made for the permanent disposition of GTCC waste. The commenter noted from DOE documents that DOE anticipates that GTCC waste will remain at the reactor site until a disposal option becomes available, and that currently the disposal option is not known. The proposed rule does not address the disposition of the waste at the end of a 10 CFR Part 72 ISFSI license. The commenter believes there is a significant volume of GTCC waste that could be shipped away from the reactor site and the NRC is silent on the transportation of GTCC waste. There is no discussion about transportation containers or the exposure level and the population at risk from transportation.

The commenter believes that NRC needs to prepare a programmatic or generic environmental impact statement (EIS) for the transportation of GTCC waste since this could be a significant departure from the current regulatory scheme and a significant federal action affecting the quality of the human environment. If the proposed Private Fuel Storage ISFSI on the Skull Valley Goshute Indian reservation in Utah becomes the prime location for GTCC waste storage, the proposed rule would permit the mass movement of GTCC waste across the country. In this respect, the NRC cannot rely on its “waste confidence rule” because the waste confidence rule only applies to spent fuel. The NRC does not address the final disposition of GTCC waste. In fact, the NRC decommissioning rule under 10 CFR part 72 only requires the applicant to propose and fund a decommissioning plan after removal of GTCC waste which may never occur. The commenter noted that no EIS had ever been prepared on the transportation of GTCC waste which may be long-lived and can contain millions of curies of radioactivity. The commenter believes particular attention is needed for GTCC waste resins and an evaluation of the hazard of an accident involving a long-duration fire. Resins contain water and plastic which would evaporate and melt unlike activated metals. The commenter believes NRC cannot rely on RADTRAN, a transportation model, because GTCC waste resins are composed of elements that RADTRAN does not address (e.g., ion exchange resins). Moreover, the NRC cannot rely on an EIS conducted for a site specific ISFSI that only addresses storage of spent fuel.

The State of Utah also believes that NRC has not thought through issues related to insurance requirements, liability for harm resulting from GTCC waste, and complexities of waste ownership. Utah maintains that a void will occur in insurance coverage for GTCC waste at an away-from-reactor ISFSI; the generating facility would no longer cover that waste, and the Price-Anderson Act would not cover transportation incidents to and from the ISFSI because GTCC waste is not high level waste. Utah also noted as negatives that 10 CFR part 72 fails to require on-site property insurance; multiple owners of the mix of GTCC waste at an away-from-reactor ISFSI will complicate assigning liability and after decommissioning of a reactor site, the “deep-pocket” utility ceases to be an “owner,” thus shedding responsibility for the GTCC waste. Also, the State expresses concern that after an accident, it may need to take action in order to protect public health and safety, even though it lacks regulatory authority.

Response: The NRC finds that most of these comments are not germane to this rulemaking, which provides general standards for the storage of reactor-related GTCC wastes. Issues associated with an away-from-reactor ISFSI can appropriately be addressed in a specific licensing action concerning such a facility. In any event, the NRC disagrees with the comments. The comments generally stated that GTCC waste should not be shipped to an away-from-reactor ISFSI site due to lack of analysis regarding transportation containers or the exposure level and the population at risk from transportation. The transportation of radioactive material, which includes GTCC waste, was previously analyzed by the NRC in NUREG 0170, “Final Environmental Statement on the Transportation of Radioactive Materials by Air and Other Modes.” This EIS covered the transport of all types of radioactive material by all transport modes (including GTCC waste). Transportation of GTCC waste and other Type B quantities of radioactive material (i.e., spent fuel) is governed by the NRC regulations in 10 CFR part 71 and the Department of Transportation (DOT) regulations in 49 CFR part 173. The NRC believes that NUREG-0170 bounds the environmental impact from the shipment of GTCC waste and this waste can be safely shipped in compliance with these regulations.

With respect to the comment on insurance and liability, under existing law, there is no cause for a void in insurance coverage for GTCC waste at an away-from-reactor ISFSI even though 10 CFR part 72 does not provide specific insurance or indemnity requirements for an away-from-reactor facility. Licensing actions to permit away-from-reactor storage may be made subject to license conditions requiring the maintenance of appropriate amounts of liability insurance up to $200 million. ($200 million is the maximum insurance currently commercially available to cover offsite public liability and is the amount required for large power reactors.) In addition, there may be appropriate commitments, confirmed by license conditions, for insurance to cover onsite damages.

The Price-Anderson Act (Atomic Energy Act section 170, 42 U.S.C. 2210 & 2014 (related definitions)) requires indemnification for 10 CFR Part 50 facilities. The Act also gives the Commission discretionary authority to extend indemnity coverage to activities undertaken by three types of materials licensees. See 42 U.S.C. and 42 U.S.C. 2210 a. Thus, the Commission can indemnify away-from-reactor ISFSIs in the event the Commission were to find that the risks of offsite damage are so large as to be uninsurable or that the public interest requires it. Moreover, the Price-Anderson Act does not restrict its coverage of reactor waste to spent fuel. Thus, were the Commission to use its discretion to cover away-from-reactor ISFSIs, all transportation to and from them would be covered. However, even lacking such a discretionary designation, transportation of GTCC waste to the ISFSI would, in any event, be covered by the generator's Price-Anderson coverage. Likewise, if the final transportation were to be to an indemnified facility, such as a DOE facility, that transportation would be covered by Price-Anderson. See e.g. Atomic Energy Act, section 170n(1)(B) and 42 U.S.C. 2210n(1)(B).

In addition, to address any perceived problem from the multiplicity of customers, 10 CFR part 72 license conditions can require terms in service agreements by which allocation of liability might be made among customers. Where needed, additional financial assurances could be provided. Also, § 72.30's provisions for “Financial assurance and recordkeeping for decommissioning” includes a requirement that the decommissioning plan have a funding plan that contains information on how reasonable assurance will be provided that funds will be available to decommission the ISFSI or MRS.

Finally, the State's possible need in an emergency “to take action even though it is not the regulator of the GTCC waste” is no different from the circumstance in an emergency resulting from a nuclear power plant or other federally regulated facility that uses radioactive materials. There are like requirements imposed on the 10 CFR part 72 licensee for notification and requests for offsite assistance. See § 72.32. The Commission is confident that a partnership of Federal, State, local, and Tribal governments will act to protect the public health and safety and the environment in the event of an emergency.

20. The definition of the term “cask.”

Comment: One commenter believes that the NRC needs to be clearer when using the term cask as it is defined and used in 10 CFR 72.121(a)(2) and 72.230(b). Reference is made to “casks that have been certified * * * under part 71,” but cask is not defined in either 10 CFR part 71 or the transportation regulations in Title 49. The term cask is commonly used throughout the nuclear power industry to refer to one or more types of transport packaging, but it is also generally accepted that the correct term is “packaging” rather than “cask.” Spent fuel dry storage has extended the application of the term cask, yet it is not formally defined in either Title 10 or Title 49. The commenter noted that the proposed rule included a definition for the terms “spent fuel storage cask or cask,” but believes that the definition may raise more questions than it resolves because it focuses on a container and not a package. The term container is not defined in either Title 10 or Title 49, resulting in a new definition which is based on an undefined term. Does cask refer to (1) a package, (2) packaging, or (3) something else? This is particularly important when referring to “casks that have been certified * * * under part 71,” which would suggest a specific package or packaging. The commenter believes that Title 10 should avoid any term related to transportation which would create an inconsistency with Title 49. The commenter proposes several alternative solutions based on the intended meaning of cask to maintain consistency with Title 49 and believes the term should be reviewed by the Department of Transportation and incorporated into 49 CFR 171.8 during the next revision.

Response: The commenter requested that the NRC modify the definition of the term “cask” as used in 10 CFR 72.121(a)(2) to better correlate this term to the term packaging and packages used in 10 CFR part 71. The NRC believes the commenter's reference should have been to 10 CFR 72.212(a)(2) which discusses the use of casks certified under 10 CFR part 72. The NRC concludes, however, that the definition of the term cask should not be changed. The general term cask as used in 10 CFR part 72 is intended to speak to the cask design characteristics, such as criticality, shielding, thermal loading, and structural integrity and not all the components of a typical transportation packaging, such as an impact limiter. Because there is not a good correlation between the 10 CFR part 72 cask definition and 10 CFR part 71 packaging and packages, an attempt to relate the terms might cause confusion. As indicated by the commenter, it is very important that terms used in 10 CFR part 71 and DOT regulations are consistent. In the proposed rule the only change intended for the term spent fuel storage cask or cask was to allow the storage of reactor-related GTCC waste within a cask. Attempting to change these terms within NRC regulations would require corresponding changes in DOT regulations, which is beyond the scope of this rulemaking.

However, in evaluating this comment, the NRC believes that changing the definition of “spent fuel storage cask or cask” to include GTCC waste was unintended. Adding GTCC waste to this definition would require that this waste type be stored in a “spent fuel storage cask.” The NRC did not intend for the requirements in 10 CFR part 72 to be as prescriptive as could be implied in the proposed rule.

Accordingly, the final rule removes the change in the proposed rule to § 72.3 dealing with the definition of “spent fuel storage cask or cask.”

The following section is provided to assist the reader in understanding the specific changes made to each section or paragraph in 10 CFR parts 30, 70, 72, and 150. For clarity of content in reading a section, much of that particular section may be repeated, although only a minor change is being made. This section should allow the reader to effectively review the specific changes without reviewing existing material that has been included for content, but has not been significantly changed.

Section 30.11(b) is a new paragraph (in the existing CFR it is noted as reserved) to exempt a licensee from the requirements of 10 CFR part 30, to the extent that its activities are licensed under the requirements of 10 CFR part 72.

Section 70.1(c) is being revised to exempt a licensee from the requirements of 10 CFR part 70 when power reactor-related GTCC waste is being stored under the requirements of 10 CFR part 72.

The title to 10 CFR part 72 is being revised to include GTCC waste.

The following sections or paragraphs are being revised to specify the inclusion of GTCC waste, for clarity, or for completeness: §§ 72.1, 72.2(a) and (c), 72.8, 72.16(d), 72.22(e)(3), 72.24 introductory text and (i), 72.28(d), 72.30(a), 72.44(b)(4), (c)(3)(i), (c)(5), (d) and (g)(2), 72.52(b)(2), (c), and (e), 72.54(c)(1), 72.60(c), 72.72(a), (b), and (d), 72.75(b), (c), (d)(1)(iv), and (d)(2)(ii)(L), 72.80(g), 72.82(a) and (b), 72.106(b), 72.108 title and text, 72.122(b)(2), (h)(2), (h)(5), (i), and (l), 72.128 title and (a), and 72.140(c)(2). Also, §§ 72.72, 72.76, and 72.78 have been modified to clarify the reporting requirements for special nuclear material as specified in 10 CFR 74.13(a)(1).

Section 72.3: The definition for GTCC waste is being added to 10 CFR part 72 and the definitions of Design capacity, Independent spent fuel storage installation or ISFSI, Monitored Retrievable Storage Installation or MRS, and Structures, systems, and components important to safety, are being revised to specify the inclusion of GTCC waste.

Section 72.6: This section has been revised to clearly indicate that reactor-related GTCC waste only can be stored under the provisions of a 10 CFR part 72 specific license.

Section 72.40(b): This section has been modified for clarity and by adding a new introductory sentence that would include reactor-related GTCC waste. Also, reference to the Atomic Safety and Licensing Appeal Board has been removed since this board no longer exists.

Sections 72.72(a), 72.76(a), and 72.78(a): These sections have been modified to clarify the reporting requirements for special nuclear material as specified in 10 CFR 74.13(a)(1).

Section 72.120: This section has been modified for clarity and to provide some general considerations for the storage of GTCC waste within an ISFSI or an MRS.

Section 150.15(a)(7)(i) and (ii): Essentially repeats the text of the existing paragraphs with amendments for consistency with the new § 150.15(a)(7)(iii).

Section 150.15(a)(7)(iii): This new paragraph will specify that the storage of reactor-related GTCC waste within an ISFSI or an MRS licensed pursuant to 10 CFR part 50 and/or part 72 is exempt from Agreement State authority.

Paragraph 150.15(a)(8): This new paragraph will specify that the storage of reactor-related GTCC waste licensed under 10 CFR part 30 and/or part 70 is exempt from Agreement State authority.

In the NRC's final rule, “Clarification and Addition of Flexibility” (65 FR 50606; August 21, 2000), changes have been made to 10 CFR part 72. Section 72.140(c)(2) is the only section that is being changed in both rules and this rulemaking is consistent with the “Clarification” rulemaking changes.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), § 70.1(c), 10 CFR part 72 and § 150.15 continue to be classified as compatibility Category “NRC.” Section 30.11(b) is also classified as Category “NRC.” Previously, this subsection was reserved and classified as Category “D,” not required for purposes of compatibility. The NRC program elements in Category “NRC” are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or provisions of Title 10 of the Code of Federal Regulations.

Because the Commission was particularly interested in the position of the Agreement States on certain issues, three questions were identified in the proposed rule for Agreement State input. Five of the 32 Agreement States commented on the proposed rule (four on the three questions). The comments and responses on the specific Agreement State questions are found on the Comments in the Proposed Rule section, comment numbers 15, 16, and 17.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that agencies use technical standards that are developed or adopted by voluntary consensus standard bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this rule, the NRC is presenting amendments to its regulations that would allow the licensing of interim storage of GTCC waste. This action does not constitute the establishment of a standard that establishes generally-applicable requirements and the use of a voluntary consensus standard is not applicable.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment, and therefore, an environmental impact statement is not required. The rule will provide reactor licensees an additional option of storing GTCC waste under a 10 CFR part 72 license using spent fuel storage criteria of that part. Storage of GTCC waste at an ISFSI or an MRS would be in a passive mode with no human intervention needed for safe storage. The Environmental Assessment determined that there is no significant environmental impact as a result of these changes.

The Environmental Assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the Environmental Assessment and the finding of no significant impact are available from Mark Haisfield, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6196.

This final rule amends information collection requirements contained in 10 CFR part 72 that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). These requirements were approved by the Office of Management and Budget, approval number 3150-0132. The proposed changes to 10 CFR part(s) 30, 70, and 150 do not contain a new or amended information collection requirement. Existing requirements were approved by the Office of Management and Budget, approval number(s) 3150-0017, 3150-0009, and 3150-0032.

The burden to the public for this information collection is estimated to average 120 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Send comments on any aspect of this information collection, including suggestions for reducing the burden, to the Records Management Branch (T-6 E6), U.S. Nuclear Regulatory Commission, Washington DC 20555-0001, or by Internet electronic mail at BJS1@NRC.GOV ; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0132), Office of Management and Budget, Washington DC 20503.

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

The Commission has prepared a final Regulatory Analysis on this regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The analysis is available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. Single copies of the Regulatory Analysis are available from Mark Haisfield, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-6196.

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule will not have a significant economic impact upon a substantial number of small entities. The amendments will apply to reactor licensees, ISFSI licensees, certificate holders, applicants for a Certificate of Compliance, and DOE. The majority, if not all, of these licensees would not qualify as small entities under the NRC's size standards (10 CFR 2.810).

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget.

The NRC has determined that the backfit requirements, 10 CFR 50.109 and 72.62, do not apply to this rule, and therefore, a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR 50.109(a)(1) or 72.62(a). This rule will not require licensees to use 10 CFR part 72 to store GTCC waste. It provides a practical option with criteria that licensees may use. It does not preclude, or change, use of 10 CFR parts 30 and 70 as a licensing mechanism to store GTCC waste. The NRC anticipates that storage of GTCC waste licensed under 10 CFR part 72 can simplify the licensing process, for both licensees and the NRC, with no significant impact to public health and safety or the environment.

(3) To provide reasonable assurance that spent fuel, high-level radioactive waste, or reactor-related GTCC waste can be received, handled, packaged, stored, and retrieved without undue risk to the health and safety of the public.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to all Boeing Model 727 series airplanes was published in the Federal Register on August 10, 2000 (65 FR 48943). That action proposed to require repetitive inspections of the bearing support fitting of the forward trunnion on the main landing gear (MLG) to detect corrosion and cracking; follow-on actions, if necessary; and rework of the support fitting.

Since the issuance of the notice of proposed rulemaking (NPRM), the FAA has reviewed and approved Boeing Service Bulletin 727-57A0179, Revision 5, dated December 20, 2000. Revision 5 revises certain actions regarding the support fitting. Such actions include the option of replacing a damaged fitting with a new fitting or with a repaired/reworked fitting, reducing the amount of material removed from the holes in the fitting and from all faces of the support fitting common to the holes, and radius-boring the edges of the machined surfaces. Revision 5 also revises the effectivity, and changes the sequence of certain inspection and repair/rework instructions.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

The Air Transport Association (ATA) of America states that several operators have requested clarification of the term “rework” in the body of the NPRM, as follows:

• One commenter states that the term “rework” needs to be defined, and that the service bulletins do not define the term. The commenter proposes that rework should be defined in paragraphs (a), (b), and (c) of the NPRM as the accomplishment of Part II of the Accomplishment Instructions of Boeing Alert Service Bulletin 727-57A0179, Revision 1, dated June 13, 1991; Revision 2, dated April 30, 1992; Revision 3, dated September 2, 1999; or Revision 4, dated July 13, 2000. Paragraph (c) of the NPRM is cited as paragraph (d) in the final rule.

• Another commenter states that paragraph (a) of the NPRM should include a service bulletin reference similar to paragraph (b) of the NPRM. This reference would clarify the rework action required by the NPRM. The commenter states that the term “rework,” as used in the NPRM, is confusing and that the correct term is “shop overhaul.” In addition, paragraphs (b) and (c) of the NPRM should cite “Part II” of the Accomplishment Instructions of the applicable service bulletins. As stated previously, paragraph (c) of the NPRM is cited as paragraph (d) in the final rule.

The FAA concurs that it is necessary to clarify the rework requirements and to cite specific paragraphs (parts) of the service bulletins, which specify the rework procedures. Boeing Service Bulletin 727-57A0179, Revision 5, dated December 20, 2000, was issued to clarify the follow-on actions by specifying repair/rework of the support fitting, or replacement with a new or repaired/reworked fitting. In response, we have cited the specific part of the appropriate revision of the service bulletins in paragraphs (a), (b), and (d) of the final rule.

Two commenters request that the FAA extend the compliance time in certain paragraphs of the NPRM. These requests and justifications are as follows:

• One commenter requests extending the compliance time specified in paragraph (a) from 18 months to the “next heavy maintenance visit (HMV).” The commenter also requests changing the compliance time for the inspection/rework actions required by paragraph (c)(2) of the NPRM from 36 months to “next gear change.” The commenter justifies its request by stating that, since it began conducting “on wing” ultrasonic inspections of the subject fittings in 1993, no fitting has been found to be cracked and no overhaul has identified any potential fitting failures.

• One commenter requests extending the compliance time specified in paragraph (a) from 18 to 24 months. The commenter states that the 18-month interval would present an undue economic burden because of the number of work hours and additional maintenance requirements, and would require airplanes to be removed from service for extended periods of time. The proposed extension would allow the rework to be performed during scheduled maintenance visits, such as a C-check. Such an extension would reduce the financial burden without compromising the safety of their fleet.

In addition, another commenter states that the inventory and production of spare parts could not support the proposed insurance cuts, and that this could result in the unnecessary grounding of airplanes. The FAA infers that the commenter is requesting an extension of the compliance time for accomplishing the rework action.

The FAA does not concur with the commenters' requests to extend the compliance times. We have determined that the proposed compliance times in paragraphs (a) and (c)(2) of the NPRM (cited as paragraph (d)(2) in the final rule) should not be extended for the following reasons, as listed below.

• The proposal to use the terms “HMV” and “next gear change” instead of the specified compliance times is not specific enough to ensure when the action must be accomplished.

• The service bulletin recommends accomplishment of the rework within the specified 18 months for those fittings that have not been reworked (overhauled) previously.

• Revision 5 of the service bulletin allows operators the option of repairing/reworking damaged support fittings, or replacing the fittings with new fittings. Revision 5 also reduces the specified limits of the material removed from the faces common to the holes in the support fittings and the diameter of the holes in the fittings. Such a reduction will lengthen the time that the existing parts can be used, so the immediate purchase of a new part may not be necessary. The final rule includes Revision 5 of the service bulletin as an additional source of service information.

• In developing the appropriate compliance times for the inspection and rework actions, the FAA considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the rework. In consideration of these items, as well as the reports of the collapse of the main landing gear on a number of airplanes, the FAA has determined that the 18-month compliance time specified in paragraph (a) of this AD, and the 36-month compliance time specified in paragraph (c)(2) of the NPRM (cited as paragraph (d)(2) in the final rule), represent the appropriate intervals of time allowable so that the specified actions can be accomplished during scheduled maintenance intervals for the majority of affected operators, and an acceptable level of safety can be maintained.

• Although inspections will continue per paragraph (a) of this AD until accomplishment of the rework per paragraph (d) of the NPRM (cited as paragraph (e) in the final rule), the inspections will not necessarily detect corrosion pitting, which also could lead to stress corrosion cracking of the fitting.

For these reasons, the FAA has determined that the compliance times for the inspections and rework actions specified in the AD are appropriate. No changes are made to the final rule in this regard.

One commenter requests the option of using chrome plate, not more than 0.010 inches thick, followed by a repair sleeve wet with primer, in lieu of the required cadmium plate/primer/sealant combination specified in Part II of Revision 4 of the previously referenced service bulletin. Service experience indicates that the use of chrome plate during rework provides superior corrosion protection.

The FAA does not concur that it is necessary to change the rework requirement in the final rule to specify the proposed option. The commenter did not provide sufficient technical details for the proposed chrome plating process. However, we would consider this option under the provisions for requesting approval of an alternative method of compliance, as provided in paragraph (h) in the final rule (cited as paragraph (f) of the NPRM). No change is made to the final rule in this regard.

Several commenters request deleting or modifying the requirement to do the insurance cut. The FAA infers that the insurance cut refers to the rework of the support fitting, which includes removing any damaged material from the face of the support fitting and from the holes of the fitting, and to increase the diameter of the holes in the fitting. The commenters' requests and justifications are as follows:

Three of the commenters do not consider it necessary to do the insurance cuts on support fittings that do not show damage, such as corrosion or cracking. One of the commenters states that the Component Maintenance Manual (CMM) referenced in Revision 4 of the service bulletin specifies rework only if the fitting has corrosion or cracks, and that rework is unnecessary if the fitting is corrosion or crack free.

Another commenter states that Revisions 3 and 4 of the referenced service bulletin are ambiguous if the insurance cut is required on support fittings that are corrosion or crack free. The FAA infers that the commenter considers that the insurance cut specified in Revisions 3 and 4 of the service bulletins is unnecessary. The commenter also states that the root cause of the fractured fittings is the initiation of corrosion in the bore of the fitting, and that stress concentrations from corrosion pitting lead to cracking. Corrosion also can be controlled by regular overhaul of the subject fitting at the same time as the landing gear. Service records indicate that adequate safety was provided during previous overhauls that did not include insurance cuts and, until 1991, did not include protective sealant. Current overhaul procedures include additional improvements to further ensure safety.

Another commenter states that insurance cuts for undamaged fittings should not be a requirement because the non-destructive tests (NDT) should be adequate. Another commenter states that insurance cuts are unnecessary after a magnetic particle inspection (MPI) because such action was not required in the past, and safety was not adversely affected. In addition, MPIs and a dedicated maintenance program provide adequate crack detection and a high level of safety throughout the life of the component. Another commenter states that MPI is one of the most sensitive and reliable methods for detecting shallow cracks and defects on steel parts.

Another commenter, the manufacturer, states that it has further evaluated the insurance cut requirement, and has concluded that the size of the cut can be reduced without compromising safety. Such a reduction still allows adequate removal of nondetectable cracks not found during the MPI, and is a more practical approach to machining high-strength steel. Further, the depth of the insurance cut specified in earlier revisions of Boeing Alert Service Bulletin 727-57A0179 prior to the issuance of Revision 5 of the service bulletin is excessive and could lead to additional damage. Revision 5 has been issued to specify the recommended reduction in the size of the insurance cut.

The FAA partially concurs with the commenters' suggestions to change the “insurance cut” requirements. The FAA does not concur that the insurance cut (rework) on undamaged support fittings is unnecessary, because certain cracks may remain undetected by the specified inspections. Although the referenced CMM specifies rework only if certain damage is found, we have determined that, even if the support fitting does not show damage, rework of the support fitting is necessary to address the identified unsafe condition. In addition, we have determined that even though an operator's service records show that adequate safety was provided during previous overhauls and that current overhaul procedures include improvements to ensure safety, the rework requirements specified by this AD are still necessary to ensure that all operators follow the same procedures in addressing the specified unsafe condition.

The FAA does not concur that NDTs or MPIs are adequate to detect small cracks. Although we agree that an MPI is both sensitive and reliable, small cracks may remain following that inspection. For that reason, rework is necessary to ensure the removal of any cracking that remains undetected by the inspections.

However, the FAA concurs with the commenters' requests to modify the insurance cut (rework) requirements for the support fitting. We consider that the sensitivity of the main particle inspection is sufficient to detect cracks of a smaller size than those specified in Revision 4 or earlier revisions of the service bulletins. As a result, we have determined that removing less material from the holes in the trunnion bearing support fitting is adequate to ensure the safety of the fleet. Although Revision 5 of the service bulletin specifies a further reduction in the size of the insurance cut specified in Revisions 3 and 4 (and earlier revisions) of the service bulletin, we consider that the repair/rework action accomplished per Revisions 3, 4, or 5 of the service bulletins, and the replacement action (i.e., replaced with a new or repair/reworked part) per Revision 5 of the service bulletin, are equally acceptable. Paragraph (e) in the final rule (cited as paragraph (d) of the NPRM) has been changed accordingly.

The ATA states that five member airlines request that the inspection/rework intervals specified in the NPRM be extended from 12,000 flight cycles to a 10-year overhaul cycle. Several of the member airlines consider that the existing 10-year overhaul programs, combined with effective corrosion prevention programs, have prevented the unsafe condition identified in the NPRM. As a result, several commenters recommend that the inspections be performed on a 10-year overhaul cycle. Several commenters state that having a Corrosion Prevention and Control Program (CPCP), with a 10-year interval between rework (overhaul), is adequate in maintaining corrosion at an acceptable level of safety.

Another commenter states that there are no data to support an interval of 12,000 flight cycles for reworking the subject fitting. The commenter states that all failures of the forward trunnion support fitting have occurred on fittings with extensive corrosion and long periods without overhaul. Such failures are not due to cyclic loading, but to intergranular stress corrosion cracking. The manufacturer (Boeing) confirms that the threshold of 12,000 flight cycles, cited in paragraphs (b)(1) and (c)(1) of the NPRM, is based on an industry average for D-checks and not on a damage tolerance assessment or other criteria.

One commenter requests extending the 12,000 flight cycles specified in paragraphs (b)(1), (c)(1), and (d) of the NPRM to 16,000 flight cycles. The commenter indicates that its gear overhaul records show no failed fittings due to cracks or corrosion, and no corrosion in the large bore of the fittings in 12 out of 14 fittings. In addition, the fittings had bearings installed without faying surface sealant, although the current overhaul procedure requires such sealant, which will improve corrosion resistance.

One commenter states that Boeing has identified the subject fitting as an “on condition” part, with no prescribed time limits for rework (overhaul). In addition, the Boeing 727 Maintenance Planning Document (MPD) recommends an inspection of the subject fitting at intervals not to exceed 16,000 flight cycles.

The FAA does not concur with the requests to extend the 12,000-flight-cycle intervals specified in paragraphs (b)(1), (c)(1), and (d) of the NPRM (cited as paragraphs (b)(1), (d)(1), and (e) in the final rule). Although a number of operators have implemented effective CPCPs per AD 90-25-03, amendment 39-6787 (55 FR 49258, November 5, 1990), fleet experience indicates that more rigorous inspections are required to detect and correct cracking of a bearing support fitting for the main landing gear. Preliminary data from the manufacturer indicate that, based on crack growth, 12,000 flight cycles is the correct interval for the inspections/rework. In addition, the inspection/rework intervals specified in certain earlier issues of the MPDs and CPCPs may not be adequate for detecting such cracking. Further, we have not received sufficient data from the commenters to determine what the acceptable 10-year overhaul requirements are for the specified support fitting.

In view of this information, we find that the compliance times for the inspections and repair/rework actions cited in this AD are appropriate for ensuring an adequate level of safety. No change is made to the final rule in this regard. However, should an operator wish to gain approval for use of an alternate inspection schedule that provides an acceptable level of safety, the operator may submit a request for approval of an alternative method of compliance under paragraph (h) of this AD.

One operator requests revising paragraph (a) of the NPRM to require that operators accomplish the inspection “at the later of” rather than “at the earlier of” the times required in that paragraph. The commenter states that the earlier compliance time would not allow sufficient time for the inspection, and that qualified personnel or equipment would not be available. An estimated 6 hours would be required for the inspection instead of the 4 hours specified in the NPRM. In addition, the requested change would not adversely affect safety.

The FAA does not concur with the request to make the proposed revision to the compliance time in paragraph (a) of this AD. Although the proposed change may be appropriate for the commenter, it may not be appropriate for other operators. We point out that corrosion is affected by time rather than flight cycles, and that the AD addresses both fatigue and corrosion factors. No change is made to the final rule in this regard.

Two commenters request that the FAA revise the NPRM to specify that operators may either rework the support fitting or replace it with a new fitting. The commenters also request that the FAA revise paragraph (e) of the NPRM (cited as paragraph (g) in the final rule) to include the replacement option. The commenters contend that there is no justification to rework (shop overhaul) and “insurance cut” a new part that has not been subjected to cyclic loads and has no corrosion.

The FAA concurs with the commenters' requests that this AD should include a replacement option, which allows operators to either repair/rework a damaged support fitting, or replace it with a new or reworked fitting. We also agree that it is not necessary for new parts to be reworked. While paragraph (e) of the final rule requires that operators repair/rework the support fitting, a new paragraph (f) allows an option for replacement of the fitting with a new fitting, followed by repetitive inspections of the new fitting. In addition, we have reformatted paragraph (g) of the final rule. Paragraph (g)(1) clarifies that a new fitting that has been received from the manufacturer and has not been previously installed on any airplane is acceptable for installation.

One commenter suggests revising the NPRM to defer action on new support fittings until the airplane reaches an initial threshold of 10 years. The FAA concurs. Paragraph (f)(2) of the final rule is added to specify that new fittings, if installed, must be inspected at intervals not to exceed 12,000 flight cycles or 10 years, whichever occurs first.

One commenter requests clarification of paragraph (b) of the NPRM by dividing it into two distinct categories. The commenter suggests changing the service bulletins referenced in the “condition statement” of paragraph (b) of the NPRM to specify only the original issue and Revisions 1 and 2, and changing the service bulletins referenced in the “condition statement” of paragraph (c) of the NPRM to specify only Revisions 3 and 4 of the service bulletins. The commenter considers that such clarification will assist operators in tracking the reworked support fittings.

The FAA does not concur that the proposed clarifications to paragraphs (b) and paragraph (c) of the NPRM (cited as paragraphs (b) and (d) in the final rule) are necessary. The intent of the proposed rule was to have those paragraphs apply to airplanes reworked per any revision of the service bulletins. In the final rule, the intent of paragraph (b) is to require an interim inspection, until accomplishment of the inspections/rework actions required by paragraph (d), which specifies a grace period of 36 months for those airplanes that exceed 12,000 flight cycles or 10 years after rework. Paragraph (d) requires the accomplishment of either the inspections and repair/rework actions in paragraph (e), or the alternative actions in the new paragraph (f) of the final rule. Because the commenter's proposed changes do not keep this intent, no changes are made to the final rule in this regard.

One commenter states that paragraph (d) of the NPRM (cited as paragraph (e) in the final rule) should clarify that the repetitive inspections are “detailed visual and magnetic particle inspections.” Another commenter states that paragraph (d) of the NPRM should clarify whether the repetitive inspections are ultrasonic inspections per Part I of the service bulletins, or detailed visual and magnetic particle inspections per Part II of the service bulletins.

The FAA concurs with the commenters' requests. We have revised paragraph (e) in the final rule to specify repetitive detailed visual and magnetic particle inspections, and to clarify that those inspections are to be accomplished in accordance with Part II of the Accomplishment Instructions of Revisions 3, 4, or 5 of the previously referenced service bulletins. In addition, we have added that accomplishment of the inspections and repair/rework or replacement action specified by paragraph (e) of the final rule constitutes terminating action for the requirements in paragraphs (a) through (d) of this AD.

One commenter states that the cost estimate presented in the preamble to the NPRM is too low. The commenter states that its line maintenance personnel estimate that it will require a minimum of 6 hours to do the ultrasonic inspection instead of the 4 hours specified in Boeing Alert Service Bulletin 727-57A0179, Revision 4, dated July 13, 2000.

The FAA does not concur that the cost estimate for the ultrasonic inspection proposed by the NPRM is too low for several reasons. First, the previously referenced service bulletins specify 4 hours for the ultrasonic inspection. Second, the commenter did not provide any substantiating data for the requested change. As stated in the preamble in the NPRM, our cost estimates typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. As a result, no change to the final rule is necessary in this regard.

One commenter requests that a paragraph reference specified in Note 1 in the NPRM be changed from paragraph (e) to paragraph (f). The FAA concurs with the request to change the paragraph reference; however, the correct paragraph reference in Note 1 of the final rule is now paragraph (h). The final rule is changed accordingly.

One commenter, the ATA, requests that the FAA issue a supplemental NPRM in lieu of a final rule. The justification for this request is because of the comprehensive and detailed nature of the many comments received from the operators regarding the requirements of the NPRM and their recommended changes. The commenter advises that one operator has submitted a written proposal that includes suggested technical changes, which would provide a level of safety equivalent to that of the NPRM.

The FAA does not concur that a supplemental NPRM should be issued in lieu of a final rule. We consider that all of the commenters' proposed changes are relieving or clarifying in nature and do not add any additional requirements. Issuance of a supplemental NPRM is necessary only if the commenters request substantive changes, and the FAA concurs with those commenters' requests. In this case, the FAA considers that issuance of the final rule is the appropriate rulemaking action.

Since the issuance of the proposed rule, the FAA has determined that the requirements for the follow-on actions/repetitive inspections specified in paragraphs (b)(2)(i) and (b(2)(ii) of the NPRM need to be clarified. We inadvertently specified the follow-on actions/repetitive inspections in paragraph (b)(2) of the NPRM. Those requirements, as specified in the service bulletin, also apply to paragraphs (a) and (b)(1) of the NPRM. To reflect this change, we have revised the final rule by including the follow-on actions/repetitive inspections, specified in paragraphs (b)(2)(i) and (b)(2)(ii) of the NPRM, as paragraphs (c), (c)(1), and (c)(2) in the final rule. We also have renumbered the succeeding paragraphs in the final rule accordingly.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 1,375 Model 727 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 912 airplanes of U.S. registry will be affected by this AD.

Should an operator be required to accomplish the ultrasonic inspection, it will take approximately 4 work hours per airplane to accomplish the inspection, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the ultrasonic inspection on U.S. operators is estimated to be $240 per airplane, per inspection cycle.

It will take approximately 6 work hours per airplane to accomplish the detailed visual and magnetic particle inspections, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the detailed visual and magnetic particle inspections on U.S. operators is estimated to be $328,320, or $360 per airplane, per inspection cycle.

It will take approximately 108 work hours per airplane to accomplish the rework of the trunnion fitting, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the rework on U.S. operators is estimated to be $5,909,760, or $6,480 per airplane.

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

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 89-03-05, amendment 39-6120 (54 FR 3430, January 24, 1989), which is applicable to certain Model 757 series airplanes, was published in the Federal Register on March 20, 2001 (66 FR 15670). The action proposed to continue to require repetitive freeplay checks of the elevator, and replacement of worn elevator power control actuator (PCA) reaction link rod-end bearings and the PCA rod-end bearing, if necessary. The action also proposed to remove the optional terminating action provided by the existing AD, expand the applicability of the existing AD to include additional airplanes, and require repetitive freeplay checks of the elevator at a revised repeat interval and repetitive lubrication of bearings of the elevator actuator load loop and hinge line.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter, an operator, considers the proposed AD unnecessary. This commenter reports that the fleet has not experienced any problems with airframe vibration due to elevator PCA load loop bearings. The commenter adds that the fleet has incorporated the terminating actions as specified by Boeing Service Bulletin 757-27A0086, Revision 2, dated July 27, 1989, and is scheduled for bearing lubrication every 18 months. According to the commenter, it is unclear how the nature of the airframe vibration is unsafe, unless it is not addressed when first identified.

The FAA infers that the operator is requesting that the proposed AD be withdrawn. The FAA does not agree with the commenter's rationale as a basis for withdrawal. Other operators have reported vibration events despite having incorporated the terminating action of AD 89-03-05 and scheduling lubrication at 18-month intervals. Further, not all vibration events are addressed immediately. In some cases, no action was taken until the vibration worsened. The FAA has determined that issuance of this AD is necessary to ensure the safety of the fleet.

Several commenters request that the proposed AD be revised to replace the cited source of service information (Boeing Service Bulletin 757-27A0086). The commenters provide the following reasons for this request:

1. The service bulletin specifies use of BMS3-24 grease (Aeroshell 16), which has been replaced by the bearing manufacturer with BMS3-33 grease. The commenters state that BMS3-33 grease has better corrosion-preventive properties.

2. The freeplay check procedures specified by the service bulletin can produce “unnecessary” failures that would require unnecessary corrective action.

3. The service bulletin specifies a sequence for replacing specific bearings. The commenters request that operators be allowed to assess the serviceability of individual components and, based on that assessment, to replace, in any order, the defective component to correct the elevator freeplay.

4. The part number for the bearing has been changed.

The FAA partially concurs with the request and provides the following responses, numbered to correspond to the comments listed above.

1. The FAA has determined that use of either the BMS3-24 or BMS3-33 grease will be acceptable, as long as the grease types are not intermixed on any individual bearing. The FAA does agree that BMS3-33 grease does have better corrosion-preventive properties, but is unable to concur with the request to change the requirement as proposed without documented, approved procedures for purging existing grease. However, once those procedures are defined, the FAA may approve requests for alternative methods of compliance under the provisions of paragraph (f)(1) of the final rule if data are submitted to substantiate that adequate purging procedures have been developed.

2. The FAA has determined that an “unnecessary” failure (false positive result) does not represent a serious safety risk. Use of too-conservative criteria for allowable freeplay outweighs any inconvenience to operators from a false positive result.

3. The FAA agrees that the replacement sequence described in the service bulletin may need clarification. Defective bearings must be replaced when they are discovered, regardless of the sequence listed in the service bulletin. Paragraphs (a) and (b) of the final rule have been revised to clarify the requirement.

4. As indicated in the service bulletin, the bearings may be replaced with reaction link bearings having either Boeing part number (P/N) S251N214-8 (Rexnord P/N DRX34C) or S251N214-11 (Rexnord P/N DRX34B). The Boeing PCA assembly, P/N S251N211-11, contains Rexnord P/N DRX32B. The FAA has added new Note 3 to this final rule to clarify the part numbers.

One commenter requests that the proposed AD be revised to require compliance with procedures that will be included in a future service bulletin expected to be issued in September 2001. The commenter advises that the new service bulletin will include minor refinements to the procedures described in Boeing Service Bulletin 757-27A0086, which is cited in AD 89-03-05 as the appropriate source of service information for the freeplay check. The minor refinements are intended to adequately detect freeplay and yet avoid “unnecessary” failures. The commenter requests that the AD also require a second freeplay check, which would terminate the repetitive freeplay checks and lubrication, and follow-up maintenance review board (MRB) actions, which are in the process of being revised. The commenter states that the revised MRB tasks will improve detection of elevator freeplay and improve prevention of corrosion by shorter lubrication intervals. The commenter concludes that incorporation of the new service information will be adequate to prevent elevator vibration in flight.

The FAA does not concur with the request. The FAA cannot approve the use of a document that does not yet exist. In addition, in an AD, reference to an unpublished service bulletin violates Office of the Federal Register (OFR) regulations regarding approval of materials “incorporated by reference” in rules. However, if a new service bulletin is issued in the future, operators may request approval to use it as an alternative method of compliance under the provisions of paragraph (f)(1) of this final rule. In consideration of the urgency of the identified unsafe condition and the amount of time that has already elapsed since the proposed AD was issued, the FAA has determined that further delay of this final rule is not appropriate. If the FAA finds that a substantial safety benefit can be derived from the future service bulletin that would justify mandating its incorporation, the FAA may consider further rulemaking. Furthermore, there is no guarantee that the service bulletin will be issued in September 2001; any delay would further expose the fleet to risks. Accomplishment of MRB actions are not mandatory, so reliance on their accomplishment by operators cannot satisfy any terminating requirements of an AD. In addition, incorporation of a new service bulletin having new actions would alter the actions of the proposed AD; therefore, additional rulemaking would be required. The FAA finds that delaying this action would be inappropriate in light of the identified unsafe condition. No change to the final rule is necessary in this regard.

Several commenters request that the proposed compliance time be extended to better accommodate operators' schedules. One commenter suggests mandating the elevator freeplay check as an MRB task at a “2C-check” or 36-month interval. Another commenter suggests a 24-month interval. Another commenter, an operator, anticipates that the proposed interval would place a significant and undue financial burden on its operations, which would extend to the flying public.

The FAA does not concur. Designating these actions as MRB tasks, which are not mandatory, would provide no assurance that operators would follow the prescribed actions within the prescribed schedule. Furthermore, although the maintenance planning data document currently recommends a “2C” freeplay check, the fleet is still subject to vibration. Service history for the affected airplanes has shown that vibration can occur in less than 24 months after a “C” check. Therefore, the FAA finds the 18-month interval to be appropriate; no change to the final rule is warranted in this regard.

One commenter requests that the lubrication interval be shortened to reduce the incidence of corrosion (the main contributor to excessive freeplay) in the bearings. The commenter recommends accomplishing the bearing lubrication at 6-to 9-month intervals for airplanes on which the terminating action of AD 89-03-05 has been accomplished, and at 1,000-flight-hour intervals for airplanes on which the terminating action has not been accomplished.

The FAA does not concur. The FAA finds that delaying this action would be inappropriate in light of the identified unsafe condition. Furthermore, shortening the proposed interval would alter the requirements, so additional rulemaking would be required. However, the FAA may consider further rulemaking to revise the lubrication intervals, if data are provided that demonstrate that shorter intervals are necessary to ensure safety.

Several commenters request an extension of the proposed compliance time for the initial check and lubrication for certain airplanes. For airplanes that are not subject to paragraph (a) or (b) of the proposed AD, the commenters suggest a revised threshold of 5,000—rather than 3,000—total flight cycles, and a revised grace period of 180—rather than 90—days; and revised repetitive intervals of up to 24 months. The commenters suggest these extensions to circumvent an anticipated significant impact on operators' schedules and maintenance.

The FAA partially concurs. The FAA finds it necessary to retain the 3,000-flight-cycle threshold as proposed, in light of an event in which an airplane that had accumulated fewer than 5,000 total flight cycles did experience a vibration event. However, the FAA concurs with the request to extend the grace period to 180 days for those airplanes that are not subject to AD 89-03-05; the bearings on those airplanes have improved bearing seals with improved grease retention. The FAA has determined that the grace period, as proposed, represents an appropriate interval in which the initial check/lubrication can be accomplished in a timely manner within the fleet and still maintain an adequate level of safety. Paragraph (d)(3) of this final rule has been revised accordingly.

Two commenters state that the compliance requirements in the proposed AD are vague. One commenter states that the proposed AD does not specify if compliance can be taken on airplanes that have completed the inspection but are not incorporated into the service bulletin effectivity. The other commenter requests that Table 1 be revised for the group that has accomplished neither paragraph (a) nor (b) by including “aircraft which previously accomplished the terminating actions of AD 89-03-05.” The commenter states that this additional language would clarify the requirement indicating that those airplanes are subject to the new rule.

The FAA does not concur. The applicability of this AD includes all Model 757 series airplanes. An affected airplane that does not fall within the applicability in paragraph (a) or (b) of the AD is included in the requirement for paragraph (d)(3). No change to the final rule (except for the addition of subparagraph numbers (1), (2), and (3) in paragraph (d)) is necessary in this regard.

Several commenters request that the proposed AD be revised to allow the use of measuring devices specified in the airplane maintenance manual (AMM) to measure the deflection in the elevator. (The proposed AD would require measuring the freeplay by use of a dial indicator, as specified by Boeing Service Bulletin 757-27A0086.) The commenters suggest a scale or ruler with 0.001 or 0.010 graduations.

The FAA concurs with this request and finds that use of a scale or ruler having graduations of 0.010 inch or finer to measure the freeplay will provide the accuracy necessary to ensure safety. New Note 2 of the final rule has been added to advise operators of the acceptability of alternative measuring devices.

One commenter requests that the proposed AD be revised to allow interim corrective action if the freeplay is between certain limits specified by Section III.F.1 of Boeing Service Bulletin 757-27A0086. The commenter states that this interim action would allow affected airplanes to remain in service until the next “C-check.”

The interim corrective action, provided by AD 89-03-05, is retained in this AD; therefore, no change to the final rule is necessary in this regard.

Two commenters questioned the location of certain parts that are required to be lubricated. The commenters request (1) clarification of the identity of the bearings in the load loop and hinge line, and (2) a reference to or demonstration of the location of the PCA load loop and hinge line.

The commenter may have misinterpreted “PCA load loop” as including the PCA input linkage. Mandated checks and lubrication of this entire area are not included in the requirements of this AD. No change to the final rule is necessary in this regard.

One commenter requests a change to the heading of the fourth column in Table 1 of the proposed AD. The commenter requests that “MPD ‘2C’ check” be changed to read, “MPD item 27-02-00-6A” to show that the current MPD “2C” check is no longer a requirement.

The FAA does not concur. Except for Section 9, the MPD is not approved or required by the FAA. The item designations may change without FAA knowledge or approval. No change to the final rule is necessary in this regard.

Several commenters express concern about the availability of replacement bearings for failed PCAs. With only a single source for their manufacture, the bearings may not be in adequate supply to accommodate the affected fleet, and as a result operators may experience unnecessary down time.

The FAA infers that the commenters are requesting an extension of the compliance time to accommodate anticipated parts shortages. The FAA does not concur. The FAA has determined that used PCAs may be used for replacement parts if they are modified in accordance with Boeing Service Bulletin 757-27A0086. Also, as discussed previously, the grace period for the freeplay checks has been extended in the final rule, further mitigating the problem of parts availability.

One commenter requests that the proposed AD be revised to provide terminating action for the repetitive freeplay checks. Terminating action would ease the burden of repetitive checks.

The FAA does not concur. The FAA is not aware of any terminating action that is being considered or developed. If such action is developed, approved, and available, the FAA may consider additional rulemaking. However, due to the nature of corrosion, even modified areas would likely continue to need repetitive inspections.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 906 airplanes of the affected design in the worldwide fleet.

The actions that are currently required by AD 89-03-05 affect approximately 90 airplanes of U.S. registry. Those actions take approximately 30 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the currently required actions on U.S. operators is estimated to be $162,000, or $1,800 per airplane, per check cycle.

The FAA estimates that 598 airplanes of U.S. registry will be affected by this new AD. The new actions required by this AD will take approximately 28 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the new requirements of this AD on U.S. operators is estimated to be $1,004,640, or $1,680 per airplane, per check cycle.

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

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on May 4, 2001 (66 FR 22479). That action proposed to require repetitive eddy current inspections to detect cracks in the upper girder of the two main landing gear (MLG) brackets; and repair of a cracked bracket followed by repetitive inspections, or replacement of a cracked MLG bracket with an improved bracket, as applicable. That action also proposed to provide for optional terminating action for certain requirements of this AD.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter requests that airplanes be allowed to fly with cracks within the range of 16 millimeters (mm) (0.630 inches) to 40 mm (1.575 inches) on the MLG bracket, with repetitive inspections, for a period of six months or until the next heavy maintenance check, whichever occurs first. A second commenter requests that the replacement of the MLG bracket required by paragraph (b) of the proposed AD be required only when cracks exceed 40 mm (1.575 inches), as indicated in Dutch airworthiness directive 1999-045/2 dated October 31, 2000, and Fokker Service Bulletin F28/59-90, Revision 1, dated August 28, 2000. Both commenters point out that the proposed replacement of the MLG bracket would require extended downtime and would be a disruption to the operator's operating schedule if the repair cannot be accomplished in conjunction with a heavy maintenance check. The commenters state that requiring replacement of the MLG bracket with cracks between 15 mm (0.591 inches) and 40 mm (1.575 inches) could create severe logistical disturbances and a significant cost impact for the operators, with no added safety benefit.

The FAA partially agrees with these commenters. The FAA acknowledges that if any crack is found, no matter what its length, the repair or replacement required by paragraph (a) or (c) of the AD requires a considerable number of work hours. We also acknowledge that unless the repetitive inspections required by paragraph (a) of this AD are scheduled during a heavy maintenance check, any crack finding could potentially remove the airplane from service and possibly result in a disruption to operating schedules.

To address this issue, the Rijksluchtvaartdienst (RLD), the airworthiness authority for the Netherlands, has allowed a repeat inspection at intervals of 250 flight cycles, or one month, as an alternate to replacement. Neither Dutch airworthiness directive 1999-045/2, dated October 31, 2000, nor Fokker Service Bulletin F28/59-90, Revision 1, dated August 28, 2000, puts a time limit on this replacement deferral. If the FAA were to allow for this reduced inspection cycle in lieu of repair, we would require a time limit.

While recognizing that repair deferrals may be necessary at times, FAA policy is intended to minimize adverse human factors relating to the lack of reliability of long-term repetitive inspections, which may reduce the safety of the type certificated design if such repair deferrals are practiced routinely. Based upon correspondence with the manufacturer, the FAA has determined that no structural detrimental permanent deformation will occur in the MLG and surrounding structure under the full limit load when a stress corrosion crack with a length of 40 mm or less is present at the indicated location. In addition, no failure will occur in the MLG bracket or surrounding structure under the ultimate load. If the crack does not exceed 40 mm in length it will not cause loss of function or interfere with other necessary parts of the design. Experience supports the results of the theoretical analysis and the FAA has a high degree of confidence that operation with a known crack is safe as long as it is closely monitored.

Consequently, paragraph (a) of the final rule has been revised to allow for a repair deferral period of not more than 18 months if a crack of 40 mm or less is detected, provided the crack is monitored at the reduced inspection interval specified in the service bulletin. In addition, paragraph (a) has been revised and reformatted to clarify that terminating action is not necessary; paragraph (c) has been removed; and subsequent paragraphs have been renumbered accordingly.

Under the provisions of paragraph (e) of the final rule, the FAA may approve requests for adjustments to the compliance time if data are submitted to substantiate that such an adjustment would provide an acceptable level of safety.

The FAA's intent in this rule was to require that repairs specified in paragraph (a) be performed in accordance with Part 3 (“The Repairs and the Repetitive Inspections”) of the Accomplishment Instructions of Fokker Service Bulletin F28/57-90, Revision 1, dated August 28, 2000. As issued, the supplemental notice of proposed rulemaking contained an incorrect reference to a service bulletin paragraph. The final rule has been revised to correct this error and to clarify the appropriate requirements.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

The FAA estimates that 8 Fokker Model F.28 Mark 1000, 2000, 3000, and 4000 series airplanes of U.S. registry will be affected by this AD, that it will take approximately 2 work hours per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $960, or $120 per airplane.

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

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Raytheon Model Beech 400A series airplanes was published in the Federal Register on August 30, 1999 (64 FR 47142). That action proposed to require replacement of certain bus bars connecting the battery and external power receptacle to the airframe ground with a new, improved bus bar.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the single comment received.

The commenter requests that the “Spares” paragraph be revised to read as follows (added text in brackets): “(b) As of the effective date of this AD, no person shall install on any [Raytheon Model Beech 400A series] airplane, a bus bar, P/N 128-364239-17 or P/N 101-361146-1.” The commenter states that the same part number is used on Raytheon (Beech) Models 300 and B300 and is not unsafe on those models. The “Spares” paragraph proposed in the NPRM could be interpreted in such a way as to prevent the use of the parts on Raytheon (Beech) Models 300 and B300.

The FAA concurs and has revised paragraph (b) of the final rule accordingly.

The final rule has also been revised to reflect the updated name of Raytheon Model Beech 400A series airplanes and the current address from which service information may be received.

After careful review of the available data, including the comment noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes previously described. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 122 Model Beech 400A series airplanes of the affected design in the worldwide fleet. The FAA estimates that 110 airplanes of U.S. registry will be affected by this AD, that it will take approximately 11 work hours per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. The manufacturer has committed previously to its customers that it will bear the cost of replacement parts. As a result, the cost of those parts is not attributable to this AD. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $72,600, or $660 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. However, the FAA has been advised that manufacturer warranty remedies are available for labor costs associated with accomplishing the actions required by this AD. Therefore, the future economic cost impact of this rule on U.S. operators may be less than the cost impact figure indicated above.

The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The FAA has received reports of a recent incident on a McDonnell Douglas Model DC-9 series airplane involving smoke in the cockpit and cabin. Investigation of the incident revealed that the smoke was caused by an internal phase-to-phase short circuit of the alternating current (AC) cross-tie relay resulting from migration and accumulation of metallic dust from electrical contact wear. Operators have reported other instances of AC cross-tie relay failure, causing arcing in the electrical panel area. Internal phase-to-phase short circuiting of the AC cross-tie relay caused by metallic dust accumulation, if not corrected, could result in internal arcing of the relay and smoke and/or fire in the cockpit and cabin.

Operators should note that a supplemental notice of proposed rulemaking (NPRM), Rules Docket 99-NM-90-AD, was published in the Federal Register on June 14, 2001 (66 FR 32276), which would require replacement of certain AC power relays with certain new relays, and repetitive overhauls of certain AC power relays. That supplemental NPRM is related to this AD.

Based on comments received in response to the supplemental NPRM and the recent incident described above, the FAA has determined that the AC cross-tie relay, part number (P/N) 914F567-3 and -4, poses a more serious safety condition than previously determined. The FAA finds that a shorter compliance time (i.e., within 90 days after the effective date of this AD) than the compliance time specified in the supplemental NPRM (i.e., within 12 months after the effective date of the AD) is necessary for accomplishing the replacement of AC cross-tie relay, P/N 914567-3. Since a shorter compliance time would alter the actions currently proposed by the supplemental NPRM, another supplemental NPRM would be required. The FAA finds that to delay that action would be inappropriate in light of the identified unsafe condition.

In addition, the FAA has verified with the airplane manufacturer that there is a limited availability of spare parts, Sundstrand (Westinghouse) AC cross-tie relay, P/N 914567-4. Therefore, for any Sundstrand (Westinghouse) AC cross-tie relay, P/N 914567-4, with more than 7,000 flight hours since modification or installation, and for airplanes on which the flight hours since modification or installation of Sundstrand (Westinghouse) AC cross-tie relay, P/N 914567-4 cannot be determined, the FAA has determined that replacement and repetitive maintenance of those relays within 90 days will accommodate the time necessary for affected operators to obtain and replace the affected relay, without adversely affecting safety.

In light of the above findings, certain actions required for the AC cross-tie relays, P/N 914F567-3 and -4, that were specified in the supplemental NPRM have been specified in this AD, and the supplemental NPRM will be revised to reflect these changes.

The FAA has reviewed and approved Boeing Alert Service Bulletin DC9-24A193, dated July 31, 2001, which describes procedures for a one-time inspection to determine if a certain AC cross-tie relay is installed. The service bulletin also describes procedures for replacement of any AC cross-tie relay, P/N 914F567-3, with a Sundstrand (Westinghouse) relay, P/N 9008D09 series or 914F567-4; and repetitive cleaning, inspection, repair and testing of any Sundstrand (Westinghouse) AC cross-tie relay, P/N 914F567-4. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design, this AD is being issued to prevent internal arcing of the AC cross-tie relay and smoke and/or fire in the cockpit and cabin. This AD requires accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Operators should note that, although the procedures described in Boeing Alert Service Bulletin DC9-24A193, dated July 31, 2001, specify maintenance of P/N 9008D09 series when it is beyond service interval limits, this AD does not require repetitive maintenance of AC cross-tie relays with that P/N because the unsafe condition has not been found on AC cross-tie relays with that P/N.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

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

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

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

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-264-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

The Direction Générale de l'Aviation Civile (DGAC), which is the airworthiness authority for France, recently notified the FAA that an unsafe condition may exist on Airbus Model A319 and A320 series airplanes equipped with certain Goodrich carbon brakes. The DGAC advises that a Model A320 series airplane departed the end of the runway during landing. Investigation revealed that the airplane's Goodrich brakes did not meet performance specifications. The reduced performance may have been caused by the contamination of the brake wear surfaces by the oxidation inhibitor applied during production and/or a tendency of this particular type of oxidation inhibitor to absorb water. The susceptibility of this oxidation inhibitor to absorb water is exacerbated during a period of inactivity of the airplane brakes (that is, more than 7 sequential days without brake usage). Such reduced braking performance could exist throughout the life of the brakes and, if not corrected, could result in the airplane departing the end of the runway during landing or a rejected takeoff.

Airbus has issued A319/320/321 Airplane Flight Manual (AFM) Temporary Revisions (TRs) 5.02.00/60 (for Model A319 series airplanes) and 5.03.00/21 (for Model A320 series airplanes), both Issue 2, both dated September 14, 2001. The TRs provide the flight crew with performance corrections necessary to ensure adequate runway lengths for certain takeoff and landing conditions. The performance corrections are intended to prevent the airplane from departing the end of the runway during a landing or a rejected takeoff due to reduced braking performance. The DGAC classified these TRs as mandatory and issued French airworthiness directive 2001-441(B), dated September 19, 2001, to ensure the continued airworthiness of these airplanes in France.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, this AD is being issued to ensure adequate takeoff and landing field lengths to prevent the airplane from departing the end of the runway during a landing or a rejected takeoff due to reduced braking performance. This AD requires a revision to the Limitations section of the FAA-approved AFM to advise the flight crew of performance corrections necessary to ensure adequate runway lengths for certain takeoff and landing conditions.

The applicability of this AD includes additional part numbers and modifications not identified by the existing French airworthiness directive. Those additional part numbers and modifications are included in Issue 2 of TRs 5.02.00/60 and 5.03.00/21, cited in this AD as the appropriate sources of information for the revised AFM procedures.

This is considered to be interim action until final action is identified, at which time the FAA may consider further rulemaking.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES. All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Submit comments using the following format:

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

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

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

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket 2001-NM-287-AD.” The postcard will be date stamped and returned to the commenter.

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

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES.

On December 21, 2000, the United States Architectural and Transportation Barriers Compliance Board (“Access Board”) published final disability access standards for federal electronic and information technology (“EIT”) under section 508 of the Rehabilitation Act of 1973, 29 U.S.C. 794d, as amended. See 65 FR 80500 (final EIT accessibility standards), to be codified at 36 CFR part 1194. Section 508 requires that agencies, when developing, procuring, maintaining or using EIT, 1 ensure that such technology allows individuals with disabilities who are federal employees to have access to and use of information and data that is comparable to the access to and use of such information and data by federal employees without disabilities, unless an undue burden would be imposed on the agency. 29 U.S.C. 794d(a)(1)(A)(i). Likewise, federal agencies are required to ensure that such technology allows individuals with disabilities who are members of the public seeking information or services from the agency to have access to and use of information and data that is comparable to the access to and use of the information and data by members of the public who are not disabled, unless an undue burden would be imposed on the agency. 29 U.S.C. 794d(a)(1)(A)(ii). When it would be an undue burden for the agency to develop, procure, maintain, or use EIT that meets the Access Board's accessibility standards, the agency must provide individuals with disabilities the information and data involved by an alternative means of access that allows such individuals to use that information and data. 29 U.S.C. 794d(a)(1)(B).

To enforce these requirements, section 508 provides that any individual with a disability may file a complaint with the agency alleging that it has failed to comply with such standards with respect to EIT, but only if such EIT was procured by the agency no less than six months after the date that the final standards were published ( i.e., June 21, 2001, which is six months after the publication date of December 21, 2000). 29 U.S.C. 794d(f)(1)(A). Section 508 provides that complaints filed under section 508 shall be processed under the administrative procedures established by the agency to implement section 504 of the Rehabilitation Act, which prohibits discrimination against individuals with disabilities in federal programs and activities generally. See 29 U.S.C. 794.

The Commission's procedures for processing section 504 complaints are set forth in Part 6 of the Commission's Rules of Practice, 16 CFR part 6. Thus, the Commission is amending Part 6 to accommodate administrative complaints, if any, that may be filed under section 508. The amendments are described below:

Authority citation. This citation now refers to both sections 504 and 508 of the Rehabilitation Act.

Section 6.101: Purpose. The Commission is amending this section to add a reference to section 508.

Section 6.103: Definitions. The Commission is adding definitions of “electronic and information technology,” “information technology,” and “section 508.” These definitions are based on section 508 and the Access Board standards.

Section 6.152: Program accessibility: electronic and information technology. This section, which was previously reserved, sets forth a summary description of the requirement that the agency provide individuals with disabilities access to information and data that is comparable to the access provided to non-disabled individuals whenever the agency develops, procures, maintains, or uses EIT, as required by section 508.

The revised section also makes clear that, in revising its procedures to accommodate section 508 complaints, the Commission intends in no way to waive or modify the legal or procedural requirements otherwise imposed by section 508, which authorizes complaints only with respect to EIT procured on or after June 21, 2001, as explained earlier. 2 Likewise, the amendment makes clear that the Commission's procedures are not intended to authorize EIT complaints that are otherwise legally exempted under section 508. 3

Section 6.170: Compliance procedures. The Commission is revising paragraphs (b), (d) and (i) of this section, which describes the administrative procedures to be followed by the agency in resolving complaints of discrimination on the basis of handicap in programs or activities conducted by the Commission. Paragraph (b), which had referred to complaints alleging employment-related violations of “section 504,” is being revised to refer to alleged violations of “section 504 or 508.” The Commission is also taking the opportunity to correct a legal citation in paragraph (b) to the relevant Equal Employment Opportunity Commission procedures for processing complaints by individuals with disabilities concerning alleged discrimination in federal employment.

Paragraph (d) addresses the procedures for discrimination complaints unrelated to federal employment (e.g., by members of the general public with disabilities) alleging violations “prohibited by this part [ i.e., Part 6 of the Commission's Rules].” The Commission finds it unnecessary to amend this language, since violations “prohibited by this part” now include section 508 violations in light of the revision to 16 CFR 6.152 discussed earlier. The Commission, however, is conforming its mailing address in paragraph (d)(3) to U.S. Postal Service standards. A similar technical correction is made in paragraph (i)(2) of this section.

Written communications and summaries or transcripts of oral communications respecting the merits of this proceeding from any outside party to any Commissioner or Commissioner's advisor will be placed on the public record. See 16 CFR 1.26(b)(5).

These amendments are purely procedural and do not materially or substantially alter the legal rights of interested parties. Thus, the Administrative Procedure Act (APA) does not require prior public notice and comment. 5 U.S.C. 553(b)(A) (exempting rules of agency organization, procedure, or practice). Nonetheless, the Commission will consider comments, if any, submitted on these amendments in order to determine whether further action, if any, may be appropriate or necessary.

The requirements for initial and final regulatory analyses of the small business impact of these rule amendments, pursuant to the Regulatory Flexibility Act, are not applicable, because that Act does not require analyses for matters that are exempt from notice-and-comment under the APA. 5 U.S.C. 605. Moreover, the Act does not require such analyses when an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Id. The Commission hereby certifies that these amendments will not have such an impact, because the procedures apply only to individuals with disabilities, who are not small businesses within the meaning of the Act. This document serves as notice of this certification to the Small Business Administration.

The rule amendments contain no information collection requirements (i.e., reporting, recordkeeping, or disclosure) subject to prior review and approval by the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. 3501-3518.

On October 4, 2001, Customs published in the Federal Register (66 FR 50534) T.D. 01-74 to set forth interim amendments to the Customs Regulations to implement those provisions within the United States-Caribbean Basin Trade Partnership Act (the CBTPA) that establish standards for preferential treatment for brassieres imported from CBTPA beneficiary countries. The interim regulatory amendments contained in T.D. 01-74 involve specifically the methods, procedures and related standards that will apply for purposes of determining compliance with the 75 percent aggregate U.S. fabric components content requirement for CBTPA brassieres which went into effect on October 1, 2001. The interim amendments took effect on the date of publication.

This document makes three corrections to cross-reference citations within paragraph (c)(3)(ii) of § 10.228.

The Pension Benefit Guaranty Corporation administers the pension plan termination insurance program under Title IV of the Employee Retirement Income Security Act of 1974 (ERISA). ERISA and PBGC regulations set deadlines of various kinds that must be met in order to be in compliance with the law.

The PBGC is aware that many of its customers may face a variety of compliance-related problems and concerns as a result of the terrorist attacks of September 11, 2001. During this difficult period, the PBGC will work with its customers to resolve any special issues and problems that may arise. This notice provides relief relating to PBGC deadlines.

This notice provides relief relating to PBGC deadlines as described below to Designated Persons. A “Designated Person” is a person responsible for meeting a PBGC deadline (for example, a plan administrator or plan sponsor) that (1) is located in a disaster area for which relief is provided under the Department of Labor announcement referenced below, or (2) cannot reasonably obtain information or other assistance needed to meet the deadline from a service provider, bank, or other person whose operations are directly affected by the disaster.

This notice also provides relief relating to PBGC deadlines as described below where a plan's Form 5500 or Form 5500-EZ filing deadline is extended as a result of the terrorist attacks under the announcement issued by the Department of Labor on September 14, 2001, on behalf of the Pension and Welfare Benefits Administration, the Internal Revenue Service, and the PBGC (a “Form 5500 Disaster Extension”). The Department of Labor announcement is available at http://www.dol.gov/dol/pwba/public/media/press/Pr091401.htm. A Form 5500 deadline that was extended as a result of that DOL announcement is referred to in this notice as a “Form 5500 Disaster Extension Date.”

A person claiming disaster relief described in this notice for a filing made with the PBGC should print or type “September 11, 2001, terrorist attack relief until ___” prominently at the top of the filing, inserting in the blank the last date to which relief for the filing is provided. (On Form 1 or Form 1-EZ, also check the “disaster relief” box at the top of the form.) Similarly, if a person receives an inquiry or bill from the PBGC that appears not to take disaster relief into account, the inquiry or bill should be returned to the PBGC with the same wording written at the top. (The PBGC may, for example, generate such an inquiry or bill because it has not yet been alerted to the fact that the filer claims disaster relief.)

This notice does not cover every situation in which PBGC disaster relief may be warranted. For example:

• The definition of “Designated Person” does not capture every person that might experience difficulty in meeting a PBGC deadline for reasons related to the disaster.

• This notice does not grant specific disaster relief for all filings. For example, it does not provide relief for certain filings that involve particularly important or time-sensitive information where there may be a high risk of substantial harm to participants or the PBGC insurance program, i.e., notices of large missed contributions under section 412(n) of the Internal Revenue Code, advance notices of reportable events under ERISA section 4043, and annual financial and actuarial information reports from certain controlled groups under ERISA section 4010.

Those affected by the disaster who need relief from the PBGC that is not covered by this notice should contact the PBGC as soon as reasonably possible. The PBGC will work with them in ensuring that they receive appropriate relief. To request case-by-case relief, contact Diane Morstein at the PBGC by ___.

• Calling 1-800-736-2444, extension 4136, or 202-326-4136 (for TTY and TDD, call 800-877-8339 and request connection to 202-326-4136);

• Sending an e-mail to practitioner.pro@pbgc.gov ; or

• Writing to Pension Benefit Guaranty Corporation, Diane Morstein, Suite 610, 1200 K Street, NW., Washington, DC 20005-4026, Re: Disaster Relief Notice.

The following relief applies where the plan administrator of a plan is a Designated Person.

First, if the deadline for submitting a premium payment form and paying any related premium (making a “premium filing”) for the plan falls on or after September 11, 2001, and before February 12, 2002, the PBGC will waive any late payment penalty (under ERISA section 4007) and any late filing penalty (under ERISA section 4071) for the period from that premium filing deadline through February 12, 2002.

Second, if the plan has a Form 5500 Disaster Extension Date for the 2000 plan year that is later than February 12, 2002, the PBGC will waive any late payment penalty and any late filing penalty for the period from February 12, 2002, through that Form 5500 Disaster Extension Date for the following premium filings:

• The plan's 2001 Form 1 (or Form 1-EZ) premium filing that is due late in the 2001 plan year ( e.g., October 15, 2001, for calendar year plans), and

• The plan's 2002 flat-rate premium filing (the “Form 1-ES filing”) that is due early in the 2002 plan year ( e.g., February 28, 2002, for calendar year plans) if the plan is a large plan. (Also, the PBGC will treat the 2002 Form 1-ES filing as timely made for purposes of applying the “safe harbor” penalty waiver rules if the filing is made by the 2000 Form 5500 Disaster Extension Date.)

Where the plan administrator of a plan is not a Designated Person, the PBGC will provide penalty relief if (1) the plan has a Form 5500 Disaster Extension Date of November 15, 2001, for the 1999 or 2000 plan year because of disruption of transportation and delivery of documents, and (2) the premium filing deadline for the plan for the following plan year (the 2000 or 2001 plan year, respectively) falls on or after September 11, 2001, and before November 15, 2001. Under this penalty relief, the PBGC will waive any late payment penalty (under ERISA section 4007) and any late filing penalty (under ERISA section 4071) for the period from that premium filing deadline through the November 15, 2001, Form 5500 Disaster Extension Date.

The relief in this notice relating to PBGC premiums does not include relief from late premium payment interest charges. The PBGC is not permitted by law to waive such charges. (ERISA section 4007(b); 29 CFR 4007.7 and .8(b)(3)).

This premium-related relief assumes no short plan years, but applies in similar fashion to short plan years. Plan administrators of plans with short plan years during the relevant period should contact the PBGC for guidance.

If the plan administrator of a plan that is terminating in a standard termination is a Designated Person, any of the following plan termination deadlines for the plan that falls on or after September 11, 2001, and before February 12, 2002, is extended to February 12, 2002:

• The deadline for filing the standard termination notice (Form 500) (29 CFR 4041.25(a)). (Note that this automatically extends the deadline for providing notices of plan benefits to participants and beneficiaries (29 CFR 4041.24(a)) because that deadline is the date when the standard termination notice is filed.)

• The deadline for completing the distribution of plan assets (29 CFR 4041.28(a)).

• The deadline for filing the post-distribution certification (Form 501) without penalty (29 CFR 4041.29(b)). (Note that this automatically extends the deadline for filing missing participant information and certifications without penalty and for paying missing participants' designated benefits to the PBGC without interest (29 CFR 4050.6(b)(2)).)

If the plan administrator of a plan that is terminating in a distress termination is a Designated Person and the deadline for filing the distress termination notice (Form 601) (29 CFR 4041.45(a)) falls on or after September 11, 2001, and before February 12, 2002, that deadline is extended to February 12, 2002. (Plan administrators of plans in distress terminations for which the PBGC has issued a distribution notice should contact the PBGC for case-by-case relief. See “Case-by-case relief” above.)

A plan's deadline for providing a Participant Notice under ERISA section 4011 for a plan year is two months after the deadline (including extensions) for filing the plan's Form 5500 for the preceding plan year (29 CFR 4011.8). Thus, if the plan has a Form 5500 Disaster Extension for the 2000 plan year, the deadline for providing a Participant Notice for the 2001 plan year is automatically extended to two months after the 2000 Form 5500 Disaster Extension Date.

In addition, if the plan administrator of a plan is a Designated Person, any deadline for providing a Participant Notice that falls on or after September 11, 2001, and before February 12, 2002, is extended to February 12, 2002.

Under the PBGC's regulation on post-event notices of reportable events (29 CFR part 4043, subparts A and B), the plan administrator and each contributing sponsor of a plan for which a reportable event occurs generally must notify the PBGC of the event within 30 days after the event occurs. In certain cases, the regulation extends the reporting deadline until 30 days after a plan's Form 5500 due date. ( See 29 CFR 4043.23(d)(2), .29(d)(2), .30(d)(2), .31(d)(2), and .34(d)(4).) If such a 30-day extension applies to a Form 5500 for which there is a Form 5500 disaster extension, the 30-day extension period in the PBGC's regulation will begin to run on the Form 5500 Disaster Extension Date.

In addition, if a Designated Person is responsible for filing a reportable event post-event notice for which the deadline falls on or after September 11, 2001, and before February 12, 2002, that person's deadline for filing the notice is extended to February 12, 2002.

In the case of notices required in advance of the effective date of a reportable event (29 CFR part 4043, subparts A and C), the PBGC will grant relief where appropriate on a case-by-case basis. See “Case-by-case relief” above.

The PBGC's regulation on Annual Financial and Actuarial Information Reporting (29 CFR part 4010) requires annual financial and actuarial information reporting in certain cases by contributing sponsors (and their controlled group members) maintaining plans with large underfunding or certain missed contributions or funding waivers. The PBGC will grant relief where appropriate on a case-by-case basis for these reports. See “Case-by-case relief” above.

However, the regulation permits the filing of certain actuarial information by an alternative due date, which is 15 days after a plan's Form 5500 due date, if certain requirements are met (29 CFR 4010.10(b)). If such an alternative due date is based on a Form 5500 for which there is a Form 5500 Disaster Extension, the 15-day period in the PBGC's regulation will be measured from the Form 5500 Disaster Extension Date.

The deadline for requesting review of a PBGC determination under the PBGC's regulation on Rules for Administrative Review of Agency Decisions (29 CFR part 4003) is generally 45 days (for an appeal) or 30 days (for a request for reconsideration) after the date of the determination. If a Designated Person is aggrieved by a PBGC determination, and the deadline for filing an appeal or a request for reconsideration of the determination falls on or after September 11, 2001, and before February 12, 2002, that person's deadline for filing the appeal or request for reconsideration is extended to February 12, 2002.

The disaster relief relating to premium deadlines (discussed under “Premiums,” above) also applies to multiemployer plans.

Under the PBGC's regulations governing multiemployer plans, various persons ( e.g., the plan sponsor) are subject to deadlines for making filings with the PBGC, issuing notices to persons other than the PBGC, and taking other actions. If the person responsible for meeting the deadline is a Designated Person, and the deadline falls on or after September 11, 2001, and before February 12, 2002, the PBGC will neither assess a penalty under ERISA section 4302 nor take any other enforcement action with respect to any failure to comply with the deadline during the period ending on February 12, 2002.

The PBGC recognizes that persons other than the PBGC may have rights to enforce some of these deadlines. The PBGC expects these persons to act reasonably—fully taking into account the effects of the recent disasters—in deciding whether and to what extent to exercise these rights.

The PBGC will grant other relief where appropriate on a case-by-case basis for deadlines relating to multiemployer plans. See “ Case-by-case relief ” above.

On May 6, 1998, the Department of the Treasury's Financial Management Service (FMS) issued a final rule (63 FR 25136) concerning implementation of the administrative wage garnishment provisions in section 31001(o) of the Debt Collection Improvement Act of 1996 (DCIA), Pub. L. 104-134, 110 Stat. 1321-358 (Apr. 26, 1996), codified at 31 U.S.C. 3720D. FMS published a technical amendment to the rule on April 28, 1999 (64 FR 22905), which deleted the requirement that Federal agencies issue an administrative wage garnishment order on agency letterhead. The requirement to issue the order on a form prescribed by the Secretary of the Treasury remains unchanged. This rule makes further technical amendments to the regulations concerning administrative wage garnishment, which are codified at 31 CFR 285.11.

In § 285.11(b)(3), the citation to the Federal Claims Collection Standards (FCCS) is updated to reflect the revised FCCS published on November 22, 2000 (65 FR 70390). The revised FCCS are found at 31 CFR parts 900-904.

In § 285.11(c), the term “certificate of service” is replaced with the term “evidence of service.” Conforming changes are made in §§ 285.11(e)(3) and 285.11(g)(3). Unlike a certificate of service, evidence of service does not need to be in the form of a document signed by an agency official. The purpose of evidence of service is the same as that of the certificate of service, that is, to retain evidence that a document has been sent to the debtor or employer for wage garnishment purposes. Evidence of service may be retained electronically or otherwise, so long as the manner of retention is sufficient for evidentiary purposes.

Section 285.11(g)(1) is amended to clarify the time frame within which an agency is required to issue a wage garnishment order after sending notice to the debtor of the agency's intent to do so. While agencies are encouraged to issue the wage garnishment order within the 30 day time period suggested, nothing in this rule is intended to imply that any wage garnishment order issued after such 30 day period is invalid.

Section 285.11(g)(2) is amended to allow the wage garnishment order to contain either the signature of, or the image of the signature of, the agency official authorized to issue the wage garnishment order. For purposes of this rule, the lack of an original signature on the wage garnishment order does not necessarily prove that the agency did not authorize the wage garnishment order. Evidence of such approval to garnish a debtor's wages may be retained by the agency electronically or otherwise, so long as the manner of retention is sufficient for evidentiary purposes. Employers must comply with a wage garnishment order that contains an original, or image of an original, signature.

This rule is not a significant regulatory action as defined in Executive Order 12866. Because no notice of proposed rulemaking is required for this rule, the provisions of the Regulatory Flexibility Act do not apply.

FMS is promulgating this final rule without opportunity for prior public comment and without a delayed effective date pursuant to the Administrative Procedure Act, 5 U.S.C. 553 (the “APA”). FMS has determined that a comment period and a delayed effective date are unnecessary because nothing in this rule impacts the rights or obligations of debtors or changes the authorities under which Federal agencies collect debt.

Portions of Maricopa County  1 are designated nonattainment for the PM-10 national ambient air quality standards (NAAQS)  2 and were originally classified as “moderate” pursuant to section 188(a) of the CAA. 56 FR 11101 (March 15, 1991). On May 10, 1996, EPA reclassified the Maricopa County PM-10 nonattainment area to “serious” under CAA section 188(b)(2). 61 FR 21372. Having been reclassified, Phoenix is required to meet the serious area requirements in CAA section 189(b).

While the Phoenix PM-10 nonattainment area is currently classified as serious, today's action relates only to the moderate area statutory requirements for RACM. However, Arizona developed legislation and a general permit rule applicable to agricultural sources of PM-10 when the area had already been reclassified to serious. Therefore the State's focus was on the serious area statutory requirements for “best available control measures” (BACM). RACM is generally considered to be a subset of BACM. As a result, in order to evaluate whether the general permit rule meets the RACM requirements for the purpose of this rulemaking, EPA referred to portions of the State's serious area SIP submittal. 3

The air quality planning requirements for PM-10 nonattainment areas are set out in subparts 1 and 4 of title I of the Clean Air Act. Those states containing initial moderate PM-10 nonattainment areas were required to submit, among other things, by November 15, 1991 provisions to assure that RACM (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT)) shall be implemented no later than December 10, 1993. CAA sections 172(c)(1) and 189(a)(1)(C). Since that deadline has passed, EPA has concluded that the required RACM/RACT must be implemented “as soon as possible.” Delaney v. EPA, 898 F.2d 687, 691 (9th Cir. 1990). EPA has interpreted this requirement to be “as soon as practicable.” See 55 FR 41204, 41210 (October 1, 1990) and 63 FR 28898, 28900 (May 27, 1998).

EPA has issued a “General Preamble”  4 describing EPA's preliminary views on how the Agency intends to review SIPs and SIP revisions submitted under title I of the Act, including those state submittals containing moderate PM-10 nonattainment area SIP provisions. The methodology for determining RACM/RACT is described in detail in the General Preamble. 57 FR 13498, 13540-13541. In short and as pertinent here, EPA suggests starting to define RACM with the list of available control measures for fugitive dust in Appendix C1 to the General Preamble and adding to this list any additional control measures proposed and documented in public comments. Any measures that apply to emission sources of PM-10 and that are de minimis and any measures that are unreasonable for technology reasons or because of the cost of the control in the area can then be culled from the list. In addition, potential RACM may be culled from the list if a measure cannot be implemented on a schedule that would advance the date for attainment in the area. 57 FR 13498, 13560; 57 FR 18070, 18072 (April 28, 1992).

PM-10 nonattainment areas reclassified as serious under section 188(b)(2) of the CAA are required to submit, within 18 months of the area's reclassification, SIP revisions providing for, among other things, the implementation of BACM no later than four years from the date of reclassification. The SIP must also provide for attainment of the PM-10 NAAQS by December 31, 2001, unless EPA grants an extension of that deadline. See CAA sections 188(c)(2) and (e); 189(b). On August 16, 1994, EPA issued an Addendum to the General Preamble that describes the Agency's preliminary views on the CAA provisions for serious area PM-10 nonattainment SIPs. 59 FR 41998. The Addendum provides that for moderate PM-10 areas reclassified as serious, the RACM requirements are carried over and elevated to a higher level of stringency, i.e., BACM. 59 FR 41998, 42009.

In May 1998, Arizona Governor Hull signed into law Senate Bill 1427 (SB 1427) which revised title 49 of the Arizona Revised Statutes (ARS) by adding section 49-457. This legislation established an Agricultural Best Management Practices (BMP) Committee that was required to adopt by rule by June 10, 2000, an agricultural general permit specifying BMPs for regulated agricultural activities to reduce PM-10 emissions in the Maricopa PM-10 nonattainment area. ARS 49-457.A-F. Subsection M of ARS 49-457 provided for the initiation of BMP implementation through the commencement of an education program by June 10, 2000.

On September 4, 1998, the State submitted ARS 49-457 to EPA for inclusion in the Arizona SIP as meeting the RACM requirements of CAA section 189(a)(1)(C). On June 29, 1999, EPA approved ARS 49-457 as meeting the RACM requirements of the CAA. 64 FR 34726. 5

Pursuant to ARS 49-457, the Agricultural BMP Committee adopted the agricultural general permit and associated definitions, effective May 12, 2000, at Arizona Administrative Code (AAC) R18-2-610, “Definitions for R18-2-611,” and 611, “Agricultural PM-10 General Permit; Maricopa PM10 Nonattainment Area” (collectively, general permit rule). On July 11, 2000, the State submitted AAC R18-2-610 and 611 to EPA as a revision to the Arizona SIP. 6

On June 29, 2001, EPA proposed to approve ACC R18-2-610 and 611 under section 110(k)(3) of the CAA as meeting the requirements of sections 110(a) and 189(a)(1)(C). EPA also concluded that its proposed approval of ACC R18-2-610 and 611 meets the requirements of CAA section 110(l). 66 FR 34598.

EPA received two comment letters on its proposed action. The comments were submitted by Dan Thelander, Chairman, Governor's Agricultural Best Management Practices Committee and Joy E. Herr-Cardillo, Arizona Center for Law in the Public Interest (ACLPI). Mr. Thelander expressed the BMP Committee's support for EPA's proposed approval of the general permit and listed the factors and limitations that the Committee addressed during the development of the general permit. ACLPI, in a July 30, 2001 letter, opposes EPA's proposed action. EPA responds to ACLPI's comments below.

Comment: ACLPI contends that the general permit rule fails to meet the requirement of CAA section 172(c)(1) that SIPs for nonattainment areas “shall provide for the implementation of all reasonably available control measures.” ACLPI claims that the rule fails to meet this requirement because the BMP Committee identified a variety of clearly available and feasible control measures that are included in the rule as BMPs, but only requires commercial farmers to implement one BMP from each of three categories. As a result, ACLPI claims, the farmer determines which BMP will be implemented without any limiting parameters; and only one BMP is required under each category even where the implementation of more than one would be technologically and economically feasible, a result clearly prohibited by the CAA and EPA policy.

Response: As relevant to today's action, Arizona's obligation under the CAA is to provide for the implementation of RACM for the agricultural source category. 7 In order to meet this obligation, the State had to determine what requirement would be not only technologically and economically feasible but also reasonable for controlling this source category in the Phoenix area.

This determination was particularly challenging given the variety, complexity and practical realities of farming in the Phoenix area. In its proposed action on the general permit rule and accompanying technical support document (TSD), EPA explained the multi-year/multi-party process for developing the BMPs ultimately adopted by the BMP Committee. See 66 FR 34598, 34601. As a result of the diversity and constraints of farming operations, the Committee concluded that farmers need flexibility to tailor PM-10 controls to their particular circumstances and that mandating a single, specific control for each individual farm activity would be unreasonable. The Committee did, however, determine that it could subdivide farming operations in Maricopa into three distinct categories for the purposes of developing the appropriate controls. As a result, the Committee created a menu of control options from which the farmer must select a minimum of one for each of the tillage and harvest, cropland and noncropland categories.

EPA concurs with the Committee's assessment and consequently proposed that the requirement to implement at least one control from a list of control options for each of three categories of operations constitutes a reasonable control requirement for the agricultural sector in the Phoenix area.

A requirement that an individual source select one control method from a list, but allowing the source to select which is most appropriate for its situation, is a common and accepted practice for the control of dust. For example, in its PM-10 federal implementation plan (FIP) for Phoenix, EPA promulgated a RACM rule applicable to, among other things, unpaved parking lots, unpaved roads and vacant lots. The rule allows owners and operators to choose one of several listed control methods (pave, apply chemical stabilizers or apply gravel). 40 CFR 52.128(d). In the case of the FIP, those subject to the fugitive dust rule were given a choice of control methods in order to accommodate their financial circumstances. See also South Coast Air Quality Management District (SCAQMD) Rule 403 (providing for alternative compliance mechanisms for the control of fugitive dust from earthmoving, disturbed surface areas, unpaved roads etc.); and SCAQMD Rule 1186 (requiring owners/operators of certain unpaved roads the option to pave, chemically stabilize, or install signage, speed bumps or maintain roadways to inhibit speeds greater than 15 mph). EPA proposed to approve these SCAQMD rules as meeting the RACM and/or BACM requirements of the CAA on August 11, 1998 (63 FR 42786) and took final action approving them on December 9, 1998 (63 FR 67784). 8

Allowing sources the discretion to choose from a range of specified options is particularly important for the agricultural sector because of the variable nature of farming. As a technical matter, neither EPA nor the State is in a position to dictate what precise control method is appropriate for a given farm activity at a given time in a given locale. The decision as to which control method from an array of methods is appropriate is best left to the individual farmer. Moreover, the economic circumstances of farmers vary considerably. As a result, it is imperative that flexibility be built into any PM-10 control measure for the agricultural source category whether that measure is required to meet the RACM or BACM requirements of the Act.

Comment: ACLPI states that the CAA expressly provides that all RACM must be implemented by December 10, 1993, citing CAA sections 172(c)(1) and 189(a)(1)(C). Citing Delaney v. EPA, 898 F. 2d 687, 691 (9th Cir. 1990), ACLPI contends that since that deadline has passed, RACM must be implemented “as soon as possible.” ACLPI states that the general permit rule does not require implementation of a single BMP until December 31, 2001 and that this is clearly too little too late under the CAA.

Response: EPA addressed this issue in its proposed approval of the general permit rule by explaining that CAA section 189(a)(1)(C), as interpreted by the Agency under the current circumstances, requires the implementation of RACM as soon as practicable. EPA further explained that the Agency addressed Arizona's requirements regarding the timing of the implementation of the BMPs in its final approval of ARS 49-457. 64 FR 34726 (June 29, 1999). It is that enabling legislation that dictates the December 31, 2001 deadline. The general permit rule simply carries out its mandate by reiterating the statutory deadline. 66 FR 34598, 34600. Therefore, ACLPI, if it wished to contest the issue of whether the December 31, 2001 deadline meets the Delaney test, should have challenged that rule on that basis. Nevertheless, EPA briefly explains the reasoning for its conclusion below.

In 1996, the State of Arizona conducted a field study (known as the microscale study) of PM-10 sources at various monitoring sites in Phoenix. Following the study, the results were modeled and formed the basis for the State's “Plan for Attainment of the 24-hour PM-10 Standard-Maricopa County Nonattainment Area,” May 1997 (microscale plan). It was at that time that the State first discovered that agricultural activities did in fact constitute significant sources of PM-10 in Phoenix, and thus required measures to control them. Because it did not provide for the expeditious implementation of reasonably and best available control measures for these agricultural sources, EPA disapproved the microscale plan for that purpose. 62 FR 41856 (August 4, 1997).

One year after disapproving the microscale plan, EPA issued a final FIP that addressed, among other things, PM-10 emissions from agricultural sources in Phoenix. In the FIP, EPA promulgated an enforceable commitment, codified at 40 CFR 52.127, to adopt, and begin implementing RACM for agricultural fields and aprons by June 2000. 63 FR 41326, 41350 (August 3, 1998).

In developing the FIP, EPA initially evaluated rules in the South Coast Air Basin, the only existing agricultural control measures for PM-10 in the country. However, agricultural sources, unlike many stationary sources which can have many common design features, whether located in California or New Jersey, vary by factors such as regional climate, soil type, growing season, crop type, water availability, and relation to urban centers. Therefore each PM-10 agricultural strategy is necessarily based on local circumstances. With respect to Phoenix and the South Coast, EPA determined that the two areas differ in a number of key characteristics. Based on this initial screening, EPA decided that it would not be responsible to propose the SCAQMD rules at that time because the Agency could not reasonably conclude that their implementation would in fact result in air quality benefits for the Maricopa nonattainment area.

As a result of this conclusion, EPA initiated a stakeholder process to develop RACM in the form of BMPs for Phoenix that eventually included ADEQ, MCESD, the Natural Resources Conservation Service of the U.S. Department of Agriculture, the Maricopa Association of Governments, the Maricopa Farm Bureau, Arizona Farm Bureau Federation, the University of Arizona and others. Following numerous meetings and discussions, EPA concluded that the most feasible approach for the FIP would be the Agency's commitment to develop and implement the BMPs on an expeditious schedule. For a more detailed discussion of EPA's efforts to develop RACM for agricultural sources in Phoenix, see EPA's FIP proposal at 15920, 15936 (April 1, 1998) and the accompanying technical support document.

As discussed above, on June 29, 1999, EPA withdrew the FIP commitment and approved in its place ARS 49-457 which embodies a commitment to adopt by rule by June 10, 2000 a general permit specifying BMPs. The statute also provides for the initiation of a public education program by June 10, 2000 and sets a final deadline of December 31, 2001 for farmers to comply with the BMPs. In its proposed approval of ARS 49-457, EPA reiterated its reasons for concluding that the implementation schedule was as expeditious as practicable:

The BMPs have now been adopted and EPA is today approving the general permit rule into the Arizona PM-10 SIP for Phoenix. Thus the December 31, 2001 final implementation deadline will shortly be federally enforceable. Given that (1) agricultural sources had never been regulated anywhere in the country except southern California; (2) agricultural sources vary considerably based on a number of factors; and (3) EPA and ADEQ lacked expertise in farming conditions and practices, EPA believes that under five years from ground zero to final implementation is a considerable accomplishment and meets the Delaney test.

Comment: ACLPI, quoting from the “Technical Support Document for Quantification of Agricultural Best Management Practices,” Final Draft, URS Corporation and Eastern Research Group, Inc., November 1, 2000, charges that because the general permit rule fails to require any specific control measures, and leaves it entirely to the permittee to determine which BMPs will be implemented, there is no way that the State can know or meaningfully predict what the effect of the rule will be. ACLPI claims that, as a result, any estimated emissions reduction is entirely speculative and, thus, inadequate under the CAA.

Response: The PM-10 emission reductions attributable to the BMPs are not at issue in this rulemaking. Here, EPA is merely determining whether the general permit rule meets the general SIP requirements of CAA section 110(a) and whether that rule represents, pursuant to CAA section 189(a)(1)(C) a “reasonably available” level of control and is scheduled to be implemented as expeditiously as practicable. EPA will consider the quantification of the emission reductions from the general permit rule in its forthcoming actions on the State's reasonable further progress and attainment demonstrations in its serious area plan submittals.

Comment: ACLPI comments that the State has proposed to revise the SIP to include the general permit rule as both a control and a contingency measure. Citing CAA section 172(c)(9) and a proposed EPA action on a Washington SIP, ACLPI states that it makes no sense to denominate the rule as a contingency measure.

Response: This comment is also beyond the scope of today's rulemaking because EPA is not acting on the general permit rule as meeting the Act's contingency measure requirements. EPA will address this issue in its forthcoming actions on the State's serious area PM-10 plan for the Phoenix area.

For the reasons discussed above and in the proposed rulemaking, EPA is approving, under CAA section 110(k)(3), ACC R18-2-610 and 611, the general permit rule, as meeting the requirements of CAA sections 110(a) and 189(a)(1)(C). Moreover, EPA has concluded that its approval of ACC R18-2-610 and 611 meets the requirements of section 110(l) because the general permit rule strengthens the Arizona PM-10 SIP for the Maricopa County nonattainment area by providing specific BMPs in place of the commitment to adopt BMPs in ARS 49-457. The general permit rule is also consistent with the development of an overall plan capable of meeting the CAA's PM-10 attainment requirements.

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. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This 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. ).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 10, 2001. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

The Department of Health and Human Services (the Department) has been called upon in recent years to play an increasingly active leadership role in responding to the behavioral health needs that arise as the result of both natural and human-caused emergencies and disasters. To date, the grant assistance rendered by the Substance Abuse and Mental Health Services Administration (SAMHSA) has been limited primarily to crisis counseling services in the aftermath of Presidentially declared disasters. Through an interagency agreement with the Federal Emergency Management Agency (FEMA), SAMHSA's Center for Mental Health Services (CMHS) provides technical assistance, training, consultation, and grant monitoring for the Crisis Counseling Assistance and Training Program (CCP), which is authorized through the Robert T. Stafford Disaster Relief and Emergency Assistance Act, Public Law 100-707, Section 416, and implementing regulations (44 CFR 206.171). This jointly-administered program allows States to apply for Federal support for services to ameliorate the mental and emotional crises and their subsequent psychological and behavioral conditions resulting from a major disaster. The services provided through the FEMA/CMHS Crisis Counseling Assistance and Training Program remain a cornerstone of the Federally-supported mental health response to Presidentially-declared disasters. However, Congress recognized the need to expand emergency services to include both mental health and substance abuse needs, whether or not a Presidential disaster is declared under the above authority.

To help address these needs the Secretary, through SAMHSA, was given the mandate to develop a new emergency grant program under its recent reauthorization legislation, which was signed into law on October 17, 2000, Pub. L. 106-310. Section 3102 of this law adds a new subsection, entitled “Emergency Response” to section 501 of the Public Health Service (PHS) Act. This newly enacted subsection enables the Secretary to use a small portion of funds appropriated each fiscal year to make “noncompetitive grants, contracts or cooperative agreements to public entities to enable such entities to address emergency substance abuse or mental health needs in local communities.” This Interim Final Rule establishes procedures by which the Department may provide these funds.

This new authority permits the Department to respond in emergency situations when behavioral health needs overwhelm State, Tribal or local resources, and other resources are unavailable. Because of the urgent necessity of assuring a Federal response capacity in emergency situations, the Secretary is issuing an interim final rule, which will allow the Secretary, through SAMHSA, to respond immediately under emergency circumstances.

In implementing this new authority, the Department is placing an emphasis on coordination among Federal funding entities. In order to avoid duplication of services, the Department will coordinate closely with other Federal agencies that may provide funding support for behavioral health services in emergency situations. These other funding sources include the Readiness, Response and Recovery Directorate within the Federal Emergency Management Agency (FEMA), the Safe and Drug Free Schools Program within the U.S. Department of Education, the Office for Victims of Crime (OVC) within the U.S. Department of Justice, the National Transportation Safety Board (NTSB) within the U.S. Department of Transportation, the Emergency Response Program within the Environmental Protection Agency (EPA), the Bureau of Indian Affairs (BIA) within the U.S. Department of the Interior, the Animal and Plant Health Inspection Service within the U.S. Department of Agriculture, and the Indian Health Service (IHS) within the U.S. Department of Health and Human Services. The funds identified for use under this Interim Final Rule are considered “funds of last resort” and may not be used to supplant or replace other existing funds. Therefore, we view this new authority as an important adjunct to the existing authority to make “Mental Health Crisis Counseling Grant” awards to States because we are able to fund different types of services beyond crisis counseling.

This Interim Final Rule identifies noncompetitive, objective conditions and criteria the government will use to expedite the allocation of funds. In establishing the criteria used to determine whether an emergency exists, we have described the following minimum elements: (1) Existing State, Tribal and local systems for mental health and/or substance abuse services are overwhelmed or unable to meet the existing mental health or substance abuse needs of the local community at issue; and (2) this inability to meet the mental health and/or substance abuse service needs of a local community is the direct consequence of a clear precipitating event. This precipitating event must have a sudden, rapid onset and a definite conclusion, such as a natural disaster (such as a hurricane, tornado, storm, flood, earthquake, fire, drought, or other natural catastrophe), a technological disaster (such as a chemical spill, a major industrial accident, or a transportation accident), or a criminal act (such as a domestic act of terrorism, a hostage situation, or an incident of mass violence including school shootings and riots) and result in significant death, injury, exposure to life-threatening circumstances, hardship, suffering, loss of property, or loss of community infrastructure (e.g., loss of treatment facilities, staff, public transportation and/or utilities, or isolation from services); and (3) no other local, State, Tribal or Federal funding is available to adequately address the specific level of need resulting from the precipitating event and resulting emergency mental health and/or substance abuse service needs of the impacted community.

Eligible applicants are limited to public entities, which are defined in the rule as any State, any political subdivision of a State, any Federally recognized Indian tribal government or tribal organization. Eligibility is restricted to public entities as required by the authorizing legislation.

Eligible applicants may apply to the Secretary for either of two types of substance abuse and mental health emergency response grants: Immediate awards and Intermediate awards. The former are designed to be funded up to $50,000, or such greater amount as determined by the Secretary on a case-by-case basis, and are to be used over the initial 90-day period commencing as soon as possible after the precipitating event; the latter awards require more documentation, including a needs assessment, other data and related budgetary detail. The Intermediate awards have no predefined budget limit. Typically, Intermediate awards would be used to meet systemic mental health and/or substance abuse needs during the recovery period following the Immediate award period. Such awards may be used for up to one year, with a possible second year supplement based on submission of additional required information and data.

Applications for Immediate awards must be submitted on a form that has been approved by the Office of Management and Budget (OMB), and include the following information: a certification by the State's chief executive officer that a mental health or substance abuse emergency exists, as well as a written statement setting out the basis for the certification; a brief program plan describing needs; an estimate of the number of people to be served and the geographical area to be served; a description of the types of services to be provided; a budget justifying the amount of the request; other required certifications included in the application; and such other pertinent information the Secretary may require.

The Department is requiring that the certification of the mental health or substance abuse emergency is made by the State's chief executive officer, rather than from a local government, based on the governor's experience and expertise in disaster declarations gleaned from the FEMA grants. In addition, the Department believes that it is important to have high-level certification so that any available State funds can be allocated to the emergency in accordance with the conditions of this grant. However, it is important to note that although the certification must be obtained from the chief executive office, local governments are eligible to seek the grant and must sign the application as the responsible fiscal party.

The Department encourages applicants to submit the application to the single state agency for Alcohol and Drug abuse and/or the State mental health program for comments.

Applications for Intermediate awards must be submitted on a form that has been approved by the OMB, and include the following information: if the applicant has not applied previously for an Immediate award, a certification by the State's chief executive officer that a mental health or substance abuse emergency exists, as well as a written statement setting out the basis for the certification, an application submission date within three months of the date of the event that precipitated the mental health or substance abuse emergency (unless waived by the Secretary), a detailed and comprehensive assessment of need, demographics specific to the number of people to be served, a description of the services that were provided up to the date of the submission of the Intermediate award application, the geographical area to be served, a detailed implementation program plan and related time line, including a description of outreach to special population groups affected by the crisis, a budget justifying the amount of the request for personnel, equipment, supplies, travel, training, data collection and any technical assistance required, and any information that has changed since an Immediate application was submitted, if one was submitted.

Applications for both Immediate and Intermediate grants will be evaluated using the following objective criteria: (1) Documentation of need, (2) plan of services, and (3) organizational capability. In assessing documentation of need, the applicant needs to demonstrate that the mental health and/or substance abuse needs are a direct result of the precipitating event; identify any high risk groups or populations with special concerns that may impact the delivery of services ( e.g., children, adolescents, older adults, ethnic and cultural groups, lower income populations); and clearly document that no other local, State, Tribal or Federal funding sources are available to address the need. An adequate plan of services must clearly identify the types of services to be provided ( e.g., outreach, crisis counseling, public education on stress management and crisis mental health, public education on substance abuse prevention, information and referral services, short term substance abuse or mental health prevention and/or treatment services); strategies for targeting those identified as needing services, including high risk groups or populations with special concerns identified in the needs assessment; appropriate training to be provided to staff to assure that services are appropriate to the crisis situation and the plans for community recovery; quality control methods in place to assure appropriate services to the target population; staff support mechanisms that are available; and plans for coordination of services with key local, State, Tribal and Federal partners involved in addressing the precipitating event ( e.g., emergency management agencies, law enforcement, education agencies, public health agencies, agricultural extension agencies, environmental agencies, and other agencies active in crisis response). In assessing organizational capability, the applicant needs to demonstrate a history of service delivery to the target population within the defined service area for the program. The budget submitted must provide sufficient justification and demonstrate that it is consistent with the documentation of need and plan of services. Finally, SAMHSA may consult with other Federal agencies responsible for responding to crisis incidents, to ensure that these are “funds of last resort.”

The Department is soliciting formal comments on this Interim Final Rule in order to assure that the proposed criteria, procedures and requirements are responsive and address the needs, issues and concerns of potential grantees, and the public at large.

The Department has decided to issue this document as an Interim Final Rule with an immediate effective date as well as a comment period of 60 days after publication in the Federal Register . It is the Department's view that good cause exists that notice and comment are “impracticable, * * * or contrary to the public interest.” 5 U.S.C. 553(b)(B). We make this finding for the following reasons:

The purpose of the statute is to provide funding for noncompetitive grants to public entities to enable such entities to address emergency substance abuse or mental health needs in local communities. In light of the current emergency situations with respect to the terrorist attacks, it has been determined that a delay for the purpose of comment and the effective date would be contrary to the public interest. Although we are making the rule effective immediately without first obtaining public comment, we are providing for a 60-day comment period after publication. Thus, should we receive any significant comments that would cause us to revise this rule in any way, we will be able to do so.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that provide the greatest net benefits (including potential economic, environmental, public health, safety distributive and equity effects). We have determined that the rule is not a “significant regulatory action” under Section 3(f) of the Executive Order. This rule does not have an annual effect on the economy of $100 million or more, create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof, or raise novel legal or policy issues. Therefore, this interim final rule does not require an assessment of the potential costs and benefits under Section 6(a)(3) of that Order and thus has been exempted from review by the Office of Management and Budget under that Order.

The Regulatory Flexibility Act (5 U.S.C. chapter 6) requires that regulatory actions be analyzed to determine whether they will have a significant impact on a substantial number of small entities. We have determined that this is not a “major” rule under the Regulatory Flexibility Act of 1980, and that it will not have an effect on the States or on the distribution of power and responsibilities among the various levels of government.

The Unfunded Mandates Reform Act requires 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 rule contains no Federal mandates for State, tribal, or local governments or for the private sector.

Executive Order 13132, Federalism, requires that Federal agencies consult with State and local government officials in the development of regulatory policies with federalism implications. We reviewed the rule as required under the Order and determined that it does not have any federalism implications. This rule will not have an effect on the States or on the distribution of power and responsibilities among the various levels of government.

This Interim Final Rule contains information collections which are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (the PRA) (44 U.S.C. 3507(d)). The title, description and respondent description of the information collections are shown in the following paragraphs with an estimate of the annual reporting and recordkeeping burden. Included in the estimate is the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Title: Emergency Response Grants Regulations—42 CFR part 51

Description: This rule implements Section 501(m) of the Public Health Service Act (42 U.S.C. 290aa), which authorizes the Secretary to make noncompetitive grants, contracts or cooperative agreements to public entities to enable such entities to address emergency substance abuse or mental health needs in local communities. The rule establishes criteria for determining that a substance abuse or mental health emergency exists, the minimum content for an application, and reporting requirements for recipients of such funding.

Description of Respondents: State, local or tribal governments

Response Burden Estimates: This program will be an approved user of the PHS-5161 application form, approved by OMB under control number 0920-0428. The quarterly financial status reports in 42 CFR 51d.10(a)(2) and (b)(2) are as permitted by 45 CFR 92.41(b); the final program report, financial status report and final voucher in 42 CFR 51d.10(a)(3), 51d.10(b)(3), and 51d.10(b)(4) are in accordance with 45 CFR 92.50(b). Information collection requirements of 45 CFR part 92 are approved by OMB under control number 0990-0169. The following table presents annual burden estimates for the information collection requirements of this regulation.

Federal Motor Vehicle Safety Standard (FMVSS) No. 201, Head Impact Protection, provides a number of alternative performance requirements for manufacturers of vehicles with dynamically deployed interior head protection systems. One of these alternatives uses a test in which a vehicle is propelled sideways at a speed of 29 km/h (18 mph) into a 254 mm (10 inch) diameter rigid pole. A Part 572 Subpart M anthropomorphic test dummy is placed in the outboard front seat on the struck side of the vehicle.

The specifications for the Subpart M dummy, known as SID/HIII, were established by a final rule published in the Federal Register on August 4, 1998 (63 FR 41466). The SID/HIII is based on two other dummies: (1) the Part 572, Subpart F anthropomorphic test device (Side Impact Dummy or SID) that is used in testing under FMVSS 214, Side Impact Protection, and (2) the Part 572, Subpart E anthropomorphic test device (Hybrid III or HIII) that is used in testing under FMVSS 208, Occupant Crash Protection. The SID/HIII combines the head and neck of the Hybrid III with the torso and lower extremities of the Side Impact Dummy through the use of a redesigned neck to torso adapter bracket.

As the performance of the dummy is critical in any test, the specifications for the SID/HIII include calibration tests used to validate the characteristics of the individual device. One of these tests is the neck lateral bending corridor. It establishes maximum and minimum values for the dummy neck that it must meet when subjected to a calibration test in lateral impact direction.

On July 28, 1999, the Alliance of Automobile Manufacturers (Alliance) submitted a Petition for Technical Correction indicating that the specified lateral impact neck corridor for the SID/HIII dummy does not reflect the neck stiffness of the Hybrid III dummy as originally specified by the SAE Side Impact Dummy Task Force (SIDTF) in the minutes of the Task Force meeting of April 15, 1989. According to the Alliance, subsequent to the April 15, 1989 meeting, the SIDTF made a transcription error when it drew up lateral calibration specifications for the Hybrid III neck. The Alliance stated that the erroneous calibration specifications were carried forward and incorporated by the SAE in the BioSID user manual in 1989. As the BioSid neck and the Hybrid III neck are identical in design but not in performance specifications, and the BioSid user manual was the only publication available to the public containing the lateral neck calibration values, the erroneous values were used by NHTSA in rulemaking for the SID/HIII dummy.

The agency proposed the SID/HIII dummy on December 8, 1997 and added it to Part 572 as Subpart M on August 4, 1998. As added to Part 572, the SID/HIII dummy incorporated the erroneous neck specifications that were contained in the BioSID user manual. As a result of this error, the lateral calibration corridor specified a neck that was stiffer in bending in the lateral direction than in the flexion and extension directions. Existing biomechanical data indicate that the human neck is not stiffer in the lateral direction, but actually has similar bending stiffness in both directions.

The Alliance petition of July 28, 1999, based on recommendations from the SAE Dummy Test and Equipment Subcommittee (DTES), suggested that the lateral neck calibration corridor be revised so the allowable neck bending stiffness moment for the SID/HIII in the lateral direction would be limited to a range between 73 N-m (54 ft-lbs) and 97 N-m (72 ft-lbs).

After receiving the Alliance petition, the agency reviewed the data and methodology used by that organization to determine the adequacy of the recommended change to the lateral neck calibration corridor. NHTSA's analysis of the corridor suggested by the Alliance, revealed inconsistencies between the Alliance proposed corridor and the corridor specifications recommended by the DTES after the DTES discovered and revised the earlier error. The agency found that the corridor suggested by the Alliance was broader than could be justified by biomechanical data and would likely result in necks that would be too stiff as well as have a wide degree of variability. Following discussions between agency representatives and the Alliance regarding these problems, the Alliance submitted a letter to the agency on January 12, 2000, indicating that it wished to revise its petition of July 28, 1999, and substitute new corridor specifications. The specifications suggested by the Alliance on January 12, 2000, along with the current specifications for the SID/HIII are presented below:

After consideration of the Alliance petition and the revised specifications suggested by the Alliance on January 12, 2000, the agency issued a notice of proposed rulemaking (NPRM) that was published in the Federal Register on November 29, 2000 (65 FR 71081). In that notice, NHTSA proposed amending the lateral neck calibration corridor for the SID/HIII dummy.

NHTSA's proposal was based on the review of the calibration data submitted by the Alliance and the agency's own calibration tests on a number of Hybrid III necks. NHTSA's own test program indicated that many of the specifications submitted by the Alliance on January 12, 2000, were valid. The agency's testing also indicated that the upper limits for the time between maximum moment and maximum rotation and the decay time from max rotation to zero rotation suggested by the Alliance should be increased by 1 ms from 15 ms to 16 ms and from 63 to 64 ms, respectively. NHTSA proposed that the neck lateral calibration corridor for the SID/HIII dummy be amended to specify the following values:

Those submitting comments in response to the NPRM supported the proposed change in the neck calibration corridor. The agency received comments from the original petitioner, the Alliance, and one manufacturer, General Motors (GM). The Alliance simply indicated that it supported the proposed change. GM also indicated that it supported the proposal.

NHTSA is adopting the neck calibration corridor proposed in the November 29, 2000 NPRM. The agency notes that the comments submitted in response to the NPRM indicate support for adopting the proposal without any further modification. NHTSA has also concluded that the neck calibration corridor values proposed in the NPRM are the appropriate values and therefore adopts them without further change.

NHTSA has considered the impact of this rulemaking action under Executive Order 12866 and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has been determined not to be significant under the Department's regulatory policies and procedures.

This document amends 49 CFR part 572 by modifying previous specifications for calibrating the dummy's neck to ensure that accurate and reliable data are generated in testing. The final rule affects only those businesses that choose to manufacture or test with the dummy. It does not impose any requirements on anyone.

We believe that the economic impacts of this final rule are limited to the costs of recalibrating and perhaps modifying existing dummy necks. We estimate that these one-time costs are limited to less than $100 per dummy.

Because the economic impacts of this proposal are so minimal, a full regulatory evaluation is not warranted.

NHTSA has considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) I hereby certify that the final rule does not have a significant economic impact on a substantial number of small entities. This final rule modifies existing specifications for a dummy test device used by manufacturers if they decide to employ an optional test procedure under Standard 201. As noted above, the one-time costs associated with the changes to the neck lateral calibration corridor are minimal. Further, this rule primarily affects passenger car and light truck manufacturers which are not small entities under 5 U.S.C. 605(b). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). The agency estimates that there are at most five small manufacturers of passenger cars in the U.S. and no small manufacturers of light trucks, producing a combined total of at most 500 cars each year. These small manufacturers, if they choose to perform the optional side impact pole test that employs this particular test device, will have to use the neck lateral calibration corridor when validating the dummy for use in testing. As noted above, the agency believes that any costs associated with the use of the calibration corridor are minimal. Further, most small entities do not perform full scale crash tests themselves, but instead rely on vehicle manufacturers or test laboratories to perform such tests. Both manufacturers and test laboratories are likely to have recalibrated dummy necks readily available at no increased cost when performing testing for small manufacturers.

For these reasons, NHTSA believes that this final rule does not have a significant impact on any small business.

NHTSA has analyzed this final rule for the purposes of the National Environmental Policy Act and determined that it does not have any significant impact on the quality of the human environment.

The agency has analyzed this rulemaking in accordance with the principles and criteria contained in Executive Order 13132 and has determined that it does not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The final rule has no substantial effects on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials.

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This final rule does not meet the definition of a Federal mandate because it does not impose requirements on anyone. In addition, annual expenditures will not exceed the $100 million threshold.

This final rule does not have any retroactive effect. Under 49 U.S.C. 30103, whenever a Federal motor vehicle safety standard is in effect, a State may not adopt or maintain a safety standard applicable to the same aspect of performance which is not identical to the Federal standard, except to the extent that the state requirement imposes a higher level of performance and applies only to vehicles procured for the State's use. 49 U.S.C. 30161 sets forth a procedure for judicial review of final rules establishing, amending or revoking Federal motor vehicle safety standards. That section does not require submission of a petition for reconsideration or other administrative proceedings before parties may file suit in court.

In accordance with the Paperwork Reduction Act of 1980 (Pub. L. 96-511), there are no requirements for information collection associated with this final rule.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272) directs us to use voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the Society of Automotive Engineers (SAE). The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

The neck lateral calibration corridor that is the subject of this document was developed under the auspices of the SAE Dummy Test and Equipment Subcommittee. The following voluntary consensus standards have been used in developing the neck lateral calibration corridor: SAE J211 Recommended Practice for Crash Tests Instrumentation, SAE J1460 Human Mechanical Response Characteristics, and ISO/TR 9790-2—Road Vehicles—Anthropomorphic Side Impact Dummy—Part 2: Lateral Neck Impact Response Requirements to Assess Biofidelity of Dummy.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant” as defined under E.O. 12866, and (2) concerns an environmental, health or safety risk that NHTSA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by us.

This final rule is not subject to the Executive Order because it is not economically significant as defined in E.O. 12866, and does not have a disproportionate effect on children. The final rule changes the calibration values for a test dummy neck. Other than ensuring that the test dummy more accurately replicates the adult human neck in side impacts, the final rule has no impact on children.