The Federal Meat Inspection Act (21 U.S.C. 601 et seq. ) and the Poultry Products Inspection Act (21 U.S.C. 451 et seq. ) authorize the Secretary of Agriculture to establish and maintain inspection programs designed to assure consumers that meat and poultry products distributed in commerce are wholesome, not adulterated, and properly marked, labeled, and packaged. FSIS regulates the labeling of meat and poultry products, and FDA has responsibility for all other food labeling.

In January of 1993, FSIS and FDA published their final rules on nutrition labeling. Both agencies amended their respective regulations to (1) Require either mandatory or voluntary nutrition labeling on most of the food products they regulate; (2) revise the list of required nutrients and food components; (3) specify a new format for declaring the nutrients and food components in nutrition labeling; (4) permit specific products to be exempt from nutrition labeling; (5) establish RACCs specific for food categories; and (6) prescribe a simplified form of nutrition labeling and the conditions under which such labeling may be used.

In order for persons to use the nutrition information to construct healthy diets that include products from across the food supply, the two agencies recognized that the regulations need to be as consistent as possible. There was overwhelming support for FSIS to proceed with the adoption of FDA-defined nutrient content claims, including adopting a constant value of 100 grams for comparison of nutrient content claims on meal-type products. As a result, both agencies issued regulations establishing, as nearly uniform as possible, definitions for nutrient content claims to allow consumers to make valid comparisons among food product categories.

In addition, the agencies participated in the Interagency Committee on Serving Sizes to jointly establish the RACCs for foods and the criteria for converting RACCs to serving sizes in common household measures. The final FSIS rule, among other things, established RACCs for 23 meat (9 CFR 317.312(b)) and 22 poultry product categories (9 CFR 381.412(b)). These RACCs were calculated to reflect the amount of food, including snacks, dinners, and condiments, that persons four years of age and older customarily consume. These calculations were based on consumption survey data and on data used by food manufacturers and grocers. RACCs are designed to be used by food companies as the basis for determining the serving sizes for nutrition labeling of their products.

Nutrient content claims for both FDA and FSIS are composed of two defined parts: The amount (weight) of the nutrient and the amount (generally a serving) of food in which the nutrient is found. If the food is considered to be an individual food, the amount of food (a serving) is represented as the RACC for the food category. If the food is a meal-type product, the amount of food is measured by weight, i.e. , 100 grams. If a “low-fat” or “healthy” claim is used, the amount of fat is limited to a maximum of 3 grams per RACC for individual foods and 3 grams per 100 grams of product for meal-type products.

However, FSIS and FDA have established different criteria for what constitutes a meal. FSIS defined a “meal-type” product (9 CFR 317.313(l) and 381.413(l)) as a product for consumption by one person on one eating occasion that constitutes the major portion of a meal. For purposes of making a nutrition claim, a meal-type product must (1) make a significant contribution to the diet by weighing at least 6 ounces, but no more than 12 ounces per serving (container); (2) contain ingredients from two or more food groups, depending on the weight of the product; and (3) represent, or be in a form commonly understood to be, a meal (breakfast, dinner, etc). In addition, the serving size for meal-type products is defined as the entire content (edible portion only) of the package, i.e. , single-serve container.

FDA defined a “meal-type” product (21 CFR 101.13(l)) for the purpose of making a claim as a product that makes a major contribution to the total diet by (1) weighing at least 10 ounces per labeled serving; (2) containing not less than three 40-gram portions of food or combinations of foods from two or more of the four food groups; and (3) representing, or being in a form commonly understood to be, a meal (breakfast, dinner, etc). FDA's regulations do not restrict the use of the meal-type product claims to single-serve containers.

FDA also defined a “main-dish” product (21 CFR 101.13(m)) for the purpose of making a claim as a food that makes a major contribution to the meal by (1) weighing at least 6 ounces per labeled serving; (2) containing not less than 40 grams of food, or combinations of foods from at least two of four food groups; and (3) representing, or being in the form commonly understood to be, a main dish ( i.e. , not a beverage or dessert). FSIS regulations do not define a “main-dish” product.

FSIS' and FDA's rationale for allowing different criteria to serve as the basis for evaluating nutrient content claims on meal-type products versus other types of foods is that meal-type products have potentially large variations in amounts customarily consumed, and the average serving size would not be an appropriate basis for comparison of nutrients. Rather, a constant value of 100 grams was determined to be an appropriate basis. FSIS further reasoned that restricting this category to a single-serving criterion and requiring that products within the category be represented as a meal would adequately distinguish these products from other similarly formulated products.

In September 1998, ConAgra petitioned FSIS to amend the definition of “meal-type” products in its regulations to allow nutrient content claims on multi-serve food containers based on the same criteria as for meals that are sold in single-serving containers. Specifically, the petitioner sought an amendment of the definition of “meal” (9 CFR 317.313(l)) to include product in multiple-serving containers in the general principles (9 CFR 317.313) and the “healthy” regulations (9 CFR 317.363). FSIS' initial response was that the few changes requested by the petitioner would not be sufficient to address all of the issues and amend the regulations so that manufacturers can make consistent nutrition content claims on multi-serve containers. FSIS requested that the petitioner provide additional data to justify the changes it was seeking and clearly state the need for consistent definitions for main-dish and meal-type products that do not compromise the established RACCs for food products and that are consistent with the intent of the NLEA.

In 2001, FSIS concluded that more conclusive data submitted by the petitioner indicated that there was a market for multi-serve meals that did not exist in 1993 when the nutrition labeling regulations were issued. Because of the increasing popularity of multi-serve meals and evidence that a significant number of consumers were purchasing such meals, FSIS said it was prepared to consider changing the regulatory definition of “meal-type” products and allowing nutrient content claims based on a 100 gram criterion as long as there are no established RACCs for the food product category in question. It also said that consistency in nutrient content claims and criteria for RACCs for all meat and poultry products must be maintained in accordance with the regulations. The Agency noted that if Federal regulations regarding the basis on which nutrient content claims are made are modified for consistency, FSIS and FDA need identical definitions for what constitutes a meal and a main-dish product. FSIS granted the petition in September 2001. The petition and supporting documentation are available in the FSIS Docket Room ( see ADDRESSES ) and on the FSIS Web site at http://www.fsis.usda.gov.

The proposed rule was published in the Federal Register on April 16, 2003 (68 FR 18560-65). The public comment period of the proposed rule closed on June 16, 2003. Four comments were received. All of the respondents supported the proposal because it increased the regulatory consistency between FSIS and FDA on nutrient content claims, and it would benefit consumers by permitting them to choose from more healthy food options.

Several respondents commented that, with this change, FSIS has positioned meat and poultry meals as being as nutritious as similar products regulated by FDA. The commenters further stated that the FSIS regulations will no longer promote the idea of good versus bad foods, and that the change will eliminate nutrient content claims based on the packaging format instead of the product formulation.

While it is true that some consumers tend to infer that multi-serve and other products are nutritionally inferior if they lack the claims that other products have, FSIS has never promoted a good food/bad food policy.

The commenters asserted that the change will be an incentive for manufacturers to provide more low-fat or healthy meal options. FSIS agrees. In addition, the consistency in the nutrient claim criteria will benefit consumers by providing them with additional tools and guidance for adhering to a low-fat diet at a more favorable cost.

We are adopting the proposed rule as final but are making some minor editorial changes to conform the existing regulations with this final rule. In addition, although discussed in the preamble of the proposed rule, the definition of “main-dish” was inadvertently omitted in the regulatory changes of the proposed rule to Part 317 of the meat regulations (but was included in Part 381 of the proposed rule's regulatory changes to the poultry regulations). In the final rule, paragraph (m) of section 317.383 of the meat regulations contains the definition of main-dish.

No significant cost impact is seen as a result of this final rule. All costs would be borne by industry, which petitioned for the change. The only labels that would be affected would be those of multi-serve, meal-type products above 6 ounces that would be able to bear nutrient content claims. The Agency believes that no more than 300 products currently on the market will be affected by the change. Therefore, the expected additional labeling costs would be nominal for the industry.

A more consistent format across similar food products will be of benefit to consumers, who will be able to make more informed choices in their food purchases. Consumers report that they are experiencing some confusion about how some food products are labeled, and why some packages bear claims specifying the nutrient content of the product and others do not.

The final rule will provide consumers of meat and poultry products with consistency in nutrition labeling with FDA's requirements by amending § 317.309 and the parallel poultry regulations at § 381.409 to provide for the nutrition labeling of multi-serve meal-type products and of main-dish products. The final rule also will amend § 317.313(l) and § 317.313(m) and the parallel poultry regulations at § 381.413(l) and § 381.413(m) by revising the definitions of a “meal-type” product and adding a “main-dish” product for the purpose of making a claim on the packaging of the food products. In addition, this rule will amend the individual nutrient content claim regulations for both meat and poultry products at 9 CFR 317.313(l) and (m) and 9 CFR §§ 381.413 (l) and (m).

FSIS' paramount objectives in considering this modification of its nutrition labeling regulations were that the changes not undermine the basic principles or intent of the misbranding provisions of the Federal Meat Inspection Act and the Poultry Products Inspection Act, and that such modifications would result in labels that would not mislead consumers or create unfair marketing advantages for any segment of the food industry. The Agency also was concerned about extending the use of the 100-gram criterion for nutrient content claims to include products not in single-serve containers. Although useful, the 100-gram criterion does not provide nutrient information to consumers that is as definitive as the amount of nutrient per RACC.

However, in the interests of maintaining consistency between FSIS and FDA and of providing incentives to industry to develop more less-caloric yet economical meals and main dish products in multi-serve containers that would qualify for nutrient content claims, FSIS is making changes in its nutrition labeling regulations. The Agency believes that consumers will benefit from the information on the containers of products that were formulated to qualify to bear such claims.

This final rule has been determined to be not economically significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. FSIS is responding to an industry petition for a labeling change affecting approximately 300 food products.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. When this rule becomes final: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

The Administrator, FSIS, has made a determination that this final rule will not have a significant economic impact on a substantial number of small entities. This rule will change the definition of “meal-type” products to allow for nutrient content claims based on 100 grams of product on multi-serve food containers and adopt FDA's definition of “main-dish” products; however, it will not require anyone to change their labeling.

This rule has been reviewed under the Paperwork Reduction Act and imposes no new paperwork or recordkeeping requirements.

Public awareness of all segments of rulemaking and policy development is important. Consequently, in an effort to ensure that the public and in particular minorities, women, and persons with disabilities, are aware of this final rule, FSIS will announce it on-line through the FSIS Web page located at http://www.fsis.usda.gov.

The Regulations.gov website is the central online rulemaking portal of the United States government. It is being offered as a public service to increase participation in the Federal government's regulatory activities. FSIS participates in Regulations.gov and will accept comments on documents published on the site. The site allows visitors to search by keyword or Department or Agency for rulemakings that allow for public comment. Each entry provides a quick link to a comment form so that visitors can type in their comments and submit them to FSIS. The Web site is located at http://www.regulations.gov.

FSIS also will make copies of this Federal Register publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and other types of information that could affect or would be of interest to our constituents and stakeholders. The update is communicated via Listserv, a free e-mail subscription service consisting of industry, trade, and farm groups, consumer interest groups, allied health professionals, scientific professionals, and other individuals who have requested to be included. The update also is available on the FSIS web page. Through Listserv and the web page, FSIS is able to provide information to a much broader, more diverse audience.

On January 7, 2004 (69 FR 879), the NRC published a proposed rule to amend 10 CFR Part 50, “Domestic Licensing of Production and Utilization Facilities.” The proposed rule presented revised requirements for construction, inservice inspection (ISI), and inservice testing (IST) of nuclear power plant components for public comment. For construction, the proposed rule would have permitted the use of Section III, Division 1, of the ASME BPV Code, 2001 Edition and the 2002 and 2003 Addenda for Class 1, Class 2, and Class 3 components with one new modification.

For ISI, the proposed rule would have permitted the use of Section XI, Division 1, of the ASME BPV Code, 2001 Edition and the 2002 and 2003 Addenda for Class 1, Class 2, Class 3, Class MC, and Class CC components with new modifications and limitations.

For IST, the proposed rule would have permitted the use of the ASME OM Code, 2001 Edition and the 2002 and 2003 Addenda for Class 1, Class 2, and Class 3 pumps and valves with no new modifications or limitations.

Fifty-five comments on the proposed rule were received from utilities, service organizations, and individuals. In response to the public comments, the NRC has either removed or revised some modifications and limitations that were proposed. A summary of the public comments applicable to the proposed rule and their resolution are provided in the following sections.

The NRC has considered and resolved the public comments and incorporated changes into the final rule. The NRC is publishing the final rule in § 50.55a to incorporate by reference the 2001 Edition and the 2002 and 2003 Addenda of Division 1 rules of Section III of the ASME BPV Code; the 2001 Edition and the 2002 and 2003 Addenda of Division 1 rules of Section XI of the ASME BPV Code; and the 2001 Edition and the 2002 and 2003 Addenda of the ASME OM Code for construction, ISI, and IST of components in nuclear power plants. The 2001 Edition and the 2002 and 2003 Addenda of Sections III and XI of the ASME BPV Code are acceptable for use subject to limitations and modifications. The 2001 Edition and the 2002 and 2003 Addenda of the ASME OM Code is acceptable for use with no new limitations or modifications.

The proposed rule would have revised § 50.55a(b)(1) to incorporate by reference the 2001 Edition and the 2002 and 2003 Addenda of Division 1 of Section III of the ASME BPV Code subject to modifications and limitations. Accordingly, the existing modification and limitation for weld leg dimensions and independence of inspection in §§ 50.55a(b)(1)(ii) and 50.55a(b)(1)(v), respectively, would continue to apply when using the 2001 Edition through 2003 Addenda of Section III, Division 1, of the ASME BPV Code. The existing modification and limitation in §§ 50.55a(b)(1)(ii) and 50.55a(b)(1)(v) would continue to apply to the 2001 Edition through 2003 Addenda of Section III because the earlier Code provisions on which these regulations are based were not revised in the 2001 Edition through 2003 Addenda of Section III to address the underlying issues which led to the NRC to impose the modification and limitation. There were no public comments received on §§ 50.55a(b)(1) and 50.55a(b)(1)(v). Therefore, §§ 50.55a(b)(1) and 50.55a(b)(1)(v) are adopted without change in this final rule.

One commenter stated that the footnote to circumferential fillet welded and socket welded joints in Figures NC-3673.2(b)-1 and ND-3673.2(b)-1 of Section III was renumbered in the Code. The NRC agrees. Footnote 11 to Figures NC-3673.2(b)-1 and ND-3673.2(b)-1 is referenced in the existing regulation in § 50.55a(b)(1)(ii). Footnote 11 to Figures NC-3673.2(b)-1 and ND-3673.2(b)-1 was renumbered as Footnote 7 in the 1997 Addenda. Footnote 7 was renumbered as Footnote 11 in the 2000 Addenda. Footnote 11 was renumbered as Footnote 13 in the 2002 Addenda. Although the footnote was renumbered in the Code, the contents of the footnote have not been revised. In consideration of this public comment, the existing regulation in § 50.55a(b)(1)(ii) is revised in this final rule to reference the contents of the footnote instead of referencing the footnote number. The revised § 50.55a(b)(1)(ii) states that the footnote to circumferential fillet welded and socket welded joints in Figures NC-3673.2(b)-1 and ND-3673.2(b)-1 that permits a socket weld leg dimension to be less than 1.09 of the nominal wall thickness of the pipe is not approved for use when using the 1989 Addenda through 2003 Addenda of Section III. This revision does not change the requirements in a substantive manner.

The proposed rule would have revised the existing limitation for seismic design in § 50.55a(b)(1)(iii) to prohibit the use of Articles NB-3200, NB-3600, NC-3600, and ND-3600 when using the 1994 Addenda through 2000 Addenda of Section III. The proposed rule stated that the limitation in § 50.55a(b)(1)(iii) does not apply to the 2001 Edition through 2003 Addenda of Section III because the earlier Code provisions on which this regulation was based were revised in the 2001 Edition through 2003 Addenda of Section III to address a number of the underlying issues which led the NRC to impose the limitation on the ASME Code provisions. Section 50.55a(b)(1)(vi) in the proposed rule would have allowed use of these articles when using the 2001 Edition and 2002 and 2003 Addenda of Section III with certain limitations and modifications. However, in consideration of public comment, the revisions to § 50.55a(b)(1)(iii) and § 50.55a(b)(1)(vi) in the proposed rule are not adopted in this final rule.

Section 50.55a(b)(1)(vi) of the proposed rule would have permitted the use of the alternative method for evaluating reversing dynamic building filtered loads and seismic loads in the 2001 Edition and the 2002 and 2003 Addenda of Section III Division 1 of the ASME BPV Code subject to modifications and limitations. However, § 50.55a(b)(1)(vi)(A) of the proposed rule would have prohibited the use of the alternative method for evaluating reversing dynamic loads for piping subject to loads generated by reflected waves caused by flow transients in NB-3200, NB-3600, NC-3600, and ND-3600. In addition, § 50.55a(b)(1)(vi)(B) of the proposed rule would have prohibited the use of inelastic analyses for evaluating reversing dynamic loads in NB-3228.6. Also, § 50.55a(b)(1)(vi)(C) of the proposed rule would have provided an alternate Level B stress limit for reversing dynamic loads. Section 50.55a(b)(1)(vi)(D) of the proposed rule would have supplemented the requirements for the calculation of inertial moment. Section 50.55a(b)(1)(vi)(E) of the proposed rule would have prohibited the use of the B 2 ‘stress indices specified in ND-3655(b)(3) and would have required that the allowable B 2 ‘stress indices specified in NB-3656(b)(3) and NC-3655(b)(3) be used instead of the allowable B 2 ‘stress indices specified in ND-3655(b)(3). Section 50.55a(b)(1)(vi)(F) of the proposed rule would have allowed the use of an allowable stress limit of 6S M in the evaluation of the range of resultant moment only when it could be demonstrated that the global piping system response to the anchor movement does not create significant inelastic strain concentrations when using the provisions in NB-3656(b)(4), NC-3655(b)(4), and ND-3655(b)(4). S M is the design stress intensity limit for a material and is tabulated in Section II of the ASME Code. A demonstration that the anchor movement does not create significant inelastic strain concentrations would not have been required if an allowable stress limit of 3S M were used instead of 6S M in the evaluation of the range of resultant moment.

The NRC received a large number of public comments on the modifications and limitations in § 50.55a(b)(1)(vi). The public comments provided technical reasoning why the modifications and limitations in § 50.55a(b)(1)(vi) were unnecessary and recommended their deletion. For example, ASME submitted an 83 page position paper in response to the modifications and limitations in (b)(1)(vi) of the proposed rule. It should be noted that the NRC's concerns regarding the alternative method for evaluating reversing dynamic building filtered loads and seismic loads began with changes in the 1994 Addenda through 1996 Addenda and were discussed in an amendment to § 50.55a issued in September 1999 (64 FR 51370). The ASME formed a special working group to evaluate the NRC's concerns. Although the special working group resolved some the NRC's concerns, a few significant issues remain.

The ASME submittal also recommended that the NRC prohibit the use of the revised seismic design provisions in the 2001 Edition and the 2002 and 2003 Addenda of Section III at this time. The ASME stated that the NRC and ASME should resolve their technical differences over the modifications and limitations in § 50.55a(b)(1)(vi) before permitting the use of revised seismic design provisions in the 2001 Edition and 2002 and 2003 Addenda of Section III. The NRC agrees. This would allow the NRC to discuss the technical details including recent piping dynamic testing in a more comprehensive manner. In consideration of public comments, the revision to § 50.55a(b)(1)(iii) in the proposed rule and the modifications and limitations in § 50.55a(b)(1)(vi) in the proposed rule are not adopted in this final rule. The existing limitation for seismic design in § 50.55a(b)(1)(iii) is revised in this final rule to prohibit the use of Articles NB-3200, NB-3600, NC-3600, and ND-3600 when using the 1994 Addenda through 2003 Addenda of Section III.

Section 50.55a(b)(1)(vii) in the proposed rule would have prohibited the use of Subsection NH of the 2001 Edition through 2003 Addenda of Section III of the ASME BPV Code and would have withdrawn current approval of Subsection NH of the 1995 Addenda through 2000 Addenda of Section III of the ASME BPV Code. The scope of Subsection NH includes Class 1 components that function in water, steam, sodium, helium, or any other process fluid. The special design provisions in Subsection NH apply to Class 1 components that are required to function at elevated metal temperatures where creep and relaxation effects may be significant and for which the stress limits and design provisions in Subsection NB of Section III are not applicable. These stress limits and design provisions of Subsection NB are applicable only to service conditions where creep and relaxation effects do not exist. The proposed rule stated that the elevated temperature provisions in Subsection NH, applicable to certain Class 1 components in future advanced reactor designs such as liquid metal and high-temperature gas-cooled reactor designs, have not been reviewed by the NRC for technical adequacy because the design provisions in Subsection NH were thought not to be applicable to any currently operating nuclear power plant nor to any currently approved standard advanced light-water reactor plant design.

A commenter stated that prohibiting the use of Subsection NH because the NRC has not performed a technical review is not adequate justification. The commenter stated that the NRC should provide technical reasons why Subsection NH is not approved for use. The NRC disagrees and, with the exception of the application of Subsection NH to pressurizer heater sleeves constructed from Type 316 stainless steel, is unable to provide technical comments on Subsection NH at this time because it has not performed a comprehensive review of Subsection NH. A public comment on the proposed rule indicated that Subsection NH is used for the design and construction of pressurizer heater sleeves (a pressure boundary component). Accordingly, the NRC is approving the use of Subsection NH for this application. The maximum service condition for Type 316 stainless steel components that are designed and constructed in accordance with the currently approved provisions in Subsection NB is 800 °F because the reduction in material strength due to creep and relaxation effects are negligible at temperatures below 800 °F. Subsection NH provides specialized design and construction provisions when temperatures exceed 800 °F. The temperature of Type 316 stainless steel pressurizer heater sleeves reaches approximately 900 °F; therefore, Subsection NH is applicable. At 900 °F, creep and relaxation effects reduce the allowable stress at 800 °F by approximately 10 percent for Type 316 stainless steel. Therefore, a 100 °F increase in temperature above 800 °F does not significantly reduce the material strength of Type 316 stainless steel. The use of pressurizer heater sleeves constructed of Type 316 stainless steel is limited to only one type of reactor plant design in the United States. Pressurizer heater sleeves in other reactor plant designs are constructed of different materials and the temperature of the pressurizer heater sleeves in the other designs does not exceed 800 °F. Furthermore, many years operating experience indicate that pressurizer heater sleeves have not experienced creep and relaxation effects. Accordingly, the NRC concludes that the use of Subsection NH for Type 316 stainless steel pressurizer heater sleeves is technically acceptable and will provide reasonable assurance of adequate protection to public health and safety.

The NRC has not performed a full technical review of Subsection NH for other Class 1 components in future advanced reactor designs such as liquid metal and high-temperature gas-cooled reactor designs where service conditions could reach 1500 °F. At these service conditions, creep and relaxation are more pronounced. Therefore, the NRC is unable to approve the use of Subsection NH for components other than Type 316 stainless steel pressurizer heater sleeves. In consideration of public comment, § 50.55a(b)(1)(vii) is revised to allow the application of Subsection NH to Type 316 stainless steel pressurizer heater sleeves only where service conditions do not cause the component to reach temperatures exceeding 900 °F. Section 50.55a(b)(1)(vii) in the proposed rule is renumbered as § 50.55a(b)(1)(vi) in this final rule. Section 11, “Backfit Analysis,” below, has been revised to address this last comment.

The proposed rule would have revised § 50.55a(b)(2) to incorporate by reference the 2001 Edition and the 2002 and 2003 Addenda of Division 1 of Section XI of the ASME BPV Code subject to proposed modifications and limitations. Accordingly, the existing modifications and limitations for quality assurance, Class 1 piping, underwater welding, reconciliation of quality requirements, certification of nondestructive examination personnel, substitution of alternative method, and Table IWB-2500-1 examination requirements in § 50.55a(b)(2)(x), § 50.55a(b)(2)(xi), § 50.55a(b)(2)(xii), § 50.55a(b)(2)(xvii), § 50.55a(b)(2)(xviii), § 50.55a(b)(2)(xix), and § 50.55a(b)(2)(xxi), respectively, would continue to apply when using the 2001 Edition through 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. The existing modifications and limitations in § 50.55a(b)(2)(x), § 50.55a(b)(2)(xi), § 50.55a(b)(2)(xii), § 50.55a(b)(2)(xvii), § 50.55a(b)(2)(xviii), § 50.55a(b)(2)(xix), and § 50.55a(b)(2)(xxi) would continue to apply to the 2001 Edition through 2003 Addenda of Section XI because the earlier Code provisions on which these regulations are based were not revised in the 2001 through 2003 Addenda of Section XI to address the underlying issues which led the NRC to impose the modifications and limitations. There were no public comments on § 50.55a(b)(2), § 50.55a(b)(2)(x), § 50.55a(b)(2)(xi), § 50.55a(b)(2)(xii), § 50.55a(b)(2)(xviii), § 50.55a(b)(2)(xix), and § 50.55a(b)(2)(xxi). Therefore, § 50.55a(b)(2), § 50.55a(b)(2)(x), § 50.55a(b)(2)(xi), § 50.55a(b)(2)(xii), § 50.55a(b)(2)(xviii), § 50.55a(b)(2)(xix), and § 50.55a(b)(2)(xxi) are adopted without change in this final rule.

One commenter stated that the existing modification in § 50.55a(b)(2)(xvii) for the reconciliation of quality requirements is no longer applicable because a footnote was added to IWA-4222 that resolves the issue. The footnote was added in the 1999 Addenda to Section XI and clarifies that the provision in IWA-4222(a)(2) does not negate the requirement to implement the Owner's quality assurance program nor does it affect Owner commitments to regulatory and enforcement authorities. The NRC agrees that § 50.55a(b)(2)(xvii) is no longer applicable because the footnote addresses NRC reasons for initially implementing § 50.55a(b)(2)(xvii) in final rule dated September 22, 1999 (64 FR 51374). In consideration of this public comment, § 50.55a(b)(2)(xvii) is revised in this final rule to be applicable only when using the 1995 Addenda through 1998 Edition of Section XI.

The proposed rule would have added Footnote 10 to § 50.55a(b)(2) to indicate that the NRC has issued Order EA-03-009 which imposed enhanced reactor pressure vessel (RPV) head inspections at pressurized water reactors (PWRs). In February 2003, the NRC issued the Order to licensees of PWRs to establish interim inspection requirements that would ensure adequate protection of public health and safety. The Order was revised on February 20, 2004. The Order imposes enhanced requirements for PWR licensees that supplement areas of Section XI of the ASME BPV Code to ensure the structural and leakage integrity of the reactor coolant pressure boundary. The requirements imposed by the Order do not conflict with the requirements in Section XI of the ASME BPV Code but are needed to enhance Code requirements. Licensees are required to meet the requirements in the Order as a supplement to the requirements in the 2001 Edition with the 2002 and 2003 Addenda of Section XI of the ASME BPV Code. Licensees of PWRs using editions and addenda of Section XI of the ASME Code earlier than the 2001 Edition are currently required to apply the requirements in the Order to supplement the use of their applicable Code of record.

One commenter incorrectly interpreted Footnote 10 in the proposed rule. The commenter stated that Footnote 10 would incorporate the requirements of the Order into 10 CFR 50.55a. The NRC notes that it never intended to incorporate the requirements of the Order into 10 CFR 50.55a in this rulemaking. This final rule does not incorporate the requirements of the Order into 10 CFR 50.55a; it simply alerts the reader to the Order. Footnote 10 is adopted without change in this final rule.

This proposed rule would have revised the existing modification for examination of concrete containments in § 50.55a(b)(2)(viii) to apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. The modification in § 50.55a(b)(2)(viii) continues to apply to the 2001 Edition through 2003 Addenda of Section XI because the earlier ASME BPV Code provisions on which this regulation was based were not revised in the 2001 Edition through 2003 Addenda of Section XI to address the underlying issues which led the NRC to impose the modification of the ASME Code provisions. The proposed rule would have also revised the existing modification for examination of concrete containments in § 50.55a(b)(2)(viii) to require a new modification, which is discussed below, when using the 2001 Edition through 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. There were no public comments received on § 50.55a(b)(2)(viii) in the proposed rule. Therefore, § 50.55a(b)(2)(viii) is adopted without change in this final rule.

Section 50.55a(b)(2)(viii)(G) of the proposed rule would have required that CPM be restored in accordance with the quality assurance program requirements specified in IWA-1400 when using the 2001 Edition through 2003 Addenda of Section XI. IWL-4110 of Section XI defines the scope of the repair and replacement activities associated with concrete containments. IWL-4110(b) specifies those items that are exempt from repair and replacement activity requirements. A new provision, IWL-4110(b)(3), was added in the 2002 Addenda exempting the removal, replacement, or addition of the concrete containment post-tensioning system CPM from repair and replacement requirements. Prior to the 2002 Addenda, IWL-4000 specifies that the CPM must be restored following a concrete containment post-tensioning system repair and replacement activity.

CPM is applied to containment post-tension system components to prevent corrosion. The function of the containment post-tension system is to ensure the structural integrity of the concrete containment structure under design basis loadings, and CPM is relied upon to maintain the integrity of the containment post-tension system. Therefore, the restoration of the concrete containment post-tensioning system CPM is important to ensure that the containment integrity and load capacity satisfy design basis requirements under accident conditions. For example, the acceptable concentration of water soluble chlorides, nitrates and sulfides of the replacement CPM must be verified. The amount of CPM to be installed and the method used to apply the CPM must be specified.

One commenter stated that the provisions in IWL-2500 must be applied to the restoration of CPM, and that these provisions were not revised in the 2002 Addenda. The commenter stated that quality assurance requirements must be applied when implementing IWL-2500. The NRC disagrees. The NRC believes that the provisions in IWL-2500 are not applicable to items that are exempt from Code repair and replacement activity requirements. Therefore, § 50.55a(b)(2)(viii)(G) is adopted without change in this final rule.

The proposed rule would have revised the existing modification for examination of metal containments and the liners of concrete containments in § 50.55a(b)(2)(ix) to apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. The proposed rule stated that with the exception of the visual examination requirements specified in § 50.55a(b)(2)(ix)(B), the modification in § 50.55a(b)(2)(ix) would continue to apply to the 2001 Edition through 2003 Addenda of Section XI because the earlier Code provisions on which this regulation was based were not revised in the 2001 Edition through 2003 Addenda of Section XI to address the underlying issues which led to the NRC to impose the modification on the ASME Code provisions. The minimum illumination and distance visual examination provisions in Table IWA-2210-1 in Section XI were revised in the 2003 Addenda and are equivalent to the minimum illumination and distance visual examination requirements in § 50.55a(b)(2)(ix)(B). Therefore, the proposed rule revised the existing modification for examination of metal containments and the liners of concrete containments in § 50.55a(b)(2)(ix) to specify that § 50.55a(b)(2)(ix)(B) does not apply when using the 2001 Edition with the 2002 and 2003 Addenda of Section XI, Division 1, of the ASME BPV Code.

Several commenters stated that the revision to Table IWA-2210-1 in the 2003 Addenda of Section XI was rescinded by a special Erratum in December 2003. Therefore, the existing modification in § 50.55a(b)(2)(ix)(B) should continue to apply when using the 2001 Edition with the 2002 and 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. The NRC agrees. In consideration of the public comment, § 50.55a(b)(2)(ix) is revised in this final rule to require that § 50.55a(b)(2)(ix)(B) continue to apply when using the 2001 Edition and the 2002 and 2003 Addenda of Section XI.

The proposed rule would have revised § 50.55a(b)(2)(xiii) to eliminate the authorization to use Code Case N-513. The existing regulation in § 50.55a(b)(2)(xiii) authorizes the use of Code Cases N-513 and N-523-1. Code Case N-513 is now approved in Regulatory Guide 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1.” Regulatory Guide 1.147 (Revision 13) was incorporated by reference into § 50.55a in a final rule dated July 8, 2003 (68 FR 40469). Thus, it is no longer necessary to authorize the use of Code Case N-513 in § 50.55a(b)(2)(xiii) because this code case is included in Regulatory Guide 1.147. Section 50.55a(b)(2)(xiii) would continue to approve the use of Code Case N-523-1 because Code Case N-523-1 is currently not included in Regulatory Guide 1.147. There were no public comments received on § 50.55a(b)(2)(xiii) and therefore is adopted without change in this final rule.

The proposed rule would have revised the existing modification for Appendix VIII personnel qualification in § 50.55a(b)(2)(xiv) to apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. The modification in § 50.55a(b)(2)(xiv) continues to apply to the 2001 Edition through 2003 Addenda of Section XI because the earlier Code provisions on which this regulation was based were not revised in the 2001 Edition through 2003 Addenda of Section XI to address the underlying issues which led to the NRC to impose the modification. The proposed rule also revised § 50.55a(b)(2)(xiv) to correct an oversight. The existing regulation incorrectly states that the annual practice requirements in VII-4240 of Supplement VII of Section XI may be used. The reference to Supplement VII is incorrect; it should be Appendix VII. Therefore, the proposed rule stated that § 50.55a(b)(2)(xiv) should be revised to state that the annual practice requirements in VII-4240 of Appendix VII of Section XI may be used.

One commenter requested that the existing annual training requirements in § 50.55a(b)(2)(xiv) be revised to change the required number of hours of training that must be completed before performing ultrasonic examinations. The NRC declines to make this change because the proposed rule did not suggest an amendment to the required number of hours of training that must be completed before performing ultrasonic examinations, and the NRC currently does not have a basis for supporting such a change. There were no other public comments received on § 50.55a(b)(2)(xiv). Therefore, § 50.55a(b)(2)(xiv) is adopted without change in this final rule.

The proposed rule would have revised the existing modification for Appendix VIII specimen set and qualification requirements in § 50.55a(b)(2)(xv) to apply to the 2001 Edition of Section XI, Division 1, of the ASME BPV Code. The modification in § 50.55a(b)(2)(xv) would continue to apply to the 2001 Edition of Section XI because the earlier Code provisions on which this regulation was based were not revised in the 2001 Edition of Section XI to address the underlying issues which led the NRC to impose the modification. There were no public comments received on § 50.55a(b)(2)(xv). Therefore, § 50.55a(b)(2)(xv) is adopted without change in this final rule.

The proposed rule would have revised the existing regulation in § 50.55a(b)(2)(xv)(C)( 1 ) to specify that the flaw depth sizing provisions in Subparagraph 3.2(c) of Supplement 4 to Appendix VIII are not applicable when Appendix VIII is implemented in accordance with § 50.55a(b)(2)(xv). Section 50.55a(b)(2)(xv) currently provides an alternative method that licensees may use for implementing Appendix VIII and the supplements to Appendix VIII. The existing regulation specifies that the flaw depth sizing provisions in Subparagraph 3.2(a) of Supplement 4 to Appendix VIII are not applicable when using the flaw depth sizing provisions specified in § 50.55a(b)(2)(xv)(C)( 1 ). This revision is needed to correct an oversight that the flaw depth sizing provisions in Subparagraph 3.2(c) of Supplement 4 to Appendix VIII also do not apply when using the flaw depth sizing provisions specified in § 50.55a(b)(2)(xv)(C)( 1 ). Thus, the flaw depth sizing provisions in § 50.55a(b)(2)(xv)(C)( 1 ) were revised in the proposed rule to also reference Subparagraph 3.2(c) of Supplement 4 to Appendix VIII. There were no public comments received on § 50.55a(b)(2)(xv)(C)( 1 ). Therefore, § 50.55a(b)(2)(xv)(C)( 1 ) is adopted without change in this final rule.

The proposed rule would have revised the existing regulation in § 50.55a(b)(2)(xv)(J) to eliminate the approval to use Code Case N-552. Code Case N-552 is now approved in Regulatory Guide 1.147, Revision 13, which was incorporated by reference into § 50.55a in a final rule dated July 8, 2003 (68 FR 40469). Thus, it is no longer necessary to approve the use of Code Case N-552 in § 50.55a(b)(2)(xv)(J) because this code case is included in Regulatory Guide 1.147. There were no public comments received on § 50.55a(b)(2)(xv)(J). Therefore, § 50.55a(b)(2)(xv)(J) is adopted without change in this final rule.

The proposed rule would have revised the existing modification for system leakage tests in § 50.55a(b)(2)(xx) to continue prohibiting the use of certain system leakage test provisions in the 1997 Addenda through 2001 Edition of Section XI, Division 1 of the ASME BPV Code. The proposed rule stated that the modification in § 50.55a(b)(2)(xx) does not apply to the 2002 and 2003 Addenda of Section XI because the earlier Code provisions on which this regulation was based were revised in the 2002 Addenda of Section XI to address the underlying issues which led to the NRC to impose the modification of the ASME Code provisions. The revised system leakage test provisions in IWA-5213(a) are equivalent to the existing requirements in § 50.55a(b)(2)(xx).

One commenter stated that the system leakage test provisions in IWA-5213(a) were revised in the 2003 Addenda of Section XI not the 2002 Addenda as stated in the proposed rule. The NRC agrees. In consideration of the public comment, § 50.55a(b)(2)(xx) is revised in this final rule so that the modification applies when using IWA-5213(a), 1997 through 2002 Addenda.

Section 50.55a(b)(2)(xxii) in the proposed rule would have prohibited the use of a new provision in IWA-2220 allowing ultrasonic (UT) examination. The provisions of Code Case N-615, “Ultrasonic Examination as a Surface Examination Method for Category B-F and B-J Piping Welds,” were incorporated into IWA-2220 in the 2001 Edition of Section XI of the ASME BPV Code. Code Case N-615 and IWA-2220 allow a surface examination to be conducted using a UT examination method. The UT examination is conducted from the inside surface of certain piping welds. Other allowable surface examination methods (magnetic particle or liquid penetrant) are conducted from the outside surface of certain piping welds. The purpose of the these surface examinations is to identify flaws in the outer surface of the weld. Revision 13 to Regulatory Guide 1.147 did not approve the use of Code Case N-615 and the proposed rule would have prohibited the use of the same UT examination specified in IWA-2220. There are no provisions in Section XI that address qualification requirements and performance demonstration criteria and requirements to ensure proper consideration of flaws in the outer surface of a piping weld when conducting a UT examination from the inside surface of the piping weld.

One commenter stated that the proposed § 50.55a(b)(2)(xxii) should be deleted because IWA-2220 provides an acceptable UT performance demonstration requirement. The NRC disagrees. For example, IWA-2220 does not provide test specimen requirements, piping weld material requirements, acceptable flaw types, performance demonstration detection acceptance criteria, nor acceptable pipe specimen thickness.

A number of commenters requested that § 50.55a(b)(2)(xxii) be revised to allow IWA-2220 surface examinations be conducted by UT examination provided that the UT examination method has been demonstrated by a successful performance demonstration. The commenters stated that their revision addresses the NRC concern that there are no qualification requirements or performance demonstration criteria in Section XI for conducting a UT examination from the inside surface of the piping weld. The NRC disagrees. The revision, as proposed by the commenters, does not address the concern in the proposed rule. Appendix I of Section XI requires that all piping examinations be performed in accordance with Appendix VIII qualified procedures and personnel. The final rule dated September 22, 1999 (64 FR 51370), requires that licensees implement Appendix VIII and the supplements to Appendix VIII on an expedited basis. The NRC imposed this requirement on an expedited basis because there were shortcomings in the qualifications of personnel and procedures in ensuring the reliability of nondestructive examination of the reactor vessel and other components of the reactor coolant system pressure boundary. The NRC believes that the imposition of performance demonstration in Appendix VIII and its supplements has enhanced the overall level of assurance of the reliability of UT examination techniques in detecting and sizing flaws. The NRC is not approving the use of new UT provision in IWA-2220 because qualification requirements and performance demonstration criteria for the new UT provision are not addressed in Appendix VIII. Therefore, § 50.55a(b)(2)(xxii) is adopted without change in this final rule.

Section 50.55a(b)(2)(xxiii) of the proposed rule would have required that all the adverse effects associated with the elimination of mechanical processing following a thermal removal process listed in IWA-4461.4.2(a)(1) through (5) be considered by tests, inspections and analyses. Tests, inspections and analyses are further discussed below. IWA-4461.4 requires that the surface left in service after the metal is removed by a thermal removal process be mechanically processed. A thermal removal process is used to remove metal from a weld or base metal. Thermal removal processes include oxyacetylene cutting, carbon arc gouging, plasma cutting, metal disintegration machining and electrodischarge machining. Thermal removal processes can leave cracks, stress risers, very rough surfaces or heavy oxidations on the surface of the metal. Mechanical processing involves the removal of any defects from a surface of the metal by grinding, machining or filing, for example. Subparagraph IWA-4461.4.2 was added in the 2001 Edition to allow the elimination of mechanical processing of a thermally cut surface when, due to field conditions, mechanical processing is deemed impractical. IWA-4461.4.2 allows the elimination of mechanical processing of thermally cut surfaces provided that the adverse effects associated with the elimination of mechanical processing listed in IWA-4461.4.2(a)(1) through (5) are considered by an evaluation. The adverse effects listed in IWA-4461.4.2(a)(1) through (5) include soundness of cut, material toughness, corrosion resistance, stresses, and oxidation or other contamination. The proposed rule stated that it is unclear if all the adverse effects listed in IWA-4461.4.2(a)(1) through (5) are required to be considered by evaluation or are licensees supposed to determine which of the adverse effects listed in IWA-4461.4.2(a)(1) through (5) would be applicable. The proposed rule stated that tests, inspections, and analyses would be required to evaluate the adverse effects listed in IWA-4461.4.2(a)(1) through (5). The proposed rule did not describe any specific test, inspection or analysis. Licensees would be responsible for determining the appropriate test, inspection, and analysis for each of the items listed in IWA-4461.4.2(a)(1) through (5).

Several commenters explained that the provision IWA-4461.4.2(a) requires that the evaluation shall include all those adverse effects listed in IWA-4461.4.2(a)(1) through (5) in the evaluation. Other commenters stated that not all of the adverse effects listed in IWA-4461.4.2(a)(1) through (5) are applicable to all thermal processes and that IWA-4461.4.2(c) requires that the evaluation document any adverse effects listed in IWA-4461.4.2(a)(1) through (a)(5) that are not applicable in the Repair/Replacement Plan. Commenters also stated that it is unreasonable for NRC to require tests, inspections, and analyses to address each of the adverse effects listed in IWA-4461.4.2(a)(1) through (5) to eliminate mechanical processing of a thermally cut surface. The tests, inspections, and analyses as proposed in § 50.55a(b)(2)(xxiii) would make it impracticable for a licensee to use the provisions in IWA-4461.4.2.

The NRC believes that it is impracticable to justify the elimination of mechanical processing of a thermally cut surface in an evaluation as specified in IWA-4461.4.2. It is not possible to evaluate the adverse effects that can occur as a result of thermal cutting without performing appropriate tests, inspections, and analyses. For example, the provisions in IWA-4461.4.2 could be used to eliminate mechanical processing for a carbon arc-gouging cut that removed a hanger in a high radiation area. If the cut is made too close to the load-bearing component, the metal on the load-bearing component could be affected by an errant arc touching the load-bearing surface or allowing some of the cutting spatter to become attached to the load-bearing surface leaving an arc strike, a heat-affected zone or a stress riser on the surface. The area around the cut must be inspected to make certain that the cutting has not damaged the surface of the component. Elimination of the inspection in a documented evaluation would not be adequate even for this simple thermal cutting example. Furthermore, the cut must be a safe distance from the surface of the component to eliminate any possibility of leaving a mechanical (a rough, oxidized or carburized surface) or metallurgical (a heat affected zone) stress riser near or in the surface of the component. If the cut is made too close to the final surface, a heat-affected zone from the cut could be left in the final load-bearing surface or a very rough, highly oxidized or carburized surface could be left very near the final load-bearing surface. The exact distance from the cut surface must be determined by an analysis or qualification testing of the configuration, not by a documented evaluation.

The NRC agrees with the comment that the test, inspection, and analysis provisions in § 50.55a(b)(2)(xxiii) of the proposed rule would make it impracticable for a licensee to use IWA-4461.4.2. Therefore, § 50.55a(b)(2)(xxiii) is revised in this final rule to prohibit the use of the new provisions in IWA-4461.4.2.

Section 50.55a(b)(2)(xxiv) in the proposed rule would have prohibited the use of Appendix VIII and the supplements to Appendix VIII, and Article I-3000 in the 2002 and 2003 Addenda of Section XI of the ASME BPV Code. The elements of the Performance Demonstration Initiative (PDI) program were added to Appendix VIII and its supplements and Article I-3000 in the 2002 Addenda. PDI is an organization formed for the purpose of developing efficient, cost-effective, and technically sound UT performance demonstration methods to meet Appendix VIII requirements. The PDI program has evolved as programs were developed for each Appendix VIII supplement. Article I-3000, Examination Coverage, was also added in the 2002 Addenda to provide UT examination coverage criteria for certain welds.

The final rule dated September 22, 1999 (64 FR 51370), requires licensees to implement Appendix VIII and its supplements. The essential elements of the PDI program were added to the final rule as § 50.55a(b)(2)(xv). Section 50.55a(b)(2)(xv) also provides UT examination coverage criteria. Licensees are currently implementing Appendix VIII and its supplements in accordance with § 50.55a(b)(2)(xv). Although the NRC, ASME, and PDI have made considerable progress in the development of UT qualification and inspection requirements, the addition of the PDI program into Section XI are not complete at this time. As a result, differences exist between the modifications in § 50.55a(b)(2)(xv), and the provisions in Appendix VIII and its supplements and Article I-3000 in the 2002 and 2003 Addenda of Section XI of the ASME BPV Code. Therefore, Appendix VIII and its supplements and the UT coverage criteria in Article I-3000 can not be implemented in accordance with § 50.55a(b)(2)(xv) when using the 2002 and 2003 Addenda. Consequently, the proposed rule would have prohibited the use of Appendix VIII and its supplements and Article I-3000 beyond the 2001 Edition.

The proposed rule stated that conflicts exist between the modifications in § 50.55a(b)(2)(xv), and the UT coverage provisions in Article I-3000 in the 2002 and 2003 Addenda. Several commenters stated that the use of the term “conflicts” in the proposed rule was inappropriate. The NRC agrees and should have used term “differences” instead of “conflicts.” Commenters acknowledged that there are differences between the UT coverage requirements in Article I-3000 and the UT coverage requirements in § 50.55a(b)(2)(xv).

A number of commenters requested that the proposed limitation in § 50.55a(b)(2)(xxiv) be revised to allow the use of the UT coverage requirements in Article I-3000. Commenters stated that the NRC should accept the UT coverage requirements in Article I-3000 as an alternative to the UT coverage requirements in § 50.55a(b)(2)(xv). The NRC disagrees. Article I-3000 requires that the UT coverage provisions be applied when using UT examination procedures, equipment, and personnel qualified by performance demonstration in accordance with Appendix VIII. The NRC believes that allowing the use of the UT coverage requirements in Article I-3000 would require revising the existing UT coverage requirements in § 50.55a(b)(2)(xv) to provide licensees the choice of continuing to use the existing UT coverage requirements in § 50.55a(b)(2)(xv) or using the UT coverage requirements in Article I-3000. It is not the NRC's intention to periodically revise § 50.55a(b)(2)(xv) to add new elements of the PDI program as the program evolves. The purpose of the modification in § 50.55a(b)(2)(xv) is to provide a short-term solution that allows licensees to implement an Appendix VIII program. The long-term solution is to add the elements of the PDI program to Section XI or develop a code case that can be used to implement Appendix VIII and remove § 50.55a(b)(2)(xv) from 10 CFR 50.55a. Therefore, § 50.55a(b)(2)(xxiv) is adopted without change in this final rule.

Section 50.55a(b)(2)(xxv) in the proposed rule would have prohibited the use of the provisions in IWA-4340 when using the 2001 Edition and the 2002 and 2003 Addenda of Section XI of the ASME BPV Code. IWA-4340 was added in the 2000 Addenda and provides requirements for the mitigation of defects by “modification.” Paragraph IWA-4340 allows a defect to remain in a component provided that the defect can be eliminated from the pressure boundary by “modification.”

Commenters stated that although additional provisions were added in the 2000 Addenda, Section XI has always allowed mitigation of defects by “modification.” Commenters objected to the NRC prohibiting the use of this longstanding Code requirement. Commenters also stated that prohibiting the use of IWA-4340 would significantly impact licensees in terms of cost, resources, and plant shutdowns. IWA-4340 “modifications” can be designed and installed by most plants within the 72-hour technical specification allowed outage time. These “modifications” are typically used when replacement or excavation and repair welding of the defect cannot be performed within the technical specification allowed outage time. Commenters stated that it is not unusual for a plant to install several “modifications” in an operating cycle. Commenters stated that licensees would have to request authorization of an alternative pursuant to § 50.55a(a)(3) to install modifications if use of IWA-4340 is prohibited. This would result in a significant increase in regulatory burden, costs, and plant outage time and would also adversely impact NRC resources. The NRC disagrees that the mitigation of a defect by “modification” in Section XI is a longstanding Code provision. Section XI does not specifically address mitigation of defects by “modification” in the editions and addenda prior to the 2000 Addenda. The NRC is also unaware of any ASME Section XI interpretation that specifically addresses mitigation of defects by “modification.” Furthermore, the NRC has authorized many alternatives pursuant to § 50.55a(a)(3) that are similar to those in IWA-4340. These alternatives were authorized on a case-by-case basis and addressed pressure testing, flaw growth evaluation, and reexamination requirements. Licensees believed these modifications were not permitted by the ASME Code, and therefore, concluded that authorizations of alternatives were necessary. Although some Section XI code cases address repair of defects on a limited basis, such as the use of weld overlays, new provisions for repairing defects were added in the 2000 Addenda.

One commenter stated that the NRC had previously approved the use of provisions that are similar to those in IWA-4340. The commenter stated that the NRC should approve the same provisions in IWA-4340. The NRC agrees that, in some instances, it had previously approved the use of mitigative methods or alternatives that could fall under the provisions of IWA-4340, but the methods approved by the NRC were significantly more comprehensive than those in IWA-4340. For example, the NRC approved the use of Code Case N-504-2, “Alternative Rule for Repair of Class 1, 2, and 3 Austenitic Stainless Steel Piping,” in Regulatory Guide 1.147. The NRC notes that the provisions in Code Case N-504-2 are significantly more comprehensive than the provisions required by IWA-4340. The NRC has also authorized use of weld overlays as corrective action for intergranular stress corrosion cracking in plant-specific submittals. Authorization was based on adequate flaw evaluation, examination frequency, and pressure testing provided by licensees in their proposed alternative. However, the NRC has also disapproved the use of mitigative methods that would be allowed under IWA-4340. For example, the NRC disapproved the use of Code Case N-562-1, “Alternative Requirements for Wall Thickness Restoration of Class 3 Moderate Energy Carbon Steel Piping,” in Regulatory Guide 1.193, “ASME Code Cases Not Approved For Use.” The NRC disapproved the use of Code Case N-562-1 because the ASME Code and the code case do not provide criteria for determining the rate of the extent of degradation of the repair or surrounding base metal and do not specify examination requirements.

The proposed rule stated that IWA-4520(b)(2) exempts piping, pump and valve welding or brazing that does not penetrate through the pressure boundary from any pressure test. Since the modification to mitigate the defect will become the new pressure boundary and the modification may be attached to the pressure boundary by welds that do not penetrate through the pressure boundary, pressure testing would not be required. The NRC proposed to not accept the elimination of pressure testing requirements for a modification that will function as a pressure boundary.

Commenters stated that the reference to IWA-4520(b)(2) in the proposed rule is incorrect. The NRC agrees. The NRC intended to reference IWA-4540(b)(3) in the proposed rule. IWA-4540(b)(3) exempts piping, pump and valve welding or brazing that does not penetrate through the pressure boundary from pressure testing, not IWA-4520(b)(2).

Commenters did not discuss if the pressure test exemption in IWA-4540(b)(3) would be applicable to IWA-4340 “modifications.” They simply stated that Section XI requires a pressure test for new welds that are a part of the pressure boundary. The NRC agrees that pressure testing for new pressure boundary weld is a requirement. However, the NRC is concerned that licensees could interpret the provisions in IWA-4540(b)(3) that pressure tests are not required for certain IWA-4340 modifications such as an encapsulation of a defect that does not yet, but eventually could, breach the pressure boundary for example. The NRC believes that pressure testing the “modification” is necessary to validate the structural integrity of the “modification.”

The proposed rule stated that IWA-4340(c) requires that each licensee define the successive examinations to be performed after the completion of the “modification.” The purpose of the successive examinations is to monitor the defect to detect propagation beyond the limits of the “modification” and, when practicable, to validate the projected growth of the defect. The Code is unclear as to whether it permits a defect to propagate outside the physical boundary of the “modification” or requires that a licensee's examination program predict propagation of the defect such that the licensee would be able to identify, in advance, a defect that is expected to propagate outside the area physically modified such that corrective action could be taken.

Commenters explained that a flaw outside of the modification might be acceptable until it reached the condition of a defect. The condition would be unacceptable if the flaw propagated into a defect. Commenters also indicated that because each “modification” is unique, it is not possible to specify examination frequency criteria that could be applied to all defects that are mitigated by “modification.” Commenters stated that IWA-4340(c) requires that, if practicable, the growth of the defect be predicted and licensees establish an examination method that would demonstrate that the defect has not propagated beyond the limits of the “modification.” The examinations would also validate the predicted growth assumptions. In other cases, it may not be practical to predict the growth of the defect. Commenters stated that the examination frequency would have to account for this condition. The NRC believes that IWA-4340(c) is unacceptable because it does not specify minimum periodic examinations that are capable of validating the predicted defect growth assumptions. The NRC believes that it is appropriate for the Code to establish minimum periodic examination requirements. Licensees may always do more than Code minimum requirements.

One commenter states that it is inappropriate for the NRC to modify the use of Code provisions that were previously accepted by the NRC. The NRC disagrees. The modification in § 50.55a(b)(2)(xxv) was not included in the final rule that incorporated by reference the 2000 Addenda of Section XI in § 50.55a (67 FR 60520: September 26, 2002) due to an oversight by the NRC. The NRC did not identify that these Code provisions were added when it reviewed the 2000 Addenda of Section XI. The NRC has determined that this modification should only apply to those licensees who implement the 2001 Edition and later editions and addenda of Section XI, and should not be backfit to those licensees who update their ISI programs to the 1998 Edition with the 1999 and 2000 Addenda in accordance with § 50.55a(g)(4)(ii). The NRC has determined it is acceptable not to backfit the licensees who update their ISI programs to the 1998 Edition with the 1999 and 2000 Addenda because those licensees will be required at the next 10-year interval to update their ISI programs to prohibit the relevant Code provisions. Thus, any problems would be caught during the next 10-year interval. The prohibition of the relevant Code provisions is not considered a backfit because they are imposed only as part of the routine updating required as part of the 120-month updating and do not constitute a significant change to, or fundamental modification of, the existing ISI program.

Although not discussed in the proposed rule, the NRC has additional concerns about the use of IWA-4340. For example, Section XI, Appendix I, Ultrasonic Examination, directs users to the specific examination methods to be followed, including the performance demonstration requirements of Appendix VIII for certain components. IWA-4340(a) states that defects shall be characterized using nondestructive examination but has no specific requirements regarding nondestructive examination methods to be used. The NRC believes that IWA-4340(a) should specify the qualification requirements and examination methods by reference to existing rules in the Code where applicable, or where not applicable, the process to be followed to demonstrate the capability of the techniques to be used.

IWA-4340 could be used to mitigate non-planar defects, such as caused by flow accelerated corrosion or microbiological induced corrosion. The ASME has issued certain code cases, such as Code Cases N-561-1, “Alternative Requirements for Wall Thickness Restoration of Class 2 and High Energy Class 3 Carbon Steel Piping,” and N-562-1, dealing with wall thickness restoration for non-planar defects. The NRC has found these code cases to be unacceptable because of the absence of criteria concerning the extent and rate of degradation of the repair and reinspection frequencies and because the root cause of the degradation may not be mitigated. For similar reasons, the NRC finds IWA-4340 unacceptable for use to mitigate non-planar defects.

Licensees have proposed to mitigate circumferential defects above the partial penetration weld in control rod drive nozzles by partially removing the defect and replacing the removed material with weldment, thereby “embedding” the defect. The NRC has found such proposals to be unacceptable because of the possibility of additional cracking in the embedding weld and because of safety concerns posed by severance of the nozzle. The NRC finds IWA-4340 unacceptable because it could be used to mitigate such defects.

Under IWA-4340, if a defect were to propagate beyond the limits of a modification, a licensee could perform repeated repairs to the same location. The NRC believes this is unacceptable because it would represent a failure of the original evaluation to correctly predict the projected growth of the defect.

For these reasons, § 50.55a(b)(2)(xxv) is adopted without change in this final rule.

Section 50.55a(b)(2)(xxvi) of the proposed rule would have supplemented the test provisions in IWA-4540 of the 2001 Edition and the 2002 and 2003 Addenda of Section XI of the ASME BPV Code to require that Class 1, 2, and 3 mechanical joints be pressure tested in accordance with IWA-4540(c) of the 1998 Edition of Section XI. The requirements to pressure test Class 1, 2, and 3 mechanical joints undergoing repair and replacement activities were deleted in the 1999 Addenda of Section XI. Therefore, pressure testing of mechanical joints is no longer required by Section XI when performing IWA-4000 repair and replacement activities. The proposed rule would have retained the pressure and testing requirements in IWA-4540(c) of the 1998 Edition when using the 2001 Edition through 2003 Addenda because there was no justification for eliminating the requirements for pressure testing Class 1, 2, and 3 mechanical joints. Pressure testing of mechanical joints affected by repair and replacement activities is necessary to ensure and verify the integrity of the pressure boundary. In the proposed rule, the NRC requested that commenters provide additional information that can be used to justify the elimination of the pressure tests requirements in IWA-4540(c) of the 1998 Edition of Section XI.

Several commenters stated that the Code requirement to conduct a system leakage test during operation at nominal operating pressure to verify leakage after reassembly of a mechanical joint was deleted in the 1999 Addenda of Section XI. The commenters indicated that this Code requirement was deleted because mechanical joint leakage is not prohibited by Section XI. The commenters contend that Section XI does not provide leakage acceptance criteria, and it has always been the responsibility of each licensee to determine if the leakage is acceptable and if corrective action is required. Furthermore, they contend that the purpose of the system leakage test in the 1998 Edition and earlier editions and addenda of Section XI is to monitor for leakage not verify the structural integrity of the pressure boundary. One commenter pointed out that the revised system leakage test requirements in the 1999 Addenda and later editions and addenda are consistent with the construction requirements for mechanical joint leakage in Section III of the ASME Code. Section III does not prohibit leakage at mechanical connections and only requires that mechanical connection leakage not mask leakage at other joints. Commenters stated that operators and system engineers periodically monitor systems for leakage and evaluate if corrective action is warranted when leakage is identified. Commenters also stated that post maintenance test programs specify requirements for leak testing mechanical connections following reassembly. Section XI does not provide any acceptance criteria for mechanical joint leakage following reassembly, and it has always been the responsibility of licensees to determine if corrective action is warranted.

The NRC and commenters generally agree that repaired or replaced mechanical joints should be pressure tested following Code repair and replacement activities. However, the NRC and commenters disagree on the role of the Code for providing this guidance. The NRC believes that it is inappropriate to rely on regulations or programs other than the Code, such as testing requirements in Appendix B of 10 CFR Part 50, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants,” to provide detailed test requirements for mechanical joint repair and replacement activities. With the exception of Section XI, there are no other NRC regulations that provide detailed guidance on pressure testing mechanical joints that are repaired or replaced in accordance with Section XI. The test requirements in Section XI are technically correct and are also consistent with the test requirements in Appendix B of 10 CFR Part 50. After consideration of public comments, the NRC finds that Code pressure testing of mechanical joints after repair and replacement activities is still warranted, and that reliance on programs which are not under Code jurisdiction is not an appropriate substitute for specifying Code repair and replacement requirements.

One commenter states that it is inappropriate for the NRC to modify the use of Code provisions that were previously accepted by the NRC. The NRC disagrees. The modification in § 50.55a(b)(2)(xxvi) was not included in the final rule that incorporated by reference the 1999 Addenda of Section XI in § 50.55a (67 FR 60520: September 26, 2002) due to an oversight by the NRC. The NRC did not identify that these Code provisions were added when it reviewed the 1999 Addenda of Section XI. The NRC has determined that this modification should only apply to those licensees who implement the 2001 Edition and later editions and addenda of Section XI, and should not be backfit to those licensees who update their ISI programs to the 1998 Edition with the 1999 and 2000 Addenda in accordance with § 50.55a(g)(4)(ii). The NRC has determined it is acceptable not to backfit the licensees who update their ISI programs to the 1998 Edition with the 1999 and 2000 Addenda, because those licensees will be required at the next 10-year interval to update their ISI programs to prohibit the relevant Code provisions. Thus, any problems would be caught during the next 10-year interval. The prohibition of the relevant Code provisions is not considered a backfit because they are imposed only as part of the routine updating required as part of the 120-month updating and do not constitute a significant change to, or fundamental modification of, the existing ISI program.

For these reasons, § 50.55a(b)(2)(xxvi) is adopted without change in this final rule.

The proposed modification in § 50.55a(b)(2)(xxvii) consisted of two parts. The first part would have supplemented a new provision in IWA-5242(a) to require that insulation be removed before conducting visual examinations on bolting susceptible to stress corrosion cracking (SCC). The purpose of IWA-5242 is to periodically examine bolted connections for evidence of boric acid leakage. The 17-4 precipitation-hardened (PH) stainless steels and the 410 stainless steels installed in borated systems are susceptible to SCC when aged at a temperature below 1100 °F or have a Rockwell Method C hardness value above 30. A-286 stainless steel studs or bolts are also susceptible to SCC when preloaded to 100,000 pounds per square inch or higher. Thus, the insulation must be removed to visually examine these bolting materials. Code Case N-616, “Alternative Requirements for VT-2 Visual Examination of Classes 1, 2, and 3 Insulated Pressure Retaining Bolted Connections Section XI, Division 1,” included, among other things, a provision allowing bolted connections with certain bolting materials to be examined without removing the insulation. However, this could prevent identification of signs of degraded bolting if the bolting is susceptible to SCC. The provisions of Code Case N-616 were added to IWA-5242(a) in the 2003 Addenda of Section XI of the ASME BPV Code. The NRC also conditionally accepted the use of Code Case N-616 in Regulatory Guide 1.147, by requiring that insulation be removed to examine 17-4 PH stainless steel or 410 stainless steel studs or bolts aged at a temperature below 1100 °F or with a Rockwell Method C hardness value above 30; and A-286 stainless steel studs or bolts preloaded to 100,000 pounds per square inch or higher.

One commenter stated that the ASME determined that a VT-2 visual examination may not be able to detect SCC in 17-4 PH and 410 stainless steel installed in borated systems and recommended that NRC not adopt the modification in § 50.55a(b)(2)(xxvii) requiring removal of insulation prior to examining 17-4 PH and 410 stainless steel studs or bolts. The NRC agrees that it is not the intent of a VT-2 visual examination to detect SCC. However, VT-2 visual examination is an effective method for determining when conditions necessary to support SCC, such as boric acid leakage on or near a bolted connection, are present. The NRC believes that it is not prudent to attempt to detect boric acid leakage with insulation in place on connections bolted with materials susceptible to SCC. For these reasons, § 50.55a(b)(2)(xxvii) requiring that insulation be removed when conducting visual examinations on bolting susceptible to SCC is adopted without change in this final rule.

The second part of § 50.55a(b)(2)(xxvii) in the proposed rule would have supplemented IWA-5242(a) to require that a VT-2 examination of bolted connections be performed during system leakage tests. One commenter noted that the reason for this part of the proposed modification was not specifically addressed in the statement of considerations for the proposed rule. The NRC agrees. The proposed rule identified two areas in IWA-5242(a) that need to be supplemented, and the statement of considerations only described one of the areas. The reason for the second part of § 50.55a(b)(2)(xxvii) is as follows. Requirement (a) of Code Case N-533-1, “Alternative Requirements for VT-2 Visual Examination of Class 1, 2, and 3 Insulated Pressure-Retaining Bolted Connections,” states that a “system pressure test and VT-2 visual examination shall be performed each refueling outage for Class 1 connections and each period for Class 2 and 3 connections without removal of insulation.” With the exception of Requirement (a), the other provisions of Code Case N-533-1 were added to IWA-5242(a) in the 2003 Addenda of Section XI of the ASME BPV Code. The NRC proposed this modification because it appeared that all of the provisions of Code Case N-533-1 were not added in the 2003 Addenda. After further review, the NRC concludes that VT-2 examination of insulated bolted connections during system leakage tests is required by Tables IWB/C/D-2500-1 and by IWA-5241 of Section XI. Tables IWB/C/D-2500-1 require VT-2 visual examination during system leakage testing for all pressure retaining components. Paragraph IWA-5241 requires VT-2 visual examination of the accessible external exposed surfaces of pressure-retaining components for evidence of leakage and applies to insulated and non-insulated components. Therefore, the proposed requirement that a VT-2 examination of bolted connections be performed during system leakage tests is not adopted in this final rule.

Section 50.55a(b)(2)(xxviii) of the proposed rule would have supplemented a new provision in IWA-4226.1 to require that repair/replacement components be manufactured, procured, and controlled as safety-related under a quality assurance program meeting the requirements of Appendix B to 10 CFR Part 50. The proposed rule stated that the purpose of IWA-4226.1 (2003 Addenda) and Code Case N-554-2, “Alternative Requirements for Reconciliation of Replacement Items and Addition of New Systems,” Section XI, Division 1 is to provide requirements for reconciling design requirements when using later editions of a construction code or Section III. The proposed rule stated that IWA-4226.1 and Code Case N-554-2 do not require reconciliation of the quality assurance requirements for certification, Code symbol stamping, data reports, and authorized inspection. For example, a component manufactured in a commercial shop that does not have a quality assurance program could be used in a safety-related application without having to reconcile quality assurance requirements. In Regulatory Guide 1.147, the NRC conditionally accepted the use of Code Case N-554-2 by requiring that repair/replacement components be manufactured, procured, and controlled as safety-related under a quality assurance program meeting the requirements of Appendix B to 10 CFR Part 50. The modification in § 50.55a(b)(2)(xxviii) in the proposed rule would have imposed the same quality assurance requirements on IWA-4226.1.

One commenter stated that the proposed modification in § 50.55a(b)(2)(xxviii) would prevent licensees from using a commercial grade dedication program to fabricate or procure components that are no longer available through an Appendix B supplier. The commenter proposed a revision to § 50.55a(b)(2)(xxviii) that would allow licensees to use a commercial grade dedication program to fabricate or procure components, if necessary. The NRC notes that it was not the intent of the modification in § 50.55a(b)(2)(xxviii) in the proposed rule to prevent licensees from using a commercial grade dedication program to fabricate or procure components that are no longer available through an Appendix B supplier. Another commenter stated the proposed modification in § 50.55a(b)(2)(xxviii) is unnecessary because the revision to IWA-4226.1 in the 2003 Addenda is not associated with the fabrication or procurement of components. This same commenter stated that a component manufactured in a commercial shop that does not have a quality assurance program would not be permitted in an application within the jurisdiction of Section XI unless that practice was permitted by the original Construction Code. In this case, a licensee may purchase replacement material, parts, or components from a commercial vendor and dedicate them for use in a nuclear power plant in accordance with its quality assurance program. The NRC agrees with the second commenter. The proposed modification in § 50.55a(b)(2)(xxviii) is unnecessary because the revision to IWA-4226.1 (2003 Addenda) does not change component procurement or fabrication requirements. Furthermore, the existing modification in § 50.55a(b)(2)(xvii), Reconciliation of Quality Requirements, requires that replacement parts be purchased, to the extent necessary, in accordance with the licensee's quality assurance program. In consideration of public comments, § 50.55a(b)(2)(xxviii) is not adopted in this final rule.

The proposed rule would have revised § 50.55a(b)(3) to incorporate by reference the 2001 Edition and the 2002 and 2003 Addenda of the ASME OM Code. Accordingly, the existing modifications for motor-operated valves, snubbers, and manual valves in § 50.55a(b)(3)(ii), § 50.55a(b)(3)(v), and § 50.55a(b)(3)(vi), respectively, would continue to apply when using the 2001 Edition through 2003 Addenda of the ASME OM Code. The modifications in § 50.55a(b)(3)(ii), § 50.55a(b)(3)(v), and § 50.55a(b)(3)(vi) continue to apply to the 2001 Edition through 2003 Addenda of ASME OM Code because the earlier Code provisions on which these regulations are based were not revised in the 2001 Edition through 2003 Addenda of the ASME OM Code to address the underlying issues which led to the NRC to impose the modifications. There were no public comments received on § 50.55a(b)(3), § 50.55a(b)(3)(ii), § 50.55a(b)(3)(v), and § 50.55a(b)(3)(vi) and, therefore, these provisions are adopted without change in this final rule.

The proposed rule would have revised the existing quality assurance requirements in § 50.55a(b)(3)(i) to state that ISTA-1500 is applicable when using the 1998 Edition and later editions and addenda of the ASME OM Code. Subsections of the ASME OM Code were renumbered in the 1998 Edition; therefore, § 50.55a(b)(3)(i) is revised to account for the renumbering. This revision does not change requirements in a substantive manner. There were no public comments received on § 50.55a(b)(3)(i) and, therefore, this provision is adopted without change in this final rule.

The proposed rule would have revised § 50.55a(b)(3)(iii) to eliminate the authorization to use Code Case OMN-1. The existing regulation in § 50.55a(b)(3)(iii) authorizes the use of Code Case OMN-1. Code Case OMN-1 is now approved in Regulatory Guide 1.192, “Operation and Maintenance Code Case Acceptability, ASME OM Code.” Regulatory Guide 1.192 (Revision 0) was incorporated by reference into § 50.55a in a final rule dated July 8, 2003 (68 FR 40469). Thus, it is no longer necessary to authorize the use of Code Case OMN-1 in § 50.55a(b)(3)(iii) because this code case is now included in Regulatory Guide 1.192. There were no public comments received on § 50.55a(b)(3)(iii) and, therefore, this provision is adopted without change in this final rule.

The proposed rule would have revised the existing modification for the check valve monitoring program in § 50.55a(b)(3)(iv) to continue prohibiting use of the 1995 Edition through 2002 Addenda of the ASME OM Code. The modification in (b)(3)(iv) does not apply to the 2003 Addenda of the ASME OM Code because the earlier Code provisions on which this regulation was based were revised in the 2003 Addenda of the ASME OM Code to address the underlying issues which led to the NRC to impose the modification. The check valve monitoring program requirements in Appendix II of the 2003 Addenda of the ASME OM Code are equivalent to the check valve monitoring program requirements in § 50.55a(b)(3)(iv). There were no public comments received on (b)(3)(iv) and, therefore, this provision is adopted without change in this final rule.

Paragraph (b)(1). This paragraph requires new applicants for a nuclear power plant who submit an application for a construction permit under 10 CFR Part 50 after the effective date of this rule use the 2001 Edition and the 2002 and 2003 Addenda of Section III, Division 1 of the ASME BPV Code for the design and construction of the reactor coolant pressure boundary and Quality Group B and C components. The statement of considerations for the proposed rule (69 FR 886) indicated that the proposed rule would require, inter alia, applicants for design certifications under 10 CFR Part 52 to use the 2001 Edition and the 2002 and 2003 Addenda of Section III, Division 1 of the ASME BPV Code. However, the language of the proposed rule did not provide for such applicability, and upon further consideration, the NRC believes that additional issues relating to the application of ASME Code to design certifications and other regulatory processes in Part 52 need to be considered. Accordingly, the NRC has decided not to extend by rulemaking these ASME BPV Code provisions to design certifications, and no rule change is necessary to accomplish this. This paragraph also requires that existing modifications and limitations for weld leg dimensions, seismic design, and independence of inspection in §§ 50.55a(b)(1)(ii), 50.55a(b)(1)(iii), and 50.55a(b)(1)(v), respectively, apply to the 2001 Edition through 2003 Addenda of Section III, Division 1 of the ASME BPV Code.

Paragraph (b)(1)(ii). This paragraph reconciles the change in footnote numbers in Figures NC-3673.2(b)-1 and ND-3673.2(b)-1 in Section III, Division 1 of the ASME BPV Code that were renumbered. There are no substantive changes in this paragraph.

Paragraph (b)(1)(vi). This paragraph approves the use of Subsection NH, “Class 1 Components in Elevated Temperature Service,” 1995 Addenda through 2003 Addenda, for only the design and construction of Type 316 stainless steel pressurizer heater sleeves where service conditions do not cause the component to reach temperatures exceeding 900 °F. Licensees may not employ the special design methodologies for high temperatures described in Subsection NH for the design and construction of other Class 1 reactor coolant pressure boundary component applications absent specific approval by the NRC.

Paragraph (b)(2). This paragraph requires licensees of nuclear power plants to use the 2001 Edition and the 2002 and 2003 Addenda of Section XI, Division 1 of the ASME BPV Code when updating their inservice inspection programs in their subsequent 120-month interval under § 50.55a(g)(4)(ii). Existing modifications and limitations for quality assurance, Class 1 piping, underwater welding, certification of nondestructive examination personnel, substitution of alternative method, and Table IWB-2500-1 examination requirements in §§ 50.55a(b)(2)(x), 50.55a(b)(2)(xi), 50.55a(b)(2)(xii), 50.55a(b)(2)(xviii), 50.55a(b)(2)(xix), and 50.55a(b)(2)(xxi), respectively, apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1 of the ASME BPV Code. This paragraph also adds Footnote 10 which states that enhanced reactor pressure vessel head inspections have been imposed by order at pressurized water reactors, and that the NRC will determine the need for supplemental inspection requirements to be imposed through rulemaking.

Paragraph (b)(2)(viii). This paragraph requires that the existing modification for examination of concrete containments in § 50.55a(b)(2)(viii) apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1 of the ASME BPV Code, and that a new modification, § 50.55a(b)(2)(viii)(G), apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(viii)(G). This new paragraph requires that corrosion protection medium be restored in accordance with the quality assurance program requirements specified in IWA-1400 following IWL-4000 repair and replacement activities conducted on concrete containment post-tensioning systems when using the 2001 Edition through 2003 Addenda Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(ix). This paragraph requires that the existing modification for examination of metal containments and the liners of concrete containments in § 50.55a(b)(2)(ix) apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(xiii). This paragraph no longer includes the authorization to use Code Case N-513. Authorization to use Code Case N-513 is now provided in Regulatory Guide 1.147, which has been incorporated by reference into § 50.55a.

Paragraph (b)(2)(xiv). The paragraph requires that the existing modification for Appendix VIII personnel qualification in § 50.55a(b)(2)(xiv) apply to the 2001 Edition through 2003 Addenda of Section XI, Division 1, of the ASME BPV Code. The paragraph also corrects an oversight by clarifying that the annual practice requirements in VII-4240 of Appendix VII of Section XI, Division 1 of the ASME BPV Code may be used.

Paragraph (b)(2)(xv). This paragraph requires the existing modification for Appendix VIII specimen set and qualification requirements in § 50.55a(b)(2)(xv) apply to the 2001 Edition of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(xv)(C)(1). This paragraph specifies that the flaw depth sizing provisions in Subparagraph 3.2(c) of Supplement 4 to Appendix VIII of Section XI, Division 1 of the ASME BPV Code are not applicable when Appendix VIII is implemented in accordance with the provisions in § 50.55a(b)(2)(xv).

Paragraph (b)(2)(xv)(J). This paragraph no longer includes the authorization to use Code Case N-552. Authorization to use Code Case N-552 is now provided in Regulatory Guide 1.147, which has been incorporated by reference into § 50.55a. Paragraph (b)(2)(xv)(J) is reserved for future use.

Paragraph (b)(2)(xvii). This paragraph limits the existing modification for reconciliation of quality requirements in § 50.55a(b)(2)(xvii) to apply only to the 1995 Addenda through 1998 Edition of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(xx). This paragraph limits the existing modification for system leakage tests in § 50.55a(b)(2)(xx) to apply only to the 1997 Addenda through 2002 Addenda of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(xxii). This new paragraph prohibits the use of the provision in IWA-2220, 2001 Edition and the 2002 and 2003 Addenda of Section XI, Division 1 of the ASME BPV Code, that allows the use of an ultrasonic examination method to conduct a surface examination. Licensees must conduct an IWA-2220 surface examination using magnetic particle, liquid penetrant, or eddy current method.

Paragraph (b)(2)(xxiii). This new paragraph prohibits the use of the provisions for eliminating mechanical processing of thermally cut surfaces in IWA-4461.4.2 of the 2001 Edition through 2003 Addenda of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(2)(xxiv). This new paragraph prohibits the use of Appendix VIII and the supplements to Appendix VIII and Article I-3000 of the 2002 and 2003 Addenda of Section XI, Division 1 of the ASME BPV Code. Licensees are required to implement Appendix VIII and its supplements in accordance with the alternative provided in paragraph (b)(2)(xv). Licensees are also required to use the coverage requirements in paragraph (b)(2)(xv).

Paragraph (b)(2)(xxv). This new paragraph prohibits the use of IWA-4340, 2001 Edition and the 2002 and 2003 Addenda of Section XI that allows the mitigation of defects by modification.

Paragraph (b)(2)(xxvi). This new paragraph requires that the Class 1, 2, and 3 mechanical joint pressure and test provisions in IWA-4540(c) of the 1998 Edition of Section XI of the ASME Code be used when repair and replacement activities are conducted in accordance with the 2001 Edition and the 2002 and 2003 Addenda of Section XI of the ASME BPV Code.

Paragraph (b)(2)(xxvii). This new paragraph requires that the insulation be removed from 17-4 PH or 410 stainless steel studs or bolts aged at a temperature below 1100 °F or having a Rockwell Method C hardness value above 30, and from A-286 stainless steel studs or bolts preloaded to 100,000 pounds per square inch or higher when performing visual examinations in accordance with IWA-5242 of the 2003 Addenda of Section XI, Division 1 of the ASME BPV Code.

Paragraph (b)(3). This paragraph requires licensees of nuclear power plants to use the 2001 Edition and the 2002 and 2003 Addenda of the ASME OM Code when updating their inservice test programs in their subsequent 120-month inspection intervals under § 50.55a(f)(4)(ii). This paragraph also requires the existing modifications and limitations for quality assurance, motor-operated valve testing, snubbers, and manual valves in §§ 50.55a(b)(3)(i), 50.55a(b)(3)(ii), 50.55a(b)(3)(v), and 50.55a(b)(3)(vi), respectively, apply to the 2001 Edition through 2003 Addenda of the ASME OM Code.

Paragraph (b)(3)(i). This paragraph reconciles the different subsection and paragraph numbers of the ASME OM Code that were renumbered in the 1998 Edition and subsequent editions and addenda. There are no substantive changes in this paragraph.

Paragraph (b)(3)(iii). This paragraph no longer includes the authorization to use Code Case OMN-1. Authorization to use Code Case OMN-1 is now provided in Regulatory Guide 1.192 which has been incorporated by reference into § 50.55a. Paragraph (b)(3)(iii) is reserved for future use.

Paragraph (b)(3)(iv). This paragraph limits the existing modification for the check valve monitoring program in § 50.55a(b)(3)(iv) to the 1995 Edition through 2002 Addenda of the ASME OM Code.

In July 2001, the NRC issued, “Generic Aging Lessons Learned (GALL) Report,” NUREG-1801, Volumes 1 and 2, for use by applicants in preparing their license renewal applications. The GALL report evaluates existing generic programs, documents the bases for determining when generic existing programs are adequate without change, and documents when generic existing programs should be augmented for license renewal. Section XI, Division 1 of the ASME BPV Code is one of the generic existing programs in the GALL report that is evaluated as an aging management program (AMP) for license renewal. Subsections IWB, IWC, IWD, IWF, IWE, and IWL of the 1995 Edition up to and including the 1996 Addenda of Section XI of the ASME BPV Code for inservice inspection were evaluated in the GALL report, and the conclusions in the GALL report are valid for these edition and addenda.

In the GALL report Sections XI.M1, “ASME Section XI Inservice Inspection, Subsections IWB, IWC, and IWD,” XI.S1, “ASME Section XI, Subsection IWE,” XI.S2, “ASME Section XI, Subsection IWL,” and XI.S3, “ASME Section XI, Subsection IWF,” describe the evaluation and technical bases for determining the adequacy of Subsections IWB, IWC, IWD, IWE, IWL, and IWF, respectively. In addition, many other AMPs in the GALL report rely in part, but to a lesser degree, on the requirements in the ASME Code, Section XI ( i.e. , XI.M3, XI.M4, XI.M5, XI.M6, XI.M7, XI.M8, XI.M9, XI.M11, XI.M12, XI.M13, XI.M14, XI.M15, XI.M16, XI.M18. XI.M24, XI.M25, and XI.M32).

The NRC has completed an evaluation of Subsections IWB, IWC, IWD, IWE, IWF, and IWL of Section XI of the ASME BPV Code (2001 Edition and the 2002 and 2003 Addenda) as part of the § 50.55a amendment process to determine if the conclusions of the GALL report are also applicable for AMPs that rely upon the ASME Code editions and addenda which are incorporated by reference into § 50.55a by the final rule. The NRC finds that the 2001 Edition and 2002 and 2003 Addenda of Sections III and XI of the ASME BPV Code are acceptable and the conclusions of the GALL report remain valid. Accordingly, an applicant may use Subsections IWB, IWC, IWD, IWE, IWF, and IWL of Section XI of the ASME BPV Code (2001 Edition and the 2002 and 2003 Addenda) as acceptable alternatives to the requirements of the 1995 Edition up to and including the 1996 Addenda of the ASME Code, Section XI referenced in the GALL AMPs without the need to submit these alternatives for NRC review in its plant-specific license renewal application. Similarly, a licensee approved for license renewal that relied on the GALL AMPs may use Subsections IWB, IWC, IWD, IWE, IWF, and IWL of Section XI of the ASME BPV Code (2001 Edition and the 2002 and 2003 Addenda) as acceptable alternatives to the AMPs described in the GALL report. However, a licensee must assess and follow applicable NRC requirements with regard to changes to its licensing basis.

The GALL report identified areas of the 1995 Edition with the 1996 Addenda of Section XI of the ASME Code that require augmentation for license renewal. A license renewal applicant may either augment their AMPs in these areas as described in the GALL report or propose alternatives for NRC review in its plant-specific license renewal application. The GALL report's conclusions with respect to augmentation in connection with a license renewal application also apply when implementing the 2001 Edition and the 2002 and 2003 Addenda of Section XI of the ASME Code.

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 11555 Rockville Pike, Rockville, Maryland.

Rulemaking Web site (Web). The NRC's interactive rulemaking 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/adams.html.

NRC Staff Contact. Single copies of the Federal Register Notice, Regulatory Analysis, Environmental Assessment, and Resolution of Public Comments can be obtained from Stephen Tingen, Division of Engineering, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Alternatively, you may contact Mr. Tingen at (301) 415-1280, or via e-mail at: sgt@nrc.gov.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that if agencies establish technical standards, the agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. Pub. L. 104-113 requires Federal agencies to use industry consensus standards to the extent practical, however, it does not require Federal agencies to endorse a standard in its entirety. The law does not prohibit an agency from generally adopting a voluntary consensus standard while taking exception to specific portions of the standard if those provisions are deemed to be “inconsistent with applicable law or otherwise impractical.” Furthermore, taking specific exceptions furthers the Congressional intent of Federal reliance on voluntary consensus standards because it allows the adoption of substantial portions of consensus standards without the need to reject the standards in their entirety because of limited provisions which are not acceptable to the agency.

The NRC is amending its regulations to incorporate by reference a more recent edition and addenda of Sections III and XI of the ASME BPV Code and ASME OM Code for construction, inservice inspection, and inservice testing of nuclear power plant components. ASME BPV and OM Codes are national consensus standards developed by participants with broad and varied interests in which all interested parties (including the NRC and licensees of nuclear power plants) participate. In a staff requirements memorandum dated September 10, 1999, the Commission indicated its intent that a rulemaking identify all portions of an adopted voluntary consensus standard which are not adopted and to provide a justification for not adopting such portions. The portions of the ASME BPV Code and OM Code which the NRC does not adopt, or partially adopts, are identified in Section 2 of this final rule and the regulatory analysis. The justification for not adopting portions of the ASME BPV Code, as set forth in these statements of consideration and regulatory analysis for this rule satisfy the requirements of Section 12(d)(3) of Pub. L. 104-113, Office of Management and Budget (OMB) Circular A-119 and the Commission's direction in the staff requirements memorandum dated September 10, 1999.

The Commission has determined, under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not be a major Federal action significantly affecting the quality of the human environment, and therefore, an environmental impact statement is not required.

This rulemaking will not significantly increase the probability or consequences of accidents; no changes are being made in the types of effluents that may be released off-site; there is no increase in occupational exposure; and, there is no significant increase in public radiation exposure. Therefore, there are no significant radiological impacts associated with the proposed action. The rulemaking does not involve non-radiological plant effluents and has no other environmental impact. Therefore, no significant non-radiological impacts are associated with the action.

The determination of this environmental assessment is that there will be no significant off-site impact to the public from this action. The NRC has prepared an environmental assessment on this final rule. The environmental assessment is available as indicated in Section 5, Availability of Documents, under the SUPPLEMENTARY INFORMATION heading.

The NRC requested the views of the States on the environmental assessment for the rule and did not receive any comments from the States.

This final rule decreases the burden on licensees for recordkeeping requirements related to examinations, tests, and repair and replacement activities. The industry annual public burden reduction for this information collection is estimated at 713 hours. Because the burden reduction for this information collection is insignificant, Office of Management and Budget (OMB) clearance is not required. Existing requirements were approved by the OMB, approval number 3150-0011.

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

The NRC has prepared a regulatory analysis on this final rule. The analysis is available for review in the NRC's Public Document Room, located in One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The regulatory analysis is available as indicated in Section 5, Availability of Documents, under the SUPPLEMENTARY INFORMATION heading.

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

The NRC's Backfit Rule, 10 CFR 50.109, states that the Commission shall require the backfitting of a facility only when it finds the action to be justified under specific standards stated in the rule. Section 50.109(a)(1) defines backfitting as the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previously applicable staff position after issuance of the construction permit or the operating license or the design approval.

Section 50.55a requires nuclear power plant licensees to construct ASME BPV Code Class 1, 2, and 3 components in accordance with the rules provided in Section III, Division 1 of the ASME BPV Code; inspect Class 1, 2, 3, Class MC, and Class CC components in accordance with the rules provided in Section XI, Division 1 of the ASME BPV Code; and test Class 1, 2, and 3 pumps and valves in accordance with the rules provided in the ASME OM Code. This rule incorporates by reference the 2001 Edition and the 2002 and 2003 Addenda of Section III, Division 1 of the ASME BPV Code; Section XI, Division 1 of the ASME BPV Code; and the ASME OM Code.

Incorporation by reference of more recent editions and addenda of Section III, Division 1 of the ASME BPV Code does not affect a plant that has received a construction permit or an operating license or a design that has been approved because the edition and addenda to be used in constructing a plant are, by rule, determined on the basis of the date of the construction permit and are not changed thereafter except voluntarily by the licensee. Thus, incorporation by reference of a more recent edition and addenda of Section III, Division 1 does not constitute a “backfitting” as defined in § 50.109(a)(1).

Incorporation by reference of more recent editions and addenda of Section XI, Division 1, of the ASME BPV Code and the ASME OM Code affect the inservice inspection (ISI) and inservice testing (IST) programs of operating reactors. However, the Backfit Rule generally does not apply to incorporation by reference of later editions and addenda of the ASME BPV Code (Section XI) and OM Code. The NRC's longstanding policy has been to incorporate later versions of the ASME Codes into its regulations. This is codified in § 50.55a which requires licensees to revise their ISI and IST programs every 120 months to the latest edition and addenda of Section XI of the ASME BPV Code and the ASME OM Code incorporated by reference into § 50.55a that is in effect 12 months prior to the start of a new 120-month ISI and IST interval. Thus, when the NRC endorses a later version of the Code, it is implementing this longstanding policy and requirement.

Other circumstances where the NRC does not apply the Backfit Rule to the endorsement of a later Code are as follows:

(1) When the NRC takes exception to a later ASME BPV Code or OM Code provision but merely retains the current existing requirement, prohibits the use of the later Code provision, limits the use of the later Code provision, or supplements the provisions in a later Code, the Backfit Rule does not apply because the NRC is not imposing new requirements. However, the NRC explains any such exceptions to the Code in the Statement of Considerations and regulatory analysis for the rule.

(2) When an NRC exception relaxes an existing ASME BPV Code or OM Code provision but does not prohibit a licensee from using the existing Code provision, the Backfit Rule does not apply because the NRC is not imposing new requirements.

(3) Modifications and limitations imposed during previous routine updates of § 50.55a have established a precedent for determining which modifications or limitations are backfits or require a backfit analysis (final rules dated August 6, 1992 (57 FR 34666), August 8, 1996 (61 FR 41303), September 22, 1999 (64 FR 51370), and September 26, 2002 (67 FR 60520)). The application of the backfit requirements to modifications and limitations in the current rule are consistent with the application of backfit requirements to modifications and limitations in previous rules.

There are some circumstances in which the endorsement of a later ASME BPV Code or OM Code introduces a backfit. In these cases, the NRC would perform a backfit analysis or documented evaluation in accordance with § 50.109. These include the following:

(1) When the NRC endorses a later provision of the ASME BPV Code or OM Code that takes a substantially different direction from the existing requirements, the action is treated as a backfit. An example was the NRC's initial endorsement of Subsections IWE and IWL of Section XI which imposed containment inspection requirements on operating reactors for the first time. The final rule dated August 8, 1996 (61 FR 41303), incorporated by reference in § 50.55a the 1992 Edition with the 1992 Addenda of IWE and IWL of Section XI to require that containments be routinely inspected to detect defects that could compromise a containment's structural integrity. This action expanded the scope of § 50.55a to include components that were not considered by the existing regulations to be within the scope of ISI. Since those requirements involved a substantially different direction, they were treated as backfits, and justified in accordance with the standards of 10 CFR 50.109.

(2) When the NRC requires implementation of later ASME BPV Code or OM Code provision on an expedited basis, the action is treated as a backfit. This applies when implementation is required sooner than it would be required if the NRC simply endorsed the Code without any expedited language. An example was the rule dated September 22, 1999 (64 FR 51370), which incorporated by reference the 1989 Addenda through the 1996 Addenda of Section III and Section XI of the ASME BPV Code and the 1995 Edition with the 1996 Addenda of the ASME OM Code. The final rule expedited the implementation of the 1995 Edition with the 1996 Addenda of Appendix VIII of Section XI of the ASME BPV Code for qualification of personnel and procedures for performing ultrasonic examinations. The expedited implementation of Appendix VIII was considered a backfit because licensees were required to implement the new requirements in Appendix VIII prior to the next 120-month ISI program inspection interval update. Another example was the final rule dated August 6, 1992 (57 FR 34666), which incorporated by reference in § 50.55a the 1986 Addenda through the 1989 Edition of Section III and Section XI of the ASME BPV Code. The final rule added a requirement to expedite the implementation of the revised reactor vessel shell weld examinations in the 1989 Edition of Section XI. Imposing these examinations was considered a backfit because licensees were required to implement the examinations prior to the next 120-month ISI program inspection interval update.

(3) When the NRC takes an exception to a ASME BPV Code or OM Code provision and imposes a requirement that is substantially different from the existing requirement as well as substantially different than the later Code. An example was the adoption of dissimilar metal piping weld UT examination coverage requirements in the final rule dated September 26, 2002 (67 FR 60529), that incorporated by reference in § 50.55a the 1997 though 2000 Addenda of Section XI. Dissimilar metal piping weld examination coverage requirements, although contained in the 1989 Edition and earlier editions and addenda of Section XI, are not addressed in the 1989 Addenda and later editions and addenda of Section XI. Therefore, the addition of dissimilar metal piping weld examination coverage requirements to the regulation was necessary.

The modification, § 50.55a(b)(1)(b)(vi), adds a new limitation on the use of Subsection NH of the 1995 through 2003 Addenda of Section III of the ASME BPV Code for the design and construction of Class 1 reactor coolant pressure boundary components. Subsection NH was added to Section III of the ASME BPV Code in the 1995 Addenda. The NRC has determined that this subsection was adopted in a final rule dated September 22, 1999 (64 FR 51370), without performing an adequate technical review.

As discussed earlier, the NRC has determined that Subsection NH has been used to design and construct Type 316 stainless steel pressurizer heater sleeves that reach temperatures of up to 900 °F, and that the use of Subsection NH for this application is acceptable. However, the NRC has not performed a full technical review of Subsection NH for other Class 1 components in future advanced reactor designs such as liquid metal and high-temperature gas-cooled reactor designs where service conditions could reach 1500 °F. Section 50.55a(b)(1)(vi) in this final rule limits the application of Subsection NH to only pressurizer heater sleeves constructed from Type 316 stainless steel material where service conditions do not cause the component to reach temperatures exceeding 900 °F. The Backfit Rule does not apply to this limitation because, with the exception of Type 316 stainless steel pressurizer heater sleeves, licensees have not applied the provisions in Subsection NH to other Class 1 reactor coolant pressure boundary components. The Backfit Rule does not apply to rules that revise requirements that existing licensees have not applied or for future combined license applicants and design certification applicants even though such a rule may impact an applicant or licensee who was considering applying the provisions of Subsection NH to Class 1 reactor coolant pressure boundary components. For these reasons, the NRC concludes that limiting the application of Subsection NH to only Type 316 stainless steel pressurizer heater sleeves where service conditions do not cause the component to reach temperatures exceeding 900 °F does not constitute a backfit as defined in 10 CFR 50.109(a)(1).

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

Several commenters stated that the ISI requirements for Class MC supports are not specifically addressed in § 50.55a(g). The commenters requested that NRC revise § 50.55a(g)(4) to clarify that Class MC supports must be included in ISI programs. The NRC disagrees with the commenters. The existing regulation in § 50.55a(g) states that Class MC components and their “integral attachments” must meet the ISI requirements set forth in Section XI. The use of “integral attachment” in the regulation is consistent with the terminology used in Subsection IWF of Section XI (see Figure IWF-1300-1). The provisions for the ISI of Class 1, 2, 3, and MC Component supports are included in the scope of Subsection IWF. The use of the term “integral attachment” is used in Table IWF-1300-1 and includes welded supports to MC components.

Several commenters stated that the number of modifications and limitations imposed by the NRC on later editions and addenda of the ASME Codes have significantly increased and that the ASME and NRC committee members should strive to minimize the number of modifications and limitations. The NRC agrees that the number of modifications and limitations should be kept to a minimum. OMB Circular A-119, “Federal Participation in the Development and Use of voluntary Consensus Standards and in Conformity Assessment Activities,” requires agency representatives on committees to ascertain the views of the agency to the extent possible and express views consistent with established agency views. It should be noted, however, that unanticipated events occasionally change the NRC position on an issue during final consideration.

NRC licensees authorized to operate nuclear power reactors under 10 CFR part 50 must ensure that any individual granted access to Safeguards Information or unescorted access to the nuclear power facility has passed a criminal history check performed by the FBI. 10 CFR part 73, which implements Section 149 of the Atomic Energy Act of 1954, as amended, requires licensees to submit a fingerprint record for any such individual to the NRC, which forwards that record to the FBI for analysis. Based on criminal history information received from the FBI, the licensee must determine whether to grant or to deny the individual unescorted access to the facility or access to Safeguards Information.

10 CFR 73.57(d) details how licensees are to submit fingerprint records and requires that each application for a criminal history check be accompanied by payment of the application fee. Section 149 of the Atomic Energy Act requires that the costs of these NRC record checks shall be paid by the licensee or licensee applicant. In the past, the application fee was equal to the amount charged NRC by the FBI for checking fingerprint records submitted on behalf of licensees. This FBI user fee, currently $24.00, includes a $2.00 handling fee retained by the NRC to offset administrative costs associated with the processing of licensee submissions. However, a recent audit of the NRC's criminal history check program found that the actual cost to the NRC of processing each fingerprint check application is more than twice the $2.00 agency handling charge included in the FBI user fee. As a result, the NRC has not been recovering the full cost of the criminal history program from those licensees using the service.

In order to recover full program costs from licensee users, the NRC is increasing the amount of the criminal history check application fee by $3.00, to $27.00 per fingerprint record submitted. The higher amount will close the gap between the current handling charge and the NRC's actual administrative costs related to processing of licensee applications. This final rule amends § 73.57(d)(3) to specify that the application fee for criminal history checks is the sum of the FBI user fee and the supplemental NRC processing charge required to fully cover internal administrative costs connected with the program.

The dollar amount of the application fee was removed from § 73.57(d)(3) by a final rule published on January 6, 1994 (59 FR 661). This was done to allow the NRC to adjust the application fee as necessary to ensure cost recovery without undertaking a burdensome rulemaking to effect a minor fee change. The 1994 final rule also provided that the NRC would publish notice of any future cost adjustments in the Federal Register . This final rule changes the procedure for notifying NRC licensees of fee adjustments. The amendment requires the NRC to post the amount of the current application fee on the Criminal History Program web page, accessible from the NRC's Electronic Submittals page at http://www.nrc.gov/site-help/eie.html. The NRC will continue its current practice of directly informing affected licensees of any fee changes. Licensees will be notified of future fee adjustments via e-mail.

The NRC finds for good cause that the notice and comment provisions of the Administrative Procedure Act do not apply under 5 U.S.C. 553(b)(A). Congress has mandated that the NRC recover its full administrative costs in implementing Section 149 of the Atomic Energy Act of 1954, as amended, and the fee increase established here is quite small. Therefore, notice and public comment would be unnecessary and contrary to the public interest. The final rule is effective upon publication in the Federal Register . Good cause exists to dispense with the usual 30-day delay in the effective date because the amendment is of a minor and administrative nature.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires agencies to use technical standards developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. This final rule changes the way in which the NRC's fingerprint check application fee is assessed, enabling the agency to recover the full administrative cost of the criminal history program from licensee users. The rule also establishes a new mechanism for informing licensees of any future fee adjustments. This action is administrative in nature and does not involve the establishment or application of a technical standard containing generally applicable requirements.

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c) because the rule is of a minor or non-policy nature. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule. Because of the nature of the rule, this action does not raise environmental justice concerns.

This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget under approval number 3150-0002.

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

A regulatory analysis has not been prepared for this rulemaking. This final rule makes an administrative change in the method of calculating the NRC's application fee for criminal history checks requested by licensees. The amendment is required to ensure that the NRC recovers the full cost of the criminal history program from licensees using the service. Because this rule implements the Section 149 requirement that the cost of the criminal history check be paid by the licensee or applicant, a regulatory analysis is unnecessary.

The NRC has determined that the backfit rule does not apply to this final rule and a backfit analysis is not required because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR Chapter I.

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

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay issuance of the approval and thus delivery of the affected aircraft. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Interested persons are invited to submit such written data, views, or arguments as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The special conditions may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. CE212.” The postcard will be date stamped and returned to the commenter.

On February 9, 2004, ARINC, Inc.; 1632 S. Murray Boulevard, Colorado Springs, CO 80916, made application to the FAA for a new Supplemental Type Certificate for the Raytheon Model 200, 300, and B300 airplanes. The Raytheon Models of concern are approved under TC No. A24CE. The proposed modification incorporates a novel or unusual design feature, a digital air data computer, which may be vulnerable to HIRF external to the airplane.

Under the provisions of 14 CFR part 21, § 21.101, ARINC, Inc. must show that the Raytheon Model 200, 300, and B300 aircraft meet the following provisions, or the applicable regulations in effect on the date of application for the change to the Raytheon Model 200, 300, and B300: For those areas modified or impacted by the installation of the IS&S ADDU (Air Data Display Unit) or a Thommen AD32 Air Data Display system, the following paragraphs as amended by Amendments 23-1 through 23-54 must be complied with: §§23.305, 23.307, 23.365, 23.603, 23.609, 23.611, 23.613, 23.625, 23.627, 23.771, 23.773, 23.777, 23.1301, 23.1303, 23.1309, 23.1311, 23.1321, 23.1322, 23.1325, 23.1331, 23.1335, 23.1351, 23.1357, 23.1359, 23.1361, 23.1365, 23.1367, 23.1381, 23.1431, 23.1529, 23.1541, 23.1543, 23.1581 and the special conditions adopted by this rulemaking action. For systems that are not modified or impacted by the installation, the original certification basis listed on TC No. A24CE are still applicable.

If the Administrator finds that the applicable airworthiness standards do not contain adequate or appropriate safety standards because of novel or unusual design features of an airplane, special conditions are prescribed under the provisions of §21.16.

Special conditions, as appropriate, as defined in §11.19, are issued in accordance with §11.38 after public notice and become part of the type certification basis in accordance with §21.101.

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

ARINC, Inc. plans to incorporate certain novel and unusual design features into an airplane for which the airworthiness standards do not contain adequate or appropriate safety standards for protection from the effects of HIRF. These features include the addition of a digital Air Data computer, which may be susceptible to the HIRF environment, that were not envisaged by the existing regulations for this type of airplane.

Recent advances in technology have given rise to the application in aircraft designs of advanced electrical and electronic systems that perform functions required for continued safe flight and landing. Due to the use of sensitive solid-state advanced components in analog and digital electronics circuits, these advanced systems are readily responsive to the transient effects of induced electrical current and voltage caused by the HIRF. The HIRF can degrade electronic systems performance by damaging components or upsetting system functions.

Furthermore, the HIRF environment has undergone a transformation that was not foreseen when the current requirements were developed. Higher energy levels are radiated from transmitters that are used for radar, radio, and television. Also, the number of transmitters has increased significantly. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling to cockpit-installed equipment through the cockpit window apertures is undefined.

The combined effect of the technological advances in airplane design and the changing environment has resulted in an increased level of vulnerability of electrical and electronic systems required for the continued safe flight and landing of the airplane. Effective measures against the effects of exposure to HIRF must be provided by the design and installation of these systems. The accepted maximum energy levels in which civilian airplane system installations must be capable of operating safely are based on surveys and analysis of existing radio frequency emitters. These special conditions require that the airplane be evaluated under these energy levels for the protection of the electronic system and its associated wiring harness. These external threat levels, which are lower than previous required values, are believed to represent the worst case to which an airplane would be exposed in the operating environment.

These special conditions require qualification of systems that perform critical functions, as installed in aircraft, to the defined HIRF environment in paragraph 1 or, as an option to a fixed value using laboratory tests, in paragraph 2, as follows:

(1) The applicant may demonstrate that the operation and operational capability of the installed electrical and electronic systems that perform critical functions are not adversely affected when the aircraft is exposed to the HIRF environment defined below:

(2) The applicant may demonstrate by a system test and analysis that the electrical and electronic systems that perform critical functions can withstand a minimum threat of 100 volts per meter, electrical field strength, from 10 kHz to 18 GHz. When using this test to show compliance with the HIRF requirements, no credit is given for signal attenuation due to installation.

A preliminary hazard analysis must be performed by the applicant, for approval by the FAA, to identify either electrical or electronic systems that perform critical functions. The term “critical” means those functions whose failure would contribute to, or cause, a failure condition that would prevent the continued safe flight and landing of the airplane. The systems identified by the hazard analysis that perform critical functions are candidates for the application of HIRF requirements. A system may perform both critical and non-critical functions. Primary electronic flight display systems, and their associated components, perform critical functions such as attitude, altitude, and airspeed indication. The HIRF requirements apply only to critical functions.

Compliance with HIRF requirements may be demonstrated by tests, analysis, models, similarity with existing systems, or any combination of these. Service experience alone is not acceptable since normal flight operations may not include an exposure to the HIRF environment. Reliance on a system with similar design features for redundancy as a means of protection against the effects of external HIRF is generally insufficient since all elements of a redundant system are likely to be exposed to the fields concurrently.

Applicability: As discussed above, these special conditions are applicable to Raytheon Model 200, 300, and B300 airplanes. Should ARINC, Inc. apply at a later date for a supplemental type certificate to modify any other model on the same type certificate to incorporate the same novel or unusual design feature, the 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 models listed. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

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

Transport Canada, which is the airworthiness authority for Canada, recently notified us that an unsafe condition might exist on PWC PT6B-36A and PT6B-36B turboshaft engines. Transport Canada advises that a compressor rear hub, P/N 3018111, was discovered that exceeded the published life limit. This occurred because the operator used an incorrect life limit calculation. PWC investigated and confirmed that PWC Service Bulletin (SB) No. 11002, Original issue-through-Revision 7, incorrectly listed the Flight Count Factor (FCF) of 1 for compressor rear hubs, P/N 3018111. The correct FCF for that part is 3.

We have reviewed and approved the technical contents of PWC SB No. 11002, Revision 8, dated June 11, 2003, that provides the service life limit and correct FCF for compressor rear hubs P/N 3018111. Transport Canada classified this service bulletin as mandatory and issued AD CF-2003-16, dated June 27, 2003, to ensure the airworthiness of these PT6B-36A and PT6B-36B turboshaft engines in Canada.

These PWC PT6B-36A and PT6B-36B turboshaft engines are manufactured in Canada and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Under this bilateral airworthiness agreement, Transport Canada kept the FAA informed of the situation described above. We have examined the findings of Transport Canada, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

The unsafe condition described previously is likely to exist or develop on other PWC PT6B-36A and PT6B-36B turboshaft engines of the same type design. We are issuing this AD to prevent uncontained failure of the compressor rear hub and damage to the airplane. This AD requires reviewing, and correcting if necessary the critical part record for compressor rear hubs, P/N 3018111. This AD also requires removing compressor rear hubs from service that exceed the published part life limit, before further flight. You must use the service information described previously to perform the actions required by this AD.

Since an unsafe condition exists that requires the immediate adoption of this AD, we have found that notice and opportunity for public comment before issuing this AD are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

We have implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, we post new AD actions on the DMS and assign a DMS docket number. We track each action and assign a corresponding Directorate identifier. The DMS docket No. is in the form “Docket No. FAA-200X-XXXXX.” Each DMS docket also lists the Directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment; however, we invite you to submit any written relevant data, views, or arguments regarding this AD. Send your comments to an address listed under ADDRESSES. Include “AD Docket No. FAA-2004-19170; Directorate Identifier 2004-NE-18-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify it.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this AD. Using the search function of the DMS web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications with you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You may examine the docket that contains the AD, any comments received, and any final disposition in person at the DMS Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone (800) 647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES. Comments will be available in the AD docket shortly after the DMS receives them.

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

For the reasons discussed above, I certify that the regulation:

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

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

3. 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.

The FAA proposed to amend 14 CFR part 39 with a proposed AD. The proposed AD applies to PWC models PW123, PW123B, PW123C, PW123D, PW123E, PW123AF, PW124B, PW125B, PW126A, PW127, PW127E, PW127F, and PW127G turboprop engines. We published the proposed AD in the Federal Register on December 10, 2003 (68 FR 68802). That action proposed to require initial and repetitive gap inspections of the bypass valve cover, on certain part number (P/N) mechanical fuel controls (MFCs), and replacement of those MFCs as mandatory terminating action to the repetitive inspections.

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

We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal or on the determination of the cost to the public.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

There are about 2,800 PWC models PW123, PW123B, PW123C, PW123D, PW123E, PW123AF, PW124B, PW125B, PW126A, PW127, PW127E, PW127F, and PW127G turboprop engines of the affected design in the worldwide fleet. We estimate that 473 engines installed on airplanes of U.S. registry will be affected by this AD. We also estimate that it will take about 0.1 work hour per engine to perform the inspection, about 1 work hour per engine to replace the MFC during maintenance, and that the average labor rate is $65 per work hour. Required parts will cost about $72,000 per engine. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $34,089,819. The manufacturer has stated that it may provide the new design MFCs at no cost to operators, and that if the MFC is replaced at shop visit, no additional labor costs will be incurred.

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

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

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES. Include “AD Docket No. 2003-NE-35-AD” in your request.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2000-10-15, amendment 39-11739 (65 FR 34069, May 26, 2000), which is applicable to certain Airbus Model A320 series airplanes, was published in the Federal Register on February 13, 2004 (69 FR 7176). The action proposed to retain the requirements of AD 2000-10-15 (modification of the rear spar web of the wing, cold expansion of certain attachment holes for the forward pintle fitting and certain holes at the actuating cylinder anchorage of the main landing gear (MLG), and repetitive inspections for fatigue cracking in certain areas of the rear spar of the wing; and corrective action if necessary; with optional terminating action for those requirements). The notice of proposed rulemaking (NPRM) proposed to revise the threshold and repetitive intervals for the inspection.

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

One commenter supports the AD as proposed.

One commenter, an airline operator, suggests that the grace period (60 days) specified in paragraph (c)(1) of the proposed AD is overly restrictive. The operator requests that the grace period be changed to correspond to the next C-check (18 months for this operator). This recommended grace period would provide sufficient time for operators to do the optional terminating modification specified in the proposed AD. The operator reports that the modification (which has been done on 80 percent of its fleet to date) has revealed only one cracked fastener hole, representing 0.05 percent of all fastener holes inspected. The operator asserts that its proposed grace period would still allow for the safe continued airworthiness of the affected airplanes.

The FAA agrees with the commenter's request and rationale. We agree that the proposed 60-day grace period was unnecessarily restrictive. The commenter's proposed grace period approximates the grace periods mandated by the parallel French airworthiness directive. We have accordingly revised the grace period in paragraph (c)(1) of this final rule.

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

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.

This AD will affect about 126 airplanes of U.S. registry. The following table provides the cost estimates of the actions currently required by AD 2000-10-15:

This AD will not add any new actions and therefore will not add any economic burden on operators—except for the additional cost associated with a potentially shortened inspection interval.

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

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

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

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Indiana program effective July 29, 1982. You can find background information on the Indiana program, including the Secretary's findings, the disposition of comments, and the conditions of approval, in the July 26, 1982, Federal Register (47 FR 32071). You can also find later actions concerning the Indiana program and program amendments at 30 CFR 914.10, 914.15, 914.16, and 914.17.

By letter dated June 2, 2004 (Administrative Record No. IND-1727), Indiana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). Indiana sent the amendment at its own initiative. Indiana proposed revisions to and additions of rules pertaining to blasting schedules and blaster certification. Indiana intends to revise its program to improve operational efficiency.

We announced receipt of the proposed amendment in the July 19, 2004, Federal Register (69 FR 42937). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on August 18, 2004. We received comments from one Federal agency.

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment as described below.

Indiana proposed minor wording, editorial, punctuation, grammatical, or recodification changes to the following previously-approved rules: 312 Indiana Administrative Code (IAC) 25-6-31(a)(3) and (b), 25-9-5(c), and 25-9-8(b)(1) and (2).

Because these changes are minor, we find that they will not make Indiana's rules less effective than the corresponding Federal regulations.

Indiana proposed to remove the last sentence in subsection (c) that requires revised blasting schedules to be approved by the director of the Department of Natural Resources before publication and distribution. The deleted sentence duplicates a provision that is also found at 312 IAC 25-6-32(a). The Indiana regulation at 312 IAC 25-6-32(a) requires the permittee to submit the blasting schedule required by 312 IAC 25-6-31 to the director of the Department of Natural Resources for approval 60 days before publishing the schedule.

The counterpart Federal regulation at 30 CFR 816.64(a) requires operators to conduct blasting operations at times approved by the regulatory authority and announced in the blasting schedule. Deleting the last sentence in subsection (c) will not render Indiana's rule less effective than the counterpart Federal regulation. Therefore, we are approving the deletion of this sentence.

Indiana proposed to revise subsection (g) by allowing an applicant who fails an examination to retake the examination two times without reapplying and by requiring an applicant who fails the examination three times to retake the certified blaster training course.

The counterpart Federal regulation at 30 CFR 850.14 requires regulatory authorities to ensure that candidates for blaster certification are examined, at a minimum, in the topics set forth in 30 CFR 850.13(b). They do not contain provisions that govern examination procedures. We find that Indiana's proposed revisions will allow the State more flexibility in administering its blaster certification examinations and will not alter the effectiveness of its previously approved provisions. We also find that the added requirements appear reasonable and are not inconsistent with the requirements of the counterpart Federal regulation at 30 CFR 850.14. Therefore, we are approving Indiana's revisions to subsection (g).

Indiana proposed to add new subdivision (b)(3) that requires certified blasters to obtain a minimum of 15 hours of additional training in the topics found in 312 IAC 25-9-3 in order to renew their blaster certification. Also, each certified blaster must provide documentation of the training, and the training must be approved by the Department of Natural Resources. Indiana also proposed to add new language to subsection (c) to require blasters whose certifications are not renewed for more than 1 year after expiration to retake the examination under 312 IAC 25-9-5 and demonstrate completion of 15 hours of additional training in the previous 36 months. In addition, if the certification is not renewed for five years after expiration, the certification will not be renewable.

The counterpart Federal regulation at 30 CFR 850.15 does not contain specific requirements concerning renewal of blaster certifications. The Federal regulation at 30 CFR 850.15(a) requires regulatory authorities to certify, for a fixed period, candidates examined and found to be competent and to have the necessary experience to accept responsibility for blasting operations in surface coal mining operations. Also, the Federal regulation at 30 CFR 850.15(c) allows regulatory authorities to require the periodic reexamination, training, or other demonstration of continued blaster competency.

We find that Indiana's above proposed requirements are reasonable and are consistent with the counterpart Federal regulation at 30 CFR 850.15 and do not alter the effectiveness of the State's previously approved blaster certification provisions. Therefore, we are approving them.

We asked for public comments on the amendment, but did not receive any.

On June 10, 2004, under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Indiana program (Administrative Record No. IND-1729A). The United States Fish and Wildlife Service responded on July 12, 2004 (Administrative Record No. IND-1731), that it noted no significant issues related to wildlife conservation.

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ).

None of the revisions that Indiana proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment.

On June 10, 2004, under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record No. IND-1729A). EPA did not respond to our request.

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 10, 2004, we requested comments on Indiana's amendment (Administrative Record No. IND-1729A), but neither responded to our request.

Based on the above findings, we approve the amendment Indiana sent us on June 2, 2004.

We approve the rules proposed by Indiana with the provision that they be fully promulgated in identical form to the rules submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR part 914, which codify decisions concerning the Indiana program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. This determination is based on the fact that the Indiana program does not regulate coal exploration and surface coal mining and reclamation operations on Indian lands. Therefore, the Indiana program has no effect on Federally-recognized Indian tribes.

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq. ).

The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM, which would incorporate a comment period before a final rule could be issued, and delaying the rule's effective date are contrary to public safety because immediate action is necessary to protect the public and waters of the United States.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Immediate action is necessary to protect the public and waters of the United States. The Coast Guard will issue a broadcast notice to mariners and may place Coast Guard vessels in the vicinity of this zone to advise mariners of the restriction.

This rule is needed to protect marine craft transiting the Port Canaveral Entrance Channel. The safety zone includes all those waters shoreward of a boundary that originates on the beach in position 28°21′24″ N 080°36′12″ W; and extends east to 28°21′24″ N 080°30′18″ W; then north to 28°24′48″ N 080°30′18″ W; then west to the beach where the zone will terminate at position 28°24′48″ N 080°35′00″ W. Anchoring, mooring, or transiting within this zone is prohibited, unless authorized by the Captain of the Port, Jacksonville, FL.

This regulation is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential cost and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS) because these regulations will only be in effect for a short period of time, and the impacts on routine navigation are expected to be minimal.

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

The Coast Guard certifies under 5 U.S.C. 605 (b) that this rule will not have a significant economic impact upon a substantial number of small entities because although the safety zone will apply to all vessels transiting the port with a draft greater than 22 feet, traffic will be allowed to pass through the zone with the permission of the Coast Guard Captain of the Port and the impact on routine navigation is expected to be minimal.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process. If the rule will affect your small business, organization, or government jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed under FOR FURTHER INFORMATION CONTACT for assistance in understanding this rule.

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

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (34)(g), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Due to the warnings given by national security and intelligence officials that there is an increased risk that further subversive or terrorist activity may be launched against the United States, a heightened level of security has been established around the Queen Mary II while in the Portland, Maine, Captain of the Port zone. This security zone is needed to protect the passenger vessel, persons aboard the passenger vessel, the public, waterways, ports and adjacent facilities from potential sabotage or other subversive acts, accidents, or other events of a similar nature taken upon the Queen Mary II while in the Portland, Maine, Captain of the Port zone. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . It is necessary and prudent to enact this temporary security zone in order to properly protect the vessel, passengers, crew and others in the maritime community from possible terrorist actions. Any delay in the effective date of this rule is impractical and contrary to the public interest.

Since the September 11, 2001 terrorist attacks on the World Trade Center in New York, the Pentagon in Arlington, Virginia, and Flight 93, the Federal Bureau of Investigation (FBI) has issued several warnings concerning the potential for additional terrorist attacks within the United States. In addition, the ongoing operations in the Middle East have made it prudent for U.S. ports to be on a higher state of alert because the Al-Qaeda organization and other similar organizations have declared an ongoing intention to conduct armed attacks on U.S. interests worldwide. The Captain of the Port, Portland, Maine, will notify the maritime community of the periods during which the security zone will be enforced. Broadcast notifications will also advise the maritime community of the boundaries of the zone.

No person or vessel may enter or remain in the prescribed security zone at any time without the permission of the Captain of the Port, Portland, Maine. Each person or vessel in a security zone must obey any direction or order of the Captain of the Port or the designated Coast Guard on-scene representative. The Captain of the Port may take possession and control of any vessel in a security zone and/or remove any person, vessel, article or thing from a security zone. No person may board, take or place any article or thing on board any vessel or waterfront facility in a security zone without permission of the Captain of the Port. Any violation of any security zone described herein, is punishable by, among others, civil penalties (not to exceed $32,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 6 years and a fine of not more than $250,000 for an individual and $500,000 for an organization), in rem liability against the offending vessel, and license sanctions. This regulation is established under the authority contained in 50 U.S.C. 191, 33 U.S.C. 1223, 1225 and 1226.

Due to these concerns, a temporary security zone around the Queen Mary II is necessary to ensure the safety and protection of the passengers aboard. As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended section 7 of the Ports and Waterways Safety Act (PWSA), 33 U.S.C. 1226, to allow the Coast Guard to take actions, including the establishment of security zones, to prevent or respond to acts of terrorism against individuals, vessels, or public or commercial structures. Moreover, the Coast Guard has authority to establish security zones pursuant to the Act of June 15, 1917, as amended by the Magnuson Act of August 9, 1950 (50 U.S.C. 191 et seq. ) (the “Magnuson Act”), and implementing regulations promulgated by the President in subparts 6.01 and 6.04 of Part 6 of Title 33 of the Code of Federal Regulations.

This rule establishes a security zone around the Queen Mary II while the vessel is underway, anchored, moored, or in the process of mooring in the Captain of the Port, Portland, Maine zone between September 27, 2004, and October 10, 2004. This temporary security zone is necessary to ensure public safety and prevent potential sabotage or terrorist acts against the vessel and the surrounding area.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this rule to be so minimal that a full regulatory evaluation under the regulatory policies and procedures of the DHS is unnecessary.

This rule is not significant for the following reasons: the impact on navigation will be for a minimal amount of time, and delays, if any, will be short in length as vessels will have ample space to navigate around the zone. Moreover, broadcast notifications will be made to the maritime community advising them of the boundaries of the zone and Coast Guard and other law enforcement assets will be on-scene to direct vessels away from the zone. These law enforcement assets will be recognizable by law enforcement insignia, markings, and warning lights.

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

For reasons enumerated in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit or anchor in the zone during the specified closure period. However, this rule will not have a significant economic impact on a substantial number of small entities due to the minimal time that vessels will be restricted from the area of the zone, and the vessels' ability to navigate safely around the zone.

Under subsection 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If this rule would affect your small business, organization or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Ensign Jarrett B. Bleacher at Marine Safety Office Portland, (207) 780-3251.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3427). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management system practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation, since implementation of this action will not result in any: (1) Significant cumulative impacts on the human environment; (2) Substantial controversy or substantial change to existing environmental conditions; (3) Impacts on properties protected under the National Historic Preservation Act or (4) Inconsistencies with any Federal, State or local laws or administrative determinations relating to the environment. A final “Environmental Analysis Checklist” and a final “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES .

Regulated Entities. This interpretative rule concerns applicability of 40 CFR part 63, subpart RRR, to specific facilities that thermally delaminate aluminum foil from paper and plastic and then mechanically granulate the recovered metal. This interpretative rule determines that these facilities are secondary aluminum production facilities as defined by subpart RRR, and that such facilities are therefore subject to regulation under that subpart. This interpretative rule does not govern determinations regarding the applicability of subpart RRR to other types of activities or operations, although the rationale for the conclusions in this interpretative rule may be relevant in other contexts.

Judicial Review. This interpretative rule is based on a determination of nationwide scope and effect. Under section 307(b)(1) of the CAA, judicial review of this interpretative rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit by November 30, 2004. Moreover, under section 307(b)(2) of the CAA, any judicial review of this interpretative rule must be obtained pursuant to section 307(b)(1) and this interpretation may not be subjected to separate judicial review in any civil or criminal proceedings for enforcement.

This interpretative rule is the outcome of a review by EPA of the applicability of the NESHAP for secondary aluminum producers, 40 CFR part 63, subpart RRR, to a specific type of facility which thermally delaminates aluminum foil from paper and plastic and then mechanically granulates the recovered metal. This review was undertaken following the decision of EPA to vacate two applicability determinations which were previously made by the EPA regional offices concerning facilities of this type owned and operated by the U.S. Granules Corporation.

One of these applicability determinations concerned the U.S. Granules facility in Plymouth, Indiana and was made by the EPA Region 5 Air Enforcement and Compliance Assurance Branch on August 21, 2002, in response to a request for such a determination by U.S. Granules dated August 14, 2002. Notice of this applicability determination (Control No. M020112) was published in the Federal Register on February 13, 2003. 68 FR 7373. EPA Region 5 based its conclusions in this determination on a phrase in the definition in subpart RRR of a “scrap dryer/delaquering kiln/decoating kiln” which states that such units are used to remove contaminants from aluminum scrap “prior to melting.” EPA Region 5 concluded that the delamination chamber at the Plymouth facility does not fit within this definition because all processing of the recovered aluminum at the Plymouth facility is entirely mechanical and the recovered aluminum is never melted.

The other applicability determination concerned the U.S. Granules facility in Henrietta, Missouri, and was made by the EPA Region 7 Air Permitting and Compliance Branch on October 22, 2002, in response to a request for such a determination by U.S. Granules dated October 11, 2002. Notice of this applicability determination (Control No. M020117) was also published in the Federal Register on February 13, 2003. 68 FR 7373. In the determination concerning the Henrietta facility, Region 7 concluded that the delamination chamber at the Henrietta facility is within the definition of a “scrap dryer/delacquering kiln/decoating kiln” even though the recovered aluminum is not melted at the Henrietta facility. Region 7 reasoned that the phrase “prior to melting” in the definition is merely intended to indicate that the recovery process is normally performed before the recovered aluminum is placed in a furnace to be melted. Region 7 noted that it is the use of heat to remove contaminants from scrap aluminum that generates the emissions of dioxins and furans that subpart RRR is intended to control. Region 7 also found that a unit at the Henrietta facility that dries alumninum chips was a “thermal chip dryer” subject to subpart RRR.

After issuance of these two applicability determinations, EPA determined that these determinations reflected conflicting constructions concerning the applicability of subpart RRR to aluminum delamination operations like those conducted at the U.S. Granules facilities. EPA also determined that the retention of such conflicting constructions would be inappropriate as a matter of law and policy. Accordingly, EPA decided to vacate both of these applicability determinations and to commence a process to adopt a single uniform construction of subpart RRR which would apply to all operations like those conducted at the U.S. Granules facilities.

The decision to vacate the determination concerning the Plymouth facility was announced in a letter to U.S. Granules dated June 19, 2003. The decision to vacate the Henrietta determination was announced in a letter to U.S. Granules dated June 23, 2003. Although the vacature of each of these applicability determinations was final and effective on the date that each letter announcing that vacature was signed, EPA also published a notice announcing vacature of these two applicability determinations. 68 FR 42397, September 3, 2003.

Following issuance of the affirmative determination concerning the applicability of subpart RRR to the Henrietta facility, U.S. Granules Corporation brought an action seeking judicial review of that determination. U.S. Granules Corp. v. Whitman, No. 03-1946 (8th Circuit). After EPA vacated the Henrietta determination and published the notice of vacature, U.S. Granules moved to dismiss its petition for review. That case was dismissed on September 4, 2003.

After EPA decided to adopt a single uniform construction of subpart RRR which would apply to all operations like those conducted at the U.S. Granules facilities, EPA concluded that the appropriate vehicle to announce such a uniform construction is an interpretative rule. The interpretation adopted in an interpretative rule is binding on all EPA offices and permitting authorities, thereby assuring a uniform and predictable outcome. However, the reasonableness of the construction of subpart RRR adopted in this interpretative rule is still subject to appropriate judicial review.

This interpretative rule is limited solely to the question of whether a delamination chamber of the type operated at the Plymouth and Henrietta U.S. Granules facilities is a “scrap dryer/delacquering kiln/decoating kiln” as that term is defined in 40 CFR 63.1503. Although we believe that the affirmative applicability determination concerning the unit that dries aluminum chips at the Henrietta facility was correct, we do not believe it is necessary to revisit that determination because counsel for U.S. Granules advised EPA in a letter dated December 23, 2002, that U.S. Granules did not contest the determination concerning the chip dryer and that U.S. Granules intended to decomission and remove the chip dryer from that facility before the effective date of subpart RRR.

This interpretative rule is intended to be nationwide in scope and effect. It applies to any and all facilities that operate delamination units similar to those operated at the U.S. Granules Plymouth and Henrietta facilities, although we note that U.S. Granules believes that there are no other sources in North America that thermally delaminate aluminum scrap and then mechanically granulate the recovered metal.

We note at the outset that subpart RRR applies to “each new and existing scrap dryer/delacquering kiln/decoating kiln” at a facility that is a major source or area source of hazardous air pollutants. 40 CFR 63.1500(b)(3) and 63.1500(c)(2). 40 CFR 63.1503 defines a “scrap dryer/delacquering kiln/decoating kiln” as “a unit used primarily to remove various organic contaminants such as oil, paint, lacquer, ink, plastic, and/or rubber from aluminum scrap (including used beverage containers) prior to melting.”

The delamination chambers at the U.S. Granules Plymouth and Henrietta facilities use heat to separate aluminum foil from paper and plastic in scrap, but the chambers operate at a maximum temperature of 900 degrees Fahrenheit and no melting of the recovered aluminum occurs in the chamber. If an identical delamination unit were located at a facility that itself melts the recovered aluminum, there would be no question that it would fit within this definition, and we do not understand U.S. Granules to dispute that conclusion. It is also clear that the delamination units used by U.S. Granules perform the same general type of operations for recovery of aluminum from scrap that EPA intended to regulate in subpart RRR. However, we acknowledge that the use of the phrase “prior to melting” in the definition of a scrap dryer/delacquering kiln/decoating kiln cannot simply be disregarded. In its affirmative applicability determination, Region 7 argues that the phrase “prior to melting” indicates that the recovery of aluminum from scrap would normally occur prior to melting. However, we think this argument is not persuasive unless the phrase in question was intended to be solely illustrative, and that is not clear on the face of the definition. If our conclusion turned solely on this factor, we would be more inclined to amend the rule in a manner which resolved the ambiguity than to try and construe the existing definition.

Fortunately, we need not resolve this issue to conclude that the delamination chambers at the U.S. Granules facilities are within the definition. The negative applicability determination by Region 5 appears to be based on the argument by U.S. Granules that the recovered aluminum must be melted at the same facility in order for the definition to apply. However, nothing in the definition indicates that the subsequent melting of recovered aluminum must occur at the same facility that conducts the recovery operation. Our discussions with U.S. Granules personnel and our review of the company's Web site indicate that some of the customers who buy the recovered aluminum granules from U.S. Granules subsequently melt the purchased material to produce new aluminum products. While some customers may use the aluminum granules without melting them, those granules which are subsequently melted are produced by an identical recovery process. This is sufficient to confirm that the operations to recover aluminum from scrap at the U.S. Granules facilities should not be treated differently from otherwise similar operations at sources who themselves melt the recovered aluminum.

If we were to construe the definition in any other way, this would permit other sources to evade the applicability of emission controls required by the rule by merely moving those operations which melt the recovered secondary aluminum to another site. This result would violate our established requirement that sources may not fragment an operation in order to avoid regulation under an applicable standard. See 40 CFR 63.4(b)(3). We decline to construe the definitions in subpart RRR in a manner which would allow secondary aluminum production facilities to fragment their operations to evade emission control requirements.

Based on this analysis, we conclude that the delamination chambers operated by the U.S. Granules Plymouth and Henrietta facilities, and any similar secondary aluminum operations which may be conducted now or in the future at other sources, are governed by subpart RRR. Although this interpretative rule will take effect on November 1, 2004, we note that subpart RRR itself is already in effect. That is why the letters that we sent to U.S. Granules vacating the two previous conflicting applicability determinations stated that, if we were to adopt a construction of subpart RRR resulting in a new positive applicability determination for the affected facilities, we would afford U.S. Granules a reasonable period to undertake any activities required to come into compliance or to establish continued compliance with subpart RRR. Consequently, U.S. Granules will be required to comply with subpart RRR within 240 days of the effective date of this Interpretative Rule.

Under Executive Order 12866, (58 FR 51736, October 4, 1993), this interpretative rule is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget.

Section 553(b)(3)(A) of the Administrative Procedure Act provides that interpretative rules are not subject to notice-and-comment requirements under the Administrative Procedure Act. Interpretative rules which do not involve the internal revenue laws of the United States are not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because notice-and-comment requirements do not apply to this interpretative rule, this rule is also not subject to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532 and 1535).

In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This interpretative rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This interpretative rule will not have significant direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This interpretative rule is also not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant. This action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This interpretative rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994).

In issuing this interpretative rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the interpretative rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This interpretative rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Our compliance with statutes and Executive Orders in promulgating the rule which is interpreted herein (40 CFR part 63, subpart RRR) is discussed in the Federal Register notice concerning the original promulgated rule (63 FR 15690, March 23, 2000), and in the Federal Register notice concerning subsequent amendments to that rule (67 FR 79808, December 30, 2002).

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. We have established an effective date of November 1, 2004. The 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 the rule in the Federal Register . This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The site to be deleted from the NPL is: Dubose Oil Products Superfund Site, Cantonment, Florida.

A Notice of Intent to Delete for this site was published August 4, 2004, 69 FR 47072. The closing date for comments on the notice of Intent to Delete was September 3, 2004. The EPA received no comments.

The EPA identifies sites that appear to present a significant risk to public health, welfare, or the environment and it maintains the NPL as the list of those sites. Any site deleted from the NPL remains eligible for Fund-financed remedial actions in the unlikely event that conditions at the site warrant such action in the future. Section 300.425(e)(3) of the NCP states that Fund-financed actions may be taken at sites deleted from the NPL. Deletion of a site from the NPL does not affect responsible party liability or impede agency efforts to recover costs associated with response efforts.

The final rule that is the subject of these corrections amends the Schedule of Applications Fees, 47 CFR 1.1102 et seq. , to adjust its fees for processing applications and other filings. Section 8(b) of the Communications Act, as amended, requires that the Commission review and adjust its application fees every two years after October 1, 1991.

As published, the final rule contains an error which provides the wrong fee amount and payment type code for a license to operate a direct broadcast satellite in § 1.1107, Schedule of Charges for Applications and Other Filings for the International Service.

This is a summary of the Commission's Report and Order, MB Docket No. 03-144 adopted September 15, 2004, and released September 20, 2004. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20054, telephone 1-800-378-3160 or http://www.BCPIWEB.com. The Commission will send a copy of the Report and Order in this proceeding in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

To accommodate the Crawford allotment, this document also substituted Channel 299A for Channel 272A at Gunnison, Colorado and modified the license of Station KVLE(FM) accordingly; and changed the reference coordinates for vacant Channel 270C2 at Olathe, Colorado. Channel 272C2 can be allotted to Crawford consistent with the Commission's minimum distance separation requirements provided there is a site restriction of 20.9 kilometers (13 miles) southeast of the community. The reference coordinates for Channel 272C2 at Crawford are 38-32-05 North Latitude and 107-30-27 West Longitude. Station KVLE-FM license at Gunnison can be modified on Channel 299A at its current authorized transmitter site. The coordinates for Channel 299A at Gunnison are 38-33-53 NL and 106-55-38 WL. The new reference coordinates for vacant Channel 270C2 at Olathe are 38-26-25 NL and 108-09-47 WL. This site requires a site restriction 15.8 kilometers (9.8 miles) west of the community.

On January 26, 2004, the Research and Special Programs Administration (RSPA, we) published a final rule under Docket HM-230 (69 FR 3632) amending requirements in the HMR pertaining to the transportation of radioactive materials based on changes contained in the IAEA publication entitled “IAEA Safety Standards Series: Regulations for the Safe Transport of Radioactive Material,” 1996 Edition, No. TS-R-1. On September 13, 2004, we published a final rule (69 FR 55113) that made corrections to the January 26, 2004 final rule.

This document corrects editorial and technical errors in the September 13, 2004 final rule which have come to our attention.

In paragraph (d)(6)(i), we are correcting a typographical error.

In § 173.403, we are correcting certain inadvertent omissions in the definition for “Low Specific Activity (LSA) material.”

Paragraph (b)(2)(ii) is corrected to retain the wording that currently appears in the HMR, which was inadvertently changed in the September 13, 2004 final rule.

Paragraph (b)(4) is corrected to specify that, for domestic transportation, exclusive use shipment of Low Specific Activity (LSA) material and Surface Contaminated Object (SCO) must be less than an A 2 quantity when in a packaging which meets the requirements of §§ 173.24, 173.24a, and 173.410. The current wording specifies that the shipment must be less than or equal to an A 2 quantity.

This final rule is not a significant action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is not a significant action under the Regulatory Policies and Procedures of the Department of Transportation. The revisions adopted in this final rule do not alter the cost-benefit analysis and conclusions contained in the Regulatory Evaluation prepared for the January 26, 2004 final rule. The Regulatory Evaluation is available for review in the public docket for this rulemaking.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements, but does not propose any regulation that has direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous material transportation law, 49 U.S.C. 5101-5127, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(1) The designation, description, and classification of hazardous material;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents related to hazardous material and requirements related to the number, contents, and placement of those documents;

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

(5) The design, manufacturing, fabricating, marking, maintenance, reconditioning, repairing, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This final rule addresses the classification, packaging, marking, labeling, and handling of hazardous material, among other covered subjects and preempts any State, local, or Indian tribe requirements not meeting the “substantively the same” standard. This rule is necessary to incorporate changes already adopted in international standards. If the amendments adopted in this final rule were not made, U.S. companies, including numerous small entities competing in foreign markets, will be at an economic disadvantage. These companies would be forced to comply with a dual system of regulation. The amendments are intended to avoid this result.

Federal hazardous materials transportation law provides at 49 U.S.C. § 5125(b)(2) that, if the Secretary of Transportation issues a regulation concerning any of the covered subjects, the Secretary must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of our January 26, 2004 final rule, including the effective date of Federal preemption is October 1, 2004. Because this final rule makes editorial corrections, the effective date of Federal preemption of this final rule is also October 1, 2004.

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

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines a rule is not expected to have a significant economic impact on a substantial number of small entities. The corrections contained in this final rule will have little or no effect on the regulated industry. Based on the assessment in the regulatory evaluation, to the January 26, 2004 final rule, I hereby certify that, while this rule applies to a substantial number of small entities, there will not be a significant economic impact on those small entities. A detailed regulatory flexibility analysis prepared for the January 26, 2004 final rule is available for review in the docket.

This final rule has been developed in accordance with Executive Order 13272 (“Proper Consideration of Small Entities in Agency Rulemaking”) and DOT's procedures and policies to promote compliance with the Regulatory Flexibility Act to ensure that potential impacts of draft rules on small entities are properly considered.

This final rule imposes no new information collection requirements.

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

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objectives of the rule.

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. The Nuclear Regulatory Commission (NRC) prepared an environmental assessment (EA) of “Major Revision to Packaging and Transportation of Radioactive Material Regulations,” Final Report, March 2002, on its final rule which addresses issues also raised in this rulemaking. On the basis of this EA, we find that there are no significant environmental impacts associated with this final rule. A copy of the environmental assessment prepared by the NRC is available for review in the docket.

Anyone is able to 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 DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

On December 27, 2002, the agency published in the Federal Register (67 FR 79416) a final rule establishing Federal Motor Vehicle Safety Standard (FMVSS) No. 403, Platform lift systems for motor vehicles, and FMVSS No. 404, Platform lift installation on motor vehicles (final rule), effective December 27, 2004. These two new standards provide practicable, performance based requirements and compliance procedures for the regulations promulgated by the DOT under the American with Disabilities Act  1 (ADA). FMVSS Nos. 403 and 404 provide that only lift systems that comply with objective safety requirements may be placed in service.

FMVSS No. 403 establishes requirements for platform lifts that are designed to carry passengers who rely on wheelchairs, scooters, canes, and other mobility aid devices in entering and exiting motor vehicles. The standard requires that these lifts meet minimum platform dimensions and maximum size limits for platform protrusions and gaps between the platform and either the vehicle floor or the ground. The standard also requires handrails, a threshold warning signal, and retaining barriers. Performance tests are specified for wheelchair retention on the platform, lift strength, and platform slip resistance requirements. A set of interlocks is prescribed to prevent accidental movement of a lift and the vehicle on which a lift is installed.

FMVSS No. 404 establishes requirements for vehicles equipped with platform lifts. The lifts must be certified as meeting FMVSS No. 403. The vehicle standard requires that the lifts be installed according to the lift manufacturer's instructions and must continue to meet all of the applicable requirements of FMVSS No. 403. The standard also required that specific information is made available to lift users.

Recognizing the different usage patterns of platform lifts on public transit versus that of platform lifts for individual use, the agency established separate requirements for public use lifts and private use lifts. S4.1.1 of FMVSS No. 404 requires that lift-equipped buses, school buses and multipurpose passenger vehicles other than motor homes with a gross vehicle weight rating greater than 4,536 kg (10,000 lb) must be equipped with a lift certified to all applicable public use lift requirements set forth in FMVSS No. 403. Since lifts on these vehicles will generally be subject to more stress and cyclic loads and will be used by more and varied populations, more requirements as to platform size, control, and handrails are appropriate.

As required by the ADA, FMVSS Nos. 403 and 404 are consistent with the Architectural and Transportation Barriers Compliance Board (ATBCB) guidelines published on September 6, 1991 (56 FR 45530). In order to provide manufacturers sufficient time to meet any new requirements established in FMVSS Nos. 403 and 404, the agency provided a two-year lead time. These standards will become effective December 27, 2004.

In response to the final rule, the agency received six petitions for reconsideration from platform lift manufacturers, vehicle manufacturers, and a transportation safety research organization. Specifically, petitions were received from: Lift-U, a platform lift manufacturer; Stewart & Stevenson, a platform lift manufacturer; Braun Industries Incorporated (Braun), an ambulance and “mobile intensive care and a neo-natal land vehicles” manufacturer; Braun Corporation (Braun Corp), a lift and vehicle manufacturer; Mac's Lift Gate, Inc. (Mac's Lift Gate), a manufacturer of special purpose lifts; Prevost Car, Inc. (Prevost), an over-the-road bus manufacturer; and the University of Pittsburgh Engineering Research Center on Wheelchair Transportation Safety (University of Pittsburgh), a transportation safety research organization.

The petitioners requested the agency establish an exclusion for special purpose lifts, and amend the definitions of “deploy” and “stow,” the platform lift lighting requirements, the interlock requirements, the fatigue endurance requirement, the environmental resistance requirements, the platform deflection requirements, the edge guard requirements, control system requirements, the minimum load standard for private lifts, and the threshold warning requirements.

In response to these petitions, the agency is amending FMVSS Nos. 403 and 404 to clarify the applicability of these standards so that they do not apply to special purpose lifts and lifts installed on ambulances, redefine “deploy” and “stow” to be less design restrictive, establish the lighting requirements as a vehicle requirement; permit lift manufacturers to rely on existing vehicle components to comply with the interlock requirements, exclude lifts that manually deploy and stow from specified lift performance requirements, permit a wider range of platform lift designs to comply with environmental resistance requirements for internally stowed lifts, provide more flexibility in the degree of platform deflection between the unloaded platform and the vehicle floor, reduce the required extension of continuous edge guards to inner platform edge, establish a performance based alternative to the continuous edge guard requirement, establish further specifications for the wheelchair test device, clarify the term “control system,” provide flexibility in the placement of the control system panel, and make several corrections to the regulatory text adopted by the final rule. The issues raised by the petitioners are addressed below.

Braun and Mac's Lift Gate petitioned the agency to exclude special purpose lifts and vehicles equipped with special purpose lifts from the requirements of FMVSS Nos. 403 and 404, respectively. The petitioners argued that special purpose lifts and vehicles equipped with these lifts are used for medical transport only, such as the transport of individuals on cots, transport incubators, and isolet carriers. Braun and Mac's Lift Gate further argued that the size and configuration of special purpose lift systems are designed specifically to transport patients in cots or isolet carriers and prevent use by individuals using mobility aids such as wheel chairs, scooters, or canes. The petitioners stated that special purpose lifts are not intended to accommodate individuals in wheelchairs, mobility devices or individuals standing. In fact, the petitioners stated, the narrow width of most special purpose lifts makes it impossible to use for wheelchairs and mobility aids such as scooters. Therefore, the petitioners argued, because FMVSS Nos. 403 and 404 are intended to apply to lifts that accommodate individuals using canes, walkers, wheelchairs and mobility devices, it would be inappropriate to apply these regulations to lifts and vehicles equipped with lifts specifically designed to accommodate individuals for specialized medical transport.

Agency response: The agency is clarifying the applicability sections of FMVSS Nos. 403 and 404 to make it clear that these standards do not apply to lifts installed on medical transport vehicles for the purpose of loading and unloading cots and/or incubators, or to those vehicles themselves. NHTSA explained in the preamble to the final rule that its intent is to protect lift users aided by canes or walkers, as well as lift users seated in wheelchairs, scooters and other mobility devices in the course of ordinary transit.

FMVSS Nos. 403 and 404 are not intended to apply to systems involving specialized medical transport. Lifts used in specialized medical transport do not present the safety concerns addressed by these standards. The lifts described by the petitioners do not accommodate persons in wheelchairs, scooters, or other types of mobility devices as the platforms are generally far too narrow. Further, these specialized lifts transport individuals lying in cots and isolet carriers, and who generally have no control of their own mobility during transport.

Specialized medical lifts are not used in the ordinary transport of people with disabilities. Accordingly, this document amends the applicability sections of FMVSS Nos. 403 and 404 to clarify that special purpose lifts and the vehicles on which they are installed are not regulated by these standards.

Lift-U petitioned the agency for reconsideration of the definitions of “deploy” and “stow.” In its petition, Lift-U stated that the definition of “deploy” in the final rule specifies that a platform must deploy directly to one of the two loading positions. The petitioner explained that some lift models “deploy” from a stowed position to an extended position within the range of passenger operation instead of directly to one of the two loading positions. Lift-U stated that under this design, the raise or lower controls must be actuated to move the platform after it had been “deployed” to allow loading from either the vehicle or ground level loading position. Lift-U argued that the current definition of “deploy” would have the effect of prohibiting this design.

Lift-U also requested that the agency amend the definition of “stow.” The petitioner explained that “stow” with respect to a lift typically means that the devices are put away or placed in a position maintained during normal vehicle travel. However, the “stowed” position of a wheelchair retention device, a bridging device, or an inner roll stop used to allow a passenger to embark or disembark the platform may be an intermediate or extended position beyond the deployed position. Lift-U requested that the definition be amended to reflect this design variation properly.

Agency response: The agency grants Lift-U's petition with respect to the definitions of “deploy” and “stow.” While the definitions of “deploy” and “stow” in the final rule reflect a vast majority of platform lift designs, the agency recognizes there are a variety of active and passive lift designs in existence. For example, active wheelchair lifts require an additional entrance for wheelchair passengers, while passive wheelchair lifts use existing vehicle entrances. When stowed, a passive lift provides steps for passengers. When operational a passive lift forms a platform that lifts a wheelchair from the ground to the level of the vehicle floor. In recognition of existing design variations, the agency is amending these definitions to be less design restrictive.

In a typical lift design, the platform lift is mounted upright in the vehicle compartment. This type of lift will usually deploy directly to the vehicle loading position because the lift is close to this position when it deploys or unfolds. Some external lifts may deploy directly to the ground level loading position as they are close to that position when they deploy or unfold. However, passive lifts may deploy to an extended position so that they may be raised or lowered to one of the two loading positions. We see no safety problem with the any of these deployment methods so long as the maximum deployment speed is sufficiently slow to permit bystanders to move out of the path of a deploying platform lift, as required under S6.2.2.2. Accordingly, we are amending the definition of “deploy” in S4 of FMVSS No. 403 to reflect lift designs that move to an intermediate position when deployed.

To maintain consistency throughout FMVSS No. 403, the agency is also amending the control system requirements in S6.7.2.2 to reflect that a platform lift may deploy to an intermediate position as opposed to deploying directly to one of the two loading positions.

The agency also agrees with Lift-U that the position of a wheelchair retention device, bridging device, or inner roll stop during normal vehicle travel may not be the same as the position during passenger access to and from the platform. To reflect this design variety, we are amending the definition of “stow” in S4 of FMVSS No. 403, with respect to wheelchair retention devices, bridging devices, and inner-roll stops, to refer to the positioning during normal vehicle travel.

Under the final rule, public use platform lift manufacturers must provide lighting hardware along with detailed installation instructions that address the mounting, powering, location and positioning of lighting, as well as operational test procedures. The lighting equipment and installation instructions must permit a vehicle manufacturer to verify that, when installed according to the instructions, the lighting will be operational and meet the lighting requirements of FMVSS No. 403. When a lift manufacturer certifies the lift as complying with FMVSS No. 403, it is certifying that when the lighting equipment is installed as instructed on a vehicle for which the lift is intended (a list of suitable vehicles appears in the installation instructions), the lift will meet the applicable lighting requirements.

In petitions for reconsideration, both Prevost and the Braun Corp raised concerns regarding the lighting requirements for public use lifts. 2 Prevost specifically wanted to know if it is the responsibility of the lift manufacturer to incorporate lighting for the lift under FMVSS No. 403 or if it is the responsibility of the vehicle manufacturer to provide lighting under FMVSS No. 404.

The Braun Corp stated that identical lift products may be installed on a wide variety of vehicles. The Braun Corp claimed that although lift manufacturers can easily provide the method of interfacing platform lighting with the lift, they will have difficulty in determining the amount of lighting that will be required for each lift/vehicle application. Thus, the Braun Corp argued that the level of lighting intensity is application specific and should be determined at the time of lift installation. It further argued that public use vehicle manufacturers have already accepted responsibility for complying with the lighting requirements of 36 CFR 1192.31. 3 Therefore, the Braun Corp argued, compliance with the lighting standard should be the responsibility of the vehicle manufacturer.

Agency response: The agency structured the lighting requirements so that a platform lift system would be a complete, self-contained system ready for installation upon delivery to the vehicle manufacturer. While FMVSS No. 403 requires a lift manufacturer to provide the hardware and instructions necessary to install lighting in a manner that complies with the requirements of the standard, the agency explained that FMVSS No. 404 places the burden of complying with the lighting requirements on the vehicle manufacturer through compliance with the installation instructions (67 FR 79416, 79427).

The agency realizes that the vehicle manufacturers have traditionally provided lift lighting. Additionally, public use vehicle manufacturers already must comply with ADA lighting standards, which require lighting on doorways, step wells, lifts and ramps. In some cases, ADA required lighting in conjunction with other pre-existing vehicle lighting might already meet or exceed the lighting requirements of S6.4.11 in FMVSS No. 403. In these instances, lighting provided by a lift manufacturer would be redundant with efforts already required of vehicle manufacturers. For these reasons, we are requiring that vehicle manufacturers comply with the lighting requirements through vehicle lighting systems as opposed to the installation of lighting systems provided by a lift manufacturer. Accordingly, the lighting requirements are moved to FMVSS No. 404.

Platform lift manufacturers will now be required to place a statement in the installation instructions stating that, “Public use vehicle manufacturers are responsible for complying with the lift lighting requirements in Federal Motor Vehicle Safety Standard No. 404, Platform lift installations in motor vehicles (49 CFR 571.404).” The platform lift lighting requirement formerly in S6.4.11 of FMVSS No. 403 is now a motor vehicle requirement in S4.1.5 of FMVSS No. 404. As they are already required to meet the applicable lighting requirements under the ADA, this will not be an additional burden for the vehicle manufacturers.

In its petition for reconsideration, the Braun Corp also raised issues regarding the interlock requirements in FMVSS No. 403. The final rule established interlock requirements to prevent the forward or rearward motion of a vehicle while a platform lift is deployed. The agency determined that the compliance responsibility for the interlock requirements should rest with the platform lift manufacturer, and that the lift manufacturer must provide information identifying the appropriate vehicle make/model/year for installation of a particular lift design. Under the final rule, the lift manufacturer must certify that the installation hardware is fully compatible with those vehicles.

In response to this requirement, the Braun Corp argued that it is unreasonable to require a lift manufacturer to design door, brake and transmission interlocks to fit and immobilize all makes and models of vehicles. The Braun Corp explained that under current practice, lift manufacturers provide generic circuitry to interface with vehicle systems, but the design of an interlock is more appropriately the responsibility of the vehicle manufacturer.

Agency response: We recognize that it may be difficult for lift manufacturers to provide the vehicle parts necessary for interlocks to work with the lift circuitry. In many cases, the vehicle sensors and switches needed by these interlocks may already be part of existing vehicle systems. It may be possible for existing vehicle components to send and receive signals to and from the lift as part of the interlock system. We do not wish to discourage the use of interlock switches and sensors provided by vehicle manufacturers, which may provide better reliability than hardware supplied by the platform lift manufacturers.

Accordingly, the interlock requirements of FMVSS No. 403 are amended to permit lift manufacturers to rely on vehicle system components. The requirements established by this rule still require lift manufacturers to have prior knowledge of how a lift will interface with each particular vehicle model for which the lift is intended. However, S6.10.2 of FMVSS No. 403 is amended by this rule to relieve lift manufacturers from the responsibility of providing the entire interlock system. A platform lift manufacturer may provide less than a full interlock system intended to work in conjunction with a vehicle's existing components, as long as when the platform lift is installed according to the installation instructions, the interlock requirements of S6.10.2.1 through S6.10.2.7 are met.

The final rule established several performance requirements in FMVSS No. 403 that involve the stowing and deploying of lifts, including: S6.2.2, Maximum platform velocity ; S6.5.1, Fatigue Endurance ; and S6.10.2.3, which requires an interlock to prevent the platform from stowing when occupied. Stewart & Stevenson requested clarification as to the application of these requirements to platform lifts that are stowed and deployed manually. With specific regard to the fatigue endurance test procedure, Stewart & Stevenson indicated that fatigue cycling test procedures under California Title 13, Department of California Highway Patrol, Commercial and Technical Services Section do not apply the stow/deploy functions if the platform lift is designed to stow and deploy manually. Regarding the interlock requirement, Stewart & Stevenson stated that platforms which are manually deployed and stowed cannot be stowed when the platform is occupied, and therefore an interlock is not necessary.

Agency response: The agency did not consider platform lifts designed to be stowed and deployed manually. When such lifts are in the process of stowing and deploying, the person who is manually performing the task is in control of the platform and the lift velocity during deployment or stowing. While being manually stowed or deployed, the platform is supported by the operator. Further, a platform that is stowed manually cannot by its nature be stowed until vacant. Accordingly, the agency has decided to exclude platform lifts that manually deploy/stow from the requirements relating to the stow and deploy functions in S6.2.2, S6.5.1, S6.10.2.3, S6.7.2, S7.10.5, and S7.10.6 of FMVSS No. 403.

S6.3 of FMVSS No. 403 requires platform lifts to comply with environmental resistance requirements that reflect conditions lifts may experience during actual use. Hardware on a lift that stows inside an occupant compartment and is protected by an electrodeposited coating of nickel, or copper and nickel in accordance with ASTM B456-95, does not need to meet the environmental testing requirement of S6.3. This hardware is not subject to the environmental conditions potentially experienced by hardware on a lift that is stowed external to the passenger compartment.

Stewart & Stevenson objected to the use of the phrase “occupant compartment” when identifying the stow location of lifts excluded from the environmental test requirements. It claimed that some lifts stow within other “sealed compartments” such as baggage compartments and are equally protected from the elements as lifts that stow within the occupant compartment.

Additionally, Lift-U argued that lifts and hardware made of stainless steel as described in S5.2 of FMVSS No. 209, Seat belt assemblies , 4 should also be excluded from the environmental resistance test requirements.

Agency response: The agency agrees with both Stewart & Stevenson and Lift-U. The purpose of the environmental resistance requirement is to test the endurance of lifts and lift components when exposed to the elements. Less stringent requirements should apply to a lift that is stowed either in the occupant compartment or some other equivalent compartment. In both instances, the lift is protected against the exposure experienced by a lift that is stowed externally. Accordingly, we are amending S6.3 of FMVSS No. 403 to include lifts that stow internal to a sealed compartment that provides protection from the environment in the category of “internal lifts.” For internal lifts, only the attachment hardware is tested.

Further, NHTSA has concluded that stainless steel (containing at minimum 11.5 percent chromium by weight) should be added to the list of materials that exclude hardware for lifts mounted inside a sealed compartment from the environmental test requirements. The agency has recognized the corrosion resistant properties of stainless steel in FMVSS No. 209, which excludes hardware made of corrosion-resistant steel with a minimum of 11.5 percent chromium from the environmental test requirements. Given the corrosion resistance properties of stainless steel, if a lift manufacturer desires to incur the additional expense of making an external lift and all of its associated hardware and components completely out of stainless steel, we believe it is appropriate to exclude such a lift from the environmental resistance tests in S7.3 of the final rule. However, a manufacturer must select which option it will rely on for certification by the time it certifies a lift and may not thereafter select a different option.

Under the platform deflection requirements in S6.4.5 of FMVSS No. 403, the angle of a platform relative to the vehicle floor cannot be more than 1.8 degrees when no load is present. In addition, the loaded platform may not deflect so that the angle of the loaded platform is more than three degrees from the angle of the unloaded platform. This limit on deflection prevents the platform from becoming unstable when loaded. We note that in a supplemental notice of proposed rulemaking (SNPRM), the agency initially proposed an unloaded deflection angle of one degree with respect to the vehicle floor. (65 FR 46228; July 27, 2000). In response to the SNPRM, Lift-U commented that the one-degree maximum was too restrictive, and would prohibit lifts designed to conform to the crown of various road surfaces. Therefore, the agency adopted the 1.8 degree maximum permissible deflection angle relative to the vehicle floor.

In responding to the final rule, Lift-U agreed with the maximum deflection of three degrees between the loaded and unloaded conditions. However, Lift-U argued that the overall maximum deflection (consisting of the unloaded deflection with respect to the vehicle floor plus the deflection between the loaded and unloaded conditions) should be a maximum of 4.8 degrees with no further limit on the angle of deflection between the unloaded platform and the vehicle floor. Lift-U stated that an absolute angle requirement would allow for various combinations of unloaded and loaded deflection angles that when summed together would be less than or equal to the maximum 4.8 degrees. The petitioner further argued that this flexibility would allow the lift to conform to the crown of various road surfaces when at the ground level loading positions. Lift-U also noted that the 4.8 degree maximum is in line with the ADA requirements for general access to buildings and therefore, persons relying on various mobility aids are familiar with slopes of this degree.

Agency response: The agency is granting Lift-U's petition to amend the platform deflection angle requirements. We are amending the platform deflection requirements to eliminate the 1.8 degree restriction for the angle of deflection between the unloaded platform and the vehicle floor. The overall deflection angle requirement of a maximum of 4.8 degrees will remain the same, assuring that a platform lift will not be at too great of a slope.

In cases in which there is no deflection upon loading, the unloaded deflection angle may be as high as 4.8 degrees with respect to the vehicle floor. The loaded deflection angle is still required to be less than or equal to 3 degrees with respect to the unloaded position. The 3-degree requirement will prevent a platform from suddenly tilting too much when a passenger moves onto the lift.

In all cases, the sum of the unloaded and loaded angles must not exceed 4.8 degrees. This permits flexibility of design and will eliminate the need to redesign of existing platform lifts. Additionally, the 4.8-degree maximum maintains consistency with the slope requirements for general building access under the ADA, a condition with which platform lift users will most likely be familiar.

In response to a supplemental notice of proposed rulemaking, Lift-U had requested that the agency amend the requirement for continuous edge guards and allow them to be present and continuous along the sides of the platform to within three inches from the outer platform edge. The three-inch allowance at the outer edge was established to facilitate the loading and unloading of a lift passenger when space is limited. Reducing the length of the edge guard allows a lift occupant to turn his or her mobility device when the space directly in front of the platform is restricted. The December 2002 final rule addressed Lift-U's request.

In its petition for reconsideration, Lift-U stated that for passive lifts, edge guards that extend below the lowest step riser when the platform is stowed interfere with vehicle doors when closed. The petitioner further argued that edge guards within three inches of the inner edge of a platform may become a tripping hazard inside the bus, and recommended a three-inch allowance from the inner edge. It also stated that it may be unnecessary for edge guards to be continuous along the sides of a lift platform when there are obstacles such as handrails, retention devices and roll-stops that box the wheelchair in and keep it from going off the sides of the platform. It suggested having a performance test requirement for edge guards as an alternative to requiring continuous edge guards.

Agency response: NHTSA recognizes the problems that continuous edge guards cause on some passive lifts, particularly with edge guards located within three inches of the inner edge (vehicle side) of the platform. The ADA and the FTA both require that edge guards must not interfere with maneuvering into or out of a vehicle aisle. At the same time, barriers should prevent any of the wheels of a wheelchair or mobility aid from rolling off of the platform during its operation. For passive lifts, edge guards that extend below the lowest step riser when the lift is stowed could potentially interfere with bus door operation, as well as present a tripping hazard to passengers. Edge guards that extend past a point three inches from the inner edge of the platform may also become a tripping hazard in the isle of a vehicle when the lift is stowed. The existence of such an obstacle on the inner edge of the platform when stowed would be in violation of ADA if it interferes with maneuvering into or out of the aisle.

The three-inch allowance for the outside edge of the platform does not diminish safety, as the remaining edge guards and the outer barrier/wheelchair retention device box a wheelchair into the area of the platform and prevent the wheels of a mobility device from rolling off of the edge of the platform. For these same reasons, we see no safety reason for not allowing edge guards to stop within three inches of the inner edge of the platform. The edge guards that remain are adequate to prevent wheels of a mobility device from rolling off the edge of the platform. Accordingly, we are amending S6.4.6.1 of FMVSS No. 403 to require edge guards that extend continuously along each side of the platform lift to within three inches of the edges of the platform at both the ground and vehicle floor level loading positions.

In addition, the agency agrees that permitting compliance with a performance test requirement as an alternative to continuous guards would be less design restrictive. Therefore, the agency is establishing a performance test as an alternative means to comply with the edge guard requirements.

The agency is amending S7.7, Wheelchair retention device impact test, of FMVSS No. 403 to include an edge guard performance test as an alternative to the continuous edge guard requirement. The test consists of operating a wheelchair test device from side-to-side and corner-to-corner on the platform. At the end of each test, all wheels of the wheelchair test device must be in contact with the platform surface. During the test, the footrests are removed from the wheelchair test device to test for the worse case scenario. A lift with sufficient edge guards, handrails, wheelchair retention devices and roll-stops to box a mobility aid onto the platform to prevent its wheels from rolling off the edge of the platform will comply with the edge guard requirements.

To improve the repeatability of the newly established edge guard test, as well as other tests that use the wheelchair test device, the agency is amending S7.1.2, Wheelchair test device, to further specify the operating conditions. The specifications are amended to include a minimum level of battery charge and level of tire inflation. The agency is specifying that the charge on a battery be a minimum of 75 percent of rated nominal capacity. 5 Because repeatability can also depend on proper tire inflation, the pneumatic tires of the wheelchair test device are to be inflated to the wheelchair manufacturer's recommended pressure or, if no recommendation exists, to the maximum pressure that appears on the sidewalls of the tires.

Lift-U requested that the agency clarify the term “control system” as used in S6.7.1 through S6.7.5 in FMVSS No. 403, stating that as currently used, the term may be interpreted too broadly. Lift-U cited S6.7.5, which states, “Any single point failure in the control system may not prevent the operation of any of the interlocks as specified in S6.10.” Lift-U expressed concern that in this context the phrase “control system” may be interpreted as requiring lifts to have redundant or back-up control systems with functional checks on start up.

Lift-U also requested that the lift control location requirements for public use lifts in S6.7.7 be amended. As adopted in the final rule, S6.7.7 requires that lift controls for public use lifts, other than those used for backup operation, be positioned together and in a location such that a person facing the controls has a direct, unobstructed view of the platform lift passenger and the passenger's mobility aid, if applicable. Lift-U contends that many passive lifts are installed in the front doorway of buses. This installation allows ambulatory passengers to use steps when the lift is stowed and persons with disabilities to use the lift when it is deployed. Lift-U explained that the controls for these front door lifts are located on the vehicle dash. Therefore, Lift-U argued, the driver has an unobstructed view of the lift passenger and the passenger's mobility aid but must momentarily look at the dash to see the controls. The petitioner further argued that the requirement as written would eliminate this configuration, which is currently a prevalent design and does not present a safety problem.

Agency response: While the control system requirements in the final rule were derived from ADA requirements and FTA guidelines, we agree that as currently used in the standard, the phrase “control system” may be interpreted in an overly broad manner. For purposes of clarity, the agency is replacing the phrase “control system” with “control panel switches” in S6.7 of FMVSS No. 403.

Under the discussion of “control systems” in the final rule, the agency explained that “each system would need to have a ‘power’ switch, a ‘deploy’ or ‘unfold’ switch, an ‘up’ switch and a “down” switch[.]” This was intended to clarify that “control system” refers to the switches on the operator control panel. Replacing the phrase “control system” with the phrase “control panel switches” more accurately reflects intent of the final rule.

NHTSA also recognizes the restriction resulting from the positioning requirements for control panel switches. FTA guidelines indicate that the control console should be located in a position where the lift operator (driver) has a direct unobstructed view of the platform during lift operation. 6 This does not require the operator to have an unobstructed view of the platform while facing the controls. NHTSA believes that there is no significant reduction in the level of safety by simply requiring that the lift operator have an unobstructed view of the lift passenger and passenger's mobility aid. Accordingly, we are amending S6.7.7 to be consistent with FTA guidelines.

S4 of FMVSS No. 403 requires private use lifts to comply with a minimum standard load rating of 400 lb (181 kg) and public use lifts to comply with a minimum standard load rating of 600 lb (272 kg). The difference in standard load rating reflects the difference in use patterns between a private use lift and a public use lift.

The University of Pittsburgh petitioned to have both public and private use lifts comply with the 600 lb (272 kg) standard load rating. It indicated that the average weight of 26 commonly used wheelchairs is 199 pounds and the weight is often increased as a result of add-on devices such as a tilt-in-space seat. The University of Pittsburgh argued that when combined with the weight of a 250-pound occupant (the maximum occupant weight capacity of most power wheelchairs), a 400-pound minimum load rating is likely to be inadequate. The petitioner further argued that the lower load capacity requirement for private use lifts will place an unnecessary burden on users by requiring them to have knowledge of their combined wheelchair-user weight in order to determine appropriate lift capacity. It argued that the 400-pound minimum does not take into account later changes in a user's mobility device or subsequent users that may result in the lift capacity becoming exceeded. The University of Pittsburgh added that the required “DOT-Private Use Lift” labeling does not convey the load capacity associated with the lift, making it unnecessarily difficult to ascertain appropriate load capacity.

Agency response: The agency is denying the University of Pittsburgh's request to increase the load capacity of private-use lifts. We note that the SNPRM for the final rule proposed a 600-pound standard load for testing all lifts, both private and public. This single standard was based on harmonization with voluntary standards and guidelines, as well as the fact that it was possible for the weight of many power wheelchair/occupant combinations to approach 491 lbs. (weight of a 99th percentile male and a 250 lb. powered wheelchair).

In response to the SNPRM, several commenters requested that the standard be amended to permit a lower load capacity for private use lifts, as private use lifts are not required to conform with ADA requirements or harmonize with the ADA Accessibility Guidelines for Buildings and Facilities. Commenters indicated that there are lifts in existence designed for smaller vehicles (some minivans) and lighter wheelchair/occupant loads ( e.g. , a child in a manual wheelchair) that would be forced from the market if they had to be tested with a 600-pound load.

The agency has already recognized the different use patterns between public and private use lifts. Public use lifts are more heavily used and must accommodate many different types of mobility aids while private use lifts are used less frequently and are usually purchased for a specific individual and mobility aid. The lower load capacity for private use lifts gives manufacturers the flexibility to produce lifts for individuals with smaller vehicles or smaller load requirements. When an individual purchases or is prescribed a new vehicle equipped with a platform lift, the user must rely on present and anticipated needs in order to obtain a lift that best suits that individual. Further, S6.7.8.4 of FMVSS No. 403 requires that a lift's rated load must appear near the lift controls in addition to the statement “DOT—Private Use Lift.” This information must also appear in the vehicle owner's manual insert.

The load rating requirements established under the final rule provide more flexibility to lift manufacturers and more options to private lift users. At the same time, the standard ensures that users are aware of the load limitations of each lift. Therefore, the agency is maintaining a minimum 400-pound load capacity requirement for private use lifts. However, the 400-pound minimum load capacity does not prevent an individual from installing a lift with a higher load capacity. An individual could even install a lift certified to the public lift requirements.

Under the final rule, private use lifts are required to have either an audible or visual threshold warning, while public use lifts are required to have both an audible and visual threshold warning. A threshold warning signal warns a lift user exiting a vehicle that the lift platform is more than one inch below the vehicle's floor reference plane and the platform threshold area is occupied by a portion of the lift user's body or mobility aid. The warning is to prevent users from exiting a vehicle when the platform is not in position.

Prevost petitioned the agency to eliminate the requirement for public use lifts to be equipped with both audio and visual threshold alarms. It indicated that trained drivers are always present while a lift is in operation and maintained that there are no dangers that justify a warning signal. Prevost argued that on their vehicles, the lift control panel is located just beside the lift and as soon as the lift user is inside the coach, the driver lowers the platform and shuts the door. It stated that because of this procedure, there is no danger that would warrant the need for threshold alarms.

Agency response: The basic threshold warning requirement in FMVSS No. 403 was derived from the SAE lift standard. 7 In private use applications, the specific lift user and his or her mobility aid are known quantities and the lift is usually purchased for that person's particular needs. In public use applications, lift users and their mobility aids are unknown quantities. The lift system is used by a wide variety of persons with various disabilities, impairments and mobility aids. Thus, the requirement of both visual and audible threshold warnings signals on public use vehicles equipped with lifts, is intended to provide a threshold warning system that will benefit the majority of public lift users.

As explained in the preamble of the final rule, NHTSA does not have the authority to regulate drivers or driver training. We can only regulate vehicles and vehicle equipment. Requirements and performance tests are written to further safety whether there is a trained driver/assistant present or not. In the public use environment, when lift users are positioned on the vehicle threshold area and are preparing to move onto the lift platform, it is important that they be warned when the platform is more than one inch below the vehicle floor level. Considering the wide variety of persons with various disabilities that a public use lift must accommodate and the height of the vehicle threshold above the ground, particularly on motor coaches, it is reasonable to require both audible and visual threshold-warning alarms. Therefore, the agency is denying Prevost's petition with regard to this issue.

In its petition for reconsideration of the Final Rule, Prevost also expressed concern with the lack of wheelchair restraint requirements in FMVSS No. 404 to address wheelchair securement once a wheelchair is inside a vehicle.

Agency response: The ADA and DOT regulations regarding securement of a mobility device remain in effect and are not altered by FMVSS Nos. 403 and 404. The ATBCB published guidelines for DOT to follow in implementing the ADA and stated, “NHTSA was the appropriate agency to define safety tests for platform lifts. ” (Emphasis added). The DOT regulations contain requirements for platform lifts, as well as, securement devices for wheelchairs and other mobility aids (49 CFR, Part 38, Subpart B). FMVSS Nos. 403 and 404 apply only to platform lifts designed to carry persons aided by canes or walkers, as well as, persons seated in wheelchairs, scooters and other mobility devices into and out of motor vehicles. Relative to mobility aid securement devices, the ADA requirements are applicable and require at least two mobility aid securement locations on vehicles in excess of 22 feet in length and at least one mobility aid securement location on vehicles less than or equal to 22 feet in length. In addition, the ADA provides requirements for mobility aid securement devices relative to design load, location/size, types of mobility aids accommodated, orientation, movement, stowage, and seat belts/shoulder harnesses. Aside from FMVSS No. 222, School bus passenger seating and crash protection, which provides performance tests for mobility aid securement devices in school buses, there are no other NHTSA mobility aid securement device requirements for other vehicles.

Several petitioners raised concern over the cost of various testing requirements and the cost of the platform lift regulations over all. Prevost stated that the time, cost and space necessary to perform the fatigue endurance testing required by S7.10 of FMVSS No. 403 would be excessive. Prevost indicated that a simple static test with a high enough safety factor could replace the endurance testing, while still assuring the robustness of the lift/vehicle attachment point. Further, Prevost expressed confusion as to whether it was the lift manufacturer or the vehicle manufacturer that is responsible for certifying to endurance requirements.

Stewart & Stevenson stated that permitting the fatigue endurance testing and the proof load testing (S7.11 of FMVSS No. 403) to be performed on a jig, as opposed to testing on a vehicle, would reduce the compliance costs. Stewart & Stevenson estimated that the cost of fatigue testing a platform lift on an over-the-road coach would cost $450,000 per test as compared to a cost of $35,000 per test using a jig. As such, Stewart & Stevenson requested that the standard be amended to clarify that certification testing can be performed through use of a jig, as opposed to testing performed on a vehicle.

Generally, the Braun Corporation disagreed with the agency's cost estimate of $300 per lift to comply with FMVSS No. 403 and 404. The Braun Corporation estimated that the cost for complying with the electrical portions of the standard would alone be $300 and that compliance with the mechanical aspects would be an additional $300. The Braun Corporation argued that this increase would translate to a retail cost of four to six times higher than that estimated by NHTSA and was concerned that higher consumer costs would reduce the options available to the end users.

Agency response: The agency maintains that the compliance costs estimated in the Final Rule are an accurate estimate, given the incorporation of industry and ADA guidelines into the standards, given that most commercial lifts already comply with the industry standards, and given that manufacturers must already comply with the ADA guidelines for public use lifts.

For clarification, FMVSS No. 403 is an equipment standard. All of the requirements contained therein apply to platform lifts and platform lift manufacturers. FMVSS No. 404 is a vehicle standard. All of the requirements therein apply to manufacturers of vehicles equipped with platform lifts. The lift manufacturer must certify that a lift complies with the fatigue endurance requirements specified in S6.5.1 of FMVSS No. 403 on all vehicles for which the lift is intended. 8

The fatigue requirements in S6.5.1 and the related performance test in S7.10 not only verify the integrity of the lift, but also verify the integrity of the lift's attachment to the vehicle. Although lift attachment points usually do not move, some flexion may occur as the lift is cycled, which may eventually result in fracture and/or separation. Fatigue or life cycle testing is generally the best way to reveal such problems.

However, the self-certification process established by the National Traffic and Motor Vehicle Safety Act permits manufacturers to certify compliance with requirements in ways other than performing actual tests on all lift/vehicle combinations. Each FMVSS specifies performance requirements for the vehicle or equipment to which the standard applies. While manufacturers are not required to conduct certification tests in any particular manner, any manufacturer that wishes to base its certification of compliance on a test procedure that is different from that included in the standard must necessarily assess whether the results of the alternative test procedure are good predictors of the results of the test procedure specified in the standard.

Additionally, no lift manufacturers provided data that would demonstrate costs to manufacturers greater than those determined by the agency in the final rule. The agency expects the costs to decrease with regards to the electrical interlock requirements given that an amendment in this notice permits lift manufacturers to rely on interlock components already in companion vehicles. This will reduce the design and material costs for these systems.

This document corrects several errors in the Final Rule. Lift-U noted that the final rule erroneously listed the threshold warning test in S7.4 of FMVSS No. 403 as a test that can be performed on a test jig when in fact, the procedure in S7.4 is performed on a lift/vehicle combination. Therefore, the regulatory text has been appropriately amended.

Further, the wheelchair retention device impact test, S7.7.1, to which the edge guard test was added, may be performed on a jig. The added edge guard test adopted by this document, S7.7.4, specifies testing on a lift/vehicle combination. The regulatory language has been amended in S7 to reflect these additions.

Lift-U also brought to our attention an error in S6.2.1 of FMVSS No. 403. The first sentence of S6.2.1 states, “Throughout the range of passenger operation and during the lift operations specified in S7.6, the platform lift must meet the requirements of S6.2.2 through S6.2.4.” S7.6 is the test for occupancy of the inner-roll stop and interlock function. S6.2.1 was intended to reference operations in S7.9, Static load test I—working load. S6.2.1 is amended accordingly. Additionally, S7.1.1 is amended to properly reference the appropriate load test provisions.

S7.9 is referenced throughout FMVSS No. 403. The interlock requirements in S6.10.2.3 references the operations in S7.9.7 and S7.9.8 as a test procedure. S6.10.2.3 requires that a platform not stow when the test block specified in S7.1.4 is placed with its narrow side down on any portion of the useable surface of the platform. However, the procedure in S7.9.7 that is referenced requires centering the load on the platform. The procedures in S6.10.2.3 and S7.9.7 are conflicting. To eliminate confusion, the references to S7.9.7 and S7.9.8 are removed from S6.10.2.3. S6.10.2.3 continues to reference the test device in S7.1.4, but the platform positioning procedures have been placed directly in S6.10.2.3, instead of relying on cross-referenced procedures.

Additionally, this document corrects several other minor errors. S6.2.4, Maximum noise level of public use lifts, erroneously refers to S6.4.2.2, which describes the operating volume for private use lifts. S7.7.2.2 is intended to set the lowest point of the footrests to a height of 50 mm, not 501 mm. S7.14.1 is intended to reference S7.14.2 through S14.4.4. Each of these sections has been amended accordingly. S6.4.9.3, S6.4.9.9, S7.7.4.1, and S7.13.2 are amended to provide consistency in the conversion of measurements to metric through out the standard.

The amendments made in this rule are effective December 27, 2004, the same date the FMVSS Nos. 403 and 404 become effective. The final rule, which was published December 27, 2002, provided a two-year lead time in order to allow manufacturers sufficient time to comply with the requirements of FMVSS Nos. 403 and 404. The amendments made to FMVSS Nos. 403 and 404 in this document provide manufacturers more flexibility in complying with these standards. As such, manufacturers should be able to comply with the amended standard at the same time they are required to comply with FMVSS No. 403 and 404.

Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), provides for making determinations whether a regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and to the requirements of the Executive Order. The Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

This rulemaking document was not reviewed under Executive Order 12866. It is not significant within the meaning of the DOT Regulatory Policies and Procedures. The December 2002 final rule was classified as significant because of the public policy consideration involved, as opposed to the economic implications. This document does not affect the public policy implications of the final rule. This document clarifies the application of FMVSS Nos. 403 and 404 as well as provides further flexibility in compliance.

The agency has concluded that the impacts of today's amendments are so minimal that a full regulatory evaluation is not required. Readers who are interested in the overall costs and benefits of the platform lift requirements are referred to the agency's Final Economic Assessment for the December 2002 final rule (Docket No. NHTSA-2002-13917-3). NHTSA has determined that today's rule does not change the costs and benefits estimated in the Final Economic Assessment.

We have considered the effects of this rulemaking action under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) This action will not have a significant economic impact on a substantial number of small businesses because it does not significantly change the costs of the December 2002 final rule. This action clarifies the requirements and test procedures of FMVSS Nos. 403 and 404, in part, through removing requirements not appropriate for certain platform lift designs. Additionally, this action provides additional flexibility for manufacturers by allowing lift manufacturers to rely on existing vehicle components to comply with the interlock requirements and through the adoption of a compliance alternative to the edge guard requirement.

NHTSA has analyzed these amendments for the purposes of the National Environmental Policy Act and determined that they will not have any significant impact on the quality of the human environment.

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

The Unfunded Mandates Reform Act of 1995 requires agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted for inflation with base year of 1995). This action will not increase the cost of compliance with FMVSS Nos. 403 and 404 as adopted in the December 2002 Final Rule.

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

Under the Paperwork Reduction Act of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid OMB control number. The information disclosure requirements of FMVSS No. 403 and FMVSS No. 404 were granted OMB clearance; OMB No. 2127-0621. The amendments made to those standards do not result in any new information or information disclosure requirements.

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

Executive Order 12866 requires each agency to write all rules in plain language. Today's rule has been written with that directive in mind. We note that many of the requirements of today's rule are technical in nature. As such, they may require some understanding of technical terminology. We expect those parties directly affected by today's rule, i.e. , platform lift manufacturers and vehicle manufacturers to be familiar with such terminology.

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

This rulemaking does not directly involve health risks that disproportionately affect children.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards  9 in its regulatory activities unless doing so would be inconsistent with applicable law ( e.g. , the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical. In meeting that requirement, we are required to consult with voluntary, private sector, consensus standards bodies. Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

This document adds a performance based compliance option for edge guards. The agency searched for, but did not find any voluntary or industry standards to incorporate for this requirement.

Anyone is able to search the electronic form of all submissions received into any of our dockets by the name of the individual submitting the comment or petition (or signing the comment or petition, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

The Board's regulations at 49 CFR 1002.3 require that the Board's user fee schedule be updated annually. The regulation at 49 CFR 1002.3(a) provides that the entire fee schedule or selected fees can be modified more than once a year, if necessary. Fees are revised based on the cost study formula set forth at 49 CFR 1002.3(d).

Because Board employees received a salary increase of 4.42% in January 2004, the Board is updating its user fees to recover the increased personnel costs. With certain exceptions, all fees, including those recently adopted or amended in Regulations Governing Fees For Services Performed In Connection With Licensing And Related Services—2002 New Fees, STB Ex Parte No. 542 (Sub-No. 4) (STB served Mar. 29, 2004) will be updated based on the cost formula contained in 49 CFR 1002.3(d). In addition, changes to the overhead costs borne by the Board are reflected in the revised fee schedule.

The fee increases adopted here result from the mechanical application of the update formula in 49 CFR 1002.3(d), which was adopted through notice and comment procedures in Regulations Governing Fees for Services—1987 Update, 4 I.C.C.2d 137 (1987). No new fees are being proposed in this proceeding. Therefore, the Board finds that notice and comment are unnecessary for this proceeding. See Regulations Governing Fees For Services—1990 Update, 7 I.C.C.2d 3 (1990); Regulations Governing Fees For Services—1991 Update, 8 I.C.C.2d 13 (1991); and Regulations Governing Fees For Services—1993 Update, 9 I.C.C.2d 855 (1993).

The Board concludes that the fee changes adopted here will not have a significant economic impact on a substantial number of small entities because the Board's regulations provide for waiver of filing fees for those entities that can make the required showing of financial hardship.

Additional information is contained in the Board's decision. To obtain a free copy of the full decision, visit the Board's Web site at http://www.stb.dot.gov or call the Board's Information Officer at (202) 565-1500. To purchase a copy of the decision, write to, call, e-mail, or pick up in person from ASAP Document Solutions, 9332 Annapolis Road, Suite 103 Lanham, Maryland 20706, (301) 577-2600, asapdc@verizon.net. [Assistance for the hearing impaired is available through Federal Information Relay Services (FIRS): (800) 877-8339.]