We are soliciting comments to help us develop an approach to control risks associated with disposal of nonambulatory and dead livestock. These animals could serve as potential pathways for the spread of bovine spongiform encephalopathy (BSE), if that disease should ever be introduced into the United States.

It is well established that domestic and wild animals may contract diseases—especially viral and bacterial diseases—from animals that die on the farm and do not receive proper disposal. Direct exposure to improperly buried dead stock  1 and consumption of feed or grass contaminated by run-off that passed over such animals are some of the routes of potential exposure for these diseases.

Bovine spongiform encephalopathy (BSE) is a disease of cattle and is a member of a class called transmissible spongiform encephalopathies (TSE's). Other TSE's also cause various diseases in animals and humans. BSE was first documented in the United Kingdom in 1986 and has since spread to approximately 21 other countries in Europe, and to Israel and Japan. There has never been a case of BSE identified in the United States. However, other types of TSE diseases have affected U.S. livestock and wildlife, including scrapie in sheep and goats and chronic wasting disease (CWD) in both captive and free-ranging elk and deer.

In many ways, TSE diseases present a more difficult problem than other animal diseases with regard to controlling the spread of disease through dead stock. This is due to the nature of TSE diseases, the general lack of live-animal tests for them, and the extreme hardiness of TSE agents. These issues are discussed in some detail below.

Surveillance programs in European countries where BSE exist have found that BSE is present in a higher percentage of nonambulatory and dead livestock than in the general cattle populations. An animal at the point of death from BSE is also generally in its most infectious state, with a high concentration of the BSE agent in certain tissues. Studies by the U.S. Department of Agriculture (USDA), independent researchers, and the Harvard Center for Risk Analysis (discussed below) concur that if BSE were introduced into the United States, dead stock that were rendered and allowed into the animal feed chain would pose a risk of spreading the disease. In January 2001, the Food and Agriculture Organization of the United Nations issued a press release urging countries to take steps to reduce BSE risks; one of the recommended practices was correct disposal of dead stock. Diseases other than BSE are also an issue in the disposal of dead stock.

The BSE agent is remarkably hardy and resistant to destruction by standard cooking practices, sterilization procedures, and rendering processes. Generally, the rendering processes used in the United States will reduce the infectivity of a TSE agent in the rendered material by a factor of 1 to 3 logs. 2 The continuous rendering processes most widely used in the United States reduce infectivity by 2 logs or less; batch processing, used for less than 5 percent of rendered animals, can reduce infectivity by 3 logs. Since some BSE agent survives rendering, if BSE were to be present in a rendered product that is used in cattle feed (in deliberate or accidental violation of the feed ban imposed by the U.S. Food and Drug Administration (FDA)) it could lead to the amplification and spread of BSE among cattle consuming that feed. There is also a possibility that animal feed containing a TSE agent from the rendered protein of one species ( e.g. , scrapie in sheep) could cause development of disease in animals of another species consuming that feed ( e.g. , cause BSE in cattle). This is, in fact, the leading theory for how BSE originated in the United Kingdom.

Given this situation, the Animal and Plant Health Inspection Service (APHIS) wants to take steps to limit the potential pathways through which BSE could spread in U.S. animal populations, in case it is introduced despite efforts to keep it out of the United States.

Data from APHIS animal disease surveillance programs can be used to detect occurrences of disease, provide information for better policy decisions, and better understand the diseases. Most surveillance programs are based on data from live-animal tests; however, since such tests are generally unavailable for TSE's, in this area APHIS generally relies on observation of animals exhibiting signs of TSE's and tissue samples from dead animals. Since 1990, animals targeted for BSE surveillance by APHIS include cattle exhibiting signs of neurological disease in the field ( i.e. , prior to being brought to slaughter), cattle condemned at slaughter for neurologic reasons, rabies-negative cattle submitted to public health laboratories, 3 neurologic cases submitted to veterinary diagnostic laboratories and teaching hospitals, nonambulatory cattle (“downer cattle”) over 24 months of age at slaughter, and adult cattle dying from unknown causes on farms. The primary reason we target downer animals is that surveillance data from European countries in which BSE has been detected indicate that downer cattle have a greater incidence of BSE. 4 If BSE enters the United States, downer cattle testing programs are likely to first reveal it.

APHIS' current approach to BSE surveillance takes into account regional differences in the movement of animals, i.e. , surveillance is scaled to take into account where most cattle are raised and where they are slaughtered. On this basis the United States is divided into eight regions  5 for BSE surveillance. For years, APHIS has calculated regional surveillance goals for BSE to exceed international standards recommended by the Office International des Epizooties, the world organization for animal health. APHIS continues to increase postmortem testing for BSE, with more than 19,990 cattle samples tested in fiscal year 2002'up from 5,200 during fiscal year 2001. Overall, our surveillance program targets the segment of the cattle population where BSE would most likely be found if it were to occur, i.e. , downer animals and dead stock.

By their nature, downer animals and dead stock include many animals dead or dying from communicable diseases. They therefore represent a significant pathway for spread of disease if they are not handled or disposed of with appropriate safeguards. Over time, USDA and industry have developed methods to mitigate, if imperfectly, the risks presented by dead stock and downer animals affected by the older, better-known animal diseases.

With regard to limiting the potential pathways through which BSE could spread in U.S. animal populations if it were introduced, we believe that dead stock and downer animals represent the most significant potential pathway that has not been addressed in previous efforts to reduce BSE risks. The remainder of this advance notice of proposed rulemaking discusses why we think this is so and identifies topic areas where we are seeking more information in order to develop rulemaking on the subject of dead stock.

In April 1998, in order to better characterize the potential for BSE to be introduced and spread in the United States, and the potential threat to human health should this happen, USDA commissioned the Harvard Center for Risk Analysis to conduct a risk analysis (referred to below as the Harvard study). The Harvard study was completed and released on November 30, 2001. 6 The summary of the Harvard study stated its findings that the United States is highly resistant to any introduction of BSE or a similar disease. It also found that BSE is extremely unlikely to become established in the United States, and if introduced, it is likely to be quickly eliminated following its introduction.

The Harvard study investigated potential pathways by which BSE or other TSE's could enter U.S. cattle populations, using a quantitative simulation model to characterize how the introduction of BSE would spread over time, and the extent to which it could result in human exposure to contaminated food products. The study's model quantified some aspects of BSE's potential progress if introduced into the United States— e.g. , the number of animals that would be infected over time, and the resulting quantity of the BSE agent in food that would potentially be available for human consumption—but it did not quantify the probability that BSE will be introduced, nor did it estimate how many people would contract vCJD if BSE were introduced. The study omitted quantitative treatment of both of these issues because the available information is inadequate.

The Harvard study has helped APHIS identify those risk management control options that most influence the introduction and spread of disease, and to identify those sources of uncertainty that have the greatest impact on our programs to control BSE risks. This information can be used to help identify the most important control measures and to prioritize data collection and research efforts.

The Harvard study finds that the United States is highly resistant to the introduction of BSE. In addition, should BSE occur in this country, measures taken by government and industry make the United States robust against the spread of BSE to animals or humans.

The report identified three pathways or practices that could contribute most either to increased human exposure to the BSE agent or to the spread of BSE if it should be introduced into the United States. The three pathways are:

• Noncompliance with the FDA feed ban, including misfeeding on the farm and the mislabeling of prohibited feed and feed products;

• Inclusion of high risk material, such as brain and spinal cord, in edible products;

• Rendering of animals that die on the farm and use (through illegal diversion or cross-contamination) of the rendered product in ruminant feed.

FDA and FSIS are taking action to address the first two pathways. FDA is enhancing its enforcement of the feed ban and is evaluating whether further rulemaking is needed. FSIS published a notice in the Federal Register on January 17, 2002 (67 FR 2399, Docket No. 01-027N) announcing the availability of a BSE Current Thinking Paper that discusses measures that it is considering implementing to minimize human exposure to bovine materials that could potentially contain the BSE agent. Measures under consideration by FSIS include prohibiting certain high risk materials, such as brain and spinal cord, from specified cattle for use as human food and prohibiting the incorporation of CNS tissue in boneless beef products, including meat from advance meat recovery (AMR) systems. Commenters on this advance notice of proposed rulemaking may wish to explore whether there are cross-cutting issues between safe disposal of these specified risk materials and safe disposal options for downer and on-farm dead animals.

Because APHIS has primary authority  7 for animal disease risks posed by both live and dead animals on the farm, including matters where carcass disposal may pose animal health risks, APHIS is publishing this advance notice of proposed rulemaking to open discussion concerning the third pathway, rendered material from animals that die on the farm and its possible inclusion in ruminant feed. We are publishing this notice to fulfill the Secretary's statement, upon release of the Harvard study, that “USDA will publish an advance notice of proposed rulemaking to consider disposal options for dead and downer animals, because such cattle are considered an important potential pathway for the spread of BSE in the animal chain.”

The Harvard study considers dead stock to be an especially significant potential pathway for BSE. The base case for the Harvard study's model examined what would happen if 10 animals infected with BSE were imported into the United States, assuming current Government regulations and controls are in place. In this scenario, it could be likely that one or more of these animals will succumb to the disease on the farm, or become sick enough to be killed rather than sent to slaughter. The worst possible outcome at this point in the scenario would be for an animal with BSE to be rendered, and for the rendered product to be mixed into ruminant feed (in violation of the FDA feed ban). Rendering an animal that has reached the clinical stage of BSE introduces the maximum amount of infectivity into rendering and potentially into feed. This could result in many more cattle contracting BSE through consuming that contaminated feed, or consuming feed that was cross-contaminated during production or storage, if the feed ban was violated.

The Harvard study's model estimates that keeping this from occurring, by prohibiting the rendering of animals that die on the farm or by ensuring that no rendered product from such animals is ever mixed with ruminant feed, would greatly reduce the potential for contamination in the animal feed chain and reduce the average predicted new cases of BSE following introduction of 10 infected cattle from 2.9 new cases to 0.68 new cases. The Harvard study found that safely disposing of on-farm dead livestock is predicted to greatly reduce BSE spread due to the high levels of BSE agent expected in animals that die from BSE on the farm. It is important to keep such animals from directly entering animal feed chains ( e.g. , through using rendered products derived from them in feed), and it is important to dispose of their carcasses in ways that keep other livestock and wildlife from contacting them.

Note that the Harvard study by design considered risk factors for BSE one at a time, not in combination. In other words, the prediction that keeping rendered dead stock out of ruminant feed would lower new cases of BSE following introduction of 10 infected cattle from 2.9 to 0.68 new cases does not take into account the marginal and cumulative effects of other BSE risk reduction activities. Other actions by Federal agencies and industry— e.g. , more effective enforcement of the feed ban and import restrictions applied to countries with BSE—will also be acting to mitigate BSE risks, to a cumulative degree not calculated by the Harvard study.

The Harvard study suggests prohibiting rendering of dead stock as one way to mitigate this risk, but it does not go on to evaluate the associated negative effects such a policy could have on preventing the spread of BSE and other diseases. Eliminating rendering as a disposal option for dead stock would mean owners would have to find other disposal options, many of which pose their own risks of spreading disease. These risks are discussed later in this document.

Downer cattle—animals that cannot rise from a recumbent position due to injury or illness—may be sent for slaughter at plants inspected by FSIS. 8 Sometimes the FSIS antemortem inspection reveals that the downer animal clearly is affected by a particular disease, but more often diseases are revealed only when characteristic lesions ( e.g. , of tuberculosis, swine erysipelas, or infectious anemia) are seen within the carcass after slaughter. However, TSE diseases do not cause grossly observable lesions, so FSIS inspectors instead observe the live downer animals for signs of a CNS disorder. FSIS has the lead role in ensuring that downer cattle presented for slaughter that exhibit clinical signs of BSE are diverted from slaughter. Cattle with clinical signs of a CNS disorder and cattle that died otherwise than by slaughter are already prohibited from use as human food. All downer cattle presented for slaughter are automatically suspected of being affected with a disease or condition that may require condemnation of the animal, in whole or in part, and are identified as “U.S. Suspects.” Such cattle must be examined by an FSIS veterinarian, and a record of the veterinarian's clinical findings must accompany the carcass to postmortem inspection if the animal is not condemned. Post mortem inspection on the carcasses of all cattle classified as “US Suspects,” including downer cattle, must be performed by a veterinarian rather than a food inspector, and the results of this inspection must be recorded as well.

Downer cattle presented for slaughter that pass antemortem inspection may be slaughtered and, if passed on postmortem inspection, the meat and meat products from such cattle can be used for human food. However, surveillance for BSE in Europe has shown that downer cattle infected with BSE often cannot be found by looking for the typical clinical signs associated with BSE, because the signs of BSE often cannot be differentiated from the signs of the many other diseases and conditions affecting downer cattle. Thus, if BSE were present in the United States, downer cattle infected with BSE could potentially be offered for slaughter and, if the clinical signs of the disease were not detected, pass antemortem inspection. These cattle could then be slaughtered for human or animal food. Although the muscle tissue from BSE-infected downer cattle has not been found to contain the BSE agent, other tissues could contain the BSE agent and the muscle tissue could be cross-contaminated during slaughter and processing.

As noted above, FSIS is considering placing restrictions on specified risk materials from certain categories of slaughtered cattle, including downer cattle, to address this scenario. We are seeking suggestions on actions APHIS could take to prevent downer animals potentially affected by BSE (should it be introduced) from spreading the disease; i.e. , actions that could be taken on the farm or at other stages prior to slaughter. We are looking for actions we could take now, rather than actions to be taken if and when BSE is ever introduced. Commenters may wish to describe how risk factors should be considered when sending downer cattle to slaughter, e.g. , age, physical condition, source and type of cattle, etc.

Commenters should bear in mind that we currently rely on collecting samples from downer animals, at slaughter and other locations, as a key part of BSE surveillance. We would like commenters to address how APHIS could continue to obtain samples for testing from downer cattle, since such cattle are an important part of our surveillance program for BSE.

In addition to comments regarding downer animals, we seek comments regarding dead stock. Disposal methods for dead stock is the most important issue addressed by this advance notice of proposed rulemaking. Dead stock are a potential source of infection for many animal diseases, including BSE. Past experience with disease outbreaks in livestock has demonstrated the need for carcass disposal methods that are cost-effective, safe, fast, complete, and environmentally acceptable.

If an animal dies on the farm, or becomes so sick or injured that it must be destroyed on the farm, it immediately loses most or all of its economic value. It is prohibited from being sold for human food. It might be sold to be rendered, or to be processed as pet food, but in most cases the fee for picking up and transporting a dead animal exceeds the salvage value ( i.e. , the payment for its value as rendered product or pet food). Thus, producers have a strong business reason for finding ways to dispose of dead stock as cheaply as possible.

This incentive to find cheap means of disposal for dead stock is directly in conflict with certain public interest needs. We will note, but not directly address in this advance notice of proposed rulemaking, that dead stock disposal can have significant impacts on environmental quality and on the capacity of existing solid waste management disposal systems (landfills, incinerators, etc.). We are also aware that there are varying costs associated with different methods of dead stock disposal, but we have not analyzed these costs because we have insufficient data, and we request commenters to submit data on these costs. The focus of this advance notice of proposed rulemaking is on how dead stock disposal relates to the public interest in controlling animal disease risks.

Many animal health programs depend on collecting good data about how livestock become sick and die. This data collection would obviously become even more important if BSE were introduced into the United States. When dead stock is treated as an economic burden and disposed of as cheaply as possible, this data collection suffers. The cheapest methods for dead stock disposal include ignoring the carcass (possible in some cattle range situations) or burying it on-site. Both of these means are legal in some States, and in other States that have specific disposal requirements, the requirements are often loosely enforced. Some producers have disposed of dead stock creatively and illegally by abandoning it on public or private land in ravines, rivers, culverts, dumpsters, and other locations. In all of these situations, information about the animal and its possible cause of death is unlikely to make its way to State or Federal animal health authorities.

In addition to making it harder to collect animal health data, inappropriate disposal of dead stock increases the possibility that humans, livestock, or wildlife will come into contact with pathogens associated with the dead stock. Human and animal health concerns, along with environmental quality concerns, are the major reasons existing State laws on carcass disposal were enacted.

While State laws regarding dead stock disposal vary widely, most have the following features in common. They establish a time limit within which disposal must take place—usually 24 or 48 hours after death. They limit disposal methods to those authorized by law, and sometimes rank the methods in the order the State prefers they be used. Typically, this is the preferred order:

Rendering at a licensed and approved rendering facility. This method maximizes the government's ability to monitor and regulate dead stock disposal, by working with relatively few companies that pick up and render the dead stock. However, as discussed below, dead stock pickup by renderers has become less available in many areas and has become more expensive. (In the past renderers would pick up dead cattle for free, or pay the producer for the dead animals; now there is typically a fee of $20 or more for this service, when it is available at all.) There are also TSE risk issues associated with rendering, and with the renderers' ability to segregate higher-risk materials and divert them to products that are not for use in humans or animals.

However, the existence of markets for use of rendered products for industrial purposes that present no risk of contact with animal or human products does provide a possible avenue for disposal of rendered products from animals that may be infected with a TSE. Such products may be diverted into production of paints, adhesives, or other products. Rendered fat products and meat and bone meal (MBM) may also be used as either a primary fuel or a fuel supplement for heat and power production (especially co-combustion in coal-fired plants), or as an ingredient in cement (MBM is currently used in cement production in Belgium, France, Germany, Japan, and possibly other countries.) Naturally, diversion of large quantities of rendered products into new uses raises significant economic issues, and many diversion uses may not currently make sense in purely economic terms, as other nations that practice such diversion have found. 9 For example, MBM, when burned, generates only about half the energy obtained from burning coal, yet MBM sells for about 12 times the price of coal.

Although many industrial products are produced mainly from rendered fats and oils, rather than rendered protein, some products utilize rendered protein. In other cases, a percentage of rendered protein can be included as a harmless additive with the rendered fat or oil product. If such diversion into non-food uses is effectively accomplished, it could provide a safe means of dead stock disposal for animals that might spread TSE's if disposed of in other ways.

Composting of dead stock in a properly designed and sized dead animal composter. Composting of dead stock allows the end product to be recycled back to the land as a fertilizer. Poultry and swine industries use this technology effectively. Composting is used to dispose of some cattle and other large species, but large-scale cost-effective approaches are still under development. Composting requires careful planning and monitoring to be successful. Issues include moisture and temperature control and proper admixture of plant matter (often straw or old feedstuffs) to raise the carbon-nitrogen level to a point where proper composting can occur. Composting also takes time; decomposition of a mature cattle carcass takes about 6 to 8 months. The remaining bony matter is soft and easily broken for land application or other final disposal. One successful composting approach uses a three-bin system, which is best located downwind from nearby residences and away from waterways and ponds. Permanent composting facilities have significant start-up costs of $5,000 or more. Composting operations must also take steps to control the potential risk of disease spread by wild and feral animals.

Composting is problematic with regard to BSE infectivity; it may be effective, or it may reduce but not destroy infectivity. Composting does not usually raise material temperatures over 160 °F, a temperature the BSE agent is known to survive for long periods. Further research is needed to characterize the effectiveness of composting with regard to BSE. The United Kingdom's Department for Environment, Food, and Rural Affairs is currently preparing a risk assessment, to be completed in the near future, that may help resolve this question.

Dead stock disposal in an approved sanitary landfill. Most municipal landfills are permitted to accept dead animals but may limit their numbers. To minimize pathogen contamination of groundwater, modern sanitary landfills are designed and operated to prevent leaching into groundwater or surface waters. Drawbacks include limited capacity and expense—many landfills charge over $100 a head to dispose of cattle. However, properly operated landfills will keep infectious material away from livestock.

Incinerating dead stock. Incineration is very effective but is costly and energy intensive, and it may pollute the environment if the incinerator is not operated and maintained properly. Incinerators generally must be licensed by a State government. Open burning of dead animals is not allowed in most States without a permit.

A subset of incineration technology that is gaining popularity is on-site disposal using either complete mobile incinerators or air curtain trench burners. There are cost and air quality issues associated with both of these technologies, and they are usually considered most suitable for short-term disposal projects (such as depopulating a herd) rather than long-term use. However, air curtain trench burners in particular have been gaining use in recent years for on-site disposal of diseased animals. They have been used in Great Britain for disposal of animals during the recent foot-and-mouth disease outbreak, and they have been used in Montana and Colorado to dispose of elk implicated in CWD outbreaks. When properly used, this technology produces ash that presents no disease risk when disposed of properly.

Air curtain trench burners are essentially giant blowers that direct powerful airstreams onto trenches in which carcasses are burned on firewood fuel. This superheats the fire to temperatures steadily above 1,000 °C., resulting in total carcass incineration in approximately 20 minutes. (Cadaver incineration times will vary with factors such as fat content, moisture content, firebox or pit temperature, type of wood waste used, etc.) Site selection is important for air curtain trench burners, and soil type, underground water table, and prevailing wind direction should be carefully considered. High water table areas and sandy soil types should be avoided. Stable vertical trench walls with minimum entry of underground water into the burn area are needed for steady high incineration temperatures.

Burial on premises. Many States specify requirements for owners who bury their dead stock on their own premises. Typically, State laws limit the number of animals that may be buried, require adequate topsoil covering the animals (usually 2 or 3 feet), and attempt to restrict burials in areas where runoff passing over the animals would contaminate groundwater or aquifers.

Tissue digestion. Because this is a new and relatively expensive technology, most State laws do not yet recognize or recommend it as a means of dead stock disposal. Tissue digesters are essentially large “pressure cooker” devices that use boiling sodium hydroxide solutions to degrade proteins and fats and result in a sterile liquid suitable for municipal sewage systems, and a sterile, crumbling calcium phosphate residue from the bones and teeth of the animals. Research has shown this method to very effectively reduce levels of TSE infectivity. A typical digester costs several hundred thousand dollars, could process several cattle cadavers simultaneously, and takes several hours to complete a processing cycle. Currently, most digesters in the United States are located at major veterinary research centers or veterinary teaching hospitals.

APHIS is seeking comments on which approaches for safe disposal of dead stock should be encouraged or required. The primary issue we would like commenters to address is how to develop a combination of regulatory requirements, incentives, and cooperative relationships with production and disposal industries that will result in sustainable procedures for the safe disposal of dead stock.

Commenters are also asked to consider the costs associated with any such solutions, and any trade-offs that might result by requiring particularly stringent disposal methods to protect against BSE, when easier disposal methods might be adequate protection against other animal diseases. Such comments could also address whether moving to a disposal system designed with BSE in mind might reduce the availability of other types of disposal services which might be needed in situations where it is necessary to dispose of large quantities of carcasses that do not present a BSE risk ( e.g., an FMD or pseudorabies outbreak).

Commenters should bear in mind that our current BSE surveillance includes collecting samples from cattle that die on-farm. We would like commenters to address how APHIS could continue to obtain and increase our samples for testing from dead stock.

When dead stock are disposed of unsafely, it is because safe disposal is unavailable, expensive, or inconvenient. One approach to dead stock disposal could be to require certain methods of disposal ( e.g. , incineration, landfill burial, digestion, or composting, at licensed facilities) under Federal or State laws. But requiring certain disposal methods does not automatically make them available, inexpensive, or convenient. Also, some disposal methods have been very useful for disposing of small numbers of animal carcasses, but their use for the disposal of large numbers of carcasses may result in an increased disease risk to other livestock producers in an area. The short term savings from these methods can easily result in an increased cost later on, which could have been reduced or eliminated if the right techniques had been used initially.

As discussed above, different disposal methods result in different levels and types of risk that cattle could contract BSE from a disposed animal. There are very effective and usually expensive disposal methods that reliably inactivate any infectious agent, including BSE, in a destroyed cadaver. These methods include incineration (on-farm or at a remote incinerator) and tissue digestion. Other disposal methods are known to be partially effective in deactivating the BSE agent, thus reducing but not eliminating risk. These methods include rendering (known to reduce BSE infectivity, with the extent of reduction related to the process used) and composting (apparently reduces infectivity, but to what degree is not well characterized). In both of these methods, an important element may be diversion of the end-product to uses that will not bring it into contact with animal feed. Other methods such as open burning, burial, and landfill disposal have great variations in their effectiveness due to the great variations in how they are implemented at different times and places.

An important aspect of disposal methods is that they can achieve the desired end either by deactivating the BSE agent or by isolating it. The BSE agent in dead stock need not be inactivated if it is reliably kept from contact with animals that it might infect. Another aspect to consider regarding disposal methods is the extent to which they create further disposal problems downstream. Incineration reduces animals to a small volume of ash, but the ash must be spread somewhere. Tissue digesters produce innocuous liquid waste and some calcium phosphate. Burial and landfill disposal do not immediately reduce the volume of the animal and create enduring concerns about scavengers and leaching into the water table. Rendering greatly reduces the volume of the processed product by removing water content and places the end-product in containers, but it has labeling and use concerns because the product may still be infectious.

We are seeking comments to help us balance these considerations in developing good dead stock disposal practices. We have better information on the issues associated with rendering, compared to other disposal methods, because rendering businesses are few in number and uniform in operation compared to the great variety of businesses operating landfills, incinerators, and composting services. While the following discussion directly addresses some issues associated with rendering, we hope commenters will help us develop similar data regarding other disposal methods.

Here are some of the questions regarding whether rendering is a useful disposal method for dead stock that could harbor TSE's: Since rendering does not completely destroy TSE agents, can we be sure rendered products from possibly-infected dead stock would all be used in ways that would not spread TSE's? Given the capacity and distribution of rendering plants, is rendering of dead stock a viable option nationwide, or are there areas where it is practically unavailable? If rendering is a desirable disposal method, what sorts of requirements, partnerships, or incentives could increase its use?

There are approximately 100 million cattle in the United States, including beef, dairy, and other categories. Over a million post-weaning calves and adult cattle die or are killed each year before being sent to slaughter. The National Renderers Association estimates that about 44 percent of these carcasses were sent for rendering last year but notes that this percentage is declining, as the profitability of rendering dead stock declines. North American renderers process more than 50 billion pounds of animal and poultry material each year, including dead stock, offal, and waste from slaughter and packing plants, and animal waste from food processing, supermarket, and restaurant industries. Rendering reduces the volume of this material by 64 percent, mostly by reducing the water content, which makes the resultant products much easier to package and transport—whether for sale, or for disposal. The value of rendered products in the United States in 1998 was approximately $3.2 billion, and consisted of 9 billion pounds of protein concentrate (largely meat and bone meal, or MBM) and 9 billion pounds of animal fat such as tallow.

Historically, the bulk of rendered products has been used by the feed industry, which adds MBM and high-energy fats to feed mixes for cattle, swine, poultry, and pets. MBM is an attractive feed supplement because it is high in protein, calcium, and phosphorus. The chief supplements that compete with MBM are soybean meal and corn gluten meal. Neither of these plant-based supplements has significant levels of calcium or phosphorus, although corn gluten meal has a higher crude protein content than MBM (60 percent compared to 50 percent). Wholesale prices for MBM and soybean meal have traditionally tracked each other closely, but with MBM commanding a slight premium presumably due to its better mineral content. From January 1988 through February 1996, ruminant MBM sold for an average of $16.05 per ton above the price of soybean meal, but since March 1996, the average price of ruminant MBM has been $1.20 below the price of soybean meal. This price reduction probably results largely from the FDA feed ban, although greater production of soy and corn may also be a factor.

Steady decreases in the price brought by MBM, coupled with increases in transportation and processing costs, act to reduce renderers' traditional role as the primary means for producers to dispose of dead stock. In the past, renderers paid farmers for their dead stock, but recovered that cost by selling the byproducts at a profit. Farmers got rid of their dead animals without cost or difficulty. Now, however, the rendered product derived from a dead stock cow is worth perhaps $20; to cover collection and processing costs and profit, renderers charge the owner a pickup fee of from $15 to $35 for each animal. This causes producers to seek cheaper means of disposal. It has also caused some renderers to stop offering dead stock pickup when they do not find it cost effective; renderer pickup is very difficult to arrange in Ohio and Michigan, among other places.

We have not yet been able to obtain accurate national figures to indicate the fall-off in renderer pickup of dead stock, but we do have illustrative data from one State, California. The California Department of Food and Agriculture recently required renderers to submit annual reports on how much of their raw material came from dead stock. These reports show that between fiscal years 1999-2000 and 2000-2001, the number of dead stock (poultry excluded) that was collected by renderers declined by 20 percent—from 686,434 head to 553,974 head.

To help commenters focus their comments on the role of rendering in dead stock disposal, we are providing certain basic information about how rendering industries are regulated, their business situation, and certain rendering industry initiatives relevant to dead stock disposal. Persons interested in obtaining more information on rendering industries may wish to visit the National Renderers Association website at http://www.renderers.org .

Renderers generally must be licensed by each State in which they do business. Licensing and operating requirements for renderers vary from State to State. With regard to Federal regulations, renderers, like any business, must comply with numerous regulations regarding employment, worker safety, environmental quality, and so on. Renderers of livestock species subject to the FMIA are required to register their businesses with the FSIS, in accordance with 21 U.S.C. 643 and 9 CFR 320.5. (Renderers who do business solely at official slaughter, packing, or other establishments inspected by FSIS are exempt from this registration requirement.) Renderers are also subject to FDA regulations at 21 CFR 589.2000—the “feed ban” regulations—that impose requirements on renderers that produce products for use in animal feed. The FDA regulations include requirements for labeling, recordkeeping, separation of raw materials based on species type, and related matters to ensure mammalian protein (with certain exceptions) does not go into ruminant feed.

The rendering industry and individual renderers have taken several actions affecting dead stock disposal and TSE issues. Starting in 1991, most renderers elected not to pick up dead sheep, due to the possible scrapie/BSE link, as a means of keeping sheep dead stock protein out of ruminant feed. That industry-elected action became irrelevant in 1997 with the FDA ruminant feed ban, but dead sheep pickup is still not happening because: (1) Many contracts from product end-users specify that no adult ovine protein is allowed in the product, and (2) the same economic conditions that make it marginal for renderers to pick up any dead stock (cattle, swine, etc.) make it a low priority for renderers to resume picking up sheep. However, renderers have stated that they could reinstitute sheep pickup if it becomes economically viable to do so.

Rendering industry representatives cooperated with FDA in developing the feed ban regulations and have monitored compliance with the ban within the rendering industry. Beginning in April 2001, the Animal Protein Producers Industry (the biosecurity arm of the rendering industry) started an inspection audit of all animal protein producers to ascertain compliance with the FDA feed ban. This was a third-party audit performed by an independent auditing firm, Cook & Thurber of Madison, WI.

Currently, a major concern of renderers is identifying markets for MBM and other rendered protein products that contain ruminant protein. Year 2000 production of MBM was nearly 6.7 billion pounds, of which 5 billion pounds, or 75 percent, contained ruminant protein. All of the ruminant protein MBM production has been diverted from use in ruminant feed, with most going to swine, poultry, and pet feed. Export markets for MBM have also increased more than four-fold in the past 10 years, to 979 million pounds in the year 2000. However, oversupply of MBM compared to the demand for its allowed uses continues to drive MBM prices down. The industry believes it would be physically possible for independent rendering plants to install separate processing lines that would allow them to reduce the amount of MBM containing ruminant protein, and increase the amount of ruminant-free MBM, by roughly 1.5 billion pounds a year. However, the capital expenditure and operating costs to do this would mean that renderers would lose money with each year additional separate processing lines are operated, given prevailing prices for MBM.

Renderers continue to seek new, non-feed markets for their rendered product. However, the market opportunities seem to be much greater for rendered fat and oil product lines than for rendered protein product lines. For example, there is a growing market for biodiesel fuels that can be produced from animal (as well as plant) fats and oils. The USDA's Foreign Agricultural Service has reported that, to address MBM disposal in Europe, “New uses are being pursued, such as burning MBM in power plants to produce electricity or burning it in kilns to produce construction materials such as cement.” 10

We are interested in receiving comments that discuss whether rendering can be an effective means for safely disposing of dead stock in a manner that minimizes risks of spreading BSE and other animal diseases. We hope that commenters will address the full range of technical, economic, regional, environmental, and practical business issues associated with this question. At this time, APHIS believes that the key issues associated with using rendering as a safe means of disposal for dead stock are:

• Should dead stock ruminants be segregated at rendering from material being rendered for animal feed use?

• If so, can the rendering industry successfully implement this degree of raw material and product segregation and labeling? What would the cost implications be?

• If the cost of rendering dead stock exceeds the value of the rendered product, who should pay the excess cost? The producer, State or local government, Federal Government, or someone else?

• What could be done through cooperation between industry and government to decrease the cost of picking up dead stock for rendering ( e.g. , harmonization of licensing and regulations, creation of regional pickup centers, etc.)?

We are also interested in receiving comments on ways to ensure compliance with any dead stock disposal requirements that may eventually be established through rulemaking. Vigorous enforcement, with civil and criminal penalties for violators, is one means to encourage compliance. However, there are obvious limits to APHIS' ability to directly monitor and enforce dead stock disposal requirements. Our inspectors cannot directly observe, or even be aware of, all the thousands of animal disposal incidents that occur each day. In addition to enforcement and penalties, there may be a role for incentives to help achieve compliance in dead stock disposal practices.

One possible incentive may be a program to help owners pay for the cost of dead stock disposal under certain circumstances. In a January 2002 report  11 about strengthening regulatory efforts to prevent BSE in the United States, the Government Accounting Office (GAO) noted that USDA sometimes subsidizes animal disposal costs in order to obtain sufficient tissue samples for its BSE surveillance program. The report notes that “In 1998 USDA implemented a cooperative program with the rendering industry to ensure that carcasses of animals condemned at slaughter for signs of neurological disease are held until test results are completed. Under this program, USDA may share the expenses to store or dispose of carcasses during the testing period.”

Similar programs haves used State, Federal, and industry subsidies to obtain surveillance samples and to encourage responsible dead stock disposal. For example, when cattle with neurological signs of illness are identified at ante mortem inspection in several States, the costs of sample collection and carcass disposal are shared between State government, Federal agencies, and renderers. We are seeking more data on the rationale and operations of these and similar programs, especially including any studies of their overall costs and benefits. We hope to assemble enough data to evaluate the costs and benefits associated with possible dead stock disposal programs that could be designed to maximize benefits to the general public, cattle producers, disposal industries, and others. One possible design for a voucher-subsidized “multi-benefit” dead stock disposal program is discussed below.

Consider a program where the Federal or State Government issues qualifying producers a certain number of “stock disposal vouchers” each year. If one of the producer's animals dies on-farm, or becomes so ill or injured the producer decides to euthanize it, the producer could use a voucher to cover some or all of the costs of disposing of the animal. The government that issued the vouchers may make arrangements with incinerator operators or other disposal businesses that will honor the vouchers. Dead stock transporters may also be involved in the voucher system. In all cases, businesses may benefit from increased formal disposal of dead stock that, without the voucher system, might be buried on-farm. Solid waste disposal systems may benefit as fewer animals are taken to limited landfill spaces and more animals are incinerated. Public health and environmental values may benefit from fewer casual or illegal animal disposals that pollute groundwater and spread disease.

Such a voucher system could also benefit USDA disease surveillance programs if it includes a requirement to allow USDA to examine and collect samples from the animals for which vouchers are used. USDA staff or accredited veterinarians could be used to examine animals prior to euthanasia and to collect samples from dead animals prior to their disposal.

As an alternative to a predefined voucher system for dead stock disposal, Federal or State agencies could concentrate on identifying, and paying disposal costs for, downer animals that would be euthanized on the farm. This approach might offer a bounty or reward payment for owners who report certain types of animals in their herds— e.g. , adult cattle showing certain signs indicative of CNS conditions. The Federal or State agency could then examine the animal, euthanize it, take samples if the examination showed a reason to do so, and arrange to dispose of the cadaver. The owner would receive a small bounty payment and would avoid any disposal costs he might otherwise have faced if he euthanized the animal without government assistance.

The above are just two examples of a design for a “multi-benefit” dead stock disposal program; we encourage commenters to suggest others. If your comment suggests a system for dead stock disposal, please include your thoughts on what businesses, levels of government, or other parties should be involved. We are particularly interested in hearing comments on whether such programs should be organized on the county or State level, a regional level, or a national level, and what role the Federal Government should play.

While this notice primarily addresses disposal of cattle, there are obviously related issues for other species. In particular, commenters may wish to address disposal of sheep and goats with regard to scrapie, disposal of captive elk and deer with regard to CWD, and disposal of all types of livestock with regard to communicable non-TSE diseases. We hope commenters will help us to understand what dead stock disposal issues are common to all of these species, what issues are of particular importance to different types of producers, and the possible costs to involved parties (including producers and taxpayers) of addressing these issues.

• What is the preferred approach and associated costs to affected parties for controlling risks associated with disposal of nonambulatory and dead livestock?

• Are there any cross-cutting issues between safe disposal of specified risk materials such as brain and spinal cord and safe disposal options for downer and on-farm dead animals?

• Are there practical ways to cull higher-risk downer cattle, e.g. cattle that may have a non-obvious CNS condition, before they are sent to slaughter? How should risk factors such as age, physical condition, and the source and type of cattle be considered when sending downer cattle to slaughter? What would such culling cost affected parties?

• Since APHIS currently relies on collecting samples from downer animals, at slaughter and other locations, as a key part of BSE surveillance, how could we continue to obtain samples for testing from downer cattle if they are not sent to slaughter?

• What carcass disposal methods are safe, fast, complete, and environmentally acceptable? What combination of regulatory requirements, incentives, and cooperative relationships with production and disposal industries would result in sustainable procedures for the safe disposal of dead stock, and what are the costs associated with such solutions?

• Can rendering be an effective means for safely disposing of dead stock in a manner that minimizes risks of spreading BSE and other animal diseases? Under what conditions? What are the associated technical, economic, regional, environmental, and practical business issues?

• What are equitable ways to share the costs of dead stock disposal, to concentrate and increase economic opportunities and social benefits that can be associated with responsible dead stock disposal?

• What businesses, levels of government, or other parties should be involved in dead stock disposal? Should such programs be organized on the county or State level, a regional level, or a national level, and what role should the Federal Government play?

• Is there a need to particularly address disposal of sheep and goats with regard to scrapie, and disposal of captive elk and deer with regard to CWD? What dead stock disposal issues are common to all species, and what issues are of particular importance to different types of producers?

The regulations in 9 CFR part 94 (referred to below as the regulations) prohibit or restrict the importation of specified animals and animal products into the United States to prevent the introduction into the U.S. livestock population of certain contagious animal diseases, including swine vesicular disease (SVD). Section 94.12 of the regulations provides requirements for the importation into the United States of pork and pork products from regions where SVD is known to exist. Section 94.17 of the regulations provides requirements for the importation into the United States for dry-cured pork products from regions where SVD, hog cholera (also known as classical swine fever), foot-and-mouth disease (FMD), rinderpest, and African swine fever exist.

SVD is a highly contagious disease caused by an enterovirus that shows extraordinary resistance to both environmental factors and common disinfectants. SVD rarely results in mortality in infected swine and does not cause severe production losses. Still, the disease can have a major economic impact because eradication is costly and because SVD-free regions often prohibit imports of swine, pork, and pork products from affected regions.

Italy is considered to be affected with SVD and thus is not among those regions designated in § 94.12 as free of the disease. Similarly, Italy is not included among the regions designated in §§ 94.9 and 94.10 as free of hog cholera. Therefore, cooked and dry-cured pork and pork products imported from Italy are subject to the requirements set forth in §§ 94.12 and 94.17.

The Italian Government has requested that facilities in Italy be allowed to export to the United States tortellini (pasta) that is filled with pork. In order to allow this product to enter the United States without increasing the risk of the introduction of SVD, we are proposing to amend § 94.12 to establish procedures that processing facilities in SVD-affected regions would have to follow to ensure that this particular product would be safe to import into the United States. While a specific request from Italy provided the impetus for this proposed rule, the requirements we are proposing would apply to pork-filled pasta products imported into the United States from any region affected by SVD.

Specifically, we are proposing to add a new paragraph (c) to § 94.12 that would delineate processing, recordkeeping, and certification requirements for pork-filled pasta products exported to the United States from SVD-affected regions. Paragraph (c)(1) would stipulate that pork-filled pasta products processed for export to the United States would have to contain only pork or pork products that are otherwise eligible for importation into the United States, i.e., that meet all requirements that apply to cooked pork products under § 94.12 (b)(1)(i), (ii), or (v) 1 or to dry-cured pork products under § 94.17.

The provisions of proposed paragraphs (c)(2), (c)(3), and (c)(4) are intended to prevent contamination via the commingling of ineligible pork or other meat products with pork or pork products eligible for use in pork-filled pasta products for export to the United States. Paragraph (c)(2) would stipulate that pork intended to be used for pork-filled pasta products for export to the United States must be stored in a separate room or facility from any meat or meat products not eligible for export to the United States. Paragraph (c)(3) would state that all equipment and machinery that will come in contact with the pork or other ingredients of pork-filled pasta products intended for export to the United States must be cleaned and disinfected before each use. Paragraph (c)(4) would state that processing lines working with pork-filled pasta products for export to the United States must process only pasta containing pork eligible for such exports and that when such lines are working with these pasta products, the remaining lines may work only on pasta products that do not contain meat.

Paragraph (c)(5) would set out cooking and other requirements for pork-filled pasta being exported to the United States to ensure that the product would be shelf stable without refrigeration. Specifically, we would require that during processing, the pork-filled pasta would have to be steam-heated to a minimum internal temperature of 90 °C, then dried, cooled, and packed to make the product shelf stable without refrigeration.

Paragraph (c)(6) would give the Animal and Plant Health Inspection Service the right to conduct periodic inspections of establishments that manufacture pork-filled pasta products for export to the United States in order to verify compliance by these establishments with the regulations in this section.

Paragraph (c)(7) would set out recordkeeping requirements for pork or pork products used in pork-filled pasta products being exported to the United States. A processing facility would have to maintain under lock and key, for a minimum of 2 years, an original record of each lot of pork or pork products used for meat-filled pasta products for U.S. export. Each record would have to include the date that the cooked or dry-cured pork product was received in the processing facility; information on the number of packages, the number of hams or cooked pork products per package, and the weight of each package; a lot number or other identification marks; the health certificate that accompanied the cooked or dry-cured pork product from the slaughter/processing facility to the meat-filled pasta product processing facility; and the date that the product started dry curing (if the product used is a dry-cured ham) or the date that the product was cooked (if the product used is a cooked pork product). These recordkeeping requirements would be consistent with those set out in § 94.17 for exports of dry-cured pork products to the United States.

Finally, paragraph (c)(8) would require that pork-filled pasta arriving in the United States be accompanied by a certificate issued by an official veterinarian of the National Government of the region in which the pasta product is processed stating that the product has been processed in accordance with the requirements discussed in the preceding paragraphs. This certificate would provide further assurance that the processing facilities are complying with our regulations.

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

This proposed rule would amend the regulations in § 94.12 that deal with the importation of pork and pork products from regions affected with SVD by establishing procedures for the safe importation of pork-filled pasta into the United States from Italy and other affected regions. These proposed procedures would allow the importation of this product into the United States while ensuring that the health of the U.S. swine population and the economic viability of the U.S. swine and pork and pork products industries would not be threatened by an incursion of SVD.

These industries play an important role in the U.S. economy. There was a total inventory of 58.698 million swine in the United States as of March 1, 2002. 2 Cash receipts from swine farming in 2001 were about $12.1 billion. 3 The industry marketed 26.7 billion pounds of pork in 2001. Additionally, the United States earned a substantial amount of money from exports of swine and swine products. The United States exported 1.075 billion pounds of pork, valued at $1.283 billion, in 2001. Also 64,912 live swine were exported, which were valued at about $12 million. The United States also imported 717 million pounds of pork in 2001, valued at $771 million, and imported 5,337,088 live swine, all from Canada, valued at $349 million. Domestically, other related agricultural and non-agricultural sectors are dependent on the swine and the swine-product industries for their economic activity. These activities provide employment and income to many households. Maintaining the stability of these industries depends in part on continued efforts to prevent any introduction of SVD into the United States.

The Regulatory Flexibility Act requires that agencies specifically consider the economic impact of their rules on small entities. The domestic entities most likely to be affected by allowing importation of pork-filled pasta products from Italy are durum wheat producers and pasta manufacturing companies.

In 1997, 6,887 farms, over 99 percent of which were considered small, 4 produced about 5.160 billion pounds of durum wheat. 5 In 2001 durum wheat production was estimated at about 5.013 billion pounds on 2.789 million harvested acres. 6 In 2001, the United States exported 3 billion pounds of durum wheat, valued at $215 million. The major destinations were Italy (39 percent), Tunisia (10 percent), Algeria (9 percent), and Mexico (7 percent). 7

As a new product, dry, shelf-stable, pork-filled tortellini is expected to have a small market. The impact, if any, on durum wheat producers of importation of this product into the United States is also likely to be small. Producers of durum wheat could benefit in the future from any expansion of product range that results from these imports.

There were 141 pasta manufacturing plants in the United States in 2000. Of these, five companies accounted for 55 percent of the sales. The total domestic capacity is estimated to be about 3.4 billion pounds of pasta. 8 Pasta producers are considered small businesses if they employ 500 workers or fewer. 9 Most U.S. pasta manufacturers can be considered small.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2002-SW-05-AD.” The postcard will be date stamped and returned to the commenter.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter Model AS350B3 helicopters. The DGAC advises that the absence of a resistor R8 on the ASU No. 2 boards can lead to a malfunction of the electric circuits supplying the “BATT. TEMP.” red warning light, the “ENGINE CHIP” amber caution light, and the rotor RPM signal output to the VEMD.

This proposal is prompted by an anomaly discovered by the manufacturer. The actions specified by this proposed AD are intended to prevent failure of the “BATT. TEMP.” warning light, which, if combined with a battery overheat, can result in a battery thermal runaway without the pilot's knowledge. An uncontrolled battery thermal runaway can result in an explosion that could cause loss of the control of the helicopter.

Eurocopter has issued Service Bulletin No. 77.00.07, dated March 27, 2000, which specifies checking to determine if the resistor R8 is installed on the PCB within 25 hours time-in-service (TIS) and, if a resistor R8 is not installed, replacing the PCB with one that has a resitor R8 installed within 50 hours TIS. The DGAC classified this service bulletin as mandatory and issued AD No. 2001-319-083(A), dated July 25, 2001, to ensure the continued airworthiness of these helicopters in France.

This helicopter model is manufactured in France and is type certificated for operation in the United States under the provisions of 14 CFR 21.29 and the applicable bilateral agreement. Pursuant to the applicable bilateral agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

This unsafe condition is likely to exist or develop on other helicopters of the same type design registered in the United States. Therefore, the proposed AD would require, within 15 hours time-in-service (TIS), inspecting the ASU No. 2 PCB on helicopters with serial numbers 3062 and earlier to determine if the resistor R8 is installed, and if it is not installed, replacing the PCB with an airworthy PCB with resistor R8 installed within 50 hours TIS.

The FAA estimates that 30 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per helicopter to accomplish the proposed actions, and that the average labor rate is $60 per work hour. Required parts would cost $1,200. The manufacturer states in its service bulletin that PCB's will be replaced free of charge. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $37,800, if a PCB is replaced in the entire fleet and there is no free replacement by the manufacturer.

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

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

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

The Bank Secrecy Act  1 authorizes the Secretary of the Treasury, inter alia, to issue regulations requiring financial institutions to keep records and file reports that are determined to have a high degree of usefulness in criminal, tax, and regulatory matters, or in the conduct of intelligence or counter-intelligence activities, to protect against international terrorism, and to implement counter-money laundering programs and compliance procedures. 2 Regulations implementing title II of the Bank Secrecy Act (codified at 31 U.S.C. 5311-5330) appear at 31 CFR part 103. The authority of the Secretary to administer the Bank Secrecy Act has been delegated to the Director of FinCEN.

With the enactment of 31 U.S.C. 5318(g) in 1992, 3 Congress authorized the Secretary of the Treasury to require financial institutions to report suspicious transactions. As amended by the USA Patriot Act, subsection (g)(1) states generally:

The application of the proposed rule would be limited to investment companies that are “mutual funds,” which are open-end management investment companies as described in the Investment Company Act. Mutual funds are by far the predominant type of investment company. In 2001, approximately $7 trillion was invested in U.S. mutual funds, representing more than 95 percent of the assets held by investment companies regulated by the Securities and Exchange Commission (“SEC”). 6 Currently, more than 3000 active mutual funds are registered with the SEC. 7

On May 23, 1994, the DEP formally submitted revisions to its SIP for the purposes of meeting the 1990 CAAA requirements for nonattainment NSR. Due to various issues with these revisions and the pre-existing state rules, EPA did not take action on this SIP submittal. On June 14, 2002, after completing a top to bottom review of its entire state permitting program, the DEP formally withdrew the May 23, 1994 submittal and submitted new revisions to its SIP.

EPA has recently promulgated revisions to certain portions of the federal PSD and nonattainment NSR regulations (67 FR 80244 (Dec. 31, 2002). These rules have an effective date of March 3, 2003. With respect to Connecticut's rules relating to new source review, EPA has determined that Connecticut's rules meet the requirements of 40 CFR part 51, subpart I, as currently in effect, and is taking no position on whether Connecticut will need to make changes to its new source review rules to meet requirements that EPA has promulgated, but are not yet effective, as part of new source review reform.

The rule revisions proposed for approval today are the product of a comprehensive, multi-year, stakeholder process intended to increase the effectiveness of Connecticut's program. The rules proposed for approval include important flexibility provisions discussed below, including provisions that provide a framework for establishing “practicably enforceable” limits on “potential to emit” and provisions allow sources to consider decreases in emissions as well as increases in determining applicability. Not only do the rules proposed for approval increase flexibility, but they also enhance the enforceability of the state program. Therefore, EPA believes it is appropriate to propose approval of these rules under the rules that are currently in effect in order to significantly strengthen the state program.

The CAA requires new major sources and major modifications to existing major sources to obtain an air pollution permit before commencing construction. The nonattainment NSR rules are the set of regulations specifying the minimum permit requirements for new major sources or major modifications in areas that are in nonattainment of the NAAQS. The nonattainment NSR rules include two major elements: (1) Requirements that subjected sources obtain emission reductions (“offsets”) from existing sources to ensure a progression toward achieving the NAAQS and; (2) requirements that sources apply controls that achieve Lowest Achievable Emission Rate (LAER) to ensure emissions are controlled to the greatest degree possible.

In 1990, Congress revised the CAA to include new general requirements that apply to all nonattainment areas and additional requirements that apply to ozone nonattainment areas. In particular, the amended provisions for NSR in ozone nonattainment areas require substantially more stringent applicability and offset requirements over the pre-1990 NSR requirements. All portions of Connecticut are currently designated as nonattainment areas for ozone.

The air quality planning requirements for nonattainment NSR are set out in part D of subchapter I of the CAA The EPA has issued a “General Preamble” describing EPA's preliminary views on how EPA intends to review SIPs and SIP revisions submitted under part D, including those state submittals containing nonattainment area NSR SIP requirements ( see 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992)). Because this notice describes EPA's interpretations only in broad terms, the reader should refer to the General Preamble for a more detailed discussion of the interpretations of part D advanced in today's proposal and the supporting rationale.

The general nonattainment NSR requirements are found in sections 172 and 173 of part D of subchapter I of the Act and must be met by all nonattainment areas. The following paragraphs reference the nonattainment NSR requirements required to be submitted to EPA by November 15, 1992 and explain how Connecticut's rules meet those requirements. Connecticut's existing SIP already contained some of these provisions while others are being proposed for approval today.

1. Section 22a-174-3a(l)(5)(D), establishes provisions in accordance with section 173(a)(1)(A) of the CAA to assure that calculations of emissions offsets are based on the same emissions baseline used in the demonstration of Reasonable Further Progress (RFP).

2. Section 22a-174-3a(l)(4)(B)(viii) establishes provisions in accordance with section 173(c)(1) of the CAA to allow offsets to be obtained in another nonattainment area if: (i) The area has an equal or higher nonattainment classification and, (ii) emissions from the other nonattainment area contribute to an NAAQS violation in the area in which the source would construct.

3. Section 22a-174-3a(l)(4)(B)(i)&(iii), establishes provisions in accordance with sections 173(a) and 173 (c)(1) of the CAA that any emissions offsets obtained in conjunction with the issuance of a license to a new or modified source shall be federally enforceable before permit issuance and must be in effect and enforceable by the time the new or modified source commences operation.

4. Sections 22a-174-1(26), “CERC,” 22a-174-3a(l)(4)(B)(ii) &, 22a-174-3a(l)(5), establish provisions in accordance with section 173(c)(1) of the CAA to assure that emission increases from new or modified sources are offset by real reductions in actual emissions.

5. Sections 22a-174-1(26), “CERC,” 22a-174-3a(l)(4)(B)(ii) &, 22a-174-3a(l)(5) establishes provisions in accordance with section 173(c)(2) of the CAA to prevent emissions reductions otherwise required by the Act from being credited for purposes of satisfying part D offset requirements.

6. The 1990 CAAA modified the Act's provisions on growth allowances in nonattainment areas by (1) Eliminating existing growth allowances in the nonattainment area that received a notice prior or subsequent to the Amendments that the SIP was substantially inadequate, and (2) restricting growth allowances to only those portions of nonattainment areas formally targeted as special zones for economic growth (Sections 173(b) and 173(a)(1)(B) of the CAA). Connecticut's regulations do not contain provisions for growth allowances and are consequently consistent with the Act.

7. Connecticut has a practice of supplying information from nonattainment NSR licenses to EPA's RACT/BACT/LAER clearinghouse in accordance with section 173(d) of the CAA.

8. Section 22a-174-3a(l)(6) establishes provisions, in accordance with section 173(a)(3) of the CAA, to ensure that owners or operators of each proposed new or modified major stationary source demonstrate, as a condition of license issuance, that all other major stationary sources under the same ownership in the State are in compliance with the CAA.

9. Section 22a-174-3a(l)(2) establishes provisions in accordance with section 173(a)(5) of the CAA that, as a prerequisite to issuing any Part D permit, require an analysis of alternative sites, sizes, production processes and environmental control techniques for proposed sources that demonstrate that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, and modification.

10. Section 22a-174-3a(l)(8)(A) establishes provisions in accordance with section 173(a)(4) of the CAA that, as a prerequisite to issuing any Part D permit, the Administrator has not determined that the applicable implementation plan is not being adequately implemented for the proposed nonattainment area in which the proposed source is to construct or be modified.

As mentioned, the general nonattainment NSR requirements found in sections 172 and 173 of part D of subchapter I of the Act must be met by all nonattainment areas. The requirements for ozone nonattainment areas that supplement or supersede these requirements are found in subpart 2 of part D. In addition to requirements for ozone nonattainment areas, subpart 2 includes section 182(f), which states that requirements for major stationary sources of VOC shall apply to major stationary sources of oxides of nitrogen (NO X ) unless the Administrator makes certain determinations related to the benefits or contribution of NO X control to air quality, ozone attainment, or ozone air quality. States were required under section 182(a)(2)(C) to adopt new NSR rules for ozone nonattainment areas by November 15, 1992.

Pursuant to section 172(c)(5) of the CAA, State implementation plans must require permits for the construction and operation of new or modified major stationary sources in nonattainment areas. The federal statutory permit requirements for ozone nonattainment areas are generally contained in revised section 173, and in subpart 2 of subchapter I, part D of the CAA. These are the minimum requirements that States must include in an approvable implementation plan. For all classifications of ozone nonattainment areas, States must adopt the appropriate major source thresholds and offset ratios, and must adopt provisions to ensure that any new or modified major stationary source of NO X satisfies the requirements applicable to any major source of VOC, unless a special NO X exemption is granted by the Administrator under the provision of section 182(f).

Connecticut was required to meet the subpart 2 requirements because all portions of the state are designated as in nonattainment for ozone. Most of Connecticut is designated as in “serious” nonattainment, except for southwest Connecticut, which is designated as in “severe” nonattainment. The following paragraphs reference the serious and severe ozone nonattainment requirements that Connecticut was required to submit to EPA by November 15, 1992 and how Connecticut has met those requirements.

1. Section 22a-174-1(57) “Major Stationary Source,” establishes provisions in accordance with the serious nonattainment area requirements provided in sections 182(c) and 182(f) of the CAA, by setting a major source threshold level of 50 TPY for VOC and for NO X .

2. Section 22a-174-1(57) “Major Stationary Source,” establishes provisions in accordance with the severe nonattainment area requirements provided in sections 182(d) and 182(f) of the CAA, by setting a major source threshold level of 25 TPY for VOC and for NO X .

3. Section 22a-174-1 (55) “Major Modification,” establishes provisions in accordance with the serious and severe nonattainment area requirements provided in sections 182(c)(6) and 182(d) of the CAA, by setting a major modification threshold level of 25 TPY for VOC and for NO X .

4. Section 22a-174-3a(l)(4)(B)(x) establishes provisions in accordance with the serious nonattainment areas provided in sections 183(c)(10) and 182(f) of the CAA, by setting an offset ratio of 1.2 to 1 for major sources or major modifications of VOC or NO X .

5. Section 22a-174-3a(l)(4)(B)(x) establishes provisions in accordance with the severe nonattainment areas provided in sections 183(d)(2) and 182(f) of the CAA, by setting an offset ratio of 1.3 to 1 for major sources or major modifications of VOC or NO X .

6. Connecticut's regulations do not include provisions that apply EPA's special rules for modifications as defined in sections 182(c)(7) and (8) of the CAA. The special rules for modifications are optional, less stringent applicability/permitting requirements that apply to a small number of modifications in serious and severe nonattainment areas. By not including provisions for section 182(c)(7) and (8), DEP's rules are more stringent than the CAA. Since the DEP rules only allows the most stringent applicability/permitting option, its SIP meets the federal requirements.

For serious and severe ozone nonattainment areas, State plans must implement section 182(c)(6) with regard to modifications of major sources. Commonly referred to as the de minimis rule, the provision requires state permitting authorities to submit rules that require sources to consider all contemporaneous emission changes occurring within the last five calender years of a physical change when determining if the change is major modification.

As noted above, Connecticut contains serious and severe nonattainment areas and therefore must implement the de-minimis rule. However, the DEP's SIP submittal is not clear regarding implementation of this rule. The rule only requires sources to keep records of de-minimis emission increases but does not explain how these emissions will be used to define a major modification. As a result, the DEP's NSR rules do not completely satisfy the requirements of the CAA. Since this submittal includes the remaining NSR requirements of the CAA and substantially strengthens the DEP's SIP, EPA is proposing to approve as a SIP strengthening measure all portions of the submittal except for the provisions for the de-minimis rule. EPA intends to work with DEP to develop an approvable de-minimis provision in the future.

EPA defines a major modification as a physical change or a change in the method of operation of a major stationary source that results in a significant net emissions increase. EPA's definition for net emission increase consists of two additive components: (a) Any increase in actual emissions from a particular physical change or change in method of operation and; (b) any other increase or decrease in actual emissions at the source that are contemporaneous with the particular change and are creditable. If the resultant net emissions increase is greater than the significance level for any Title I regulated pollutant, the physical change is a major modification and subject to PSD/NSR requirements.

The first component of net emission increase narrowly includes only the emission increase associated with a particular change at the source. When calculating the emission increase, EPA's rules in effect generally employ what is commonly called the actual-to-potential test (special provisions in effect for electric utility steam generating units are discussed below). The maximum potential emissions from a modified emission unit after the modification is compared to the actual emissions from the emission unit before the modification. The difference between the unit's potential emissions and its current actual emissions is the actual emission increase from the modification.

The second component allows sources to broadly include changes in actual emissions that have occurred anywhere at the source within the contemporaneous period, typically defined by state rules as five years from the time of the modification under review. It provides sources the opportunity to avoid major PSD/NSR applicability by giving a source credit for reducing emissions at other emission units located anywhere at its facility. If the actual emission increase from the modification under review combined with emission decreases source-wide are below significance level for any given regulated pollutant, the modification is not major and not subject to PSD/NSR. When employing component two, federal rules also require sources to include any creditable emission increases occurring source-wide when calculating the net emission increase.

The DEP's existing SIP-approved rules use a different approach for calculating the emission increase from a modification. Instead of the actual-to-potential test, the DEP uses the potential-to-potential test. This method compares the emission units potential before the modification with its potential after the modification. The DEP also does not allow sources the option to take credit for emission changes occurring source-wide. Adopting provisions that reflect the EPA rules that are currently in effect significantly improves Connecticut's program.

EPA's “actual to potential” applicability test and “net emissions increase” requirements for PSD/NSR applicability are established in the federal definitions for “Actual emissions,” “Potential emissions,” “Net emission increase,” and “Significant emissions.” In section 22a-174-1, the DEP is adopting with minor revisions the definitions for “Actual emissions,” “Net emission increase,” and “Significant emissions” located in 40 CFR 51.165 and 51.166. In addition, the DEP is adopting a definition of “Potential emissions” that requires sources to effectively limit PTE using either federally or practicably enforceable limits. With these definitions, the DEP's PSD/NSR applicability requirements are consistent with existing federal requirements.

EPA notes that federal applicability requirements also provide a separate applicability method for sources defined as electric steam utility generators. For this source category, EPA regulation applies an actual-to-representative actual emissions test. A sources current actual emissions are compared to the source's predicted future actual emissions to determine the emission increase from a modification.

The provisions for this applicability test, referred to as the WEPCO applicability test, were added to the federal NSR regulations following the Seventh Circuit Court of Appeals decision in 1990 (( Wisconsin Electric Power Company (WEPCO) v. Reilly )). These provisions include definitions for “electric steam utility generator” and “representitive actual annual emissions.” While these definitions are referred to in the DEP's new definition of actual emissions, the DEP did not explicitly define these two terms. However, the DEP's interpretation of state law provides it the authority to implement all provisions of the federal “actual emissions” definition that is incorporated by reference into its rules. This authority extends to the definitions for “Electric steam utility generator” and “Representative actual annual emissions” that are referenced in the federal definition but not explicitly defined in the state rule. Consequently, the DEP's rules comply with all provisions of the federal definition for “actual emissions” including the provisions for the WEPCO applicability test.

The DEP is adding or revising definitions to clarify general requirements of its permitting rules and to make the rules consistent with the federal permitting requirements. The list of new or revised definitions includes: Allowable Emissions; Baseline concentration; Begin Actual Construction; Commence construction; Construction; Emission limitation and emission standard; Emissions Unit; Excessive concentration; Federally enforceable; Good engineering practice; Innovative control technology, Malfunction; Secondary emissions; and Volatile organic compound.

Several definitions and other terms in Connecticut's rules reference EPA's NSR and PSD rules in the Code of Federal Regulations (CFR). Under Connecticut law, when the reference is to a CFR section “as amended from time to time,” the reference is intended to incorporate amendments to the CFR made subsequent to state publicly noticing its proposal to adopt these rules. When the reference is simply to the CFR, it is to the EPA rules in effect as of July 17, 2001, which is the date DEP publicly noticed the proposed rule amendments.

The DEP's decision to incorporate the federal permitting program definitions under 40 CFR 51.100-166 will ensure the DEP's permit procedures and permit decisions will be consistent with federal requirements. In addition, EPA policies and guidance will be directly applicable to the DEP's rules ensuring more consistent program implementation and improved program compliance.

For further details concerning the revisions to Connecticut's SIP and EPA's analysis, please refer to the memorandum from Brendan McCahill, Environmental Engineer, to Steven Rapp, Manager, Air Permits Program entitled, “Technical Support Document—Connecticut New Source Review/Prevention of Significant Deterioration Program Revisions,” dated January 10, 2003, available upon request from the EPA regional office noted in the ADDRESSES section of this document.

As explained in section II, the emissions increase from a modification is the difference between an emission unit's PTE after the modification and its actual emissions before the modification. Therefore, the rules governing how PTE limits are created and enforced is critically important in any PSD/NSR applicability determination. EPA defines “potential to emit” as the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Absent an inherent physical or operational restriction, EPA calculates PTE assuming the source operating full time ( i.e. , 8760 hours/year) at its maximum emission rate. Federal rules allow sources to overcome this assumption by accepting physical or operation restrictions that limit PTE. Typically, sources accept PTE limits to reduce the net emission increase from a modification and avoid NSR applicability. For example, a source may accept a restriction on hours of operation ( e.g. , 4000 hours/year) if the restriction results in a PTE that reduces the net emission increase calculation to below the NSR/PSD applicability threshold levels.

Up to 1995, EPA's NSR and PSD rules required limits on PTE to be federally enforceable. The term “federally enforceable” incorporates two fundamental elements. First, EPA must have direct right to enforce restrictions and limitations. Second, limits must be enforceable as a practicable manner or “practicably enforceable.” EPA has issued several guidance documents explaining the requirements of practicably enforceable. In brief, EPA has interpreted “practicably enforceable” to mean that sufficient monitoring, recordkeeping and reporting exists such that the source and/or permitting authority can show continual compliance with the emission limitation.

EPA's requirement that a PTE limitation that keeps a source out of a CAA requirement must be federally enforceable was legally challenged by industry. In Chemical Manufacturer's Association V. EPA, No. 89-1514 (D.C. Cir. Sept. 15 1995), the court vacated the EPA's requirements that physical or operational restrictions on a source's PTE be federally enforceable. As a result, states may develop and submit for EPA approval NSR/PSD programs under 40 CFR 51.165/51.166 that include provisions for state-enforceable PTE limits provided that the provisions are practicably enforceable and effectively limit the source's emissions.

The DEP's new definition of “practicably enforceable” will allow sources the option of taking either federally enforceable or practicably enforceable PTE limits. In developing this definition, the DEP closely followed EPA's guidance on practicably enforceable limitations in a January 25, 1995 memorandum from John Sietz, director of the Office of Air Quality Planning and Standards entitled “Options for Limiting the Potential to Emit of a Stationary Source Under Section 112 and title V of the Clean Air Act.” The policy specifies the following minimum elements required for a practicably enforceable limitation: (1) A technically accurate limitation and identifying the portions of the source subject to the limitation; (2) the time period for the limitation and; (3) the method to determine compliance including appropriate monitoring, recordkeeping and reporting. The DEP worked closely with EPA to ensure its definition followed EPA guidance on practicably enforceable limits and included these three minimum requirements. As a result, in the absence of any federal rules reimposing mandated federally enforceable PTE limits, EPA proposes to approve the DEP's “practicably enforceable” definition.

EPA is proposing to approve the SIP revision submitted by Connecticut on June 14, 2002.

EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to the EPA New England Regional Office listed in the ADDRESSES section of this action. Comments must be received on or before February 11, 2003. Comments received after this date will be considered late. EPA is not required to consider late comments.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. )

The United States Environmental Protection Agency (EPA) Region III announces its intent to delete a portion of the Former Nansemond Ordnance Depot site (Nansemond) located in Suffolk, Virginia from the National Priorities List (NPL) and requests comments on this proposal. The NPL constitutes appendix B of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 CFR part 300. This proposal for partial deletion pertains to the soil in the Impregnation Kit Area of Nansemond.

Nansemond is located in Suffolk, Virginia, near the northwestern end of State Route 135. It was once a U.S. military facility. It is situated at the mouth of and to the east of the Nansemond River, on the south side of Hampton Roads, and contains approximately 975 acres. It is bordered to the west by the Nansemond River, to the north by the James River (Hampton Roads) and to the east by Streeter Creek.

The Impregnation Kit Area (also known as the “Impregnite Kit” or “XXCC3” area) is an approximately 300,000 square foot, rectangular area in the southwestern portion of Nansemond, about 1000 feet from the Nansemond River. Only soil in this area is proposed for deletion from the NPL; ground water beneath the Impregnation Kit Area is not proposed for deletion.

The U.S. Department of the Army apparently disposed of “impregnation” or “impregnite” kits in this area. Impregnation kits consist of two substances: (a) XXCC3, which is a fine, white, granular, crystal powder consisting of 90-92% octachlor carbonilide (C 13 H 4 Cl 8 N 2 O) and 8-10% zinc oxide, and (b) a “honey-like syrup” or “black waxy material.” XXCC3 was used to neutralize chemical agents, and the impregnation kits disposed of in the Impregnation Kit Area were probably used as a protective coating on an under garment for older military issue chemical suits. EPA found several hazardous substances in the soil of the Impregnation Kit Area at concentrations greater than background concentrations, including zinc (11,100 milligrams per kilogram), carbon tetrachloride (20,700 micrograms per kilogram (ug/kg)), chloroform (20,600 ug/kg), and TNT (279 ug/kg).

A contractor for the United States Army Corps of Engineers (the Corps) removed the buried kits and surrounding contaminated soil in December 1998 and January 1999. In all, the contractor removed 857 tons of impregnation kits and associated soil. Confirmation sampling shows that the contractor successfully removed the impregnation kits and associated contaminated soil. In the process, the Corps and EPA found that disposal activities and associated soil contamination were limited to a circle approximately 270 feet in diameter, covering 57,255 square feet, rather than 300,000 square feet, as originally estimated in EPA's Final Hazard Ranking System (“HRS”) Package. No further response action is appropriate to protect human health, welfare, and the environment in relation to the soil in the Impregnation Kit Area (all 300,000 square feet) and, therefore, EPA proposes to delete the soil in this area from the NPL.

Ground water beneath the Impregnation Kit Area has not been fully characterized and is not proposed for deletion from the NPL. Although some sampling and evaluation has been completed, more study is needed to better understand whether the ground water is contaminated and, if so, to what extent. Hazardous substances, including explosives, have been detected in ground water at other locations within Nansemond. It has not been clearly demonstrated that hazardous substances, pollutants or contaminants have been, or continue to be, released into the ground water beneath the Impregnation Kit Area at levels of concern to human health or the environment. Data gathered so far do not appear to indicate unacceptable human health threats from ground water beneath the Impregnation Kit Area, except perhaps if used for drinking water. Accordingly, the present owner of the property has agreed to prohibit drinking of ground water beneath the Impregnation Kit Area through a restrictive covenant, or similar legal device, in a deed. In addition, a City of Suffolk ordinance, section 90-126, requires all new premises, buildings or dwellings abutting a city water main to connect to the water main. This means that, under current law, any new buildings on the Impregnation Kit Area would connect to the city water main, reducing the likelihood that people would choose to drill wells and use ground water beneath the Impregnation Kit Area. The EPA and Corps plan future investigations to determine whether the ground water beneath the Impregnation Kit Area, and other areas within Nansemond, poses a risk to human health or the environment.

This partial deletion is proposed in accordance with 40 CFR 300.425(e) and the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List, 60 FR 55466 (November 1, 1995). The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate to protect public health or the environment. In making such a determination pursuant to § 300.425(e), EPA will consider, in consultation with the Commonwealth, whether any of the following criteria have been met:

• Section 300.425(e)(1)(i). Responsible parties or other persons have implemented all appropriate response actions required; or

• Section 300.425(e)(1)(ii). All appropriate responses under CERCLA have been implemented, and no further response action by responsible parties is appropriate; or

• Section 300.425(e)(1)(iii). The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

Deletion of a portion of a site from the NPL does not preclude eligibility for subsequent CERCLA actions at the area deleted if future site conditions warrant such actions. Section 300.425(e)(3) of the NCP provides that CERCLA actions may be taken at sites that have been deleted from the NPL. A partial deletion of a site from the NPL does not affect or impede EPA's ability to conduct CERCLA response activities at areas not deleted and remaining on the NPL. In addition, deletion of a portion of a site from the NPL does not affect the liability of responsible parties or impede agency efforts to recover costs associated with response efforts.

Deletion of a portion of a site from the NPL does not itself create, alter, or revoke a person's rights or obligations. The NPL is designed primarily for informational purposes and to assist agency management. The following procedures were used for the proposed deletion of the soil in the Impregnation Kit Area at Nansemond:

1. In December 1998 and January 1999, a contractor for the U.S. Army Corps of Engineers removed impregnation kits and associated contaminated soil from the Impregnation Kit Area. Subsequent soil sampling confirmed that the kits and contaminated soil had been successfully removed. Residual concentrations of hazardous substances, pollutants and contaminants in the soil are less than EPA Region III's Risk-Based Concentrations for soil in residential use and less than concentrations that might contaminate ground water, with the exception of arsenic. The arsenic concentrations, however, are within the range of concentrations that occurs naturally in the soil in this region of Virginia. A geophysical investigation of the Impregnation Kit Area and 20 adjacent acres found no ordnance, no explosives and only one piece of ordnance-related scrap. Based on this, EPA and the Corps believe that no further response action is appropriate for soil in the Impregnation Kit Area.

2. EPA has recommended the partial deletion and the Corps and EPA have prepared the relevant documents. These documents have been compiled into a Deletion Docket.

3. The Commonwealth of Virginia, through the Virginia Department of Environmental Quality, concurs with this partial deletion.

4. Concurrent with this national notice of intent for partial deletion, a notice has been published in a local newspaper of record and has been distributed to appropriate Federal, State, and local officials, and other interested parties. These notices announce a 30 day public comment period on the deletion package, which commences on the date of publication of this notice in the Federal Register and publication of a notice of availability of this notice in a newspaper of record.

5. EPA and the Corps have made all relevant documents available at the information repositories listed previously.

This Federal Register document, and a concurrent notice in a newspaper of record, announce the initiation of a 30 day public comment period and the availability of the notice of intent for partial deletion. The public is asked to comment on EPA's proposal to delete the soil in the Impregnation Kit Area of Nansemond from the NPL. All critical documents needed to evaluate EPA's decision are included in the Deletion Docket and are available for review at the information repositories.

Upon completion of the 30 day comment period, EPA will evaluate all comments received before issuing the final decision on the partial deletion. EPA will prepare a Responsiveness Summary for comments received during the public comment period and will address concerns presented in the comments. The Responsiveness Summary will be made available to the public at the information repositories listed previously. Members of the public are encouraged to contact EPA Region III to obtain a copy of the Responsiveness Summary. If, after review of all public comments, EPA determines that the partial deletion from the NPL is appropriate, EPA will publish a final notice of partial deletion in the Federal Register . Deletion of the area does not actually occur until the final Notice of Partial Deletion is published in the Federal Register .

The following provides EPA's rationale for deletion of the soil in the Impregnation Kit Area from the NPL and EPA's finding that the criteria in 40 CFR 300.425(e) are satisfied.

The Former Nansemond Ordnance Depot site (Nansemond) is located in Suffolk, Virginia, near the northwestern end of State Route 135. It was once a U.S. military facility. It is situated at the mouth of and to the east of the Nansemond River, on the south side of Hampton Roads, and contains approximately 975 acres. It is bordered to the west by the Nansemond River, to the north by the James River (Hampton Roads) and to the east by Streeter Creek.

From its establishment in 1917 until 1950, Nansemond was occupied by the U.S. Army for ammunition supply, maintenance, and disposal functions. In 1950, the site was transferred to the Department of the Navy, and was subsequently named the Marine Corps Supply Forwarding Annex. Following Navy operation, Nansemond was deactivated in 1960, and ownership of the property was transferred to the Beazley Foundation. The land of the former depot is now principally occupied by Tidewater Community College; the General Electric Company Jet Engine Division (GE); and the Hampton Roads Sanitation District (HRSD). Smaller parcels of land are owned by the Virginia Department of Transportation, Interstate 664; Dominion Lands, Inc.; Continental Properties; and SYSCO Food Services.

Soil and ground water at Nansemond have been contaminated by past operations, including the storage, handling, reconditioning and disposal of ordnance. Types of contamination at Nansemond include, but are not limited to, semi-volatile organic compounds, heavy metals and compounds used in explosives ( e.g. , TNT) in soil; and compounds used in explosives ( e.g. , hexahydro-1,3,5-trinitro-1,3,5-triazine (“RDX”)) in ground water.

Nansemond is classified as a “Formerly Used Defense Site” or “FUDS.” Pursuant to Public Law 98-212 and the Defense Environmental Restoration Program (chapter 160 of the Superfund Amendments and Reauthorization Act of 1986), the Department of Defense (DOD) is responsible for investigating and remedying releases of hazardous substances at FUDS that resulted from DOD activities. DOD has assigned those responsibilities to the United States Army Corps of Engineers (the Corps).

Environmental contamination from past military operations at Nansemond came to the attention of the Corps and EPA at least as early as 1987, when a boy found a piece of crystalline TNT near the entrance to Tidewater Community College. Beginning in 1987 and continuing to the present, the Corps and EPA have cooperated to remove TNT, buried ordnance and other contamination from soil at Nansemond. In addition, the Corps and EPA have cooperated in investigating soil and ground water contamination at Nansemond.

The Impregnation Kit Area (also known as the Impregnite Kit or XXCC3 area) is an approximately 300,000 square foot, rectangular area in the southwestern portion of Nansemond, about 1000 feet from the Nansemond River. It was apparently used for the disposal of impregnation kits containing XXCC3. Impregnation kits consist of two substances: (a) XXCC3, which is a fine, white, granular, crystal powder, and (b) a “honey-like syrup” or “black waxy material.” XXCC3 was used to neutralize chemical agents, and the impregnation kits disposed of in this area were probably used as a protective coating on an under garment for older military issue chemical suits.

As of 1948, the U.S. Army's recommended methods for disposal of surplus XXCC3 included scattering on the ground, burial (at least three feet below ground), and burning. Aerial photographs indicate that activities such as excavating and grading took place at the Impregnation Kit Area during the 1950s. A 1995 excavation by a contractor for Dominion Lands, Inc. uncovered wooden crates containing the white powder; small metal cans containing the black waxy material; and fiber drums. In 1996, the Corps conducted a chemical screening and ordnance survey in the Impregnation Kit Area, took soil samples and dug test pits. The test pits revealed a thick seam of the white powder in a mounded area, and remnants of the kits were visible.

EPA took a soil sample from the Impregnation Kit Area in 1997. The hazardous substances detected at the highest concentrations in this sample were zinc (11,100 milligrams per kilogram), carbon tetrachloride (20,700 micrograms per kilogram (μg/kg)), chloroform (20,600 μg/kg), and TNT (279 μg/kg).

In December 1998 and January 1999, a contractor for the Corps excavated the area containing the impregnation kits. Two parallel disposal trenches were discovered. A total of 857 tons of impregnation kit materials and associated soils were removed and placed in a landfill in Hampton, Virginia. Earlier analytical testing indicated that the soils and materials removed from the Impregnation Kit Area were not a RCRA hazardous waste according to 40 CFR part 261.3 and the Material Safety Data Sheet for XXCC3. All waste was disposed of in a non-hazardous waste landfill in Hampton, Virginia.

Following the removal, in January 1999, EPA proposed to add releases of hazardous substances, pollutants and contaminants at Nansemond to the National Priorities List (NPL). 64 FR 2950 (January 19, 1999). EPA added the releases to the NPL in July 1999. 64 FR 39878 (July 22, 1999). One of the supporting documents, the Hazard Ranking System (HRS) Documentation Record, described the Impregnation Kit Area as one of seven sources of contamination at Nansemond, based on the soil sample taken in 1997. EPA also noted, however, that “The rectangular parcel, identified as Source Area 3 [the Impregnation Kit Area] in the HRS Documentation Record, has undergone extensive removal activities and EPA anticipates that confirmation sampling will indicate that this area also is not of concern to EPA.” At the time it drafted the HRS Documentation Record, EPA estimated the Impregnation Kit Area covered approximately 300,000 square feet.

In the summer of 1999, a contractor for the Corps took samples of the soil in the Impregnation Kit Area to confirm that the excavation had successfully removed contaminated soil and to check for hazardous substances, pollutants and contaminants in 20 acres surrounding the excavation. The contractor also performed a geophysical investigation to identify geophysical anomalies that might indicate ordnance buried in the Impregnation Kit Area.

The Confirmation Sampling Report shows that the excavation successfully removed the impregnation kits and associated contaminated soil. Residual concentrations of hazardous substances, pollutants and contaminants in soil samples were less than EPA Region III's Risk-Based Concentrations for residential use, and less than concentrations that might contaminate ground water, except that all the soil samples contained arsenic, at levels up to 4.6 mg/kg. These arsenic concentrations, however, are within the range of naturally occurring background concentrations for soils in this region of Virginia. Under CERCLA, the Corps and EPA generally do not clean up naturally occurring substances in their unaltered form (or altered solely through naturally occurring processes) from locations where they are naturally found.

The geophysical investigation found 16 geophysical anomalies. However, after excavating each location, the anomalies were shown to be caused by innocuous metal items, such as wire and pipes. A single piece of ordnance-related scrap was found at Anomaly 1, shown as square 1 on Figure 2 of the Corps' Post Removal Action Confirmation Sampling Report (2002) (the “Confirmation Sampling Report”). The scrap did not contain explosives, nor were any other ordnance or explosives found.

The Confirmation Sampling Report concludes that “based on the results of the confirmation sampling investigation, no further action is recommended for the site [the Impregnation Kit Area].” Furthermore, the report states that the Corps, EPA and VDEQ have agreed to redefine the boundaries of the Impregnation Kit Area to reflect the actual size of the removal area. The removal occurred within a 270 foot diameter circle, with an area of about 57,255 square feet. EPA has no data at this time that show releases of hazardous substances, pollutants or contaminants in the rest of the approximately 300,000 square foot rectangle described in EPA's 1999 HRS Documentation Record. EPA bases its proposal to delete the soil in the Impregnation Kit Area (all 300,000 square feet) on the results of the Corps' Post Removal Action Confirmation Sampling Report and the other documents in the Deletion Docket. Based on these documents, EPA, with the concurrence of the Commonwealth of Virginia, has determined that the Corps has implemented all appropriate response actions for the soil in the Impregnation Kit Area and no further response action is appropriate for the soil in this area.

Ground water beneath the Impregnation Kit Area has not been fully characterized and is not proposed for deletion from the NPL. Although some sampling and evaluation has been completed, more study is needed to better understand whether the ground water is contaminated and, if so, to what extent. Hazardous substances, including explosives, have been detected in ground water at other locations within Nansemond. It has not been clearly demonstrated that hazardous substances, pollutants or contaminants have been, or continue to be, released into the ground water beneath the Impregnation Kit Area at levels of concern to human health or the environment. Data gathered so far do not appear to indicate unacceptable human health threats from ground water beneath the Impregnation Kit Area, except perhaps if used for drinking water. Accordingly, the present owner of the property has agreed to prohibit drinking of ground water beneath the Impregnation Kit Area through a restrictive covenant, or similar legal device, in a deed. In addition, a City of Suffolk ordinance, section 90-126, requires all new premises, buildings or dwellings abutting a city water main to connect to the water main. This means that, under current law, any new buildings on the Impregnation Kit Area would connect to the city water main, reducing the likelihood that people would choose to drill wells and use ground water beneath the Impregnation Kit Area. The EPA and Corps plan future investigations to determine whether the ground water beneath the Impregnation Kit Area, and other areas within Nansemond, poses a risk to human health or the environment.

The Corps and EPA have had a comprehensive public involvement program for several years at Nansemond. The Corps prepared its first community relations plan for Nansemond in 1996 and in 1997 organized a Restoration Advisory Board (RAB) to solicit the views of local citizens and other interested parties on the environmental restoration at Nansemond. RAB members include representatives of the Corps, EPA, VDEQ and community members. RAB members meet every second month to review and comment on technical documents and plans relating to the ongoing environmental restoration activities at Nansemond. Meetings are open to all members of the public. The 1998 removal, the post confirmation sampling and plans to partially delete the Impregnation Kit Area have been discussed at RAB meetings.

The Corps and EPA have also established document repositories, described above, to make available to the public information about the investigation and cleanup at Nansemond.

Removal of impregnation kits and associated contaminated soil in the Impregnation Kit Area has been successfully completed. No further response action is planned or scheduled for the soil in this area. Ground water, however, may be the subject of future response actions under CERCLA. In the future, five-year reviews may be required at Nansemond if other remedies are selected that leave waste on site above levels that allow for unlimited use and unrestricted exposure.

While EPA does not believe that any future response actions will be needed for the soil in the Impregnation Kit Area, if future conditions warrant such action, the proposed deletion area remains eligible for future response actions. Furthermore, this partial deletion does not alter the status of any other areas at Nansemond that are not proposed for deletion and remain on the NPL, including, but not limited to, the ground water beneath the Impregnation Kit Area.

EPA, together with Corps and with concurrence from the Commonwealth of Virginia, has determined that all appropriate CERCLA response actions have been completed for the soil in the Impregnation Kit Area and protection of human health and the environment has been achieved in these areas. Therefore, EPA makes this proposal to delete the soil in the Impregnation Kit Area of Nansemond site from the NPL.

This is a summary of the Commission's Notice of Inquiry, ET Docket 02-380, FCC 02-328, adopted December 11, 2002, and released December 20, 2002. The full text of this document is available for inspection and copying during regular business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Qualex International, 445 12th Street, SW., Room, CY-B402, Washington, DC 20554. The full text may also be downloaded at: http://www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments on or before April 7, 2003, and reply comments on or before May 6, 2003. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998. Comments filed through the ECFS can be sent as an electronic file via the Internet to http://www.fcc.gov/e-file/ecfs.html. Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of this proceeding, however, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to ecfs@fcc.gov, and should include the following words in the body of the message, “get form <your e-mail address.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appear in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number.

All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). The Commission's contractor, Vistronix, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554.

1. The Commission initiated this Notice of Inquiry (“NOI”) to obtain comments from the public on the possibility of permitting unlicensed devices to operate in additional frequency bands. Specifically, we seek comments on the feasibility of allowing unlicensed devices to operate in TV broadcast spectrum at locations and times when spectrum is not being used, and on the technical requirements that would be necessary to ensure that such devices do not cause interference to authorized services operating within the TV broadcast bands. The Commission also seeks comment on the feasibility of permitting unlicensed devices to operate in other bands, such as the 3650-3700 MHz band at power levels significantly higher than the maximum permitted for unlicensed devices in other frequency bands, with only the minimal technical requirements necessary to avoid interference to licensed and incumbent services. We believe that these actions could have significant benefits to the economy, businesses and consumers by allowing the development of new and innovative types of unlicensed devices.

2. Unlicensed transmitters may be operated under the provisions of part 15 of the Commission's rules. Part 15 transmitters generally operate on frequencies shared with authorized services and at relatively low power. Operation of a part 15 transmitter is subject to the conditions that the device not cause interference to authorized services, and that the device must accept any interference received. The Commission made two significant changes to part 15 in the 1980's that enabled the development of new types of unlicensed devices and led to increased use of these devices.

3. The first significant change, in 1985, was to permit spread spectrum transmitters to operate on an unlicensed basis in certain bands allocated for Industrial, Scientific and Medical (ISM) equipment. Specifically, such transmitters are permitted to operate in the 902-928 MHz, 2400-2483.5 MHz and 5725-5850 MHz bands. Spread spectrum transmitters spread their energy over a wide bandwidth, which increases resistance to interference and can allow multiple transmitters to share the same spectrum. Such transmitters are permitted to operate with a power of up to one watt, which is considerably higher than the maximum power permitted for other part 15 devices. This allows for significantly greater transmission range than other part 15 devices. In addition, the relatively wide bandwidth permitted for spread spectrum transmitters makes them useful for applications such as high speed data transmission. There are no limitations in the rules on the types of applications for which spread spectrum devices can be used, provided they comply with the technical requirements. The adoption of the spread spectrum rules was a major step in providing increased flexibility for unlicensed transmitters. Subsequent changes to these rules permit increased data speeds and higher gain antennas to allow greater transmission range, and apply to a broader range of spread spectrum transmitters.

4. The second significant change to part 15 was a major revision in 1989. Under this revision, unlicensed transmitters are permitted to operate on almost any frequency, provided they meet relatively tight emission limits. They are not permitted to operate in certain designated “restricted bands,” and are generally prohibited from operating in the TV broadcast bands, except for remote control devices and medical telemetry transmitters. Specific types of unlicensed transmitters can operate in certain frequency bands. In addition to spread spectrum transmitters in the ISM bands, non-spread spectrum transmitters can operate in the ISM bands for any type of application at lower power levels than spread spectrum transmitters. The 1985 and 1989 revisions of part 15 have provided substantially increased flexibility in the types of unlicensed devices that can be developed, and led to the large numbers of unlicensed devices currently available today.

5. The Commission's Spectrum Policy Task Force conducted a comprehensive review of spectrum policy which included a public notice seeking comment on, among other issues, whether additional spectrum should be made available for unlicensed use. In addition, the Task Force held a public workshop on unlicensed spectrum use. In response to the public notice, a significant number of parties stated that additional spectrum should be made available for unlicensed use. Further, these parties indicated a general perception that the creation of unlicensed bands has been very successful in allowing the introduction of new technology and that additional unlicensed bands would create more such opportunities.

6. We believe that we should consider permitting additional flexibility to help enable the development of new and innovative types of unlicensed devices, such as power levels greater than the one watt maximum currently permitted for Part 15 devices and/or high gain antennas to enable greater transmission range. We have identified two possible candidate bands for such expanded unlicensed operation: the television broadcast bands and the 3650-3700 MHz band.

7. The unused portions of the TV spectrum appear to be a suitable choice for expanded unlicensed operation for several reasons. There is significant bandwidth available because each TV channel is 6 MHz wide, and multiple vacant channels are generally available in an area to provide greater bandwidth. Allowing unlicensed devices to operate on TV channels that are not being used in a particular area would be a more efficient use of the spectrum. Unlicensed use of this spectrum as opposed to licensed use appears to be appropriate because the operating power levels of unlicensed devices are generally lower than the power levels used in commercial mobile radio services, making it easier for unlicensed devices to identify and operate on unused frequencies without causing interference to authorized services. Further, the frequencies and amount of unused TV spectrum vary from location to location and could change over time as TV stations or other authorized services are added or change frequency, potentially complicating the licensing of commercial services in unused TV spectrum. We note also that the unlicensed uses we identify in this NOI are not intended to limit future licensed use or to guarantee spectrum access rights for this band. We seek comment on the following questions concerning the use of the TV broadcast bands by unlicensed devices.

• Should new unlicensed devices be permitted to operate within any portions of the TV bands, and if so, which portions? Are there any other bands where new unlicensed devices could be permitted to operate?

• Should the use of certain channels by unlicensed device not be permitted? For example, channel 37 is allocated for radio astronomy operations and the Wireless Medical Telemetry Service, and unlicensed operations on this channel may not be appropriate because of special interference concerns associated with the sensitive nature of radio astronomy reception and the critical safety function of medical telemetry equipment. In addition, there are concerns about possible interference to channels 2, 3 and 4 because they are used for, or are adjacent to, the output channels of VCRs and other set-top boxes. Further, spectrum currently allocated to channels 52-69 (698-806 MHz) has been reallocated and has been or will be licensed for new services. Should unlicensed operations be permitted in the reclaimed spectrum?

• Should there be geographic restrictions on where unlicensed operation in the TV bands is permitted, such as in areas where co-channel or adjacent channel television, Private Land Mobile Radio Service (PLMRS) or Commercial Mobile Radio Service (CMRS) is present, or in the border areas near Canada and Mexico?

• What restrictions, if any, should be placed on the applications or numbers of unlicensed devices that would be permitted in the TV broadcast bands, and why would such restrictions be needed? For example, should applications be limited to fixed uses?

• Are any special, temporary restrictions needed to ensure that unlicensed devices do not impact the transition of television from analog to digital service? For example, as part of the transition process, television stations may be switching channels and modifying their service area. How can we ensure that unlicensed operation does not cause interference when stations make such changes or when new DTV stations commence operation?

• How would new unlicensed devices affect the ability of broadcasters to provide ancillary services such as data after the digital transition?

8. The part 15 rules require unlicensed transmitters to meet technical requirements to ensure that they will not cause interference to authorized users. The types of requirements that must be met typically include in-band and out-of-band power or field strength limits, and may include other requirements such as bandwidth, power spectral density, frequency stability, and antenna gain. As noted above, there are several authorized users of the TV bands that must be protected from interference from unlicensed devices. Analog and digital TV stations must be protected from interference. Low power TV and TV translator stations have defined protected service contours. Low power auxiliary stations such as wireless microphones and wireless assist video devices on TV channels do not have defined protected contours, but unlicensed devices are not permitted to cause interference to them. PLMRS and CMRS base stations are assigned within 50 miles of the center of the cities where they are permitted to operate in the 470-512 MHz band, and mobile units must be operated within 30 miles of their associated base station or stations. In addition to these authorized users, unlicensed medical telemetry transmitters are permitted to operate on channels 7-46, although the Commission has allocated bands where such transmitters can operate with protection from interference. The Commission seek comment on the following questions concerning the necessary technical requirements for unlicensed transmitters to prevent interference to TV reception and other authorized services within the TV bands.

• What power and/or field strength limits are necessary for unlicensed transmitters within the TV bands to prevent interference to TV reception? Could unlicensed devices operate in TV bands with a power greater than the 1 watt maximum permitted for part 15 devices in the ISM bands or power greater than the general part 15 limit?

• What separation distances or D/U ratios should be established between unlicensed devices and the service of analog, digital, Class A and low power TV and TV translator stations? What assumptions should be used to determine these protection criteria? Should TV stations be protected only within their grade B or noise limited service contours, or should unlicensed devices be required to protect TV reception from interference regardless of the received TV signal strength? Is protection necessary only for co-channel and adjacent channel stations? What special requirements, if any, are necessary to protect TV reception in areas where a station's signal is weak? Would minimum performance standards for receivers facilitate the sharing of TV spectrum with unlicensed devices?

• What technical requirements are necessary to protect other operations in the TV bands, including the PLMRS and CMRS in the areas where they operate on TV channels and low power auxiliary stations such as wireless microphones and wireless assist video devices? Could technical requirements be developed that would allow unlicensed devices to co-exist with new licensed services on former TV channels 52-69? Should unlicensed transmitters be required to protect unlicensed medical telemetry transmitters operating on TV channels 7-46 from interference?

• What requirements, if any, are necessary to prevent interference to coaxial cable or other multi-channel video service providers using the TV bands or to prevent interference to TVs, VCRs and set-top boxes caused by direct pickup of signals from unlicensed devices?

• Should any antenna requirements be imposed? Can technologies such as “smart antennas”, which automatically change their directivity as necessary, assist unlicensed devices in sharing the TV bands? Should unlicensed devices be required to use an integrated transmitting antenna and be prevented from using external amplifiers and antennas?

9. In addition to meeting power and/or field strength limits, we believe that an unlicensed device operating in the TV band should have certain capabilities to avoid causing interference to licensed services. Specifically, an unlicensed device should be able identify unused frequency bands before it can transmit. One possible approach would be for a device to monitor portions of the spectrum where it could operate, identify a frequency band that is not being used, and then transmit in the frequency band identified. A device should also have to be able to avoid tying up a frequency in the event a licensed user wishes to commence transmissions. We seek comment on the following questions concerning the capabilities that unlicensed devices operating in the TV broadcast bands should have.

• What are the specific capabilities that an unlicensed transmitter should have to successfully share spectrum with licensed operations in the TV broadcast band without interference? Are there transmission protocols that could enable efficient sharing of spectrum?

• Could GPS or other location techniques be incorporated into an unlicensed device so it could determine its precise location and identify licensed users in its vicinity by accessing a database? Would such an approach be reliable, and could it be combined with other methods to prevent interference to licensed services? What specific methods could be used to protect low power auxiliary stations such as wireless microphones that are not listed in a database?

• Once an unlicensed device commences transmissions on an open frequency, how can it ensure that interference will not be caused to a licensed user of that frequency who wishes to commence transmissions? Is there a mechanism that can avoid such “collisions” or mitigate their effect? For example, should these devices have limited “duty cycles” in a given frequency band?

• Is frequency agile equipment, as well as the protocols to enable efficient frequency sharing, feasible in the near-term?

• How could the Commission enforce any rules that may be adopted for unlicensed devices to ensure that such devices do not cause interference to authorized users of the TV bands?

• Is it necessary to establish any standards to allow sharing between unlicensed users of the TV bands? If so, how do we arrive at standards and what process should be put in place to make certain that the standards remain current and support innovation?

10. Another possible candidate band we have identified for expanded unlicensed operation is the 3650-3700 MHz band (“3650 MHz band”). The 3600-3700 MHz band was previously allocated for use by the Federal Government on a primary basis for radiolocation services, and for non-government use in the Fixed Satellite Service (FSS), limited to space-to-Earth transmissions in international inter-continental systems.” Pursuant to the Omnibus Budget Reconciliation Act of 1993 (“OBRA-93”), the National Telecommunications and Information Administration (“NTIA”) identified the 3650-3700 MHz portion of this band for transfer, effective January 1999, from a Government/non-Government shared use status to a mixed-use status. A condition of the transfer allows Government radiolocation stations to continue to operate indefinitely in the 3650 MHz band at three locations with a “radius of operation” of 80 kilometers (49.7 miles).

11. Unlicensed operation in the 3650 MHz band, which is part of the 3600-4400 MHz band used for Federal Government and satellite operations, has been prohibited. However, the change in allocation status of the 3650 MHz band from Government/non-Government shared use to mixed use provides an opportunity for us to revisit this prohibition. The 3650 MHz band appears to be well suited for unlicensed operations for a number of reasons. First, it is a contiguous 50 MHz block of spectrum, so there is sufficient spectrum available to permit wide bandwidth applications such as high speed data transmissions. Also, it is not heavily used in most parts of the country because it is recently vacated government spectrum, and no licenses have been issued for new non-government services in the band. The only operations in this band that need to be protected from interference at this time are the FSS sites and three grandfathered government sites, and these are fixed operations at known geographic coordinates, making it easier to avoid interference to them. Given that the proposed terrestrial uses of this band involve operations from fixed sites, it would appear that unlicensed operations could be compatible with future licensed uses. For these reasons, it may be possible to permit unlicensed devices to operate in this band with minimal restrictions except those necessary to avoid interference to licensed users in the band. For example, it may be possible to permit wideband operation with high gain antennas at power levels greater than the 1 watt maximum permitted for other unlicensed devices. If unlicensed devices are permitted to operate in this band, they may have to have capabilities such as frequency agility to avoid causing interference to any fixed service operations licensed in the band.

12. Allowing unlicensed operation with very minimal technical requirements could potentially permit the development of new and innovative types of unlicensed devices that could not be operated under the current rules. Higher power limits and high gain antennas would substantially increase the operational range of devices and could permit the development of new types of wireless data networks. We seek comment on the following questions concerning permitting unlicensed operation in the 3650 MHz band with minimal requirements.

• What are the potential benefits and drawbacks of permitting unlicensed operation in this band subject to only the minimum rules necessary to avoid interference to licensed users?

• Is it viable to license fixed operations in this spectrum as proposed and permit operation of part 15 devices in unused portions on a non-interference basis?

• Could power levels greater than 1 watt be permitted for such operations without causing interference to authorized users within the band? If so, what is the maximum power level that could be permitted? Would any restrictions on antenna gain or directivity be necessary?

• What other requirements are necessary to protect FSS and Federal Government operations in the 3650 MHz band from interference? Are geographic restrictions on where an unlicensed device could operate necessary, and how could these be enforced? Could GPS be incorporated into a device so it could determine its precise location and distance from licensed users? Would such an approach be necessary or reliable?

• What other requirements would be necessary to prevent interference to other authorized services, such as out-of-band emission limits? What types of licensed services could share the 3650 MHz band with unlicensed devices?

• Is it necessary to establish any standards to allow sharing between unlicensed users of the 3650 MHz band? If so, how do we arrive at standards?

• Are there any other bands where unlicensed operation with minimal rules could be permitted without causing interference to authorized services? What other bands should we consider? What are the advantages of each?

13. Pursuant to Sections 4(i), 302, 303(e), 303(f), 303(r) and 307 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 154(i), 302, 303(e), 303(f), 303(r) and 307, this Notice of Inquiry is hereby adopted .

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 02-387, adopted December 20, 2002, and released December 24, 2002. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, 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.

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

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

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

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

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket Nos 02-349 and 02-350; adopted November 6, 2002 and released November 8, 2002. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202)863-2893.

The Commission further requests comment on a petition filed by Katherine Pyeatt proposing the allotment of Channel 224C2 at Sheffield, Texas, as the community's first local FM transmission service. Channel 224C2 can be allotted to Sheffield in compliance with the Commission's minimum distance separation requirements with a site restriction of 15.7 km (9.8 miles) south of Sheffield. The coordinates for Channel 224C2 at Sheffield are 30-33-15 North Latitude and 101-52-09 West Longitude. The proposed allotment will require concurrence by Mexico because it is located within 320 kilometers (199 miles) of the Mexican border.

The Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding. Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

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

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

This NPRM is designed primarily to reduce regulatory burdens on industry by incorporating changes into the Hazardous Materials Regulations (HMR) based on RSPA's own initiatives and petitions for rulemaking submitted in accordance with 49 CFR 106.95. In a continuing effort to review the HMR for necessary revisions, RSPA (“we” and “us”) is also proposing to eliminate, revise, clarify and relax certain other regulatory requirements.

The following is a section-by-section summary of the proposed changes.

The American Pyrotechnics Association (APA) petitioned us to update the incorporation by reference of APA Standard 87-1, Standard for Construction and Approval for Transportation of Fireworks, Novelties, and Theatrical Pyrotechnics, from the 1998 edition to the 2001 edition (P-1412). We agree with APA's request and, in this notice, are proposing to incorporate the 2001 edition of APA Standard 87-1. APA is a trade association of the fireworks industry that promotes safety standards for all aspects of fireworks. Its members include regulated and licensed manufacturers, distributors, wholesalers, retailers, importers and suppliers of firework and professional public display firms.

The Hazardous Material Regulations allow fireworks that are manufactured in accordance with APA Standard 87-1 to be classed, approved and assigned an EX-number by the Associate Administrator without prior laboratory examination. Because the 2001 edition of APA Standard 87-1 establishes a ten-inch limit on aerial shells for fireworks that may be classed as Division 1.3 explosives, our incorporating the 2001 APA standard would result in prohibiting shells greater than ten inches from being classed as Division 1.3 explosives. However, shells ten inches or greater could be classed and approved as Division 1.1 explosives without prior examination. We are proposing this change, but we invite comments on regulatory impacts, including any cost impact, of incorporating the 2001 APA Standard 87-1.

The Compressed Gas Association (CGA) petitioned us and we are proposing to update the incorporation by reference of the following:

The National Propane Gas Association (NPGA) petitioned us and we are proposing to update the incorporation by reference of the National Fire Protection Association (NFPA) Pamphlet—Standard for the Storage and Handling of Liquefied Compressed Gases, 1979 edition, to the NFPA 58—Liquefied Petroleum Gas Code, 2001 edition (P-1120).

Based on our own initiative, we are proposing to authorize the American Society for Testing and Materials (ASTM) E 114-95 test method for straight beam examination of the tubular surface of cylinders and tubes. ASTM E 114, in conjunction with ASTM E 213-98, is used to measure the wall thickness of a cylinder and to detect general corrosion and defects located in the path of the ultrasonic straight beam direction. ASTM E 213 is used to detect sidewall defects such as cracks, voids and pits in cylinders. We adopted ASTM E 213 for use in a final rule published in the Federal Register on August 8, 2002 (Docket HM-220D, 67 FR 51626), but inadvertently did not authorize the use of ASTM E 114.

We are also proposing to incorporate by reference the Chlorine Institute instruction booklets entitled “Chlorine Institute Emergency Kit ‘A’ for 100-lb. & 150-lb. Chlorine Cylinders” and “Chlorine Institute Emergency Kit ‘B’ for Chlorine Ton Containers”. ( See § 173.3 preamble discussion.)

We are proposing to update the incorporation by reference of the Association of American Railroads (AAR) Manual of Standards and Recommended Practices, Section C—Part III, Specification for Tank Cars, Specification M-1002, from the January 1996 edition to the December 2000 edition. We are also proposing to remove the entry for the 1992 edition of this manual since Appendix Y was revised in the 2000 edition, thus making the 1992 edition obsolete.

Currently the HMR require a shipper to notify the Bureau of Explosives (BOE) whenever a rail car containing a time-sensitive product is not received by the consignee within 20 days from shipment ( see §§ 173.314(g)(1) and 173.319(a)(3)). We are proposing to move these requirements to § 171.15 by adding a new paragraph (d) and requiring notification to the Federal Railroad Administration instead of BOE.

In response to a petition from the NPGA [P-1265], we are proposing to amend the entry for “Butylene” by adding a limited quantity exception for compressed gases ( see § 173.306) in column (8A) of the Hazardous Materials Table (HMT). This amendment would be consistent with the entries for “Petroleum gases, liquefied” and other hydrocarbons.

We are proposing to add a new domestic entry for “Cartridges power devices, ORM-D” to the HMT for consistency with the packaging exceptions authorized in § 173.63(b). This entry is limited to those cartridges, small arms and cartridges power devices which are authorized to be reclassed and shipped as ORM-D in § 173.63(b)(1).

For Zone B Toxic Inhalation Hazard entries with ID numbers UN3303, UN3304, UN3305, UN3306, UN3307, UN3308, UN3309, and UN3310, we would revise the entry in the HMT by adding Special Provisions B9 and B14; and for Zone C Toxic Inhalation Hazard entries with the same ID numbers, we would revise the entry in the HMT by adding Special Provision B14. The Special Provisions were inadvertently omitted in previous rulemakings.

For compressed gas entries with ID numbers UN 3304, UN 3305, and UN 3306 and liquefied gas entries with ID numbers UN 3308, UN 3309 and UN 3310, we propose to remove the letter “I” in column 1 of the HMT. The affected proper shipping names may be used in both domestic and in international transportation.

For the entry “Liquefied gas, toxic, oxidizing, corrosive, n.o.s.” Hazard Zones B, C and D, we are proposing to correct a typographical error in the subsidiary labeling requirements by removing the Division 2.1 label and adding the Division 5.1 label in its place.

We are proposing to revise the entry for “Gas sample, non-pressurized, toxic, n.o.s.” by adding Special Provision 6 in column (7) of the HMT. The entry is classed as a Division 2.3 (gas poisonous by inhalation) material and must be described as an inhalation hazard under the provisions of the HMR.

Currently, paragraph (d) excepts non-bulk packagings that contain only the residue of a hazardous material covered by table 2 from being included when determining placarding requirements. We are proposing to revise paragraph (d) to clarify that the exception does not apply to poison inhalation hazard materials subject to the subsidiary placarding requirements in § 172.505.

We are proposing that a DOT 3A480 or 3AA480 specification cylinder containing Chlorine or Sulphur dioxide (both materials poisonous by inhalation) that has developed a leak in the valve or fusible plug may be temporarily repaired using a Chlorine Institute “A” kit and be transported by private or contract carrier one time, one way from the point of discovery to the appropriate facilities for discharge and examination. Repairs must be performed only by personnel who have been trained in the use of the devices and tools in the Chlorine Institute “A” kit and are knowledgeable concerning the properties of chlorine and sulphur dioxide. Similarly, we are proposing to permit a DOT 106A500 specification multi-unit tank car tank containing Chlorine or Sulphur dioxide that has developed a leak in the valve or fusible plug to be temporarily repaired using a Chlorine Institute “B” kit. We have authorized the use of the kits under the exemption program for several years with satisfactory shipping experience. Incorporating the exemption provisions into the regulations will facilitate the movement of affected containers to appropriate facilities.

Currently, § 173.12(c) authorizes the reuse of packagings for shipments of “hazardous waste” to designated facilities. In response to a petition from North American Transportation Consultants, Inc. (NATC) (P-1407), we are proposing to extend the exception in § 173.12(c) to shipments of all waste materials and not just to materials that meet the definition of “hazardous waste” and are subject to the Uniform Hazardous Waste Manifest requirements of the U.S. Environmental Protection Agency.

Currently, paragraph (c) excepts non-bulk packagings that contain only the residue of a hazardous material covered by Table 2 of § 172.504(e) from being included when determining placarding requirements and from shipping paper requirements. We are proposing to revise paragraph (c) to clarify that the exceptions do not apply to poison inhalation hazard materials subject to the subsidiary placarding requirements in § 172.505.

We are proposing to add a new paragraph authorizing the continued use of DOT 103 and 104 tank cars that may no longer be constructed. We are also proposing to revise paragraph (b)(2)(ii) for clarity by removing the reference to “Chloroprene, inhibited” since Special Provision B57 addresses the requirements for chloroprene in DOT 115A tank cars, and to remove the last sentence since “breather holes” are not authorized in the regulations. In addition, we are proposing to revise paragraph (b)(5) to reflect changes to Appendix Y of the AAR Specifications for Tank cars. This change would recognize the 2000 edition of Appendix Y in the AAR Tank Car Manual.

In paragraph (b), we are proposing to add, for purposes of clarification, a parenthetical cross-reference to § 180.352 that contains detailed requirements for retest and inspection of IBCs.

The definition of “explosive” in § 173.50 currently does not specifically include pyrotechnics. We are proposing to add a statement indicating that pyrotechnic substances and articles are considered explosives unless otherwise classed.

Section 173.54 currently forbids offering a leaking or damaged package of explosives for transportation. We propose to clarify that leaking or damaged articles, even if not in a package, are also prohibited.

We are proposing to revise paragraph (c), in the table of Packing Methods, to clarify that Packing Instruction 132(a) applies to articles with closed casings and Packing Instruction 132(b) applies to articles without closed casings.

We are proposing to remove the wording “safety relief” and add the wording “reclosing pressure relief” in paragraphs (k) and (m) for consistency. Also, we are proposing to move the reporting requirements in paragraph (g)(1) to § 171.15(d) and, therefore, are proposing to remove and reserve paragraph (g)(1).

On May 24, 1999, we published a final rule (Docket HM-225A; 64 FR 28030) to require cargo tank motor vehicles (CTMVs) used to transport liquefied compressed gases to be equipped with emergency discharge control equipment, including passive systems that will shut down the unloading operation without human intervention and remote control devices that enable an attendant to stop the unloading process at a distance from the vehicle. These requirements are keyed to the degree of risk associated with the transportation of specific liquefied compressed gases. Among other requirements, the regulation requires a CTMV in metered delivery service transporting a Division 2.2 material with a subsidiary hazard, a Division 2.1 material, or anhydrous ammonia in a cargo tank with a capacity of 3,500 gallons or less to be equipped with an off-truck remote means to close the internal self-closing stop valve and shut off all motive and auxiliary power equipment. Metered delivery service means a cargo tank unloading operation conducted at a metered flow rate of 100 gallons per minute or less through an attached delivery hose with an inside diameter of 1 3/4 inches or less. A CTMV transporting a Division 2.2 material with a subsidiary hazard, a Division 2.1 material, or anhydrous ammonia in other than metered delivery service must be equipped with a passive emergency discharge control system that will shut down the unloading operation within 20 seconds of a complete separation or rupture of the delivery hose.

Since our adoption of the above requirements in 1999, it has come to our attention that there are CTMVs that transport Division 2.2 materials with a subsidiary hazard, Division 2.1 materials, and anhydrous ammonia in both metered and other than metered delivery service. A strict reading of the current regulatory requirements applicable to emergency discharge control equipment in § 173.315(n) would appear to require these CTMVs to be equipped with both a passive and an off-truck remote means of emergency discharge control. It was never our intention to require a CTMV to meet both requirements. If a CTMV operating in both metered and non-metered delivery service is equipped with a passive means of shut-down that meets the requirements in § 173.315(n)(2) and functions for both metered and non-metered deliveries, then it need not also be equipped with an off-truck remote means of shut down. In this NPRM, we propose to clarify the emergency discharge control requirements by adding a specific entry in the chart in § 173.315(n)(1) to address CTMVs that operate in both metered and other than metered delivery service. Proposed § 173.315(n)(1)(vi) would permit CTMVs in both metered and other than metered delivery service, with capacities of more than 3,500 water gallons, used to transport Division 2.2 materials with a subsidiary hazard, Division 2.1 materials, and anhydrous ammonia to be equipped with a passive means of emergency discharge control, provided that the system functions for both metered and non-metered deliveries. If the system functions only for non-metered deliveries, then the CTMV also would have to be equipped with an off-truck remote emergency discharge control system.

We are proposing to move the reporting requirements in paragraph (a)(3) to § 171.15(d) and, therefore, are proposing to remove and reserve paragraph (a)(3). ( See § 171.15 preamble discussion.)

Currently, cryogenic liquids are not subject to the requirements of the HMR when transported by motor vehicle or railcar if they meet certain conditions such as complying with the requirements in Subparts A, B, C and D of part 172. We are proposing to amend paragraph (a)(2) by adding the requirements in subparts G (Emergency Response Information) and H (Training) of part 172 for transportation by rail or highway. We never intended to except shipments of cryogenic liquids from these requirements.

Currently, § 177.834(a) requires packagings not permanently attached to the motor vehicle and containing Classes 2, 3, 7, and 8 and Division 6.1 and 6.2 materials to be secured against movement within the vehicle. Section 177.834(g) currently requires packages of Class 1, 2, 3, 4, 5, 8 and Division 6.1 and 6.2 materials to be braced to prevent relative motion between themselves. In response to a petition for rulemaking from the Georgia Public Service Commission [P-1100], we are proposing to amend § 177.834(a) to require that any packaging containing a hazardous material, regardless of class or division, be secured against movement if the packaging is not permanently attached to a motor vehicle. Additionally, we are proposing to incorporate into paragraph (a) the closely related requirements in § 177.834(g), to prevent relative motion between the hazardous material packages themselves and the vehicle and to ensure that packages that have valves or other fittings be loaded in a manner that minimizes the likelihood that the valves or other fittings will be damaged during transportation. Subsequently, paragraph (g) will be reserved. RSPA agrees with the petitioner that securement of packages containing hazardous materials to prevent movement in transit will reduce damage to packages and thus, enhance driver and public safety.

Based on our own initiative and to be consistent with a similar requirement in Parts 174, 175, and 176, we are proposing to add a new paragraph (b) requiring packages bearing orientation markings to be loaded in such a way that they remain in the correct position indicated by the markings.

Section 177.835 prohibits carrying a Division 1.1 or Division 1.2 explosive material in a combination of vehicles if the other vehicle is transporting a Division 2.3 or Division 6.1 material. This requirement is more restrictive than the “Segregation Table for Hazardous Materials” in § 177.848(d), which restricts loading and transporting of Division 1.1 or 1.2 explosives with materials in Division 2.3, Hazard Zone A or B, and in Division 6.1, PG I, Hazard Zone A. For consistency with the provisions in § 177.848(d), we are proposing to revise § 177.835(c)(4)(iii) to limit the segregation restriction to Division 2.3 materials in Hazard Zone A or B and to Division 6.1, PG I materials in Hazard Zone A.

Currently, § 177.837 does not permit the engine of a cargo tank motor vehicle to be running during loading and unloading of Class 3 materials. In response to a petition from Monsanto [P-1276], we are proposing to amend paragraph (a) to permit the diesel engine of a cargo tank motor vehicle to be running during loading and unloading of Class 3 materials if the ambient temperature is at or below −12 °C (10 °F). The petitioner states that a motor vehicle's diesel engine is very difficult to restart if the engine is turned off in extremely cold weather for loading or unloading of product. The petitioner believes that the operating benefits of leaving a motor vehicle engine running in ambient temperatures of below −12 °C (10 °F) outweigh the flammability risks. We concur and are proposing to amend § 177.837 accordingly.

We are proposing to revise paragraph (e) to expand the prohibition of transporting packagings bearing or required to bear a POISON or POISON INHALATION HAZARD label to include packagings that are placarded or required to be placarded POISON or POISON INHALATION HAZARD. Section 172.514(c) permits placarding in lieu of labeling for certain bulk packagings.

We are proposing to revise paragraph (h) to authorize use of the ASTM E 114 test method for straight beam examinations on the tubular surface of cylinders and tubes as we stated earlier in this preamble in the discussion to § 171.7.

New construction of specification DOT103 and 104 tank cars is no longer authorized; therefore, we propose to remove the specifications and all references to DOT 103 and 104 tanks cars from this part. (Continued use of DOT 103 and 104 tank cars is authorized in §§ 173.31 and 180.507.)

Paragraph (a) implies that only tanks transporting hazardous materials are subject to the jurisdiction of DOT. We are proposing to revise paragraph (a) to clarify that DOT specification tanks, even when they are transporting non-regulated commodities, are subject to the jurisdiction of DOT, at least as to the tank itself.

We are proposing to revise § 179.3 for clarity.

We are proposing to revise this section by removing an obsolete requirement to furnish a Certificate of Construction to the Department.

We are proposing to revise paragraph (f) by removing an outdated compliance date.

In paragraphs (b) and (c), we are proposing to add, for purposes of clarification, a reference to § 173.314(j), which contains excess flow valve requirements for flammable gases.

We are proposing to revise the heading for Subpart D by removing the reference to DOT-103 and DOT-104 tank cars.

We are proposing to revise the section heading by removing the reference to DOT-103 and DOT-104 tank cars.

We are proposing to revise paragraph (a) by removing the reference to DOT-103 and DOT-104 tank cars.

We are proposing to revise the section heading by removing the words “safety relief” and adding “pressure relief” in their place.

We are proposing to revise the table by removing the reference to a DOT-103-W tank car and adding a reference to DOT-111A tank car in its place.

We are proposing to revise the table by removing the entries for spec DOT-103 and DOT-104 tank cars because new construction of specification DOT103 and 104 tank cars is no longer authorized. (Continued use of DOT 103 and 104 tank cars is authorized in §§ 173.31 and 180.507.)

Section 179.201-2 addresses minimum plate thickness for DOT specification tank cars that may no longer be constructed. Therefore, we are proposing to remove and reserve § 179.201-2.

We are proposing to revise paragraph (b) by removing the reference to DOT-103 tank cars.

We are proposing to add a new paragraph authorizing the continued use of DOT 103 and 104 tank cars, which may no longer be constructed.

This proposed rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866. Therefore, it was not reviewed by the Office of Management and Budget (OMB), and a regulatory assessment was not required for OMB. This proposed rule is not considered to be significant under the Regulatory Policies and Procedures order issued by the U.S. Department of Transportation (44 FR 11034) and therefore a Regulatory Analysis under the DOT order is not required.

In this notice, we propose to amend miscellaneous provisions in the HMR to clarify the provisions and to relax overly burdensome requirements. We are also responding to requests from industry associations to update references to standards that are incorporated in the HMR. For example, the American Pyrotechnics Association petitioned us to incorporate the 2001 edition of APA Standard 87-1. (See § 171.7 preamble discussion.) These clarifications and updates of the HMR will enhance safety.

Because the proposed changes clarify the requirements and respond to requests from industry, we believe the impact of these proposed changes to be so minimal that the proposal does not warrant a regulatory evaluation. However, we invite public comments on any impacts of proposed changes and may revise this determination as a result of comments.

This proposed rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). Federal law expressly preempts State, local, and Indian tribe requirements, applicable to the transportation of hazardous materials, that cover certain subjects and are not substantively the same as the Federal requirements. 49 U.S.C. 5125(b)(1). These subjects are:

(i) The designation, description, and classification of hazardous materials;

(ii) The packing, repacking, handling, labeling, marking, and placarding of hazardous materials;

(iii) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, content, and placement of those documents;

(iv) The written notification, recording, and reporting of the unintentional release in transportation of hazardous materials; or

(v) The design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container which is represented, marked, certified, or sold as qualified for use in the transport of hazardous materials.

This proposed rule concerns the classification, packaging, marking, labeling, and handling of hazardous materials, among other covered subjects.

If adopted as final, this rule would preempt any State, local, or Indian tribe requirements concerning these subjects unless the non-Federal requirements are “substantively the same” (see 49 CFR 107.202(d)) as the Federal requirements.

Federal hazardous materials transportation law provides at 49 U.S.C. 5125(b)(2) that if RSPA issues a regulation concerning any of the covered subjects, RSPA must determine and publish in the Federal Register the effective date of Federal preemption. That effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. RSPA requests comments on what the effective date of Federal preemption should be for the requirements in this proposed rule that concern covered subjects.

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this proposed rule does not have tribal implications, does not impose substantial direct compliance costs on Indian tribal governments, and does not preempt tribal law, the funding and consultation requirements of Executive Order 13175 do not apply, and a tribal summary impact statement is not required.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities. An agency must conduct a regulatory flexibility analysis unless it determines and certifies that a rule is not expected to have a significant impact on a substantial number of small entities. This proposed rule would amend miscellaneous provisions in the HMR to clarify provisions based on our own initiative and also on petitions for rulemaking. While maintaining safety, it would relax certain requirements that are overly burdensome and would update references to consensus standards that are incorporated in the HMR.

These proposed changes are generally intended to provide relief to shippers, carriers, and packaging manufacturers, including small entities. In addition, we propose to update references to standards that are incorporated in the HMR; industry associations, representing large and small entities, requested this change.

One proposed change may have a cost impact. The APA, a trade association of the fireworks industry, filed a petition requesting that we update a reference to incorporate the 2001 edition of APA Standard 87-1. Because the 2001 edition of the APA Standard establishes a limit of ten inches on aerial shells for fireworks that may be classed as Division 1.3 explosives, our incorporating the 2001 APA standard would result in prohibiting shells greater than ten inches from being classed as Division 1.3 explosives. However, shells greater than ten inches could be classed and approved by RSPA as Division 1.1 explosives without prior examination. Therefore, it may be more expensive to transport shells larger than ten inches; those shells, however, are used only in very large shows. The entities that may be affected by this change are five manufacturers of shells over ten inches and approximately fifty importers of shells over ten inches. Some of these fifty importers are small businesses.

The changes proposed in this Notice will enhance safety, and I certify that this proposal, if promulgated, would not have a significant economic impact on a substantial number of small entities.

Under the Paperwork Reduction Act of 1995, no person is required to respond to a collection of information unless it displays a valid OMB control number. This NPRM does not propose any new information collection burdens.

This proposed rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347) requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. We developed an assessment to consider the effects of these revisions on the environment and determine whether a more comprehensive environmental impact statement may be required. We have tentatively concluded that there are no significant environmental impacts associated with this proposed rule. Interested parties, however, are invited to review the Environmental Assessment available in the docket and to comment on what environmental impact, if any, the proposed regulatory changes would have.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

In consideration of the foregoing, 49 CFR Chapter I would be amended as follows: