On August 1, 2002, the Office of Personnel Management (OPM) published a proposed rule to redefine Tioga County, Pennsylvania, from the Scranton-Wilkes-Barre, PA, appropriated fund Federal Wage System (FWS) wage area to the Rochester, New York, FWS wage area (67 FR 49878). The proposed rule provided a 30-day period for public comment, during which OPM received no comments.

Tioga County is currently an area of application in the Scranton-Wilkes-Barre wage area. This change to redefine the county to the Rochester wage area is necessary because economic trends indicate more linkage between Tioga County and the Rochester survey area than between Tioga County and the Scranton-Wilkes-Barre survey area.

OPM considers the following regulatory criteria in 5 CFR 532.211 when defining FWS wage area boundaries:

(i) Distance, transportation facilities, and geographic features;

(ii) Commuting patterns; and

(iii) Similarities in overall population, employment, and the kinds and sizes of private industrial establishments.

Based on our analysis of the regulatory criteria for defining appropriated fund FWS wage areas, we find that Tioga County would be more appropriately defined as part of the Rochester wage area. The distance criterion favors the Rochester wage area more than the Scranton-Wilkes-Barre wage area. The commuting patterns criterion favors the Rochester wage area. An additional factor we considered was that Tioga County is adjacent to the Rochester survey area, but not to the Scranton-Wilkes-Barre survey area. This change will affect about 10 Department of the Army employees and 1 Department of the Interior employee.

The Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee that advises OPM on FWS pay matters, recommended this change by consensus. Based on its review of the regulatory criteria for defining FWS wage areas, FPRAC recommended no other changes in the geographic definitions of the Rochester or Scranton-Wilkes-Barre FWS wage areas.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it affects only Federal agencies and employees.

On August 1, 2002, the Office of Personnel Management (OPM) issued a proposed rule to permit the Department of Defense (DOD) to use the Maintenance Mechanic Federal Wage System (FWS) survey job on an optional basis without having to seek OPM's advance approval. The Maintenance Mechanic survey job is now used routinely in many FWS wage areas because of changes in the structure of both Federal and private sector maintenance work. The proposed rule provided a 30-day period for public comment, during which OPM received no comments.

OPM's regulations contain required and optional survey jobs. If a particular survey job does not appear on either list, but is needed for a local wage survey, an agency must request OPM's written approval. The Federal Prevailing Rate Advisory Committee (FPRAC) established a Survey Job Work Group (SJWG) to review FWS survey job descriptions. The SJWG recommended that OPM add the Maintenance Mechanic survey job to the list of optional FWS survey jobs. Adding the Maintenance Mechanic survey job to the list of optional survey jobs would enable DOD to use the survey job at its discretion without having to ask OPM for prior approval. This will allow DOD to save time when conducting FWS wage surveys. FPRAC agreed with its working group and recommended that OPM make this change.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because it will affect only Federal agencies and employees.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

Office of Personnel Management.

On May 10, 1994, FSIS published a final rule to establish a definition of the term “healthy” or any other derivative of the term “health” and similar terms on meat and poultry product labeling (59 FR 24220). 1 Under 9 CFR 317.363(b)(3) and 381.463(b)(3), after November 10, 1997, an individual meat or poultry product qualifying to use the term “healthy” or any other derivative of that term on its label, or in its labeling, must not contain more than 360 mg of sodium: (a) per reference amount customarily consumed (RACC); (b) per labeled serving size; and (c) per 50 grams (g) for products with reference amounts customarily consumed of 30 g or less or 2 tablespoons or less. Further, under 9 CFR 317.363(b)(3)(i) and 381.463(b)(3)(i), after November 10, 1997, a meal-type product qualifying to use the aforementioned term or any other derivative of the term on its label or in its labeling must not contain more than 480 mg of sodium per labeled serving size.

During the initial 24 months of the requirement's implementation date, which is defined as the time period prior to November 10, 1997, the maximum sodium level for individual meat and poultry products would be allowed to reach 480 mg, and the maximum sodium level for meal-type products would be allowed to reach 600 mg. This time period and its correlating maximum levels are referred to as the “first-tier sodium level.” After November 10, 1997, the maximum sodium level for individual meat and poultry products would be decreased to 360 mg, and the maximum sodium level for meal-type products would be decreased to 480 mg. This time period and its correlating maximum levels are referred to as the “second-tier sodium level.”

Within the same Federal Register publication, the Food and Drug Administration (FDA) published a final rule (59 FR 24232) to define the term “healthy” under section 403(r) of the Federal, Food, Drug and Cosmetic Act (21 U.S.C. 343(r)). 2 FDA's rule established the same sodium levels associated with the use of the “healthy” claim that FSIS' rule established for two separate timeframes. However, the timeframes in FDA's rule differed from those established by FSIS' rule.

On December 17, 1996, ConAgra, Inc., petitioned FSIS to “eliminate the sliding scale sodium requirement for foods labeled ‘healthy' by eliminating the entire second-tier levels of 360 mg sodium requirement for individual foods and 480 mg sodium for meal-type products.” 3 In response to the petition, FSIS published an interim final rule on February 13, 1998 (63 FR 7279), which amended §§ 317.363(b)(3) and 381.463(b)(3) by extending the effective date for the second-tier sodium levels (360 mg for individual meat and poultry products and 480 mg for meal-type products) associated with the term “healthy” until January 1, 2000. 4 The Agency extended the effective date for the following reasons: (1) To allow time for FSIS to reevaluate the standard, including the data contained in ConAgra's petition and any additional data that the Agency received; (2) to conduct any necessary rulemaking; and finally (3) to allow time for industry to respond to the rule or to any change in the rule that may have resulted from the Agency's reevaluation.

FDA also received a petition from ConAgra, Inc., requesting that the second-tier sodium levels associated with use of the term “healthy” be removed from the regulations. In response to this petition, FDA announced a stay of the provisions relating to the lower sodium standards until January 1, 2000 (62 FR 15390). 5

In its interim final rule, FSIS asked the public for data and comments in regard to the second-tier sodium levels in the “healthy” definition and other approaches to reduce the amount of sodium in meat and poultry products labeled “healthy.” FSIS received 20 responses to the February 13, 1998, interim final rule, which presented strong and opposing views on whether the Agency should let the second-tier sodium levels take effect, and provided a significant amount of data relating to the use of the term “healthy.” Based on the information available, the Agency concluded that, in some cases, the second-tier sodium levels may be overly restrictive, thereby eliminating a term that may potentially assist consumers in maintaining a healthy diet. Accordingly, FSIS published a subsequent interim final rule on December 28, 1999 (64 FR 72490), further extending the second-tier sodium levels' effective date until January 1, 2003. 6 Similarly, FDA published a final rule (64 FR 12886), which extended the stay on their provisions in regard to the lower sodium levels through January 1, 2003, as well. 7

FSIS received 8 responses to its December 28, 1999, interim final rule. Six responses conveyed support for extending the effective date of the second-tier sodium level until adequate medical and technological research can be conducted to demonstrate that lowering the maximum amount of sodium used to produce these types of products will contribute to or enhance a “healthy” diet. The commenters stated that a “healthy” diet can not be solely defined or maintained by consuming lower amounts of sodium. Instead, a “healthy” diet must rely on maximizing and minimizing a consumer's intake of all nutrients, including sodium, based on the individuality of the consumer. In addition, the commenters stated that lowering the sodium level would affect the products' palatability, which would negatively impact the demand for such products. Further, consumers would be forced to add salt to these products to enhance their taste prior to consumption, which negates the premise of lowering sodium intake as a means of lowering the health risks associated with consuming high levels of sodium. One commenter asserted that establishing a maximum level of sodium contained in meat and poultry products labeled as “healthy” does not correlate to the definition of “healthy” with respect to positive health benefits. Another commenter stated that the lowest achievable sodium level should be used as the maximum limit when producing individual or meal-type meat and poultry products, and that FSIS should proceed with the intended effective date for the second-tier sodium level requirements.

As of this date, FSIS and FDA are continuing their efforts: (1) To reevaluate appropriate sodium levels associated with the use of the term “healthy”; and (2) to fully consider all options that preserve the public health intent while providing manufacturers with the opportunity to use the term on food labeling consistently with dietary guidelines. Therefore, as the agencies consider whether alternative levels may be more appropriate, it would be contrary to the public interest to require manufacturers to comply with the second-tier sodium levels within the “healthy” definition by the current effective date of January 1, 2003. Moreover, FSIS is taking this action so that its labeling regulations remain consistent with those promulgated by FDA. In the Federal Register dated May 8, 2002, FDA further extended the partial stay on their provisions to coincide with the aforementioned effective date of January 1, 2006 (67 FR 30795). 8 Accordingly, further extending the second-tier sodium level requirements' effective date for meat and poultry products is warranted.

This interim final rule has been reviewed under Executive Order 12988, Civil Justice Reform. States and local jurisdictions are preempted by the Federal Meat Inspection Act (FMIA) and the Poultry Products Inspection Act (PPIA) from imposing any marking, labeling, packaging, or ingredient requirements on federally inspected meat and poultry products that are in addition to, or different than, those imposed under the FMIA and the PPIA. States and local jurisdictions may, however, exercise concurrent jurisdiction over meat and poultry products that are outside official establishments for the purpose of preventing the distribution of meat and poultry products that are misbranded or adulterated under the FMIA and PPIA, or, in the case of imported articles, that are not at such an establishment, after their entry into the United States.

This interim final rule is not intended to have retroactive effect.

If this interim final rule is adopted, administrative proceedings will not be required before parties may file suit in court challenging this rule. However, the administrative procedures specified in 9 CFR 306.5 and 381.35 must be exhausted prior to any judicial challenge of the application of the provisions of this interim final rule, if the challenge involves any decision of an FSIS employee relating to inspection services provided under the FMIA or PPIA.

This interim final rule has been determined to be non-significant and was not reviewed by the Office of Management and Budget under Executive Order 12866.

The Administrator has made an initial determination that this interim final rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). This interim final rule will impose no new requirements on small entities.

FSIS is initiating this action so that its labeling regulations remain consistent with those promulgated by FDA. Moreover, FSIS needs time to conclude its reevaluation of the impact imposed by further reducing limits on sodium contents of foods labeled as “healthy” to determine if the costs of such an action exceed the benefits. The petitioner requesting the extension presented data to support that lowering the sodium content on foods labeled as “healthy” could result in fewer “healthy” foods being consumed or consumers adding table salt to improve the products' palatability. In addition, the petitioner suggested that lack of available substitutes for sodium would impair the industry's ability to continue manufacturing “healthy” foods as currently defined. However, information collected by the Agency continues to support our belief that it is feasible to produce individual meat and poultry products with a sodium level of 360 mg or less at this time.

FSIS will use the time allotted by the extension to initiate the appropriate rulemaking, and respond to its comments. Industry's constituents will be afforded ample time to reformulate their products (a critical consideration since product reformulation may not be a simple task for products such as hot dogs) and modify labeling.

Five commenters to the December 28, 1999, FSIS interim final rule agreed with the petitioner that lowering the sodium level would affect the products' palatability. One commenter posited that establishing a maximum level of sodium contained in meat and poultry products labeled as “healthy” does not correlate to the definition of “healthy” with respect to positive health benefits. Another commenter supported the implementation of the second-tier sodium level with the intended effective date. The last commenter stated that the health risk focus should not be directed towards sodium, and the effective date should be extended to allow FSIS “time to conduct a review of the science on this issue to establish the basis for removing altogether any sodium-related disqualification for the term ‘healthy’.”

FSIS continues to believe that further health benefits could be achieved by lowering the sodium content of foods labeled as “healthy”. However, the Agency needs time: (1) To conclude its reevaluation process in conjunction with FDA; and (2) to initiate the appropriate rulemaking. Therefore, as the agencies consider whether alternative levels may be more appropriate it would be contrary to the public interest to require manufacturers to comply with the lower sodium levels in the “healthy” definition by the current effective date of January 1, 2003.

In accordance with the Administrative Procedures Act (5 U.S.C. 553) it is the practice of the Administrator to offer interested parties the opportunity to comment on proposed regulations. However, the extended effective date in this interim final rule does not establish any new rules. In addition, this interim final rule must be published in the Federal Register prior to January 1, 2003, because that is the current effective date in the regulations. Therefore, the Administrator has determined that publication of a proposed rule is impracticable, unnecessary, and contrary to the public interest under 5 U.S.C. 553(b)(B). For the same reasons, the Administrator waives the 30-day delayed effective date under 5 U.S.C. 553(d).

There is no paperwork associated with this action.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this notice; FSIS will announce it and make copies of this Federal Register publication available through the FSIS Constituent Update. FSIS provides a weekly Constituent Update, which is communicated via Listserv, a free e-mail subscription service. In addition, the update is available on-line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or would be of interest to our constituents/stakeholders. The constituent Listserv consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals that have requested to be included. Through the Listserv and web page, FSIS is able to provide information to a much broader, more diverse audience.

For more information contact the Congressional and Public Affairs Office, at (202) 720-9113. To be added to the free e-mail subscription service (Listserv) go to the “Constituent Update” page on the FSIS Web site at http://www.fsis.usda.gov/oa/update/update.htm. Click on the “Subscribe to the Constituent Update Listserv” link, then fill out and submit the form.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of the Department of Energy (DOE)] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule in 10 CFR part 72 entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72, entitled “Approval of Spent Fuel Storage Casks,” containing procedures and criteria for obtaining NRC approval of spent fuel storage cask designs.

This rule will add the Standardized Advanced NUHOMS ® System (Standardized Advanced NUHOMS ® -24PT1) to the list of approved cask designs. Following the procedures specified in 10 CFR 72.230 of subpart L, Transnuclear, Inc., (TN) submitted an application for NRC approval together with the Safety Analysis Report (SAR) entitled, “Final Safety Analysis Report for the Standardized Advanced NUHOMS ® Horizontal Modular Storage System for Irradiated Nuclear Fuel.” The NRC evaluated the TN submittal and issued a preliminary Safety Evaluation Report (PSER) and a proposed Certificate of Compliance (CoC) for the Standardized Advanced NUHOMS ® System. The NRC published a proposed rule in the Federal Register (67 FR 6203; February 11, 2002) to add the Standardized Advanced NUHOMS ® -24PT1 cask system to the listing in 10 CFR 72.214. The comment period ended on April 29, 2002. Seven comment letters were received on the proposed rule.

Based on its review and analysis of public comments, the NRC staff has determined that no modifications will be made to the proposed CoC, including its appendices, the Technical Specifications, and the Approved Contents and Design Features, for the Standardized Advanced NUHOMS ® System. No modifications will be made to the PSER.

The NRC finds that the Standardized Advanced NUHOMS ® -24PT1 cask system, as designed and when fabricated and used in accordance with the conditions specified in its CoC, meets the requirements of part 72. Thus, use of the TN Standardized Advanced NUHOMS ® -24PT1 cask system, as approved by the NRC, will provide adequate protection of public health and safety and the environment. With this final rule, the NRC is approving the use of the Standardized Advanced NUHOMS ® -24PT1 cask system under the general license in 10 CFR part 72, Subpart K, by holders of power reactor operating licenses under 10 CFR part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on February 5, 2003. Single copies of the CoC and SER are available for public inspection and/or copying for a fee at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD.

The NRC received seven comment letters on the proposed rule. The commenters included a public citizens' petition, two public citizens, two public interest organizations, one environmental justice organization, and one health professional organization. Copies of the public comments are available for review at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. The comments received are also available electronically at the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/reading-rm/adams.html. From this site, the public can gain entry into the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. For more information, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to pdr@nrc.gov. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR.

The proposed listing of the TN Standardized Advanced NUHOMS ® System within 10 CFR 72.214, “List of approved spent fuel storage casks,” has not been changed as a result of the public comments. A review of the comments and the NRC staff's responses follow:

Comment 1: Several commenters strongly opposed the storage or transportation of spent fuel as proposed by Southern California Edison (SCE) at the San Onofre Nuclear Generating Station (SONGS). These commenters raised a number of site-specific issues relating to the SONGS site and the potential storage of spent fuel at the site. One commenter stated that the development and operation of a “nuclear dump” in a highly populated, dangerously seismically active geological region, without a site-specific examination of critical, scientific, technical, economic, and other relevant issues, is unconscionable as an arrogant and indifferent treatment of the local population's welfare and safety in both short- and long-term effects. The site-specific issues raised by the commenters included comments related to costs to ratepayers, exact transportation routes for removal of spent fuel from SONGS, notification of public officials along transportation routes, number of shipments, total population along transportation routes, cost of transportation, training of SONGS employees, creation of jobs at SONGS and in the vicinity, decrease in property values near SONGS, concern over the increased capacity of the spent fuel pool, etc. The comments also included several related to emergency planning at SONGS. One commenter stated that the proposed NUHOMS casks that SCE intends to bring onsite at SONGS were not the safest and most secure casks available on the market and that the NRC must force SCE to use the safest cask design for a site that sits in an earthquake fault zone. The commenters believed that the seismic issue must be addressed and independently reviewed by the United States Geological Survey and the NRC and that the issues should be aired in public forums in Southern California. One commenter made reference to several California laws and actions that California should require SONGS to implement. One commenter stated that all television stations should conduct an emergency broadcast check announcement for SONGS.

Response: The site-specific issues related to SCE potentially using the Standardized Advanced NUHOMS ® System are beyond the scope of this rulemaking. Similarly, transportation issues are beyond the scope of this rulemaking. This rulemaking is focused solely on whether to add a particular design, the Standardized Advanced NUHOMS ® System, to the list of approved casks. The rulemaking will enable licensees to use this cask system under the general license provisions of 10 CFR part 72. By rulemaking, in § 72.210, the NRC granted a general license to all reactor facilities to operate an independent spent fuel storage installation (ISFSI). For SCE to be able to operate an ISFSI at SONGS under a general license, certain conditions in Part 72 must be met, which include using casks which have been approved by the NRC via rulemaking, and performing written evaluations which establish, among other things, that the reactor site parameters, including analyses of earthquake intensity, are enveloped by the cask design bases.

This rulemaking is the authority for general licensees and not specific licensees. Any licensee who chooses to use this cask under a general license will need to comply with the Technical Specifications (TS) and the Certificate of Compliance (CoC) conditions, such as training of staff. Decisions made by specific utilities on why a specific cask is chosen over another design are beyond the scope of this rulemaking. If SCE chooses to use the Standardized Advanced NUHOMS ® System at the San Onofre site, the licensee will be required to perform an evaluation in accordance with § 72.212 to determine whether activities related to storage of spent fuel under the general license would involve any changes, tests, or experiments under § 50.59. In addition, licensees would evaluate programs, such as emergency planning, as a part of their evaluations under § 72.212. In accordance with § 50.59, the licensee would make changes as necessary to existing systems and any physical changes to the facility as necessary to accommodate new cask designs. Each of these changes would need to be evaluated per § 50.59 to determine the impact on other systems and on existing safety analyses.

Comment 2: One of the commenters stated that all meetings regarding high-level waste storage at SONGS or the transportation of irradiated fuel casks off site must be public and be held near the site and that all documents should be made public.

Response: This comment is beyond the scope of this rulemaking. However, it is NRC policy that meetings with licensees be noticed in advance and be open to the public, unless proprietary, safeguards, or other protected information is to be discussed. It is also NRC policy that documents be made public through the Agencywide Document Access and Management System (ADAMS), unless they contain proprietary, safeguards, or other protected information.

Comment 3: One commenter recommended that no transportation be allowed without limitation or phase out of the production of the high-level radioactive waste at SONGS. The commenter further recommended that the NRC, Southern California Counties, and the State of California require SCE to replace and phase out energy that increases production of high-level waste with increased renewable sources and conservation technologies ideally before irradiated fuel pools are full in 2006. The commenter believed that any spent fuel stored at SONGS will never leave the site. One commenter stated that the license for SONGS should not be approved until the health effects of offsite radioactive exposure are included in a risk analysis by the California Coastal Commission, State of California, or the NRC. The commenter recommended that the Coastal Commission and the State of California research the legality of SCE's proposed storage site at SONGS.

Response: This comment is beyond the scope of this rulemaking. The NRC approval process for a dry cask CoC does not require site-specific actions such as an independent approval or analysis by a State government or entity.

Comment 4: One commenter supported the view that the structure and financing of the Nuclear Waste Fund requires a major overhaul.

Response: This comment is beyond the scope of this rulemaking. The decision to initiate a major overhaul of the Nuclear Waste Fund is a policy matter for the current Administration to consider in conjunction with Congress. The NRC does not oversee the Nuclear Waste Fund.

Comment 5: One commenter stated that the technical analyses, which are required under § 72.212 to demonstrate how proposed casks will be capable of safely storing spent fuel, being monitored, and safely transporting the fuel and how the public health, safety, and welfare will be maintained, must be made public. The commenter stated that withholding these important technical analyses is a serious breach of faith and the rules. Several commenters requested that the public comment period be extended until all of the technical analyses and reports have been made fully and publicly available.

Response: The NRC agrees that all documents that support the approval of the cask design must be made public. The documents referenced in the proposed rule which provide the basis for the rule are publicly available. Documents related to SONGS are not part of and do not support this rulemaking and, therefore, a request for those documents is beyond the scope of this rulemaking. The request to extend the public comment period until all of SCE's § 72.212 technical analyses and reports have been made fully and publicly available is beyond the scope of this rulemaking, since it deals with site-specific issues. The availability of the studies is not relevant to the question on which public comment is invited; i.e. , whether this generic cask design should be certified by the NRC. A request for extension of the comment period filed by Ms. Patricia Borchmann was denied by letter dated March 27, 2002, from Dr. Donald A. Cool, Director of the NRC's Division of Industrial and Medical Nuclear Safety.

Comment 6: One commenter stated that the NRC's risk assessment and its methodology needs another look and is outdated. The commenter stated that the probability of an extreme hazard (such as tsunami, earthquake, and terrorist attack) is not as low as the outcome of computer modeling and simulations indicate. The commenter stated that during the entire history of the nuclear industry in the United States, the NRC has been in denial about the real risks of operating nuclear generating stations, especially the sites located in highly populated, seismically active areas, as well as the sites that are in areas that make them totally vulnerable to tsunamis.

Response: The commenter did not specifically identify what NRC risk assessment was of concern, hence this comment is beyond the scope of this rulemaking which is related to the safety review of a storage cask. Risk assessment and methodology development are an evolving process in the NRC. Thus, the risk insights obtained from this process are based on many quantitative and qualitative factors, such as statutory requirements and public and stakeholder interests, before conclusions and recommendations affecting safety are made. Comments about terrorist attacks and seismic conditions are also beyond the scope of this rulemaking. The consideration of seismic conditions at or near a spent fuel storage facility, where a storage cask would be placed, must be addressed by the licensee who uses the casks. Prior to use, each licensee must evaluate the seismic and other site-specific conditions at the site to determine that the design of the cask is suited to the conditions it would be expected to experience during its operational lifetime. This would include seismic loads. The site-specific parameters are delineated in TS 4.4.3.

Comment 7: One commenter strongly believed that dry cask storage raises many troubling public health questions. However, the commenter did not provide any specific examples.

Response: The mission of the NRC is to provide reasonable assurance that the health and safety of the general public will be protected from the dangers involved in the commercial use of radioactive materials. The rulemaking process involves a detailed technical review of the storage cask design to ensure the safety of the cask for storage of spent fuel.

Comment 8: One commenter asked that NRC reconsider the refusal to require or provide a site-specific consideration of this extensive modification of an existing license and its related nuclear facility. The residents of Southern California have a right to formal, legal, and fully adjudicated hearings in any such critical and extensive change at San Onofre.

Response: This comment is beyond the scope of this rulemaking. This rulemaking is focused solely on whether to add a particular design, the Standardized Advanced NUHOMS ® System, to the list of approved casks. The rulemaking will enable licensees to use this cask system under the general license provisions of Part 72. The rulemaking does not address site-specific issues related to potential users. This design could be used by any general licensee. By rulemaking, in § 72.210, NRC granted a general license to all reactor facilities to operate an ISFSI without any further site-specific licensing actions.

Comment 9: A commenter raised the question that, while bolting NUHOMS casks to the pad may prevent tipping, what will keep the concrete pad from cracking leading to possible offsite radioactive exposure.

Response: The concrete storage pad is a site-specific design component of a storage facility, which is beyond the scope of this cask design rulemaking. In accordance with § 72.212, the cask operators (licensees) are required to perform written evaluations to ensure that storage pads have been designed to adequately support the storage casks. See TS Section 4.4.3, Item #8, which provides the seismic parameter that would need to be evaluated. The earthquake motions are defined for the top surface of the concrete storage pad. A specific ISFSI site utilizing the cask system must demonstrate that the design seismic condition for that facility does not produce seismic effects greater than those specified for the top of the storage pad. Further, the pads provide a flat, stable surface for resting the storage casks, and any cracks in the pads would have no effect on cask integrity.

Comment 10: One commenter stated that withholding from the public important technical analyses which would demonstrate how proposed casks will be capable of safely storing spent fuel for the entire lifetime that spent fuel will be stored on site, how it will be monitored, how casks can later be safely transported at some time in the distant future, and how the public health, safety, and welfare will be fully maintained is a serious breach of faith and the rules. Another commenter stated that currently casks are licensed (approved) for 20 years, and was concerned that many utilities, including SCE, have stated in their applications that the casks may remain on site for up to 100 years.

Response: Technical documents related to this rulemaking are publicly available for inspection and copying at the NRC Public Document Room and may also be viewed and downloaded electronically via the rulemaking website. In accordance with current NRC regulations, a site may store spent nuclear fuel in a given cask for a period of 20 years. Storage of spent nuclear fuel for a period beyond 20 years is beyond the scope of this rulemaking. TS Section 5.2.5 includes a requirement to monitor the thermal performance of each cask, and Section 5.2.3 includes a requirement to develop a radiological environmental monitoring program.

Comment 11: One commenter asked who at the NRC has approved cranes, other moving equipment, and casks, and what independent verification process was used.

Response: The equipment qualification for lifting and moving heavy loads is addressed in the CoC for the cask design as Condition #5. This item states that a plant-specific safety review (under § 50.59 or § 72.48) is required to show operational compliance with plant-specific heavy load requirements. Each licensee who uses the storage cask is responsible for ensuring that any moving equipment that will be used meets NRC regulatory requirements. The NRC conducts inspections of licensees' loading activities, and such inspections would verify that heavy load issues would be addressed by licensees. The NRC approves cask designs for spent nuclear fuel storage in accordance with the requirements of Part 72.

Comment 12: One commenter asked how the NRC's independent verification process for the proposed NUHOMS casks has changed to address problems that arose with other cask designs. Problems included flammable hydrogen gas bubbles, zinc interactions that can cause an explosion, welding problems, procedure adherence, quality control, cracking, helium leaks, cask loading, flaws in neutron shielding material, faulty O-rings, unloading procedures, and cask deterioration within a few years of installation.

Response: When problems have arisen, the NRC has taken appropriate action to avoid future problems. The NRC staff conducted its independent safety review of the proposed cask design, keeping in mind design issues that have occurred in other cask designs over the past several years. It found no evidence of design-specific characteristics or issues that could lead to repeat of the design concerns raised in this comment.

Comment 13: One commenter stated that the NRC must guarantee the public that the following will not occur if NUHOMS casks are allowed for storage of high-level radioactive waste: (a) Design flaws; (b) vents cut off from air flow due to debris; (c) faulty parts and equipment; (d) cracking; (e) casks approved without NRC's CoC; and (f) exemptions from NRC policies granted to any casks or cask siting, loading, transferring, or transportation procedures.

Response: The NRC takes its responsibility as a regulatory agency very seriously along with its mission to protect the health and safety of the public from dangers associated with the use of radioactive materials. The NRC staff of technical experts has completed a thorough review of the Standardized Advanced NUHOMS ® System cask design. As needed, NRC may conduct inspections of vendors and contractors and may witness dry run exercises and the first fuel loading of the cask when it occurs to verify that the design methods were acceptable, that cooling capability will be maintained, and that proper parts have been used in the fabrication process. No casks can be approved without a CoC being issued, and any exemptions from NRC regulations must be justified and approved by the NRC. In addition, any licensee that uses one of these casks in the future must purchase, use, and maintain the casks in accordance with an NRC-approved Quality Assurance (QA) program. A QA program provides checks and balances to ensure that the quality of the casks is addressed during all stages of design, fabrication, use, maintenance, loading, and unloading (if required).

Comment 14: One commenter asked if there is video footage demonstrating an actual fuel removal into NUHOMS casks at any other nuclear facility? If so, where can the public view a copy? If not, the commenter requested that one be required and sent to all communities that will use NUHOMS casks to store high level radioactive waste onsite for 10-100 years, if not permanently.

Response: The commenter's request for such a video is beyond the scope of this rulemaking. There are no NRC regulatory requirements for licensees to use, or submit as part of an application, video footage demonstrating the loading of spent nuclear fuel into a NUHOMS cask.

Comment 15: One commenter believed that all information, including the NRC independent verification of SCE's studies, demonstrating that NUHOMS casks are capable of withstanding a 7.5-magnitude earthquake should be made available to communities within a 50-mile radius of SONGS.

Response: The comment about verification of SCE's studies is a site-specific issue and therefore beyond the scope of this rulemaking. It is NRC policy that documents be made public through ADAMS, unless they contain proprietary, safeguards, or other protected information. In this case, NRC staff completed its review of the seismic capability of the cask design to withstand the forces of an earthquake that produces accelerations in two horizontal directions of 1.5 g and a vertical acceleration of 1.0 g acting simultaneously, as documented in the SER.

Comment 16: One commenter stated that, according to the NRC in 1990, the “conservative” approach to financing assumptions would entail no repository until 2025, and onsite dry cask storage in the interim. The commenter questioned what assurances (real tests) do residents near the reactor have that casks will not leak, corrode, or in any way negatively impact safety, as the casks are only certified for 20 years and taking into consideration the NRC quote above. The commenter asked what state-of-the-art testing has been done to assure residents within 50 miles of the ISFSI that NUHOMS casks can withstand earthquakes, faulty welds, corroded welds, fuel leakage, and/or terrorism for 100 years, if not permanently.

Response: The NRC staff completed its review of the seismic capability of the cask design to withstand the forces of an earthquake, and this is documented in the SER. The capability to deal with security threats or terrorism attacks is addressed under Part 73 and is beyond the scope of this rulemaking. Problems with welds and fuel leaking would be addressed by procedures and the QA program of the licensee and implemented during fabrication and loading which is beyond the scope of this rulemaking as well. Dry casks are designed to maintain their confinement integrity for the licensed period; i.e. , 20 years. During the life of a cask, the licensee must conduct periodic inspections and maintenance to ensure that the cask design functions remain as specified in the CoC. Storage of spent fuel in this cask design, beyond 20 years, is beyond the scope of this rulemaking. A separate NRC review and approval would be needed for storage beyond the 20-year period.

Comment 17: One commenter asked how damaged fuel assemblies will be handled and what independent verification has the NRC done to assure that this is the safest method of handling damaged fuel assemblies. The commenter asked where the public can view this independent verification.

Response: NRC Spent Fuel Project Office Interim Staff Guidance—1 (ISG-1) states that spent nuclear fuel with known or suspected cladding defects greater than a hairline crack or a pinhole leak (damaged fuel) should be canned for storage. TS 2.1.a states that damaged fuel assemblies shall be placed in confinement cans. The purpose of canning is to confine gross fuel particles to a known, subcritical volume during off-normal and accident conditions, and to facilitate handling and retrievability. ISG-1 is publicly available on the NRC Web site.

Comment 18: One commenter asked what risk analysis studies the NRC did to assure that high level radioactive waste can be safely transferred to barges, trains, and/or trucks for eventual transportation. The analysis should have included seismic issues regarding an earthquake during transfer of radioactive fuel from pools to casks and from casks to transportation modes. The commenter further stated that if no risk analysis was done, one must be completed before high level radioactive waste is allowed to be transferred from irradiated fuel pools to NUHOMS casks, much less transferred to transportation modes.

Response: Transportation comments are beyond the scope of this Part 72 rulemaking. The NRC has performed a number of transportation risk studies, and currently the Package Performance Study is in progress to study what the effects of impact and fire conditions beyond current regulations would be for a recently approved transportation cask design. The effects of the forces from an earthquake during transfer of radioactive fuel from a spent fuel pool to a storage cask would have to be considered in the procedures and the design of handling equipment in accordance with Part 50 requirements that would be in effect by the licensed utility that would be conducting fuel movement. Dealing with the impact of an earthquake during the movement of casks to a truck or train would be addressed by the requirements of Part 71 which specifies that a number of tests and analyses be performed to determine that the cask can withstand the forces expected to be seen during normal and accident conditions. The forces that a transportation cask can withstand exceed those that would be experienced during an earthquake.

Comment 19: One commenter stated that the NRC has issued a report admitting that irradiated fuel assemblies can still spontaneously combust even after cooling 5 years in pools. The commenter questioned what assurances are there that fuel being transferred into dry casks has been cooled for the minimum 5 years.

Response: The CoC includes TS that state that the fuel that will be loaded in the casks must be cooled a minimum of 10 years. The loading of casks and the records thereof will be subject to NRC inspection for verification that the TS have been met.

Comment 20: One commenter stated that the NRC must demonstrate that the storage casks can be safely opened after loading, if necessary, before allowing the cask to be filled with radioactive waste.

Response: There are no regulatory requirements for a licensee to demonstrate that fuel can be safely unloaded from a cask prior to the actual loading of fuel. The CoC does, however, specify that the licensee conduct a dry run of an unloading operation. That exercise would not be performed with spent nuclear fuel but would be conducted using “dummy” assemblies.

Comment 21: One commenter stated that the design basis for the proposed casks must be verifiably certified to withstand a 9/11 style terrorist attack (a minimum of one kiloton) and that the cask should not be approved unless it can withstand a 9/11 type terrorist attack.

Response: This comment is beyond the scope of this rulemaking. The design basis of the casks must address the Part 72 criteria to withstand a number of hypothetical accidents. Currently, there are no regulatory requirements for a storage cask to withstand a 9/11 style terrorist attack. Since 9/11, the NRC has issued advisories to licensees who operate storage facilities to augment certain aspects of their security plans and capability. Further, the NRC has issued orders to impose certain security requirements beyond current regulations on these licensees. In addition, the NRC is conducting a thorough review of its current security regulations and is conducting a vulnerability study for spent fuel storage cask designs to determine what the effects would be from a terrorist attack of a different nature, including the crash of a jumbo jet filled with fuel. After completion of these efforts, the NRC will determine what changes are needed to its security regulations and will make them as appropriate.

Comment 22: One commenter stated that no casks have been tested for their anticipated lifetime on site at nuclear plants.

Response: Spent fuel storage casks are designed to withstand normal and hypothetical accident conditions for their license period of 20 years, in accordance with Part 72 requirements. Licensees must also periodically monitor and inspect casks to verify that safety functions are maintained during operational lifetime. Storage of spent nuclear fuel beyond the 20-year license period is beyond the scope of this rulemaking.

Comment 23: A commenter stated that, in 1984, the NRC issued its waste confidence decision. A summary of the findings includes the temporary storage of spent fuel after cessation of reactor operations and generic determination of no significant environmental impact. The Commission also announced that although it could reach favorable conclusions, it recognized that significant and unexpected events might affect its decision. The commenter stated that it should be obvious to all Americans that the events of 9/11 meet the criteria of “unexpected events” to revisit the NRC's Waste Confidence Decision.

Response: This request to revisit the Waste Confidence Decision is beyond the scope of this rulemaking. Since 9/11, the NRC has taken a number of actions that have affected its licensees. Specifically in the area of spent fuel interim storage, the NRC has issued advisories to licensees who operate storage facilities to augment certain aspects of their security plans and capability. Further, the NRC has issued orders to impose certain security requirements beyond current regulations on these licensees. In addition, the NRC is conducting a thorough review of its current security regulations and is conducting a vulnerability study for spent fuel storage cask designs to determine what the effects would be from a terrorist attack of a different nature, including the crash of a jumbo jet filled with fuel. After completion of these efforts, the NRC will determine what changes are needed to its security regulations and will make them as appropriate.

Comment 24: One commenter asked for information about the number of additional personnel necessary to prepare for an ISFSI.

Response: There is no requirement for a particular level of staffing in the CoC. The question raised by the commenter is unclear and lacks specificity as to what is being requested. The NRC believes the comment is beyond the scope of this rulemaking.

Comment 25: One commenter recommended that all training of personnel be reviewed and independently verified by experts outside the cask designers and the utility.

Response: TS 5.2.2 requires licensees to train and verify the expertise of personnel to maintain and operate the Standardized Advanced NUHOMS ® System at nuclear plants. CoC Condition #8 requires that the licensee perform a full dry run of loading and unloading operations prior to first fuel loading of the cask. The NRC conducts independent inspections of dry run activities at ISFSIs.

Comment 26: One commenter asked what agency approves transportation methods.

Response: Transportation issues are beyond the scope of this rulemaking. The NRC is not certain of the commenter's request when it refers to “transportation methods.” For the selection of routes, mode of transportation, or physical protection and control of material, the NRC, in conjunction with the Department of Transportation (DOT) and the Department of Energy (DOE), regulates the safe transport of high level radioactive material from beginning to final destination. It is, however, the responsibility of the shipper to choose the mode of transportation along with routes to be used in accordance with applicable regulations and guidance.

Comment 27: One commenter asked for information as to how transportation methods are independently confirmed to be safe. The commenter cited an incident which occurred in late March in which a truck hauling radioactive waste blew over in Wyoming. The incident was supposedly due to high winds. Regarding this incident, the commenter questioned what would happen in an earthquake and if high winds are considered when licenses for transport are granted. The commenter questioned that if this were considered, how did the incident happen. If it were not considered, why wasn't it?

Response: This comment, which deals with transportation issues, is beyond the scope of this rule which is for approval of a storage cask design. The NRC, DOE, and DOT have comprehensive and stringent regulations for the safe transport of high level radioactive waste. These regulations address the packaging that must be used and, in the case of spent nuclear fuel, a package would be a cask that would need to be reviewed and approved for safety considerations by the NRC. Choosing a mode of transportation (rail, truck, or barge) would be made by the shipper, and safety in each mode is addressed by DOT and its independent activities. However, the NRC and DOT rely on the robust design of shipping packages to provide reasonable assurance of safe transportation during routine or accident conditions. The packages protect the contents from damage and release and protect the public from unnecessary exposure to radiation. ( See also Comment 26.)

Comment 28: One commenter stated that transportation of high level radioactive waste has been postponed several times since 9/11 due to possible terrorist threats. The commenter also stated that one shipment, in the planning stages for years, to ship 125 spent fuel rods on a 2,360-mile journey, was delayed due to 9/11. The casks, unable to be certified in temperatures below 10 degrees Fahrenheit, had to be removed from the train and stored inside for the winter. The commenter stated that the NRC has approved casks for storage and transportation that are unable to hold up to wind and temperature. The commenter questioned how transportation out of their earthquake-prone coastal zone will ever be assured by SCE, by DOE, or by the NRC.

Response: Transportation and site-specific issues are beyond the scope of this rulemaking which deals with the approval of a design for dry storage of spent nuclear fuel. See response to Comments 21 and 23, above, for a discussion of security concerns. The NRC has reviewed the cask design capability to withstand forces of wind and temperature during storage as documented in the SER.

Comment 29: One commenter questioned how leaking casks could be unloaded if the spent fuel pool were no longer available after the reactor shut down operations.

Response: A licensee who uses an approved spent fuel cask at its storage facility is responsible for continually monitoring the conditions of each of its casks and the radiation levels around the casks. In addition, it must develop procedures to deal with off-normal events and accidents including dealing with the event of a cask that has lost its confinement capability. In the situation where a plant was decommissioned and no longer had a spent fuel pool available, the licensee would have contingency plans in place to deal with a leaking cask on site. Such a plan would include actions to minimize dose to workers and to the public in accordance with NRC regulations.

Comment 30: The commenter asked if the design basis for the outer cement covering for NUHOMS casks has been approved for transportation.

Response: The Standardized Advanced NUHOMS® System is designed for dry storage of spent nuclear fuel, and not for transportation of spent nuclear fuel. If a component of the Standardized Advanced NUHOMS® System were to be transported, it would need to be approved by the NRC for use in the transportation system being used.

Comment 31: One commenter requested that NRC address the concerns about the risks of operating nuclear generating stations, especially spent fuel pools which will remain totally vulnerable to terrorist attack. Another commenter referenced a September 2000 report by the National Council on Radiation Protection and Measurements dealing with the threat of nuclear terrorism that warned that “Targeting nuclear spent fuel elements kept in a storage facility would be an easier target than an operating plant.” A successful attack on such a facility using 1,000 pounds of high explosives could cause radiation contamination over a wide area. This commenter asked what the additional costs and requirements of county, State, and military personnel would be should there be a terrorist attack of vulnerable irradiated fuel pools. The commenter also asked who will bear the additional costs should there be a terrorist attack, especially after termination of operations when irradiated fuel must remain in pools for at least 5 years for cooling.

Response: Comments related to spent fuel pools and security provisions for protection of licensed facilities are beyond the scope of this rulemaking. The NRC reviewed potential issues related to possible radiological sabotage of storage casks at reactor site ISFSIs in the 1990 rulemaking that added Subparts K and L to Part 72 (55 FR 29181; July 18, 1990). NRC regulations in Part 72 establish physical protection requirements for an ISFSI located within the owner-controlled area of a licensed power reactor site. Spent fuel in the ISFSI is required to be protected against radiological sabotage using provisions and requirements as specified in § 72.212(b)(5). Further, specific performance criteria are specified in Part 73. Each utility licensed to have an ISFSI at its reactor site is required to develop physical protection plans, response plans, and to install systems that provide high assurance against unauthorized activities that could constitute an unreasonable risk to public health and safety.

The physical protection systems at an ISFSI and its associated reactor are similar in design features to ensure the detection and assessment of unauthorized activities. Alarm annunciations at the general license ISFSI are monitored by the alarm stations at the reactor site. Response to intrusion alarms is required. Each ISFSI is subject to inspection by NRC. The licensee ensures that the physical protection systems are operating within their design limits. It is the ISFSI licensee who is responsible for protecting spent fuel in the casks from sabotage rather than the certificate holder.

Comment 32: One commenter quoting Ray Shadis stated that the public must be informed of all potential radiological consequences, including radioactive dose levels and dose distribution, that would result from massive releases or dispersal of radioactive material.

Response: This comment is beyond the scope of this rulemaking. However, Chapter 10 of the SER documents the staff's review of the cask design to ensure that its use will meet the regulatory dose requirements of Parts 20 and 72.

Comment 33: One commenter asked about the proposed security at the high level radioactive waste site (both reactor and irradiated fuel pools) during operation and after retirement.

Response: This comment is beyond the scope of this rulemaking which is focused solely on whether to place the Standardized Advanced NUHOMS® System on the list of approved casks. See response to Comment 31, above.

Comment 34: One commenter asked how SCE and the NRC provide assurance to the public that terrorism cannot occur or cause a radioactive release.

Response: This comment is beyond the scope of this rulemaking. See response to Comment 31, above.

Comment 35: One commenter stated that the Holtec and NUHOMS casks (both steel liner and concrete) could be penetrated by 757 and 767 aircraft and that the NRC must address this issue before any permits are granted and questioned how this concern has been addressed by SCE and the NRC.

Response: The NRC considers the comment to be beyond the scope of this rulemaking which is focused solely on whether to place the Standardized Advanced NUHOMS® cask system on the list of approved casks for storage. See response to Comment 21, above.

Comment 36: One commenter stated that because the spent fuel pools contain many reactor cores, the amount of radioactive material available for release to the environment and therefore the anticipated consequences, are much greater than for a reactor meltdown, and that “* * * dispersal of just one portion of one spent fuel assembly by means of high explosives would have radiological consequences much greater than those of a Hiroshima-sized nuclear weapon and would yield near term lethal doses ranging downwind over 60 miles.” However, emergency response planning, aimed at reactor accidents, has not been adjusted accordingly. The commenter believed that the issues must be addressed in a risk analysis by the NRC.

Response: Comments related to spent fuel pools and security issues are beyond the scope of this rulemaking. See response to Comment 31, above.

Comment 37: One commenter stated that the design basis threat must encompass not only a 9/11 air assault, but a ground-based assault for more than 10 people, a truck-bomb assault, or weapons launched from a truck or water craft. The commenter stated that nuclear reactors, adjacent spent fuel storage deposits, nuclear fuel reprocessing facilities, transport vehicles, or any high-level waste site are potential targets for the use of high explosives to disperse into the atmosphere the very high levels of radioactivity associated with materials at these facilities. A successful incursion into a nuclear power reactor would require a very heavily armed force, since commercial reactors are very well protected. The core of a commercial reactor is protected by a containment structure sufficient to prevent atmospheric release even if a large airplane were to crash into the facility. Only when the reactor is being refueled and the containment structure is open would atmospheric dispersion of the reactor's nuclear fuel be likely as a result of the use of high explosives. The commenter stated that targeting spent nuclear fuel elements kept in a storage facility would be an easier target than an operating nuclear plant.

Response: This comment is beyond the scope of this rulemaking. See response to Comment 31, above.

Based on public comments, no changes from the proposed rule were made to the final CoC for the Standardized Advanced NUHOMS® cask system, nor its appendices, the Technical Specifications, and the Approved Contents and Design Features. In addition, no changes were made to the PSER.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is adding the TN Standardized Advanced NUHOMS® cask system to the list of NRC-approved cask systems for spent fuel storage in § 72.214. This action does not constitute the establishment of a standard that establishes generally-applicable requirements.

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), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

Under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, the NRC has determined 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. This final rule adds an additional cask to the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites without additional site-specific approvals from the Commission. 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, O-1F23, 11555 Rockville Pike, Rockville, MD. Single copies of the environmental assessment and finding of no significant impact are available from Jayne M. McCausland, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6219, e-mail jmm2@nrc.gov.

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

On July 18, 1990 (55 FR 29181), the Commission issued an amendment to 10 CFR Part 72. The amendment provided for the storage of spent nuclear fuel in cask systems with designs approved by the NRC under a general license. Any nuclear power reactor licensee can use cask systems with designs approved by the NRC to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. In that rule, four spent fuel storage casks were approved for use at reactor sites and were listed in 10 CFR 72.214. That rule envisioned that storage casks certified in the future could be routinely added to the listing in § 72.214 through the rulemaking process. Procedures and criteria for obtaining NRC approval of new spent fuel storage cask designs were provided in Part 72, Subpart L.

The alternative to this action is to withhold approval of this new design and issue a site-specific license to each utility that proposes to use the casks. This alternative would cost both the NRC and utilities more time and money for each site-specific license. Conducting site-specific reviews would ignore the procedures and criteria currently in place for the addition of new cask designs that can be used under a general license, and would be in conflict with NWPA direction to the Commission to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. This alternative also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees. This final rulemaking will eliminate the above problems and is consistent with previous Commission actions. Further, the rule will have no adverse effect on public health and safety.

The benefit of this rule to nuclear power reactor licensees is to make available a greater choice of spent fuel storage cask designs that can be used under a general license. The new cask vendors with casks to be listed in § 72.214 benefit by having to obtain NRC certificates only once for a design that can then be used by more than one power reactor licensee. The NRC also benefits because it will need to certify a cask design only once for use by multiple licensees. Casks approved through rulemaking are to be suitable for use under a range of environmental conditions sufficiently broad to encompass multiple nuclear power plants in the United States without the need for further site-specific approval by NRC. Vendors with cask designs already listed may be adversely impacted because power reactor licensees may choose a newly listed design over an existing one. However, the NRC is required by its regulations and NWPA direction to certify and list approved casks. This rule has no significant identifiable impact or benefit on other Government agencies.

Based on this discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the Commission's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants, independent spent fuel storage facilities, and Transnuclear, Inc. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 13 CFR Part 121.

The NRC has determined that the backfit rule (§ 50.109 or § 72.62) does not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.

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.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Part 72.

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 McDonnell Douglas Model DC-9-10, DC-9-20, DC-9-30, DC-9-40, and DC-9-50 series airplanes; and Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes was published in the Federal Register on August 16, 2002 (67 FR 53527). That action proposed to require replacement of the emergency power switch knob on the overhead switch panel in the flight compartment with a new, improved knob made of non-conductive material.

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 asks the FAA to withdraw the proposed AD for the following reasons:

• The proposed AD states that one mechanic received a shock during maintenance, and the commenter notes that it is not likely that the problem exists or will develop in other switches. The commenter operates 74 Model DC-9 series airplanes, and over the past 21 years in service there have been no reported incidents by pilots or mechanics while operating the emergency power switch. The pilots and mechanics have operated the emergency power switches over half a million times.

• Receiving a shock from the power switch does not pose a substantial hazard to the continued airworthiness of the aircraft. The reason for this is that 99 percent of power switch operations are performed while the airplane is parked at the gate, when the pilot performs a pre-flight check, or when a mechanic performs a maintenance service check. If the pilot or mechanic did receive a shock from the power switch, a discrepancy form would be filled out and the switch would be replaced.

The same commenter asks that, as an alternative to withdrawing the proposed AD, the compliance time for replacement of the switch be extended from 6 months to 24 months, using the lead-time of the parts and scheduled maintenance interval criteria, as follows:

• In the proposed AD the FAA estimates that 1,079 airplanes of U.S.-registry are affected. At the time the proposed AD was issued, the manufacturer had no knobs in stock, and 374 on order, with a due date near the end of 2002. There is a 160-day lead time on orders for the power switch knob; therefore, the fleet cannot be outfitted until the knobs are received.

• Because the commenter's C-check is performed at 20-month intervals, it would have less impact on operations if the knobs could be changed during a C-check. This would eliminate special routing of airplanes or special distribution of the knobs. In addition, as stated in Boeing Alert Service Bulletin DC9-24A189 (referenced in the proposed AD as the appropriate source of service information for accomplishment of the actions), the opening of the forward overhead switch panel would not be required, “based on knowledge of mechanic performing replacement of knob assembly on emergency power switch.” This would allow one set of mechanics to replace the knobs and would eliminate unnecessary steps.

We partially agree with the commenter, as follows:

• We do not agree to withdraw the proposed AD. As specified in the Discussion section of the proposed AD, “Investigation revealed that terminals within the switch had shorted to the switch shaft. Due to the design of the emergency power system, this switch is not grounded. The capacity of the emergency power switch knob to conduct electricity, if not corrected, could result in delivery of an electrical shock and consequent injury to flightcrew or maintenance personnel.” Further, the existing power switch must be replaced with a non-conductive material in order to preclude the possibility of an electrical shock to personnel, which could happen either in flight or before takeoff. The final rule will be issued accordingly.

• We do agree to extend the compliance time somewhat for the replacement of the switch. We have reviewed and approved Boeing Alert Service Bulletin DC9-24A189, Revision 01, dated August 5, 2002, excluding Evaluation Form; and Revision 02, dated October 8, 2002, excluding Evaluation Form; as additional sources of service information for accomplishment of the actions. Revision 02 extends the compliance time recommended in the original issue of the service bulletin from 6 to 12 months, as parts will be available within that timeframe. The changes in Revisions 01 and 02 are not substantive, meaning that airplanes modified per those service bulletins are not subject to any additional work. However, we have changed paragraph (a) of this final rule to refer to Revision 02 of the service bulletin as the appropriate source of service information for the actions in that paragraph. In addition, we have added a new paragraph (b) to the final rule (and reordered subsequent paragraphs accordingly) to give credit for replacements done before the effective date of this AD according to the original issue and Revision 01 of the service bulletin. To follow the compliance time specified in Revision 02 of the service bulletin, we have extended the compliance time for the replacement to within 12 months after the effective date of this AD. Paragraph (a) of this final rule has been changed accordingly.

Two commenters ask that the compliance time specified in the proposed AD be extended from 6 to 12 months. A third commenter states that, although there are concerns about parts availability, if Boeing can provide an adequate supply of parts to meet the overnight inspection schedule, a compliance time of 6 months can be met. The two commenters note that although Revision 01 of the referenced service bulletin was released on August 5, 2002, to reset the start date of the original issue of the service bulletin, only 300 parts were available at that time. One commenter adds that the FAA is currently reviewing Revision 02 of the service bulletin which extends the compliance time to 12 months to accommodate availability of parts. Both commenters state that the proposed AD should be changed to reflect the latest revision of the service bulletin with the extended compliance time, which allows time for Boeing to produce an adequate number of parts.

As described previously, we have reviewed and approved Revision 02 of the service bulletin and agree to extend the compliance time for the replacement required by this final rule to within 12 months after the effective date of this AD.

We have changed the service bulletin citation throughout this final rule to exclude the Evaluation Form. (The form is intended to be completed by operators and submitted to the manufacturer to provide input on the quality of the service bulletin; however, this AD does not include such a requirement.)

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 1,904 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,079 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. Required parts will cost approximately $250 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $334,490, or $310 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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 98-08-24, amendment 39-10473 (63 FR 19180, April 17, 1998), which is applicable to certain McDonnell Douglas Model DC-9-10, -20, -30, -40, and -50 series airplanes, and Model C-9 (military) airplanes, was published in the Federal Register on August 30, 2002 (67 FR 55732). The action proposed to require a one-time visual inspection to determine the modification status of the corners of the forward lower cargo doorjamb; low-frequency eddy current (LFEC) inspections to detect cracks of the fuselage skin and doubler at all corners of the forward lower cargo doorjamb; various follow-on repetitive inspections; and modification, if necessary. The action also proposed to retain the existing requirements, but require certain high-frequency, rather than low-frequency, eddy current inspections for certain conditions.

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 asks that the repetitive inspection interval specified in paragraph (b)(1)(i)(A) of the proposed AD be extended from 3,500 landings to 3,860 landings. The commenter states that this would permit inspection of affected areas during a scheduled maintenance visit.

The FAA does not agree with the commenter's request. Insufficient supporting data were provided to us to substantiate the request. In developing an appropriate compliance time for this action, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the manufacturer's recommendation as to an appropriate compliance time, and the practical aspect of accomplishing the required inspections within an interval of time that parallels normal scheduled maintenance for the majority of affected operators. No change to the final rule is necessary in this regard.

The same commenter asks that upgrade or replacement of certain repairs, as specified in paragraph (c) of the proposed AD, be deferred for a period of 24 months, providing the high frequency eddy current (HFEC) inspections find no evidence of cracking. The commenter states that this would pertain to an existing repair or modification that is not in accordance with the published structural repair manual (SRM) or rework drawing specifications, but has been approved for static strength by an original equipment manufacturer or FAA Designated Engineering Representative (DER).

We do not agree with the commenter. We have conducted further analysis of this issue in conjunction with the manufacturer, and we have determined that, for the corners of the forward lower cargo door jamb that have been modified, but not in accordance with the DC-9 SRM or service rework drawing, an initial HFEC inspection of the fuselage skin adjacent to the existing repairs would not detect any cracking under the repairs. The absence of cracking outside a repaired area does not indicate that an acceptable level of safety is being maintained, since possible cracking under the repairs could grow rapidly and extend out from under the repaired area. No change to paragraph (c) of the final rule is necessary in this regard.

The same commenter states that the proposed AD should explicitly state that the new AD supersedes and cancels the requirements of the existing AD, to avoid a duplicate compliance requirement.

We do not agree with the commenter; the requested language is already in the proposed AD. The Summary section of the proposed AD states, “This document proposes the supersedure of an existing airworthiness directive * * * The Summary section also specifies that the proposed AD retains the requirements in the existing AD, but requires HFEC rather than low frequency eddy current inspections for certain conditions. No change to the final rule is necessary in this regard.

We have changed the service bulletin citation throughout this final rule to exclude the Evaluation Form. (The form is intended to be completed by operators and submitted to the manufacturer to provide input on the quality of the service bulletin; however, this AD does not include such a requirement.)

In the Summary section of the proposed AD, we inadvertently omitted identification of the X-ray inspection to detect cracks, which was required by AD 98-08-24. That inspection was, however, identified in the actions required by the proposed AD. We have changed the Summary section of this AD to include the following phrase: “* * * low-frequency eddy current or X-ray inspections to detect cracks * * *”

The language in paragraph (f)(3) of the proposed AD has been changed from “An alternative method of compliance for any inspection or repair * * *” to “An alternative method of compliance that provides an acceptable level of safety may be used for any repair * * *” to clarify that a DER is not permitted to approve an inspection method.

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 899 airplanes of the affected design in the worldwide fleet. The FAA estimates that 622 airplanes of U.S. registry will be affected by this AD.

The inspection that is currently required by AD 98-08-24, and retained in this AD, takes approximately 1 work hour 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 is estimated to be $60 per airplane.

Should an operator be required to accomplish an eddy current inspection, it will take approximately 1 work hour per airplane to accomplish, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of an eddy current inspection required by this AD is estimated to be $60 per airplane.

Should an operator be required to accomplish the modification, it will take approximately 14 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $936 or $2,807 per airplane, depending on the service kit purchased. Based on these figures, the cost impact of the modification required by this AD is estimated to be $1,776 or $3,647 per airplane.

No change to the parts cost or work hour estimate is anticipated as a result of the new actions included in this AD.

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 Boeing Model 747 series airplanes was published in the Federal Register on May 30, 2002 (67 FR 37734). That action proposed to require repetitive inspections to detect evidence of wear damage in the area at the interface between the vertical stabilizer and fuselage skin, and corrective actions, if necessary. That action also proposed to provide for an optional terminating action for the repetitive inspections.

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 states that the work hours cited in the cost impact section of the proposed AD are significantly understated. The commenter notes that the hours for access and restoration have been omitted from the cost figures, so the true cost impact is not specified. The commenter states that access and restoration tasks do not routinely occur during scheduled maintenance visits in this instance. The commenter adds that 18 hours are necessary to gain access, perform the inspection and terminating action, and restore the airplane. The commenter asks that the cost impact section be changed to 18 hours for these actions.

The FAA agrees that access to the area under the vertical seal is not a task normally accomplished during routine maintenance, and the work hours required for access and closeup should be added. We have changed the work hours for the inspection specified in the cost impact section to 12 work hours; the optional terminating action will remain at 6 work hours, as it can be done immediately following the inspection, before closeup.

One commenter states that the definition for the limits for allowable skin damage as specified in the structural repair manual (SRM) was recently revised, and the damage limits have been reduced. The commenter adds that Section 3 of the referenced service bulletin specifies these new allowable damage limits in the Accomplishment Instructions. The commenter asks that the proposed AD be changed to refer to the service bulletin or list the revision date of the appropriate SRM to assure operators use the new limits for allowable damage.

We do not agree with the commenter. Operators should use the new allowable damage limits cited in the service bulletin or they may not be evaluating existing blendouts against the proper limits. However, we have determined that evaluation of existing blendouts against the old damage limits will not compromise an acceptable level of safety. Regarding new repairs, paragraph (a)(2) of the proposed AD requires that operators repair and refinish the skin per the service bulletin. In order to comply with this requirement, operators must use the allowable limits specified in the service bulletin. No change to the final rule is necessary in this regard.

One commenter asks that credit be given for the inspections and terminating action required by the proposed AD, if done before the effective date of the proposed AD per Boeing Service Bulletin 747-53-2192, dated July 21, 1981. The commenter states that the service bulletin referenced in the proposed AD includes a provision that specifies such credit.

We agree that credit can be given under certain explicit conditions. Service Bulletin 747-53-2192 specifies that, for airplanes having line numbers 0001 through 0414 inclusive, there is an option of using enamel coating or BMS 10-86 Teflon-filled coating. If operators can confirm that BMS 10-86 Teflon-filled coating was used, and the new allowable damage limits specified in Boeing Alert Service Bulletin 747-53A2478 (referenced in the proposed AD as the appropriate source of service information for accomplishment of the actions specified) are met, then no more work is necessary. A new paragraph (c) has been added to this final rule to provide credit if the conditions are met.

One commenter states that the Boeing Model 747 Maintenance Planning Document (MPD) recommends inspections of the affected areas of the fuselage skin at no greater than “D” check intervals. The commenter adds that the Corrosion Prevention and Control Program (CPCP) recommends inspections of the exterior surface of the fuselage skin for corrosion and other discrepancies at 5-year intervals. Based on these requirements, the commenter does the inspections required by the proposed AD earlier than the 6,000-flight-cycle compliance time specified for the repetitive inspections. The commenter also adds that, since the existing inspection programs already require inspections more frequently, there is no additional safety to be gained from promulgation of the proposed AD. The commenter asks that credit be given for the repetitive inspections required by paragraph (a)(1) of the proposed AD if done as part of these maintenance programs.

Based on operator reports of wear damage of the fuselage skin at the interface area of the vertical stabilizer seal and fuselage skin, we do not agree with the commenter that existing maintenance programs are providing acceptable levels of safety. Additionally, this area is not accessed by all operators during scheduled maintenance visits, as specified previously under “Request to Change Cost Impact,” so no change to the final rule is necessary in this regard. However, under the provisions of paragraph (d) of the final rule, we may approve requests for alternate inspections if data are submitted to substantiate that the inspections are equivalent and that repairs and any existing wear meet the allowable damage limits specified in the referenced service bulletin.

One commenter states that paragraph (b) of the proposed AD allows refinishing of the fuselage skin with BMS 10-86 Teflon-filled coating as terminating action for the proposed inspections. The commenter notes that there are other Teflon-filled coatings that are equivalent or better than BMS 10-86, and operators may already be using these “equivalent” coatings in their paint specifications. The commenter asks that, if the proposed AD is deemed necessary, paragraphs (a)(2) and (b) be changed to allow the use of other Teflon-filled coatings with equivalent abrasion resistant properties.

We do not agree with the commenter's request, as no supporting data were provided to us to substantiate the request. However, under the provisions of paragraph (d) of the final rule, we may approve requests for the use of other Teflon-filled coatings if data are submitted to substantiate that such coatings would provide an acceptable level of safety.

One commenter states that paragraphs (a)(2) and (b) of the proposed AD allow the one-time application of Teflon-filled paint coating as terminating action for the repetitive inspections required by paragraph (a)(1) of the proposed AD. The commenter states that the proposed AD seems to indicate that the external paint will never again be removed and replaced, but is reapplied on an irregular basis. The commenter adds that, if this problem is as serious as alleged, a one-time application of a Teflon-filled paint coating to the exterior of the airplane would not provide a realistic terminating action. The paint will have to be reapplied whenever the external paint is stripped and refinished.

We do not agree with the commenter. If the external paint is stripped, refinishing the skin with BMS 10-86 Teflon-filled coating is required to remain in compliance with paragraph (a)(2) of this AD. Therefore, no change to the final rule is necessary in this regard.

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 1,104 Boeing Model 747 series airplanes of the affected design in the worldwide fleet. The FAA estimates that 253 airplanes of U.S. registry will be affected by this AD, that it will take approximately 12 work hours per airplane (including time required to gain access and to close up) 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 $182,160, or $720 per airplane, per inspection cycle.

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.

Should an operator elect to accomplish the proposed optional terminating action per paragraph (b) of this AD, it would take approximately 6 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 optional termination action would be $360 per airplane.

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 Boeing Model 757-200 series airplanes with stowage bins installed forward of door 2 at Station 680 was published in the Federal Register on May 15, 2002 (67 FR 34639). That action proposed to require a one-time inspection to determine if a certain intercostal is installed for support of the overhead stowage bin(s) at Station 680, and follow-on actions, if necessary.

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 states that it offers no comments because it does not operate any affected airplanes.

Several commenters request that the FAA extend the compliance time for installation of the intercostal(s), if necessary, from 24 months to 60 months after the effective date of the AD. The commenters point out that the time required to gain access for installing the intercostal(s) is significant (the commenters estimate 65 work hours is needed to gain access, install, and close up), and the proposed 24-month compliance time would not allow most operators to accomplish the proposed actions during a heavy maintenance visit. The commenters also state that, based on preliminary inspections, a significant portion of the airplane fleet may be without the subject intercostal. To ensure that an acceptable level of safety is maintained if the compliance time is extended to 60 months, the commenters recommend accomplishment of repetitive inspections for cracking every 18 months.

The FAA concurs that extending the compliance time for the installation of the intercostal(s) is an acceptable alternative to requiring installation of the intercostal(s) within 24 months after the effective date of this AD, provided that repetitive inspections for cracking are performed until the intercostal is installed. Therefore, we have revised paragraph (b) in this final rule to add subparagraphs (b)(1) and (b)(2), which specify the compliance alternatives.

The same commenters who request extension of the compliance time for installing the intercostal also request that we reduce the compliance time from 24 months to 12 months for the one-time inspection to determine if the subject intercostal is installed. One of the commenters explains that reducing the compliance time in this way would ensure that any structural damage is found and fixed in a timely manner.

We do not concur with the request to reduce the compliance time for the one-time inspection. In developing an appropriate compliance time for this AD, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, and the time necessary to perform the inspection. In light of all of these factors, we find a 24-month compliance time for completing the required inspection to be warranted, in that it represents an appropriate interval of time allowable for affected airplanes to continue to operate without compromising safety. No change is necessary in this regard.

Two commenters request that we revise paragraph (c) of the proposed AD to allow stop-drilling of any crack that is found, instead of requiring repair before further flight. The commenters state that, following stop-drilling of the crack, the affected overhead stowage bin could be blocked out until an interim repair is installed within 90 days. The commenters state no justification for this request, but one commenter notes that the stowage bins at Station 680 on its airplanes are above a galley, so no passenger sits under the subject stowage bins.

We do not concur with the commenters' request. The commenters provide no data to substantiate that their request would provide an acceptable level of safety. However, an affected operator may request approval of an alternative method of compliance as provided by paragraph (d) of this AD. We may consider approving such an alternative method of compliance if data are submitted to support that an alternative repair method would provide an acceptable level of safety. No change is necessary in this regard.

The commenters who request extension of the compliance time for installation of the intercostal, reduction of the compliance time for the initial inspection, and inclusion of a provision for stop-drilling cracks, recommend that we issue a supplemental NPRM, supported by a revised service bulletin.

We do not concur with the commenters' request. Under the provisions of the Administrative Procedure Act, we issue a supplemental NPRM and reopen the period for public comment when we determine that a change to a proposed AD will either increase the economic burden on an operator or increase the scope of the proposed AD. The change that we are making to this AD—extension of the compliance time for installing the intercostal—does not increase the economic burden on any operator nor does it expand the scope of the proposed AD. Also, the airplane manufacturer has not issued a revised service bulletin. For these reasons, as well as the potentially adverse effect on safety that delaying issuance of this final rule may cause, we find it unnecessary to issue a supplemental NPRM. Thus, no change has been made in this regard.

After careful review of the available data, including the comments noted above, we have determined that air safety and the public interest require the adoption of the rule with the change previously described. We have determined that this change will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 403 Model 757-200 series airplanes of the affected design in the worldwide fleet. We estimate that 219 airplanes of U.S. registry will be affected by this AD.

The required inspection will take up to 2 work hours per airplane (1 work hour per side of the airplane), at the average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be up to $26,280, or $120 per airplane.

Should an operator be required to do the installation, it will take up to 2 work hours per airplane (1 work hour per side of the airplane), at the average labor rate of $60 per work hour. Required parts will cost approximately $1,310 per airplane. Based on these figures, the cost impact of this installation is estimated to be $1,430 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 described 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 Boeing Model 737-600, -700, -700C, -800, and -900 series airplanes was published in the Federal Register on August 20, 2002 (67 FR 53893). That action proposed to require replacement of the existing fueling float switch and conduit assemblies in the main and center fuel tanks with new, improved assemblies.

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, the manufacturer, asks that Boeing Alert Service Bulletin 737-28A1142, Revision 2, dated November 26, 2002, be added to the proposed AD as another source of service information for accomplishment of the specified actions. Boeing Alert Service Bulletin 737-28A1142, dated February 7, 2002, was referenced in the proposed AD as the appropriate source of service information for accomplishment of the actions.

The FAA agrees with the commenter. We have reviewed and approved Boeing Alert Service Bulletin 737-28A1142, Revision 2, dated November 26, 2002. We find that the changes incorporated in Revision 2 of the service bulletin are not substantive, meaning that airplanes modified per the original issue of the service bulletin are not subject to any additional work under Revision 2 of the service bulletin. Therefore, we have revised paragraph (a) of this final rule to refer to Revision 2 of the service bulletin as the appropriate source of service information for the actions in that paragraph. In addition, we have added a new paragraph (b) to this final rule (and reordered subsequent paragraphs accordingly) to give credit for replacements accomplished before the effective date of this AD according to the original issue of the service bulletin.

The same commenter asks that the number of affected airplanes that is specified in the Cost Impact section of the proposed AD be changed. The commenter provided supporting data which confirms that the number of airplanes in the worldwide fleet is 927, and the number of U.S.-registered airplanes is 421.

We agree with the commenter, as we inadvertently specified the incorrect numbers of affected airplanes in the proposed AD. We have changed the Cost Impact section in this final rule to reflect the correct numbers of airplanes.

One commenter states that the man hours specified in the Cost Impact section of the proposed AD are conservative, and notes that the actual man hours will be higher and will increase the out-of-service time for its airplanes.

Although the commenter does not request a change, we infer that the commenter would like the number of work hours specified in the Cost Impact section to be increased.

We do not agree to change the work hours for the replacements. The number of work hours necessary to accomplish the replacements, as specified in the Cost Impact section, is consistent with the service bulletin. The number represents the time necessary to perform only the replacements actually required by this AD. We recognize that, in accomplishing the requirements of any AD, operators may incur “incidental” costs in addition to the “direct” costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. Because incidental costs may vary significantly from operator to operator, they are almost impossible to calculate. Therefore, no change is made to the final rule in this regard.

We have changed the compliance time terminology specified in paragraphs (a)(1), (a)(2), and (a)(3) of the proposed AD from flight cycles to flight hours in the final rule. We inadvertently used the term “flight cycles,” in the proposed AD; however, the referenced service bulletin specifies “flight hours,” and the proposed AD also should have specified “flight hours.”

After careful review of the available data, we have determined that air safety and the public interest require the adoption of the rule with the changes previously described. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 927 airplanes of the affected design in the worldwide fleet. The FAA estimates that 421 airplane of U.S. registry will be affected by this AD.

It will take approximately 56 work hours per airplane to accomplish the replacement in the two main fuel tanks, as specified in Work Page I, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the work hours for this required replacement on U.S. operators is estimated to be $1,414,560, or $3,360 per airplane.

It will take approximately 23 work hours per airplane to accomplish the replacement in the center fuel tank, as specified in Work Package II, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the work hours per this required replacement on U.S. operators is estimated to be $580,980, or $1,380 per airplane.

The kit required to accomplish the replacement in all three fuel tanks will cost approximately $5,116 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) to include an airworthiness directive (AD) that is applicable to all Fokker Model F.28 Mark 0070 and 0100 series airplanes was published in the Federal Register on April 5, 2002 (67 FR 16333). That action proposed to require measurement of the over-center force of the thrust reverser operating levers; a functional test to verify proper energizing of the secondary lock solenoid of the thrust reversers; and corrective actions, if necessary.

In the proposed AD, the FAA identified Fokker Service Bulletin SBF100-76-015, dated January 15, 2001, as the appropriate source of service information for the proposed requirements. Since the proposed AD was issued, Fokker issued Service Bulletin Change Notification (SBCN) SBF100-76-015/01, dated May 1, 2001, and Manual Change Notification—Maintenance Documentation (MCNM) F100-060, Revision 1, dated March 19, 2001. The revised MCNM provides wording that is consistent with the existing maintenance manual wording to clarify the procedures; the procedures otherwise remain unchanged. The SBCN advises that the MCNM changes have been incorporated into the service bulletin.

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 fully supports the proposed AD.

The manufacturer requests that the proposed AD be revised to cite the most recent versions of the relevant service documents.

Based on a review of the document revisions, the FAA concurs with the request. Paragraphs (a) and (b) of this AD have been revised accordingly.

The manufacturer requests that paragraph (b) of the proposed AD be revised for several reasons. First, the proposed language suggests that the functional test is intended to verify proper energizing of the secondary lock solenoid, whereas the solenoids are not supposed to energize during the test. Second, the reference to movement of the “thrust reverser operating lever” in paragraphs (b)(1), (b)(2), (b)(2)(i), and (b)(2)(ii) of the proposed AD suggests that the thrust reverser operating levers are operated during the functional test. The manufacturer advises that the thrust levers, not the thrust reverser operating levers, are operated during the functional test. Third, the manufacturer suggests that paragraph (b)(2) of the proposed AD, which would require operators to repeat the functional test “one more time,” could be misinterpreted. The service bulletin provides instructions to perform the functional test at least five times before, and (if necessary) after, a rigging check of the thrust lever switchbox. The functional test involves “slamming” the thrust levers with the thrust reverser operating levers in the stowed position. The commenter suggests a reader could infer that a single “slam” is sufficient.

The FAA agrees with the requests for the reasons provided by the commenter and has made the following changes in this final rule: First, the phrase “to verify proper energizing” has been removed from the summary and paragraphs (b) and (b)(2) of this AD. Second, the phrase “movement of thrust reverser operating levers” has been changed to “movement of the thrust levers” in paragraphs (b)(1), (b)(2), (b)(2)(i), and (b)(2)(ii). Third, the phrase “one more time” has been removed from paragraph (b)(2).

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.

The FAA estimates that 139 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 actions, 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 $16,680, 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, 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 all Saab Model SAAB 2000, SAAB SF340A, and SAAB 340B series airplanes was published in the Federal Register on July 19, 2002 (67 FR 47491). That action proposed to require replacing the main pitot static tube on each side of the airplane with a new improved pitot static tube, and installing a gasket between the tube and the airplane structure.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

The FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 312 airplanes of U.S. registry will be affected by this AD, that it will take approximately 8 work hours per airplane to accomplish the required replacement, and that the average labor rate is $60 per work hour. Required parts will cost approximately $13,400 per airplane. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $4,330,560, or $13,880 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 all Airbus Model A330 and A340 series airplanes was published in the Federal Register on August 9, 2002 (67 FR 51789). That action proposed to require a one-time inspection to determine the manufacturer's name, part number, and date code of certain circuit breakers; and replacement of any suspect circuit breaker with a new improved circuit breaker.

Interested persons have been afforded an opportunity to participate in the making of this amendment. No comments were submitted in response to the proposal or the FAA's determination of the cost to the public.

Since the language in Note 2 of the proposed AD is regulatory in nature, that note has been redesignated as paragraph (c) of this final rule.

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

The FAA estimates that 8 Model A330 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 inspection required by this 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.

Currently, there are no Model A340 series airplanes on the U.S. Register. However, should an affected airplane be imported and placed on the U.S. Register in the future, it will require approximately 2 work hours to accomplish the required action, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD will be $120 per airplane.

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.

On December 20, 2002, the FAA issued emergency AD 2002-26-51, which is applicable to certain EMBRAER Model EMB-135 and -145 series airplanes.

The Departmento de Aviacao Civil (DAC), which is the airworthiness authority for Brazil, recently notified the FAA that an unsafe condition may exist on certain EMBRAER Model EMB-135 and -145 series airplanes. The DAC received a report indicating that the elevator locked during the takeoff run on a Model EMB-145 series airplane. The locking was caused by a restart of the locking sequence, which was initiated by a rearward movement of the gust lock lever (and aggravated by a possible ineffective plunger spring) after the elevator had been unlocked. Locking of the elevator during takeoff could result in loss of controllability of the airplane.

The DAC issued Brazilian airworthiness directive 2002-12-03, dated December 20, 2002, in order to ensure the continued airworthiness of these airplanes in Brazil.

In light of this information, the FAA finds that certain procedures must be included in the AFM for Model EMB-135 and -145 series airplanes to provide the flightcrew with appropriate procedures for preventing a locked elevator during takeoff. The FAA has determined that such procedures currently are not defined adequately in the AFM for these airplanes.

This airplane model is manufactured in Brazil and is 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 DAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DAC, 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 the unsafe condition described is likely to exist or develop on other airplanes of the same type design registered in the United States, the FAA issued emergency AD 2002-26-51 to prevent locking of the elevator during takeoff, which could result in loss of controllability of the airplane. The AD requires revising the Limitations Section of the Airplane Flight Manual to advise the flightcrew of the possibility of locking of the elevator during takeoff and to provide the appropriate procedures to prevent it. This AD is consistent with the Brazilian airworthiness directive.

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

Since it was found that immediate corrective action was required, notice and opportunity for prior public comment thereon were impracticable and contrary to the public interest, and good cause existed to make the AD effective immediately by individual notices issued on December 20, 2002, to all known U.S. owners and operators of certain EMBRAER Model EMB-135 and -145 series airplanes. These conditions still exist, and the AD is hereby published in the Federal Register as an amendment to section 39.13 of the Federal Aviation Regulations (14 CFR 39.13) to make it effective as to all persons.

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.

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 2002-NM-348-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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

The FAA has RNAV (GPS) RWY 36 ORIGINAL SIAP, RNAV (GPS) RWY 18 ORIGINAL SIAP and VOR/DME RWY 18 ORIGINAL SIAP to serve Caruthersville Memorial Airport, Caruthersville, MO. The amendment to Class E airspace at Caruthersville, MO will provide controlled airspace at and above 700 feet AGL to contain the new SIAPs within controlled airspace, and thereby facilitate separation of aircraft operating under Instrument Flight Rules (IFR). The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. The amendment will enhance safety for all flight operations by designation an area where VFR pilots may anticipate the presence of IFR aircraft at lower altitudes, especially during inclement weather conditions. A greater degree of safety is achieved by depicting the area on aeronautical charts. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified below. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking will be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basic supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2002-14089/Airspace Docket No. 02-ACE-13” The postcard will be date/time 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 noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes Standard Instrument Approach Procedures (SIAPs). The complete regulatory description on each SIAP is contained in the appropriate FAA Form 8260 and the National Flight Data Center (FDC)/Permanent (P) Notices to Airmen (NOTAM) which are incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Federal Aviation's Regulations (FAR). Materials incorporated by reference are available for examination or purchase as stated above.

The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction of charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR (and FAR) sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number.

This amendment to part 97 of the Federal Aviation Regulations (14 CFR part 97) establishes, amends, suspends, or revokes SIAPs. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained in the content of the following FDC/P NOTAMs for each SIAP. The SIAP information in some previously designated FDC/Temporary (FDC/T) NOTAMs is of such duration as to be permanent. With conversion to FDC/P NOTAMs, the respective FDC/T NOTAMs have been canceled.

The FDC/P NOTAMs for the SIAPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs by FDC/P NOTAMs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a National Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days.

Further, the SIAPs contained in this amendment are based on the criteria contained in the TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The final rule that is the subject of these corrections provides guidance under 31 U.S.C. 5318(j).

As published, the final rule contains errors that may prove to be misleading and are in need of clarification.

In final rule FR Doc. 02-24142, published on September 26, 2002 (67 FR 60562), make the following correction:

On page 60568, in column 1, correct footnote 25 to read as follows:

“ 25  A covered financial institution may verify that a foreign bank is required to file an FR Y-7 by checking the list of foreign banks with U.S. offices at http://www.federalreserve.gov/releases/iba/default.htm. ”

Pursuant to 5 U.S.C. 5707(b), the Administrator of General Services has the responsibility to establish the privately owned vehicle (POV) mileage reimbursement rates. Separate rates are set for airplanes, automobiles (including trucks), and motorcycles. In order to set these rates, GSA is required to conduct periodic investigations. Subsection (b) of section 5707 of title 5, U.S.C., requires the Administrator of General Services, in consultation with the Secretaries of Defense and Transportation, and representatives of Government employee organizations, to periodically investigate the cost of travel and the operation of POVs to employees while engaged on official business. As required, GSA conducted an investigation of the costs of operating a POV and is reporting the cost per mile determination. The results of the investigation have been reported to Congress, and a copy of the report appears as an attachment to this document. The report is being published to comply with the requirements of the law. GSA's cost studies show the Administrator of General Services has determined the per-mile operating costs of a POV to be 95.5 cents for airplanes, 36.0 cents for automobiles, and 27.5 cents for motorcycles. As provided in 5 U.S.C. 5704(a)(1), the automobile reimbursement rate cannot exceed the single standard mileage rate established by the Internal Revenue Service (IRS). The IRS has announced a new single standard mileage rate for automobiles of 36.0 cents effective January 1, 2003.

This final rule is not required to be published in the Federal Register for notice and comment; therefore, the Regulatory Flexibility Act does not apply.

GSA has determined that this final rule is not a significant regulatory action for the purposes of Executive Order 12866 of September 30, 1993.

The Paperwork Reduction Act does not apply because this final rule does not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public which require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq.

This final rule is also exempt from congressional review prescribed under 5 U.S.C. 801 since it relates solely to agency management and personnel.

Section 315 of the Federal Land Policy and Management Act (FLPMA) authorizes the Secretary of the Interior, through a delegation of authority to BLM, to issue a document of disclaimer of interest or interests in any lands in any form suitable for recordation, where the disclaimer will help remove a cloud on the title of such lands and where the Secretary determines a record interest of the United States in lands has terminated by operation of law or is otherwise invalid (43 U.S.C. 1745(a)). BLM may issue recordable disclaimers to disclaim Federal title in a wide variety of instances, including avulsion, reliction, or accretion of lands, survey errors, clerical errors, or when applicants assert title previously created under now expired authority.

The following statutory requirements must be met before the Secretary can issue a disclaimer:

1. An applicant must file a written application with the Secretary.

2. The Secretary must publish a notice in the Federal Register of the application setting forth the grounds supporting it at least ninety days before the issuance of the disclaimer.

3. The applicant must pay the Secretary the administrative costs associated with issuance of the disclaimer. The Secretary determines the amount of the costs.

4. The Secretary must consult with any affected Federal agency.

BLM published regulations implementing the Secretary's authority under section 315 of FLPMA to issue recordable disclaimers in 1984 (49 FR 35296). These regulations imposed requirements in addition to those identified in the statute. Specifically, the regulations restrict applicants for a disclaimer to “any present owner of record” (43 CFR 1864.1-1). The regulations also specify information the applicant must submit in the application and the costs associated with submitting an application. For example, an applicant is required to submit “[a]ll documents which show to the satisfaction of the authorized officer the applicant's title to the lands.” (43 CFR 1864.1-2(c)(3)) This requirement may be waived if BLM believes it is not needed to properly adjudicate the application. The regulation requires that BLM deny an application if more than 12 years have passed since the owner knew or should have known of the alleged claim of the United States (43 CFR 1864.1-3(a)(1)).

“Interest in land” can pertain to various situations because there are different types of interests a property owner can hold. For example, for a specific parcel of land, interests could include surface rights, subsurface rights, mineral interests, timber interests and various other interests which, when combined, equate to a fee simple interest for that parcel. Interests in land can be sold, given away, leased, or otherwise transferred from one entity to another by means of various conveyance documents ( e.g., deed or patent). They may also be temporarily transferred from the one entity to another by means of a lease, permit, license, or other such document.

Some Federal property interests may transfer by operation of law to another entity. For example, the Submerged Lands Act (43 U.S.C. 1301-1315), provides that title to the bed of navigable water bodies passes from Federal to state ownership when the state is admitted to the Union. The Act does not require that BLM either initiate or complete this title transfer of land, but by providing a recordable disclaimer of interest, BLM may lessen future disputes.

On February 22, 2002, we published in the Federal Register (67 FR 8216) a proposed rule to amend our regulations pertaining to Conveyances, Disclaimers, and Corrections Documents. The proposal sought to amend certain provisions of the regulations originally published in 1984. The proposed rule would further the purpose of section 315 of FLPMA to remove clouds on title to lands or interests in lands by allowing any entity claiming title, rather than only a present owner of record, to apply for a recordable disclaimer of interest. The proposed rule also sought to eliminate the application deadline in section 1864.1-3, as it applies to states. This change would conform the regulations more closely to the Quiet Title Act (28 U.S.C. 2409a(g)) which, in most instances, exempts states from the 12-year statute of limitations under that act. These two technical changes are the only ones that BLM proposed in February 2002 to the 1984 regulations.

This final rule removes certain restrictions from the current rule that are not required by section 315 of FLPMA (43 U.S.C. 1745). The final rule also reflects a change that Congress made to the Quiet Title Act in 1986 (28 U.S.C. 2409a). These amendments to 43 CFR subpart 1864 will make the recordable disclaimer regulations more consistent with both section 315 of FLPMA and the Quiet Title Act. This rule will reduce the potentially inconsistent administrative interpretations and application of the recordable disclaimer regulations by eliminating the requirement that an applicant be a “present owner of record.”

Specifically, this final rule amends the regulations by incorporating the following changes to the way we process disclaimers of interest. The rule:

• Eliminates the application deadline in 43 CFR 1864.1-3 as it applies to “states.”

• Allows any entity claiming title, not just current owners of record, to apply for a recordable disclaimer of interest.

• Defines state as used in this rule.

• Clarifies how BLM will evaluate disclaimer of interest applications pertaining to non-BLM federally managed lands.

In this preamble, we respond to significant comments we received on the February 22, 2002, proposed rule (67 FR 8216). Because a majority of responses were form letters opposing the rule, we address those comments generally. We have directly responded to individual substantive comments in support of or in opposition to the rule. In response to several comments we have:

1. Included a definition of “state,” as it is used in this rule, and

2. Clarified how BLM will process disclaimer of interest applications affecting non-BLM managed lands.

During the 60-day comment period BLM received about 18,000 comments in support of, or in opposition to, the proposed rule. Most of the correspondence consisted of form letters expressing opposition to the proposed rule for a variety of reasons.

Letters opposing the rule generally stated the rule would:

• Enable BLM to transfer large tracts of public lands to states;

• Impact sensitive wilderness and roadless areas; and

• Adversely affect wildlife and habitats by allowing states to build major thoroughfares through wild land areas.

Letters supporting the rule generally stated the rule would:

• Maintain access to public lands on existing routes in rural areas;

• Support state control over routes in rural places; and

• Ease the process whereby BLM could transfer public land to states.

We are responding to these general comments as they arise in the context of more specific substantive comments on the proposed rule.

Several commenters claimed that the proposed rule is illegal because 43 U.S.C. 1745 does not allow BLM to alter the intent of the statute from the present owner of record to “any entity claiming title to lands.” Other commenters asserted that the proposed changes are inconsistent with 43 CFR Subpart 1864 because they do not further the purpose of 43 U.S.C. 1745 and would lead to an increase in inconsistent administrative interpretations, and would allow anyone to make a claim, not just the existing owners of record.

We disagree. The term “present owner of record” is not found in FLPMA. In the existing regulations, published in 1984, BLM required the applicant to be a present owner of record to prelude third parties having no property interest in the lands in question from applying for a recordable disclaimer. We think this present-owner-of-record requirement is inconsistent with the actual language of section 315 of FLPMA. The present-owner-of-record concept artificially limits FLPMA's goal of eliminating clouds on title. A cloud on title is less likely when there is also an actual present owner of record. Land title disputes often arise with parties who have gained title by operation of law, such as states that obtained title under the Submerged Lands Act to lands under navigable bodies of water. For example, a state applying for a recordable disclaimer may not have a record of the state's title to the lands in question in a county clerk's office. Nevertheless, Congress has passed title to the state by virtue of the Submerged Lands Act. Moreover, today's rule does not increase the potential for inconsistent administrative interpretations. Applications containing invalid claims will be rejected regardless of whether they were filed by present owners of record or others.

A significant number of comments asked about the relationship between the proposed rule and R.S. 2477. A coalition of California conservation organizations expressed concern that the proposed rule was intended to facilitate disclaimers by the United States of its interest in lands that are used for recreation, conservation, wilderness and other public purposes, as a result of R.S. 2477 right-of-way claims by individuals and local and state governments. The commenters believe that the FLPMA disclaimer-of-interest procedure was not intended to include R.S. 2477 claims within its scope and that BLM has no legal authority to employ the disclaimer provisions to process, acknowledge or determine the existence or extent of R.S. 2477 rights-of-way.

Revised Statutes (R.S.) 2477, first enacted as section 8 of the Mining Act of 1866, states that “the right-of-way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” 43 U.S.C. 932 (repealed 1976). R.S. 2477 was repealed by FLPMA on October 21, 1976 (Pub. L. 94-579, Sec. 706(a), 90 Stat. 2744, 2793). FLPMA did not terminate valid rights-of-way existing on the date of its approval (Sec. 509(a), 90 Stat. 2781, 43 U.S.C. 1769; Sec. 701(a), 90 Stat. 2786, 43 U.S.C. 1701 note). In most instances, R.S. 2477 rights-of-way were not recorded on the public land records or in official county records because R.S. 2477 did not require any formal approval from the Secretary of the Interior or other Federal government official. The uncertainty resulting from unrecorded rights-of-way under R.S. 2477 has created clouds on title.

FLPMA authorizes the Secretary of the Interior to issue recordable disclaimers of interest in lands in specified cases if the disclaimer will help remove a cloud on the title to lands or interests in lands and if the Secretary finds no Federal interest (43 U.S.C. 1745(a)). Recordable disclaimers may be issued where applicants assert title previously created under now expired authorities. For example, after adjudicating the claim, BLM may issue a recordable disclaimer of interest to disclaim the United States' interest in a highway right-of-way under R.S. 2477.

Many commenters, including a consortium of 14 environmental groups, expressed concern about the relationship of this rulemaking to the 1996 Congressional moratorium placed on the Department and other Federal agencies on R.S. 2477 rulemakings. The commenters expressed the view that the proposed rule would be illegal because section 108 of the Omnibus Interior Appropriations Act for Fiscal Year 1997 prohibits Federal agencies from placing into effect any final rule or regulation pertaining to the recognition, management or validity of a right-of-way pursuant to R.S. 2477 unless expressly authorized by an Act of Congress (110 Stat. 3009-200).

We do not believe that the Congressional moratorium on R.S. 2477 rulemaking precludes BLM from making effective this final rule implementing the Secretary of the Interior's authority to issue recordable disclaimers of interest in lands. On August 1, 1994, the Department of the Interior proposed new regulations (59 FR 39216) to create an administrative process for resolving right-of-way claims made under R.S. 2477. Before the R.S. 2477 proposed rule was published as a final rule, Congress enacted a moratorium prohibiting any Federal agency from preparing, promulgating, or implementing any rule or regulation regarding R.S. 2477 rights-of-way until September 30, 1996. This provision was an amendment to the National Highway System Designation Act of 1995 (Pub. L. 104-59, 109 Stat. 568, 617-18 (1995)). Congress extended the prohibition on “developing, promulgating, and thereafter implementing a rule concerning rights-of-way under section 2477 of the Revised Statutes' in the Fiscal Year 1996 Interior and Related Agencies Appropriations Act (Pub. L. 104-134, 110 Stat. 1321, 1321-177 (1996)). In section 108 of the Fiscal Year 1997 Department of the Interior and Related Agencies Appropriations Act (Interior Appropriations Act, 1997) (Pub. L. 104-208, 110 Stat. 3009, 3009-200 (1996)), Congress stated that:

No final rule or regulation of any agency of the Federal Government pertaining to the recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an Act of Congress subsequent to the date of enactment of this Act.

Section 108 could be construed as either permanent legislation or as having expired at the end of fiscal year 1997. If section 108 is construed as permanent legislation, it would prohibit the Department from making effective a final rule or regulation pertaining to the “recognition, management, or validity” of a right-of-way pursuant to R.S. 2477. In 1997, the General Counsel of the General Accounting Office (GAO) issued an opinion concluding that section 108 is permanent law and did not expire at the end of the 1997 fiscal year (Letter of Robert P. Murphy, General Counsel, GAO, B-277719, at 1 (Aug. 20, 1997)).

Even if section 108 is permanent legislation, it only applies to “final rules or regulations” relating to the “recognition, management, or validity of a right-of-way” pursuant to R.S. 2477. Because today's final rule merely amends BLM's existing regulations, which define the administrative process by which an entity can apply for a recordable disclaimer of interest under section 315 of FLPMA, the section 108 moratorium does not apply to this final rule.

If section 108 were interpreted to prevent BLM from promulgating a regulation relating to recordable disclaimers of interest, section 108 would, in essence, partially repeal sections 310 and 315 of FLPMA (43 U.S.C. 1740, 1745). Under section 310, BLM is authorized to “promulgate rules and regulations to carry out the purposes of this Act and of other laws applicable to the public lands.” Section 315 is the specific substantive authority for BLM's disclaimer regulations (43 U.S.C. 1745(c)). As a general rule, courts do not favor repeals by implication. In Morton v. Mancari (417 U.S. 535, 550 (1974)), the Supreme Court stated: “In the absence of some affirmative showing of an intention to repeal, the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable.” In Tennessee Valley Authority v. Hill (437 U.S. 153, 190 (1978)), the Supreme Court stated that the doctrine disfavoring repeals by implication applies with even greater force when the claimed repeal rests solely on an appropriations act.

Although repeals by implication are especially disfavored in the appropriations context, Congress nonetheless may amend substantive law in an appropriations statute if Congress does so clearly. ( Robertson v. Seattle Audubon Society, 503 U.S. 429, 440 (1992)). The question depends on the intention of Congress as expressed in the statute. See United States v. Mitchell, 109 U.S. 146, 150 (1883). Therefore, unless Congress clearly intended to amend sections 310 and 315 of FLPMA, section 108 of the Interior Appropriations Act, 1997, and sections 310 and 315 of FLPMA are all effective.

Section 108 contains broad language and does not indicate which final rules or regulations are encompassed by the words “pertaining to the recognition, management, or validity of a right of way pursuant to Revised Statute 2477.” The legislative history, however, indicates that Congress enacted section 108 to prevent the Department of the Interior from promulgating final rules and regulations setting out specific standards for R.S. 2477 rights-of-way. (See H.R. Rep. No. 104-625, at 58 (1996)). Instead, Congress itself wanted to enact legislation defining the key terms and scope of grants for R.S. 2477 rights-of-way. The House Committee on Appropriations stated that:

[T]he public interest will be better served if these grants [for highway rights-of-way across Federal land] to States and their political subdivisions are not put in jeopardy by the Department pending Congressional clarification of these issues. Section 109 does not limit the ability of the Department to acknowledge or deny the validity of claims under RS 2477 or limit the right of grantees to litigate their claims in any court.

Section 109 of H.R. 3662, the Department of the Interior and Related Agencies Appropriations Bill, 1997, was renumbered section 108 after the Senate Appropriations Committee deleted section 107, an unrelated section of H.R. 3662, in its entirety (S. Rep. No. 104-319, at 56 (July 16, 1996)). The Appropriations Committee reported the bill to the Senate and recommended it pass, as amended. Accordingly, when Congress enacted section 108, it did not intend to prohibit the promulgation of all final rules and regulations that may, directly or indirectly, address R.S. 2477 rights-of-way but, rather, those that provide standards for recognizing, managing or validating an R.S. 2477 right-of-way.

Today's rule on recordable disclaimers does not provide standards for recognizing managing, or validating an R.S. 2477 right-of-way. Rather, BLM's rule merely makes technical changes to the existing regulations under which an applicant may submit an application to remove a cloud on title to lands to which the United States asserts no ownership or interest. First, the rule amends the existing regulations to allow any entity claiming title, as opposed to only present owners of record, to apply for a recordable disclaimer of interest. This change eliminates inconsistent administrative interpretations of the owner-of-record requirement, a term that is not defined in the existing 1984 regulations. Second, the final rule eliminates the application deadline in section 1864.1-3, as it applies to states. This change conforms the regulations to the Quiet Title Act, 28 U.S.C. 2409a(g), which exempts states, in most instances, from the twelve-year statute of limitations under that Act. These changes to the existing regulations do not expand the kinds of circumstances in which a disclaimer could be issued, expand or modify any rights created, or create any new rights under R.S. 2477. BLM may issue recordable disclaimers relating to valid R.S. 2477 rights-of-way under the existing 1984 regulations, and this capability will continue under today's final rule.

Even if BLM were to issue a disclaimer of the United States' interest in a valid right-of-way under R.S. 2477, the recognition of such right-of-way would not be the result of this notice-and-comment rulemaking but, rather, an informal agency adjudication resulting in a final decision. (See 5 U.S.C. 551(7)) The legislative history of section 108 expressly states that Congress “does not limit the ability of the Department to acknowledge or deny the validity of claims under RS 2477 or limit the right of grantees to litigate their claims in any court.” (H.R. Rep. No. 104-625, at 58 (1996)). Because BLM's rule is not a final rule or regulation relating to the “recognition, management, or validity of a right-of-way pursuant to Revised Statute 2477,” this rule is not subject to the moratorium in section 108 of the 1997 Interior Appropriations Act.

Several commenters expressed concerns that today's rule will enable states to make “illegal” R.S. 2477 claims on “cow paths” and “foot trails” and turn them into major thoroughfares in sensitive areas.

We disagree that the changes to the existing rule will allow illegal claims. If an applicant does not have a valid, legal title, BLM will reject the disclaimer application. The existing 1984 rule and today's final rule are the same in this regard.

The Southern Utah Wilderness Alliance (SUWA) opposed the rulemaking because it did not mention any case law, particularly SUWA and Sierra Club v. BLM, (96-CV-836C (D. Utah); appeal pending, No. 01-4173 (10th Cir.)). SUWA believes this omission invites attempts to evade application of this case and others in an effort to validate R.S. 2477 claims which could never meet the legal prerequisites. The group also asserted that the proposed rule did not describe the standards BLM would apply in determining whether to grant recordable disclaimers.

This rulemaking pertains only to disclaimers and not to any assertions made by various entities for R.S. 2477 claims. Therefore, a discussion of this case law is not germane to today's rulemaking.

An Alaskan environmental group believes the proposed rule is not necessary to provide appropriate access across Alaska lands because there exist statutory processes to determine rights-of-way for roads and other access across most of the land affected by R.S. 2477 assertions. The group also states that recognizing R.S. 2477 assertions under the proposed rule will undermine these established processes and frustrate land management efforts of responsible public and private landowners.

The existing regulations already allow applications for disclaimers for R.S. 2477 rights-of-way, and this has not undermined established processes for determining access. This rulemaking makes technical changes to the existing rule.

Many commenters, including the Idaho County Farm Bureau, and the consortium of environmental groups, expressed concern that BLM is proposing the rule to circumvent FLPMA and Congressional restrictions against implementing R.S. 2477 rights-of-ways. The commenters assert that Congress provided a means to grant rights-of-way under FLPMA, negating the need for R.S. 2477. The focus of their concern is that this proposed rule will allow states to acquire sensitive lands, the BLM to circumvent the environmental impact review process, and the BLM's ability to charge fair market value rentals under Title V of FLPMA.

FLPMA repealed R.S. 2477 and provided for applications for new rights-of-way. Sections 509(a) and 701(h) of FLPMA also preserved valid existing rights-of-way. Therefore, although FLPMA created more flexible authority to address right-of-way issues, it did not displace existing rights-of-way authorized by Congress.

States may seek disclaimers to sensitive lands for which they already hold title. For example, submerged lands under navigable bodies of water may be environmentally sensitive. Congress, however, granted states title to these lands. A disclaimer would merely provide evidence of an existing title. Because the state already owns such lands, there would be no need for environmental studies or rental payments.

A commenter opposed the proposed rule because the commenter believes that the proposed rule change is not necessary. The commenter also stated the BLM Questions and Answer sheet and press release accompanying the rule were confusing and obfuscated facts relating to R.S. 2477. The commenter also expressed concern that the proposed rule could allow “counties and other ‘sagebrush rebel’ entities in the West to file claims for public lands, with minimal processing of claims and no time limitations.” Lastly, the commenter believes the rule will result in increased trespass incidents and other illegal activity by those wishing to lay claim under the proposed rule change to public lands, creating long term effects on the entire western ecosystem and native species.

BLM regrets that the Question and Answer document was confusing to the commenter and did not create the clarity we intended. BLM intends that this preamble will clear up any misunderstanding regarding this rulemaking. As we have stated, this rulemaking does not change the requirements for asserting title to an R.S. 2477 right-of-way. The rulemaking is intended only to make it easier for BLM to clear up clouded titles when the United States has no interest in the lands in dispute. A disclaimer of interest does not convey an interest in land. It is an administrative determination that the United States does not have an interest in land.

The Local Highway Technical Assistance Council of Boise, Idaho, asked BLM to clarify the current means besides FLPMA that can be used to secure a right to an R.S. 2477 highway reservation.

FLPMA repealed R.S. 2477 in 1976. There is no longer any way to secure a new right to an R.S. 2477 right-of-way. An existing owner of an R.S. 2477 right-of-way may apply for a recordable disclaimer under existing regulations or as amended in this final rule. A quiet title action in federal court is the only other way to resolve R.S. 2477 claims with finality. The purpose of section 315 of FLPMA is to avoid litigation in Federal court.

The Nye County Commissioners, Nevada, believe that the proposed rule may resolve some questions relating to R.S. 2477 rights-of-way but are concerned that the proposed rule is inapplicable to R.S. 2477 rights-of-way (or any other rights-of-way), because the United States continues to hold a valid interest in underlying lands. The Commissioners expressed support for BLM's effort but did not support the proposed rule.

If a state made a valid R.S. 2477 right-of-way claim on public land, only the rights pertaining to the right-of-way are authorized for use. The commenter is correct that the BLM would retain all other rights, such as the right to sell the land, allow mining claims to be filed, or administer the lands for appropriate purposes. BLM may issue recordable disclaimers for interests in land and is not limited to disclaiming only fee simple title.

An environmental group believes BLM has purposefully and incorrectly stated the purpose and intent of the proposed rule by citing it as a relatively minor revision to an obscure regulation with little substantive impact. The group believes this hampered the public review process by not informing the public about the importance of this proposed rule.

We disagree that this rulemaking is a major regulatory action. We believe that we adequately and accurately presented the purpose and intent of the proposed rule. The rulemaking makes technical changes to the existing rule. These changes are outlined within the SUMMARY section of this preamble. BLM has issued 62 recordable disclaimers since the enactment of FLPMA in 1976; on average, fewer than 3 recordable disclaimers annually.

The Blue Ribbon Coalition supported the proposed rule and asked BLM to clarify whether a disclaimer of interest process must be followed for each and every right-of-way under consideration. The group also asked BLM to explain how difficult and complex the process would be for the applicant and the BLM for other types of interest that may be disclaimed under section 315.

An applicant may apply for as many disclaimers as it has clouded titles which may benefit from the process. The complexity of the process depends upon the nature of the ownership sought. Titles clouded by avulsion, reliction or accretion may require historic maps and patents and newly-created data, such as aerial photographs. State applications for disclaimers for submerged lands may require detailed studies of water levels and commercial traffic at the time of statehood.

A consortium of environmental groups believes the proposed rule changes would have a direct effect on private property land rights because it would lead to numerous rights-of-way crossing state and private land. The commenters also believe the proposed rule will “cloud title” to large amounts of public and private land by extending the time that states are allowed to file claims. The commenters are concerned that the rulemaking will affect private property owners and title insurance companies because BLM has not made any effort to notify them of these potential impacts.

Today's rule will not adversely affect private property land rights. As we have stated, this rulemaking pertains to disclaimers of interest in federal lands. It does not apply to private or state lands. BLM does not anticipate that title to private land will become clouded by implementation of this final rule. We expect the opposite to occur—title issues arising from a variety of issues may now be resolved by means of issuing a disclaimer of interest.

Commenters asserted that the proposed rule would enable BLM to transfer large tracts of public lands to states and increase environmental impacts on sensitive areas.

BLM may issue a disclaimer only when an applicant can show that a specific property right is not held by the United States and the applicant has requested that BLM document this by means of a recordable disclaimer. The rule would not enable BLM to transfer vast tracts of land to states. Any land disclaimed would already be owned by the applicant, with or without the disclaimer. This rule would not result in either an increase or decrease in environmental impacts.

States may apply for recordable disclaimers for valid R.S. 2477 claims. Applications will be evaluated on their merits and, if the claims are valid, BLM may issue a disclaimer of interest.

Another environmental group was concerned that the rulemaking will circumvent the public comment procedure by placing the determination of “interest” in the hands of the agency. The group does not believe BLM has made provisions for public notice, comment, participation, or appeal of its disclaimers which they believe deprives the public of protections during the process of determining the ownership of federal lands.

Today's rule does not impede or remove opportunities for public notice or appeal provisions for disclaimers. The existing regulations at Subpart 43 CFR 1864 address the group's concerns about public input. Specifically, section 1864.2 provides that BLM must file a notice of the application and the grounds supporting it in the Federal Register at least 90 days before a decision is made on the application. Also, BLM publishes a notice describing the application and its justification in a newspaper serving the general vicinity of the lands that are the subject of application for three consecutive weeks during the 90-day time period. Today's rule does not address this section. Under 43 CFR 1864.4, “an applicant or claimant adversely affected by a written decision of the authorized officer” may appeal to the Interior Board of Land Appeals under 43 CFR part 4.

Regarding the group's suggestion that BLM seek public input to determine ownership of public lands, the point is not determining ownership of lands, but rather how to remove clouds on title to land to which the United States disclaims title. In this case we continue the existing process.

The Gilpin County Commissioners, Colorado, expressed concern about the rule's potential to open “historic roads and tracks,” increase threats of erosion, and introduce noxious weeds into unroaded areas. The commissioners believe this rule could harm small ranchers who have rights on BLM lands.

This final rule will not result in the situations the commenters pose. The applicant would already own any land or interests disclaimed. With or without the disclaimer the same impacts would occur, so there is no environmental impact from this rule. The rule does not apply to private lands and does not affect grazing permits.

The San Bernardino County, Department of Public Works, California, and others, asked whether an applicant must apply and be denied a right-of-way under the FLPMA or other statute before requesting a disclaimer of interest.

The denial of a right-of-way application under FLPMA has no bearing on a request for a disclaimer of interest.

Several commenters, including The National Parks Conservation Association, and the Nye County Commissioners, Nevada, asked how the BLM can process disclaimers of interest on behalf of another surface management agency because BLM's mandate may differ from that of other agencies. The commenters raised the following concerns:

• The final rule may alienate thousands of acres of park lands and instigate construction of roads and other structures on NPS lands.

• The proposed rule could frustrate Congressional intent for the protection and management of resources contained within the National Park system.

• It is not clear how the rule will apply to lands under the jurisdiction of DOI agencies other than BLM.

• How will the rule pertain to lands that were under BLM jurisdiction in 1976, but which have since been transferred by Congress to other DOI agencies?

Section 315 gives the Secretary of the Interior the authority to issue recordable disclaimers when a record interest of the United States in lands, whether managed by Interior or not, has terminated by operation of law or is otherwise invalid. The Secretary has delegated the authority to BLM to issue disclaimer documents when BLM determines that a disclaimer of interest application is valid. Under the existing 1984 regulations, BLM will refer an application involving lands administered by another agency to that agency for review and comment.

The U.S. Forest Service provided comments generally supporting the proposed rule. We believe its comments are also helpful in responding to the above concerns. The Forest Service stated:

If implemented the proposed rule could improve our abilities to resolve certain forms of land title claims by states, such as title to the beds and banks of navigable streams, and for rights-of-way for highways under the Revised Statute (“RS”) 2477 (repealed). Currently there is no administrative process available for states or land management agencies like the Forest Service, to resolve such title claims; the process is time consuming and requires expensive litigation in Federal Courts. * * * [T]he proposed rule for recordable disclaimers of title would provide a useful tool in resolving some state land title claims. With the addition of a provision stating BLM will not authorize any application over the objections of the Forest Service for claims on National Forests, we would strongly support the proposal.

BLM has responded to the Forest Service's comments by adding language to the final rule clarifying that BLM will not issue a disclaimer of interest over the valid objections of the surface managing agency having jurisdiction over the affected lands.

Gilpin County, Colorado, and Valley County, Idaho, expressed concern that the proposed $100 fee is ambiguous and excessive. Valley County asked if the application fee would apply to each route upon which an assertion is made. They are concerned that this could result in hundreds of dollars in fees for large counties. Gilpin County requests that BLM consider a one-time processing fee for a block of applications.

We disagree that the $100 application fee, which exists in the current regulations, is ambiguous and excessive. The existing regulations at 43 CFR 1864.1-2(b) provide that “a nonrefundable fee of $100 shall accompany the application.” This fee will not change as a result of this rulemaking. Subpart 1864 distinguishes between filing fees and administrative processing costs. Neither the proposed rule nor today's final rule alter these requirements.

The San Bernardino County Department of Public Works in California criticized any potential cost recovery that the rulemaking may impose because the number of claims the county might potentially file could create a financial burden on San Bernardino County .

This rulemaking does not change BLM's application procedures or fee structures and does not involve cost recovery. Each application would be subject to the $100 application fee unless BLM waives it. Section 304(c) of FLPMA authorizes the Secretary, through BLM, to either reduce or eliminate charges for administrative costs. BLM will continue to place the money it collects into the U.S. Treasury for use for various public purposes. If BLM receives multiple applications, the individual case costs should be less, or BLM may waive the processing costs if many applications cover similar types of filings.

A commenter stated the proposed rule does not specify how to process the application or reference what the application requirements will be. The commenter says BLM must be specific about these and reference them in the final rule.

BLM has addressed the application requirements in the existing regulations at 43 CFR 1864.1-2. The final rule does not alter these requirements.

Another commenter asked how the public will know whether the fee and deposit are fair, if only BLM determines what fees the applicant must pay.

BLM is planning to issue guidance to field offices on how to establish fees and parameters to ensure fairness. The guidelines will include a provision that returns a portion of the fee if the application is denied. (Until those guidelines are completed, 43 U.S.C. 1735(a) provides an explanation of how BLM handles deposits and forfeitures.)

43 CFR 1864.1-3(c) (Action on application) and 43 CFR 1864.2(a) (Decision on application) explain BLM's procedure for billing an applicant for a disclaimer of interest application. BLM has chosen not to estimate an average cost to process a disclaimer of interest application because of the variable factors in each application. However, on a case-by-case basis, we inform the applicant of the estimated costs. When the application processing is completed, BLM will give the applicant a final accounting, which will either require payment of additional fees, or, if an applicant has overpaid BLM, we will issue a refund. Today's rule does not change the process.

A commenter asked whether BLM State Directors should have the authority to issue disclaimers of interest. Otherwise, subsequent administrations will have the authority to change the rule.

The Secretary has already delegated the authority to process disclaimers of interest to the BLM Director, who in turn has delegated this authority to State Directors. Delegations of authority are always subject to change.

A commenter asked if the rule would apply to unpatented mining claims or other mineral interests.

The rule will not apply to a mining claim title. Title to mining claims is determined under the General Mining Law of 1872, as amended, and BLM regulations at 43 CFR Part 3800. BLM will determine whether the rule applies to clouded private mineral interests on a case-by-case basis. In general, the public obtains Federal mineral interests through leases BLM issues under the Mineral Leasing Act (30 U.S.C. 181 et seq. ), or sales authorized by the Materials Act of 1947 (30 U.S.C. 601 et seq. ).

In response to several comments we are adding language to section 1864.0-5 in today's rule to clarify that the term “state.” As used in this rule, we define “state” as “the state and any of its creations including any governmental instrumentality, within a state, including cities, counties, or other official local governmental entities.”

The Commissioners of Valley County, Idaho, believe the term “state” as used in the proposed rule to determine who would receive the benefit of the waiver of the 12-year filing deadline, is too restrictive because the state may not always support local government assertions and could prevent local government's from filing applications for disclaimers of interest. The Commissioners recommended that the regulations provide for local governments to apply directly.

We have defined the term “state” to include local governments. We do not believe the rule will create restrictions upon states or other governmental instrumentalities within the state. States may file an application for a disclaimer where a title defect appears to exist. Because counties and other entities of local government are within the jurisdiction of a state, they will have the same rights as a state. The waiver applies to counties by definition.

Current section 1864.1-1 (a) provides, in part, that any “present owner of record may file an application to have a disclaimer of interest issued.” The phrase “present owner of record” is not defined in Subpart 1864.

FLPMA neither uses nor defines this phrase. In real property parlance, the term “present owner of record” usually refers to a property owner in whose name the title appears in the official records of a county recorder's office or other office of record. Thus, it appears that the phrase “present owner of record” in section 1864.1-1 potentially could limit applications for a disclaimer of interest in a way that would unduly restrict the Secretary's broad authority under section 315 of FLPMA.

Today's rule amends this paragraph by removing the phrase “present owner of record” and replacing it with “any entity claiming title to lands.” This change clarifies that it is the interest in the lands, rather than record ownership, that determines whether an entity is eligible to apply for a disclaimer of interest. This change also broadens the class of potential applicants for disclaimers of interest, which could include, among others, a state, corporation, county, or a single individual. The language is unchanged from the proposed rule.

Several commenters did not think BLM was clear on the standards we will apply when determining whether or not to issue a disclaimer of interest. The commenters urged BLM to apply standards that are “crisp, rigorous, and conform to recent federal case law.” The commenters believe that because an applicant doesn't need to have color of title to request a disclaimer of interest, this makes the proposed rule an “illegal land granting statute.” The commenters state that BLM must also correct the language of the original 1984 regulation (section 1864.0-5) purporting to define lands to include lands “now or formerly forming a part of the reserved or unreserved public lands.”

We disagree with the commenters. BLM did not identify specific standards because applicants can make a wide variety of disclaimer applications. The issuance of a disclaimer does not grant land to anyone. It merely documents that the United States has no valid interest in the land. Requirements for how and what an applicant must file are found in the existing regulations at 43 CFR 1864.1-2.

We also disagree that we should change our definition of “lands.” Often lands have been transferred from Federal to private ownership, but a residual interest in the lands remains with the Federal government either by design or error. The disclaimer of interest rule is in place to correct such errors if they are found to cause a cloud on a title.

Section 1864.1-3(a)(1) currently provides, in part, that the BLM will deny an application for a disclaimer if “[m]ore than 12 years have elapsed since the owner knew or should have known of the alleged claim attributed to the United States.” This deadline was modeled after the statute of limitations in the Quiet Title Act, which also includes a disclaimer provision (28 U.S.C. 2409a(e)). The Quiet Title Act now provides that “any civil action under this section, except for an action brought by a state, will be barred unless it is commenced within twelve years of the date upon which it accrued. Such action will be deemed to have accrued on the date the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” (28 U.S.C. 2409a(g)).

As enacted in 1972, the Quiet Title Act subjected all parties, including states, to the 12-year limitation period. In 1986, Congress amended the Quiet Title Act to exempt states from this 12-year statute of limitations in most instances. However, BLM has not updated 43 CFR 1864.1-3(a), issued in 1984, to reflect the 1986 change in the Quiet Title Act. Thus, today's rule amends this section to be more consistent with the Quiet Title Act.

Today's rule adds language exempting states from the 12-year filing deadline to allow states, as we have defined this term in this rule, to apply for disclaimers of interest under FLPMA at any time. We also made editorial changes to this section and brought up-to-date a reference to another section.

The existing regulations at 43 CFR 1864.1-4 direct BLM to refer disclaimer applications to the affected Federal agency for comment before making a decision on the application. As a result of comments BLM added provisions to today's rule stating that if a surface management agency has a valid objection to an application, BLM will reject the application. If the application is approved by the surface management agency, then BLM can issue a recordable disclaimer of interest.

We specifically made the change in reponse to the U.S. Forest Service comments by clarifying in this final rule how BLM will handle disclaimer of interest applications for lands managed by another land managing agency.

This regulation is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866. Therefore it does not require an assessment of potential benefits and costs, nor does it require an explanation pertaining to the manner in which the regulatory action is consistent with a statutory mandate and, to the extent allowed by law, promotes the President's priorities and avoids undue interference with state, local, and tribal governments in the exercise of their governmental functions. Because this rule is not a “significant regulatory action” the Office of Management and Budget has not reviewed this rule under Executive Order 12866.

Commenters asserted that the rulemaking is a significant regulatory action because it relates directly to R.S. 2477 claims and will, therefore, cause adverse impacts to the environment; presents novel legal issues; and is inconsistent with the actions of another agency.

We disagree and stand by our analysis that the rule is not a significant regulatory action. Today's rule does not change the basic process for issuing recordable disclaimers and will not have additional environmental impact, will better conform to existing statutes, and better explains how the disclaimer process relates to other agencies.

Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that Government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. BLM has determined that this proposed rule would not have a significant economic impact on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). The changes to the current rules will have no impact on an applicant's costs for filing or processing an application for a disclaimer of interest which currently consist of a one-time filing fee of $100 and fact-specific processing costs with provisions for a fee waiver.

This regulation is not a “major rule” as defined at 5 U.S.C. 804(2) because it will not have an annual effect on the economy greater than $100 million, nor will it result in major cost or price increases for consumers, industries, government agencies, or regions. It will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

BLM has determined that this rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, because it will not result in state, local and tribal government, or private sector expenditures of $100 million or more in any one year. This rule will not significantly or uniquely affect small governments.

In accordance with Executive Order 12360, BLM has found that the rule does not have significant takings implications. No takings of personal or real property will occur as a result of this rule. The rule broadens the opportunity for the United States to issue disclaimers of interest in land, thereby making it easier to remove clouds on title to certain lands. A takings implication analysis is not required.

In accordance with Executive Order 13132, BLM finds that the rule does not have sufficient Federalism implications to warrant the preparation of a federalism summary impact assessment. The rule does not have substantial direct effects on states, on the relationship between the national government and states, or on the distribution of power and responsibilities among the various levels of government. The rule does not preempt state law. The rule broadens the opportunity for states and other entities to apply for a disclaimer of interest in land, thereby removing clouds on the title to certain lands.

A commenter believes the rulemaking will impact the public under Executive Order 13132 because the rulemaking would change Federal and state land ownership.

We disagree. Although states will gain an additional ability to apply for disclaimers because we are removing the states' 12-year filing deadline, no substantive changes in ownership would occur because recordable disclaimers may only be issued for interests which the Federal government no longer claims.

In accordance with Executive Order 13175, BLM finds that this rule does not propose significant changes to BLM policy and that Tribal Governments will not be unduly affected by this rule.

The State of Alaska supported the proposed rule and asked if a disclaimer of interest could be applied to Indian trust or restricted Indian lands.

BLM will reject all applications for a disclaimer of interest on trust or restricted Indian lands (43 CFR 1864.1-3(b)(2) of today's rule). Indian trust lands are defined in 25 CFR 150.2(h) as “an inclusive term describing all lands held in trust by the United States for Individual Indians or tribes, or all lands, titles to which are held by individual Indians or tribes, subject to the Federal restrictions against alienation or encumbrance, for all lands which are subject to the rights of use, occupancy, and/or benefit of certain tribes.” For purposes of this part, the term “Indian land” also includes land for which title is held in fee status by Indian tribes and U.S. Government-owned lands under the Bureau of Indian Affairs jurisdiction. This rulemaking has no bearing on these lands.

In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

BLM has determined this rulemaking does not contain any new information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

BLM has determined that this rulemaking is categorically excluded from environmental review under section 102(2)(C) of the National Environmental Policy Act, under 516 Departmental Manual (DM), Chapter 2, Appendix I, Item 1.10, and has concluded that the rule does not meet any of the ten exceptions to the categorical exclusions listed in 516 DM, Chapter 2, Appendix 2. Under 516 DM, Chapter 2, Appendix 1, § 1.10, this rule is categorically excluded because it is procedural in nature, therefore its environmental effect is too broad, speculative or conjectural to analyze.

A commenter believes BLM was incorrect in asserting that the proposed rule is categorically excluded from review under NEPA, arguing that there are several exceptions requiring the proposed rule to undergo NEPA review, including the potential adverse effects on parks, recreation, wilderness, and refuge lands, and the proposed rule's potentially controversial environmental effects.

We disagree. BLM believes that the rule, as written, is exempt from NEPA for the reasons stated in the proposed rulemaking. It is not possible to determine the number of filings under the FLPMA provision, nor can BLM determine where such filings will be made.

In accordance with Executive Order 13211, BLM finds that this rule will not have a significant adverse effect on the supply, distribution, or use of energy. The supply, distribution or use of energy will not be unduly affected by this rule.

Each Federal agency is required to write regulations that are simple and easy to understand and to solicit comments and suggestions from the public on the readability of the rule.

A commenter stated the rulemaking was unclear because it does not mention R.S. 2477, although BLM's Questions and Answers and Press Release pertain specifically to R.S. 2477.

We disagree. This rulemaking pertains to the issues of recordable disclaimers and, therefore, we saw no need to address specific R.S. 2477 rights-of way types of recordable disclaimers in the preamble to the proposed rule. Our mention of R.S. 2477 in BLM's Questions and Answers and Press Release generated significant comments about the relationship of this rule to R.S. 2477, which we have addressed in today's preamble.

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-20, adopted December 17, 2002, and released December 20, 2002. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket Nos. 02-274 and 02-275, adopted December 18, 2002, and released December 20, 2002. The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.

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

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

This is a summary of the Commission's Report and Order, MB Docket No. 02-225, adopted December 13, 2002, and released December 16, 2002. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, (202) 863-2893, facsimile (202) 863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MB Docket No. 02-143, adopted December 13, 2002, and released December 16, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Center (Room 239), 445 12th Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

On May 12, 2000, we published in the Federal Register (65 FR 30680) a final rule and an interim final rule to require advanced air bags (Docket No. NHTSA 00-7013; Notice 7) (May 2000 final rule). The rule amended FMVSS No. 208, Occupant Crash Protection, to require that future air bags be designed so that they create less risk of serious air bag-induced injuries than current air bags, particularly for small women and young children, and provide improved frontal crash protection for all occupants by means that include advanced air bag technology.

The issuance of the May 2000 final rule completed the implementation of our 1996 comprehensive plan for reducing air bag risks. The Transportation Equity Act for the 21st Century (TEA 21), which was enacted in 1998, required us to issue a rule amending Standard No. 208:

Eight petitions for reconsideration of the May 2000 final rule were submitted to the Agency ( see Docket No. 7013). Four of the petitions were from manufacturers of vehicles or air bags. Petitions were also filed by three industry associations representing vehicle manufacturers, and by a coalition of four consumer groups. In addition, NHTSA received two requests for clarification within the time period for filing petitions and three comments that would have been considered petitions for reconsideration had they been timely filed. All submissions were addressed in the Agency response published in the Federal Register on December 18, 2001 that made several changes to the May 2000 final rule (66 FR 65376, Docket No. NHTSA 01-11110) (December 2001 final rule).

These changes included a number of refinements to the dummy positioning procedures for the low risk deployment tests and, to a lesser degree, for the automatic suppression tests. In the December 2001 final rule, the Agency also modified the period of time during which the injury criteria must be met for the low risk deployment tests from 300 milliseconds (ms) to 125 ms after initiation of the final stage of an air bag designed to deploy in a 26 km/h (16 mph) rigid barrier crash. We also corrected an error in the regulatory text of the May 2000 final rule regarding the exclusivity of the new advanced air bag warning label on the sun visor and clarified that information regarding air bags or seat belts may be placed elsewhere in the vehicle as long as the information in those warnings is consistent with the information contained in the required label. Additionally, the regulatory text concerning the telltale light required for automatic suppression systems was changed to be more consistent with the requirements of FMVSS No. 101, Controls and Displays. Other changes that are not the subject of today's rule were also made.

We have received eight petitions for reconsideration of the December 2001 final rule. These petitions were filed by the Alliance of Automotive Manufacturers (Alliance), Mitsubishi, Volkswagen, Honda, Porsche, DaimlerChrysler, Ford, and Toyota. Additionally, BMW and Ferrari filed petitions shortly after the deadline for filing petitions for reconsideration had passed. Under agency regulations (49 CFR 553.35(a)), late-filed petitions for reconsideration are treated as petitions for rulemaking. However, neither of these two petitions raised issues that had not also been addressed by the other timely petitioners for reconsideration. Thus, as a practical matter, the issues in the two petitions will be considered as part of the agency response to the timely-filed petitions for reconsideration. TRW submitted a request for clarification and a comment on one of the issues raised by all petitioners, namely the time-duration for meeting the injury criteria during the passenger-side low risk deployment tests. Several supplemental submissions were also submitted to the docket after the deadline for filing petitions for reconsideration.

In this document, we are responding to those portions of the petitions regarding the time duration for collecting injury criteria data during the low risk deployment tests, a change in dummy positioning procedure for one of the driver position low risk deployment tests, and issues related to the air bag warning label and the automatic suppression telltale. Only those portions of the petitions directly related to these matters will be discussed in this document. The remaining issues will be addressed in a subsequent document.

As noted above, today's rule addresses only those issues raised in the petitions for reconsideration that are likely to have an important, immediate impact on vehicle manufacturers or that correct inadvertent changes that were made to the regulatory text in the December 2001 final rule.

Two significant issues are resolved by this document. First, we address the time duration for collecting injury criteria data during the tests to determine whether a low risk deployment air bag system complies with the standard. We have decided to grant the petitioners' request that the period for the three-year-old and six-year-old low risk deployment tests end at 100 ms after the air bag first starts to deploy instead of 125 ms after the final stage of the air bag starts to deploy. The longer time duration for low risk deployment tests specified in the December 2001 final rule will continue to apply to the driver position low risk deployment tests and to the infant low risk deployment tests.

The second major issue involves the labeling requirements associated with all advanced air bag requirements. We have made changes to the current label, depicted in Figure 8 of the standard, and have decided to reinstate our prohibition against placing additional information regarding air bags on the sun visor. The current label will be allowed for vehicles certified to the advanced air bag requirements before September 1, 2003, although vehicle manufacturers may choose to use the new label, which is depicted in Figure 11, on those vehicles under the existing provision allowing early compliance. Notwithstanding the prohibition, we have also established a procedure under which a manufacturer may request permission to add design-specific information to the sun visor label with the Agency's approval. Today's rule also corrects an error in the regulatory text that suggested the new advanced air bag labels are only required for vehicles certified to the automatic suppression options.

Finally, the rule makes a correction to the chin-on-module low risk deployment test position, corrects a couple of errors related to the telltale requirement for vehicles certified to the automatic suppression requirements, and makes a few minor, non-substantive changes.

We adopted a specific period of time for meeting the injury criteria in the May 2000 final rule. In that rule, we required that all injury criteria be met for the first 300 ms of the test, a time period that we believed would encompass any air bag-related risk of injury. Several petitioners for reconsideration of that rule argued against adopting a 300 ms period for the low risk deployment tests.

While rejecting the recommendation made by the Alliance that injury criteria be met for 300 ms or until the dummy is no longer in contact with the air bag, whichever occurs first, as inherently non-objective, we did modify the test duration for the low risk deployment tests in the December 2001 final rule.

As discussed in that rule, the test duration for low risk deployment tests should accurately reflect the propensity of the deploying air bag to harm an occupant while it is deploying. Thus, we adopted a time duration for the low risk deployment test of 125 ms from the initiation of deployment of the final air bag stage that will fire in a 0-26 km/h (16 mph) crash. We believed this time frame would adequately measure air bag-related injuries without reflecting injuries due to secondary vehicle interior impacts (referred to below as “secondary impacts”) that are unrelated to air bag deployment. We noted that we intend to monitor our test data to determine whether the specified time period is, in fact, sufficient to include all air bag-related injuries, leaving open the possibility of increasing the time duration if needed. We also noted that the 300 ms time duration remains in full effect for all barrier tests.

In October 2001, the Alliance petitioned NHTSA to limit the time period to 100 ms from the initial deployment of the air bag. Alternatively, it suggested developing an algorithm that would determine when the forces imposed on the dummy by the air bag no longer significantly influences the movement of the dummy. In a supplemental submission, dated April 29, 2002, the Alliance dropped its support of this alternative approach.

The Alliance argued that both the original 300 ms time frame and the new 125 ms after the initiation of the final stage of air bag deployment effectively prevent vehicle manufacturers from certifying compliance with the advanced air bag requirements using low risk deployment technologies. It stated that both time periods capture non-representative secondary impacts with vehicle interior components (primarily the seat back on the passenger side). It argued that these interior vehicle impacts are artifacts of the test, which is static, and are not representative of what happens in real world crashes. It provided sled test data simulating a dynamic crash test compared to a low risk deployment test, suggesting that the interactions of test dummies with the vehicle's interior components during dynamic tests are not significant.

The Alliance also claimed that the final stage of most multi-stage air bag systems that is not deployed in a crash to provide occupant protection is only deployed to expense the remaining air bag propellant, not to provide any additional protection for the affected occupant. It stated that this final “dispensing” stage would generally expense approximately 100 to 300 ms after the initial deployment of the air bag, a time delay which, it argued, is sufficiently late to prevent any risk of air bag-related injury. In addressing the agency's concerns with the injury potential of a secondary impact, the Alliance noted that it did not believe NHTSA's reliance on reports of secondary impacts in existing special crash investigation (SCI) cases was warranted since those cases involved air bags that would not meet the low risk deployment criteria. Accordingly, it did not believe the SCI cases were indicative of future air bag performance. Finally, the Alliance stated that a time duration of 125 ms from the initial deployment of the air bag was too long to eliminate injuries attributable solely to secondary impacts.

Toyota, Mitsubishi, DaimlerChrysler, Honda, Volkswagen, and Porsche all supported the Alliance request to end the period during which data are collected for compliance purposes at 100 ms after the initial deployment of the air bag. DaimlerChrysler also suggested that the seat back be adjusted to its fully reclined position (or the seat be removed) to avoid any possibility of a secondary impact. 1 Honda suggested an alternative requirement under which the collection of data for compliance purposes would cease 10 ms after the dummy head no longer interacted with the air bag. It maintained that the maximum injury values, other than those related to secondary impacts, generally occurred during dummy head interaction with the air bag or very shortly ( i.e. , within 10 ms) thereafter, and therefore asked us to limit the period during which the injury criteria must be met and data are collected for the low risk deployment tests to 10 ms after dummy interaction with the air bag ceases. This approach had been presented earlier by the Alliance in an October 2001 petition for rulemaking. Volkswagen and BMW suggested an alternative means of limiting the collection of compliance data would be to review the test video and data traces to separate air bag-induced injury readings from secondary impacts. They stated that such a method would most effectively ensure that all air bag-related injuries were captured without penalizing manufacturers for secondary impacts. BMW noted that NHTSA has established a precedent for using film analysis to determine compliance in FMVSS No. 201, Occupant protection in interior impact. TRW offered a similar alternative, under which film and data channel analyses would be used to limit the collection of compliance data. It also advocated a 300 ms time-frame for all rear-facing child seat testing. Autoliv advocated a much more basic approach under which NHTSA could make a case-by-case determination that the secondary impact was unrelated to the air bag.

This is a complex issue. As we noted in the preamble to both our May 2000 and the December 2001 final rules, we do not believe that all dummy contact with the vehicle interior would necessarily be the result of dummy interaction with an overly aggressive air bag. This is because a dummy subjected to the deployment of any air bag in a low risk deployment test will continue to move rearward until it strikes some object, and because the low risk deployment test does not take into account the forward momentum of the dummy that would typically be present in a real world crash in which the frontal impact air bags deploy. For these reasons, we are reluctant to retain the existing compliance data collection period, particularly because it may effectively preclude manufacturers from complying with the rule through the use of low risk deployment technologies. Nevertheless, we remain concerned that an air bag propelling the dummy backward with excessive force could result in secondary impacts relatively early in the crash event. These new low risk air bag technologies remain relatively untested by NHTSA, and we are somewhat dependent on the manufacturers' experience in the testing and development of their own systems.

Accordingly, we have decided to limit the data collection for compliance purposes to 100 ms after initial deployment of the air bag for systems that are certified to either S21.4 (3-year-old) or S23.4 (6-year-old), as requested by the Alliance and supported by other petitioners. All injury measurements recorded during that time that exceed the allowable values, regardless of the source of injury, will be considered noncompliances. We continue to believe that setting a specific time period is the simplest, most appropriate, and most objective way to determine which data to collect for compliance purposes. The basis for our decision is set forth below. However, as discussed in the December 2001 final rule, we will actually record the dummy injury measurements for a longer time period dependent upon the data collection system. If there is any indication that peak injury measurements recorded after 100 ms are the result of an air bag's aggressiveness, we may choose to initiate rulemaking to increase the period of time that data will be considered for compliance purposes.

The primary thrust of the Alliance's petition is that, in a real world crash, a child would have sufficient forward momentum relative to the vehicle, and thus experience a lower change in velocity due to the air bag interaction, to prevent serious injuries resulting from secondary impacts with the interior of the vehicle. Thus, the high injury readings associated with secondary impacts in the static low risk deployment tests (primarily high neck injury readings) are artifacts of those tests and do not represent a real world condition. The Alliance presented one set of sled test results, comparing one low risk deployment test (6-year-old dummy in position 1) to a 26 km/h (16 mph) dynamic sled test to support its position.

We agree that the rebound velocity of a dummy in the static low risk deployment test does not replicate the rebound velocity of an out-of-position occupant in a real world crash in which the occupant moves forward as a result of vehicle braking and crash dynamics. The forward momentum of the occupant in such a crash will reduce the velocity with which the occupant is thrown back into the seat. The amount of this forward momentum (and the resulting reduction in rearward momentum) is impact velocity-dependent. In low speed crashes, the forward momentum will be less than in higher speed crashes. Since air bags may be designed to deploy at impact speeds considerably less than the 26 km/h (16 mph) used in the Alliance sled test, we are uncertain that forward momentum alone will be sufficient to prevent rebound injuries that are the result of the air bag's propelling an individual rearward. Likewise, our experience with the SCI data indicates that secondary impacts are not limited to seat backs, but could be into the B-pillar, the door, or even the header. However, the SCI cases are inconclusive as to whether or not the secondary impacts result in more serious injury than those produced by the air bag.

The Alliance also suggested that the agency's reliance on SCI data to justify our concern that secondary impacts could be the result of air bag interaction depended on old air bag designs that could not meet the low risk deployment requirements. The Alliance's point is well taken. We note that no vehicles in the SCI database were designed to meet the advanced air bag requirements. Indeed, to the best of our knowledge, there is only one SCI case of a “lower powered” ( i.e., model year 1998 or later) air bag-equipped vehicle that resulted in a critical injury (AIS 5) and was also reported to have seat back contact. That case involved a 1999 Ford Contour. We do not believe the passenger air bag in that vehicle would be sufficiently benign to meet the low risk deployment requirements. We also have some concerns about our ability to attribute the serious injuries to seat back contact, as the subject case involved a crash in which the delta-V has been determined to be around 48 km/h (30 mph).

The Alliance also indicated that the typical low risk deployment systems that are likely to be used in future vehicles would consist of an initial, benign deployment with a secondary “expensing stage” that would occur at least 100 ms after the initial deployment. It maintained that this “expensing stage” would occur so late in the crash event that it could not be the source of air bag interaction or rebound injury. It also provided data using an inflator designed to expense 40% of the air bag's propellant initially and 60% secondarily (40/60 air bag design). In that instance, the secondary deployment occurred 200 ms after the initial deployment and did not result in any excessive injury response measurements at the end of the crash event. As noted in the December 2001 final rule, our concern is with 40/60 air bag designs for which the second deployment has the propensity to cause injury. We do not find persuasive the Alliance's contention that the second stage of deployment will always be benign, but believe that injury measurement assessment for 100 ms will ensure that a second stage deployment does not occur during significant occupant engagement with the air bag.

Finally, the Alliance stated that a 125 ms fixed time duration is too long to exclude secondary impacts. To the extent we believe the majority of secondary impacts are not representative of what happens in real world crashes, the test duration should be sufficiently short to limit significantly the potential for secondary impacts while being of sufficient duration to capture the full air bag deployment. We believe a 100 ms time duration will capture the full air bag deployment and induce manufacturers to reduce the dummy rebound velocities into the seat back and cap the rebound velocity to some degree. There is no evidence that suggests that a 125 ms data collection would reduce the likelihood of injuries more than a 100 ms collection.

We agree with manufacturers that high injury measurements due to secondary impacts can be an artifact of the low risk deployment test. The 100 ms time frame adopted today will minimize the likelihood that a vehicle occupant will be thrown into the seat back or other vehicle component prior to 100 ms, as vehicle manufacturers will need to ensure that their air bags are sufficiently benign to avoid such contacts during that time frame. This is because any failure of the injury criteria, regardless of whether it is the result of direct air bag interaction or a secondary interaction with another vehicle component, will be considered a noncompliance. It is for this reason that we are denying DaimlerChrysler's petition for an explicit exclusion of air bag stages that are not required to provide occupant protection and for performing the test with the seat back fully reclined or removed. However, as noted above, we will continue to monitor the test results, and initiate rulemaking if we determine that injury measures beyond 100 ms are due to overly aggressive air bags.

Vehicle manufacturers have not demonstrated that secondary impacts are a compliance problem on the driver side of the vehicle or with a rear-facing child restraint on the passenger side. Additionally, unlike the 3-year-old and 6-year-old dynamic tests relied on by the Alliance to support its position that secondary impacts are a test anomaly, there will not be a significant amount of forward momentum relative to the vehicle in a dynamic test with an infant dummy in a rear-facing child restraint. The infant dummy is restrained in a rear-facing child restraint that is coupled to the vehicle chassis via the vehicle seat belt system. Thus, the static test condition is more representative of the real world crash event. Accordingly, we are retaining the specification that data be collected for compliance purposes in S19.3 (12-month-old) and S25.3 (driver-side) for 125 ms after initiation of the final stage of deployment for crashes up to 64 km/h (40 mph) and 26 km/h (16 mph), respectively.

We are rejecting the other suggestions offered by petitioners because we believe they are insufficiently objective. Honda's suggestion that data collection for compliance purposes end 10 ms after head interaction with the air bag ceases suffers from the same lack of objectivity as the Alliance petition that we denied in the December 2001 final rule. It is simply not possible to determine with any assurance exactly when that interaction ceases. The suggestion of a film analysis is likewise impractical. Autoliv's suggestion that NHTSA make a case-by-case determination as to when the secondary impact is air bag-related would likely result in significant debate and pose legitimate concerns about objectivity, repeatability, and enforceability.

We have changed S4.11(b) of the regulatory text to specify injury criteria will be considered for “100 milliseconds after the initial deployment of the air bag” rather than “100 milliseconds after the air bag is signaled to deploy.” The reason for this change is to be more precise about when the 100 ms time-frame begins. Manufacturers may, for very valid reasons, build time delay circuitry into their air bag systems. If the test duration began at the signaling of air bag deployment, the data acquisition period would be shortened by the period of the delay. Changing the regulatory text to “initial deployment of the air bag” is intended to capture that moment in time when the chemical or other process begins to inflate the air bag. If there is no designed delay built into the electrical circuitry, then the signal for air bag deployment and the initiation of deployment will effectively be coincident.

As part of the December 2001 final rule, the agency made several changes to the regulatory text governing dummy positioning procedures. In many instances, these changes were intended to be substantive in nature. For example, we changed the location for positioning the dummy chin on the steering wheel in the driver chin-on-rim test (position 2) because we believed the change would lead to a more repeatable test procedure and would minimize the risk that the dummy chin would become lodged over the steering wheel, potentially distorting the dummy kinematics.

However, many of the changes were made purely to improve the logic of how the test was to be performed and to create greater consistency among the various tests. For example, changes were made in the sequencing of the test procedure so that one could follow the procedure step-by-step. Likewise, terminology was made more uniform among the various tests. The agency did not intend these changes to have a substantive effect. Accordingly, the preamble to the December 2001 final rule did not discuss the changes.

Mitsubishi, Volkswagen, and Autoliv stated in their petitions that one of the changes to the driver chin-on-module test (position 1) (S26.2.6) made a substantive change to the test procedure that was not justified, or even discussed in the preamble. Follow-up letters by the Alliance, Ford and GM reiterated this concern. The position aligns the chin with the center of the area where the air bag deploys. The original position aligned the chin with the top of the air bag module. Petitioners have argued that the new specification lowers the dummy head position and could make the test more stringent and unrealistic. Additionally, Autoliv and Ford asked if the seat height could be adjusted to achieve the desired dummy height.

Petitioners are correct that the change was not discussed. It was intended to create consistency between this test and other tests in which a portion of the dummy was to be positioned in alignment with the place in the vehicle where the air bag initially deploys. It was not intended to have a substantive effect. We do not know at this time whether lowering the dummy head a couple of inches will have a significant effect on recorded injury measurements. However, we recognize it could. Since no substantive change was intended, we have reverted back to the positioning language that was in the May 2000 final rule. This language places the chin on the top of the air bag module. It also states that the dummy height can be adjusted using either the seat height adjustments or spacer blocks. All other changes to the chin-on-module positioning procedure adopted by the December 2001 final rule are retained, at least at this time. However, other changes may be made in our second response to the petitions for reconsideration.

In the May 2000 final rule, we added a new warning label that must be used in vehicles with advanced air bags to replace the warning label currently required. The warning on the new label deleted the earlier label's statement: “Never put a rear-facing child seat in the front” in recognition that the advanced air bag requirements are intended specifically to minimize the risk related to air bag deployments. We also removed the statement on the label that is required in earlier motor vehicles that one should sit as far away from the air bag as possible because while this information is helpful, we did not believe it merited overcrowding the label. We added an instruction to read the vehicle owner's manual to learn more about the advanced air bag systems in the vehicle.

We also stated in the preamble that we would not prohibit additional labels on the sun visor that provided design-specific information on how to use a vehicle's advanced air bag technology. As stated in the preamble to the May 2000 final rule, we intended to allow additional, design-specific information on the sun visor and near the new air bag warning label. However, the amendments to the regulatory text mistakenly maintained the existing prohibition against adding additional information on the sun visor.

Accordingly, in the December 2001 rule, we amended the regulatory text to clarify that a label with such design specific information could be placed, at the manufacturer's option, on the sun visor alongside the air bag warning label. Alternatively, the manufacturer could determine that an additional label placed elsewhere in the vehicle, either permanently or temporarily, could best inform vehicle occupants about a particular characteristic of the vehicle's air bag system. We noted that advanced air bag systems are different from traditional air bag systems in that there is likely to be a variety of advanced air bag systems with differing and/or unique design characteristics. Thus, there may be instances in which a manufacturer determines that particular information should be conveyed regarding vehicle occupant behavior as it affects the performance of that vehicle's air bag system. We believe that the owner's manual alone may not be an adequate means of communicating that information to the vehicle owner and chose not to foreclose such communications through our rule.

No change was made to the regulatory text regarding the placement of labels elsewhere in the vehicle because historically there has been no express prohibition against labels that convey specific, accurate information about air bags or seat belts in locations other than the sun visor. However, we did amend the regulatory text to clarify that any additional labels, regardless of where they are placed in the vehicle, cannot be confusing or misleading when read in conjunction with other labels required by this or other standards.

The Alliance petitioned NHTSA to amend the labeling requirements of the December 2001 final rule in three respects. First, it asked NHTSA to reinstate its prohibition against other labels regarding air bags or seat belts on the sun visor. It claimed that we had not provided an adequate justification for reversing the position we adopted in 1993 that additional information on the sun visor would contribute to information overload for the consumer, resulting overall in a less effective warning. Second, it petitioned the agency to reconsider its position on permitting other labels elsewhere within the vehicle interior ( i.e. , not located on the sun visor), urging us to adopt a blanket prohibition on additional air bag-related labels within the vehicle interior. Finally, it asked that the advanced air bag label be modified by adding a bulleted statement discouraging front seat installation of rear-facing infant seats.

In its supplemental submission, the Alliance suggested additional changes that it believes would strengthen the required label. In its petition, the Alliance also noted an apparent error in the regulatory text that only mandated the use of the new label in vehicles with automatic suppression systems. DaimlerChrysler raised similar concerns. In addition, DaimlerChrysler noted an incorrect reference in the regulatory text governing labels to a previous section of the regulation that had been repealed. That change has been made.

On April 26, 2002, GM requested that the revised effective date for any new label adopted by NHTSA be no sooner than September 1, 2003, with early compliance permitted. This request was made because GM is currently producing vehicles certified to the advanced air bag requirements which have the label required by the May 2000 and December 2001 final rules. The Alliance reiterated GM's request in its supplemental submission.

NHTSA always intended the new advanced air bag label, depicted in Figure 8, to be required in all vehicles certified to the advanced air bag requirements. Due to an error, the amended regulatory text that was adopted in the December 2001 final rule stated that the new label was only required for systems that use automatic suppression systems. We have amended the text to require that the required label be placed in all vehicles certified to the advanced air bag requirements, regardless of the technology used to meet the requirements. 2

We have decided to change the required label for vehicles certified to the advanced air bag requirements. This new label is depicted in Figure 11. It differs from the label in Figure 8 in that it includes a bullet statement that states “never put a rear-facing child seat in the front”. The bullet will not be required in those vehicles that meet the requirements for an air bag on-off switch, i.e. , the vehicle has no rear seat or a rear seat that is too small to accommodate a rear-facing child restraint. Although the advanced air bag systems are intended to minimize the risk of injury or death to infants in rear-facing child restraints, the only means to completely eliminate the risk is to never place a child or infant in a rear-facing child seat in the vehicle's front seat. We believe it is important to continue to highlight the especially high risk of air bag-related injury or death to children in rear-facing child restraints and, indeed, to continue to educate the public about the need to ensure that all children ride properly restrained in the back seat, since this is the safest place for children, irrespective of air bag risks.

We have not made the other changes advocated by the Alliance, namely the replacement of the phrase “even with advanced air bags” with the phrase “death or serious injury can occur” and the addition of the qualifier in the first bullet that the referenced children are “children 12 and under.” As noted above, it is critical that vehicle occupants understand how their advanced systems work if they are to provide consistent protection—particularly those systems, such as automatic suppression, whose effectiveness could be directly affected by occupant behavior. By highlighting the advanced air bag features on the warning label, we believe vehicle owners will be more likely to heed the final bullet on the label, which is to consult their owner's manual for full details about the advanced air bag system.

We have decided against adding the “12 and under” qualifier because we believe the qualifier has served its originally intended purpose, which was to educate the public to the size of occupant that may be at risk from an air bag deployment. We will continue to use the qualifier in our educational literature, and continue to believe it is a useful tool for helping distinguish those particularly at risk, but have chosen in the interest of brevity and clarity to make reference to “children” on the sun-visor label rather than “children 12 and under.”

We are granting GM's request that the new label not be required until September 1, 2003, the first day of the phase-in implementing the advanced air bag requirements. This should provide vehicle manufacturers sufficient time to order and install the new labels without penalizing them for early compliance with the advanced air bag requirements. The current label will be allowed for vehicles certified to the advanced air bag requirements before September 1, 2003, although vehicle manufacturers may choose to use the new label depicted in Figure 11 on those vehicles under the existing provision allowing early compliance.

As discussed above, the Alliance seeks reinstatement of a prohibition against supplemental air bag information on sun visors and the adoption of a prohibition against such information anywhere in the occupant compartment. The Alliance argues that these actions are necessary to prevent problems of dilution of message and information overload. It argues further that these problems are as large today as they were in the mid-late 1990s at the height of the air bag injury problem.

The question of whether information overload may tend to dilute the message should be considered in light of changing technology and maturing communication needs. In the rulemakings addressing the air bags of the mid 1990s, the agency focused on the twin messages of moving away from air bags and properly using seat belts and other restraints. In considering what messages should be placed on the label, the Agency recognized that, from the point of view of occupant behavior, all airbag systems of that generation operated similarly. Vehicle occupants could not control how or whether an air bag would deploy, but could control whether they were properly seated within the vehicle and properly restrained.

The messages of the 1990s remain critical. The incorporation of technologies to minimize the risks of air bags to occupants should not detract from the primary message that proper occupant seating and restraint use are the most critical factors in minimizing air bag induced injuries. However, the communication needs surrounding advanced air bags, while including the same needs as before, also involve additional complexities. The advent of advanced air bag technology may include air bag systems that respond differently based on the location or characteristics of a particular occupant. While the owner's manuals should contain detailed descriptions of each particular airbag system and how an occupant can best utilize it, the Agency remains convinced that there is benefit to permitting such information to be visible to occupants while riding in the vehicle.

In the December 2001 final rule we tried to balance the potential need for additional design-specific information with the possibility of confusion by prohibiting labels with the potential to confuse or mislead a consumer when read in conjunction with the required label. The Alliance argues that the balance we tried to strike eliminates or reduces the benefits of consistency and repeated exposure that led us originally to mandate particular words and format and to avoid the possibility of diluting these important messages through too many or differing messages.

We agree that a better balance can be struck. While the prohibition against potentially confusing or misleading labels remains, we will continue to permit manufacturers to add design specific information to their sun visor labels. However, to avoid the possibility of information overload, manufacturers must first seek the Agency's approval and may place additional design specific information on the label only after the Agency has granted them permission to do so.

We have set up a procedure under which a vehicle manufacturer can ask for agency authorization to add specific language to the required sun visor warning label addressing the air bag system's unique features. The agency will only authorize or reject the label submitted by the manufacturer. It will not make any judgment as to whether one or more of a variety of labels best prevents information overload, or whether the new information best addresses a particular air bag risk, and it will not suggest alternative language if it rejects a manufacturer's request. Moreover, the agency will not verify or vouch for the accuracy of the information. The agency decision will be limited to a determination that the additional information is not confusing or misleading when the entire label is read as a whole and does not result in information overload; that is to say, the label is not conveying so much information that it is unlikely to be read or taken seriously. We believe this procedure will allow for the provision of design-specific warnings without diminishing the label's effectiveness due to information overload.

In order to obtain NHTSA's authorization, the manufacturer's proposal must meet the following criteria:

• The information that would be added must be design-specific and not applicable to all or most air bag systems;

• The additional information must address situations in which foreseeable occupant behavior can affect air bag performance; and

• The manufacturer's request must provide a mock-up of the label with the specific language that would be added to the label.

Although this procedure places a burden on the agency to determine what constitutes information overload, we believe it will allow us to control the potential for information overload without substituting our judgment for the manufacturer's as to what information vis-a -vis a particular system is most important or germane. Because the information will be specific to the implementation of a particular air bag system in a particular vehicle, and not applicable to all or most airbag systems, we do not believe public comment would be helpful or necessary before making the determination.

The Alliance also requests that we further prohibit any other labels or information elsewhere in the interior compartment of the vehicle. Standard No. 208 has not historically contained any such express prohibition. This lack has not led to increasing numbers of labels and confusing messages, perhaps because the question of whether labels could be placed elsewhere in the vehicle had not been debated. While we do not today extend the prohibition throughout the occupant compartment, should information overload from such additional labels threaten to become a problem, we may reconsider this decision.

The procedure through which additional information can be placed on the sun visor label does not apply to additional labels or information placed elsewhere in the interior of the vehicle. However, our position on this matter should not be interpreted as a determination by us that the additional labels are needed or even particularly helpful. Rather, our decision reflects our belief that while the sun visor label is the best and most important way to communicate with the public, manufacturers should have the option of including additional information in the occupant compartment, on either a temporary or permanent basis, if they deem it appropriate to do so.

The May 2000 final rule required a telltale for vehicles with automatic suppression systems. The telltale has a specified message and must be positioned in a location forward of and above the H-point of the driver's and passenger's seat in their forwardmost position. The final rule allowed for multiple levels of illumination as long as the telltale remains visible at all times to front-seat occupants of all ages. The agency was petitioned to revise the May 2000 requirement that the telltale be visible to occupants of all ages, and to apply the requirements of Standard No. 101. We also received requests that the regulatory text be clarified to assure that the telltale would not be obstructed by a rear-facing child restraint, and that manufacturers be allowed to use the abbreviation “pass” in lieu of “passenger” in the message text. Based on a review of these petitions, we made changes to the regulatory text in the December 2001 final rule that brought the telltale requirements more in line with the requirements of FMVSS No. 101, that relaxed the message requirement to allow an abbreviation of “passenger,” and that required the telltale be placed so that rear-facing child restraints could not obscure it.

In its petition for reconsideration, the Alliance argued that the requirement that the telltale not be blockable by a rear-facing child restraint was too broad, although it supported the premise that a properly installed child restraint should not obscure the telltale. It maintained that the new requirement would make it necessary for manufacturers to test visibility using all possible child seats. It urged the agency to limit the requirement to those child seats listed in Appendix A of the standard.

DaimlerChrysler requested additional flexibility in the wording of the required telltale message. Specifically, it has asked that manufacturers be allowed to use “pass.” rather than “pass” or “passenger,” and that it be allowed to use “airbag” rather than “air bag”. It stated that it believes these changes would better clarify the telltale, particularly since “air bag” is generally spelled as a single word outside of the United States and Canada. It also requested that it be allowed to use lower case letters.

In a request for clarification, Jaguar asked whether it was required to have the required telltale message backlit or otherwise illuminated, a result it said was necessitated by the regulatory text adopted in the December 2001 final rule.

We believe the Alliance position on the telltale visibility has merit. Our primary concern is that a correctly installed child restraint should not restrict the visibility of the telltale. The original language, as adopted in the May 2000 final rule, required the telltale not be located in a position where the temporary or permanent storage of an object could obscure the telltale from either the driver's or right front passenger's view. The language was amended in the December 2001 final rule at the request of DaimlerChrysler. We agree that the placement of a child restraint would not necessarily be considered temporary or permanent storage of the restraint. The change was intended to address a likely condition that was not sufficiently described, not to impose any additional burden on the vehicle manufacturers. As noted by the Alliance, NHTSA does not require vehicle manufacturers to certify compliance of their automatic suppression systems using every child restraint on the market. While we expect these systems to work with all available child restraints, requiring manufacturers to actually demonstrate compliance with all child restraints would be unwieldy. This issue was discussed thoroughly in the May 2000 final rule. We believe it would be inappropriate to impose a greater burden on manufacturers vis-a -vis child restraints and telltale visibility than we have imposed on them for the actual suppression device. Accordingly, the regulatory text has been amended to reference only those child restraints in Appendix A that are designed to be installed in a rear-facing mode.

We are denying DaimlerChrysler's request that manufacturers be provided with greater latitude in meeting the telltale's specified form and format requirements. The current requirements are not onerous and mirror the requirements that have been in place for manufacturer-installed air bag on-off switches since 1995. We have already accommodated the manufacturers' space concerns, as well as their concerns regarding the sale of vehicles in Canada or Europe by allowing the abbreviation of “passenger.” Additionally, while it is true that the term “air bag” is typically spelled as a single word outside of the United States and Canada, we note that these vehicles are manufactured for the U.S. market. While manufacturers may choose to export vehicles with advanced air bag systems to other countries, those vehicles will not have to meet the requirements of FMVSS No. 208. We also note that only Canada and the United States have adopted any advanced air bag requirements. The changes made in the December 2001 final rule adequately address the U.S. and Canadian markets.

As noted by Jaguar, the changes made in the December 2001 final rule had the effect of requiring the telltale message to be backlit or otherwise illuminated, even though the regulatory text specifically allows telltales that are not backlit. As noted above, the telltale requirements for automatic suppression systems were based on the existing telltale requirements for air bag on-off switches found at S4.5.4. We note that the earlier rule, published in the Federal Register on May 23, 1995 (60 FR 27233), directly addressed the issue raised by Jaguar. In that rulemaking, NHTSA had originally proposed that the identifying message be located on the telltale, i.e. , the language would be backlit. In the final rule, we amended the proposed regulatory language to allow the required message to be either on the telltale or adjacent to it (within 25 mm). We stated that we believed having the required message adjacent to the telltale would be as effective a means of informing the driver or passenger of the purpose of the telltale as having the words located directly on the telltale. The same rationale applies to the telltale requirement for vehicles with automatic suppression systems.

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 under E.O. 12866, “Regulatory Planning and Review.” Although this document amends the agency's May 2000 final rule, which was economically significant, NHTSA has determined that this document does not affect the costs and benefits analysis for that final rule. Readers who are interested in the overall costs and benefits of advanced air bags are referred to the agency's Final Economic Assessment for the May 2000 FMVSS No. 208 final rule (NHTSA Docket No. 7013). This rulemaking document has also been determined not to be significant under the Department's regulatory policies and procedures. The amendments made by this document impose no additional costs on manufacturers. Their impacts are so minimal that a full regulatory evaluation is not merited.

We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) This action will not have a significant economic impact on a substantial number of small businesses because it does not significantly change the requirements of the May 2000 final rule or the December 2001 final rule. Small organizations and small governmental units will not be significantly affected since the potential cost impacts associated with this rule should only slightly affect the price of new motor vehicles, if at all.

NHTSA has analyzed these amendments for the purposes of the National Environmental Policy Act and determined that they will 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 final rule is not intended to preempt state tort civil actions, except that the required labels must contain the required text, and no additional text (unless approved by the agency in response to a manufacturer request), and any additional labels cannot be misleading or confusing, as specified in the regulatory text.

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). While the May 2000 final rule is likely to result in over $100 million of annual expenditures by the private sector, today's final rule makes only small adjustments to the December 2001 rule, which, in turn, made only small adjustments to the May 2000 rule. Accordingly, this final rule will not result in a significant increase in cost to the private sector.

This final rule does not have any retroactive effect. Under section 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.

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. This rule does not establish any new information collection requirements. The new label, depicted in 49 CFR 571.208, Figure 11, merely replaces the label currently depicted in 49 CFR 571.208, Figure 8. Since the contents of both labels are standardized, neither label constitutes an “information collection.”

The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

Executive Order 12866 requires each agency to write all rules in plain language. Standard No. 208 is extremely difficult to read as it contains multiple cross-references and has retained all of the requirements applicable to vehicle of different classes at different times. Because portions of today's rule amend existing text, much of that complexity remains. Additionally, the availability of multiple compliance options, differing injury criteria and a dual phase-in have added to the complexity of the regulation, particularly as the various requirements and options are accommodated throughout the initial phase-in. Once the initial phase-in is complete, much of the complexity will disappear. At that time, it would be appropriate to completely revise Standard No. 208 to remove any options, requirements, and differentiations as to vehicle class that are no longer applicable.

Executive Order 13045 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 rulemaking directly involves decisions based on health risks that disproportionately affect children, namely, the risk of deploying air bags to children. However, this rulemaking serves to reduce, rather than increase, that risk.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards  3 in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g. , the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that requirement, we are required to consult with voluntary, private sector, consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

The agency is not aware of any new voluntary consensus standards addressing the changes made to the May 2000 final rule or the December 2001 final rule as a result of this final rule.