The Office of Personnel Management (OPM) issued proposed regulations at 68 FR 52528, on September 4, 2003, to revise the rules that govern the training of employees responsible for the management or use of Federal computer systems. We proposed streamlining the regulation where appropriate; removed text; and added a requirement for agencies to refer to the National Institute of Standards and Technology (NIST) website for the most current information on information systems security awareness and training guidelines. The 30-day comment period ended on October 6, 2003. We received comments from five Federal agencies.

One agency concurred with the proposed changes and stated that the changes are particularly beneficial.

Two agencies pointed out that the Federal Information Security Management Act (FISMA), title III of Public Law 107-347 (116 Stat 2948), and the E-Government Act of 2002, Public Law 107-347 (116 Stat 2899), repealed sections of the Computer Security Act of 1987, Public Law 100-235 (101 Stat 1724). We have changed the authority source accordingly.

One of these agencies noted that the language in the “Regulatory Flexibility Act” section of the proposed regulation did not include all individuals that the regulation will affect. We concur and have changed the language to reflect the individuals listed in Public Law 107-347 (116 Stat 2951) that are affected by this regulation.

One agency pointed out that Office of Management and Budget (OMB) Circular A-130, appendix III, also addressed OPM's responsibility to assure that its regulations concerning computer security training for Federal civilian employees are effective. Therefore, the agency suggested that OMB Circular A-130, appendix III, be referenced in the regulation. We believe the authority references are sufficient and establish the legal requirements for the regulation and that additional references are not necessary. Two agencies noted that the proposed regulation referenced a NIST website location that did not address the guidance for security awareness and training. A more direct link has been included in section 930.301(a). One of these agencies also suggested changing the word “computer” to “information technology” to better reflect the scope of the regulations and NIST guidance. We concur and have made the change where appropriate in the final regulation. Additionally, it is important to note the purpose of FISMA is to provide a comprehensive framework for ensuring the effectiveness of information security controls over any information resources that support Federal operations and assets. To that end, FISMA defines information system security to mean protecting any Federal information and information systems, which includes information technology (IT) systems, from unauthorized access, use, disclosure, disruption, modification, or destruction.

This agency also recommended that 5 CFR 903.301(a)(1) require all IT users be exposed to security awareness materials “regularly” versus “at least annually.” We do not concur. A standard and specified timeframe for training best serves the intent of the law and encourages agencies to ensure IT users' continual IT security vigilance. We did not adopt this agency's suggestion to address professionalization or certification to ensure a level of knowledge or competence because it is beyond the scope of this regulation.

The same agency recommended adding a section requiring agencies to provide training commensurate with IT systems criticality and level of risk imposed by the untrained user. We did not adopt this recommendation because this issue is addressed in the Act and covered in 5 CFR § 903.301(b) through (d). We have incorporated the agency's suggestion to change NIST “policy” to NIST “guidelines” throughout the regulation. The agency comment that NIST guidance is based on roles and responsibilities and not position titles, as indicated in the regulation, does not require a change. The regulation requires role-specific training. Identification of employees performing these roles by position title is illustrative only and does not differ from the role-specific training basis of NIST guidance.

Another agency suggested that the requirement to provide IT awareness material/exposure training to all new employees “within 60-days of their appointment” be changed to “prior to the employee's use of IT systems.” We concur and have changed the text pursuant to OMB Circular A-130, appendix III, part A, subsection A.

Pursuant to 5 U.S.C. 553(d)(3), good cause exists to waive the delay in effective date and make these regulations effective in less than 30 days. The delay in the effective date is being waived because the program changes do not mandate substantive change but will provide users more timely access to the most current applicable definitions and guidelines for information technology security awareness training.

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

I certify that these regulations would not have a significant economic impact on a substantial number of small entities because they would apply only to Federal personnel including contractors and other users of information systems that support the operations and assets of the agency.

The Commission's regulations in 10 CFR Part 2, Subpart J, provide for, among other things, the use of an electronic information management system to provide documents related to the high-level radioactive waste (HLW ) repository licensing proceeding. Originally promulgated on April 14, 1989 (54 FR 14944), the information management system required by Subpart J is to have the following functions:

(1) The Licensing Support Network (LSN) provides full text search and retrieval access to the relevant documents of all parties and potential parties to the HLW repository licensing proceeding beginning in the time period before the U.S. Department of Energy (DOE) license application for the repository is submitted;

(2) The NRC Electronic Information Exchange (EIE) provides for electronic submission of filings by the parties, as well as the orders and decisions of the Atomic Safety and Licensing Board Panel (ASLBP), during the proceeding; and

(3) The Electronic Hearing Docket (EHD) provides for the development and access to an electronic version of the HLW licensing proceeding docket.

The creation of the LSN (originally called the “Licensing Support System”) was stimulated by the requirements of section 114(d) of the Nuclear Waste Policy Act of 1982 (NWPA). This provision sets as a goal Commission issuance of a final decision approving or disapproving issuance of the construction authorization for a geologic repository for HLW within three years of the docketing of the DOE license application. The Commission anticipated that the HLW proceeding would involve substantial numbers and volumes of documents created by well-informed parties on numerous and complex issues. The Commission believed that the LSN could facilitate the timely review of DOE's application by providing for electronic access to relevant documents via the LSN before the application is submitted, rather than the traditional, and potentially time-consuming, discovery process associated with the physical production of documents after an application is submitted. In addition, the Commission believed that early access to these documents in an electronically searchable form would allow for a thorough and comprehensive technical review of the license application by all parties and potential parties to the HLW licensing proceeding, resulting in better focused contentions in the proceeding.

The current requirements in 10 CFR 2.1003(a) require the DOE to make its documentary material available in electronic form no later than six months in advance of DOE's submission of its application to the NRC. The NRC must make its documentary material available in electronic form no later than thirty days after the DOE certification of compliance. All other participants must make their documents available in electronic form no later than ninety days after the DOE certification of compliance. Originally, the LSN was conceived as a large, centralized information management system administered by what was then called the Licensing Support System Administrator (now the LSN Administrator). To take advantage of the advances in technology that occurred since the promulgation of the original rule, the Commission revised the rule to use the Internet to link geographically dispersed sites rather than rely on a complex and expensive centralized system (63 FR 71729; December 30, 1998).

As noted, one of the objectives of the regulations in 10 CFR Part 2, Subpart J is to provide for electronic submission of filings by the parties, as well as the orders and decisions of the ASLBP, during the proceeding. The purpose of this function is to reduce the time that it takes to serve filings by substituting electronic transmission for the physical mailing of filings that is typically used in NRC licensing proceedings. Shortening the amount of time for certain activities during the hearing process will support the NRC's efforts to meet the schedule in the NWPA. 10 CFR 2.1013(c)(1) requires that all filings in the HLW adjudicatory proceeding be “transmitted electronically” (emphasis added) by the submitter to the Presiding Officer, the parties, and the Secretary of the Commission. The Commission believes that the majority of these filings will consist of simple documents that can be readily transmitted by EIE. However, after further considering the nature of some of the documents that may be submitted by the parties during the proceeding, the Commission believes that it is necessary to specify requirements for submitting large and/or complex documents. This need was the reason the Commission initiated the proposed rulemaking that is the subject of this final rule. The proposed rule was published in the Federal Register on November 26, 2003 (68 FR 66372).

The proposed amendments addressed a number of aspects of the current rules:

• The requirements and standards for a party's submissions to the electronic docket for the HLW repository licensing proceeding;

• Those provisions that could result in the loading of duplicate documents on individual participant LSN document collection servers;

• The provisions related to the Secretary of the Commission's determination that the DOE license application is electronically accessible; .

• Those provisions related to the continuing obligation of LSN participants to update their documentary material; and

• Those provisions on material that may be excluded from the LSN.

The Commission received nine comments on the proposed rule from the following entities:

These comments addressed the following categories of issues:

Two commenters (DOE, NEI) recommended that the technical standards in proposed section 2.1013(c)(1) be incorporated into a guidance document rather than in the NRC regulations. These commenters noted that the proposed standards in section 2.1013(c)(1) were useful clarifications, but it was not necessary to formalize them in a rulemaking. The rationale for this recommendation was that technical capabilities can change significantly over the period of time that the HLW licensing proceeding will take place and that any needed changes to reflect new technical capabilities could more efficiently be implemented by revising guidance rather than by initiating a new rulemaking. In addition, NEI was concerned about the need for stability in the LSN regulatory framework as the date for submission of the DOE license application draws closer. NEI also recommended that, if the NRC decides to proceed with the rulemaking, it be done as expeditiously as possible. NEI also requested that the NRC provide some assurance to LSN participants on the stability of the LSN regulatory framework in the interim period while a rule was being finalized. Finally, NEI urged the Commission to issue the final revision to NRC Regulatory Guide 3.69 on the Topical Guidelines that were issued for public comment in June, 2002, See “Draft Regulatory Guide DG-3022 (Proposed Revision 1 of Regulatory Guide 3.69).” Another commenter, Progress Energy, expressed the same concerns as NEI.

The Commission has tried to balance the need for flexibility, informality, and responsiveness, i.e. , using guidance for the technical standards, with the need to ensure that the fundamental compliance requirements for LSN participants are clear, i.e. , using a rule. Accordingly, the Commission has expressed what it believes to be the most important technical standards in Section 2.1013(c)(1) of the final rule, while including the majority of the detailed technical specifications in a guidance document, “Guidance for the Submission of Electronic Docket Materials Under 10 CFR Part 2, Subpart J”, U.S. Nuclear Regulatory Commission, (Guidance Document). The Guidance Document is available on the NRC Web site, http://www.nrc.gov.

The Guidance document can also be found in the Commission's Agencywide Documents Access and Management System (ADAMS) at Accession Number ML041560341. The Guidance Document contains essential information in regard to the proper implementation of the requirements of this rule.

In terms of providing an assurance of a stable regulatory framework, the Commission is not imposing any new requirements that would significantly alter the current regulatory framework. Furthermore, the Commission does not anticipate adding any additional requirements beyond those in this final rule before the repository license application is submitted. As explained by the NRC staff at the December 2003 meeting of the LSN Advisory Review Panel, the only revision to the scope of documents covered by the Topical Guidelines in Regulatory Guide 3.69, was a proposed new exclusion for “congressional correspondence.” Therefore, the Commission does not believe that the existing regulatory framework will in any way be “destabilized.” The final revision of the Topical Guidelines will be completed immediately after this rule is finalized.

DOE had several comments on the technical standards for the submission of electronic filings to the adjudicatory proceeding.

Section 2.1013(c)(1)(iii) of the proposed rule would have required that those portions of “complex documents” that are amenable to being transmitted electronically as a filing in the HLW adjudicatory proceeding be transmitted electronically, while those parts of complex documents that were not amenable to electronic transmission be submitted on optical media. DOE, in its comment letter, questioned the advantage of electronically transmitting only some portions of a complex document. If a complex document is not amenable to submittal in its entirety via electronic transmission through the EIE, the advantage of submitting only portions of it is unclear because those portions may not be useful by themselves. DOE recommended that the entire document be submitted on optical storage media, with a transmittal letter submitted via the EIE providing notification of the submittal of that document.

The final rule maintains the approach of the proposed rule to the submission of complex documents. In terms of the usefulness of submitting portions of the document by electronic transmittal, the Commission believes that this would serve several useful purposes. First, it provides early notification that a complex document is coming in and consequently allows other parties to plan their review and possible response. Second, there often will be substantial benefit in receiving the text portion of a complex document via electronic transmission, notwithstanding the delay in receiving the additional attachments. Various Atomic Safety and Licensing Boards have been issuing orders for several years that use this practice. This has allowed the parties and the Boards to review the text portion, which contains the arguments of the parties, while awaiting the rest of the pleading. However, for purposes of the service requirements in section 2.1013(c) or the computation of time requirements in section 2.1017, the filing of a complex document or a large document is not complete until all portions of the document have been submitted.

Section 2.1013(c)(1)(iv) of the proposed rule would have required that all electronic submissions to the EHD have 300 dots per inch (dpi) minimum resolution for bi-tonal, color, and grayscale. DOE noted the inconsistency between these EHD requirements and the requirements in section 2.1011(b)(2)(iv) for documents placed on individual LSN participant Web sites. The LSN participant Web site documents are required to have 300 dpi for bi-tonal but 150 dpi minimum resolution for grayscale and color. DOE recommended that the final rule on the EHD be consistent with the LSN participant Web site requirements to avoid having to convert the color and grayscale parts of existing documents from 150 dpi to 300 dpi. According to DOE, this would not be “an efficient use of resources.” The Commission interprets this latter phrase to mean that the conversion would be not only costly, but unnecessary because 150 dpi color and gray scale would be fully readable. DOE also noted that the Guidance Document states that there is flexibility with respect to the minimum resolution as long as the integrity and quality of the document result in readable copies. The DOE suggests that this flexibility should be added to the rule if the technical requirements are to be retained in the rule.

Records submitted to the NRC as part of the Electronic Hearing Docket are Federal “official agency records.” The National Archives and Records Administration (NARA) issued a standard that records scanned after December 23, 2002, must meet the minimum standard of 300 dpi for bi-tonal, color, and grayscale documents. The NRC adopted this standard on January 1, 2004, the effective date for the NRC final rule on the electronic maintenance and submission of information to the NRC (68 FR 58792; October 10, 2003). The NRC has considered the DOE's concern with regard to the “efficient use of resources.” In response, the NRC has modified language in the rule to: (1) require submitters to use the 300 dpi standard for documents created after the January 1, 2004 effective date of the electronic maintenance rule, except in limited circumstances in which (a) submitters may need to use an image scanned before January 1, 2004, in a document created after January 1, 2004 or (b) the scanning process for a large, one-page image may not successfully complete at the 300 dpi standard resolution; and (2) require that documents created or scanned before January 1, 2004, (or for those documents in 1(a) or (b) above), meet the standards for documents placed on LSN participant Web sites in section 2.1011(b)(2)(iv) which is 150 dpi for color and grayscale documents and 300 dpi for bi-tonal documents. The Commission is also assuming that this document image resolution requirement for LSN participant Web sites would meet the criterion of “readability.”

Section 2.1013(c)(1)(v) of the proposed rule would have required electronic submissions to be generated in Adobe Acrobat Portable Document Format (PDF). DOE noted that this PDF requirement was inconsistent with the requirement for LSN participant Web sites in section 2.1011(b)(2)(iv) that allows Tagged Image File Format (TIFF). DOE suggests that files on LSN participant Web sites that are submitted to the adjudicatory proceeding be allowed to be submitted in the TIFF format. Converting images in the LSN that are usable in TIFF format to PDF format for the EHD would again, according to DOE, “not be an efficient use of resources.”

The electronic documentary material submitted to the EHD will be entered as official agency records in ADAMS. The PDF became the NRC standard for official agency records on January 1, 2004, the effective date for the NRC final rule on the electronic maintenance and submission of information to the NRC (68 FR 58792; October 10, 2003). The NRC has adopted PDF as the NRC standard for this official agency records system based on the following:

• PDF represents a “generic” format that behaves consistently across multiple hardware and operating systems;

• When files are distributed in PDF, the information is “locked down” for the general user, who can access the content through the use of PDF viewer software;

• The PDF standard, though it is proprietary to Adobe, has been published, is freely available, and the capability to create PDF documents has been integrated into many other software applications;

• PDF documents can be generated from any application that can generate Postscript printer files; thus anything that can be printed can be represented in PDF;

• PDF supports file generation options for text-oriented files produced on a word processing or publishing system;

• PDF supports file generation options for scanned image-oriented files; and

• PDF supports file generation options for scanned text-oriented files capable of full text search.

In contrast, adherence to the PDF standards for NRC official agency records is not required for purposes of individual LSN participant Web sites and therefore, TIFF is acceptable under section 2.1011(b)(2)(iv). The Commission also believes that TIFFs can readily be converted to PDF using features inherent in PDF-authoring software. In those rare circumstances where technical reasons would prevent the successful conversion to PDF, DOE or any other LSN participant, can submit the image in TIFF and include a detailed statement of the technical reasons that prevent conversion to PDF, in a transmittal letter to accompany the filing.

Section 2.1013(c)(1)(vi) of the proposed rule requires that documents be free of hyperlinks to other documents or Web sites other than within a single PDF file. DOE notes that some documents may have embedded hyperlinks that are difficult to remove. The DOE suggests that the requirement be revised to state that use of the document in the EHD should not depend on hyperlinks to other documents or Web sites. The Commission understands this comment to suggest that there should be no restriction in the rule on documents containing hyperlinks, but that the use of the document in the hearing may not depend on those hyperlinks.

The Commission has considered the DOE comments and has revised the final rule to allow hyperlinks to be contained in documents submitted to the EHD. The Commission believes that it will be difficult and costly to remove these hyperlinks. Instead of prohibiting a document from being submitted with hyperlinks, section 2.1013(c)(1)(vi) of the final rule would prohibit reliance on the hyperlinks for purposes of providing additional evidentiary material or completing a submittal. This would require the submitter to review all documents submitted to the EHD for hyperlinks to the Internet or other documents. Any necessary material would need to be included in the filing or as an attachment to the filing.

However, the Commission is also concerned that hyperlinks in a filing that do not function, or that link a user to an external website that has changed or perhaps contains some type of offensive material, could create a negative perception of the integrity of the EHD database. Therefore, the final rule requires each electronic submission to contain a disclaimer that notifies the reader that the hyperlinks in the filing may not operate or may link the reader to material that is not intended to be necessary, or in some cases, even related, to the use of the filing in the proceeding. This disclaimer must either be in the transmittal memorandum required for filings over 50 MB or in the body of the pleading for filings under 50 MB. The single exception to the use of hyperlinks in a filing is when the hyperlink connects to another part of the same PDF file. The use of hyperlinks in this context is permissible. This also has implications for the minimum size of a file that is submitted to the EHD. The Commission encourages submitters to combine small files that are components of a larger document into one file to facilitate efficient distribution and use of the documentary material. For example, if a document consists of 15 separate 2 MB files, those 15 files should be combined to result in one 30 MB file. This will allow submitters to use hyperlinks in a larger file, i.e. , a single electronic file up to 50 MB.

DOE noted that the definition of complex documents in section 2.1001 of the proposed rule could be viewed as inconsistent with the definition in the Supplementary Information for the proposed rule. Proposed section 2.1001 states that a complex document has substantial portions that are neither textual nor image. However, the Supplementary Information (68 FR 66374) states that complex documents can also include a textual or graphic file that cannot be segmented into 50 megabyte (MB) files. The DOE suggests that the description in the Supplementary Information be used as the definition in section 2.1001 of the rule.

The Commission agrees and has revised the definition accordingly.

Section 2.1012(a) provides that the DOE license application cannot be docketed unless the Secretary of the Commission determines that the license application can be effectively accessed through ADAMS. DOE is concerned that this establishes a requirement on DOE that is beyond its control. Entering documents into ADAMS is strictly a NRC function and ADAMS is under the sole control of the NRC. Any accessibility problems resulting from entering the license application into ADAMS would be the responsibility of the NRC. DOE notes that, in preparing its electronic license application, the DOE is responsible for meeting the NRC requirements, as well as addressing any guidance that has been issued by the NRC, and transmitting the license application to the proper address and in the proper format(s) specified by the NRC for these actions. If the DOE meets clearly defined specifications for such transmittals, the NRC should be able to make the document available through ADAMS.

The DOE recommends that section 2.1012(a) be revised to read: “The Director may determine that the tendered application is not acceptable for docketing under this subpart if the application is not accompanied by an updated certification pursuant to section 2.1009(b) or if the application is not submitted on optical storage media in a format consistent with NRC regulations and guidance.”

The Commission agrees with this suggestion and has revised the final rule accordingly. However, in addition to the above two criteria, the Commission has also added a third criterion on non-compliance with any other requirements in Subpart J.

Proposed section 2.1003(e) would have required an LSN participant to supplement its LSN Web site with any documentary material created after the time of initial certification. NEI was concerned that this requirement could continue indefinitely. It is NEI's opinion that the requirement to supplement ends when discovery, in the form of document production, is completed.

The Commission agrees and has revised section 2.1003(e) to specify that the requirement to supplement ends when discovery is complete. The Commission anticipates that discovery will be complete by the time set for the second Pre-Hearing Conference at which issues for hearing will be finalized and schedules for prefiled testimony and hearing will be set. See Appendix D to 10 CFR Part 2. However, it should be emphasized that the Board could extend discovery beyond this time period. Moreover, although there is no obligation on an LSN participant to add new documents to its site after discovery closes, an LSN participant does have an obligation to maintain its existing LSN collection intact and available for the balance of the construction authorization proceeding. Parties will have a continuing need to search LSN participant databases during the evidentiary hearing and throughout the NRC appellate process.

Nye County, Nevada expressed the view that the exclusion for congressional correspondence in proposed section 2.1005(i) seems overly broad. The commenter believes that it is entirely conceivable that somewhere in correspondence with a member of Congress or with congressional staff, DOE, or any other party, may have made relevant and admissible statements about some technical issues affecting the licensibility of Yucca Mountain. To exclude all such correspondence categorically is unwarranted. According to Nye County, a better approach would be to limit the exclusion to correspondence involving such matters as budget, and program management.

The Commission appreciates the thoughtful comments of Nye County on this matter. However, the Commission continues to believe that this type of material will not have a significant bearing on repository licensing issues. Much of this material either relates to budgetary issues and schedules or is merely a summary of information in an agency primary document. It would normally not be the source of material that a party would rely on for its case in the hearing or a source of material that would be contrary to such reliance information. However, most, if not all, of the material directed to Federal entities of concern to Nye County, would still be available as part of the normal Federal recordkeeping requirements. If a particular item of Congressional correspondence does become relevant to a contention admitted in the HLW proceeding, it can be made available at that time. The Commission does not anticipate that any disputes over this clearly and narrowly defined exclusion will be brought before the Pre-license Application Presiding Officer (PAPO).

Three commenters, the Agency for Nuclear Projects in the State of Nevada's Governor's Office, the Nevada Nuclear Waste Task Force, and Eureka County's Yucca Mountain Information Office, all raised concerns on the timing of LSN participant certification in relation to DOE's certification. The current requirements in 10 CFR 2.1003(a) require the DOE to make its documentary material available in electronic form no later than six months in advance of DOE's submission of its license application to the NRC. The NRC must make its documentary material available in electronic form no later than thirty days after the DOE certification of compliance. All other participants must make their documents available in electronic form no later than ninety days after the DOE certification of compliance. However, these commenters noted that although DOE may have all of its documentary material available on its LSN document server by the time required for certification, it is possible that the DOE collection would not yet have been indexed and audited by the LSN Administrator. Therefore, the entire DOE collection would not yet be “available” to the public. The commenters recommended that the Commission add an additional certification by the LSN Administrator that the DOE collection had been indexed and audited. This LSN Administrator certification would then become the tolling event for the certification by all other LSN participants, rather than the DOE certification.

At the outset, the Commission notes that an amendment such as that recommended by the commenters is outside the scope of this rulemaking. This issue was not raised in the proposed rule and was not intended to be part of this rulemaking effort. However, the Commission also recognizes the importance of this concern. The NRC is pursuing an approach with DOE to ensure that the DOE collection has been indexed and audited by the LSN Administrator in approximately the same time frame as the DOE certification. This should ensure that an indexed and baselined DOE collection will be available to other LSN participants well in advance of the point at which the NRC dockets an acceptable DOE license application.

Lincoln County and the City of Caliente, in their comments on the proposed rule, urged the Commission to clarify the extent to which Yucca Mountain repository system transportation related information will be considered during licensing and, therefore, be required for inclusion within the LSN. The County and the City believe that the Yucca Mountain licensing proceeding should encompass all aspects of the Yucca Mountain repository transportation system.

The Commission recognizes that issues related to the transportation of High Level Waste (HLW) and Spent Nuclear Fuel (SNF) to the Yucca Mountain site in Nevada are of concern to members of the public. These issues are complicated by the multi-agency coordination that is required between DOE, the Department of Transportation (DOT), and the NRC. As a preliminary matter, it is important to distinguish the role of the NRC in matters related to transportation. The only role of the NRC in the licensing proceeding for Yucca Mountain with respect to transportation issues is to review the DOE Environmental Impact Statement (EIS), for adoption to the extent practicable.

The Nuclear Waste Policy Act of 1982, 42 U.S.C. 10101, et seq. , as amended (NWPA), provides the primary framework for issues related to the proposed Yucca Mountain repository, including transportation issues. Section 114(f) of the NWPA requires DOE to prepare an EIS, part of which may include an evaluation of transportation impacts. Additionally, section 114(f) mandates that the NRC, to the extent practicable, adopt the DOE EIS, including those parts of the EIS related to transportation. Such adoption shall be deemed to satisfy the responsibilities of the NRC under NEPA and “no further consideration shall be required.” See NWPA section 114(f)(4). The Topical Guidelines in Regulatory Guide 3.69 specifically address those aspects of transportation that are included under documentary material for purposes of the LSN.

As noted, one of the objectives of the regulations in 10 CFR Part 2, Subpart J is to provide for electronic submission of filings by the parties, as well as the orders and decisions of the Atomic Safety and Licensing Board, during the proceeding. The purpose of this function is to reduce the time that it takes to serve filings by substituting electronic transmission for the physical mailing of filings that is typically used in NRC licensing proceedings. Shortening the amount of time for certain activities during the hearing process will support the NRC's efforts to meet the schedule in the NWPA. 10 CFR 2.1013(c)(1) requires that all filings in the HLW licensing proceeding be transmitted electronically (emphasis added) by the submitter to the Presiding Officer, the parties, and the Secretary of the Commission. The Commission believes that the majority of these filings will consist of simple documents that can be readily transmitted by EIE. However, after further considering the nature of some of the documents that may be submitted by the parties during the proceeding, the Commission believes that it is necessary to specify requirements for submitting large and/or complex documents.

Large documents consist of electronic files that, because of their size, create challenges for both the NRC staff, potential parties and the public when transmitting, viewing, or downloading the document ( e.g. , significant delays in transmission, uploading, or downloading times). The Commission anticipates that the potential license application and some filings in the HLW repository adjudicatory proceeding will be of a size that will create transmission, viewing, or downloading challenges. In electronic format, some of these files could be up to several hundreds of megabytes (MB) in size. Examples of potential large documents are:

• DOE Site Characterization Plan

• DOE License Application and supporting materials

• DOE Environmental Impact Statement

• Some adjudicatory documents ( e.g. , motions, responses, transcripts, exhibits, and orders)

Additionally, any or all of these types of documents could contain embedded photographs, charts, tables, and other graphics.

Complex documents consist (entirely or in part) of electronic files having substantial portions that are neither textual nor image in nature, and graphic or other Binary Large Objects that exceed 50 MB and cannot be logically divided. For example, these types of specialized documents may include:

• Executable files, which can be opened (run) to execute a programmed series of instructions on a computer or network;

• Runtime executable software, which generally is operational upon demand without being installed on a computer or network;

• Viewer or printer executable software that causes images to be displayed on the computer monitor or pages to print on an attached printer;

• Files from a dynamic link library (.dll), which are a collection of small, bundled executable programs that each provide one or more distinctive functions used by application programs and operating systems and are available when needed by applications or operating systems;

• Large data sets associated with an executable; and

• Actual software code for analytical programs that a party may intend to introduce into the proceeding.

As part of complex document submittals, the NRC anticipates receiving files that—

(1) Due to their file size, may preclude easy transmission, retrieval, and use; or

(2) May require specialized software and/or hardware for faithful display and subsequent use; and

(3) May not be suitable for inclusion in a “generic” file format such as the Adobe” Acrobat Portable Document Format (PDF).

Examples of files that could be part of a complex document are:

There are several potential problems presented by the electronic transmission of these large or complex documents, including the “time out” problems when submitting very large documents via the Internet, difficulty of use in the hearing room, and Federal records management considerations. These potential problems are evaluated in more detail in the regulatory analysis for this final rule.

In response to these potential problems, the Commission is revising the framework for the submission of filings during the HLW licensing proceeding. This revised framework is based on segmenting large documents using manageable file size units to reduce the potential for interruption or delay in transmission, uploading, or downloading. For example, large documents could be segmented into pieces, which correspond to the organization (chapters or sections) of the document, in order to address the transfer and retrieval performance problems discussed above. The author of the document would be in the best position to break up document files into usable segments without adversely impacting the organization or content of the document.

The electronic submission of filings in the HLW repository proceeding must be made via the Internet using the NRC EIE, when practicable. The EIE is an electronic transfer mechanism being established by the NRC for electronic transmission of documents to the agency via the Internet. EIE provides for the transmission of documents in a verifiable and certifiable mode that includes digital signatures.

The final amendments revise section 2.1001 to establish three categories of electronic filings for purposes of the HLW repository proceeding and would revise section 2.1013(c)(1) to specify the submission requirements for these three categories of electronic filings.

“Simple documents” are textual or graphic oriented material that are less than 50 megabytes (MB) in size. These documents are transmitted electronically via EIE as contemplated by the current 10 CFR 2.1011. Test results have demonstrated that 50 MB is a reasonable size for downloading files across wide area networks or from the Internet via phone lines.

“Large documents” are those that have textual or graphic oriented material larger than 50 MB in size. Under revised section 2.1013(c)(1)(ii), these documents must be submitted via the EIE in multiple transmissions of 50 MB or less each. The large document submission may also be supplemented with a courtesy copy on optical storage media to provide NRC staff, parties, and interested governmental participants in the HLW repository proceeding with a useful reference copy of the document. For purposes of the NRC staff review of the DOE license application, as opposed to an electronic submission to the adjudicatory docket, the requirements for DOE's submission of the license application are already specified in 10 CFR 63.22 of the Commission's regulations. 10 CFR 63.22(a) specifies that the application, any amendments to the application, and an accompanying environmental impact statement and any supplements, must be signed by the Secretary of Energy or the Secretary's representative and must be filed with the Director in triplicate on paper and optical storage media. In addition, 10 CFR 63.22(b) requires that 30 additional copies of the license application be submitted on paper and optical storage media.

“Complex documents” are any combination of the following:

• Textual or graphic-oriented electronic files

• Electronic files that cannot be segmented into 50 MB files

• Other electronic objects, such as computer programs, simulations, video, audio, data files, and files with special printing requirements.

Under final section 2.1013(c)(1)(iii), those portions of complex documents that can be electronically submitted through the EIE, again in 50 MB or less segments, will be transmitted electronically. Those portions that are not amenable to electronic transmission will be delivered on optical storage media. The optical storage media must include the complete document, i.e. , include the portions of the document that have been delivered via the EIE.

In addition to these revisions, section 2.1013 (c)(1) is amended to require the following:

• Electronic submissions of files created after January 1, 2004 must have 300 dots per inch (dpi) as the minimum resolution for bi-tonal, color, and grayscale, except in limited circumstances in which (a) submitters may need to use an image scanned before January 1, 2004, in a document created after January 1, 2004, or (b) the scanning process for a large, one-page image may not successfully complete at the 300 dpi standard resolution.

• Electronic submissions of files created before January 1, 2004, or electronic submissions created after January 1, 2004, which cannot meet the 300 dpi standard for color and grayscale, must meet the standard for documents placed on LSN participant Web sites (10 CFR Part 2.1011(b)(2)(iv)) which is 150 dpi for color and grayscale documents and 300 dpi for bi-tonal documents.

• Electronic submissions must be in the appropriate PDF output format. These formats and their use are:

• PDF—Formatted Text and Graphics—use for textualdocuments converted from native applications

• PDF—Searchable Image (Exact)—use for textual documents converted from scanned documents

• PDF—Image Only—use for graphic-, image-, and forms-oriented documents

• Electronic submissions to the hearing docket cannot rely on the use of any hyperlinks to other electronic files or websites to generate additional documentary material. Any such documentary material must be submitted either as an attachment to the filing or as a separate filing. If a submittal contains hyperlinks, then it must include a disclaimer to the effect that the hyperlinks may be inoperable or are not essential to the use of the filing.

• Electronic submissions to the EHD may rely on the use of hyperlinks within the same PDF file.

• Electronic submissions must be free of any security restrictions imposed by the author (proposed section 2.1013(c)(1)(vii)).

Additional information on the submission of these filings will be provided in the Guidance Document, discussed earlier. The Guidance Document is available on the NRC Web site ( http://www.nrc.gov ). The NRC expects parties, interested governmental participants, and potential parties to use the detailed instructions in the Guidance Document to ensure that their electronic filings are effectively submitted. Areas covered by the Guidance Document address the need for and format of the transmittal letter for electronic filings, file naming conventions, copyrighted information, and instructions on sensitive or classified information.

The final revisions clarify the responsibility of the Secretary of the Commission, under section 2.1012(a), to determine whether the DOE license application for a HLW repository is in an electronic media form and format that is acceptable for docketing. Under section 2.1012(a), the DOE license application cannot be docketed unless the Secretary of the Commission determines that the DOE license application has been submitted on optical storage media in a format consistent with NRC regulations and guidance.

Section 2.1003 of the current LSN rule requires a party, a potential party, or an interested governmental participant (hereinafter “participant”) to make its documentary material available in electronic form. The definition of “documentary material” includes material prepared by an individual participant, for example, all reports or studies prepared by, or on behalf of, a participant. It also includes other material in the possession of the participant on which the participant intends to rely and/or cite in support of its position in the HLW repository proceeding or that doesn't support its position. This provision can be read to obligate a party who possesses a document prepared by another participant to make that document available on its LSN document collection server even though it is already available on the LSN document collection server of the party who had prepared the document. For example, under this interpretation a document prepared by DOE would not only need to be available through the centralized LSN Web site from the DOE LSN document collection server, but also from the LSN document collection server of other participants. Without compromising the objective of ensuring that all documentary material is available on the LSN, the Commission believes that it would be beneficial to eliminate or at least significantly reduce the loading of duplicate documents. Reducing duplication will not only alleviate burdens on the participants, but will also make search and retrieval of the LSN collection more efficient. Therefore, the final amendment to section 2.1003(a)(1) allows an LSN participant to avoid loading a document created by another LSN participant if that document has already been made available by the LSN participant who created the document or on whose behalf the document was created.

If, in the process of eliminating duplicate documents, an LSN participant identifies a document which the creator of that document has not included on its LSN document collection server, as a practical matter, the participant who identified the document should include it on its LSN document collection server, as well as notifying the creator of the document that it is taking that action. Moreover, in such circumstances, it is not apparent what purpose would be served by raising the issue before the PAPO unless the documentary material has some readily apparent significance as a Class 2 document (as delineated in the discussion below) or a significant number of “missing” documents were identified with regard to a particular LSN participant, so as to raise the issue of a concerted, deliberate effort not to comply with the regulations.

The Commission is also amending section 2.1003 by adding a new paragraph (e) to this section. Section 2.1003(e) requires LSN participants to supplement the documentary material provided under section 2.1003(a) in its initial certification with documentary material produced after that event. While much of an LSN participant's documentary material will be made available early, it is reasonable to expect that additional material will be created after the initial compliance period specified in section 2.1003(a). In addition, the ongoing performance confirmation program required of DOE by section 63.131 of the Commission's regulations will generate additional documentary material after the license application is docketed. The Commission has revised section 2.1003(e) to specify that the requirement to supplement ends when discovery is completed. The schedule in Appendix D to 10 CFR Part 2 anticipates the close of discovery to occur near the time of the second pre-hearing conference held to finalize issues for hearing and schedules for prefiled testimony and hearing. However, during the proceeding, the Atomic Safety and Licensing Board can always direct that additional discovery or discovery supplementation must take place. Moreover, it should be added that while there is no obligation on an LSN participant to add new documents to its site after discovery closes, an LSN participant does have an obligation to maintain its existing LSN collection intact and available for the rest of the proceeding. Parties will have a continuing need to search LSN participant databases during the evidentiary hearing and throughout the NRC appellate process.

Finally, the Commission is providing further information and a clarification on the responsibilities of LSN participants in regard to the three classes of documentary material in section 2.1001. These three classes are:

1. Any information on which a party, potential party, or interested governmental participant intends to rely and/or cite in support of its position in the HLW repository proceeding;

2. Any information that is known to, and in the possession of, or developed by the party that is relevant to, but does not support, that information noted in item 1 or that party's position; and

3. All reports and studies prepared by or on behalf of a potential party, interested governmental participant, or party, including all related “circulated drafts” relevant to the application and the issues set forth in the Topical Guidelines, regardless of whether they will be relied upon or cited by a party.

The first two classes of documentary material are tied to a “reliance” criterion. Reliance is fundamentally related to a position that a party in the HLW repository proceeding will take in regard to compliance with the Commission regulations on the issuance of a construction authorization for the repository. These compliance issues take the form of “contentions” of law or fact that a party has successfully had admitted for litigation in the HLW repository proceeding under the rules of practice in 10 CFR Part 2. The third class of material, “reports and studies prepared for or on behalf of the potential party” has meaning independent of any contentions that might be offered. The material in this class must be available on the LSN regardless of whether it has any relation to a contention offered at the hearing. It is also a likely source of the material that a party would use to develop its contentions. “Reports” and “studies” will also include the basic documents relevant to licensing such as the DOE EIS, the NRC Yucca Mountain Review Plan, as well as other reports or studies prepared by a LSN participant or its contractor.

To fall within the definition of “documentary material”, reports or studies must have a nexus to both the license application (emphasis added) and the Topical Guidelines contained in NRC Regulatory Guide 3.69. This dual requirement is designed to ensure that LSN participants do not have to identify, and include as documentary material, reports or studies that have no bearing on the DOE license application for a geologic repository at the Yucca Mountain site, such as reports or studies on other potential repository sites or on issues outside of the NRC licensing criteria. In addition, § 63.21 of the Commission's regulations requires that the DOE Environmental Impact Statement (EIS) must accompany the license application. Therefore, reports and studies relevant to issues addressed by the DOE EIS must also be made available as Class 3 documentary material. This is also consistent with the coverage of the Topical Guidelines.

To assist participants in identifying documentary material that may be relevant to the license application in the time period before it is submitted, the Commission is recommending that LSN participants use the NRC Yucca Mountain Review Plan (NUREG-1804, Rev. 2, July, 2003) as a guide. The Yucca Mountain Review Plan provides guidance to the NRC staff on evaluating the DOE license application. As such, it anticipates the form and substance of the DOE license application and can be used as a reliable guide for identifying documentary material.

The Commission also notes that the history of the LSN and its predecessor, the Licensing Support System, makes it apparent it was the Commission's expectation that the LSN, among other things, would provide potential participants with the opportunity to frame focused and meaningful contentions and to avoid the delay potentially associated with document discovery, by requiring parties and potential parties to the proceeding to make all their Subpart J-defined documentary material available through the LSN prior to the submission of the DOE application. These objectives are still operational. Nonetheless, the Commission is clarifying that, because the full scope of coverage of the reliance concept will only become apparent after proffered contentions are admitted by the Presiding Officer in the proceeding, an LSN participant would not be expected to identify specifically documents that fall within either Class 1 or Class 2 documentary material in the pre-license application phase.

In this regard, the Commission still expects all participants to make a good faith effort to have made available all of the documentary material that may eventually be designated as Class 1 and Class 2 documentary material by the date specified for initial compliance in section 2.1003(a) of the Commission's regulations. Thereafter, in conjunction with its license application submission, DOE would be required to supplement its Class 1 and Class 2 documents to the degree the application makes it apparent the scope of the DOE documentary material in those classes had changed, a process that might well be repeated by all parties following the admission of contentions. Finally, as part of the regular post-contention admission discovery process under section 2.1018, a party could be required to identify the specific documents that comprise its Class 1 and Class 2 documentary material. As a consequence, while it is not possible to say there are no special circumstances that would necessitate a ruling by the PAPO on the availability of a particular document in the pre-license application stage based on its Class 1 or Class 2 status, disputes over Class 1 and Class 2 documentary material generally would be of a type that would be more appropriately raised before the Presiding Officer designated during the time following the admission of contentions when the NRC staffis working to complete the Safety Evaluation Report in its entirety.

The Commission has reviewed its procedural rules for the HLW repository licensing proceeding, including the LSN requirements, to assess whether they appropriately reflect the evolution of the relevant technology, law, and policy since the rules were originally promulgated in 1987, being mindful of a recent report by the House Committee on Appropriations (Committee), issued July 2003, expressing concern on the extent of documentation that DOE may be required to provide as part of the LSN. The Committee encouraged the Commission to review its regulatory requirements regarding the LSN to ensure that they do not require the duplication of information otherwise easily obtainable, focus on information that is truly relevant to the substantive decisions that will have to be made, and establish a time frame in accord with the traditional conduct of an adjudicatory proceeding. 1 Based on our review, the Commission has determined that the LSN rule could be further revised to address the Committee's concerns, while still maintaining the overall purpose and functionality of the LSN.

The Commission is revising section 2.1005 of the rule to specify an additional category of documents, “congressional correspondence,” that may be excluded from the LSN. Section 2.1005 of the Commission's regulations establishes several categories of documents that do not have to be entered into the LSN, either under the documentary material requirements of section 2.1003, or under the derivative discovery provisions of section 2.1019. These include materials that are either widely available or do not have any significant relevance to the issues that might be litigated in the HLW licensing proceeding. The Commission is adding “correspondence between a party, potential party, or interested governmental participant and the Congress of the United States' to these exclusions. This reflects the Commission's current judgment that this type of material will not have a significant bearing on repository licensing issues. Much of this material either relates to budgetary issues and schedules or is merely a summary of an entity's primary document. It would normally not be the source of material that a party would rely on for its case in the hearing or as a source of material that would be contrary to such reliance information. However, the correspondence generated by Federal entities will still be available as part of the normal Federal recordkeeping requirements. If a particular item of Congressional correspondence does become relevant to a contention admitted in the HLW proceeding, it can be made available at that time. The Commission does not anticipate that any disputes over this clearly and narrowly defined exclusion would be brought before the PAPO.

The Presidential memorandum dated June 1, 1998, entitled, “Plain Language in Government Writing,” directed that the Government's writing be in plain language. This memorandum was published June 10, 1998 (63 FR 31883). In light of this directive, editorial changes have been made in these proposed revisions to improve the organization and readability of the existing language of the paragraphs being revised. These types of changes are not discussed further in this document. The NRC requested comment on the proposed rule specifically with respect to the clarity of the language used. The Commission did not receive any comments on this aspect of the proposed rule.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or otherwise impractical. This final rule would establish requirements and standards for the submission of filings to the electronic docket for the HLW licensing proceeding. Although the specific standards in the final rule are unique to the Commission's HLW repository proceeding, they are based on industry-wide standards such as Portable Document Format (PDF).

The NRC has determined that this final regulation is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared.

This final rule does not contain information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ).

The Commission did not receive any specific comments on the regulatory analysis for the proposed rule. The regulatory analysis for the final rule has not been changed.

The following regulatory analysis identifies several alternatives to the rule set forth in the final rule. Subpart J of 10 CFR Part 2 establishes an electronic environment for the adjudicatory proceeding for consideration of a potential license application by the U.S. Department of Energy (DOE) for a proposed HLW repository at Yucca Mountain, Nevada. The NRC expects to begin receiving and processing a significant volume of electronic documents associated with the adjudicatory proceeding in the near future. Some of these filings will consist of large or complex documents. Examples of material in these large electronic files include maps, charts, video presentations, computer modeling or simulation programs with their associated databases, and narrative reports with extensive embedded graphic objects. Consistent with 10 CFR Part 2, Subpart J:

• The NRC has established the Licensing Support Network (LSN) so that all parties, potential parties, and participants in the proceeding will be able to make their documentary material electronically available to meet document discovery requirements.

• The NRC will direct all participants in the adjudicatory proceeding to use the agency's EIE capabilities to submit their filings electronically to the NRC when practicable.

• After processing, documents submitted in the HLW repository proceeding would be available in the Electronic Hearing Docket (EHD), which is accessible via the Internet; electronic objects that cannot be made directly accessible via the EHD Web site, such as computer simulation models, will be described in the EHD and made available on optical storage media.

The assessment of existing and anticipated technology capabilities identified a number of potential issues that may make it difficult to meet the challenges of electronic submission of large documents as specified in 10 CFR Part 2, Subpart J. Those challenges are driven by the following fundamental issues:

• Technology limitations of current electronic document and records transmission and management systems.

• Maintaining document and object fidelity, integrity, and authenticity.

• Receiving source document formats in an acceptable resolution.

• Management of and access to non-textual information.

• Federal recordkeeping requirements.

• General usability of the electronic submittals.

• Potential limitations of information technology (hardware, software, or Internet service provider) used by the general public.

Documents may be large, complex, or a combination of both, as follows:

• Large documents consist of electronic files that, because of their size, create challenges for both the NRC and the public when transmitting, viewing, or downloading the document ( e.g. , significant delays in transmission, uploading, or downloading times). The NRC anticipates that the potential license application and some filings in the HLW repository adjudicatory proceeding will be of a size that will create transmission, viewing, or downloading challenges. In electronic format, some of these files could contain several hundred megabytes.

• Complex documents consist (entirely or in part) of electronic files having substantial portions that are neither textual nor image in nature, and graphic or other Binary Large Objects that exceed 50 MB and cannot be logically divided. For example, specialized exhibits may include computer software programs and their operating components, large data files, and actual software code for analytical programs that a party may intend to introduce into the proceeding.

Large and/or complex documents may pose challenges in any or all of the following general areas:

When submitted via the Internet, very large documents or files can cause “time-out” problems for computers at either end of the transfer, resulting in a failed or canceled transfer. Transmission times are dependent on the speed of the sender's communication device and the technology used by the Internet service provider. Very large documents or files require lengthy transmission times during which the potential for error conditions or other service interruptions increases in direct proportion to the time the communication link must be maintained. The time-out problems could affect each party who receives the documents as part of the service of a filing. The actual transfer times for very large documents or files may approach 24 hours using standard Internet File Transfer Protocol (FTP) routines. In terms of ensuring timeliness, this may not be a significant improvement over the use of an overnight courier to send the files on optical storage media ( e.g. ,CD-ROM).

Keeping a large document together in one very large file may allow users to easily search for, retrieve, and analyze the document in its entirety, but may result in service interruption problems similar to those described above. This is particularly true if a user wants to download the image file of one of these large documents. Retrieval time will be unacceptably slow, or will result in a time-out problem with the user's Internet connection.

Users of the EHD may encounter comparable download delays because of the file size of large or complex documents and, depending on the nature of the file, the file may not be executable on a user's desktop personal computer because of configuration, memory, display, or other technical problems.

Large documents may be pre-filed as potential exhibits in the docket; however, in a hearing room, it is possible that only portions of such documents, e.g. , specified chapters, pages, or paragraphs will be offered. In a dynamic and fast-paced hearing room environment, it would not be desirable to delay the proceeding to wait for a large file to load; navigate to the desired chapters, pages, or paragraphs; and then extract the appropriate selection for use in the proceeding. Complex documents may also require specialized hardware and/or software to execute software program files and access their associated data.

For both large and complex documents, the NRC must consider the need to generate an official record of the proceeding for use in potential appellate environments, see 10 CFR 2.1013(a), and for generating an Official Agency Record (OAR) version of the docketed materials for retirement to the National Archives and Records Administration (NARA). Each of these situations requires the ability to reassemble the record version of the documentary material (excluding software executables), independent of the media or software initially used to create it.

Coupled with the project objectives and technical requirements (discussed in the next section), these issues represent the framework for potential solutions. The NRC analysis distilled and assessed the objectives, technical requirements, and issues and developed four designs.

Given the anticipated size and complexity of individual documents, and the quantity of submittals, the need to transmit, manage, and retrieve electronic documents and objects challenges both the NRC's current processes and its information technology/information management (IT/IM) infrastructures, and the information technology (hardware, software, Internet service provider) in use by the general public. Examples of potential large documents are:

• The DOE Site Characterization Plan;

• The DOE License Application and supporting materials;

• The DOE Environmental Impact Statement;

• Adjudicatory documents ( e.g. , motions, responses, transcripts, exhibits, and orders).

Any or all of these types of documents may contain embedded photographs, charts, tables, and other graphics that contribute to the understanding of the narrative.

The NRC also anticipates receiving files that could be part of complex document submittals that:

(1) Due to their file size, may preclude easy transmission, retrieval, and use; or

(2) May require specialized software and/or hardware for faithful display and subsequent use; and

(3) May not be suitable for inclusion in a “generic” file format such as PDF. The PDF standard, though it is proprietary to Adobe®, has been published and is available for use by software vendors. Users can access the content of a PDF format file through the use of the Adobe Reader® viewer software.

Examples of files that could be part of complex documents include maps, databases, simulations, audio files, video files, and executable programs.

The analysis of the challenges of handling large documents in the NRC and public IT environments considered the following functional areas:

• Transmit activities entail sending a submittal from the submitter to the NRC, either via electronic format (through transmission or media) or as a physical object ( e.g. , video or audio).

• Capture relates to the receipt of electronic objects, with notifications provided according to an approved service list, preferably through e-mail. Upon receipt at the NRC, each submittal is staged for additional processing.

• Index & Cross-Reference are two distinct processes. Each submittal must be indexed based on prescribed profile templates. In addition, as part of the cataloging process, a submittal may be identified (or cross-referenced) as part of a package or compound document.

• Store manages the storage location of a submittal, i.e. , within a folder or larger collection for electronic submittals, or the physical media location for submittals provided on optical storage media ( e.g. , CD-ROM) containing text, data, and objects. This process involves applying security and audit controls, as well as the appropriate retention schedule.

• Search & Retrieve operations involve querying the bibliographic header and content, displaying the pertinent object(s), and, if desired, printing all or part of the displayed object(s).

• Create & Revise activities facilitate the creation or revision of new documents using content that has been extracted (copied and pasted) from original submittals.

• Copy & Distribute activities involve maintaining distribution (service) lists and providing the means to copy or download an individual document or a collection of documents.

These activities may also involve reproduction when the need arises to generate a hard copy of a submittal ( e.g. , “8.5″ד11″ paper”, drawings, etc.).

Finally, there was an assessment of the existing NRC document and records management systems environment as well as requirements for enhancements to support the large document business requirements.

The NRC assessed a number of alternatives to the existing technology infrastructure, current and planned operating procedures for processing documents, and regulatory requirements to determine how the identified objectives, issues, and technical requirements can be addressed while ensuring that—

• Document fidelity and integrity is preserved ( e.g. organization, accuracy, completeness);

• Documents are accessible to users via commonly used computer configurations;

• The information is available on reliable and controllable media; and

• Unique submittals with special software/hardware components can be handled.

The assessment also considered that the NRC should provide guidance to participants in the proceeding well in advance of when large, complex filings are reasonably anticipated. The guidance, as well as the underlying technology and procedures, would address matters such as processes, file sizes, file formats, document organization overviews to facilitate reconstruction of the complete filing, labeling formats, and alternative transfer media.

This section presents general concepts and four alternatives for handling large, complex electronic submittals in the HLW repository proceeding.

The overall information infrastructure for receiving and managing HLW-related documents involves several existing agency information systems. Participants in the proceeding will primarily send submittals to the NRC in the preferred PDF format via EIE, which provides a Web-form (an entry form similar to that of an overnight express mail carrier shipping form) for the submitter to accurately identify what is being transmitted. Upon receipt, each submittal would be entered into the Agencywide Document and Management System (ADAMS). Once captured within ADAMS, the submittal would be available for internal use by agency staff, and the information would be made publicly available (as appropriate) via the EHD. Variations on this general process and issues associated with large, complex documents are described in the following sections.

Description: Documents, images, and other submittal components are submitted through the EIE as a single file, and the EIE Web-form serves as the transmittal letter. The NRC captures large files as single units, without the need for any manual manipulation, such as breaking a submission into workable pieces. Based on the service list, an e-mail is sent to provide notification of receipt and a link from the EIE server to the file for immediate access by parties and participants to the proceeding. In addition, the file is made available (as appropriate) to the EHD. Interested parties can search on the bibliographic header information, the content, or a combination of the two. Retrieval of a document is directly to the user's desktop.

Positives: This alternative would satisfy the electronic transmission requirements of 10 CFR Part 2, Subpart J. This alternative primarily benefits and is less restrictive to the submitter. That is, the submitter dictates the form and format of the content, and the submittal comes in as a single optimized PDF format file.

Negatives: Submittal file size could be very large (potentially several hundred MB), particularly if graphics are widely used. The transmission may be problematic because of service interruptions or time-outs attributable to the very long transfer times required for large files. File sizes could also make this alternative unfeasible for subsequent users of a file, primarily because of download delays and time-outs. In addition, although any executables contained in the submittal could be stored in the EHD, they could not be indexed for search and retrieval or accessed online. The executable file would need to be downloaded and run locally.

Description: The only object transmitted through the EIE is the transmittal letter for the large, complex document, which notifies the NRC of an impending package submittal. All other electronic files pertaining to the submittal are sent on optical storage media ( e.g. , CD-ROM), which is delivered to the NRC via an overnight express mail carrier. Based on the service list, the NRC sends an e-mail containing links from the EIE server to the transmittal letter for immediate access by parties and participants to the proceeding. All text-based components ( e.g. , narrative with embedded graphics) are rendered as optimized PDF format files. The NRC extracts each file from the optical storage media ( e.g. , CD-ROM) and makes the files available (as appropriate) to the EHD as either individual objects or a compound document, depending on the document organization. The NRC also links a bibliographic header to the appropriate optical storage media ( e.g. , CD-ROM) for files or objects that are not candidates for extraction (because of some technical constraint). Interested parties can search the EHD on the bibliographic header, the content, or a combination of the two. Retrieval of a document or specified component(s) is directly to the user's desktop. Additionally, the NRC provides copies (upon request and for a fee) of the optical storage media ( e.g. , CD-ROM) for public access.

Positives: The NRC provides guidance to the submitter to facilitate processing and use within the agency. This alternative also avoids potential problems associated with submitting large files via the EIE.

Negatives: This alternative does not meet the electronic service requirements of 10 CFR Part 2, Subpart J. There may also be a delay in parties and participants receiving documents. As compared with Alternative 1, additional processing will be required to extract, profile, and store files in a timely manner. In addition, use of this alternative could adversely affect document fidelity and integrity ( e.g. organization, accuracy, or completeness) which could affect the efficient conduct of an adjudication, as well as for agency recordkeeping and eventual turnover to NARA.

Description: Documents, images, and other components (including the transmittal letter and enhanced Web-form) are transmitted through the EIE as multiple segmented files (“chunks”) of a single submittal. All text-based components ( e.g. , narrative with embedded graphics) are rendered as optimized PDF format files. Based on the service list, the NRC sends an e-mail containing links from the EIE server to the transmittal letter and the various segmented files for immediate access by parties and participants to the proceeding. Upon receipt and subsequent processing, the NRC makes the segmented files available (as appropriate) to the EHD as a “package” or “compound document.” Interested parties can search on the bibliographic headers, or content, or a combination of both. Retrieval of selected components is direct to the user's computer.

Positives: This alternative satisfies electronic transmission requirements of 10 CFR Part 2 and allows submission via the EIE. It also allows the NRC to provide guidance to have precisely defined segments and bibliographic header information associated with each segment. The segmentation facilitates later use and access.

Negatives: This alternative requires the EIE to facilitate the transfer, segregate component content from bibliographic header information and the transmittal letter, and make that information available to the EHD. A possible fatal flaw is that some file types may not be able to be segmented into manageable sizes ( e.g. , graphic-oriented materials showing subsurface geology in color or computer modeling information and/or software), and some materials may not be accessible via the EHD.

Description: All text-based components ( e.g. narrative with embedded graphics) are rendered as optimized PDF files and transmitted in manageable segments. All non-text components that are not suitable for an optimized PDF file are submitted on optical storage media ( e.g. , CD-ROM). When necessary, due to the nature of the submittal, a submittal letter identifies all electronic files that comprise the submission, clearly indicating which components are submitted via EIE, and which are submitted on optical storage media ( e.g. , CD-ROM). The submittal letter, enhanced Web-forms, and all segmented text files are sent through the EIE. The optical storage media ( e.g. , CD-ROM) containing the complete submission ( i.e. , text-based segments submitted via EIE and any files submitted only on optical storage media) are delivered to the NRC and other parties via an overnight mail carrier or other overnight delivery service. The NRC links a bibliographic header to the optical storage media ( e.g. , CD-ROM) component of the submission.

Based on the service list, the NRC sends an e-mail containing links from the EIE server to the transmittal letter and the various components submitted through the EIE for immediate access by parties and participants to the proceeding. The NRC indexes the text-based components sent via EIE and makes them available to the EHD as a “package” or “compound document.” Additionally, the NRC provides copies (upon request and for a fee) of the optical storage media ( e.g. , CD-ROM) for the public. Interested parties can search on the bibliographic header information, content, or a combination of both. Retrieval of text-based components is directly to the user's computer, and non-text components are retrievable from the optical storage media ( e.g. , CD-ROM).

Positives: This alternative combines the best features and advantages of Alternatives 2 and 3, including text-based component submission through the EIE and non-text component submissions via optical storage media ( e.g. , CD-ROM). This alternative provides several means to optimize a submission and allows the NRC to process the submission appropriately; provide access to end-users ( i.e. , adjudicatory proceeding participants and the general public); and prepare for the eventual transfer to NARA.

Negatives: Processing will need to be closely coordinated to maintain the integrity of the various submittal components (segmented files stored in ADAMS with the bibliographic header records that point to optical storage media, such as a CD-ROM).

Documentary material submitted on optical storage media and sent by overnight mail (or other expedited delivery services) would not meet the electronic transmission requirements of 10 CFR Part 2, Subpart J. There may be a delay in parties and participants receiving document components contained only on the optical storage media ( e.g. , CD-ROM).

Alternative 4 is the recommended approach for the NRC to meet the identified objectives. The NRC believes that this alternative provides the best means for transferring the wide variety of file types and sizes received from parties and participants in the proceeding, as well as the most practical means for delivering electronic information to parties and participants in the HLW repository adjudicatory proceeding, the presiding officer, and the Office of the Secretary (SECY), under the requirements of 10 CFR Part 2, Subpart J.

Toward that end, the agency will take the following steps:

• Develop guidance for use in generating HLW proceeding submissions that specifies the size, file characteristics, and method (either EIE or optical storage media) for different submittal types ( i.e. simple, large, or complex). This guidance will also provide direction concerning the information the agency requires to ensure proper identification of each segment.

• Implement enhancements to the agency's existing IT/IM systems (such as an improved EIE capability) in anticipation of storage, search, and retrieval needs, as they pertain to Alternative 4.

• Implement enhancements to the agency's current document processing work flows in anticipation of the receipt, indexing, and distribution of information, as they pertain to Alternative 4.

• Develop a rule change to implement the recommended alternative. The final rule reflects this approach.

As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission has evaluated the impact of the final rule on small entities. The NRC has established standards for determining who qualifies as small entities (10 CFR 2.810). The Commission certifies that this final rule, if adopted, would not have a significant economic effect on a substantial number of small entities. The amendments would modify the NRC's rules of practice and procedure in regard to the HLW repository licensing proceeding. Parties to the HLW repository licensing proceeding will be required to submit their filings during the proceeding according to the standards in the proposed rule. Some of the participants affected by the final rule, for example, DOE, NRC, the State of Nevada, would not fall within the definition of “small entity” under the NRC's size standards. Other parties and potential parties may qualify as “small entities” under these size standards. However, the required standards will overall make it easier for those parties who are small entities to participate in the HLW repository licensing proceeding.

The NRC has determined that a backfit analysis is not required for this final rule because these amendments would not include any provisions that require backfits as defined in 10 CFR Chapter I.

The FAA has determined that notice and opportunity for prior public comment hereon is unnecessary as the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance; however, we invite interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4:00 p.m. Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments received.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On March 22, 2004, Elliott Aviation Technical Products Development, Inc., Quad City Airport, P.O. Box 100, Moline, Illinois 61266-0100, applied for a supplemental type certificate (STC) to modify Raytheon Aircraft Company Models MU-300 (Diamond I and IA) airplanes. The Raytheon MU-300 airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weights of up to 14,630 pounds. These airplanes operate with a 2-pilot crew and can seat up to 9 passengers. The proposed modification incorporates the installation of a Honeywell AZ-252 Advanced Air Data Computer with optional pilot's BA-250 Altimeter and Co-pilot's AM-250 Altimeter. The information this equipment presents is flight critical. The avionics/electronics and electrical systems to be installed on these airplanes have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Elliott Aviation must show that the Raytheon Aircraft Company Model MU-300 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A14SW, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.”

The regulations incorporated by reference in Type Certificate No. A14SW include 14 CFR part 25, as amended by Amendments 25-1 through 25-40; §§ 25.1351(d), 25.1353(c)(5), and 25.1450, as amended by Amendment 25-41; §§ 25.1353(c)(6), and 25.255, as amended by Amendment 25-42; § 25.361(b) as amended by Amendment 25-46; and 14 CFR part 36 as amended by Amendment 36-1 through 36-12.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , part 25, as amended) do not contain adequate or appropriate safety standards for modified Model MU-300 airplanes, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Raytheon Model MU-300 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101.

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

The modified Model MU-300 airplanes will incorporate avionics/electrical systems that will perform critical functions. These systems may be vulnerable to HIRF external to the airplane.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electrical and electronic systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Model MU-300 airplanes. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance is shown with either HIRF protection special condition paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the following table for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to the Raytheon Aircraft Company Model MU-300 airplanes. Should Elliott Aviation Technical Products Development, Inc. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of 14 CFR 21.101.

This action affects only certain novel or unusual design features on the Raytheon Aircraft Company Model MU-300 airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplanes.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions immediately. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The FAA has determined that the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance. However, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go the address in the ADDRESSES section of this preamble between 7:30 a.m., and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

If you want the FAA to acknowledge receipt of your comments on these special conditions, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the postcard and mail it back to you.

On March 23, 2004, Gulfstream Aerospace Corporation of Dallas, Texas, applied for a Supplemental Type Certificate (STC) to modify Model Gulfstream 200 (Galaxy) airplanes. These airplanes are low-wing, pressurized transport category airplanes with two fuselage-mounted jet engines. They are capable of seating up to 19 passengers, depending upon the configuration. The modification incorporates the installation of a new electronic laser inertial reference system, which interfaces with the Automatic Flight Control System (AFCS), Flight Management System (FMS), and Electronic Flight Instrumentation (EFIS), providing attitude, heading and position data. This system has a potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of Title 14, Code of Federal Regulations (CFR) 21.101, Gulfstream Aerospace Corporation must show that the Model Gulfstream 200 (Galaxy) airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A53NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.”

The regulations incorporated by reference in Type Certificate No. A53NM include 14 CFR part 25, as amended by Amendments 25-1 through 25-82.

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

In addition to the applicable airworthiness regulations and special conditions, the Model Gulfstream 200 (Galaxy) airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should Gulfstream Aerospace Corporation apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

The modified Model Gulfstream 200 (Galaxy) airplanes will incorporate a new electronic laser inertial reference system that will perform critical functions. This system may be vulnerable to high-intensity radiated fields external to the airplane.

There is no specific regulation that addresses requirements for protection of electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive electrical and electronic systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved equivalent to that intended by the regulations incorporated by reference, special conditions are needed for Model Gulfstream 200 (Galaxy) airplanes. These special conditions require that installation of a new electronic laser inertial reference system that performs critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters, plus the advent of space and satellite communications coupled with electronic command and control of the airplane, the immunity of critical digital avionics systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 OR 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths is identified in the following table for the frequency ranges indicated. Both peak and average field strength components from the Table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to the Model Gulfstream 200 (Galaxy) airplanes. Should Gulfstream Aerospace Corporation apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101.

This action affects only certain novel or unusual design features on the Model Gulfstream 200 (Galaxy) airplanes modified by Gulfstream Aerospace Corporation. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplanes.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions immediately. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that notice and opportunity for prior public comment are impracticable, because these procedures would significantly delay certification of the airplane and, thus, delivery of the affected airplanes. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA finds, therefore, that good cause exists for making these special conditions effective upon issuance. However, the FAA invites interested persons to participate in this rulemaking by submitting comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday thru Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late, if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On December 4, 2003, Garrett Aviation Services, 1200 North Airport Drive, Capital Airport Springfield, IL 62707, applied for a Supplemental Type Certificate (STC) to modify Sabreliner Corporation Model NA-265-65 airplanes approved under Type Certificate No. A2WE. The Sabreliner Corporation model NA-265-65 is a transport category airplane, powered by two AiResearch Mfg. Co. TFE731-3-1D turbofans. The airplane operates with a 2-pilot crew and can hold up to 10 passengers. Its maximum takeoff weight is 24,000 pounds.

The modification incorporates the installation of Honeywell N1 Digital Electronic Engine Controls (DEEC). The DEEC replaces the existing Analog Electronic Engine Control (EEC) and provides additional functional capability in the system. The digital avionics/electronics and electrical systems to be installed under this project are vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Garrett Aviation Services must show that the Sabreliner Corporation model NA-265-65 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A2WE or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the modified Sabreliner Corporation Model NA-265-65 airplanes include 14 CFR part 25, dated February 1, 1964, as amended by Amendment 25-1 through 25-20, except for special conditions and exceptions noted in Type Certificate Data Sheet (TDCS) A2WE.

If the Administrator finds that the applicable airworthiness regulations (that is, 14 CFR part 25, as amended) do not contain adequate or appropriate safety standards for the Sabreliner Corporation Model NA-265-65 airplanes because of novel or unusual design features, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Sabreliner Corporation model NA-265-65 airplanes must comply with the noise certification requirement of part 36, including Amendment 36-1.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101(b)(2).

Special conditions are initially applicable to the model for which they are issued. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of 14 CFR 21.101(a)(1).

The Sabreliner Corporation model NA-265-65 airplanes modified by Garrett Aviation Services will incorporate Honeywell N1 Digital Electronic Engine Controls (DEEC) which will perform critical functions. These systems may be vulnerable to high-intensity radiated fields (HIRF) external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards for the protection of this equipment from the adverse effect of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive electrical and electronic systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations incorporated by reference; special conditions are needed for Sabreliner Corporation model NA-265-65 airplanes modified by Garrett Aviation Services. These special conditions require that new electrical and electronic systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical electrical and electronic systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the following field strengths for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

As discussed above, these special conditions are applicable to Sabreliner Corporation Model NA-265-65 airplanes modified by Garret Aviation Services. Should Garrett Aviation Services apply at a later date for design change approval to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1).

This action affects only certain novel or unusual design features on the Sabreliner Corporation Model NA-265-65 airplanes modified by Garrett Aviation Services. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The FAA proposed to amend 14 CFR Part 39 with a proposed airworthiness directive (AD). The proposed AD applies to certain serial-numbered propeller blades installed in Hamilton Sundstrand Corporation (formerly Hamilton Standard Division) 568F propellers. We published the proposed AD in the Federal Register on December 2, 2003 (68 FR 67385). That action proposed to require replacement of propeller blades, P/Ns R815505-3 and R815505-4 that have a SN of FR1699 to FR20021010, with serviceable blades.

You may examine the AD Docket (including any comments and service information), by appointment, between 8 a.m. and 4:30 p.m. Monday through Friday, except Federal holidays. See ADDRESSES for the location.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment received.

One commenter requests that the Cost of Compliance statement be clarified to indicate that the blade removal cost is for AD compliance only. The commenter has concerns regarding potential liabilities for the worldwide fleet if the AD does not distinguish between the removals for normally scheduled maintenance and unscheduled removals for AD compliance.

The FAA agrees in part. We have clarified the Cost of Compliance statement in the AD to reflect removals for this AD. We do not agree with including worldwide costs in this AD because worldwide costs are not within the scope of the FAA authority.

We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that 24 Hamilton Sundstrand Corporation 568F propellers with suspect blades installed on airplanes of U.S. registry would be affected by this AD. We estimate it will take about 4 work hours per propeller to remove and replace suspect blades, and that the average labor rate is $65 per work hour. Based on these figures, we estimate the total labor cost of the AD to U.S. operators to be $6,240.

We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866;

(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-48-AD” in your request.

This amendment adopts a new AD for the Eurocopter Model EC 155 B and B1 helicopters. This action requires:

• For blades with 100 or less hours time-in-service (TIS), prior to reaching 110 hours TIS, inspecting the tenon for a crack, and replacing the blade if a crack is found in the tenon;

• For blades with more than 100 hours TIS, within the next 10 hours TIS, inspecting the tenon for a crack, and replacing the blade if a crack is found in the tenon;

• After accomplishing the initial inspection for a crack as described above, before further flight, establishing the baseline clearance (“DO”) between a straight edge and the upper surface of the blade assembly at the blade-to-tip cap junction; and

• Thereafter, before the first flight of each day and on or before reaching each 10 hours TIS interval during the day, measuring the clearance between the straight edge and the upper surface of the blade assembly of the blade-to-tip cap junction. If the measured distance is equal to or greater than “DO” + 2mm, replacing the blade is required.

This amendment is prompted by a report of a crack that was discovered on a tenon. This condition, if not detected, could result in loss of the blade tip cap, which could lead to severe vibration and loss of control of the helicopter.

The Direction Generale De L'Aviation Civile (DGAC), the airworthiness authority for France, notified the FAA that an unsafe condition may exist on Eurocopter EC 155 B and B1 helicopters. The DGAC advises of the discovery of a crack in a blade tenon, the growth of which could lead to the loss of the tip cap and make the helicopter impossible to control.

Eurocopter has issued Alert Telex No. 05A004, dated November 3, 2003, which specifies checks on each blade to ensure that there is no crack in the tenon to which the blade tip is attached. The DGAC classified this alert telex as mandatory and issued AD No. F-2003-418, dated December 24, 2003, adopting the actions contained in the manufacturer's alert telex to ensure the continued airworthiness of these helicopters in France.

These helicopter models are manufactured in France and are 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 these type designs 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, this AD is being issued to detect a crack in a tenon, which could result in loss of the tip cap, causing severe vibration and loss of control of the helicopter. This AD requires, for Eurocopter Model EC 155 B and B1 helicopters:

• For blades with 100 or less hours TIS, prior to reaching 110 hours TIS, an initial inspection of each tenon for a crack;

• For blades with more than 100 hours TIS, within the next 10 hours TIS, an initial inspection of the tenon for a crack;

• Replacing any blade if a crack is found in the tenon; and

• After accomplishing the initial inspection for a crack as described above, before further flight, measuring the clearance between the lower edge of the straight edge to the upper surface of the blade assembly at the blade-to-tip cap junction (“DO”) to establish the baseline clearance and then, before the first flight of each day (not to exceed 10 hours TIS), measuring the clearance between the lower edge of the straight edge and the upper surface of the blade assembly at the blade-to-tip cap junction for each blade, and if the distance is equal to or greater than “DO” + 2mm, replacing the blade with an airworthy blade.

The actions must be done in accordance with the alert telex described previously. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability and structural integrity of the helicopter. Therefore, inspecting each blade for a crack in the tenon within the short compliance time is required, and this AD must be issued immediately.

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

The FAA estimates that this AD will affect 6 helicopters. The initial inspection will take approximately 1.5 work hours, and the repetitive inspections will take 0.5 work hours to accomplish. It will take approximately 1 work hour to replace all 5 blades. The average labor rate is $65 per work hour. Required parts will cost approximately $97,000 per blade. Based on these figures, the total estimated cost impact of the AD on U.S. operators is $586,563, assuming one blade per helicopter will need to be replaced each year and that 20 repetitive inspections will be needed per helicopter each year.

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

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

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2004-SW-05-AD.” The postcard will be date stamped and returned to the commenter.

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

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

History

On April 7, 2004, the FAA proposed to amend 14 CFR part 71 by modifying the Class E airspace area at Beckwourth, CA (69 FR 18309). Additional controlled airspace extending upward from 700 feet or more above the surface is needed to contain aircraft executing the RNAV (GPS) RWY 25 IAP and RNAV DP's at Beckwourth-Nervino Airport. This action will provide adequate controlled airspace for aircraft executing the RNAV (GPS) RWY 25 IAP and RNAV DP's to Beckwourth-Nervino Airport, Beckwourth, CA.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments to the proposal were received. Class E airspace designations for airspace extending from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 establishes a Class E airspace area at Beckwourth, CA. The establishment of a RNAV (GPS) RWY 25 and two RNAV DP's to Beckwourth-Nervino Airport has made this action necessary. The effect of this action will provide adequate airspace for aircraft executing the RNAV (GPS) RWY 25 and RNAV DP's at Beckwourth-Nervino Airport, Beckwourth, CA.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation —(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA published this direct final rule with a request for comments in the Federal Register on May 3, 2004 (69 FR 24064) and subsequently published a correction to the direct final rule on May 6, 2004 (69 FR 25467). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on August 5, 2004. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on April 26, 2004 (69 FR 22396.). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on August 5, 2004. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

This amendment to 14 CFR 71 modifies the Class E airspace are extending upward from 700 feet above the surface at Wayne, NE RNAV (GPS) RWY 22, ORIGINAL SIAP; NDB RWY 17, ORIGINAL SIAP; NDB RWY 22, ORIGINAL SIAP and NDB RWY 35, ORIGINAL SIAP have been developed to serve Wayne Municipal Airport. The dimensions of the Wayne, NE Class E airspace are modified to accommodate all SIAPs serving the airport and to provide adequate controlled airspace for diverse departures. The radius of the airspace area is increased from 6.5 to 7.5 miles. The current extension to the airspace are is totally contained within the expanded airspace radius and no other extensions are required. This action brings the airspace area and its legal description into compliance with FAA Order 7400.2E, Procedures for Handling Airspace Matters. The area will be depicted on appropriate aeronautical charts. Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 7400.9L, Airspace Designations and Reporting Points, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA anticipates that this regulation will not result in adverse or negative comment and, therefore, is issuing it as a direct final rule. Previous actions of this nature have not been controversial and have not resulted in adverse comments or objections. Unless a written adverse or negative comment or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document withdrawing the direct final rule will be published in the Federal Register , and a notice of proposed rulemaking may be published with a new comment period.

Interested parties are invited to participate in this rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-17912/Airspace Docket No. 04-ACE-38.” The postcard will be date/time stamped and returned to the commenter.

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

The FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On February 5, 2004, the FAA published in the Federal Register a Notice of Proposed Rulemaking (69 FR 5479) that proposed to establish a Class E airspace area extending upward from the surface in the vicinity of the Manchester, NH airport. The purpose of the proposal was to provide controlled airspace from the surface to 700 feet above the ground to accommodate aircraft executing instrument approaches and departures from the airport during times when the air traffic control town at Manchester is closed. Interested persons were invited to participate in this rulemaking proceeding by submitting written data, views, or arguments. We have carefully considered the one comment we received. The comment asked if the Manchester airport tower operating hours would actually change based on this airspace action. In response, the FAA confirms that the Manchester tower operating hours will not change solely because of this airspace action. Any change in the operating hours will be based on the operational requirements of the Manchester airport. The present Manchester Class C airspace area remains an essential safety measure in support of the present operational requirements. This action merely puts in place the necessary controlled airspace to support instrument flight operations in the event that the FAA changes the operating hours of the Manchester ATCT. No additional comments were received.

This amendment to part 71 of the Federal Aviation Regulation (14 CFR part 71) establishes a Class E airspace area at Manchester, NH. The Class E airspace area extends upward from the surface at Manchester Airport, Manchester, NH. The purpose of this controlled airspace will be to provide for controlled airspace from the surface to accommodate aircraft executing instrument approaches and departures from the airport during times when the air traffic control town at Manchester is closed.

The coordinates for this airspace docket are based on North American Datum 83. Class E airspace designations for airspace extending upward from the surface of an airport are published in paragraph 6002 of FAA Order 7400.9L, dated September 2, 2003, and effective September 16, 2003, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in this Order.

The FAA has determined that this proposed regulation only involves a body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. For the reasons discussed in the preamble, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated effect on these routine matters will is so minimal. Since this proposal will only affect air traffic procedures and air navigation, it is certified that this proposed rule will not have significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

In the Federal Register of May 21, 2004 (69 FR 29220), FDA announced three public meetings intended to obtain comments about FDA's CGMP in manufacturing, packing, or holding human food regulations (21 CFR part 110). FDA believes that these comments may be useful in determining appropriate revisions to the CGMP regulations. The meetings were planned for June 11, 2004, in College Park, MD; July 2, 2004, in Monterey, CA; and July 21, 2004, in Chicago, IL. The notice included information about how to register for a meeting, how to request an opportunity to make oral comments at a meeting, and how to submit written comments. The notice also included a set of questions to help focus oral and written comments to FDA.

On June 6, 2004, President Bush issued an Executive order closing all executive departments of the Federal Government on Friday, June 11, 2004, as a mark of respect for former President Ronald Reagan. Accordingly, the FDA is announcing the rescheduling of the public meeting planned for June 11, 2004, in College Park, MD. The College Park meeting will now be held on July 19, 2004. FDA is also announcing the cancellation of the public meeting originally scheduled for July 2, 2004, in Monterey, CA. A new location, date, and time for that meeting will be announced in a subsequent notice. The public meeting scheduled for July 21, 2004, in Chicago, IL, will occur as originally planned.

For information about registering for a meeting, about requesting an opportunity to make oral comments at a meeting, or about submitting written comments, please refer to the Federal Register notice of May 21, 2004 (69 FR 29220), announcing the meetings.

The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA) [Pub. L. 101-646], enacted by Congress on November 29, 1990, established the Coast Guard's regulatory jurisdiction over BWM. To fulfill the directives of NANPCA, the Coast Guard published a final rule on April 8, 1993, entitled “Ballast Water Management for Vessels Entering the Great Lakes” in the Federal Register (58 FR 18330). This rule established mandatory BWM procedures for the Great Lakes in 33 CFR part 151, subpart C.

A subsequent final rule entitled, “Ballast Water Management for Vessels Entering the Hudson River,” was published on December 30, 1994, in the Federal Register (59 FR 67632), which amended 33 CFR part 151 to extend the BWM requirements into portions of the Hudson River.

The National Invasive Species Act (NISA) [Pub. L. 104-332] enacted by Congress on October 26, 1996, reauthorized and amended NANPCA. NISA reemphasized the significant role of ships' ballast water in the introduction and spread of nonindigenous species (NIS). NISA authorized the development of a voluntary, national BWM program and mandated the submission of BWM reports without penalty provisions. The Coast Guard implemented this voluntary program in the interim rule entitled, “Implementation of the National Invasive Species Act of 1996” on November 17, 1999, (64 FR 26672) and finalized it on November 21, 2001 (66 FR 58381).

NISA also instructed the Secretary of the Department of Transportation to submit a Report to Congress evaluating the effectiveness of the voluntary BWM program. Congress anticipated that the Secretary might determine that either compliance with the voluntary guidelines was inadequate, or the rate of reporting was too low to allow for a valid assessment of compliance. In either case, Congress stipulated the development of additional regulations to make the voluntary guidelines a mandatory BWM program. The Secretary of the Department of Transportation's report to Congress, signed June 3, 2002, concluded that compliance with the voluntary guidelines, found in 33 CFR part 151, subpart D, was insufficient to allow for an accurate assessment of the voluntary BWM regime. Accordingly, the Secretary of the Department of Transportation stated his intention to make the voluntary BWM requirements mandatory. (A copy of this Report to Congress can be found in the USCG 2002-13147 at http://dms.dot.gov ).

On March 1, 2003, the Coast Guard became a component of the Department of Homeland Security. As a result, the Secretary of the Department of Homeland Security assumed all duties once bestowed on the Secretary of the Department of Transportation with respect to this final rule. The Secretary of the Department of Homeland Security concurs with the Coast Guard's determination regarding the mandatory ballast water program.

On January 6, 2003, we published a notice of proposed rulemaking entitled, “Penalties for Non-submission of Ballast Water Management Reports,” in the Federal Register (68 FR 523). We received 26 letters commenting on the proposed rule. No public hearing was requested and none was held.

The Coast Guard is currently working on three other projects related to addressing the NIS problems in U.S. waters.

The first project proposes mandatory BWM practices for all vessels bound for ports or places within the U.S. and for vessels entering waters of the U.S. This proposed rulemaking would increase the Coast Guard's ability to protect U.S. waters against the introduction of NIS via ballast water discharges. A notice of proposed rulemaking entitled, “Mandatory Ballast Water Management Program for U.S. Waters” was published on July 30, 2003 (68 FR 44691), and proposes to revise 33 CFR part 151 to implement the requirements of NISA. Specifically, subpart D of 33 CFR part 151 would be revised to require a mandatory BWM program for all vessels equipped with ballast water tanks operating within, or entering U.S. waters. The mandatory BWM requirements for vessels entering the Great Lakes and Hudson River from outside the Exclusive Economic Zone (EEZ) would remain unchanged.

The second project involves encouraging the installation and testing of ballast water treatment technologies on board vessels. A notice, entitled “Approval for Experimental Shipboard Installations of Ballast Water Treatment Systems” (66 FR 282131), published on May 22, 2001, requested comments on a possible means of providing incentives for ship owners to assist in the development and testing of ballast water treatment technologies. The Coast Guard has established a program through which vessel owners can apply for acceptance of experimental ballast water treatment systems installed and tested on board their operating vessels. This program facilitates the development of effective ballast water treatment technology, thus creating more options for vessels seeking alternatives to ballast water exchange. A Navigation Inspection Circular detailing the Shipboard Technology Evaluation Program (STEP) is available at http://www.stage.uscg.mil/hq/g-m/mso/step.htm.

The third project involves establishing water quality standards for ballast water discharged into U.S. waters. A notice entitled, “Potential Approaches to Setting Ballast Water Treatment Standards” (66 FR 21807), published May 1, 2001, requested comments on approaches to setting, implementing, and enforcing ballast water standards. It was followed by an advanced notice of proposed rulemaking (ANPRM) entitled “Standards for Living Organisms in Ships’ Ballast Water Discharged in U.S. Waters” (67 FR 9632), published on March 4, 2002. This ANPRM sought comments on the development of a ballast water treatment goal and an interim ballast water treatment standard. The comment period on the ANPRM closed on June 3, 2002, and the Coast Guard is currently analyzing comments. We have also begun the process of preparing a Programmatic Environmental Impact Statement, as stated in a Notice of Intent published in the Federal Register on September 26, 2003 (68 FR 55559).

The Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), as amended by the National Invasive Species Act of 1996 (NISA), directed the Coast Guard to issue regulations and guidelines to prevent the introduction and dispersal of nonindigenous species (NIS) to U.S. waters via ballast water discharges. In carrying out Congress' intent of a stepped approach, the Coast Guard, as the Secretary's delegate, is moving forward with the promulgation of regulations that establish penalty provisions and widen the range of vessels required to submit and keep, respectively, BWM reports and records. This rule finalizes regulations that will—

• Establish penalty provisions for vessels bound for ports or places within the United States who fail to submit ballast water reporting forms;

• Establish penalty provisions for vessels bound for the Great Lakes or portions of the Hudson River who violate the mandatory BWM requirements; and

• Widen the reporting and recordkeeping requirements for vessels bound for ports or places within the United States.

The Coast Guard received comments from 26 sources on the notice of proposed rulemaking. We received comments from vessel owners, industry associations, non-governmental associations, and Federal and State agencies. Overall, we received general comments as well as comments on specific sections of the proposed rulemaking.

The Coast Guard received five comments that supported the penalty provisions of non-submission of ballast water reporting forms as well as mandatory reporting, regardless of whether or not vessels operate outside, or within U.S. waters.

Four commenters supported the collection of data regarding volumes and uptake/discharge locations of vessels' ballast water, but did not support imposing penalties for the voluntary BWM program. These comments suggested imposing penalties when the program becomes mandatory.

The Coast Guard disagrees with this comment. Although the BWM guidelines are voluntary, submittal of ballast water reporting forms has been mandatory since 1999. Due to industry's low compliance rate of submitting reporting forms, the Coast Guard is authorized by NISA to enforce penalties to increase compliance.

One commenter suggested that the Department of Defense (DoD) agencies and the Coast Guard should sign a Memorandum of Agreement that will allow DoD vessels to provide summary ballast water activity information on a periodic basis.

The Coast Guard disagrees with this comment. Ballast water discharges from these vessels will be regulated under the Uniform National Discharge Standards program via the Clean Water Act as directed by NISA.

One commenter asked that this rule become applicable under the National Aquatic Invasive Species Act (NAISA) once it is enacted.

This rule is authorized under NANPCA and NISA and will stay authorized when NANPCA is reauthorized, and amended by NAISA or by some other legislation.

Five commenters said that the $25,000 penalty for non-submission of BWM reports is excessive. They said that California assesses between $500 and $5,000 for those who intentionally fail to comply, and after 3 years, the State has had a 95 percent compliance rate.

Although, the penalty amount of $25,000 was discussed in the notice of proposed rulemaking, the Coast Guard recently published a final rule on December 23, 2003, entitled, “Civil Monetary Penalties—Adjustments for Inflation” (68 FR 74189). Under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, the Coast Guard is authorized to adjust penalties for violating Federal laws set by Congress long ago whereas the deterrent value of the penalties have weakened with time due to inflation. As such, we have changed the monetary amount authorized by NISA, from $25,000 to $27,500. With respect to the commenters concern about the penalty amount, we believe there is some confusion regarding the penalty amount. The penalty is not $27,500; rather, the penalty is not to exceed $27,500. We have the discretion to issue a penalty of up to $27,500, depending on the facts of each individual case.

Three commenters said the ballast water reporting form needs to be redesigned and updated.

The Coast Guard, in conjunction with the National Ballast Information Clearinghouse (NBIC) is currently examining the possibility of redesigning and updating the ballast water reporting form. If the Coast Guard determines that the form will be updated, this will be the subject of future rulemaking project. In this regard, we have determined that the reporting form, as currently designed, does not allow for vessels to make multiple or consecutive voyage reports on a single form in a way that is useful to either the Coast Guard or the NBIC. As a result, we have deleted that option from the regulation in section 151.2041. Our economic analysis accounted for all arrivals in U.S. ports or places, therefore, removing this option does not affect our cost analysis, and should not have a substantial effect on the public.

The Coast Guard received eight comments that stated it should coordinate its national BWM program with State programs, citing California and the West Coast Ballast Water Working Group as a good example. The commenters claimed that this would eliminate duplicative reporting requirements and allow States access to Federal ballast water reporting data.

We consider this comment to be outside the scope of this rulemaking. When this rule is finalized, each State is authorized under NISA to develop their own regulations if they feel that Federal regulations are not stringent enough. Additionally, we note that States may access Federal ballast water reporting data by utilizing NBIC, found at http://www.invasions.si.edu/NBIC/ballast.html.

One commenter supported the quick and aggressive development of ballast water discharge standards.

We consider this comment to be outside the scope of this rulemaking. Ballast water discharge standards will be addressed in a separate rulemaking.

We received four comments suggesting there be a 2-year grace period to provide coastwise vessels time for crews to learn and comply with the mandatory ballast water reporting requirements. According to the commenters, this would be consistent with the 2 years it took to finalize the rule on voluntary guidelines from the interim rule (1999-2001).

The Coast Guard disagrees with this comment. There was no “2-year grace period” between the interim rule on voluntary guidelines and when the rule was finalized. An interim rule is used when it is in the public interest to promulgate an effective rule while keeping the rulemaking open for further refinement. The preamble to the interim rule clearly indicated that a rule was being issued rather than just being proposed. It took 2 years to address comments from the public and incorporate them into the final rule. Therefore, there will be no 2-year grace period for this rule.

Three commenters stated that the summary table of requirements should be consistent with the intended regulatory requirements, citing, the table heading in the Appendix of Subpart D.

The Coast Guard agrees with this comment and will change the table heading in the Appendix of Subpart D for consistency.

One commenter stated that in § 151.2045, the phrase “entering waters after operating beyond the EEZ” was replaced with the phrase, “bound for a port or place in the U.S.,” but that this change was not made to the section heading.

We agree with this comment and have changed the title of this section.

One commenter suggested changing the reporting deadline to 48 hours after a vessel's departure from a port, citing data from California that shows greater accuracy on reporting prior to arrivals. The commenter noted that ballasting may change from port to port, and also stated that any concerns regarding pre-emptive control of ballast water operations be addressed by collecting minimal ballast operation information at the 96 hours Notice of Arrival (NOA), with more detailed data within 48 hours after departure.

The Coast Guard disagrees with this comment. We believe it is advantageous for vessels to submit their ballast water reporting forms 24 hours prior to arrival, as this provides a more accurate picture of BWM practices. Cargo operations are already accurately planned, very few amendments need to be made to the reporting forms. In reviewing initial ballast water reporting data, the Coast Guard found very few amendments. Additionally, if a vessel submits a report 48 hours after departure from a port, the Coast Guard will be unable to determine whether or not that vessel was in compliance with ballast water regulations at the departure port. This creates a possibility that BWM data submitted with the NOA form would be incomplete.

The Coast Guard received one comment stating that procedures should be established to allow for submission of reporting forms in a non-paper form method.

The Coast Guard agrees with this comment and encourages all vessels to submit forms electronically. Procedures are already in place for vessel owners to email, fax, or otherwise submit forms electronically. We recognize not all vessels have the capability to email their ballast water reporting forms or submit electronic forms via the NBIC Web site. Please note that the email address to send forms has changed to nbic@ballastreport.org.

Nine commenters asked the Coast Guard to allow tug and barge operators that carry ballast water and serve domestic coastwise trade to submit reports every 30 days, rather than 24 hours prior to arrival at the first U.S. port. These commenters argued that monthly reporting would ease the administrative burden on the vessel operator.

The Coast Guard disagrees with this comment. To change the submission requirements of ballast water reports for tugs and barges from 24 hours to 30 days would delay the accounting of BWM practices, thus denying the Coast Guard the means of enforcing compliance of mandatory ballast water reporting requirements.

Two commenters asked that vessels be denied entry into the Great Lakes if they do not submit a ballast water reporting form.

The Coast Guard disagrees with this comment. Compliance for submission of ballast water reporting forms in the Great Lakes is quite high, and therefore, the Coast Guard does not intend to deny vessels entry into the Great Lakes, or delay their voyages.

We received three comments asking who is responsible for submitting ballast water reporting forms when vessels are under repair. Is it the responsibility of the vessel owner, tugboat operator, or the dry-dock manager?

Section 151.2045(a) states, “The master, owner, operator, or person in charge of a vessel * * * must keep written records.” Therefore, the vessel owner, tugboat operator, and the dry-dock manager should discuss and decide who will submit the ballast water reporting forms. The responsibility is on the vessel owner to ensure that the form is submitted.

Two commenters wanted to know how the Coast Guard would enforce penalties if there are several different ways to submit ballast water reporting forms. They argued that allowing submission of reporting forms by several methods would add to the amount of time someone would have to spend to track down a reporting form in order to impose a penalty. The commenters suggested the use of a single database.

Currently, vessels have several choices in submitting ballast water reporting forms because not all vessels have the capability to submit forms electronically. As vessels increase their access to email and the Internet, we anticipate more forms will be sent electronically. The Coast Guard is currently working with NBIC to streamline the submittal of ballast water reporting forms and to have all BWM data in the NBIC database.

One commenter stated that verification procedures should be established so that NBIC can let vessel owners know it has received their reports.

The Coast Guard agrees and is currently working with NBIC on a wide range of issues to assist vessel owners in their submission of ballast water reporting forms, including verification procedures to let vessel owners know that NBIC has received their reports.

We received six comments that asked the Coast Guard not to require reporting on BWM for vessels that have tanks or voids, but are not carrying ballast water. These commenters argued that it is capricious for the penalty provisions not to make a distinction between vessels with full or empty tanks.

The Coast Guard disagrees with this comment. The reporting data gathered on whether or not vessels operating in U.S. waters are carrying ballast water is important in understanding BWM practices. The Coast Guard is directed by NISA to have a complete picture of BWM practices for U.S. waters.

The Coast Guard received seven comments that requested inland towing vessels and barges be exempt from ballast water reporting requirements.

The Coast Guard disagrees with this comment. As stated previously, the Coast Guard is required by NISA to assess the complete picture of BWM practices for U.S. waters. Therefore, the Coast Guard requires BWM data from inland towing vessels and barges if they are equipped with ballast tanks or even occasionally carry ballast water onboard.

One commenter stated that reporting requirements on ballast water should apply to all vessels without any exemptions.

NISA requires exemptions from BWM reporting requirements for certain types of vessels. Therefore, these exemptions will remain in place unless Congress authorizes the Coast Guard to remove them.

The Coast Guard received four comments supporting the inclusion of coastwise vessels in the ballast water reporting requirements with exemptions for: Unmanned vessels, vessels with No Ballast On Board (NOBOBs), and vessels solely within one Coast Guard district.

The Coast Guard disagrees that exemptions should be provided for unmanned vessels, NOBOBs, and vessels operating within one Coast Guard district. The reporting data gathered on these vessels is important in understanding BWM practices of vessels operating in U.S. waters. Some Coast Guard districts encompass a large area; therefore, it does not make sense to exempt them as we are attempting to stop the spread of NIS in U.S. waters.

Two commenters suggested that NOBOBs operating within the Great Lakes be required to submit ballast water reporting forms.

As there are large numbers of NOBOB vessels that traverse the Great Lakes, it is important to understand their BWM practices as directed by NISA. Therefore, the Coast Guard will require NOBOBs to submit ballast water reporting forms, and § 151.1516 has been clarified to reflect this. NOBOBs will still be exempt from conducting BWM practices.

We received one comment asking for clarification on the reporting exemption for crude oil tankers to ensure that the exemption does not apply to shipments in the Great Lakes.

Section 151.2041 states that vessels must comply with the mandatory submittal of ballast water reporting forms unless exempted in §§ 151.2010 or 151.2015. This exemption includes crude oil tankers engaged in coastwise trade for BWM in U.S. waters. However, this exemption does not apply to crude oil tankers traversing the Great Lakes. Section 151.1502 states all vessels carrying ballast water and operating outside the EEZ, must comply with Subpart C, “Ballast Water Management for Control of Nonindigenous Species in the Great Lakes and Hudson River,” regardless of other port calls in the U.S. or Canada during that voyage.

Two commenters asked the Coast Guard to give consideration to Mobile Offshore Drilling Units (MODUs) as they differ operationally from traditional merchant shipping.

The Coast Guard believes that MODUs are already given consideration because most of them operate within one Captain of the Port (COTP) zone. Those MODUs that operate within one COTP zone will be exempt from the mandatory ballast water reporting requirements. MODUs that move from one COPT zone to another will be required to submit ballast water reporting forms.

The Coast Guard received two comments stating that it is not clear if § 151.2010(c) intends to include offshore supply vessels (OSVs) operating out of a single COTP zone in terms of voyages that are to and from sites in the EEZ. The commenters also asked if COTP zones extend to the EEZ.

Section 151.2010(c) covers all vessels, including OSVs that operate within a single COTP zone. As stated in 33 CFR part 151 § 3.01(f), COTP zones, include and extend into the EEZ.

Two commenters suggested adding subparagraph (d) to § 151.2010 to read: “OSVs operating exclusively in the EEZ from U.S. ports that do not take ballast water from the sea or discharge ballast water overboard in the course of their operations”.

The Coast Guard disagrees with this comment. If an OSV operates within one COTP zone, that vessel will be exempt. At this time, under the direction of NISA, the Coast Guard must evaluate the BWM operations of all vessels operating within U.S. waters. Therefore, OSVs operating in more than one COTP zone will be required to submit ballast water reporting forms. If, after a period of time we determine that we are receiving data that does not benefit our evaluation, we will then revisit the program and adjust it accordingly.

Three commenters stated that in § 151.2025, the term “ports and places” needs to be clearly defined. They suggested that the term be defined to exclude ports or places that lie outside the 12 nautical miles territorial sea. They further stated that the preamble for the final rule on NOA states that MODUs moving from one location to another on the Outer Continental Shelf (OCS) are not required to submit a NOA form. The commenters suggested MODUs should be exempt from the ballast reporting requirements.

The Coast Guard disagrees with this comment. “Ports and places” are defined in § 151.2025 and are defined in the exact way as in 33 CFR 160.204 of, “Notification of Arrivals, Departures, Hazardous Conditions, and Certain Dangerous Cargoes.” The Coast Guard must evaluate the BWM operations of all vessels operating within U.S. waters. Therefore, MODUs or OSVs servicing OCS facilities, moving from one COTP zone to another, must submit ballast water reporting forms. If, after a period of time we determine that we are receiving data that does not benefit our evaluation, we will then revisit the program and adjust it accordingly.

These three commenters also stated that in § 151.2025, it is not clear why the definition of EEZ is added. They stated that the definition of EEZ in § 151.1504 is indistinguishable with the one referenced in § 151.2025.

Although the definition of the EEZ is in § 151.1504 (Subpart C, “Ballast Water Management for Control of Nonindigenous Species in the Great Lakes and Hudson River), it was added to § 151.2025 to create a more complete set of regulations within Subpart D “Ballast Water Control for Nonindigenous Species in Waters of the United States.” The Coast Guard hopes in the future, to develop a single set of regulations that will apply nationwide, including the Great Lakes and the Hudson River. Duplications and redundancies would be eliminated during that rulemaking project.

We have made a minor editorial change in section 151.2045, by redesignating paragraphs (a)(8)(ii), (a)(8)(iii), and (a)(8)(iv) as (a)(9), (a)(10), and (a)(11), respectively. This was done to clarify the organization of this section.

This rule is a “significant regulatory action” under section 3(f) of Executive Order 12866, regulatory Planning and Review. The Office of Management and Budget has reviewed it under that order. It requires an evaluation of potential costs and benefits under section 6(a)(3) of that Order. It is “significant” under the regulatory policies and procedures of the Department of Homeland Security. A summary of the Assessment follows:

This Regulatory Evaluation estimates the costs and benefits of the rule for civil penalties and new reporting requirements for vessels arriving from domestic ports of origin. The costs of collecting and reporting ballast water information for vessels arriving from foreign ports of origin have already been accounted for in previous Regulatory Assessments and an OMB-approved collection of information (OMB 2115-0598). Therefore, in this Regulatory Evaluation, we account only for the costs of reporting that will be incurred by vessels arriving in U.S. ports from other U.S. ports ( i.e. , domestic voyages).

We received one comment regarding the estimated number of ballast water reports that will be submitted annually, stating that our estimate did not appear to include arrivals from OSVs. We agree and have amended our estimate accordingly.

According to data from the Coast Guard, the U.S. Customs Service, and the U.S. Maritime Administration, there are approximately 70,000 arrivals in U.S. ports annually. Of these, 50,000 have a foreign port of origin and the remaining 20,000 have a domestic port of origin. Additionally, there are about 40,000 arrivals from OSVs that do not currently report. Vessels arriving from foreign ports of origin are required to report BWM practices under existing regulations. Under this final rule, the 20,000 arrivals from domestic ports plus the 40,000 arrivals from OSVs will now be required to submit ballast water reports.

Based on the current collection, we estimate that each ballast water report takes 40 minutes (0.666 hours) to complete the form and submit it to the Coast Guard. We estimate that it costs $35 per hour for the labor to complete and submit each form. If there are 60,000 arrivals from domestic ports annually, this means the annual cost of the final rule is $1.4 million ($35 × 0.666 hours × 60,000 ballast water reports).

The benefit of the rule is an increase in the amount and quality of BWM information provided to the Coast Guard. This will allow the Coast Guard to more accurately analyze and assess the BWM practices and delivery patterns of vessels navigating in U.S. waters and take appropriate programmatic action.

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

We do not expect that a substantial number of small businesses will be significantly affected by this rule. The final rule implementing NISA, published in November of 2001 (66 FR 58381), was able to certify that a significant number of small entities were not substantially affected by that rule. We do not expect that this will change by increasing the number of vessels subject to the reporting requirements, to cover all vessels equipped with ballast water tanks that are bound for ports or places within the United States, because the cost per ballast water report is only $23 (40 minutes × $35/hour).

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule modifies an existing collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

As required by 44 U.S.C. 3507(d), we submitted a copy of the proposed rule to the Office of Management and Budget (OMB) for its review of the collection of information. OMB approved the change to the collection on September 9, 2003. OMB Control Number 1625-0069, expiring on September 30, 2006.

You are not required to respond to a collection of information unless it displays a currently valid OMB control number.

We have analyzed this rule under Executive Order 13132. The National Aquatic Nuisance Prevention and Control Act contains a “savings provision” that saves to the States their authority to “adopt or enforce control measures for aquatic nuisance species, [and nothing in the Act will] diminish or affect the jurisdiction of any States over species of fish and wildlife.” It also requires that “all actions taken by Federal agencies in implementing the provisions of [the Act] be consistent with all applicable Federal, State and local environmental laws.” Thus, the congressional mandate is clearly for a Federal-State cooperative regime in combating the introduction of NIS into U.S. waters from ship's ballast tanks. This makes it unlikely that preemption, which would necessitate consultation with the States under Executive Order 13132, will occur.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 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.

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

We have analyzed this rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this rule is categorically excluded under paragraph 6(b) of the Appendix to “National Environmental Policy Act: Coast Guard Procedures for Categorical Exclusions, Notice of Final Agency Policy” (67 FR 48244, July 23,2002) from further environmental documentation. This rule falls under congressionally mandated regulations. Analyses of these types of regulations and their respective environmental reviews have determined these actions do not normally have significant effects either individually or cumulatively on the human environment. A final “Environmental Analysis Check List” and a final “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

Congress created Canyonlands National Park in 1964 in order to preserve its “superlative scenic, scientific, and archeologic features for the inspiration, benefit, and use of the public.” 16 U.S.C. 271. The Park is to be administered subject to the NPS Organic Act, as amended, which states in part that the “authorization of activities shall be construed and the protection, management, and administration of these areas [parks] shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various [park] areas have been established, except as may have been or shall be directly and specifically provided by Congress.” 16 U.S.C. 1a-1.

Salt Creek is the most extensive perennial water source and riparian ecosystem in Canyonlands National Park, other than the Green and Colorado Rivers. The Salt Creek “road” is an unpaved and ungraded jeep trail that runs in and out of Salt Creek and, at various locations, the trail's path is in the creek bed. It requires a four-wheel-drive vehicle to drive, and previous vehicle use of the trail periodically resulted in vehicles breaking down or becoming stuck and requiring NPS assistance for removal. Salt Creek is also the heart of the Salt Creek Archeological District, the area with the highest recorded density of archeological sites in the Park. A tributary canyon to Salt Creek contains the spectacular Angel Arch. Until 1998, street-legal motor vehicles were permitted to travel in Middle Salt Creek Canyon along and in the Salt Creek streambed for approximately 7.2 miles above the Peekaboo campsite, and an additional one mile up the Angel Arch tributary canyon. The Salt Creek trail does not provide a route for motorized transit through the Park or to any inholdings within the Park.

The previous management plan affecting Salt Creek, the Canyonlands National Park Backcountry Management Plan, was completed in January 1995. This plan, among other things, established a permit system and a daily limit on the number of motorized vehicles authorized to use the Salt Creek trail above Peekaboo Springs. The Southern Utah Wilderness Alliance (SUWA) challenged the Backcountry Management Plan in Federal district court. Among other things, SUWA alleged that continued vehicular use of Salt Creek would cause impairment of unique park resources and thus would violate the 1916 National Park Service Organic Act (16 U.S.C. 1-4) and Canyonlands National Park enabling act (16 U.S.C. 271).

In its June 1998 decision, the U.S. District Court for the District of Utah interpreted the Organic Act unambiguously to prohibit activities in national parks that would permanently impair unique park resources, and concluded that the NPS's decision to allow vehicle travel in Salt Creek would cause significant permanent impairment. The court consequently enjoined the NPS from permitting motorized vehicle travel in Salt Creek Canyon above Peekaboo Spring.

Off-highway vehicle groups, intervenors in the case, appealed the district court ruling, and in August 2000 the United States Court of Appeals for the Tenth Circuit reversed the district court decision and remanded it for further consideration. The circuit court ruled that the district court had applied the wrong standard in its interpretation of the Organic Act and should have more fully considered whether the agency's interpretation of the Act, as applied to Salt Creek, was “based on a permissible construction of the statute.” The circuit court determined that the administrative record was not clear concerning whether motorized travel in Salt Creek would cause permanent impairment to park resources. The circuit court agreed with the district court that the Organic Act prohibited the NPS from permitting “significant, permanent impairment.” However, the circuit court noted that the Organic Act may also prohibit negative impacts that do not rise to the level of “significant, permanent impairment.” The circuit court remanded the case to the district court, with instructions to re-examine the record to determine whether the agency's conclusion that there was no significant impact on Salt Creek Canyon from the decision to allow limited vehicular traffic in Salt Creek Canyon was adequately supported. The circuit court also instructed the district court to consider the new NPS Management Policies in regard to “impairment of park resources or values,” the central issue in the case, and vacated the district court's injunction on motorized vehicle use in Salt Creek Canyon above Peekaboo Spring.

Since the Canyonlands backcountry planning effort in the mid-1990s, several important changes have occurred. The National Park Service revised its Management Policies to clarify its interpretation of the statutory provision prohibiting impairment of park resources and values (see www.nps.gov/policy/mp/policies.pdf , chapter 1). The vehicle prohibition in Middle Salt Creek Canyon that began in 1998 with the district court's injunction has been the only period of significant length without vehicle traffic in that area since the 1964 creation of the Park. This restriction made it possible to gather information on riparian conditions without the effects of vehicles, through the Park's ongoing monitoring program and independent research efforts. In 2001, the U.S. Fish and Wildlife Service designated critical habitat for the threatened Mexican spotted owl, which includes Salt Creek Canyon. In addition, in the absence of motor vehicle traffic, vegetation has returned to the vehicle tracks and water flows have moved sections of the stream channel.

To take these changes into account and to address the impairment question following the remand, the NPS initiated an environmental assessment process in accordance with the National Environmental Policy Act (NEPA). The district court subsequently stayed its proceedings on remand until completion of this environmental assessment. The environmental assessment process took advantage of additional scientific information and applied the revised Management Policies on impairment to analyze, in more depth than had previously been possible, the impacts of a range of access alternatives for Middle Salt Creek Canyon. The environmental assessment was released for public review and comment in June 2002 and a Finding of No Significant Impact (FONSI) was issued in September 2002.

The environmental assessment analyzed four alternatives, including three alternatives which would have permitted vehicle access. Each of these three alternatives would have allowed vehicle travel on the Salt Creek trail under the permit system and daily vehicle limits of the 1995 Canyonlands/Orange Cliffs Backcountry Management Plan (BMP). Alternative A would have allowed motor vehicle access on the current alignment of the trail year-round. Alternative B would have allowed vehicle access on the current alignment of the trail each year from October 1 until ice makes the creek impassable, or January 31 of the following year at the latest; vehicles would have been prohibited the remainder of the year. Alternative C would have realigned sections of the trail to avoid the streambed and riparian area where feasible, and would have allowed year-round vehicle access.

The fourth alternative analyzed in the EA, Alternative D, would prohibit motor vehicle access in Middle Salt Creek Canyon year-round. Hiking and pack/saddle stock would continue to be permitted, under the provisions of the backcountry management plan.

Under each of the three vehicle alternatives, the use of motorized vehicles was found to cause impairment to park resources and values because of adverse impacts to the Salt Creek riparian/wetland ecosystem. Alternative D, prohibiting vehicle access, was found not to cause impairment to park resources and values. Consequently, Alternative D was selected in the FONSI for implementation.

Because each of the three alternatives for vehicle traffic in Middle Salt Creek Canyon would have caused impairment of park resources and values, allowing motor vehicles under any one of these alternatives is not permissible under the NPS Organic Act. Roads elsewhere in the Needles District, as well as elsewhere in Canyonlands National Park, remain open to motorized vehicles. Salt Creek above Peekaboo remains open to foot and pack/saddle stock travel.

San Juan County and the State of Utah have asserted that they hold a right-of-way over the Salt Creek trail pursuant to R.S. 2477. R.S. 2477 was a Federal law passed in 1866 providing that “the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” R.S. 2477 was repealed in 1976, subject to valid existing rights. The NPS has sought and examined information relevant to the claim that this route is an R.S. 2477 right-of-way. Based on this review, the NPS concluded that it has not been shown that a valid right-of-way was constructed during the period when the lands were unreserved. Promulgation of this rule will not affect the ability of the County or State to pursue in an appropriate forum the claim that this is a valid R.S. 2477 right-of-way.

This final rule would prohibit motorized public use in Salt Creek Canyon above Peekaboo Spring. Although this rule does not apply to motor vehicle use for administrative purposes, the Park as a matter of policy has previously chosen to forgo all such motorized use unless necessary for emergency rescue purposes.

The proposed rule was published in the Federal Register on August 11, 2003, for public review and comment. The NPS received comments on the proposed rule from over 2800 individuals and 25 organizations. The comments were generally similar to those previously submitted on the EA (which prompted over 7000 comment letters). The majority (over 97 percent) of the commenters supported the proposed rule. Of this 97 percent, nearly 95 percent sent letters with wording similar to that suggested by constituency groups. Of the less than 3 percent of commenters that did not support the rule, approximately one-third sent letters with wording similar to that suggested by constituency groups. Comments on the rule, and National Park Service responses, follow.

Comment: The rule is needed to alleviate the impacts of vehicle traffic through the creek and riparian area. These impacts on streambanks, water quality, vegetation, and wildlife are not acceptable, particularly on one of the most important water sources and riparian areas in a national park. The rule would not substantially restrict the public's opportunity to enjoy Canyonlands, and would ensure that a high-quality experience would continue to be available for future generations.

Response: These ideas are generally consistent with the findings of the Middle Salt Creek EA.

Comment: The jeep trail is a highway right-of-way under R.S. 2477, so the NPS cannot prohibit motorized vehicle traffic on it.

Response: Though San Juan County has made various statements claiming that the route is an R.S. 2477 right-of-way, it has only recently indicated its intention to commence legal proceedings for a determination on whether such claims are valid. Promulgation of this rule will not affect the ability of the County or State to pursue such a determination in an appropriate forum. Should it be subsequently determined that the State and/or County do hold a valid R.S. 2477 right-of-way, the regulation will be revisited to ensure that it is consistent with the rights associated with such a right-of-way.

Comment: The EA finding (on which the rule is based) that vehicle travel in Salt Creek causes impairment of park resources is inconsistent with the determination in a 1995 Finding of No Significant Impact (FONSI) that parkwide backcountry management actions, which included limited vehicle traffic in Salt Creek, would have “minor and temporary” environmental impacts. The previous Salt Creek permit system provided reasonable balance between the two responsibilities contained in the NPS Organic Act, to provide for conservation and enjoyment of park resources by means that leave them unimpaired for the enjoyment of future generations.

Response: The Tenth Circuit Court of Appeals, in SUWA v. NPS , noted that the level of impact caused by vehicle travel in Salt Creek was the source of conflicting statements in the administrative record for the 1995 Backcountry Management Plan. The 1995 decision was an interim action, intended to be revisited in approximately five years after the actual impacts of the backcountry plan were monitored, and subject to change if the impacts were unacceptable. This monitoring data, as well as other information not available when the 1995 decision was made, informed the 2002 decision. Based on this additional information, the NPS found that alternatives permitting vehicle traffic would cause significant impacts as well as impairment of park resources, and thus were not permissible.

Comment: The NPS gave inadequate consideration to the importance of Angel Arch and the recreational opportunity provided by Salt Creek Road.

Response: The EA recognized that Salt Creek Canyon is “a unique recreational experience, whether accessed on foot or by vehicle.” It characterized “the opportunity to view Angel Arch,” as well as “the opportunity to experience the mix of other resources found in Salt Creek Canyon,” as “unique.” (A “unique” experience was defined as “only available at a single location,” such as “visiting Delicate Arch or some one-of-a-kind feature,” as opposed to “uncommon” or “common.”) It evaluated the impacts of four alternatives, three involving vehicle access, on accessibility as well as on hiking/backpacking. The three vehicle-access alternatives had positive effects on accessibility but mostly negative impacts on hiking, while the foot and pack animal access alternative (which is now being promulgated as the final rule) had negative impacts on accessibility but mostly positive impacts on hiking. While vehicle access to Angel Arch and Salt Creek is important to many visitors, a nonmotorized experience and a desert creek that is not impacted by vehicle traffic are equally important to many other visitors.

Comment: The proposed rule limits viewing Angel Arch to those able to hike to it (about 18 miles round trip), eliminating this opportunity for the “vast majority” of Park visitors.

Response: The Park does not have overall statistics on the transportation mode(s) of every visitor (two-wheel driving, four-wheel-driving, hiking, etc.), but each mode makes up a significant contingent of total visitation. Vehicle use of the jeep trails in Salt Creek and Horse Canyon (accessed via Salt Creek) decreased after vehicle travel above Peekaboo was prohibited, but increases in vehicle camping use at Peekaboo and backpack use of the Salt Creek/Horse Canyon and Upper Salt Creek zones offset this decline. (The NPS does not formally count the visitors that actually travel to Angel Arch, but visitors in these areas are the ones actually counted that are most likely to visit the arch.) Vehicle day use of the Salt Creek and Horse Canyon routes dropped from 3737 people in 1998, when vehicles could travel to within one-half mile of Angel Arch for about half the year, to 2814 people in 2001, after vehicles were prohibited above Peekaboo, a decrease of 913 people, but backpacking and vehicle camping use increased by 1007 people over the same period. The vehicle prohibition does not appear to have decreased overall visitor use in this area. Whether or not vehicles are permitted above Peekaboo, visitation to Salt Creek and tributary canyons has accounted for only about 1 percent of total annual park visitation. Visitors also continue to have the option to access Angel Arch on horseback. Over 240 miles of four-wheel-drive roads, plus an additional 42 miles of two-wheel-drive roads, remain available for vehicles in Canyonlands National Park and the adjacent Orange Cliffs unit of Glen Canyon National Recreation Area.

Comment: The proposed rule violates the Canyonlands General Management Plan (GMP), which lists “Proposed Uses” for the “Salt Creek Canyons subunit” as “Interpretation, Four-wheel Driving, Marked Routes and Cross Country Hiking, Four-wheel-drive camping, and Backpacking.”

Response: The National Park Service recognizes that GMPs need to be updated periodically, and that changing conditions, use, or other circumstances may necessitate changes in management. NPS policies require managers to eliminate existing activities “as soon as reasonably possible” if they find that they cause impairment. The policies direct that “Even in parks with strong traditions and established patterns of use and development, managers will be responsible for assessing whether resources are threatened with impairment, the visitor experience has been degraded, or the park's built environment is difficult to sustain * * * An approved GMP may be amended or revised, rather than a new plan prepared, if conditions and management prescriptions governing most of the area covered by the plan remain essentially unchanged from those present when the plan was originally approved.” As stated in the Finding of No Significant Impact for the Middle Salt Creek Canyon Access Plan, the proposed action amends the Canyonlands GMP and Backcountry Management Plan. Within the Salt Creek Canyons subunit, four-wheel driving remains available in Salt Creek from Cave Springs to Peekaboo and in Horse Canyon, while four-wheel-drive camping remains available at the Peekaboo campsite.

Comment: Implementation of the rule would frustrate Congress' intent in establishing Canyonlands National Park.

Response: The Tenth Circuit Court of Appeals, in SUWA v. NPS , found this argument “without merit,” noting that “nothing in the statutory language indicates that a jeep trail cannot be closed if the closure is deemed necessary for preservation. The legislative history is inconclusive at best on the issue, and thus carries little weight.” The rule for Salt Creek is consistent with both the act establishing Canyonlands (passed “* * * in order to preserve an area in the State of Utah possessing superlative scenic, scientific, and archeologic features for the inspiration, benefit and use of the public”) and the NPS Organic Act, as amended, which sets basic direction for the national parks and gives the NPS authority to manage accordingly.

Comment: Wildlife in Salt Creek Canyon would be more disturbed by pedestrians than by vehicles.

Response: The National Park Service disagrees. The impact analysis considered various types of impacts ( e.g. , direct physical injury or mortality, stress/startling/flushing, habitat and conditions, avoidance of or displacement from key habitat) and species or groups affected (listed threatened or endangered species, birds, small and large mammals, amphibians and reptiles). While the National Park Service does agree that pedestrian activity may cause some species to stress/startle/flush more than would be the case with motor vehicles, we do not agree that wildlife in Salt Creek Canyon would be more disturbed by pedestrians than by vehicles. Our analysis concluded that total adverse impacts for the range of effects considered on all species would be greater from vehicles than from pedestrians.

Comment: Impacts from hiking use under the proposed rule were not analyzed: new trails, associated cryptobiotic crust impacts, water quality, wildlife reactions to hikers, cultural resource impacts, etc.

Response: Most if not all of the trails now present in Salt Creek Canyon were there before vehicles were prohibited in 1998. Informal “social” trails do not appear to have increased during the period vehicles have been prohibited. Trails around wet areas were used by drivers scouting the pools before driving through them as well as by hikers. Some trails may vary somewhat as stream location or water level changes. Disturbance effects of hikers on wildlife are discussed in various places in the EA, including pages 57, 58, 61, 64, 65, and 69. Water quality effects from increased backpacking use under the final rule are analyzed on pages 101-102 in the EA. Cultural resource impacts of the final rule are analyzed on pages 83-84 of the EA.

Comment: The proposed rule violates the Americans with Disabilities Act.

Response: The Federal government is under the authority of the Architectural Barriers Act of 1968 (Pub. L. 90-480) and the Rehabilitation Act of 1973 (Pub. L. 93-112). The Americans with Disabilities Act (ADA) extended the coverage of these two acts to state and local governments and the private sector. The Interior Department also uses the ADA Accessibility Guidelines in its construction projects. The primary focus of these laws and guidelines is architectural accessibility (buildings and facilities).

The NPS accessibility goal (Director's Order 42) is to ensure the highest reasonable level of accessibility, with the accessibility level largely determined by the nature of the area and program, and consistent with the obligation to conserve park resources and preserve the quality of the park experience. The NPS also follows “universal design” principles. In the outdoor setting, universal design means not adding barriers when developing an area that is inherently full of barriers, and not creating developments that compromise the integrity of the environment in order to make that environment accessible. NPS Management Policies for park facilities direct that undeveloped areas will not normally be modified, nor will special facilities be provided, for the sole purpose of providing access to all segments of the population.

Under the final rule, the Salt Creek Canyon jeep trail below Peekaboo will remain open to motor vehicles. Horseback access up Middle Salt Creek Canyon will provide alternative access opportunities for some individuals unable to hike the portion of the canyon closed to motor vehicles. Viewing Angel Arch is not possible from the end of the jeep trail; an uphill hike from the end of the trail was always necessary to reach a point where the arch can be seen. None of the Salt Creek alternatives would meet the ADA Accessibility Guidelines, if they applied in this context, because of various characteristics of the backcountry setting and the primitive trail leading from the end of the jeep trail to Angel Arch. The major trail alterations required to meet accessibility guidelines would be inappropriate for the backcountry setting. Opportunities to view arches of similar size from in or near a vehicle are available elsewhere in the region. Photos and other information about Angel Arch are available in the Needles visitor center, and in various publications and interpretive media.

Comment: The impacts of vehicle traffic are no worse than those of flooding.

Response: This issue is analyzed at length in the EA. In short, vehicle traffic destabilizes the stream channel and floodplain, and magnifies flood damage. Flood damage in Salt Creek, shortly before and since the completion of the EA, has demonstrated the vehicle-streambed impacts discussed in the EA. The Salt Creek streambed is normally a meandering channel. The four-wheel-drive route runs in the streambed itself for extended distances; in other places it “shortcuts” across meander bends. These shortcuts can capture stream flow and become the primary or secondary channels. These channels, formed initially or altered by vehicle traffic, are shorter, straighter, less vegetated, and smoother than the normally-meandering channel. Water flowing down them has higher velocity and more erosive force, so that floods cause more damage than they would under normal conditions. In 2001, 2002, and 2003, Salt Creek had floods resulting from estimated two- to ten-year-recurrence ( i.e. , fairly commonplace) precipitation events. Each of these floods caused substantial damage to parts of the jeep trail still traveled by vehicles, resulting from water flowing down the vehicle-channelized streambed sections, or following the vehicle tracks across terraces above the normal streambed. In one section, flood flows followed the vehicle tracks across a previously unflooded terrace, eroding a gully up to four feet below the previous road level. Vegetated stream channel sections not traveled by vehicles received little erosion damage from these floods.

Comment: Only permanent impacts constitute impairment of park resources, and vehicle travel in Salt Creek does not cause impairment because vegetation returned and the riparian area improved after vehicle traffic ceased in 1998.

Response: The U.S Court of Appeals for the Tenth Circuit, in SUWA v. NPS, noted that “ ‘significant, permanent impairment’ ” may not be coterminous with what is prohibited by the [NPS Organic] Act because other negative impacts [ e.g. , less than permanent] may also be prohibited.”

Comment: The NPS gave inadequate consideration to realignment of the jeep route, low water crossings or other techniques to allow vehicle access.

Response: The EA analyzed three alternatives for vehicle access. One of these alternatives was a realignment of the jeep route in an attempt to avoid or reduce impacts to the streambed and riparian area. This alternative would have reduced the number of stream crossings from over 60, but over 40 crossings would have remained. It would also have required 30 to 40 new climbs from the streambed to terraces five to 30 feet above, many of which would have also required substantial road cuts. These terraces are composed of incohesive sand, and would be subject to accelerated erosion if destabilized by vehicle traffic and/or road construction. Because of continued and new disturbance, erosion and sedimentation, this alternative was also found to cause impairment of park resources.

This document is a significant rule and has been reviewed by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule may raise novel legal or policy issues. It has been the focus of approximately eight years of litigation and controversy regarding the environmental impacts associated with motor vehicle use on an eight mile section of a trail that runs in and out of a creek bed within the Middle Salt Creek Canyon area of Canyonlands National Park. The NPS's environmental assessment evaluated three alternatives that would allow some degree of continued motor vehicle traffic in Salt Creek Canyon, and a fourth alternative that would prohibit motor vehicle access year-round. The NPS Organic Act requires that the NPS manage park areas “in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” The assessment concluded that each one of the three alternatives would cause impairment to park resources and values because of the impacts to the Salt Creek riparian/wetland ecosystem. Therefore, none of the three alternatives would be permissible.

An analysis of gross receipts and recreation visitor-days (1993-2000) indicates that Salt Creek commercial use, while fluctuating during this period, actually bypassed pre-closure levels. The analysis also shows that commercial use of the middle portion of Salt Creek is a small percentage of the overall commercial use of the park. The economic effects of this rule are local in nature and negligible in scope. There are several roads throughout the Park that commercial motorized vehicles may continue to use. The Department of the Interior therefore 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. ).

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule will have no effect on small or large businesses. This rule:

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

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

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

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. The Department has determined that this rule meets the applicable standards provided in Section 3(a) and 3(b)(2) of Executive Order 12988.

In accordance with Executive Order 12630 and the Attorney General's Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings, the rule does not have takings implications. The EA/FONSI and the impairment finding with respect to motorized use of the Salt Creek trail were made as a direct result of the still-pending litigation brought by Southern Utah Wilderness Alliance challenging the permit system that Canyonlands instituted for motor vehicles to use this trail. Since this lawsuit was originally filed, State and local entities have asserted that the trail constitutes an R.S. 2477 right-of-way, which in this case would be a right-of-way across public lands in favor of the State and County. As noted previously, the NPS has concluded that the information available to it is not sufficient to demonstrate that a valid right-of-way was created prior to reservation of these lands and that closure to motorized vehicles is required to prevent an impermissible impairment to park resources. No evidence exists that either the State or County has ever managed or maintained this trail, nor have they commenced administrative or judicial proceedings to lead to a determination whether any such claims are valid. Nevertheless, should it be subsequently determined that the State and County do hold a valid R.S. 2477 right-of-way, the regulation will be revisited to ensure that it is consistent with the property rights that are afforded to the holders of such valid rights-of-way.

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation will not have a substantial direct effect on the states, or on the distribution of power and responsibilities among the various levels of government. The rule addresses the prohibition of motorized use in part of a canyon in Canyonlands National Park. Canyonlands has had proprietary jurisdiction over the canyon since the creation of the Park in 1964. On April 9, 2003, the Department of the Interior and the State of Utah entered into a Memorandum of Understanding to implement “a State and County Road Acknowledgment Process” for certain R.S. 2477 rights-of-way on BLM lands within the State of Utah. The Memorandum provides that the State and Utah counties will not assert rights- of-way under the Road Acknowledgement Process within any National Park System unit in Utah, and that “the State, Utah counties and the Department shall work cooperatively to minimize trespass situations on roads” within national parks. Other means for the County or State to pursue an R.S. 2477 right-of-way claim, such as a Quiet Title suit, remain available and are unaffected by promulgation of the final rule.

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

This regulation does not require an information collection, and a submission under the Paperwork Reduction Act is not required.

This rule is not a major Federal action significantly affecting the quality of the human environment. Pursuant to the National Environmental Policy Act, 42 U.S.C. 4332, NPS has prepared an Environmental Assessment and a Finding of No Significant Impact (FONSI) on the proposed use of Salt Creek Road. The Environmental Assessment and FONSI may be viewed at www.nps.gov/cany, or copies may be obtained by contacting Canyonlands National Park.

In accordance with Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), and 512 DM 2, we have evaluated potential effects on federally recognized Indian tribes and have determined that there are no potential effects.

This rule is effective upon publication for good cause as permitted by the Administrative Procedure Act (5 U.S.C. 553(d)(3)). NARA believes that delaying the effective date for 30 days is unnecessary as this rule represents minor technical amendments. Moreover, as the public benefits immediately being provided with corrections to phone numbers for Presidential libraries and the regional records services facilities, any delay in the effective date would be contrary to the public interest.

This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. This rule is not a major rule as defined in 5 U.S.C. chapter 8, Congressional Review of Agency Rulemaking. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities. This regulation does not have any federalism implications.

This is a summary of the Federal Communications Commission's Report and Order, FCC 03-238, adopted on October 6, 2003, and released on October 16, 2003. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street, SW., Washington, DC 20554. The complete text 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: www.fcc.gov. Alternative formats are available to persons with disabilities by contacting Brian Millin at (202) 418-7426 or TTY (202) 418-7365 or at bmillin@fcc.gov.

1. In the Report and Order, the FCC adopts changes to part 87 of the Commission's rules that were either proposed in or suggested in response to the Notice of Proposed Rule Making (“NPRM”) in this proceeding. The NPRM, released on October 16, 2001, 66 FR 64785 (December 14, 2001), proposed rule changes that were intended to consolidate, revise and streamline our rules governing aviation communications. These changes were proposed to ensure that the part 87 rules reflect recent technological advances and are consistent with other Commission rules. In addition, changes were proposed to eliminate regulations that are duplicative, outmoded, or otherwise unnecessary in the Aviation Radio Service.

2. The significant actions taken in this Report and Order are as follows: (i) Updating the technical specifications for Aeronautical Mobile Satellite (Route) Service (AMS(R)S) equipment; (ii) permitting certification of dual spacing transceivers to accommodate aircraft operating in countries that employ 8.33 kHz channel spacing; (iii) extending license terms of non-aircraft stations from five to ten years; (iv) extending the construction period for aeronautical advisory stations (unicoms) and radionavigation land station from eight months to one year; (v) eliminating all references to the Civil Air Patrol from part 87; (vi) authorizing use of the Differential Global Positioning System (DGPS) in the 108-117.975 MHz and 1559-1610 MHz bands on a non-developmental basis, while also requiring DGPS receivers to meet minimum interference immunity requirements; (vii) modifying the licensing procedures and eligibility requirements for unicoms; and (viii) retaining the rule specifying that there may be only one aeronautical enroute station licensee per location, while clarifying that the licensee is expected to provide access to the spectrum on a reasonable, nondiscriminatory basis.

3. The Report and Order does not contain any new or modified information collection.

4. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.”

In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (i) Is independently owned and operated; (ii) is not dominant in its field of operation; and (iii) satisfies any additional criteria established by the SBA.

5. The purpose of the Report and Order is to streamline and update our part 87 rules governing the Aviation Radio Service. We believe that the rules adopted in the Report and Order do not impose any additional compliance burden on small entities.

6. We have identified those small entities that could conceivably be affected by the rule changes adopted herein. Small businesses in the aviation and marine radio services use a marine very high frequency (VHF) radio, any type of emergency position indicating radio beacon (EPIRB) and/or radar, a VHF aircraft radio, and/or any type of emergency locator transmitter (ELT). The adopted rules may also affect small businesses that manufacture radio equipment. However, we anticipate that these rule changes will not impose any new burdens on small entities, but in fact will reduce regulatory and procedural burdens on small entities. The general effect of the rule changes adopted herein is to streamline the rules, remove duplicative requirements, provide greater operational flexibility, promote spectrum efficiency, facilitate equipment certification, and make our rules consistent with international requirements, all of which are measures that should have an overall beneficial effect on the regulated entities. We certified in the Notice of Proposed Rule Making in this proceeding that the rules proposed therein would not, if promulgated, have a significant economic impact upon a substantial number of small entities, as that term is defined by the RFA, and no party has challenged or otherwise commented on that certification.

7. We therefore certify that the requirements of the Report and Order will not have a significant economic impact upon a substantial number of small entities, as that term is defined by the RFA.

8. The Commission will send a copy of the Report and Order , including a copy of this final certification, in a report to Congress pursuant to the Congressional Review Act. In addition, the Report and Order and this final certification will be sent to the Chief Counsel for Advocacy of the Small Business Administration.

9. The Commission's Consumer Information Bureau, Reference Information Center, shall send a copy of this Report and Order including the Regulatory Flexibility Certification and to the Chief Counsel for Advocacy of the Small Business Administration.

This final rule is a periodic update of RSPA's pipeline safety regulations to incorporate the most recent editions of the voluntary consensus standards and specifications referenced at 49 CFR Part 192, Appendices A and B, and 49 CFR Part 195.3. This rule also makes several other revisions and clarifications to improve the consistency and accuracy of the pipeline safety regulations. RSPA previously issued final rules on May 27, 1996 (61 FR 26121) and February 17, 1998 (63 FR 7721) that updated references to the consensus standards publications incorporated by reference in the pipeline safety regulations, and made various editorial clarifications and corrections. On March 22, 2000, RSPA issued a Notice of Proposed Rulemaking (NPRM) (65 FR 15290) proposing to amend the sections incorporating consensus standards to update to the current editions. Additionally, RSPA proposed to increase the pressure limitation for new thermoplastic pipe, to allow plastic pipe on bridges, to clarify welding requirements, to revise the hazardous liquid pipeline accident reporting definition, to clarify the definition of a gas transmission line, and make other editorial clarifications and corrections to certain sections of the Federal pipeline safety regulations.

RSPA received a total of thirty written comments on the proposals in the NPRM. Eighteen of the comments were from the gas pipeline operators, six were from trade associations including the American Petroleum Institute, the American Gas Association, the National Fire Protection Association, the Texas Natural Gas Association, and the New England Gas Association, and the remaining six were from the Gas Piping Technology Institute, the Iowa State Public Service Commission, two advocacy groups, and two industry consultants. We also received recommendations and comments by the National Association of Pipeline Safety Representatives (NAPSR), a non-profit association of officials from State agencies that participate in RSPA's Federal pipeline safety regulatory program, and recommendations by the State Industry Regulatory Review Committee (SIRRC). The Technical Pipeline Safety Standards Committee (TPSSC) and the Technical Hazardous Liquid Pipeline Safety Standards Committee (THLPSSC), which were established by statute to evaluate and comment on pipeline safety issues, discussed the proposed amendments during their May 20, 2000 meeting and provided comments on the proposals in the NPRM. The relevant comments are summarized and discussed under each issue area below.

RSPA's Office of Pipeline Safety participates in more than 25 national voluntary consensus standards committees and adopts standards when they are applicable. The Federal pipeline safety regulations incorporate by reference all or portions of over 60 consensus standards and specifications for the design, construction, and operation of gas and hazardous liquid pipelines that were developed and published by recognized technical organizations, including the American Petroleum Institute (API), ASME International (ASME), American Society for Testing and Materials (ASTM), Manufacturers Standardization Society of the Valve and Fittings Industry (MSS), American Gas Association (AGA), and the National Fire Protection Association (NFPA). The standards and specifications incorporated for gas pipelines, formerly in Appendix A to part 192 are now found at 49 CFR Part 192.7 and in Appendix B to Part 192. Those incorporated for hazardous liquid pipelines are found at 49 CFR 195.3. These documents can be obtained by contacting the following organizations:

These documents are also available for inspection at the following locations:

The organizations responsible for developing these standards and specifications periodically publish revised editions incorporating the most current technology. This rule updates the Federal pipeline safety regulations to reflect the most recent editions of each standard and specification incorporated by reference to enable pipeline operators to utilize the latest technology, materials, and engineering practices. Because some of the standards proposed in the NPRM are no longer available, we reviewed and referenced the next available edition. Adoption of these updated documents ensures that pipeline operators will not be unnecessarily burdened with outdated material, design, and construction requirements.

The order and appearance of the consensus standards in the CFR has also been updated and clarified. The standards are set forth by name and version date in the proposed amendments to 49 CFR Part 192, Appendices A and B, and 49 CFR 195.3. In general, the only change is to reference the new edition and year of publication. On October 31, 2001, API appended errata to the 19th edition of the API 1104 standard, “Welding of Pipelines and Related Facilities,” which we have reviewed and accepted as part of the document for the purposes of this final rule. No substantive changes are associated with these errata. In addition to adopting the most recent editions of the standards and specifications already incorporated by reference in the pipeline safety regulations, this final rule adopts one new technical document, the Plastics Pipe Institute's technical report entitled, “Policies and Procedures for Developing Hydrostatic Design Basis (HDB), Pressure Design Basis (PDB), and Minimum Required Strength (MRS) Ratings for Thermoplastic Piping Materials or Pipe” (PPI TR-3/2000 or the “PPI Technical Report”). Sections 192.7 and 195.3 will continue to govern the applicability of all documents incorporated by reference.

Other than certain editorial corrections suggested by the API, we did not receive any comments on the substance of the updated consensus standards publications and other documents. However, with respect to adopting the 42nd edition of the API 5L standard, Specification for Line Pipe, and the 19th edition of the API 1104 standard, “Welding of Pipelines and Related Facilities,” the following issues are noteworthy. The 42nd edition of the API 5L standard is substantially different from the 41st edition referenced previously in the CFR. The 42nd edition of the API 5L specification, which has been adopted in its entirety, prescribes two performance specification levels (PSL-1 and PSL-2) for manufactured line pipe. Designers now have the option to use either the PSL-1 specification with the attendant supplementary requirements (SRs), or the more restrictive PSL-2 specification for which many SRs are mandatory. It is also important to note that certain critical aspects of the PSL-2 specification, such as the mandatory fracture toughness requirements, are considered minimum requirements. Therefore, designers must evaluate, among other things, the actual requirements for fracture toughness, strength level, weldability, and quality assurance measures for each pipeline application and the actual requirements should be reflected in the pipe and component purchase specifications. We encourage pipeline designers to carefully review the updated 5L specification and take advantage of the improved quality of pipe manufactured under PSL-2 requirements. The mandatory minimum fracture toughness requirements of the PSL-2 specification, and other recent developments including tighter dimensional tolerances, stricter controls on chemical composition, more stringent quality assurance measures, and enhanced record keeping requirements make PSL-2 pipe highly suitable for natural gas and hazardous liquid pipeline applications. RSPA is currently considering amending the pipeline safety regulations to require the use of PSL-2 quality level or better pipe for all future pipeline construction.

The 19th edition of the API 1104 standard, “Welding of Pipelines and Related Facilities,” certain portions of which are incorporated by reference, is also substantially different from the edition referenced previously. As noted by several commenters, there are significant differences in the acceptance criteria between the ultrasonic test (UT) method and the radiography test (RT) method for weld quality. First, some commenters suggested that adopting the new standard be postponed until the acceptance criteria for RT and UT could be equalized. In our judgment however, equalizing the acceptance criteria is not practical because UT and RT are distinctly different methods providing different sensitivity and capability. Therefore, we will continue to accept the use of either method, along with the corresponding acceptance criteria. Secondly, in addition to being capable of discerning cracks and crack-like defects, UT methods must be capable of discerning defect indications that would be acceptable under “workmanship acceptance criteria.” This is important because under 49 CFR 192.241(c) and 195.228(b), the acceptability of a weld that is nondestructively tested is determined according to the API 1104 standard. However, if a girth weld is unacceptable under that standard for a reason other than a crack, Appendix A of API 1104, “Alternate Acceptance Standard for Girth Welds,” may determine its acceptability. Therefore, certain planar defects—such as lack of fusion and weld undercut—can be further assessed under that Appendix.

Since the closing date for comments to the NPRM, we note that a few standards have been issued with more recent publication dates than those being adopted herein. We intend to identify all relevant standards that have been amended since the currently adopted standards were issued and will propose to adopt the new editions as appropriate in 2004.

In the NPRM, we proposed to incorporate by reference the Plastics Pipe Institute's technical report entitled, “Policies and Procedures for Developing Hydrostatic Design Basis (HDB), Pressure Design Basis (PDB), and Minimum Required Strength (MRS) Ratings for Thermoplastic Piping Materials or Pipe” (PPI TR-3/2000 or the “PPI Technical Report”). The PPI technical report provides a method for determining the hydrostatic design basis (HDB) for pipelines operating at any temperature by using the arithmetic interpolation procedure in Part D2 of the report entitled, “Policy for Determining Long-Term Strength (LTHS) by Temperature Interpolation.” Incorporation of this report will provide gas distribution pipeline operators with the flexibility to design safe thermoplastic pipeline systems at a wide range of operating temperatures. Our proposal to incorporate the PPI technical report by reference for the first time did not draw any objection by the commenters. Therefore, the report will be referenced in the gas pipeline safety regulations at 49 CFR 192.121, “Design of Plastic Pipe.”

In addition to the incorporation by reference of the most recent editions of voluntary consensus standards and other documents, it was proposed that the design pressure limitation for new thermoplastic pipe be increased, that plastic pipe be permitted for certain bridge applications, that the time period for revising maximum allowable operating pressure (MAOP) when a change in class location occurs be modified, that certain welding requirements be clarified, that strength test requirements for components be modified, that the definition of a hazardous liquid pipeline accident be revised, and that numerous editorial changes and clarifications be made. With a few exceptions, the comments were generally supportive of these proposals, although one commenter suggested that substantive changes to the regulations would be more appropriately handled in a proceeding separate from a periodic update of referenced industry standards.

Section 192.3 defines the term “transmission line,” in part, by the nature of the entities between which the gas is being transported. Under subparagraph (a) of the definition, pipelines that transport gas from a gathering line or storage facility to a distribution center, storage facility, or “large volume customer” that is not downstream of a distribution center may be considered transmission lines. A large volume customer, in turn, is a customer who may receive similar volumes of gas as a distribution center, and includes factories, power plants, and institutional gas users. However, the definition of a large volume customer appears in subparagraph (c), which deals only with the transportation of gas within a storage field. Because the definition of “large volume customer” relates directly to the definition of “transmission line,” the proposed amendment would clarify the application of the term by removing it from subparagraph (c) and placing it in a separate paragraph. Several commenters suggested that the term “transmission line” not be defined in terms of a “large volume customer” at all. Two commenters suggested modifying the term “distribution center” so that it would be broad enough to encompass these entities. In our judgment, however, it is useful to distinguish between (local) distribution centers and large volume customers. Therefore, we adopt the amendment as proposed.

Section 192.121 prescribes the formula for determining the hydrostatic design pressure for thermoplastic pipe. This section allows for design pressures based on the long-term hydrostatic strength (LTHS) to be determined in accordance with the corresponding listed pipe material specification determined at certain temperatures. The proposed amendment to § 192.121 incorporates the PPI technical report which provides an enhanced methodology to establish the hydrostatic design basis (HDB) and LTHS design parameters for thermoplastic pipe. The report also provides for interpolating HDB and LTHS data at specified temperatures, namely 70 °F (23 °C), 100 °F (38 °C), 120 °F (49 °C) and 140 °F (60 °C). With the improvement over time of polyethylene materials technologies and pipe manufacturing processes, thermoplastic pipe performance and reliability has improved significantly and the proposed amendment will provide greater flexibility to pipe designers without compromising safety. In our judgment, the incorporation of the PPI technical report as a guide to interpolate the test data for pipe HDB and LTHS at intermediate temperatures will result in a corresponding improvement in the accuracy of determining thermoplastic pipe design parameters. Therefore, we adopt the amendment as proposed.

Section 192.123(a) limits the design pressure for thermoplastic pipe calculated in § 192.121 to less than or equal to 100 psig (689 kPa) for pipe used in gas distribution systems or in Class 3 and 4 locations. The proposed amendment to § 192.123(a) allows a maximum design pressure of 125 psig (862 kPa) for thermoplastic pipe designed in accordance with § 192.121. After the effective date of this rule, design pressures at operating temperatures other than those specified in the material specifications listed in ASTM 2513 would be established as provided for in Part D2 of the PPI technical report (see above discussion on the amendment of § 192.121). Therefore, the increase in pressure would correspond with the increased margin of safety resulting from the more reliable means of establishing the design pressure parameters using the PPI technical report. Eleven of the commenters agreed that the proposed increase in the design pressure limitation was warranted. AGA, for example, noted that modern polyethylene pipe was already being operated at pressures greater than 100 psig pursuant to waivers granted by State pipeline safety regulators and that such use had thus far proven to be reliable. AGA further contended that the reliability of newer polyethylene pipe was supported by laboratory and field analysis of the LTHS of these polyethylene materials. Copies of the AGA petitions are included in the docket. Bay State and Northern Natural Gas suggested that the design pressure limitation be established per International Organization for Standardization (ISO) standards, which allow any design pressure permitted by the measured HDB. UGI Utilities suggested an even higher maximum allowable pressure. However, because there is insufficient data to conclude that such pressures would provide adequate safety to the public, we conclude that prescribing a maximum pressure higher than 125 psig is unsupported at this time. It is important to note that the design pressure limitation increase only applies to thermoplastic pipe produced after the effective date of this rule, i.e. , to pipe newly produced in accordance with the PPI technical report method. Therefore, in the absence of a waiver, existing pipe would continue to be limited to a maximum operating pressure of 100 psig. Finally, members of the TPSSC raised the issue that it might be necessary to mandate greater burial depth to mitigate any unknown level of consequences of a failure at higher operating pressure. The committee concluded that this matter would be more appropriately addressed in future rulemaking. Having considered all these comments, we adopt the amendment as proposed.

Section 192.145 sets forth the minimum design requirements for valves used in gas pipeline systems and requires that valves meet the API 6D “Specification for Pipeline Valves (Gate, Plug, Ball, and Check Valves)” standard, “or equivalent.” The proposed amendment would have removed the words “or equivalent” from this provision. The intent of the amendment was to reduce the burden of making ad hoc determinations of whether alternative standards are equivalent to the API 6D standard. The removal of the words “or equivalent” from this provision was opposed by 15 commenters, who contended that the amendment would be a major change with considerable impact to the industry. It was also pointed out that there was no discussion on this issue in the preamble to the NPRM. Some of the comments included extensive material describing the variety of valve standards they felt were equivalent to API 6D, including API 600, ANSI B16.34, and ANSI B16.38, and contended that the level of safety provided by these alternative standards was demonstrably adequate. The TPSSC discussed the matter at length, questioned the need for the amendment, and recommended that the amendment not be adopted in the final rule.

In our judgment, API 6D is the valve standard accepted worldwide and we remain concerned about the practicability of making repeated determinations of whether alternative standards are equivalent to the API 6D standard. Nevertheless, we have concluded that the use of any design standard that results in a performance level equivalent to that of the valves made under the API 6D standard is acceptable. In light of the comments received, we considered the following two options: (1) Not to adopt the proposed amendment, or (2) modify the language by adding, “* * * or to a standard that provides a level of performance equivalent to that of API 6D.” Upon further consideration, we have determined that the later option satisfies both the original intent of the proposed amendment and the concerns of the commenters. Therefore, we adopt the amendment as modified.

The proposed amendment, which was recommended by NAPSR, requires operators to qualify welding procedures under Section 5 of the API 1104 standard or Section IX of the ASME Boiler and Pressure Vessel Code. The intent of the amendment is to harmonize this provision with § 192.227, which references API 1104 and Section IX of the ASME Boiler and Pressure Vessel Code. We have not accepted SIRRC's suggestion that the welding qualification regulations allow “other accepted welding standards” because we are not aware of any other widely accepted pipeline welding standards. Therefore, we adopt the amendment as proposed.

Section 192.229 prohibits welders from performing welds on pipeline components to be operated at a hoop stress of 20 percent or more of SMYS unless the welder has performed a test weld meeting the acceptance criteria of Sections 6 or 9 of API 1104 during the preceding six calendar months. In response to requests for increased flexibility with regard to the time period, the proposed amendment would provide an alternative where welders who regularly perform production welds could maintain an ongoing qualification status by making acceptable test welds at least two times in a calendar year, but at intervals not exceeding 7 1/2 months. Although supportive of the idea, many commenters noted that the proposed language was confusing. We agree with the commenters and have revised the language without affecting the intent of the proposed rule change. The revised language is as follows:

The proposed amendment to § 192.241(a) requires that visual inspection of a weld be conducted “by an inspector qualified by appropriate training and experience.” Although this amendment directly followed a NAPSR recommendation, SIRRC suggested that the use of the term “inspector” may be problematic and suggested changing it to “person.” One commenter noted that the reasons for the proposed amendment were not discussed in the preamble to the NPRM and suggested that the amendment not be adopted. Although we agree that the use of the term inspector may well be problematic, in our judgment, the term “individual” is more suitable than the term “person” for this purpose and does not affect the intent of the proposed amendment. Therefore, we adopt the amendment as modified.

Recent advances in thermoplastic pipe performance and reliability have made it suitable for certain aboveground applications. In response to a petition by the Gas Piping Technology Committee (GPTC) and other comments, RSPA has concurred with a number of state waivers allowing plastic pipe installation on bridges. These waivers require that the pipe be well protected from mechanical damage, elevated temperatures, and ultraviolet radiation exposure. The proposed amendment would permit the use of plastic pipe across bridges, but closely tracks the conditions set forth in these state waivers. All comments on the subject supported the amendment. A majority of these commenters also suggested that, as long as the pipe is protected in accordance with the conditions set forth in the proposed rule, the use of thermoplastic pipe for other aboveground installations including railway crossings, highway bridges, and similar structures should be permitted. However, the GPTC technical report, “Installation of Plastic Gas Pipeline Across Bridges,” which is available in this docket, did not provide sufficient justification for accepting these modifications. Therefore, we adopt the amendment as proposed.

Under § 192.505(d), the strength test requirements for pipeline components, including non-standard components such as flanges, can be satisfied by pressure testing, and those for components manufactured in quantity can be satisfied by prototype testing. The proposed amendment would enable manufacturers to establish a pressure rating by use of standard pressure ratings in the ASME/ANSI B16.5, “Pipe Flanges and Flange Fittings” or MSS SP44, “Steel Pipe Flanges” material specifications, or alternatively, through unit stress calculations. The proposed amendment would add a new subparagraph (d)(3):

The determination of the strength of a non-standard component by unit stress calculations is of particular relevance to situations where one-of-a-kind, non-standard components are fabricated and the component strength is not determined by pressure testing, prototype testing, or use of standard pressure ratings in a listed material specification. Five of the six commenters supported the proposed amendment. One commenter suggested that qualifying a component by unit stress calculations alone would be inadequate. Notably, unit stress analysis is contemplated in the regulations as part of the design requirements at § 192.143, which also requires the analysis of loading stresses and other design parameters. The proposed amendment was endorsed by the GPTC, which acknowledged that the unit stress of non-standard components should be individually analyzed and pressure tested to ensure compliance. GPTC noted that the use of ASME/ANSI and MSS material specifications to establish pressure ratings has been routine for many years for manufactured standard components. In our judgment, the proposed amendment provides additional flexibility to determine component strength and maintains the limitation that pressure ratings established by unit stress calculations may not exceed the ratings listed in the standard material specifications. Therefore, we adopt the amendment as proposed.

Section 192.611(d) allows 18 months for a gas pipeline operator to confirm or revise the maximum allowable operating pressure (MAOP) of a pipeline after a change in class location. The proposed amendment would increase the time period from 18 months to 24 months, and clarify that the 24-month time period begins when a building or buildings are ready for occupancy and not when the operator discovers that there are new buildings or completes a class location review. Although the proposed change was unopposed by most commenters, some SIRRC members and one other commenter objected to the adoption of a 24-month time period because it would have an adverse impact on operators without any corresponding benefit. Upon further consideration, we adopt the increase in the time period from 18 months to 24 months as proposed, but modify the proposed language to clarify that the time period begins when the results of a study conducted under § 192.609 indicate a change in class location. Moreover, this result is also consistent with the intent of Section 854.2 of standard ASME B31.8. Therefore, we adopt the proposed language.

The proposed amendment was intended to clarify the circumstances, such as an emergency situation, when an operator may not be able to provide temporary marking of buried pipelines in an area of intended excavation activity. Many commenters, including SIRRC, expressed confusion concerning the proposed amendment and noted that there was no discussion in the preamble to the NPRM. Upon further consideration, we have determined that withdrawing the proposed amendment will not significantly affect the level of safety. However, we intend to reexamine this issue at a later date. Therefore, the proposed amendment is not adopted.

Section 192.723 requires operators of gas distribution systems to perform periodic leak surveys. For areas outside business districts, the prescribed minimum interval is “as frequently as necessary * * * but not exceeding 5 years.” The proposed amendment would provide flexibility in performing the 5 year leak detection surveys by allowing up to 63 months between surveys. The intent of the amendment was to allow flexibility for inclement weather or other unforeseen circumstances. The commenters expressed confusion as to definition of certain other terms in the provision, such as “cathodically unprotected lines,” and questioned the need for the additional three months. Two of the commenters noted that there was no discussion of this amendment in the preamble to the NPRM. Operators should plan adequately to ensure that the leak survey interval outside business districts is conducted every five years. However, we recognize the need for some flexibility in the scheduling of these leakage surveys. Therefore, we are adopting language to require that leakage surveys outside of business districts be conducted at least once every five calendar years at internals not exceeding 63 months.

The proposed amendment would include the definition of the term “maximum operating pressure” as the maximum pressure at which a liquid pipeline or pipeline segment may be normally operated under Part 195. No comments were filed in opposition to the amendment. Therefore, we adopt the amendment as proposed.

In the NPRM, RSPA proposed to eliminate the accident reporting criteria discrepancy between Parts 192 and 195 by modifying § 192.50(e) to ensure that the criteria are the same for both gas and hazardous liquid pipelines. This issue was addressed and resolved in a separate proceeding under a final rule issued on January 8, 2002 (67 FR 831). Therefore, there is no need to address this issue in this final rule.

Based on the preceding discussion of § 192.225, we adopt the amendments to § 195.214 as proposed.

Based on the preceding discussion at § 192.241, we adopt the amendment to § 195.228 as modified.

Section 195.440 requires hazardous liquid pipeline operators to establish a continuing educational program to enable individuals to recognize pipeline emergencies and report them to the operator and to the authorities. The proposed amendment would have added One Call centers to the list of entities for required reporting of emergencies. Two of the three responders opposed the amendment, noting that the role of One Call centers is for prior notification of intended excavation activities to facilitate temporary marking and not for actual emergency response. Upon further consideration, we have determined that the amendment, as proposed, does not achieve its intended purpose. Therefore, the proposed amendment is not adopted.

The Department of Transportation does not consider this action to be a significant regulatory action under Section 3(f) of Executive Order 12866 (58 FR 51735; Oct. 4, 1993) and, therefore, was not subject to review by the Office of Management and Budget. This rule is not significant under the DOT's regulatory policies and procedures (44 FR 11034; Feb. 26, 1979). This rule amends the pipeline safety regulations to reference the most recent editions of the voluntary industry consensus standards already incorporated by reference in the pipeline safety regulations, gives pipeline operators additional flexibility in the use of thermoplastic pipe, and makes certain clarifications and corrections. These revisions are consistent with the President's goal of regulatory reinvention and the improvement of customer service to the American people. There are minimal costs for pipeline operators to comply with this rule because the consensus standards were developed and published by authoritative organizations associated with the petroleum industry and voluntary adherence to them has been a regular industry practice for decades. The latest editions of the consensus standards have already been implemented by pipeline operators throughout the United States to increase the safety and reliability of their pipeline systems. A draft regulatory evaluation was prepared for the NPRM and no comments were received. A final regulatory evaluation is available in the docket.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This rule does not propose any regulation that: (1) Has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. Further, this rule does not have sufficient impacts on federalism to warrant the preparation of a federalism assessment.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084, (“Consultation and Coordination with Indian Tribal Governments.”) Because this rule does not significantly or uniquely affect the communities of the Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

This final rule is not a significant energy action under Executive Order 13211. It is not a significant regulatory action under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Further, this rule has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

In this action, RSPA is incorporating by reference industry consensus standards that are developed and published by authoritative organizations associated with the petroleum industry. The standards development process utilized by these organizations gives pipeline operators of all sizes the opportunity to fully participate in the consensus building process. Consequently, these industry codes and standards are well known and have been implemented by small and large pipeline operators throughout the United States and in some cases, internationally. Moreover, RSPA's interactions with operators' associations have presented no reason to expect that this action would have a significant economic impact on smaller operators. In addition, no significant adverse comments were received from small entities during the notice and comment period. Because this final rule provides relief from adherence to outdated standards and provides additional operating flexibility to pipeline operators of all sizes, and will not impose additional economic impacts for government units, businesses, or other organizations, I certify, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605) that this final rule will not have a significant economic impact on a substantial number of small entities.

This final rule contains no new information collection requirements or additional paperwork burdens. Therefore, submitting an analysis of the burdens to OMB pursuant to the Paperwork Reduction Act was unnecessary.

This final 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 objective of the rule.

RSPA has analyzed this action for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq. ). To the extent the most recent editions of the standards incorporated by reference adopt improvements in pipeline materials and control technologies, their application is generally associated with facilities located within the existing rights-of-way. This action does not lead directly to any construction project or involve any land acquisition. It does not induce significant impacts to land use, does not have a significant impact on any natural, cultural, recreational, historic or other resource, does not involve any significant air, water, or noise quality impacts, does not impact travel patterns, and does not otherwise have any significant environmental impacts. Accordingly, I have determined that this final rule does not constitute a major Federal action significantly affecting the quality of the human environment. An Environmental Assessment was prepared for the NPRM. No comments were received. A finding of no significant impact has been signed and placed in the docket.

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act of 1973 (ESA). The Kemp's ridley ( Lepidochelys kempii ), leatherback ( Dermochelys coriacea ), and hawksbill ( Eretmochelys imbricata ) turtles are listed as endangered. The loggerhead ( Caretta caretta ) and green ( Chelonia mydas ) turtles are listed as threatened, except for breeding populations of green turtles in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Sea turtles are incidentally taken and killed as a result of numerous activities, including fishery trawling activities in the Gulf of Mexico and along the Atlantic seaboard. Under the ESA and its implementing regulations, taking sea turtles is prohibited, with exceptions identified in 50 CFR 223.206, or if in accordance with the terms and conditions of a biological opinion issued under section 7 of the ESA or an incidental take permit issued under section 10 of the ESA. The incidental taking of turtles during shrimp or summer flounder trawling is exempted from the taking prohibition of section 9 of the ESA if the conservation measures specified in the sea turtle conservation regulations (50 CFR 223) are followed. The regulations require most shrimp trawlers and summer flounder trawlers operating in the southeastern United States (Atlantic area, Gulf area, and summer flounder sea turtle protection area; see 50 CFR 223.206) to have a NMFS-approved TED installed in each net that is rigged for fishing to provide for the escape of sea turtles. TEDs currently approved by NMFS include single-grid hard TEDs and hooped hard TEDs conforming to a generic description, the flounder TED, and one type of soft TED the Parker soft TED (see 50 CFR 223.207).

TEDs incorporate an escape opening, usually covered by a webbing flap, that allows sea turtles to escape from trawl nets. To be approved by NMFS, a TED design must be shown to be 97-percent effective in excluding sea turtles during testing based upon specific testing protocols (50 CFR 223.207(e)(1)). Approved hard TEDs are described in the regulations (50 CFR 223.207(a)) according to generic criteria based upon certain parameters of TED design, configuration, and installation, including height and width dimensions of the TED opening through which the turtles escape.

On February 21, 2003, NMFS issued a final rule (68 FR 8456), amending the sea turtle conservation regulations to protect large loggerhead, green, and leatherback sea turtles. The February 2003 final rule requires that all shrimp trawlers fishing in the offshore waters of the southeastern United States (Atlantic area and Gulf area) and the inshore waters of Georgia and South Carolina use either a double cover flap TED, a single-grid hard TED with a 71-inch (180-cm) opening, or a Parker soft TED with a 96-inch (244-cm) opening in each net rigged for fishing. In inshore waters, except those of Georgia and South Carolina, the rule allows the use of a single-grid hard TED with a 44-inch (112-cm) opening, a Parker soft TED with a 56-inch (142-cm) opening, and a hooped hard TED with a 35-inch (89-cm) by 27-inch (69-cm) escape opening.

Section 4(b)(7) of the Endangered Species Act (16 U.S.C. 1533(b)(7)), provides for issuance of regulations, not subject to notice and comment, regarding emergencies posing a significant risk to the well-being of listed species. Such regulations may take effect immediately upon filing for public inspection in the Federal Register , and may be effective up to 240 days.

NMFS has been notified by the Georgia Department of Natural Resources (GADNR) that extraordinarily high numbers of threatened and endangered sea turtles have stranded off the Georgia coast. From May 5, 2004, through May 24, 2004, a total of 82 sea turtles have washed ashore along the Georgia coast (shrimp zones 30 and 31). By comparison, the 12-year average of stranded sea turtles in Georgia for this time period is about 18. Considering the fact that strandings are only a minimum estimate of actual mortality, these strandings represent a serious impact to local sea turtle populations.

Information from GADNR and NOAA enforcement indicates that there is a high number of shrimp boats off Georgia for the current season. Georgia state waters are closed to shrimping, so the fishery is currently operating only in Federal waters, targeting high-value, large white shrimp. These sources also indicate there are a large number of very large, powerful shrimp vessels from North Florida and Gulf states (estimated at 25-30 boats) that are participating in the fishery. These boats are generally capable of fishing a greater number of larger nets at higher speeds than the local boats. Although white shrimp are generally only caught during the day, these large vessels have been observed to be fishing 24-hours-a-day and using long tow times (up to 12 hours in some cases). Local fishermen fish mostly in the day to target white shrimp using tow times of two to four hours. The 24-hour fishing, in conjunction with long tow times, represents a significant increase in effort in this area. An aerial survey to monitor shrimping effort on May 21 found that most of the large trawlers were concentrated in the southern part of the state, in the area of highest strandings.

NMFS believes that the increased shrimping effort, particularly the switch to nighttime fishing and very long tow-times, is responsible for the sharp increase in turtle mortality and strandings along the Georgia coast.

NMFS has analyzed other factors that might have contributed to the turtle strandings, including environmental conditions, and no possible causes other than shrimp trawling have been identified. A single vessel fishing for sharks using drift gillnets a fishing method that is known to capture and kill sea turtles has been operating in Federal waters in the Florida-Georgia border area in the past month. A NMFS observer has been aboard that vessel for every trip since May 12, however, and no sea turtle interactions have been observed. There is no evidence of a red tide or other harmful plankton bloom event or any major disease factor. The condition of the stranded turtles has indicated that they were generally healthy and actively foraging prior to their deaths, which is consistent with strandings resulting from shrimp trawling. The carcasses have primarily been coming ashore in the vicinity of areas where shrimping effort has been concentrated. NMFS and state personnel will continue to investigate factors other than shrimping that may contribute to sea turtle mortality in the area, including other fisheries and environmental factors.

Pursuant to 16 U.S.C. 1533(b)(7), NMFS has determined that the unusually high recent numbers of strandings and mortalities of sea turtles off the coast of Georgia constitute a significant risk to the well-being of listed species of sea turtles. NMFS has determined that this temporary emergency rule prohibiting shrimp trawl fishing during night time hours is necessary to alleviate the increased shrimping effort in the area that has been determined to be the cause of the recent increase in strandings. NMFS has determined that this emergency prohibition on night time shrimp trawl fishing is necessary in an area larger than the current hot-spot of strandings, to prevent fishing practices that are harmful to sea turtles from simply relocating to other areas in the South Atlantic. Specifically, this rule prohibits shrimp trawling in the area in offshore Atlantic waters west of 77°57.5′ W. longitude (approximately Cape Fear, N.C.) and north of 30° N. latitude (just north of St. Augustine, Fla.) between 9 p.m. and 5 a.m. EDT. This restriction is effective from June 7, 2004 through 11:59 p.m. (local time) July 7, 2004. NMFS is restricting this emergency rule to a 30-day period because the vessels responsible for the unusual increase in effort off the Georgia coast typically target their fishing efforts in Gulf of Mexico waters beginning in late June to early July.

This restriction has been announced on the NOAA weather channel, in newspapers, and other media. Shrimp trawl fishermen may also call (727)570-5312 for updated information on shrimping restrictions.

NMFS will continue to monitor sea turtle strandings to gauge the effectiveness of these emergency measures.

This action has been determined to be not significant for purposes of Executive Order 12866.

NMFS has determined that this action is necessary to respond to an emergency situation to provide adequate protection for threatened and endangered sea turtles pursuant to the ESA and other applicable law. This temporary rule is being promulgated under 16 U.S.C. 1533(b)(7), and includes a detailed statement of the reasons why such regulation is necessary, as required by that section. Therefore, the requirements of 5 U.S.C. 553 are inapplicable.

As prior notice and an opportunity for public comment are not required to be provided for this rule pursuant to 16 U.S.C. 1533(b)(7), the analytical requirements of 5 U.S.C. 601 et seq. , are inapplicable.

As required by 16 U.S.C. 1533(b)(7), NMFS has consulted with the marine fisheries officials in Florida, Georgia, South Carolina, and North Carolina on this emergency action. The required nighttime closure will be complementary to existing nighttime closures of state waters in Georgia, South Carolina, and North Carolina, in that there will be a closure; however, the times of the closure in Federal waters are not exactly the same as the times for the closure in state waters.

NMFS has prepared an Environmental Assessment (EA) for this action. Copies of the EA are available (see ADDRESSES ).

The April 27, 2004, final rule implementing Amendment 13 (69 FR 22906) included an administrative measure for the purpose of selecting vessels for observer coverage. Vessel owners who choose to fish in either of the two U.S./Canada Management Areas, must provide notice to NMFS of the vessel name, contact name for coordination of observer deployment, telephone number for contact, date, time and port of departure at least 5 working days prior to the beginning of any trip that is declared into the U.S./Canada Management Area. The goal of this requirement was to obtain a level of observer coverage on NE multispecies vessels fishing in the U.S./Canada Management Area that is consistent with the rest of the fishery (i.e., 10 percent for the 2004 fishing year). The objective is to provide notification to the NMFS Observer Program of planned trips, prior to the departure of the trip, so that the Observer Program has sufficient time to contact and deploy observers.

Although a notification period of 5 working days was determined to be optimal in terms of the operational requirements of the NMFS Observer Program, public comments received from numerous industry members have indicated that a shorter notification requirement would provide vessels greater flexibility to react to contingencies such as weather developments. Upon further consideration, NMFS has determined that a notification period of 72 hours represents a balance between the requirements of the Observer Program and the interests of the fishing industry, while still meeting the objectives of Amendment 13. Therefore, this final rule reduces the notification time for groundfish DAS vessels prior to departure of a trip into the U.S./Canada Management Area from 5 working days to 72 hours.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C 553(b)(B) to waive the requirement to provide prior notice and the opportunity for public comment on this regulatory amendment as such procedures are unnecessary and contrary to the public interest. The timing of the advance notification for the purposes of placing observers on fishing vessels is purely a NMFS administrative function. The objective of the advance notification is to allow the Observer Program sufficient time to contact and deploy observers. Reducing the notification period from five days to three days does not impact the fishery management measures that became effective on May 1, 2004. In addition, numerous industry members, the fishery management council and the State of Maine, requested a reduction to the notification period. Fisherman will benefit from a shorter notification period because it will provide vessels greater flexibility to react to contingencies such as weather developments, while still allowing sufficient time to place observers on vessels. Further, the AA has determined that the 30-day delay in effectiveness requirement under 5 U.S.C. 553(d)(1) is not applicable because this action relieves a restriction as described in the SUPPLEMENTARY INFORMATION section of this rule.

This action is authorized by 50 CFR part 648 and is exempt from review under 12866. This action modifies a collection-of-information requirement for the purposes of the Paperwork Reduction Act. Although the costs associated with this reporting requirement do not change as a result of this final rule, the burden to the industry will be reduced because this rule relieves a restriction.

Because prior notice and an opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other applicable law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. ,are not applicable.

NMFS manages the U.S. groundfish fisheries of the BSAI in the Exclusive Economic Zone under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP pursuant to the Magnuson-Stevens Act. Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

This action is one of several adopted by the Council to decrease regulatory and economic discards and increase catch utilization in the BSAI groundfish fisheries. Amendment 49 to the FMP was implemented by a final rule January 3, 1998 (62 FR 63880), and established retention and utilization standards for pollock and Pacific cod. In June 2003, the Council adopted Amendment 79 to the FMP, which would establish a minimum groundfish retention standard (GRS) for specified vessels in the BSAI. Along with Amendment 79, the Council also adopted a revision to the MRA enforcement period for pollock harvested by non-American Fisheries Act (AFA) vessels in the BSAI. Prior to the June Council actions, the proposed GRS program and pollock MRA revision were considered as components of one action to reduce discard amounts in the BSAI. However, the Council recognized that the MRA change was simpler to implement than the GRS action and requested NMFS to expedite the pollock MRA revision.

Regulations at 50 CFR 679.20(e) establish rules for calculating and implementing MRAs for groundfish species or species groups that are closed to directed fishing. The MRA is calculated as a percentage of the retained amount of species closed to directed fishing relative to the retained amount of basis species or species groups open for directed fishing. Table 11 to 50 CFR part 679 lists retainable percentages for BSAI groundfish species. Amounts that are caught in excess of the MRA must be discarded. Regulations limit vessels to MRAs at any time during a fishing trip. Under regulations implementing Amendment 49 to the FMP, vessels must retain all incidental catch of pollock and Pacific cod up to the MRA and discard the rest.

This action adds regulations at § 679.20(e)(3)(iii) to make the MRA for pollock caught by non-AFA eligible vessels in the BSAI management area enforceable at the time of offload. This action is intended to increase the retention of pollock by non-AFA vessels in the BSAI, while not increasing the overall amount of pollock harvested by adjusting the MRA enforcement period so that the MRA for pollock caught in the BSAI by non-AFA vessels is enforced at the time of offload rather than at any time during a fishing trip. Under these regulations, vessels will be able to choose to retain pollock in excess of the MRA as long as the amount retained at the time of offload is at the specified MRA percentage with respect to basis species or species groups retained. By allowing vessels to manage their MRA percentage for pollock on an offload-to-offload basis, additional pollock may be retained over the course of a fishing trip. For example, if a vessel operator catches pollock early in a trip in excess of the MRA, he or she may choose to retain the pollock and move to an area with lower incidental catch rates of pollock, thereby lowering the percentage of pollock retained, with respect to other basis species, prior to the offloading of catch. As long as the amount of pollock on board the vessel is at or below the appropriate MRA at the time of offload, the vessel operator would be in compliance.

In addition to the pollock MRA enforcement period adjustment, this action clarifies MRA requirements for catcher vessels at § 679.20(e)(3)(i). Regulations at § 679.20(e) did not differentiate between catcher vessels and catcher processors. However, the definition of fishing trip is different for each vessel type and the MRA is enforced differently for each vessel type. Catcher vessels may fish within more than one statistical reporting area during the same fishing trip. This action clarifies that the lowest MRA for any of the areas where fish are harvested during a fishing trip applies for the duration of the fishing trip. These changes apply to catcher vessels fishing in the Gulf of Alaska (GOA) and the BSAI and reflect the existing enforcement protocol. MRA requirements for catcher processors at § 679.20(e)(3) remain unchanged except to change the BSAI pollock MRA accounting period from anytime during a fishing trip to the time of offload.

The following changes to the IR/IU regulations apply to vessels fishing in the GOA and the BSAI:

Regulations at § 679.27(c)(2) describe retention requirements for IR/IU species. In § 679.27, paragraphs (c)(2)(i)(B), (c)(2)(ii)(B), (c)(2)(iii)(B), and (i)(2) refer to the “MRB” amount when directed fishing for an IR/IU species is prohibited. “MRB” is an acronym for maximum retainable bycatch and was changed to MRA for consistency with the definition of bycatch in the Magnuson-Stevens Act. The regulatory text in these paragraphs is amended to reflect current language and to provide consistency with other regulatory text.

Regulations at § 679.27(c)(2)(ii)(B) require vessels to retain IR/IU species up to the MRA for that species and are enforced at any time during a fishing trip. This action provides an exception in these regulations for pollock caught by non-AFA eligible vessels in the BSAI.

Further background on the development of the regulatory amendments contained in this final rule is available in the proposed rule that was published January 29, 2004 (69 FR 4281) for a 30-day public review and comment period that ended March 1, 2004. One letter containing 3 comments was received during the comment period.

Comment 1: The proposed regulation may create an unintended incentive for non-AFA vessels to increase the overall amount of pollock caught incidentally when directed fishing for other non-pollock species in the BSAI. The Council specifically addressed these concerns and noted that the non-AFA fleet should not increase their historic levels of incidental pollock catch. Further, the amount of pollock caught by non-AFA vessels should be compared against these historic levels during the annual groundfish harvest specification process.

Response: By adjusting the MRA enforcement period for pollock caught in the BSAI by non-AFA vessels from anytime during a fishing trip to enforcement at the time of offload, the Council intended to increase the retention of pollock by these vessels without increasing their overall catch of pollock. NMFS fisheries managers currently consider historic and recent incidental catch levels during the total allowable catch (TAC) specification process and will continue to provide this information to the Council annually.

Comment 2: Discussion in the proposed rule about the Incidental Catch Allowance (ICA) for pollock harvested by non-AFA vessels seems to imply that the purpose of the proposed rule would be achieved if the non-AFA fleet does not exceed the ICA for pollock. The ICA is not an appropriate reference point for determining whether pollock harvested by non-AFA vessels has exceeded historic levels because it is a conservative, precautionary estimate of incidental pollock catch in all non-target pollock fisheries, much of which is rolled back to the pollock fishery during a fishing year.

Response: The goal of this action is to reduce regulatory discards of pollock by non-AFA vessels without increasing the overall amount of pollock caught by these vessels. Members of the AFA fleet expressed concern during the Council process over non-AFA vessels exceeding historic levels of incidental pollock catch. These concerns were analyzed in the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (see ADDRESSES ) prepared for the proposed rule and further discussion was provided in the preamble to the proposed rule. While a discussion of the ICA is provided in the proposed rule, this discussion was not intended to suggest that the goal of this action would be achieved if the non-AFA fleet does not exceed the ICA for pollock. The ICA is not an allocation or quota to any particular group or sector of the BSAI groundfish fleet. Incidental catch estimates that form the basis of annual ICAs are conservatively large to ensure that overall harvest remains within the TAC. NMFS annually provides information about historical catch to the Council to guide the ICA specification and will continue to make this information available to the Council and interested public. The amount of pollock caught by non-AFA eligible vessels will continue to be well documented. Should pollock incidental catch rates or amounts increase in a manner that would require an increase in the ICA, the Council could initiate regulatory action to reduce incidental catch rates to levels closer to historical amounts. Any adjustment to the ICA would occur within the annual harvest specification process.

Comment 3: To the extent that pollock ICA levels are higher than necessary to support incidental catch rates by non-AFA vessels, NMFS routinely makes inseason adjustments to the ICA and reallocates any projected unused pollock to the AFA fleet. These reallocations should not be considered as historical catch of the non-AFA fleet.

Response: Reallocations of pollock from the ICA to the directed fishery have occurred every year since 1999 and range from 2,000 mt in 1999 to 12,000 mt in 2001. NMFS managers use actual historical and recent catch amounts to specify future ICA amounts. As a result, the ICA can change annually.

There are two changes from the proposed rule to the final rule:

First, regulations at § 679.20(e)(2)(i), (e)(2)(ii), and (e)(2)(iii) describe how to calculate the MRA for a specific incidental catch species. Proposed regulations at § 679.20(e)(2)(iv), (e)(2)(v) and (e)(2)(vi) describe the applicability of MRA regulations. This final action redesignates § 679.20(e)(2)(iv), (e)(2)(v) and (e)(2)(vi), as published in the proposed rule, to § 679.20(e)(3)(i), (e)(3)(ii) and (e)(3)(iii), respectively, and adds the title of “Application” for these paragraphs. This change from the proposed rule is intended to enhance clarity of these regulations for the public. The cross-reference at § 679.27(d)(1)(iii)(B) is changed to reflect this redesignation.

Second, the text, “and not subject to § 679.20(e)(2)(vi)” at § 679.20(e)(2)(v) and “except when exceeded as provided for in § 679.20(e)(2)(vi)” at § 679.27(c)(2)(ii) is removed in the final rule. The revision to the MRA enforcement period for pollock harvested by non-AFA vessels in the BSAI applies to all vessel types. In the proposed rule, this text only was found in paragraphs which apply to catcher/processors. NMFS recognizes that this could cause confusion and has removed the text from the final action. Regulations at § 679.20(d)(1)(iii)(B) continue to clarify MRA applicability requirements for all vessels.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

NMFS prepared a FRFA. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) and a summary of the analyses completed to support the action. A copy of this analysis is available from NMFS (see ADDRESSES ). Section 604(a) of the Regulatory Flexibility Act (RFA) identifies the elements that should be in the FRFA and are summarized below:

The need for, and objectives of, this action are described above in the preamble and are not repeated here.

The proposed rule was published on January 29, 2004 (69 FR 4281). An IRFA was prepared for the proposed rule, and described in the classifications section of the preamble to the rule. The public comment period ended on March 1, 2004. No comments were received on the IRFA or concerning the economic impact of the rule.

The change in the enforcement period for the pollock MRA will apply to all non-AFA vessels that catch BSAI pollock as an incidental species, regardless of vessel size, gear type or target fishery. Non-AFA trawl catcher processors (head-and-gut sector) incidentally catch significant amounts of pollock in other groundfish fisheries. Other non-AFA vessels do not catch significant amounts of pollock and are therefore seldom affected by the MRA for pollock on a haul-by-haul basis. In recent years, 23 to 24 vessels in the head-and-gut trawl catcher processor sector have fished in the BSAI. Ownership of the active vessels is concentrated in 10 companies. One of the listed companies is an independent company that acts as a manager of four vessels, each of which is an independently owned corporation with different ownership structures. Therefore, the FRFA treated these vessels as four independent companies.

Analysis of the 3-year average of estimated annual receipts of the head-and-gut trawl catcher processor sector indicated that 1 of the 13 companies operating in the sector in 2002 would be defined as a small entity with receipts of less than $3.5 million. The company operates a single vessel that is less than 125 feet (38.1 meters).

The preferred alternative is not expected to have a significant negative impact on individual vessel gross receipts. Therefore, this final rule is not expected to have a significant negative impact on small entities. The preferred alternative changes the enforcement interval of the MRA to an offload-to-offload basis. This alternative meets the goal of the Council of reducing discards of pollock by non-AFA vessels without increasing the overall amount of pollock harvested by these vessels. The preferred alternative also provides regulatory relief to any directly regulated small entity to which the rule applies by increasing operational flexibility, improving resource utilization, and reducing the risk of an inadvertent violation of MRA and IR/IU pollock retention standards. This action is not expected to create any adverse impacts for directly regulated entities, small or large. The alternative allows non-AFA vessels to retain additional pollock caught incidentally in the BSAI management area, thereby helping to meet the Council's goals and objectives to reduce discards in the groundfish fisheries off Alaska.

Options for different enforcement periods for adjusting the MRA for pollock harvested by non-AFA vessels in the BSAI and for increasing the MRA percentage were considered by the Council, but were eliminated from detailed analysis due to potential difficulties in enforcing these options and inconsistencies with the problem statement. The status quo is the alternative to the preferred action. The status quo would not lead to increased retention of pollock caught by non-AFA vessels in the BSAI. The status quo was rejected because it would not accomplish the objectives of the action.

This action changes regulations at § 679.20 and § 679.27 to make the MRA for pollock caught by non-AFA eligible vessels in the BSAI management area enforceable at the time of offload. This action does not require additional compliance from small entities that is not described in the preamble. Copies of this final rule are available from NMFS (see ADDRESSES ) and at the following website: http://www.fakr.noaa.gov .

This regulation does not impose new recordkeeping or reporting requirements on the regulated small entities. The FRFA did not reveal any Federal rules that duplicate, overlap or conflict with the proposed action.