On March 6, 2003, the Office of Personnel Management (OPM) published a proposed rule (68 FR 10666) revising part 110 of title 5, Code of Federal Regulations. The proposed rule had a 60-day comment period, during which OPM received no comments. The final rule is identical to the proposed rule. The rule will make the following revisions to title 5, Code of Federal Regulations. Part 110 is revised to reflect the removal of old subpart B—Information Collection Requirements. Old subpart B was a requirement arising from an internal OPM housekeeping function no longer in effect. Its removal requires us to eliminate the old subpart A designation and use the designation part 110 to refer to the remaining material. We have also made minor word changes and changed the order of material within the section. Except as otherwise noted, the purpose of these revisions is not to make substantive changes but, rather, to make part 110 more readable.

Section 110.101: Changes “special bulletins” to “notice” and changes “new regulations” to “new proposed, interim, and final regulations.” Corrects the name of the type of issuance currently used, which was changed in 1994 when the bulletin system was abolished, and clarifies regulation description to indicate that it includes new proposed, interim, and final regulations.

Section 110.101(b): (Note old paragraphs (a) and (b) have been reversed, and redesignated as paragraphs (b) and (a), respectively, so that they are now in a more logical sequence). Provides the option for viewing documents either in paper format or via Web site, thus providing the ability to use electronic as well as paper format of documents.

Section 110.102(b): Adds “agency Web sites” as a supplemental posting option. This provides the option for an agency to make new OPM regulations available on the agency's Web site or through a link to the OPM Web site.

I certify that this proposed regulation will not have a significant economic impact on a substantial number of small entities.

The Office of Management and Budget has reviewed this rule in accordance with Executive Order 12866.

On September 12, 2003, the Office of Personnel Management published interim regulations (68 FR 53667) to implement a statutory amendment that authorized the payment of extended assignment incentives. Section 207 of the 21st Century Department of Justice Appropriations Authorization Act (Pub. L. 107-273, November 2, 2002), added a new section 5757 to chapter 57 of title 5, United States Code, to permit the head of an executive agency to pay an extended assignment incentive to certain Federal employees assigned to positions located in a territory or possession of the United States, the Commonwealth of Puerto Rico, or the Commonwealth of the Northern Mariana Islands. The 60-day comment period for the interim regulations ended on November 12, 2003. We received no comments from either agencies or individuals. Therefore, we are adopting the interim regulations as final, with one minor correction of a regulation citation at § 575.513(a).

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

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

Accordingly, the interim rule amending part 575 of title 5 of the Code of Federal Regulations, which was published at 68 FR 53667 on September 12, 2003, is adopted as final with the following changes:

In 1971, the Atomic Energy Commission promulgated General Design Criterion (GDC) 3, “Fire protection,” in Appendix A to 10 CFR part 50. Subsequently, the NRC developed specific guidance for implementing GDC 3 in Branch Technical Position (BTP) Auxiliary and Power Conversion Systems Branch (APCSB) 9.5-1, “Guidelines for Fire Protection for Nuclear Power Plants,” dated May 1, 1976, and Appendix A to BTP APCSB 9.5-1, “Guidelines for Fire Protection for Nuclear Power Plants Docketed Prior to July 1, 1976,” dated August 23, 1976. In the late 1970s, the NRC worked with licensees to establish configurations to meet this guidance, reaching closure on most issues. However, to resolve the remaining contested issues, the NRC published the final fire protection rule (10 CFR 50.48, “Fire protection”) and Appendix R to 10 CFR part 50 dated November 19, 1980 (45 FR 76602).

Section 50.48(a)(1) requires each operating nuclear power plant to have a fire protection plan that satisfies Criterion 3 (GDC 3) of Appendix A to 10 CFR 50 and states that the fire protection plan must describe the overall fire protection program; identify the positions responsible for the program and the authority delegated to those positions; outline the plans for fire protection, fire detection and suppression capability, and limitation of fire damage. Section 50.48(a)(2) states that the fire protection plan must describe the specific features necessary to implement the program described in paragraph (a)(1) including administrative controls and personnel requirements; automatic and manual fire detection and suppression systems; and the means to limit fire damage to structures, systems, and components (SSCs) to ensure the capability to safely shut down the plant. Section 50.48(a)(3) requires that the licensee retain the fire protection plan and each change to the plan as a record until the Commission terminates the license.

GDC 3, referenced in 10 CFR 50.48(a)(1), provides broad performance objectives for an acceptable fire protection program. GDC 3 specifies, in part, that SSCs important to safety be designed and located to minimize, consistent with other safety requirements, the probability and effects of fires and explosions; noncombustible and heat resistant materials be used wherever practical; fire detection and fighting systems of appropriate capacity and capability be provided and designed to minimize the adverse effects of fires on SSCs important to safety; and fire fighting systems be designed to assure their rupture or inadvertent operation does not significantly impair the safety capability of the SSCs.

Section 50.48(b) references Appendix R to 10 CFR 50 and states that Appendix R establishes fire protection features required to satisfy GDC 3 with respect to certain generic issues for nuclear power plants licensed to operate before January 1, 1979. As stated in 10 CFR 50.48(b)(1), with the exception of Sections III.G, III.J, and III.O of Appendix R, nuclear power plants that were licensed to operate before January 1, 1979, are exempt from the requirements of Appendix R. These plants are exempt to the extent that:

Features proposed or implemented by the licensee have been accepted by the NRC staff as satisfying the provisions of Appendix A to BTP APCSB 9.5-1 that are reflected in NRC fire protection safety evaluation reports (SERs) issued before the 10 CFR 50.48 effective date of February 19, 1981; or,

Features that were accepted by the NRC staff in comprehensive SERs before Appendix A to BTP APCSB 9.5-1 was published in August 1976. Otherwise, these nuclear power plants must meet 10 CFR 50, Appendix R, as well as any requirements contained in plant specific fire protection license conditions and/or technical specifications. These nuclear power plants must also comply with 10 CFR 50.48(a).

Nuclear power plants that were licensed to operate after January 1, 1979, must comply with 10 CFR 50.48(a) as well as any plant-specific fire protection license conditions and/or technical specifications. Their fire protection license conditions typically reference SERs generated by the NRC as the product of initial licensing reviews against either Appendix A to BTP APCSB 9.5-1 and the criteria of certain sections of 10 CFR 50, Appendix R, or Section 9.5.1 of NUREG-0800, the NRC Standard Review Plan (SRP) which includes similar criteria specified in 10 CFR 50, Appendix R. These fire protection requirements are considered to be deterministic.

The NRC has issued approximately 900 exemptions from the technical requirements specified in Appendix R. These exemptions were granted to licensees that submitted a technical evaluation demonstrating that an alternative fire protection approach satisfied the underlying safety purpose of Appendix R. During the initial implementation period for “Pre-1979 Appendix R plants,” the NRC granted exemptions under the provisions of 10 CFR 50.48(c)(6), which has since been deleted. For exemptions requested by “Pre-1979 plants” after the licensee's initial Appendix R implementation period, the NRC conducted its reviews in accordance with the provisions specified in 10 CFR 50.12, “Specific exemptions.” “Post-1979 plants” have also requested and, when acceptable to the NRC, received approval to deviate from their licensing requirements. The processing of exemption and deviation requests has placed a significant burden on the resources of the NRC and the nuclear industry.

Industry representatives and some members of the public have described the current deterministic fire protection requirements as “prescriptive” and an “unnecessary regulatory burden.” Beginning in the late 1990s, the Commission provided the NRC staff with guidance for identifying and assessing performance-based approaches to regulation ( see SECY-00-0191, “High-Level Guidelines for Performance-Based Activities,” dated September 1, 2000, and Staff Requirements Memorandum (SRM), dated March 1, 1999, entitled, “SECY-98-0144: White Paper on Risk-Informed and Performance-Based Regulation.” This guidance augmented the risk-related guidance in the NRC's Probabilistic Risk Assessment (PRA) Policy Statement (60 FR 42622, August 16, 1995) and Regulatory Guide (RG) 1.174, “An Approach for Using Probabilistic Risk Assessment in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis,” dated July 1998.

In SECY-98-0058, “Development of a Risk-Informed, Performance-Based Regulation for Fire Protection at Nuclear Power Plants,” dated March 26, 1998, the NRC staff proposed to the Commission that the staff work with the NFPA and the industry to develop a performance-based, risk-informed consensus standard for fire protection for nuclear power plants and, if the standard was acceptable, the staff would endorse the standard in a rulemaking. In an SRM dated June 30, 1998, the Commission approved the staff's proposal and the staff began cooperative participation in the development of NFPA 805.

As a result of its interaction with NFPA, the NRC staff determined that the likelihood of an acceptable standard was sufficiently high that rulemaking to endorse NFPA 805 should be approved. In SECY-00-0009, dated January 13, 2000, titled “Rulemaking Plan, Reactor Fire Protection Risk-Informed, Performance-Based Rulemaking,” the staff requested Commission approval to proceed with rulemaking to permit reactor licensees to adopt NFPA 805 as a voluntary alternative to existing fire protection requirements. In an SRM dated February 24, 2000, the Commission directed the staff to proceed with this rulemaking.

The NFPA Standards Council issued NFPA 805, 2001 Edition, January 13, 2001, with an effective date of February 9, 2001. It was approved as an American National Standard on February 9, 2001. The standard specifies the minimum fire protection requirements for existing light water nuclear power plants during all modes (“phases” in NFPA 805) of plant operation, including, shutdown, degraded conditions, and decommissioning.

In a memorandum dated October 9, 2001, the NRC staff informed the Commission that it planned to submit to the Commission by July 2002 a proposed rule that would revise 10 CFR 50.48 and a final rule 12 months after the proposed rule was published for public comment. Additionally, the staff informed the Commission that it was working with the Nuclear Energy Institute (NEI) to develop implementing guidance.

On December 20, 2001 (66 FR 65661), the NRC published draft rule language proposing to endorse NFPA 805 in the Federal Register . The NRC also posted this draft language on the NRC's interactive Rulemaking Forum Web site at http://ruleforum.llnl.gov. The NRC requested public comment on the draft rule language.

In response to this preliminary request for public comment, the NRC received five sets of comments from industry, consultants, licensees, industry organizations, and NRC staff. Based on those comments and on reviews by NRC Program Offices and Committees, the NRC revised the draft rule language. In SECY-02-0132, dated July 15, 2002, the staff requested the Commission's approval to publish the proposed rule in the Federal Register and on October 3, 2002, the Commission approved the publication of the proposed rule in the Federal Register for public comment. The proposed rule was published in the Federal Register for a 75-day public comment period (67 FR 66578; November, 1, 2002).

In this rule, the NRC is allowing licensees to adopt NFPA 805 as a performance-based alternative to complying with paragraph (b) of § 50.48 for plants licensed to operate before January 1, 1979; or the fire protection license conditions for plants licensed to operate after January 1, 1979. Paragraph (b) of § 50.48 refers to fire protection features that 10 CFR 50, Appendix R requires to satisfy GDC 3. Paragraph (b) discusses the extent to which those features are regulatory requirements for certain licensees, and specifically to plants licensed before January 1, 1979. Requirements for plants licensed after that date are specified in plant fire protection license conditions. The NRC considers that NFPA 805 specifies fire protection requirements or provides an acceptable methodology and performance criteria for licensees to identify fire protection requirements that are an acceptable alternative to the Appendix R fire protection features. A description of NFPA 805 and the NFPA 805 methodology follows.

NFPA 805 is a performance-based standard for fire protection prepared by the NFPA Technical Committee on Fire Protection for Nuclear Facilities. Issued by the Standards Council on January 13, 2001, it was approved as an American National Standard on February 9, 2001. NFPA 805 describes a methodology for establishing fundamental fire protection program design requirements and elements, determining required fire protection systems and features, applying performance-based requirements, and administering fire protection for existing light water reactors during operation, decommissioning, and permanent shutdown. It provides for the establishment of a minimum set of fire protection requirements but allows performance-based or deterministic approaches to be used to meet performance criteria.

Under NFPA 805, a licensee adopts the performance goals, objectives, and criteria itemized in Chapter 1 of NFPA 805 and then meets those goals, objectives, and criteria through the implementation of performance-based or deterministic approaches. Those goals, objectives, and criteria contain provisions for nuclear safety, radioactive release, life safety, and business interruption. Relative to its mission to protect the public health and safety, the NRC is concerned with the nuclear safety and radioactive release goals, objectives, and criteria, and the protection of essential personnel aspect of the life safety goals, objectives, and criteria. Therefore, the NRC is not endorsing the Plant Damage/Business Interruption and Life Safety Goals of NFPA 805.

After a licensee adopts the performance goals, objectives, and criteria itemized in Chapter 1, it establishes plant fire protection requirements using the methodology in Chapter 2 of NFPA 805. The initial step in this methodology is to establish the minimum fire protection program elements and design criteria contained in Chapter 3 of NFPA 805. NFPA 805 does not permit the Chapter 3 elements and design criteria to be subject to the performance-based approaches allowed elsewhere within NFPA 805. However, to provide regulatory flexibility, the final rule provides for licensees to request a license amendment to apply NFPA 805 performance-based approaches to the Chapter 3 fire protection program elements and minimum design criteria.

After establishing the fundamental fire protection program elements and minimum design requirements of Chapter 3, the licensee performs a plant-wide analysis to identify fire areas and fire hazards required to meet the performance criteria and the SSCs in each fire area to which the performance criteria apply. The licensee may apply either a performance-based or a deterministic approach to meet the performance criteria. For a deterministic approach, the performance criteria are deemed to be satisfied when the plants existing fire protection requirements are met. For a performance-based approach, the licensee must perform engineering analyses to demonstrate that the performance-based requirements are met. These engineering analyses may include engineering evaluations, probabilistic safety assessments, and fire modeling calculations.

If the approach chosen to meet the performance criteria results in a change to the approved design basis, the licensee must evaluate any resulting changes in risk and determine whether the changes in risk are acceptable to the AHJ (Authority Having Jurisdiction, i.e. , NRC). NRC guidance on the acceptability of changes in risk is in RG 1.174 and is referenced by NFPA 805. The licensee must also evaluate the change to determine whether defense-in-depth and safety margins are maintained. The licensee implements a monitoring program to monitor plant performance as it applies to fire risk and must adjust the fire protection program as necessary as levels of risk change. For the resulting fire protection program, the licensee documents the results of the analyses, ensures the quality of the analyses, and maintains configuration control of the resulting plant design and operation. Section 2.7 of NFPA 805 provides requirements for program documentation, configuration control, and quality.

NFPA 805 does not supersede the requirements of GDC 3, 10 CFR 50.48(a), or 10 CFR 50.48(f). Those regulatory requirements continue to apply to licensees that adopt NFPA 805. However, under NFPA 805, the means by which GDC 3 or 10 CFR 50.48(a) requirements may be met is different than under 10 CFR 50.48(b). Specifically, whereas GDC 3 refers to SSCs important to safety, NFPA 805 identifies fire protection systems and features required to meet the Chapter 1 performance criteria through the methodology in Chapter 4 of NFPA 805. Also, under NFPA 805, the 10 CFR 50.48(a)(2)(iii) requirement to limit fire damage to SSCs important to safety so that the capability to safely shut down the plant is ensured is satisfied by meeting the performance criteria in Section 1.5.1 of NFPA 805. The Section 1.5.1 criteria include provisions for ensuring that reactivity control, inventory and pressure control, decay heat removal, vital auxiliaries, and process monitoring are achieved and maintained.

This methodology specifies a process to identify the fire protection systems and features required to achieve the nuclear safety performance criteria in Section 1.5 of NFPA 805. Once a determination has been made that a fire protection system or feature is required to achieve the performance criteria of Section 1.5, its design and qualification must meet any applicable requirements of NFPA 805, Chapter 3. Having identified the required fire protection systems and features, the licensee selects either a deterministic or performance-based approach to demonstrate that the performance criteria are satisfied. This process satisfies the GDC 3 requirement to design and locate SSCs important to safety to minimize the probability and effects of fires and explosions.

The methodology in NFPA 805 for performance-based approaches is to a large degree consistent with the principles for performance-based regulation contained in the “White Paper on Risk-Informed, Performance-Based Regulation,” attached to the SRM for SECY-98-0144. The NFPA 805 methodology incorporates the following attributes: (1) Measurable or calculable parameters exist to monitor the system, including facility performance; (2) objective criteria to assess performance are established based on risk insights, deterministic analyses, and/or performance history; (3) plant operators have the flexibility to determine how to meet established performance criteria in ways that will encourage and reward improved outcomes; and (4) a framework exists in which the failure to meet a performance criterion, while undesirable, will not in and of itself constitute or result in an immediate safety concern.

With respect to the certain required fire protection features required to satisfy GDC 3, 10 CFR 50.48(b) references Appendix R, whereas 10 CFR 50.48(c) references NFPA 805. The NRC evaluated whether the technical approaches, methodologies, and engineering analyses specified in NFPA 805 provide criteria to establish fire protection features sufficient to satisfy GDC 3. The acceptability of NFPA 805 with exceptions and supplementation versus Appendix R is discussed below.

Appendix R, Section I, states that Appendix R sets forth the fire protection features required to satisfy GDC 3 with respect to certain generic issues. Section I also discusses the need to limit fire damage to systems required to achieve and maintain safe shutdown conditions and that protection be provided so that a fire within only one such system will not damage the redundant system.

Appendix R, Section II, provides the general requirements for a fire protection program, discusses defense-in-depth, defines the fire hazards analysis required to be performed, describes fire prevention features, and requires alternate or dedicated shutdown capability for areas where the fire protection features cannot ensure safe shutdown capability in the event of a fire in that area.

Appendix R, Section III, provides specific requirements for certain fire protection features. The fire protection features in Section III are: A. Water supplies for fire suppression systems, B. Sectional isolation valves, C. Hydrant isolation valves, D. Manual fire suppression, E. Hydrostatic hose tests, F. Automatic fire detection, G. Fire protection of safe shutdown capability, H. Fire brigade, I. Fire brigade training, J. Emergency lighting, K. Administrative controls, L. Alternative and dedicated shutdown capability, M. Fire barrier cable penetration seal qualification, N. Fire doors, and O. Oil collection system for reactor coolant pump.

NFPA 805 establishes performance goals, performance objectives, and performance criteria that require a licensee to provide reasonable assurance that a fire will not prevent the plant from achieving and maintaining the fuel in a safe and stable condition, the plant will not be placed in an unrecoverable condition, and will not result in a radiological release that adversely affects the public, plant personnel, or the environment. These goals, objectives, and criteria are described in Chapter 1 and elsewhere in the standard. NFPA 805 allows the use of either a deterministic or performance-based approach to achieve the performance goals, objectives, and criteria of Chapter 1. Subsequent chapters of the standard describe methodologies to be used to establish the required fire protection systems and features, including the analyses used to support the performance-based fire protection design that fulfills these goals.

NFPA 805 requires the licensee to use a deterministic or performance-based approach to assess whether the performance goals, objectives, and criteria in Section 1.5 of the standard are met. The methodologies for implementing these approaches are established in Chapters 2 and 4 of NFPA 805. Chapter 3 of NFPA 805 provides certain deterministic and administrative requirements for fire protection systems and features that are not subject to the NFPA 805 performance-based approach. The methodology in Chapter 2 describes how these approaches are to be developed and implemented. The methodology in Chapter 4 describes the process to be used to determine which fire protection systems and features are required to achieve the performance criteria outlined in Chapter 1.

NFPA 805 accomplishes the intent of the Appendix R, Section I, requirements through the methodology in Chapter 4 of NFPA 805. That methodology requires that a nuclear safety capability assessment be performed that determines that one success path is maintained free of fire damage from a single fire. The assessment may use either a deterministic or a performance-based approach. The deterministic approach requires protection for one success path of required cables and equipment to achieve and maintain the nuclear safety performance criteria in Chapter 1. The nuclear safety performance criteria is considered to be satisfied when the protection scheme meets certain deterministic criteria such as when a 3-hour fire barrier encapsulation of one success path is provided. The performance-based approach requires that, using the Chapter 2 methodology, information on targets, damage thresholds, limiting conditions, and fire scenarios be used to determine the protection scheme necessary to ensure the nuclear safety success path(s) for required cables and equipment are maintained free of fire damage to achieve the nuclear performance criteria in Chapter 1.

Chapter 3 of NFPA 805 accomplishes the requirements for general fire protection program features described in Appendix R, Section II.A. and the general fire prevention features described in Appendix R, Section II.C. The defense-in-depth objectives described in Appendix R, Section II, General Requirements, are incorporated in NFPA 805. The defense-in-depth objectives of Appendix R, Section II, are (1) prevent fires from starting; (2) detect rapidly, control, and extinguish promptly those fires that do occur; and (3) provide protection for structures, systems, and components important to safety so that a fire that is not promptly extinguished by the fire suppression activities will not prevent the safe shutdown of the plant. These defense-in-depth objectives are stated in Section 1.2 of NFPA 805 and the methods to accomplish them are specified in the standard as described below:

1. Prevention of fires is specified in Section 3.3 of NFPA 805 and includes control of ignition sources, control of combustible and flammable materials, use of noncombustible or fire resistant structural materials, and control of cable construction and raceways.

2. Fire detection and suppression are required in Sections 3.4 through 3.11 of NFPA 805 and include on-site fire-fighting capability, fire alarms, manual and fixed suppression systems, and passive fire protection features.

3. Protection of SSCs important to achieve the nuclear safety performance criteria is specified in Chapter 4 of NFPA 805. Chapter 4 establishes the methodology to determine the fire protection systems and features required to achieve the performance criteria and specifies that at least one success path to achieve the nuclear safety performance criteria shall be maintained free of fire damage by a single fire. The nuclear safety performance criteria specified in Section 1.5 are: (1) Reactivity control, (2) inventory and pressure control, (3) decay heat removal, (4) vital auxiliaries, and (5) process monitoring.

The methodologies described in NFPA 805 Chapters 2 and 4 and the fundamental fire protection program and design elements in Chapter 3 require a general fire hazards analysis similar to that described in Appendix R, Section II.B. Appendix R, Section II.D, which describes alternative or dedicated shutdown capability, is discussed later in this section.

The NRC has evaluated Appendix R, Section III, Specific Requirements, and determined that, with certain differences ( e.g. , cold shutdown, alternate or dedicated shutdown, shutdown methods and emergency lighting), NFPA 805 Chapter 3 and the methodologies in Chapters 2 and 4 provide acceptable alternative criteria to the specific fire protection requirements in Section III.

For example, Appendix R, Section III.A, Water supplies for fire suppression systems, is the design criteria for fire suppression system water supplies and it requires certain design features, such as the duration of the water supply and configuration of the water sources, to be met. NFPA 805 has similar requirements in Chapter 3 for water supply and configuration that are acceptable alternatives to the requirements in Appendix R.

Another example is Appendix R, Section III.K, Administrative controls, which requires controls to govern the activities related to the handling of combustible materials and ignition sources and govern actions by emergency and general plant personnel. NFPA 805 has requirements in Chapter 3 for administrative controls that are acceptable alternatives to the requirements in Appendix R.

Appendix R, Section III.G, Fire protection of safe shutdown capability, provides the deterministic requirements to ensure that one train of systems necessary to achieve and maintain hot shutdown is free of fire damage and systems necessary to achieve and maintain cold shutdown can be repaired within 72 hours. The final rule (45 FR 76602; November 19, 1980) that promulgated 10 CFR 50.48 and Appendix R, dated November 19, 1980, stated that the objective for the protection of safe shutdown capability is to ensure that at least one means of achieving and maintaining safe shutdown conditions will remain available during and after any postulated fire in the plant. NFPA 805 requires that, in the event of a fire, the plant be able to achieve and maintain the fuel in a safe and stable condition and that the plant is not placed in an unrecoverable condition in lieu of the analyzed shutdown method delineated in Section III.G. Specific criteria for the NFPA 805 conditions are provided in Section 1.5 of NFPA 805. These differences in requirements for plant shut down result from the fact that NFPA 805 is performance-based rather than deterministic. The shutdown methods delineated in Section III.G are not required by NFPA 805 because they are not needed to achieve the performance criteria of NFPA 805. However, NFPA 805, Chapter 4, requires that one success path necessary to achieve and maintain the nuclear safety performance criteria be maintained free of fire damage by a single fire. Therefore, NFPA 805 has a similar objective for the protection of safe shutdown via its requirement of one success path. These minor differences from Appendix R are acceptable because achieving the nuclear safety goals, objectives, and performance criteria of NFPA 805 provide controls for maintenance of the reactor fuel and the plant condition that ensure adequate protection of public health and safety.

The criteria and methodologies contained in NFPA 805 provide acceptable alternatives to the requirements in Appendix R, Sections I, II, and III regarding fire protection features required to satisfy GDC 3.

In addition to the requirements of 10 CFR 50.48(b) and Appendix R, the NRC reviewed the NFPA 805 fire protection criteria versus the guidance in RG 1.189, “Fire Protection for Operating Nuclear Power Plants.” Section C of RG 1.189, “Regulatory Position,” describes eight elements of an acceptable fire protection program. The NRC review determined that NFPA 805 provides adequately for each element. These eight elements are:

1. Delineation of organization, staffing, and responsibilities.

2. Performance of a fire hazards analysis sufficient to ensure safe shutdown functions and minimize radioactive material releases in the event of a fire.

3. The limitation of damage to SSCs important to safety so that the capability to safely shut down the reactor is ensured.

4. Evaluation of fire test reports and fire data to ensure they are appropriate and adequate for ensuring compliance with regulatory requirements.

5. Evaluation of compensatory measures for interim use for adequacy and appropriate length of use.

6. Training and qualification of fire protection personnel appropriate for their level of responsibility.

7. Quality assurance.

8. Control of fire protection program changes.

For example, element 3, limitation of damage to SSCs important to safety so that the capability to safely shut down the reactor is ensured, is addressed in NFPA Chapter 4. Chapter 4 of the standard establishes methods to determine the fire protection needed to limit fire damage to SSCs required to achieve the nuclear safety performance criteria in Section 1.5 of NFPA 805 and specifies that the design and qualification of those fire protection systems or features meet the applicable requirements of Chapter 3. The criteria in the standard are adequate to meet the intent of this element of RG 1.189.

NFPA 805 does not explicitly include some requirements of Appendix R. NFPA 805 has no deterministic requirements for cold shutdown and emergency lighting, no provision for an alternative shutdown capability, and allows the use of recovery actions. NFPA 805 requires that the fuel be maintained in a safe and stable condition rather than prescribing the requirement for hot shutdown, cold shutdown, or the provisions for an alternate or dedicated shutdown. These differences result from the fact that NFPA 805 is performance-based rather than deterministic, with a performance goal to achieve a safe and stable condition. Deterministic requirements for emergency lighting for operation of safe shutdown equipment are not included in NFPA 805 because varying degrees of lighting and duration of lighting may be implemented by a performance-based approach provided that the performance goal to achieve a safe and stable condition can be demonstrated and met. The use of feasible recovery actions are allowed in NFPA 805 provided that the performance-based approach is used and can demonstrate and meet the performance goal. Also, the additional risk resulting from the use of recovery actions must be evaluated. These differences from Appendix R are acceptable because the nuclear safety performance criteria of NFPA 805 must be met in order to achieve a safe and stable condition. Meeting the performance criteria ensures adequate protection of public health and safety.

NFPA 805 includes some specific requirements that are not included in Appendix R. For example, NFPA 805 applies during all phases of plant operation including shutdown and degraded conditions. NFPA 805, Chapter 5, applies to plants that have permanently ceased operation and requires that the fire protection plan specified in Chapter 3 of NFPA 805 be maintained. The application of fire protection criteria for all phases of plant operation is more inclusive than 10 CFR 50.48(b) and Appendix R, resulting in a more comprehensive fire protection program.

Appendix R, Section II.B, requires a fire hazards analysis to determine the consequences of fire on the ability to minimize and control the release of radioactivity to the environment. Similarly, NFPA 805, Chapter 1, requires that radiation release goals, objectives, and performance criteria be met. The radioactive release goal of NFPA 805 is to provide reasonable assurance that a fire will not result in a radiological release that adversely affects the public, plant personnel, or the environment. The NFPA 805, Chapter 1, Radioactive Release Performance Criteria, requires that radiation release from the effects of fire suppression activities shall be as low as reasonably achievable and shall not exceed 10 CFR part 20 limits. NFPA 805, Chapter 4, requires the evaluation for demonstrating how the criteria are met. The NFPA 805 approach to radioactive release is more comprehensive than 10 CFR 50.48(b) and Appendix R and is considered adequate to ensure the protection of public health and safety.

The first paragraph of 10 CFR 50.48(f) is revised to include the statement that a fire protection program that complies with NFPA 805 is deemed to be acceptable for complying with the requirements of paragraph (f). Section 50.48(f) requires licensees to maintain a fire protection program to prevent, detect, control, and extinguish fires that could result in a radiological hazard and to ensure that the risk of fire-induced radiological hazards to the public, environment, and plant personnel is minimized. Further, 10 CFR 50.48(f) requires licensees to assess and revise the fire protection program throughout the stages of decommissioning as the fire hazard threat changes and allows licensees to make changes to the fire protection program if the changes do not reduce the effectiveness of the fire protection program, taking into account the decommissioning plant conditions and activities.

The NRC reviewed NFPA 805, Chapter 5, and determined that it requires a fire protection plan to be maintained throughout decommissioning and permanent shutdown. It also specifies that the plan maintain a fire protection program as specified by Section 3.1 of NFPA 805. The fire protection program specified in Section 3.1 requires that fundamental fire protection program elements and minimum design requirements be established and maintained as part of the plant fire protection program. NFPA 805, Section 5.2, requires controls governing the identification of fire hazards, fire prevention, fire detection, fire fighting capability, and emergency response. Section 5.2 also requires the maintenance of a fire protection program that is commensurate with the fire hazards as decommissioning progresses. NFPA 805, Section 5.3, identifies specific fire protection program elements and requires that the fire protection program elements be established and maintained as decommissioning progresses after permanent shutdown. As a plant progresses into decommissioning, the fire protection program that meets the nuclear safety criteria in NFPA 805, Chapter 1, changes because the fuel has been removed from the reactor and the reactor is no longer operating. The focus of the fire protection program changes to control fires that may cause the release of radioactivity, taking into consideration changes in plant configuration, maintenance, and activities as the plant progresses beyond permanent shutdown. Section 5.3, of NFPA 805, requires that the fire protection program be maintained commensurate with these changes in fire hazards and the potential for release of hazardous and radiological materials to the environment. Because the NFPA 805 fire protection program requirements for a decommissioning plant are technically equivalent to the requirements of paragraph (f), the NRC considers that a fire protection program that complies with NFPA 805 is acceptable for complying with the requirements of paragraph (f).

The NRC considered whether 10 CFR 50.48(c) provides requirements and criteria for licensees to implement fire protection features for certain generic issues referenced in 10 CFR 50.48(b) and as established in Appendix R to 10 CFR 50, or as required by plant license conditions resulting from NRC reviews of plant licenses to those features established in Appendix R. The NRC reviewed the requirements in Chapter 3 of NFPA 805 for the establishment of fundamental fire protection program elements and minimum design requirements; the performance goals, objectives, and criteria in Chapter 1 of NFPA 805; the methodology in Chapter 4 for identifying fire protection systems and features required to meet the Chapter 1 performance criteria; and the methodology in Chapter 2 for the implementation of deterministic or performance-based approaches to establish those fire protection systems and features. The NRC determined that NFPA 805 contains requirements that address those generic issues referenced in 10 CFR 50.48(b) and provides sufficient requirements and criteria for licensees to implement fire protection features that satisfy GDC 3 with respect to those issues. Therefore, the NRC determined that compliance with 10 CFR 50.48(c) is an acceptable alternative to compliance with 10 CFR 50.48(b) for plants licensed to operate before January 1, 1979, or the fire protection license conditions for plants licensed to operate after January 1, 1979.

In addition, the NRC reviewed the requirements in Chapter 5 for licensees who have submitted the certifications required under 10 CFR 50.82(a)(1). The NRC considered the requirements in Chapter 5 to continue to maintain the fire protection systems and features needed to meet the performance criteria of Chapter 1, to continue to maintain a fire protection plan as specified in Section 3.2 of NFPA 805, and the criteria in Chapter 5 regarding issues applicable to a plant progressing through decommissioning and into permanent shutdown. The NRC determined that a fire protection program that complies with NFPA 805 meets the requirements for a fire protection program as specified in 10 CFR 50.48(f).

The following paragraphs discuss the bases for certain provisions in this rule. The final rule provides for licensees to request a license amendment that would permit them to maintain a fire protection program that complies with NFPA 805, identifies seven exceptions to NFPA 805, and provides a method for licensees to request to use risk-informed, performance-based alternatives to provisions in NFPA 805.

In accordance with 10 CFR 50.48(c)(3)(i), a licensee may maintain a fire protection program that complies with NFPA 805 as an alternative to complying with paragraph (b) of this section for plants licensed to operate before January 1, 1979, or the fire protection license conditions for plants licensed to operate after January 1, 1979. The licensee shall submit a request in the form of an application for license amendment under § 50.90. The application must identify any orders and license conditions that must be revised or superseded, and contain any necessary revisions to the plant's technical specifications and the bases thereof.

The NRC identified provisions of the NFPA 805 Standard that were determined to be unacceptable or inappropriate to endorse in this rulemaking. A description of each exception and the bases for the exception follows:

The Life Safety and Plant Damage/Business Interruption goals, objectives, and criteria in Sections 1.3, 1.4, and 1.5 of NFPA 805 are not endorsed in this rule. The Plant Damage/Business Interruption goal to provide reasonable assurance that the potential economic consequences of the risk of a fire are acceptable is not within the regulatory responsibility of the NRC under the Atomic Energy Act of 1954, as amended, to provide for the common defense and security and to protect the health and safety of the public. The Life Safety Goal provides for protection of plant personnel (including essential personnel) from the effects of a fire but is not fully within the regulatory responsibility of the NRC. Those portions of the Life Safety Goal that are within the scope of NRC regulatory responsibility, such as adequate protection for essential personnel, are required elsewhere in the standard. Therefore, the NRC is not endorsing the NFPA 805 Life Safety or Plant Damage/Business Interruption Goals.

The NRC does not accept the use of a high-pressure charging/injection pump coupled with the pressurizer power operated relief valves (PORVs) as the sole fire protected shutdown path for maintaining reactor coolant inventory, pressure control, and decay heat removal capability ( i.e. , feed-and-bleed) for pressurized water reactors (PWRs). Reliance on feed-and-bleed as the sole method for achieving these criteria does not provide sufficient defense-in-depth. Therefore, feed-and-bleed as the sole means of demonstrating achieving the nuclear safety performance criteria in Section 1.5.1(b) and (c) is not permitted.

The uncertainty analysis required by Section 2.7.3.5 of the standard is not required for the deterministic approach because conservatism is included in the deterministic criteria.

Section 3.3.5.3 of the standard provides that electric cable construction shall comply with a flame propagation test acceptable to the AHJ. For this rulemaking, the NRC is requiring compliance with 10 CFR 50.48(c)(2)(v), which provides for the use of flame-retardant coatings on electric cables or an automatic fixed fire suppression system in lieu of installing cables meeting an acceptable flame propagation test. The electrical flame propagation test compliance was put in place after some licensees had installed cabling that could not be qualified to a flame propagation test. The NRC determined that flame-retardant coatings or a fixed fire suppression system provided an acceptable level of protection for these licensees ( see Appendix A to BTP APCSB 9.5-1). Licensees should have these configurations as part of their licensing basis, where applicable. This provision, therefore, carries forward a previously accepted alternative to meeting a flame propagation test.

Additionally, the italicized exception to Section 3.3.5.3 of the standard is not endorsed because it would allow cables that did not comply with an acceptable flame propagation test to remain in place in a reactor plant without mitigation even though they were not approved in the licensing basis. Cables that do not meet this requirement could contribute to failure of operating or shutdown systems and the contribution to risk has not been calculated or approved. The criteria that electric cable constructions should pass flame propagation testing has been in NRC guidance since 1976 (Appendix A to BTP APCSB 9.5-1).

The italicized exception to Section 3.6.4 of the standard is not endorsed. The exception would allow a licensee to have a “provisional” manual fire-fighting standpipe/hose station system in place of seismically qualified standpipes and hose stations even though it was not approved in the licensing basis. The NRC interprets Section 3.6.4, which is one of the fire protection elements and minimum design requirements of Chapter 3, as requiring seismically qualified standpipes and hose stations in all areas containing systems and components needed to perform the nuclear safety functions in the event of a safe shutdown earthquake. NRC guidance to supply water at least to standpipes and hose connections for manual fire-fighting in areas required for safe plant shutdown in the event of an earthquake, and that the standpipe system serving such hose stations be analyzed for seismic loading to assure system pressure integrity, has been in existence since 1976. Therefore, the NRC considers seismically qualified standpipes and hose stations of such importance that licensees who wish to use the exception to Section 3.6.4 in NFPA 805 must obtain NRC review and approval in accordance with § 50.48(c)(2)(vii).

The prohibition in Section 3.1 of NFPA 805 that does not permit the use of performance-based methods for the Chapter 3 fundamental fire protection program elements and minimum design criteria is not endorsed. The NRC takes this exception in order to provide licensees greater flexibility in meeting the fire protection program elements and minimum design requirements of Chapter 3 by the use of performance-based methods (including the use of risk-informed methods) described in the NFPA 805 standard. This approach is acceptable to NRC because the rule requires NRC review and approval prior to the licensee's use of those methods, and the rule sets forth criteria for evaluating the acceptability of the licensee's proposed use of performance-based methods in meeting the fire protection program elements and minimum design requirements.

The final rule provides licensees the flexibility of requesting, via a license amendment, to use risk-informed or performance-based alternatives that deviate from compliance with NFPA 805. The NRC recognizes that licensees may propose acceptable approaches that are not encompassed by the criteria in NFPA 805. Therefore, the NRC is including a provision for requesting such approaches in the rule. However, to ensure adequate protection of public health and safety, the NRC is requiring that licensees obtain NRC review and approval to use those methods, and is providing criteria in § 50.48(c)(4) for review of their acceptability.

The 75-day public comment period for the proposed rule ended January 15, 2003. Comments were received from organizations and individuals. Copies of the comments are available for public inspection and copying for a fee at the Commission's Public Document Room, One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. The comments were submitted by an individual, an individual representing a public interest group, a utility with a nuclear reactor, two nuclear utility groups each representing six plants with nuclear reactors, a law firm, a law firm representing several utilities, and NEI. Most commenters supported the proposed rule and made recommendations to enhance or modify elements of the rule. One commenter opposed adoption of the proposed rule.

In the following paragraphs, the NRC discusses the resolution of the public comments by topic.

A commenter suggested that the NRC amend 10 CFR 50.55a, “Codes and standards,” to add a paragraph referencing NFPA 805, which could then be referenced in 10 CFR 50.48 as an optional alternative approach. The commenter stated that this approach would negate the need for licensees to obtain a license amendment in order to adopt NFPA 805 or approved alternative approaches under the provisions of 10 CFR 50.55a(c)(3). The commenter also stated that the process for obtaining NRC approval of alternate methods should not require a license amendment.

The NRC does not agree that amending 10 CFR 50.55a would negate the need for a license amendment in order for licensees to adopt NFPA 805. The NRC believes that, even if § 50.55a were revised as suggested by the commenter, it would not negate the need to change the license. To adopt NFPA 805, technical specifications and license conditions will need to be changed and such changes are amendments to the license. Regarding the use of methods, licensees may use methods such as fire modeling and fire PSAs without prior NRC review and approval. However, such use is at the licensee's risk and is subject to subsequent inspection by the NRC.

A commenter stated that NFPA 805 does not include risk-informed methodologies such as NEI 00-01, “Methodology for Post-Fire Circuit Analysis,” therefore the regulatory text or implementing guidance should recognize the use of risk-informed methodologies to address the appropriate issues.

The NRC agrees that NFPA 805 does not include risk-assessment methods. Although fire models and fire PSA methods have been developed, technical issues remain regarding their acceptability for the full range of decisions in risk-informed regulation by industry.

A commenter observed that the description of NFPA 805 in the Federal Register Notice (FRN) for the proposed rule states that the standard specifies the minimum fire protection requirements for existing light water reactors during all modes (“phases” in NFPA 805) of plant operation, including shutdown, degraded conditions, and decommissioning. The commenter stated that fires should not be postulated with degraded conditions unless the fire and the degraded condition have a common cause.

The NRC disagrees with this comment. In citing the paragraph from Section 1.1, “Scope,” of the standard, the NRC was identifying the modes or phases of operation for which NFPA 805 was applicable. The NRC believes the wording is appropriate as it correctly identifies the scope of NFPA 805. However, the NRC was not imposing a requirement that a degraded condition be postulated in addition to a fire for purposes of analyses.

A commenter stated that the italicized exception in Section 3.3.5.3 of NFPA 805 allowed existing cables in place prior to adoption of the standard to remain as is and argued that leaving these cables in place was consistent with the “safe today, safe tomorrow” philosophy. Therefore, the exception should be retained in the rule.

The NRC disagrees with the suggestion that the italicized exception in Section 3.3.5.3 of NFPA 805 be retained in the rule because it would allow existing electrical cable which does not comply with a flame propagation test acceptable to the NRC to remain as is even if the existing license basis required the cables to be qualified.

A commenter agreed with the NRC that feed-and-bleed is one available flow path to achieve and maintain safe shutdown but should not be considered the “preferred” or “sole” path. However, the commenter felt that feed-and-bleed should be considered as a viable path for risk calculations.

The NRC agrees that feed-and-bleed may be used in risk calculations. However, as previously noted, feed-and-bleed should not be the sole path.

Regarding § 50.48(c)(2)(iii) of the proposed rule, a commenter noted that, “This paragraph does not accept the use of a high-pressure charging/injection pump coupled with the pressurizer PORVs as the sole fire protected shutdown path * * *.” The commenter stated that feed-and-bleed should be considered as one of the multiple methods when used in a risk-informed analysis of safe shutdown capability.

The NRC agrees with this comment. The purpose of § 50.48(c)(2)(iii) is to identify that this path is not to be relied on as a sole fire protected shutdown path.

A commenter asserted that licensees may bring forward portions of their existing licensing basis or design configuration as alternatives to the Chapter 3 fundamental elements when adopting NFPA 805. The commenter stated that it is the licensee’s responsibility to maintain the plant licensing basis, but the burden of proof is the NRC's if the NRC suggests that the licensing basis was not previously approved.

The NRC disagrees with the comment about the burden of proof. Because it is the licensee's responsibility to maintain the plant licensing basis, the burden of proof for previous approval is the licensee's. The NRC notes that this is the existing inspection and enforcement position which is generally applicable when a licensee claims that the NRC has previously approved a licensee commitment.

A commenter asked if the discussion under § 50.48(c)(3)(i) meant that existing approved exemptions remain valid under NFPA 805 and whether the licensee needed to identify that the associated safety evaluation remained in effect.

The NRC's position is that existing exemptions remain valid after transition to NFPA 805 as indicated in Section 3.1 of the standard, if not otherwise revoked by the NRC as part of the initial approval to transition to NFPA 805. The licensee's analysis of the facility to perform the transition to NFPA 805 should include a review of fire protection exemptions in effect at the time of application. The NRC will deny the application if the NRC determines that the licensee does not address the continued validity of any exemption in effect at the time of application. As stated in § 50.48(c)(3)(i), licensees must identify any orders or license conditions to be revised or superseded.

A commenter recommended that the text in the statement of considerations (SOC) for the proposed rule on “Unnecessary Burden” be replaced with the following, “Licensee adoption of the proposed rule or use of the techniques in the rule is expected to reduce unnecessary regulatory burdens by enabling licensees to cost-effectively adopt safe alternatives to overly conservative deterministic requirements.”

NRC agrees that the rule provides licensees with the flexibility to adopt performance-based alternatives to existing prescriptive requirements and thus reduce unnecessary regulatory burden. The text of the final rule SOC has been modified accordingly.

A commenter stated that the discussion on licensee impact in the SOC should identify the primary impacts on licensees and that characterizing the impacts as “significant” is not accurate and should be deleted. The commenter provided a list of the primary impacts expected and stated that they should be reflected in the FRN for the final rule.

The NRC evaluated the primary impacts identified in the comment and agreed that they are appropriate and should be included in the discussion on licensee impact. The NRC modified the final rule discussion to reflect this comment. The NRC does not agree that the term significant is inaccurate because the analysis required by the final rule is expected to be approximately 11,250 person-hours per licensee.

A commenter stated that, although NRC indicated in the SOC that it intended to allow licensees to adopt NFPA 805 including Appendices B, C and D the proposed language for 10 CFR 50.48(c) and 10 CFR 50.48(f) does not specifically adopt the appendices. The commenter also stated that the language in Appendices B, C, and D, was non-mandatory and that the NRC would need to develop additional guidance as to how the language of the appendices would be made mandatory. Another commenter noted that Appendices C and D of NFPA 805 are not methodologies but descriptions of attributes of methodologies.

The NRC agrees with the comment that the proposed rule did not incorporate Appendices B, C, and D by reference and that these appendices are not part of the standard. The NRC does not endorse the appendices in this rule and expresses no position as to their acceptability for use. However, licensees may, at their discretion and risk, use the appendices subject to subsequent NRC inspection. Further, the NRC agrees with the comment that Appendices C and D are not methodologies but are considered to be guidance for application of fire modeling or fire probabilistic safety assessment respectively.

A commenter stated that the italicized exception to Section 3.6.4 of NFPA 805, which requires that provisions be made to supply water to standpipes and hose stations for manual fire suppression in the event of a safe shutdown earthquake (SSE), should be endorsed in the rule. The exception would allow provisions to restore a water supply and distribution system for manual fire-fighting purposes following an SSE.

The NRC does not agree that the exception should be endorsed because it would allow licensees to use alternate provisions to seismically qualified standpipes and hose stations even if the licensing basis requires seismically qualified standpipes and hose stations. Licensees with approved exemptions or deviations or whose licensing basis does not require seismically qualified standpipes and hose stations may comply with their existing licensing basis.

A commenter noted that Appendix A to BTP APCSB 9.5-1 did not require seismically qualified standpipes and hose stations for operating plants and plants with construction permits issued prior to July 1, 1976.

NRC agrees that Appendix A to BTP APCSB 9.5-1 made separate provisions for operating plants and plants with construction permits issued prior to July 1, 1976, and did not require seismically qualified standpipes and hose stations for those plants. Therefore, the requirement in Section 3.6.4 of NFPA 805 is not applicable to licensees with nonseismic standpipes and hose stations previously approved in accordance with Appendix A to BTP APCSB 9.5-1.

A commenter stated that licensees who do not adopt NFPA 805 should not be precluded from using risk tools from NFPA 805.

The NRC agrees with the comment. However, licensees not adopting NFPA 805 in accordance with the final rule are not covered by the provisions for transitioning to NFPA 805. Such licensees who wish to use the risk tools in NFPA 805 will need to separately determine if their existing licensing basis would permit the use of such tools, and take appropriate action as necessary to change their licensing basis.

A commenter asked whether, in light of the fact that the rule is not intended to be implemented on a partial or selective basis, the NFPA 805 deterministic approach can be selected for one fire area and the performance-based approach for another.

Chapter 2 of the standard requires a licensee to select a deterministic or a performance-based approach to determine how to meet the performance criteria that apply to each fire area. Thus, Chapter 2 allows the use of different approaches for different fire areas. However,Chapter 2 does not allow NFPA 805 to be only partially implemented.

A commenter stated that the word “element” in the discussion of plant change evaluations (Section 2.2.9 of the standard) should be changed to “attribute” to be consistent with language or terminology used in NFPA 805, Section 3.1. The term is used in Sections 2.2.1, 2.2.9, and 2.4.4 and Figure 2.2 of Chapter 2.

The NRC does not agree that the word “element” should be changed in Section 2.2.9 of the standard. In Chapter 2, the term “element” includes the fundamental elements of the fire protection program described in Chapter 3 of the standard (Section 2.2.1). Fundamental elements are necessary components of an acceptable fire protection program. Attributes are features or characteristics of the fundamental elements and may vary based on the plant licensing basis. Section 3.1 states that previously approved alternatives from the fundamental protection program attributes described in Chapter 3 take precedence over the requirements contained in Chapter 3. Therefore, Section 2.2.9 applies to previously approved program elements as well as previously approved attributes and the terminology in Section 2.2.9 is appropriate.

The NRC requested public comment on whether a licensee is likely to revert to their previous licensing basis after being approved to use NFPA 805 and, if they did, would a license amendment be required to revert to their previous compliance basis. Two commenters stated that licensees were not likely to revert to their previous status because the regulatory environment under the requirements of NFPA 805 would be more flexible. The commenters also stated that a license amendment would be required to revert to the previous licensing basis after being approved to use NFPA 805.

The NRC has determined that the final rule need not include provisions governing the process for reversion from NFPA 805 to a licensee's former fire protection licensing basis, because it is unlikely that such reversions will occur.

A commenter stated that the NRC estimate of 20,000 to 65,000 person-hours needed for the initial plant-wide analysis for each licensee was excessive by a factor of three and should be revised.

The NRC agrees with this comment. The estimate of 20,000 to 65,000 person-hours was for four plants per year. The NRC estimate for the initial analysis for one plant is 11,250 person-hours. The NRC clarified the Regulatory Analysis and the OMB statement to state that the hours shown were an annualized estimate of four plants adopting NFPA 805.

A commenter noted that the Statement of the Problem section of the Regulatory Analysis states that the “alternative regulatory structure would potentially reduce the number and complexity of future licensee exemption or deviation requests * * *” The commenter stated that this section is inconsistent with the Alternatives section which states that use of the NFPA 805 methods would preclude the need for exemptions or deviations. The commenter stated that the text should be revised.

The NRC does not agree with this comment. The text in the Alternatives section of the Regulatory Analysis states that licensees may use approaches and methods contained in NFPA 805 rather than submitting an exemption or deviation request. Thus, use of the NFPA 805 methods should reduce the need for exemption or deviation requests. This text is consistent with the text in the Statement of the Problem section.

A commenter stated that the wording in the Estimated Consequences section suggests that fire protection features no longer required will be removed. The commenter stated that such features will likely be “abandoned in place” or continued to be used as the licensee determines. The NRC agrees with this comment and has revised the section to indicate that fire protection features no longer required may continue to be used, “abandoned in place,” or removed at the discretion of the licensee.

One commenter stated that the NRC discussion in the Estimated Consequences section did not follow guidance in NUREG/BR-0058, Revision 3, “Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission,” in that NRC had not adequately demonstrated that the cost savings attributed to the action (in the proposed rule) would be substantial enough to justify taking the action. Further, the commenter stated that the cost savings calculation should be based on an assumption that all licensees will take advantage of the change as noted in Section 2.2 of the NUREG. The commenter noted that the NRC had not included reporting and recordkeeping costs in the regulatory analysis.

Based on this comment, the NRC reviewed the draft Regulatory Analysis and the draft Office of Management and Budget (OMB) statement for recordkeeping and reporting costs and determined that the person-hour estimates shown were for four plants adopting NFPA 805 annually, rather than a per-plant figure. Hence the number of hours shown as required was high by a factor of four for that of an individual plant. The NRC clarified the Regulatory Analysis and the OMB statement to state that the hours shown were an annualized estimate of 4 plants adopting NFPA 805. The NRC stated in the draft Regulatory Analysis that it was not possible to estimate the cost savings per plant as the savings would vary significantly for each plant. However, for some plants the savings in reduced downtime and spare parts maintenance could be several times the cost of adopting NFPA 805; therefore, for these plants the action is justified. Plants that do not adopt NFPA 805 are not affected.

The NRC based its cost calculations on an estimate of the number of plants likely to adopt NFPA 805 rather than on all plants. This approach is acceptable because NRC does not expect all plants to adopt NFPA 805. Industry estimates that approximately 25 plants may adopt NFPA 805 and NRC used that estimate in its calculations. Plants that do not adopt NFPA 805 are not affected. The NRC has revised the Regulatory Analysis to include reporting and recordkeeping costs.

A commenter stated that the proposed rule should allow for the voluntary adoption of later versions of NFPA 805, unless NRC notifies licensees that a specific revision to NFPA 805 is not to be used. The commenter suggested language to be used in the rule for this purpose.

The NRC may not legally provide regulatory approval of future versions of NFPA 805 by rulemaking, because the NRC has no basis for determining the acceptability of all future versions of NFPA 805.

A commenter requested that NRC consider skipping the first post-transition triennial inspection in reliance on the extensive program review being conducted by each licensee.

The NRC agrees that the inspection program should recognize the extent of the fire protection program review that would be conducted by the licensee. The NRC is considering alternatives to the triennial inspection or possibly modifying the focus of the triennial inspection to reflect the programmatic review performed by plants transitioning to NFPA 805.

A commenter suggested that, as has been done for other rules, the NRC should exercise enforcement discretion for noncompliances identified during the transition to the new fire protection requirements.

The NRC agrees with the comment and is requesting Commission permission to allow enforcement discretion for noncompliances identified during the transition to the new requirements. This action would encourage licensees to self-identify problems for placement in their corrective action programs.

A commenter asserted that the NRC should conform inspection guidance and the process for resolving noncompliances to the risk-informed, performance-based methodology in the new rule.

The NRC agrees with this comment and will conform the inspector guidance and the process for resolving noncompliances to the risk-informed, performance-based methods in the rule, for those licensees that transition to NFPA 805. No change will occur for licensees that continue to comply with their existing fire protection licensing basis.

A commenter suggested that the NRC follow the inspection practice for the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code and adopt a 10-year inspection cycle.

The NRC believes that the frequency appropriate for NRC inspection of fire protection programs differs significantly from the frequency appropriate for licensee inspection of piping and supports conducted under 10 CFR 50.55a, which references requirements in the ASME Boiler and Pressure Vessel Code. A significant difference is that § 50.55a itself establishes a 10-year interval for licensee conduct of inservice inspection and inservice testing under a fixed version of the ASME Code edition and addenda. Whereas, the greater frequency of NRC inspections of licensee fire protection programs is appropriate because of the likelihood for changes to plant configurations, procedures, and practices affecting fire protection programs to occur more often. Accordingly, the NRC does not intend to change the inspection frequency.

A commenter suggested that the NRC exercise enforcement discretion to eliminate the need to come into compliance with deviations from current licensing basis requirements if compliance will be attained by transitioning to the new requirements under NFPA 805.

The NRC is requesting Commission permission to allow enforcement discretion during the transition period to the new requirements. If enforcement discretion is implemented, licensees would need to take appropriate compensatory actions for any identified noncompliance and to place the noncompliance in the corrective action program. Corrective actions may be to restore compliance with existing requirements or to implement a performance-based approach that meets the requirements of NFPA 805.

A commenter suggested that the final rule define the scope of fundamental attributes broadly enough to encompass current fire protection programs and adopt a simple and predictable process for finding that fundamental attributes have been previously approved by the NRC.

The NRC disagrees with the commenter's suggestion that the final rule should define the scope of fundamental attributes to encompass current fire protection programs. The NRC considers Chapter 3 of NFPA 805 sufficient to describe the fundamental fire protection elements for a risk-informed, performance-based fire protection program using NFPA 805. The attributes of current fire protection program elements vary from plant-to-plant and determining generic fundamental fire protection elements applicable to the full range of as-yet-unknown risk-informed or deterministic approaches is beyond the scope of this rulemaking. Section 3.1 of NFPA 805 provides that previously approved attributes of a licensee's current fire protection program may be retained. Therefore, licensees may evaluate previously approved attributes for their plants and determine whether they wish to retain those attributes. The NRC is working with industry to develop a predictable process to be described in the implementing guidance document for identifying previously approved attributes. The licensee is responsible for maintaining its licensing basis including previous NRC approvals.

A commenter stated that the final rule should have a simple, swift process for approving the transition license amendment.

The NRC believes the process described in the rule for approving the license amendment is appropriate. The NRC expects that the implementing guidance will provide additional guidance that will help with the approval process.

Performance-Based Program. A commenter expressed concerns about whether a risk-informed or performance-based fire-protection program provides a sufficient level of protection of public health and safety compared to existing deterministic requirements. The commenter noted events where the industry experienced unexpected consequences from methods for maintenance and testing, and cited events at Browns Ferry and Davis-Besse as examples. The commenter also expressed a concern that, in light of the terrorist attacks on the World Trade Center, blast and fire standards should be deterministic.

The NRC disagrees with the comment. The NRC evaluated the NFPA 805 program and determined that, when implemented as an integrated whole, NFPA 805 provides criteria for an acceptable fire protection program and provides an acceptable level of protection of public health and safety. This determination is based on a review of the program versus regulatory requirements of GDC 3 and 10 CFR 50.48(a), as well as the criteria for an acceptable fire protection program in RG 1.189, the risk application methods criteria in RG 1.174, and the NFPA 805 criteria for the use of performance-based methods and risk information. The NRC agrees that unexpected consequences may result from maintenance and testing and notes that such consequences may occur whether under a deterministic or a performance-based fire protection program. The events at Browns Ferry and Davis-Besse emphasize the importance of defense-in-depth and the maintenance of safety margins. Both of these fundamental aspects of fire protection must be maintained under NFPA 805. Thus, the NRC believes that proper implementation of NFPA 805 will be as effective as the current deterministic-based requirements in providing reasonable assurance of adequate protection with respect to fire protection.

Regarding terrorist type of attacks, the NRC has taken action as a result of the events that occurred at the World Trade Center and continues to evaluate additional actions that may be appropriate.

Use of Fire Models. A commenter questioned the use of fire models under NFPA 805 because of the uncertainty associated with them.

The NRC disagrees that fire models should not be used because of the uncertainty associated with them. NFPA 805 provides for the use of fire models to support performance-based approaches and gives information on the use and application of fire modeling in Appendix C. Section 2.4.1.2.2 of the standard provides that fire models must be applied within the limitations of the fire model. Any uncertainty associated with a fire model must be quantified and included, as appropriate, in the performance-based approach. The NRC believes that NFPA 805 provides appropriate requirements for use of fire models relative to associated uncertainty.

Use of NEI 00-01. A commenter questioned whether industry document, NEI 00-01, “Guidance for Post-Fire Safe Shutdown Circuit Analysis,” was sufficiently a “consensus” standard to be used in the NFPA 805 environment.

The NRC disagrees with the comment. The NRC has reviewed and commented on NEI 00-01 throughout its development and is considering endorsing NEI 00-01. If endorsed,NEI 00-01 will be a tool that licensees may use to determine the risk significance of fire effects on certain circuits. Such tools do not need to be consensus standards to be used within the NFPA 805 structure.

The final rule adds a new paragraph (c) to 10 CFR 50.48 that permits nuclear power reactor licensees to voluntarily adopt NFPA 805, with certain exceptions stated in the regulatory text, as an alternative set of fire protection requirements for the operation of light-water reactors. NFPA 805, if adopted by licensees, constitutes an acceptable means for licensees of currently operating reactors to comply with 10 CFR 50.48(a), and is an alternative to meeting their existing fire protection requirements.

This paragraph states that NFPA 805, 2001 Edition, was approved for incorporation by reference by the Director of the Federal Register. The appendices to NFPA 805, which are not part of the standard, are not incorporated by reference.

This paragraph states that references in § 50.48 to NFPA 805 are to the 2001 Edition, with certain delineated exceptions, modifications, and supplementation described in paragraphs (c)(2)(i)-(vii) of the final rule.

This paragraph provides that the Life Safety Goal, Objectives, and Criteria of NFPA 805 Chapter 1 are not endorsed by the NRC.

This paragraph provides that the Plant Damage/Business Interruption Goal, Objectives, and Criteria of NFPA 805 Chapter 1 are not endorsed by the NRC.

This paragraph provides that the use of a high-pressure charging/injection pump coupled with the PORVs is not acceptable as the sole fire-protected shutdown path for maintaining reactor coolant inventory, pressure control, and decay heat removal capability ( i.e., feed-and-bleed) for PWRs.

This paragraph provides that a licensee need not prepare an uncertainty analysis in accordance with Section 2.7.3.5 when using a deterministic approach as specified in Section 2.2.6 and Chapter 4 of NFPA 805

This paragraph provides that in lieu of installing cables meeting flame propagation tests as required by Section 3.3.5.3 of the standard, a licensee may use either cables with a flame-retardant coating or an automatic fixed fire suppression system to provide an equivalent level of fire protection. In addition, the italicized exception to Section 3.3.5.3 is not endorsed.

This paragraph provides that a “provisional” manual fire-fighting standpipe/hose station system may not be used in place of seismically qualified standpipes and hose stations unless previously approved in the licensing basis. Licensees who wish to use the italicized exception in Section 3.6.4 of NFPA 805 must submit a request for a license amendment in accordance with paragraph (c)(2)(vii). However, because the NRC considers seismically qualified standpipes and hose stations of such importance, the NRC believes that licensees who wish to use the exception in Section 3.6.4 of NFPA 805 via a license amendment may have difficulty satisfying the three criteria in paragraph (c)(2)(vii).

This paragraph takes exception to the prohibition in Section 3.1 of NFPA 805 to the use of performance-based methods (including the use of risk-informed methods) for the fire protection program elements and minimum design requirements in Chapter 3. The NRC included this exception to allow licensees flexibility in meeting the fire protection program elements and minimum design requirements in Chapter 3. However, the NRC considers that the fire protection program elements and minimum design requirements in Chapter 3 are not suited to the performance-based approaches permitted in NFPA 805 on a generic basis, and that any performance-based approaches for these program elements or minimum design requirements should be approved on a plant-specific basis via a license amendment. Licensees proposing such performance-based approaches for the fire protection program elements and minimum design requirements in Chapter 3 must submit an application for a license amendment to the NRC in accordance with § 50.48(c)(4). The Director of the Office of Nuclear Reactor Regulation (NRR), or a designee, may approve the application if the Director or designee determines that the proposed performance-based approach:

(i) Satisfies the performance goals, performance objectives, and performance criteria specified in NFPA 805 related to nuclear safety and radiological release.

(ii) Maintains safety margins.

(iii) Maintains fire protection defense-in-depth (fire prevention, fire detection, fire suppression, mitigation, and post-fire safe shutdown capability).

This paragraph allows licensees to adopt NFPA 805 as an alternative to complying with 10 CFR 50.48(b) or existing plant fire protection license conditions. This paragraph describes the method by which a licensee will submit their request to adopt NFPA 805. If the NRC approves a licensee's request to use NFPA 805, the Director of NRR or designee will issue a license amendment that: (1) Removes superseded license conditions and (2) includes a license condition imposing the use of NFPA 805 together with an implementation schedule. In addition, if necessary, the NRC will issue an order revoking unnecessary and superseded exemptions and orders.

Licensees who are approved under paragraph (c)(3)(i) to use NFPA 805 may return to compliance with paragraph (b) and their previous licensing basis. However, each licensee must comply with all applicable requirements, including submitting an application for a license amendment, and, as applicable, a request for exemption if the licensee wishes to reinstate a revoked exemption.

This paragraph requires licensees to complete all of the Chapter 2 methodology (including evaluations and analyses) and to modify their fire protection plan before making changes to the fire protection program or to the plant configuration. This process ensures that the transition to an NFPA 805 configuration is conducted in a complete, controlled, integrated, and organized manner. This requirement also precludes licensees from implementing NFPA 805 on a partial or selective basis ( e.g., in some fire areas and not others, or truncating the methodology within a given fire area).

The evaluations and analyses process in Chapter 2 of NFPA 805 provides for the establishment of the fundamental fire protection program, identification of fire area boundaries and fire hazards, determination by analysis that the plant design satisfies the performance criteria, identification of SSCs required to achieve the performance criteria, conduct of plant change evaluations, establishment of a monitoring program, development of documentation, and configuration control. Chapter 2 of NFPA 805 also provides for the use of a deterministic or performance-based approach to determine that the performance criteria are satisfied and provides for the use of tools such as engineering analyses, fire models, nuclear safety capability assessments, and fire risk evaluations to support development of these approaches. The methodology for the use of these tools is established in Chapter 4 of NFPA 805.

This paragraph provides licensees with a mechanism to obtain NRC approval of alternatives to NFPA 805 including the use of performance-based approaches for the fire protection program elements and minimum design requirements in Chapter 3 of NFPA 805. The licensee's request should be in the form of a license amendment request and demonstrate that the licensee's proposed alternative satisfies the performance goals, objectives, and criteria specified in NFPA 805 for nuclear safety and radiological releases. The proposed alternative must also maintain safety margins and fire protection defense-in-depth (fire prevention, fire detection, fire suppression, mitigation, and post-fire safe shutdown capability). Addressing these criteria allows the NRC to determine that the alternative implements the performance goals, objectives, and criteria in Chapter 1 and complies with the requirements of GDC 3.

This paragraph provides that licensees who have permanently ceased operations and submitted the certifications required by 10 CFR 50.82(a)(1) may maintain a fire protection program that complies with NFPA 805 and that fire protection program will be deemed to be acceptable for complying with the requirements of paragraph (f).

The NRC is making the documents identified below available to interested persons through one or more of the following methods as indicated.

Public Document Room (PDR). The NRC Public Document Room is located at One White Flint North, 11555 Rockville Pike, Rockville, Maryland.

Rulemaking Web site (Web). The NRC's interactive Rulemaking Forum Web site is located at http://ruleforum.llnl.gov. These documents may be viewed and downloaded electronically via this Web site.

NRC's Public Electronic Reading Room (PERR). The NRC's public electronic reading room is located at http://www.nrc.gov/reading-rm.html. The subject document may be accessed using the ADAMS accession number ( e.g., ML#########) provided below.

The NRC staff contact. The NRC project manager for this rulemaking in the Office of Nuclear Reactor Regulation is Joseph L. Birmingham. Mr. Birmingham can be reached by telephone at (301— 415-2829, or via e-mail to jlb4@nrc.gov.

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. For this reason, 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. We are 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 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 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 date on the postcard and mail it back to you.

On November 22, 2002, Associated Air Center, P.O. Box 540728, 8210 Lemmon Ave, Love Field, Dallas, Texas 75234, applied for a Supplemental Type Certificate (STC) to modify the Boeing Model 767-2AX airplane (serial number 33685). The Model 767-2AX is a large transport category airplane powered by two GE CF6-80C2 engines, with a maximum takeoff weight of 395,000 pounds. The modified Model 767-2AX airplane operates with a 2-pilot crew (8 crew rest seats), up to 3 flight attendants, and can hold up to 32 passengers.

The modification includes the installation of an electrically heated surface, called a cooktop. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. These potential hazards to the airplane and its occupants must be satisfactorily addressed. Since existing airworthiness regulations do not contain safety standards addressing cooktops, special conditions are therefore needed.

Under the provisions of 14 CFR 21.101, Associated Air Center must show that the Boeing Model 767-2AX airplane (serial number 33685), as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate Data Sheet No. A1NM, 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 Data Sheet No. A1NM are 14 CFR part 25, as amended by amendments 25-1 through 25-37, with reversions to earlier amendments. It also includes voluntary compliance with later amendments, special conditions, equivalent safety findings, and exemptions listed in the Type Certificate Data Sheet.

If the Administrator finds that the applicable airworthiness regulations (that is, part 25 as amended) do not contain adequate or appropriate safety standards for the Boeing Model 767-2AX airplane (serial number 33685), modified by Associated Air Center 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, this Boeing Model 767-2AX airplane (serial number 33685) 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 § 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 Associated Air Center apply at a later date for a supplemental type certificate to modify any other model included on the Type Certificate No. A1NM to incorporate the same or similar novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101.

As noted earlier, the modification of the Boeing Model 767-2AX airplane (serial number 33685) will include installation of a cooktop in the passenger cabin. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards to protect the airplane and its occupants from these potential hazards. Accordingly, this system is considered to be a novel or unusual design feature.

Currently, ovens are the prevailing means of heating food on airplanes. Ovens are characterized by an enclosure that contains both the heat source and the food being heated. The hazards represented by ovens are thus inherently limited, and are well understood through years of service experience. Cooktops, on the other hand, are characterized by exposed heat sources and the presence of relatively unrestrained hot cookware and heated food, which may represent unprecedented hazards to both occupants and the airplane.

Cooktops could have serious passenger and airplane safety implications if appropriate requirements are not established for their installation and use. These special conditions apply to cooktops with electrically powered burners. The use of an open flame cooktop (for example natural gas) is beyond the scope of these special conditions and would require separate rulemaking action. The requirements identified in these special conditions are in addition to those considerations identified in Advisory Circular (AC) 25-10, “Guidance for Installation of Miscellaneous Non-required Electrical Equipment,” and those in AC 25-17, “Transport Airplane Cabin Interiors Crashworthiness Handbook.” The intent of these special conditions is to provide a level of safety that is consistent with that on similar airplanes without cooktops.

As discussed above, these special conditions are applicable to the Boeing Model 767-2AX airplane (serial number 33685), modified by Associated Air Center. Should Associated Air Center apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A1NM to incorporate the same or similar 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 Boeing Model 767-2AX airplane (serial number 33685), modified by Associated Air Center. 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.

Comments Invited

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 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-300-10 (Diamond II) and 400 (Beechjet) airplanes. The Raytheon airplanes are small transport category airplanes powered by two turbojet engines, with maximum takeoff weights of up to 15,780 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-300-10 and 400 airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A16SW, 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. A16SW 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; §§ 25.29, 25.255, and 25.1353(c)(6) 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-300-10 and 400 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-300-10 and 400 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-300-10 and 400 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-300-10 and 400 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-300-10 and 400 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-300-10 and 400 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.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by revising AD 2004-03-34, amendment 39-13478 (69 FR 7553, February 18, 2004), which is applicable to certain Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, was published in the Federal Register on March 24, 2004 (69 FR 13761). The action proposed to continue to require replacing the existing screw, nut, and washers that attach the latch cable assembly to the latch block assembly of the door mounted escape slides, with new, improved screw, nut, and washers. In addition, the action proposed to revise the parts installation paragraph to allow certain nuts to be installed on the latch block assembly.

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

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

The changes in this action add no additional economic burden. The current costs for this AD are repeated for the convenience of affected operators, as follows:

There are approximately 2,919 airplanes of the affected design in the worldwide fleet. The FAA estimates that 1,129 airplanes of U.S. registry will be affected by this AD. The FAA estimates that it will take approximately 2 work hours for each airplane specified as Group 1 in the referenced service bulletin, and approximately 1 work hour for each airplane specified as Group 2 in the referenced service bulletin, to accomplish the required actions; the average labor rate is estimated to be $65 per work hour. Parts and materials are standard and are to be supplied by the operator. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be $130 per Group 1 airplane, and $65 per Group 2 airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions. The manufacturer may cover the cost of replacement parts associated with this AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this AD. As a result, the costs attributable to the AD may be less than stated above.

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

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

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain EMBRAER Model EMB-120 series airplanes was published in the Federal Register on April 6, 2004 (69 FR 17984). That action proposed to require repetitive inspections for cracks or evidence of damage/distortion of the anti-skid drive coupling clips for the hubcaps of the main landing gear (MLG) wheels; repetitive measurement of the gap and height dimensions of the coupling clips; corrective actions, if necessary; and eventual replacement of all coupling clips with new, improved coupling clips.

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

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

We estimate that 220 airplanes of U.S. registry will be affected by this AD.

It will take approximately 2 work hours per airplane to accomplish the required general visual inspection and measurement of dimensions “G” and “H,” at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the general visual inspection and measurement of dimensions “G” and “H”, on U.S. operators is estimated to be $28,600, or $130 per airplane, per inspection cycle.

It will take approximately 1 work hour per airplane to do the required replacement of the coupling clips, at an average labor rate of $65 per work hour. Required parts will cost approximately $600 per airplane. Based on these figures, the cost impact of the replacement on U.S. operators is estimated to be $146,300, or $665 per airplane.

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

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

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

What events have caused this AD? The Federal Office for Civil Aviation (FOCA), which is the airworthiness authority for Switzerland, recently notified FAA that an unsafe condition may exist on all Pilatus Models PC-12 and PC-12/45 airplanes equipped with an inboard and/or outboard flap flexshaft, part numbers (P/N) 945.02.02.203 and/or 945.02.02.204. The FOCA reports several occurrences of corrosion found on the inner drive cables of these flap flexshafts.

The FOCA determined that moisture from the pressurized cabin could enter the flap flexshafts through the fittings of the protection hose causing corrosion. This corrosion could cause the flap flexshafts to rupture.

What is the potential impact if FAA took no action? If not prevented, corrosion on the flap flexshafts could cause flap flexshafts to rupture and lead to the flap system becoming inoperable.

Has FAA taken any action to this point? We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Pilatus Models PC-12 and PC-12/45 airplanes of the same type design that are equipped with an inboard and/or outboard flap flexshaft, P/N 945.02.02.203 and/or P/N 945.02.02.204. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on April 9, 2004 (69 FR 18843). The NPRM proposed to require you to check the airplane logbook to determine whether certain inboard and outboard flap flexshafts have been replaced with parts of improved design. If the parts of improved design are not installed, you would be required to replace certain inboard and/or outboard flap flexshafts with the parts of improved design.

Was the public invited to comment? We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:

What is the commenter's concern? The manufacturer states that failure of the flap system will not lead to loss of control of the airplane. The manufacturer explains that the flap computer (FCWU) protects the system against asymmetric flap deployment with a failure rate of 10E-9 in the event of a flexshaft rupture (and other failure modes). The pilot has no possibility to override this protection.

The manufacturer wants us to state that rupture of the flap flexshafts due to corrosion could cause the flap system to become inoperative but does not result in loss of control of the airplane.

What is FAA's response to the concern? We agree with the manufacturer. After reviewing additional information provided by the FOCA of Switzerland about the result of the unsafe condition on the flap flexshafts, we will change the final rule AD action based on this comment.

What is the commenter's concern? The manufacturer states that of the 260 airplanes affected by this AD, only 65 need to have the replacement parts installed. The manufacturer wants the cost of compliance changed to reflect the cost of installing the replacement parts for these 65 airplanes instead of all 260 airplanes.

The manufacturer has also agreed to cover the cost of replacement parts for all airplanes even though the warranty credit period has expired. The manufacturer also wants us to change the cost of compliance to reflect this reduction.

What is FAA's response to the concern? We partially agree with the manufacturer. We agree that there may be only 65 airplanes currently on the United States (U.S.) registry that need to have the replacements parts installed. However, because parts could have been replaced on an airplane after it left the manufacturer, we used the total number of affected airplanes in the Costs of Compliance section. We have no way of determining the exact number of airplanes that will need to have the replacements done.

We are not changing the final rule AD action based on this comment. We are, however, adding a section to cover the cost for doing the logbook check. Since all of the affected airplanes will probably not need to have the replacement parts installed, a logbook check will have to be done on all of the affected airplanes in order to make this determination.

What is the commenter's concern? The manufacturer states that the language in paragraph (e)(5) prohibits you from ever installing any version of the inboard and outboard flap flexshafts other than part numbers (P/N) 945.02.02.205 and 945.02.02.206. Therefore, airplanes manufactured in the future with a new design part number for the flap flexshafts will be in automatic non-compliance with this AD.

The manufacturer wants this language changed to prohibit ever installing P/Ns 945.02.02.203 and 945.02.02.204 but allows you to install new flap flexshafts introduced in the future.

What is FAA's response to the concern? We agree with the commenter. Preventing future installations of new design parts was not the intent of this AD.

We will change the final rule AD action based on this comment.

What is the commenter's concern? The manufacturer states that there is no unsafe condition. The manufacturer further explains that the flap computer (FCWC) protects the system against asymmetric flap deployment with a failure rate of 10E-9 in the event of a flexshaft rupture (and other failure modes). This failure does not result in loss of control of the airplane and the pilot has no possibility to override this protection.

The manufacturer also states that they can confirm that over 90 percent of the U.S. registered airplanes have already had the replacement parts installed.

The manufacturer wants the proposed AD action withdrawn.

What is FAA's response to the concern? We do not agree that there is no unsafe condition. We agree that approximately 90 percent of the affected airplanes may have already had the replacement parts installed. However, at least 10 percent of the affected airplanes still need the replacement done. In addition, the only way to legally prevent these unsafe parts from being installed in the future is through AD action. This would include airplanes brought into the U.S. and put on the U.S. registry.

Therefore, to ensure that all affected airplanes do not have the unsafe parts installed, we are not changing the final rule AD action based on this comment.

What is the commenter's concern? The commenter states that the manufacturer has been incorporating the new P/Ns in the production line of new airplanes since 2003 making the inclusion of airplanes produced after Manufacturer Serial Number (MSN) 489 illogical. Making the AD serial number specific speeds compliance and makes everyone's life easier.

The commenter wants the AD changed to be serial number specific as specified in Pilatus PC12 Service Bulletin No. 27-015.

What is FAA's response to the concern? We partially agree with the commenter. We agree that serial number specific ADs are easier to track; however, parts could be swapped from one of the earlier affected models and installed on a MSN outside of the range specified in the service information. To safeguard against this, we included a logbook check of all airplanes prior to doing any replacements.

We are not changing the final rule AD action based on this comment.

What is FAA's final determination on this issue? We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for the changes noted above and minor editorial corrections. We have determined that these changes:

How does the revision to 14 CFR part 39 affect this AD? On July 10, 2002, the FAA published a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. This material previously was included in each individual AD. Since this material is included in 14 CFR part 39, we will not include it in future AD actions.

How many airplanes does this AD impact? We estimate that this AD affects 260 airplanes in the U.S. registry.

What is the cost impact of this AD on owners/operators of the affected airplanes? We estimate the following costs to accomplish the logbook check:

We estimate the following costs to accomplish the replacement:

What is the compliance time of this AD? The compliance time for the replacement that will be required by this AD is “within the next 30 days after the effective date of this AD.”

Why is this compliance time presented in calendar time instead of hours TIS? The unsafe condition specified by this AD is caused by corrosion. Corrosion can occur regardless of whether the airplane is in operation or is in storage. Therefore, to assure that the unsafe condition specified in this AD does not go undetected for a long period of time, a compliance time of calendar time is utilized.

Will this AD impact various entities? 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.

Will this AD involve a significant rule or regulatory action? 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 the 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. 2004-CE-08-AD” in your request.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 99-24-07, amendment 39-11431 (64 FR 66370, November 26, 1999), which is applicable to certain Boeing Model 757 series airplanes equipped with Rolls Royce RB211 engines, was published as a supplemental Notice of Proposed Rulemaking in the Federal Register on April 15, 2003 (68 FR 18170). The action proposed to continue to require modification of the nacelle strut and wing structure. The action proposed to require, for certain airplanes, repetitive detailed inspections of certain aft bulkhead fasteners for loose or missing fasteners, and corrective action if necessary. For certain other airplanes, the action proposed to require a one-time detailed inspection of the middle gusset of the inboard side load fitting for proper alignment and realignment if necessary; a one-time eddy current inspection of certain fasteners holes for cracking; and repair if necessary; and a detailed inspection of certain fasteners for loose or missing fasteners; and replacement with new fasteners if necessary. Additionally, the action proposed to require that certain actions specified in Boeing Service Bulletin 757-54-0035, Revision 2, dated June 13, 2002 (specified in the supplemental NPRM as one of the appropriate sources of service information), be done using Boeing-supplied tools.

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

Several commenters request that the repetitive inspection interval of every six months proposed by paragraph (b) of the supplemental NPRM be extended. Two commenters state that repetitive inspection intervals of every 3,000 flight cycles would be less of a burden for the operators. Another commenter advises that the airplane manufacturer's intent was to require repetitive inspections every 12,000 flight cycles or 72 months, whichever occurs first.

The FAA concurs that the repetitive inspection interval may be extended somewhat. We understand that the manufacturer has recommended an interval of every 12,000 flight cycles or 72 months. However, we have recently received reports of field experience that show the fasteners can loosen in less than 72 months. Therefore, we have revised paragraph (b) of the AD to specify a repetitive inspection interval not to exceed 6,000 flight cycles or 36 months, whichever occurs first.

One commenter states that the way the supplemental NPRM is written, it would require the actions specified in paragraph (f) of the supplemental NPRM to be accomplished after each repetitive inspection required by paragraph (b) of the supplemental NPRM. Two commenters request that the supplemental NPRM be revised to clearly specify that accomplishment of the requirements of paragraph (f) of the supplemental NPRM is terminating action.

We agree with the need to clarify paragraph (f) of the supplemental NPRM. The requirements of paragraph (f) of the AD (to increase the diameter of the fastener holes and to install new fasteners) apply to those airplanes on which the actions specified in paragraph (d) of the AD have been accomplished. We have revised paragraph (f) of the AD to reflect that clarification. Additionally, we agree that the actions specified in paragraph (f) of this AD terminates the repetitive inspection requirements of this AD. We have revised the AD accordingly.

Several commenters request that the supplemental NPRM be withdrawn and that, instead, new rulemaking be proposed to specify that the initial inspection specified in paragraph (b) of the supplemental NPRM be accomplished within 90 days after the release of a new Boeing service bulletin (Boeing Alert Service Bulletin 757-54A0047). The commenters state that using the new service information would simplify and clarify the actions proposed in the supplemental NPRM.

We do not agree that this AD should be withdrawn. We have not reviewed or approved new service information specified by the commenters. In this case, we find that to withdraw this AD and initiate new proposed rulemaking (providing for public opportunity to comment) would significantly delay the rulemaking process and would be inappropriate in light of the identified unsafe condition. Therefore, no change is necessary to the AD in this regard. In the future, if the manufacturer elects to provide new service information, the service information can be evaluated and approved in accordance with paragraph (h) of this AD.

One commenter requests that, for airplanes that have completed the modification specified in Boeing Service Bulletin 757-54-0035, the compliance time specified in paragraph (b) of the supplemental NPRM be extended. The commenter states that the compliance time should be extended because the previous modification was done on those airplanes in a shop environment.

We do not agree that extending the compliance time specified in paragraph (b) of this AD is necessary. The requirements of paragraph (b) of this AD apply only to airplanes that have not been modified per Boeing Service Bulletin 757-54-0035. Therefore, no change is necessary in this regard to the AD.

Two commenters request that a method of inspecting for loose or missing fasteners without the engine in place be specified. The commenters state that the inspection method specified in the supplemental NPRM is burdensome to accomplish with the engine in place.

We do not agree with the commenters' request. Since the manufacturer has not provided us with service information describing such a method of inspection, we have not reviewed and approved such an inspection method. However, under the provisions of paragraph (h) of the AD, we may approve requests for an alternative inspection method if data are submitted to substantiate that such an alternative inspection method would provide an acceptable level of safety.

One commenter, the manufacturer, requests that a simple gap check be performed with a feeler or wire gage in lieu of the inspection in paragraph (c) of the supplemental NPRM. The commenter explains that this can be done with the strut still installed, which is described in Boeing Service Bulletin 757-54-0035, Revision 2. The commenter further recommends that a minimum gap of 0.030 inch be maintained between the middle gusset on the inboard side load fitting and the strut clevis lug.

We do not agree with permitting such an alternative method of inspection at this time, since the gap check has not been sufficiently defined for us to review and approve. However, under the provisions of paragraph (h) of the AD, we may approve requests for an alternative inspection method if data are submitted to substantiate that such an alternative method would provide an acceptable level of safety.

One commenter requests approval for using procedures to oversize holes specified in the Structural Repair Manual (SRM) in lieu of using Boeing-supplied tools specified in paragraph (g) of the supplemental NPRM. The commenter notes that there is a limited supply of those tools.

We do not agree with the commenter's request. In certain cases, operator supplied tools have contributed to unsafe conditions. However, under the provisions of paragraph (h) of the AD, we may approve requests for an alternative method of oversizing holes if data are submitted to substantiate that such a method to oversize holes would provide an acceptable level of safety.

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

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. However, for clarity and consistency in this AD, we have retained the language of the supplemental NPRM regarding that material.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 394 airplanes of the affected design in the worldwide fleet. The FAA estimates that 176 airplanes of U.S. registry will be affected by this AD.

The modification that is currently required by AD 99-24-07 takes approximately 1,049 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. This work hour figure includes the time it will take to remove and reinstall the struts from the airplane as well as the time required to gain and close access to the adjacent wing structure. Based on these figures, the cost impact of the currently required modification on U.S. operators is estimated to be $12,000,560, or $68,185, per airplane.

This cost impact figure does not reflect the cost of the terminating actions described in the service bulletins listed in paragraph I.C., Table I, “Strut Improvement Bulletins,” on page 7 of Revision 2 of Boeing Service Bulletin 757-54-0035, that are required to be accomplished prior to, or concurrently with, the modification of the nacelle strut and wing structure. Since some operators may have accomplished certain modifications on some or all of the airplanes in the fleet, while other operators may not have accomplished any of the modifications on any of the airplanes in the fleet, the FAA is unable to provide a reasonable estimate of the cost of accomplishing the terminating actions described in the service bulletins listed in Table I of the service bulletin.

It will take approximately 1 work hour per airplane to accomplish the new detailed inspection of the middle gusset, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the inspection required by this AD is estimated to be $11,440, or $65 per airplane.

It will take approximately 8 work hours per airplane to accomplish the new fastener removal and eddy current inspection, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the removal and inspection required by this AD is estimated to be $91,520, or $520 per airplane.

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

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

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

On Monday, April 19, 2004, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to create new Class E airspace upward from 700 ft. and 1,200 ft. above the surface at Allakaket, AK (69 FR 20835). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new Standard Instrument Approach Procedures and a new Textual Departure Procedure for the Allakaket Airport. The new approaches are Area Navigation-Global Positioning System (RNAV GPS) Runway (RWY) 5, original and (2) RNAV (GPS) Runway 23, original. New Class E controlled airspace extending upward from 700 feet and 1,200 feet above the surface in the Allakaket Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas 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 revoked and revised subsequently in the Order.

This revision to 14 CFR part 71 establishes Class E airspace at Allakaket, Alaska. This additional Class E airspace was created to accomodate aircraft executing two new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Allakaket Airport, Allakaket, Alaska.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this 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.

On Monday, April 19, 2004, the FAA proposed to revise part 71 of the Federal Aviation Regulations (14 CFR part 71) to add to the Class E airspace upward from 700 ft.above the surface at Kipnuk, AK (69 FR 20837). The action was proposed in order to add Class E airspace sufficient in size to contain aircraft while executing two new Standard Instrument Approach Procedures at the Kipnuk Airport. The new approaches are (1) Area Navigation-Global Positioning System (RNAV GPS) RWY 33 original and (2) RNAV (GPS) RWY 15, original. Additional Class E controlled airspace extending upward from 700 feet above the surface in the Kipnuk Airport area is established by this action. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No public comments have been received, thus, the rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas 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.

This revision to 14 CFR part 71 revises Class E airspace at Kipnuk, Alaska. This additional Class E airspace was created to accommodate aircraft executing new SIAPs and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for IFR operations at Kipnuk Airport, Kipnuk, Alaska.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this 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 National Construction Safety Team Act, Public Law 107-231, was enacted to provide for the establishment of investigative teams (“Teams”) to assess building performance and emergency response and evacuation procedures in the wake of any building failure that has resulted in substantial loss of life or that posed significant potential of substantial loss of life. The purpose of investigations by Teams is to improve the safety and structural integrity of buildings in the United States. A Team will (1) establish the likely technical cause or causes of the building failure; (2) evaluate the technical aspects of evacuation and emergency response procedures; (3) recommend, as necessary, specific improvements to building standards, codes, and practices based on the findings made pursuant to (1) and (2); and recommend any research and other appropriate actions needed to improve the structural safety of buildings, and improve evacuation and emergency response procedures, based on the findings of the investigation. Section 2(c)(1) of the Act requires that the Director develop procedures for certain activities to be carried out under the Act as follows: Regarding conflicts of interest related to service on a Team; defining the circumstances under which the Director will establish and deploy a Team; prescribing the appropriate size of Teams; guiding the disclosure of information under section 7 of the Act; guiding the conduct of investigations under the Act; identifying and prescribing appropriate conditions for provision by the Director of additional resources and services Teams may need; ensuring that investigations under the Act do not impede and are coordinated with any search and rescue efforts being undertaken at the site of the building failure; providing for regular briefings of the public on the status of the investigative proceedings and findings; guiding the Teams in moving and preserving evidence; providing for coordination with Federal, State, and local entities that may sponsor research or investigations of building failures; and regarding other issues.

NIST published an interim final rule with a request for public comments in the Federal Register on January 30, 2003 (68 FR 4693), seeking public comment on general provisions regarding implementation of the Act and on provisions establishing procedures for the collection and preservation of evidence obtained and the protection of information created as part of investigations conducted pursuant to the Act, including guiding the disclosure of information under section 7 of the Act (§§ 270.350, 270.351, and 270.352) and guiding the Teams in moving and preserving evidence (§ 270.330). These general provisions and procedures, comprising Subparts A and D of the rule, are necessary to the conduct of the investigation of the World Trade Center disaster, already underway, and became effective immediately upon publication. The comment period closed on March 3, 2003. On May 7, 2003, NIST published a final rule in the Federal Register (68 FR 24343), addressing the comments received.

NIST published an interim final rule with a request for public comments in the Federal Register on November 28, 2003 (68 FR 66073), seeking public comment on amendments to § 270.1, Description of rule; purpose, applicability, of the final rule to clarify NIST's role in recommending improvements to building codes, standards, and practices and to clarify the relationship between investigations conducted under the Act and criminal investigations of the same building failure; an amendment to the definition of Credentials , contained in § 270.2, to clarify that credentials are issued by the Director and to better define the term; and an amendment to § 270.313, Requests for Evidence, to clarify that collections of evidence under that section are investigatory in nature and are not research. NIST also sought public comment on procedures set forth in the interim final rule regarding conflicts of interest related to service on a Team (§ 270.106); defining the circumstances under which the Director will establish and deploy a Team (§ 270.102); prescribing the appropriate size of Teams (§ 270.104); guiding the conduct of investigations under the Act (§ 270.200); identifying and prescribing appropriate conditions for provision by the Director of additional resources and services Teams may need (§ 270.204); ensuring that investigations under the Act do not impede and are coordinated with any search and rescue efforts being undertaken at the site of the building failure (§ 270.202); providing for regular briefings of the public on the status of the investigative proceedings and findings (§ 270.206); providing for coordination with Federal, State, and local entities that may sponsor research or investigations of building failures (§ 270.203); and regarding other issues.

The comment period closed on December 29, 2003.

NIST received ten responses to the request for comments. One response was from a private, not-for-profit organization that develops model building codes. Two responses were from industry associations. One response was from an association of local building officials, and one response was from an association of state building officials. One response was from a local government agency. One response was from the NCST Federal Advisory Committee, and three responses were from individual members of that committee. A detailed analysis of the comments follows.

Comment: One commenter expressed the view that it is important to the future of the public's health, welfare and life safety that the Act be adequately funded by Congress at the earliest time possible.

Response: This comment is outside the scope of this rulemaking.

Comment: One commenter recommended that the regulations provide for the establishment of a directory of pre-approved and credentialed individuals that are available to act as Team members.

Response: NIST intends to establish such a list under its internal procedures.

Comment: One commenter recommended deleting the word “technical” from the causes of building failure and from the aspects of evacuation and emergency response procedures in § 270.100(b) because it limits the work of Teams.

Response: The Act requires NIST to assess the technical causes of building failures. Specifically, section 2(b)(2)(A) and (B) of the Act state that a Team shall establish the likely technical cause or causes of the building failure and that a Team shall evaluate the technical aspects of evacuation and emergency response procedures.

Comment: One commenter recommended that NIST revise the first sentence of § 270.1(b)(1) by expanding the stated purpose of investigations by Teams to include improving “the safety of building occupants and emergency egress and response measures.”

Response: NIST has revised § 270.1(b)(1) by adding language contained in the preamble to the Act. The preamble states that the purpose of the Act is “to provide for the establishment of investigative teams to assess building performance and emergency response and evacuation procedures in the wake of any building failure that has resulted in substantial loss of life or that posed significant potential of substantial loss of life.”

Comment: One commenter recommended that NIST develop and include language that specifically describes situations that will result in investigation by a Team and that the language should be similar, in detail and description, to that currently used by the National Transportation Safety Board (“NTSB”).

Response: The Act authorizes the Director to establish a Team for deployment “after events causing the failure of a building or buildings that has resulted in substantial loss of life or that posed significant potential for substantial loss of life.” The variety of “events” that could cause building failures yielding such results is extremely broad. In addition, the same type of “event” might in some circumstances cause a building failure yielding such results and in other circumstances might not cause a building failure or might cause a building failure that does not result in substantial loss of life or pose significant potential for substantial loss of life. The broad nature of this authority requires broad discretion for the Director in determining whether a particular event results in a situation that is within the scope of the Act. In addition, NIST has reviewed the NTSB criteria and finds that the criteria set forth in § 270.102 are similar in detail and description to that currently used by the NTSB.

Comment: One commenter recommended that NIST work cooperatively with the construction industry and with the building and fire regulatory communities to define the terms in the Act “substantial loss of life or a potential for substantial loss of life.”

Response: The Director's decision to establish a Team after an event that caused the failure of a building or buildings that resulted in substantial loss of life or posed significant potential for substantial loss of life will require consideration of the entire context of the building failure, the event that caused it, the likelihood that an investigation will likely result in significant and new knowledge or recommendations for building code revision, and the factors identified in § 270.102(b). Not defining “substantial loss of life or a potential for substantial loss of life” leaves the Director with the broad discretion needed to make this determination.

Comment: Two commenters recommended changing the wording of § 270.100(a) to indicate that historically, in the United States, building failures from fires, earthquakes, hurricanes, tornadoes, and other disasters that have resulted in a substantial loss of life or that posed significant potential for substantial loss of life have occurred several times per year, rather than less than once per year.

Response: NIST has revised § 270.100(a) to state that NIST expects that the Director will establish and deploy a Team to conduct an investigation at a frequency of approximately once per year or less based on prior NIST experience.

Comment: One commenter stated that § 270.100(b) requires an editorial correction as follows: “Teams established under the Act and this part will investigate these”, change “these” to “the”.

Response: NIST disagrees. In § 270.100(b), “these” refers back to the building systems described in the previous sentence, the failure of which could be a technical cause of a building failure.

Comment: One commenter recommended that the wording in § 270.102(a)(1)(ii) be changed to read: “a fire that resulted in a building failure of the building of origin and/or spreads beyond the building of origin.”

Response: NIST has revised the referenced section to read “a fire that resulted in a building failure of the building of origin and/or spread beyond the building of origin.”

Comment: One commenter stated that the Federal Response Plan cited in § 270.102(a)(1)(iv) had been revised and renamed the National Response Plan. The commenter recommended that NIST revise that section to reflect this change.

Response: NIST has changed the reference in § 270.102(a)(1)(iv) to read “National Response Plan.”

Comment: One commenter recommended deleting paragraph 270.102(b)(4) because it is highly unlikely that an NCST investigation would substantially duplicate local or state capabilities, and replacing it with “Whether an investigation is likely to result in relevant knowledge for mitigation of the building failure.”

Response: NIST disagrees. NIST will retain the original language of paragraph 270.102(b)(4) to make clear that no matter how infrequently the situation occurs, in deciding whether to establish and deploy a Team, the Director will consider whether an NCST investigation would substantially duplicate a local or state investigation. NIST has revised § 270.102(a)(2) to address the importance of gaining relevant knowledge for mitigation of building failures.

Comment: Two commenters suggested adding structural and electrical engineering to the disciplines that may be represented on a Team as listed in § 270.104(b)(5).

Response: NIST agrees and has added these disciplines.

Comment: One commenter recommended adding Code administration and enforcement to the disciplines that may be represented on a Team as listed in § 270.104(b)(5).

Response: NIST disagrees. Code administration and enforcement are not disciplines that would participate in investigating the technical causes of a building failure. Rather, they are disciplines involved in the implementation of recommendations resulting from an investigation. If the expertise provided by these disciplines is needed in the course of an investigation, NIST may engage appropriate representatives as contractors or consultants to the Team, but it is unlikely that they would be Team members.

Comment: One commenter suggested that Teams involve the local building official in the investigation and draw on the resources of the local building department during investigations.

Response: Section 6(3) of the Act states that in order to support Teams in carrying out the Act, the Director may “confer with employees and request the services, records, and facilities of State and local governmental authorities.” When appropriate, local building officials may be requested to serve on or support Teams in their investigations. If a local building department possesses evidence necessary to an NCST investigation, it may voluntarily submit such information to NIST pursuant to 15 CFR 270.312.

Comment: One commenter recommended that § 270.105(b)(3) be revised to include that in addition to recommending, as necessary, specific improvements to building standards, codes and practices based on its findings, a Team be required to provide the supporting rationale for each recommendation.

Response: Supporting rationale for a Team's recommendations will be included in its report as required by section 8 of the Act and § 270.205(a) of the regulations.

Comment: One commenter requested that NIST change the word “Cooperate” in § 270.105(c)(6) to “Not impede” to describe a Team's interaction with State and local authorities carrying out any activities related to a Team's investigation.

Response: Section 4(c)(4) of the Act requires a Team to cooperate with State and local authorities carrying out any activities related to a Team's investigation.

Comment: One commenter requested that NIST remove from § 270.105(d)(4) the authority to move, or to further articulate the nature of the “records” to be moved as a result of the investigation. The commenter questioned whether this authority includes the official records of the jurisdiction.

Response: No change has been made in response to this comment. The authority to move such records is granted by section 4(a)(4) of the Act. The Act limits this authority by stating that it is to be carried out “as provided by the procedures developed under section 2(c)(1).” The procedures for collection and preservation of evidence are set forth in subpart D of the regulations.

Comment: One commenter asked that NIST add an additional task to the list of tasks that may be completed during an investigation. The commenter requested that NIST add a new paragraph 270.200(c)(2)(xii): “Review best practices in codes adoption and administration to determine the extent to which the circumstances that led to this building failure have statewide, regional or national implications.”

Response: NIST agrees that this is a task that might be completed during an investigation that proceeds beyond preliminary reconnaissance. Rather than adding a new task, NIST has incorporated this task into the task described in § 270.200(c)(2)(ix) by revising that section to read: “Analyze the relevant building practices, including code adoption and enforcement practices, to determine the extent to which the circumstances that led to this building failure have regional or national implications.”

Comment: One commenter recommended that NIST revise § 270.200(c)(2)(iv) to require that the Team make a determination whether the building was constructed in accordance with the adopted code, determine what code was in force when the building was approved for construction and identify any renovations, repairs, additions, etc. that were made during the life of the building and how those were addressed with respect to the adopted code at the time they were made.

Response: A Team may determine what code or codes were in force when the building was designed and approved for construction, and identify any renovations, repairs, additions, etc. that were made during the life of the building and the relevant code provisions that were in force when such work was done. However, determining whether a building was built in accordance or complied with code requirements is a code enforcement authority and is not part of the statutory authority granted to NIST under the Act. As a result of its investigation, a Team will recommend any changes to current building standards, codes, and practices that would improve the safety and structural integrity of buildings in the United States.

Comment: One commenter recommended that NIST provide additional guidance in § 270.200(c)(2)(v) on how a Team should identify the most probable technical cause when no computer model is available to address a particular issue.

Response: The tasks listed in § 270.200(c)(2) are examples of tasks that Teams might need to perform in conducting an investigation. None of the tasks is required in any investigation, and it is not possible to provide a complete list of every task that a Team might need to perform to complete its investigation. If no computer model is available, a Team will do what is necessary to reconstruct the event and identify the most probable technical cause of the building failure without a computer model.

Comment: One commenter recommended that § 270(c)(2)(x) be revised from “Identify specific areas in building and fire codes, standards, and building practices that may warrant revisions based on investigation findings.” To “identification of specific criteria in building and fire codes and standards and practices—with an understanding that building and fire are broad and include mechanical, electrical, e.g. , all codes that warrant revisions, proposed changes to those documents and development of supporting rationale.”

Response: The specific criteria differ from code to code. A Team cannot address every change to every code in the United States that may result from a Team's general recommendation for an improvement to building codes. Each jurisdiction or industry will be responsible for adopting changes to the specific criteria contained in its codes, standards, and practices that warrant change based on a Team's recommendation.

Comment: One commenter asked that NIST clarify that a Team would have priority over civil litigants.

Response: No change has been made in response to this comment. The Act does not provide NIST with authority for Teams to take priority over civil litigants.

Comment: One commenter stated that, contrary to the wording of § 270.202, FEMA does not have local offices. The commenter suggested that NIST revise the reference in § 270.202 to read: “including FEMA urban search and rescue teams, local emergency management agencies, and local emergency response groups.

Response: NIST has made this change.

Comment: One commenter hoped that the NIST teams will realize that search and rescue efforts and recovery efforts will be the top priorities of local officials and that the NIST team should perform their investigation in such a manner that they will not impede the efforts of local officials.

Response: NIST recognizes that search and rescue efforts and recovery efforts are the top priorities following a building disaster. Section 4(c)(1) of the Act and § 270.202 state that NIST will coordinate its investigation with such efforts.

Comment: One commenter stated that notification of the establishment and deployment of a Team by publication in the Federal Register is too slow a process. The commenter recommended that NIST should notify the jurisdiction's chief building code enforcement and fire official, as well as neighboring local jurisdictions, of such actions directly by phone or e-mail to establish a positive working relationship and to expedite a cooperative working environment.

Response: NIST agrees. As required by section 2(a) of the Act and implemented by § 270.103 of the regulations, the Director will promptly publish in the Federal Register notice of the establishment of each Team. In addition, NIST will promptly notify appropriate authorities having jurisdiction over a building failure site. NIST also is in the process of contacting and establishing relationships with state and local authorities with whom Teams conducting an investigation may have to coordinate. With the help of other Federal agencies, NIST is developing a list of the appropriate contacts in each jurisdiction for the purpose of immediate notification of the establishment and deployment of a Team.

Comment: One commenter recommended that NIST develop details and a formal protocol document to spell out and facilitate cooperation with state and local authorities in carrying out activities related to a Team's investigation.

Response: NIST agrees. Section 270.203 sets forth NIST's intent to enter into Memoranda of Understanding with Federal, State, and local entities, as appropriate, to ensure the coordination of investigations.

Comment: One commenter recommended that language be added to § 270.205 to clarify the intended recipients of Team reports. The commenter recommended that the primary recipients be organizations which are private sector voluntary consensus standards writing organizations operating under approved guidelines of the American National Standards Institute (ANSI).

Response: All final Team reports will be made publicly available and will be posted on the NIST Web site. NIST encourages standards organizations to access the reports. NIST cannot take on the burden of identifying all appropriate recipients of each Team's final report.

Comment: One commenter urged NIST to take care in framing and briefing the press on recommendations from investigations so as to take into consideration the potential impact on the construction industry, government, leasing of buildings, and the public.

Response: NIST agrees and will do so, taking into account public safety and welfare.

Comment: One commenter recommended that the reporting of “any recommended specific improvements to building standards, codes, and practices,” required by § 270.205(a)(3) include specific code changes with supporting rationale.

Response: Section 2(b)(2)(C) of the Act and § 270.105(b)(3) of the regulations state that a Team will recommend, as necessary, specific improvements to building standards, codes, and practices based on its findings. It is the responsibility of appropriate standards and codes organizations and authorities to consider adoption of a Team's recommendations and to develop specific code change proposals and language. Section 9(2) of the Act authorizes NIST to promote (consistent with existing procedures for the establishment of building standards, codes, and practices) the appropriate adoption of its recommendations by the Federal Government and encourage the appropriate adoption of those recommendations by other agencies and organizations. Reports will include the supporting rationale for any recommendations made.

This rule has been determined not to be significant under section 3(f) of Executive Order 12866.

This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 12612.

Prior notice and an opportunity for public comment are not required for this rule of agency organization, procedure, or practice. 5 U.S.C. 553(b)(A).

Because notice and comment are not required under 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are inapplicable. As such, a regulatory flexibility analysis is not required, and none has been prepared.

Notwithstanding any other provision of the law, no person is required to, nor shall any person be subject to penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act, unless that collection of information displays a currently valid OMB Control Number.

There are no collections of information involved in this rulemaking.

This rule will not significantly affect the quality of the human environment. Therefore, an environmental assessment or Environmental Impact Statement is not required to be prepared under the National Environmental Policy Act of 1969.

On May 12, 2003, the IRS and Treasury published in the Federal Register (68 FR 25310) proposed amendments to the regulations (REG-142605-02) under sections 263A and 448 of the Internal Revenue Code (Code). These amendments pertain to the period for taking into account the adjustment required under section 481 to prevent duplications or omissions of amounts resulting from a change in method of accounting under section 263A or 448. Neither public comments in response to the proposed regulations nor any request to speak at a public hearing were received. The proposed regulations under sections 263A and 448 are adopted as revised by this Treasury decision.

The proposed regulations provided that they are applicable to taxable years ending on or after the date those regulations are published as final regulations. However, the proposed regulations allowed taxpayers to rely on them for taxable years ending on or after May 12, 2003, by filing a Form 3115, “Application for Change in Accounting Method,” in the time and manner provided in the regulations (in the case of a change in method of accounting under section 448) or applicable administrative procedure (in the case of a change in method of accounting under section 263A) for such a taxable year that reflects a section 481 adjustment period that is consistent with the proposed regulations. Taxpayers may continue to rely on the proposed regulations for taxable years ending on or after May 12, 2003, but ending before June 16, 2004.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal authors of these regulations are Christian Wood and Grant Anderson of the Office of Associate Chief Counsel (Income Tax and Accounting). However, other personnel from the IRS and Treasury Department participated in their development.

Background

The Federal Alcohol Administration Act, 27 U.S.C. 205(e)(2), authorizes the Administrator of the Alcohol and Tobacco Tax and Trade Bureau (TTB), as a delegate of the Secretary of the Treasury, to prescribe regulations which will provide the consumer with “adequate information” as to the identity and quality of alcohol beverage products. Under this authority, parts 4, 5, and 7 of title 27 of the Code of Federal Regulations (27 CFR 4, 5, and 7) prescribe the labeling requirements for wines, distilled spirits, and malt beverages, respectively. Prior to January 24, 2003, the Secretary of the Treasury had delegated this responsibility to the Administrator's predecessor, the Director of the former Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury (ATF-Treasury). The regulations requiring basic mandatory labeling information for alcohol beverage products have been in effect for over 50 years.

On November 23, 1977, President Carter signed into law the Saccharin Study and Labeling Act, Public Law 95-203, 91 Stat. 1451. Section 4(a)(1) of the Saccharin Study and Labeling Act added paragraph (o) to 21 U.S.C. 343, requiring the following statement on the labels of all food and beverage products that contained saccharin:

In 1984 and 1985, ATF-Treasury began receiving petitions from industry members requesting to use saccharin as a sugar substitute in alcohol beverage manufacturing. The Food and Drug Administration regulations, 21 CFR 180.37 (21 U.S.C. 348, 371), did not and still do not preclude the use of saccharin in the production of alcohol beverages. In recognition of the congressional mandate as expressed in the Saccharin Study and Labeling Act and pursuant to section 205(e)(2) of the Federal Alcohol Administration Act, ATF-Treasury published Treasury Decision ATF-220 on December 20, 1985 at 50 FR 51851 (as corrected in 51 FR 4338, published February 4, 1986).

Treasury Decision ATF-220 amended the regulations in 27 CFR parts 4, 5, and 7 to require bottlers of alcohol beverage products containing saccharin (including sodium saccharin, calcium saccharin and ammonium saccharin) to label their products with a health warning statement identical to that set forth in the Saccharin Study and Labeling Act.

On May 15, 2000, the U.S. Department of Health and Human Services, Public Health Service, National Toxicology Program published the 9th Report on Carcinogens. The Report delisted saccharin, which had been listed in the Report as “reasonably anticipated to be a human carcinogen” since 1981. The Report explained that saccharin was removed from the list after a review of the carcinogenicity data for saccharin. The Report concluded:

Section 517, Title V, Appendix A, Consolidated Appropriations Act of 2001 (Pub. L. 106-554, 114 Stat. 2763), repealed 21 U.S.C. 343(o), the saccharin warning statement requirement, as well as subsections (c) and (d) of section 4 of the Saccharin Study and Labeling Act. Accordingly, we are amending 27 CFR parts 4, 5, and 7 by removing the saccharin warning statement requirement for the labeling of wine, distilled spirits, and malt beverages. These regulatory changes are made solely to reflect the statutory change noted above, and are in no way intended to reflect or prejudice our review of a recent petition we have received, proposing a number of new and broader labeling requirements.

Because the regulatory changes in this document remove a requirement imposed by the Saccharin Study and Labeling Act, which was repealed, TTB has determined it is impractical and unnecessary to issue these regulations with prior public notice and comment procedures under 5 U.S.C. 553(b) or subject to the effective date limitation in section 553(d).

This final rule does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866. Accordingly, this final rule is not subject to the analysis required by this Executive Order.

The provisions of the Regulatory Flexibility Act relating to an initial and final regulatory flexibility analysis (5 U.S.C. 603, 604) do not apply to this final rule because no notice of proposed rulemaking is required by 5 U.S.C. 553(b).

The provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(j)) and its implementing regulations, 5 CFR part 1320, do not apply to this final rule because no requirement to collect information is imposed.

The principal author of this document is Lisa M. Gesser, Regulations and Procedures Division, Alcohol and Tobacco Tax and Trade Bureau.

Privacy Act: Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc. ). You may review the Department of Transportation's Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov.

The Coast Guard received two general comments from the public. One commenter expressed concern with the short submission time for the application of the Continuous Synopsis Record. The Coast Guard recognizes the difficult timelines for compliance with the requirements for the International Ship and Port Facility Security (ISPS) Code. The Coast Guard Marine Safety Center has identified through all practical means those vessels subject to International Convention for the Safety of Life at Sea, 1974 as amended (SOLAS) requiring International Ship Security Certificates (ISSCs) and Continuous Synopsis Records (CSRs) to be onboard prior to July 1, 2004. These vessels are receiving priority scheduling at each step of the process. We have instituted a concurrent issue process for ISSCs and initial CSRs to enable Coast Guard field units to deliver both documents upon satisfactory completion of the onboard verification exam. Upon receipt of an approval letter for their vessel security plan, owners and operators are strongly encouraged to coordinate closely with their local Officer in Charge, Marine Inspection (OCMI) and the Continuous Synopsis Record Desk (CSR Desk) without delay to ensure timely onboard verification and document issuance.

The other comment stated that there was possible confusion regarding what vessels are required to carry an ISSC and a CSR. The requirements of the ISPS Code, including ISSCs and CSRs, are applicable to those vessels identified in Chapter I of SOLAS, which defines cargo ships as “any ship which is not a passenger ship” and specifically exempts “cargo ships of less than 500 gross tonnage” and “ships not propelled by mechanical means.” Some members of the maritime community have confused the requirements of the ISPS Code with the requirements of the Maritime Transportation Security Act of 2002 (MTSA). While the ISPS Code and the MTSA closely parallel one another, there are several instances where they diverge considerably. Among them are applicability, and the requirements for documents such as ISSC and CSR. Barges or non self-propelled vessels are not subject to SOLAS, and therefore do not have to carry a CSR.

We received some requests from the public and industry to clarify certain wording in the Notice of Availability that was published in the Federal Register February 17, 2004 (69 FR 9206). The following clarifications are provided to assist both the public and pertinent implementation and compliance agencies, including the Coast Guard.

“Gross Tonnage,” means the gross tonnage measurement of the vessel under 46 U.S.C. chapter 143 Convention measurement (referring to International Convention on Tonnage Measurement of Ships, 1969, also known as ITC). This parameter is also described as “GT” or “GT ITC”. It follows that any wording that refers to “tons” should be read as “tonnage.” Also, in accordance with SOLAS definitions, the way to refer to a passenger vessel's applicability requirement, shall read “more than 12 passengers” instead of “12 or more passengers.”

Furthermore, some definitions were mentioned in the notice and were provided as a ready source of information. The Coast Guard has found that they might be a potential source of confusion as it could be interpreted that these definitions are new or revised definitions of existing terms. To clarify this, the intent of this notice is to adhere to the existing definitions as defined in the Maritime Transportation Security Act of 2002 (MTSA) and SOLAS. These definitions are already clearly defined and are applicable for the CSR Notice of Availability.

This notice calls for no new collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The CSR notice published on February 27, 2004 [USCG-2004-17086; 69 FR 9206], proposed modifications to two existing OMB-approved collections of information-1625-0002 (formerly 2115-0007) and 1625-0017 (formerly 2115-0056). The February 27, 2004, CSR notice stated that—

• Certain vessels are required to carry onboard a CSR by the solas chapter XI-1;

• This requires information to be provided, by the public, to the coast guard; and

• These reporting and recordkeeping requirements are a collection of information.

The Coast Guard did not receive any collection-of-information-related comments to the February 27, 2004 (69 FR 9206), document. We received approval from OMB on April 2, 2004, and April 23, 2004, for collections 1625-0002 (form CG-6039, Application for Continuous Synopsis Record) and 1625-0017 (form CG-6038A, Amendments to the CSR and Index of Amendments to the CSR) respectively. As these collections were approved on an “emergency” basis, they are scheduled to expire on August 31, 2004. When this document is published, we will resubmit these collections to OMB for three-year approval. You are not required to respond to a collection of information unless it displays a currently valid OMB control number.

In a document published in the Federal Register on July 31, 2003 (68 FR 44913) VA published a proposed rule amending VA's medical regulations at 38 CFR Part 17 to allow veterans in receipt of a Purple Heart to receive sensori-neural aids. VA provided a 60-day comment period that ended on September 29, 2003. VA received one comment, in which the commenter expressed support for the amended regulation. No changes are made based on this comment.

Based on the rationale set forth in the proposed rule and this document, VA is adopting the provisions of the proposed rule as a final rule without change. The authority for the rule has been revised because Congress changed the authority for the regulation.

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any given year. This final rule would have no such effect on State, local, or tribal governments, or the private sector.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

The Secretary of Veterans Affairs (VA) hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This amendment will affect only veterans receiving certain VA benefits and does not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance numbers for the programs affected by this document are 64.005, 64.007, 64.008, 64.009, 64.010, 64.011, 64.012, 64.013, 64.014, 64.015, 64.016, 64.018, 64.019, 64.022, and 64.025.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS 111)

• Animal production (NAICS 112)

• Food manufacturing (NAICS 311)

• Pesticide manufacturing (NAICS 32532)

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET (http://www.epa.gov/edocket/) , you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available on E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

In the Federal Register of June 13, 2003 (68 FR 35349) (FRL-7309-7), EPA issued a proposed rule under section 408(e) of the FFDCA, 21 U.S.C. 346a, as amended by the Food Quality Protection Act (FQPA) (Public Law 104-170). The Agency proposed to establish exemptions from the requirement of a tolerance for residues of humic acid (CAS No. 1415-93-6); humic acid, sodium salt (CAS No. 68131-04-4); and humic acid, potassium salt (CAS No. 68514-28-3) in 40 CFR 180.1001(d).

No comments were received via EPA's electronic public docket. However, a staff member of the Washington State Department of Agricultural sent a comment directly to the Agency's contact via email. The staff member asked why the exemptions for the humate materials were being created under 40 CFR 180.1001(d) instead of 40 CFR 180.950. The commenter indicated his belief that an exemption under 40 CFR 180.950 would be a more logical choice for humate materials.

In response to this comment, the Agency's Lower Risk Pesticide Chemical Focus Group evaluated humic acid, and its sodium and potassium salts to determine the appropriateness of a List 4A classification for these materials. Given that humate materials are naturally occurring materials, and essentially a component of dirt, classification as List 4A is consistent with previous List classifications on other “weathered” materials. Tolerance exemptions for List 4A materials such as humic acid (CAS No. 1415-93-6); humic acid, sodium salt (CAS No. 68131-04-4); and humic acid, potassium salt (CAS No. 68514-28-3) are established in 40 CFR 180.950.

Based on the reasons set forth in the preamble to the proposed rule, and considering the comment received by the Agency in response to the proposed rule, EPA is establishing three new tolerance exemptions for humic acid (CAS No. 1415-93-6); humic acid, sodium salt (CAS No. 68131-04-4); and humic acid, potassium salt (CAS No. 68514-28-3).

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) of the FFDCA provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d) of the FFDCA, as was provided in the old FFDCA sections 408 and 409 of the FFDCA. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number OPP-2004-0166 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before August 16, 2004.

1. Filing the request . Your objection must specify the specific provisions in the regulation that you object to, and the grounds for the objections (40 CFR 178.25). If a hearing is requested, the objections must include a statement of the factual issues(s) on which a hearing is requested, the requestor's contentions on such issues, and a summary of any evidence relied upon by the objector (40 CFR 178.27). Information submitted in connection with an objection or hearing request may be claimed confidential by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. A copy of the information that does not contain CBI must be submitted for inclusion in the public record. Information not marked confidential may be disclosed publicly by EPA without prior notice.

Mail your written request to: Office of the Hearing Clerk (1900L), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 2046-0001. You may also deliver your request to the Office of the Hearing Clerk in Suite 350, 1099 14 th St., NW., Washington, DC 20005. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 564-6255.

2. Tolerance fee payment . If you file an objection or request a hearing, you must also pay the fee prescribed by 40 CFR 180.33(i) or request a waiver of that fee pursuant to 40 CFR 180.33(m). You must mail the fee to: EPA Headquarters Accounting Operations Branch, Office of Pesticide Programs, P.O. Box 360277M, Pittsburgh, PA 15251. Please identify the fee submission by labeling it “Tolerance Petition Fees.”

EPA is authorized to waive any fee requirement “when in the judgement of the Administrator such a waiver or refund is equitable and not contrary to the purpose of this subsection.” For additional information regarding the waiver of these fees, you may contact James Tompkins by phone at (703) 305-5697, by e-mail at tompkins.jim@epa.gov , or by mailing a request for information to Mr. Tompkins at Registration Division (7505C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

If you would like to request a waiver of the tolerance objection fees, you must mail your request for such a waiver to: James Hollins, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001.

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in ADDRESSES . Mail your copies, identified by docket ID number OPP-2004-0166, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. In person or by courier, bring a copy to the location of the PIRIB described in ADDRESSES . You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov . Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

A request for a hearing will be granted if the Administrator determines that the material submitted shows the following: There is a genuine and substantial issue of fact; there is a reasonable possibility that available evidence identified by the requestor would, if established resolve one or more of such issues in favor of the requestor, taking into account uncontested claims or facts to the contrary; and resolution of the factual issues(s) in the manner sought by the requestor would be adequate to justify the action requested (40 CFR 178.32).

This final rule establishes an exemption from the tolerance requirement under section 408(d) of the FFDCA. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq ., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Because this action will not have an adverse impact on small business, I certify, under the Regulatory Flexibility Act (5 U.S.C. 601 et seq .), that this action will not have a significant economic impact on a substantial number of small entities. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of section 408(n)(4) of the FFDCA. For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

The Agency included in the final rule a list of those who may be potentially affected by this action. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

1. Docket . EPA has established an official public docket for this action under docket identification (ID) number OPP-2003-0373. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. Although a part of the official docket, the public docket does not include Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. The official public docket is the collection of materials that is available for public viewing at the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA. This docket facility is open from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The docket telephone number is (703) 305-5805

2. Electronic access . You may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 180 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr .

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket ID number.

In the Federal Register of January 23, 2004 (69 FR 3240) (FRL-7342-1), EPA published a final rule that established tolerances for residues of sulfuryl fluoride and inorganic fluoride from postharvst fumigation uses of sulfuryl fluoride in or on stored commodities. In the regulatory text of the document, the tolerance level for “wheat, grain, postharvest” was inadvertently listed as “40.04” in § 180.145(a)(3). The correct tolerance level is “40.0”. This document corrects that typographical error.

Section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an Agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a final rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's technical correction final without prior proposal and opportunity for comment, because EPA is merely correcting a typographical error in a previously published final rule. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).

This final rule implements a technical amendment to the Code of Federal Regulations which has no substantive impact on the undelying regulations, and it does not otherwise impose or amend any requirements. As such, the Office of Management and Budget (OMB) has determined that a technical amendment is not a “significant regulatory action” subject to review by OMB under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Because this rule has been exempted from review under Executive Order 12866 due to its lack of significance, this rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since the action does not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq .) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this rule does not have any “tribal implications” as described in Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” This rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

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

The Federal Communications Commission published a document proposing to amend parts 0 and 15 in the Federal Register of May 24, 2004 (69 FR 29459). This document corrects the Federal Register as it appeared. In FR Doc. 04-11537, published on May 24, 2004 (69 FR 29459), the Commission is correcting § 0.457 (d)(1)(vii), to read as § 0.457 (d)(1)(vi). In rule FR Doc. 04-11537 published on May 24, 2004 (69 FR 29459), the Commission is correcting § 0.457 (d)(1)(vii), to read as § 0.457 (d)(1)(vi),:

On page 29464, in the first column, the paragraph designation is corrected to read as § 0.457 (d)(1)(vi).

Regulations governing the Loligo squid fishery are found at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch, domestic annual harvest (DAH), domestic annual processing, joint venture processing and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan. The procedures for setting the annual initial specifications are described in § 648.21.

The 2004 specification of DAH for Loligo squid was set at 16,872.4 mt (69 FR 4861, February 2, 2004). This amount is allocated by quarter, as shown below.

Section 648.22 requires NMFS to close the directed Loligo squid fishery in the EEZ when 80 percent of the quarterly allocation is harvested in Quarters I, II and III, and when 95 percent of the total annual DAH has been harvested. NMFS is further required to notify, in advance of the closure, the Executive Directors of the Mid-Atlantic, New England, and South Atlantic Fishery Management Councils; mail notification of the closure to all holders of Loligo squid permits at least 72 hours before the effective date of the closure; provide adequate notice of the closure to recreational participants in the fishery; and publish notification of the closure in the Federal Register . The Administrator, Northeast Region, NMFS, based on dealer reports and other available information, has determined that 80 percent of the DAH for Loligo squid in Quarter II will be harvested. Therefore, effective 0001 hours, June 19, 2004, the directed fishery for Loligo squid is closed and vessels issued Federal permits for Loligo squid may not retain or land more than 2,500 lb (1.13 mt) of Loligo . Such vessels may not land more than 2,500 lb (1.13 mt) of Loligo during a calendar day. The directed fishery will reopen effective 0001 hours, July 1, 2004, when the Quarter III quota becomes available.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS manages the U.S. groundfish fisheries of the Gulf of Alaska (GOA) and the Bering Sea and Aleutian Islands management area (BSAI) in the Exclusive Economic Zone off Alaska under the FMPs. The North Pacific Fishery Management Council (Council) prepared the FMPs pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMPs appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600.

The Council adopted and NMFS approved and implemented the Interim Groundfish Observer Program in 1996 (61 FR 56425, November 1, 1996). Regulations implementing the Observer Program provide the regulatory framework for the collection of data by observers to obtain information necessary for the conservation and management of the groundfish fisheries managed under the FMPs. Further, the regulations authorize mandatory observer coverage requirements for vessels and shoreside processors and establish vessel, processor, and observer provider responsibilities relating to the Observer Program.

A final rule to amend regulations governing the Observer Program was published in the Federal Register on December 6, 2002 (67 FR 72595). The intent of the final rule was to: (1) extend the applicability period of the regulations which would have otherwise expired on December 31, 2002; (2) clarify and improve observer certification and decertification processes; (3) change the duties and responsibilities of observers and observer providers to eliminate ambiguities and strengthen regulations; and (4) grant NMFS the authority to place NMFS staff and other qualified persons aboard vessels and at shoreside or stationary floating processors to increase NMFS' ability to interact effectively with observers, fishermen, and processor employees.

Subsequent to the publication of the December 6, 2002 (67 FR 72595) final rule in the Federal Register , NMFS staff discovered several errors in 50 CFR part 679. This correcting amendment corrects those errors in the CFR by updating terminology and cross references, removing redundant text, and consolidating some paragraphs for additional clarity and consistency. The following amendments are technical and non-substantive in nature and have no relationship to compliance by the public. For these reasons, prior notice and comment are unnecessary and NOAA is proceeding to this final rule to effectuate the correcting amendment to the regulations.

In § 679.1(f), the date of “December 31, 2002” is changed to “December 31, 2007” to reflect the current expiration date of the regulations governing the Observer Program.

Currently, observers must successfully complete a “briefing” prior to their deployment and receive an endorsement which reflects the type of briefing they completed. This rule amends section 679.2 by changing the word “certification” to “endorsement” within the definition of “Briefing” for consistency with current terminology elsewhere in the regulations.

Also in § 679.2, the definitions of “Affiliates,” “Decertification,” “Direct financial interest” and “Suspension” contain the terms “observer contractor” or “observer contractors.” This term, “observer contractor,” was changed to “observer provider,” which is defined elsewhere in § 679.2. This action removes this term “observer contractor” and replaces it with “observer provider” for consistency with other text in 50 CFR 679.

In § 679.50(i)(2)(ii), the colon after the end of the paragraph title is replaced with a period.

In § 679.50(i)(2)(i)(C)( 4 ), the reference to (i)(2)(ix)(C) is removed and replaced with (i)(2)(x)(C).

In § 679.50(i)(2)(ii)(A), the reference to (i)(2)(ix)(E) is removed and replaced with (i)(2)(x)(E).

In § 679.50(i)(2)(iii)(B), the reference to (i)(2)(ix)(C) is removed and replaced with (i)(2)(x)(C).

The last sentence at § 679.50(i)(2)(vi)(E) which reads, “Unless alternate arrangements are approved by the Observer Program Office,” is redundant with the first line of the next paragraph. The provision is restated for no particular reason. This final rule removes this redundant text from (i)(2)(vi)(E).

The term “Stationary floating processor” is defined at § 679.2. Regulations at § 679.50(i)(2)(vii)(D), (i)(2)(ix), (i)(3)(i)(A), (i)(3)(i)(B), (i)(3)(i)(C), (i)(3)(ii), (j)(2)(i)(A)( 1 )( i ), (j)(2)(i)(A)( 1 )( ii ), and (j)(2)(i)(A)( 1 )( iii ) use terminology which is inconsistent with this definition, including “floating stationary processors,” “floating stationary processing facility,” “floating stationary processor facility,” “floating processor facilities,” and “floating processor.” For consistency within the regulations, this final rule removes these terms and replaces them with “stationary floating processor” or “stationary floating processors.”

The title to § 679.50(i)(2)(x)(G) is revised to read “Observer provider contracts” to better characterize the contents of the paragraph, consistent with other paragraphs in this section. The title to paragraph (i)(2)(x)(I) was inadvertently omitted. This final rule also adds the title “Other reports” to paragraph (i)(2)(x)(I) for consistency with other paragraphs in this section.

Observer coverage requirements for vessels are specified at § 679.50(c) and for shoreside or stationary floating processors at § 679.50(d). Regulations at § 679.50(i)(2)(x)(G)( 1 ) and (i)(2)(x)(G)( 2 ) together reference all of the observer coverage requirements for vessels at § 679.50(c). This final rule removes cross references in § 679.50(i)(2)(x)(G)( 1 ) to (c)(1)(i) and (c)(1)(iv) and replaces them with a cross reference to § 679.50(c). Paragraph § 679.50(i)(2)(x)(G)( 2 ) is removed because a similar change for that paragraph would make it redundant with paragraph (i)(2)(x)(G)( 1 ). Regulations at § 679.50(i)(2)(x)(G)( 3 ) and (i)(2)(x)(G)( 4 ) together reference the observer coverage requirements for shoreside processors or stationary floating processors at § 679.50(d). This final rule removes cross references in § 679.50(i)(2)(x)(G)( 3 ) to (d)(1), replaces it with a cross reference to § 679.50(d), and redesignates it as paragraph (i)(2)(x)(G)( 2 ). Paragraph § 679.50(i)(2)(x)(G)( 4 ) is removed because a similar change for that paragraph, that is, replacing the reference to (d)(2) with § 679.50(d), would make it redundant with paragraph (i)(2)(x)(G)( 3 ). Finally, § 679.50(i)(2)(x)(G)( 5 ) is redesignated as (i)(2)(x)(G)( 3 ).

This final rule corrects a cross reference in § 679.50(i)(2)(x)(I)( 5 ) by removing the text “(h)(2)(i) and (h)(2)(ii)” and replacing it with the text “(j)(2)(i) and (j)(2)(ii)”.

Last, this final rule corrects the numbering at § 679.50(j)(2)(i)(A)( 3 ) and redesignates the paragraph as (j)(2)(i)(A)( 3 ).

The Administrator, Alaska Region, NMFS (Regional Administrator), has determined that this final rule is necessary for the conservation and management of the groundfish fisheries of the BSAI and GOA. The Regional Administrator also has determined that this final rule is consistent with the Magnuson-Stevens Act and other applicable laws.

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

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator of Fisheries, NOAA (AA) finds good cause to waive prior notice and opportunity for public comment otherwise required by the section. NOAA finds that prior notice and comment are unnecessary as this rule has a non-substantive effect on the public. This correcting amendment updates terminology, corrects cross references to other regulatory text, removes redundant text, and consolidates some paragraphs for additional clarity and consistency. NOAA finds that because of the non-substantive nature of the correction, no particular public interest exists in this final rule for which there is justification or need for prior notice and comment.

Because this correcting amendment does not institute any substantive obligations for the public, the requirement for a 30-day delay in the effective date to this action pursuant to 5 U.S.C. 553(d) does not apply.

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