The petition for rulemaking designated PRM-50-76 was received by the NRC on May 1, 2002. A notice of receipt of the petition and request for public comment was published in the Federal Register (FR) on August 9, 2002 (67 FR 51783). The notice of receipt requested comment on two questions: (1) Are the petitioner's three concerns about ECCS cooling valid, and if so, do these concerns constitute a significant safety concern? (2) Are there actions available to the Commission other than rulemaking that would effectively address the concerns raised by the petitioner?

The petition, PRM-50-76, covers three broad issues: (1) Amending Appendix K to Part 50 of the Commission's regulations, (2) amending Regulatory Guide (RG) 1.157, and (3) the need for further analysis of the 10 CFR Part 50, Appendix K, backup data.

The petitioner describes at length alleged technical deficiencies in Appendix K Section I.A.5, “Metal-Water Reaction Rate.” The petitioner claims that Section I.A.5 does not accurately describe the extent of zirconium-water reactions that may occur during a LOCA. The petitioner states that the Baker-Just equation, which is used to calculate the metal-water reaction in assessing ECCS performance, does not include any allowance for the complex thermal-hydraulic conditions during a LOCA, including the potential for very high bulk fluid temperatures within the cooling channels of the zirconium-clad fuel elements.

The petitioner cites the abstract of an Argonne National Laboratory (ANL) report (ANL-6548 “Studies of Metal Water Reactions at High Temperatures, III. Experimental and Theoretical Studies of the Zirconium-Water Reaction,” L. Baker and L.C. Just, May 1962) and disputes the conclusions based on the petitioner's opinion that the tests discussed in ANL-6548 do not accurately reflect the conditions present during a LOCA. The petitioner makes the following points to support his views:

• The bulk water temperature was no greater than 315 °C (599 °F).

• The volume of water within the test apparatus was substantially greater than the volume of zirconium specimens, creating a vastly greater capacity to cool the heated zirconium particles of the Baker and Just experiment than would exist under LOCA conditions.

• Zirconium specimens were exposed to water only, while LOCA conditions include steam and nonequilibrium water-steam mixtures that reached higher bulk fluid temperatures.

• A footnote in ANL-6548 states: “This discussion is of a preliminary nature: work in this area is continuing.” Based on this footnote, the petitioner concludes that it is not appropriate to apply the Baker-Just equation as prescribed in Appendix K Section I.A.5 for the calculation of energy release rates, hydrogen generation, and cladding oxidation from the metal-water reaction.

The petitioner states that RG 1.157, which allows use of data from NUREG-17 (ORNL/NUREG-17, “Zirconium Metal-Water Oxidation Kinetics IV, Reaction Rate Studies,” by Cathcart et al., August 1977) for calculating energy release rates, hydrogen generation, and cladding oxidation for cladding temperatures greater than 1900 °F, results in flawed ECCS performance evaluations. The petitioner claims the NUREG-17 data is based on very limited test conditions and consequently the results should not be used for evaluating LOCA conditions.

In support of this contention, the petitioner describes the following test conditions:

• Zircaloy-4 specimens exposed only to steam, rather than fluid conditions as present in a LOCA.

• No documented heat transfer from the Zircaloy surface to the slow-flowing steam.

• Small-scale laboratory testing without conditions typical of the complex thermal-hydraulic conditions that prevail during a LOCA.

• An unexplained shift from the MaxiZWOK (testing apparatus for investigations in the temperature range 1652 °F to 1832 °F) to the MiniZWOK (a different testing apparatus for investigations in the temperature range 1832 °F to 2734 °F).

The petitioner believes that the investigators' conclusions include a statement that “overlooks the very substantially greater mass transfer coefficients that accompany the so-called appropriate heat transfer coefficients.” The petitioner concludes that “it is those very substantially greater mass transfer coefficients that led to the temperature overshoot of the MaxiZWOK test at 1832 °F, and that would have led to very substantially greater temperature overshoots and likely destruction of the Zircaloy tubing if MaxiZWOK had been operated over the temperature range of the MiniZWOK runs.”

The petitioner contends that the NUREG-17 investigators do not warrant their work, and specifically assume no responsibility for the accuracy of their work, and therefore, that NUREG-17 is not applicable to the regulation of nuclear power reactors in the United States of America. To support this contention, the petitioner cites the following statement on the introductory page of NUREG-17: This report was prepared as an account of work sponsored by the United States Government. Neither the United States nor the Energy Research and Development Administration/United States Nuclear Regulatory Commission, nor any of their employees, nor any of their contractors, subcontractors, or their employees, makes any warranty, express or implied, or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed, or represents that its use would not infringe privately owned rights.”

The petitioner states that the results of Zircaloy bundle test no. 9573, which was a test done for the Full Length Emergency Cooling Heat Transfer (FLECHT) tests and documented in WCAP-7665 (“PWR FLECHT (Full Length Emergency Cooling Heat Transfer) Final Report, Westinghouse Report WCAP-7665, April 1971”), are applicable to the calculation of the metal-water reaction and shows that the Baker-Just equation (referenced in Section I.A.5 of Appendix K for calculating the metal-water reaction) is not conservative. The petitioner states that the data in WCAP-7665, which includes test run 9573, includes the complex thermal-hydraulic conditions and Zircaloy-water reactions that characterize the reflood portion of the LOCA transient. The petitioner states that these conditions are not found in the narrow test procedures of ANL-6548 or NUREG-17.

The petitioner states that a pertinent description of the complexities of thermal-hydraulic conditions during reflood, including negative heat transfer coefficients, is included in Section 3.2.3 of WCAP-7665 and that this description applies to data collected with FLECHT bundles with stainless steel cladding. The petitioner feels that another FLECHT Zircaloy bundle test, run 8874, is also pertinent to issues raised in this petition.

The petitioner cites Section 5.6 of WCAP-7665 and finds statements comparing Zircaloy to stainless steel to be misleading because they imply that stainless steel heat transfer coefficients may be used as a conservative representation of Zircaloy behavior. The petitioner believes that the differences in behavior for various test runs are explained by the differences in the thermal-hydraulic conditions leading to a different combination of heat transfer and mass transfer factors, and are not due to inconsistency of the data, as implied by the report.

The petitioner also finds WCAP-7665, Section 5.11, “Materials Evaluation,” to be misleading in view of the total experience with FLECHT run 9573. Finally, the petitioner notes that the same warning language used in NUREG-17 is on the cover page of WCAP-7665.

The petitioner further identifies several aspects of the data supporting the document entitled “Acceptance Criteria for Emergency Core Cooling Systems for Light-Water Cooled Nuclear Reactors-Opinion of the Commission,” (Docket No. RM50-1, December 28, 1973) and notes the Commission concluded: “It is apparent, however, that more experiments with Zircaloy cladding are needed to overcome the impression left from run 9573.” The petitioner finds that there has been a lack of appropriate response to the Commission's expressed wish for more experiments, and believes that at the very least, run 9573 should have been repeated. The petitioner emphasizes that although at least $1 billion had been expended on other analytical efforts, there has been no reported analysis of FLECHT run 9573.

The petitioner states that the test programs discussed in the petition were funded by Government agencies. He believes that most of the programs were firmly controlled by those “who were indoctrinated in the methods of the tightly regimented Naval Reactors Program.” The petitioner finds that the “biased reporting of WCAP-7665 may be traced to these controls” and believes that “the lack of application of the MaxiZWOK apparatus beyond 1832 °F in NUREG-17 may likely be traced to rigid restrictions by management at the NRC.” The petitioner further contends that while the Argonne work in ANL-6548 was likely less impacted by these controls, the controls likely did inhibit further analysis or reporting of FLECHT run 9573.

The petitioner notes that he has made several requests to the Knolls Atomic Power Laboratory for report KAPL-1534 and that his requests have been ignored.

Six letters of public comment were received on the petition in response to the request for public comment. Three of these letters were from the petitioner. These letters are summarized below.

By letter dated September 11, 2002, the petitioner provided comments that did not raise new issues. The petitioner stated that the Baker-Just equation and the Cathcart-Pawel equation in NUREG-17 have been grossly misapplied by the NRC. According to him, it is fundamentally important that the determinations of LOCA transient chemical kinetics include the geometry of the stationary Zircaloy reactant in combination with the thermal-hydraulic conditions of the flowing water/steam reactant. In addition, he repeated in his letter that there are deficiencies in RG 1.157, since it references documents such as NUREG-17 that do not consider the complex thermal-hydraulic conditions during LOCAs, including the potential for very high fluid temperatures. The petitioner also stated that the Commission should provide a rational basis for regulation of ECCS performance and perform additional experiments with Zircaloy cladding due to the cladding failure reported in Westinghouse report WCAP-7665.

By letter dated October 23, 2002, Westinghouse Electric Company submitted comments that opposed the proposed changes. Westinghouse commented that runaway oxidation is prevented by the 2200 °F peak cladding temperature limit. Additionally, Westinghouse commented that the Baker-Just correlation is known to be conservative, over-predicting the zirconium-water reaction by as much as 30 percent at the limiting temperature (2200 °F). Westinghouse stated that the conditions of FLECHT run 9573 (high power and high initial temperatures) were extremely severe, intentionally beyond design basis for ECCS performance. Westinghouse stated that the Cathcart-Pawel tests had adequate steam flow so that the zirconium-water reaction rate was not limited by the availability of steam, and as a result, the tests were valid. Westinghouse commented that differences between ECCS test conditions and reactor core fluid conditions during postulated LOCAs do not prevent the current zirconium-water reaction database from being applicable to ECCS analysis.

By letter dated October 25, 2002, the Nuclear Energy Institute (NEI) submitted comments supporting the Westinghouse comments, stating that extensive testing and analysis by the nuclear industry and national laboratories indicate that the Cathcart-Pawel correlation test is conservative. The NRC notes that the Cathcart-Pawel correlation is intended to be a best estimate, and is not intended to conservatively bound metal-water reaction rates. NEI commented that the test run, FLECHT 9573, was intentionally performed under very severe, beyond design-basis conditions, that post-test evaluations showed oxidation was within the expected range, and that runaway oxidation did not occur until the cladding temperature was well beyond 2300 °F. NEI further commented that the petitioner's concerns do not constitute a significant safety concern and thus, there is no need to revise Appendix K to Part 50 or RG 1.157.

By letter dated November 6, 2002, Strategic Teaming and Resource Sharing (STARS), a group of six utilities, submitted comments opposing the petition. These comments stated that within the range of test parameters applicable to ECCS evaluation models, as specified in Appendix K and RG 1.157, the regulations and guidance are valid and conservative. STARS notes that all of the data referenced in the petition was either available to the Commission and industry when the regulations and guidance were created or was assessed later when the test information became available.

On November 22, 2002, the petitioner submitted a reply to STARS but raised no new issues. On December 14, 2002, the petitioner responded to Westinghouse and NEI comments by discussing runaway oxidation in the WCAP-12610 report and severe fouling of fuel cladding during a LOCA. The petitioner stated that no allowance for higher temperatures due to fouling was made in run 9573, and repeated his request for more experiments with Zircaloy cladding.

Section 50.46 specifies the performance criteria against which the ECCS must be evaluated. The criteria include the maximum peak cladding temperature, the maximum cladding oxidation thickness, the maximum total hydrogen generation, and requirements to assure a coolable core geometry and abundant long-term cooling. This regulation also states that the ECCS cooling performance following postulated LOCAs must be calculated in accordance with either a realistic (also called a best-estimate) evaluation model that accounts for uncertainty or a conservative evaluation model that conforms with the required features of appendix K to 10 CFR part 50. If a licensee elects to calculate ECCS performance using an Appendix K evaluation model, then one important feature of that model is the way the metal-water reaction is calculated. For this calculation, Appendix K prescribes the use of the Baker-Just equation from ANL report ANL-6548 (L. Baker, L.C. Just, “Studies of Metal Water Reactions at High Temperatures, III. Experimental and Theoretical Studies of the Zirconium-Water Reaction” May 1962). The metal-water reaction, which is predicted to occur during the LOCA and which is calculated using the Baker-Just equation, is the subject of much of this petition. The Baker-Just equation calculates a conservative rate of hydrogen generation and fuel cladding oxidation during the LOCA transient. Additionally, for licensees electing to use best-estimate calculations to evaluate ECCS performance, NRC RG 1.157 provides guidance for such evaluations. RG 1.157 allows the use of data from NUREG-17 for the calculation of the metal-water reaction.

The NRC reviewed the petitioner's request and concluded that none of the issues raised by the petitioner justified the initiation of rulemaking. The NRC's response to the technical issues raised in PRM-50-76 is based largely on a technical study by the Office of Nuclear Regulatory Research (RES) “Technical Safety Analysis of PRM-50-76, A Petition for Rulemaking To Amend appendix K to 10 CFR part 50 and Regulatory Guide 1.157.” The NRC's responses to the petitioner's issues are as follows:

The petitioner claims that the requirement to use the Baker-Just equation in Section I.A.5 of Appendix K to 10 CFR Part 50, does not accurately describe the extent of zirconium-water reaction that may occur during a LOCA. He states that the Baker-Just equation does not include any allowance for the complex thermal-hydraulic conditions during a LOCA. The NRC disagrees with the petitioner's assertions.

In Section 3.1 of the petition, the petitioner discusses the inapplicability of the Baker-Just equation for calculating zirconium-water reaction rates during a LOCA. The NRC notes that it is important to distinguish between the experiments performed by Baker and Just, and the equation developed by them and adopted in Appendix K to Part 50. Experiments run with 40-60 mil wires at temperatures at, or near, the zirconium melting point (3400 °F) for one or two seconds are not typical of fuel rod cladding at temperatures in the range of 1800 °F-2200 °F for 50 to 400 seconds that are postulated to occur in a design basis LOCA. In the Baker-Just report, only one data point from their experiments (at 3366 °F) is used in developing the Baker-Just equation. This one data point was used to anchor the Baker-Just equation at the melting point of zirconium. The remaining data from Bostrum (“The High Temperature Oxidation of Zircaloy in Water,” W. A. Bostrum, WAPD-104 March 1954) and Lemmon (“Studies Relating to the Reaction Between Zirconium and Water at High Temperatures,” A. W. Lemmon, Jr., BMI-1154, January 1957), at more relevant zirconium cladding conditions, were used by Baker and Just in the derivation of their equation. The use of the single data point at the melting temperature makes the Baker-Just equation very conservative. At the time of the promulgation of § 50.46, the Commission expected the NRC staff to obtain new and better zirconium-water reaction data. The petitioner also expressed concerns about the need for additional data. The substantial work of Cathcart and Pawel was performed for the NRC in response to the Commission's expectation.

The NRC compares the Baker-Just correlation to other correlations in a technical study (ADAMS accession ML041210109). The comparisons show the conservatism of the Baker-Just correlation in the temperature range important for clad oxidation calculations for LOCAs. In the discussion of Issue 3, comparisons of the Baker-Just correlation to relevant data demonstrate the substantial conservatism of the Baker-Just correlation. The petitioner expresses concern about the low water temperature (no greater than 599 °F) in the Baker-Just experiments. This temperature corresponds to the saturation temperature at 1530 psia, which was the pressure for that particular experiment. While a few degrees of liquid superheat may be possible under LOCA/ECCS conditions, the degree of nonequilibrium required for higher liquid or “bulk” temperatures postulated by the petitioner is not possible.

The petitioner is also concerned about the large water volume compared to the zirconium sample size with respect to the quench capability of zirconium-clad fuel rods. As noted, these experiments were atypical in that respect, but barely used in the formulation of the Baker-Just correlation. Further, it should be noted that the Baker-Just report was not intended to be a heat transfer study, but rather an investigation of zirconium-water reaction kinetics at very high temperatures.

One interesting feature of the Baker-Just report is the heat and mass transfer analysis of an example case analyzed to examine the processes limiting the reaction rate. In this severe case, a 0.21 cm zirconium sphere at its melting point was dropped into water. Baker and Just were concerned that the reaction could be limited by gas phase diffusion of steam through a film of steam and hydrogen. This appears to be similar to the petitioner's concern. As explained in the Baker-Just report, water cannot stay in contact with the hot metal and a vapor film immediately forms around the sphere. Figure 15 in that report shows that vapor phase diffusion is the limiting steam transport process for less than 0.2 seconds, during which a slight film of oxide is forming on the surface of the sphere. After that, the parabolic rate equation, ( e.g. , the Baker-Just equation) becomes limiting. The figure also shows that the gas phase diffusion is far less temperature-sensitive than the parabolic rate law. Certainly at lower temperatures more typical of a LOCA, the parabolic law is even more limiting than gas phase diffusion as long as the reaction is not steam starved.

Comparison of the Baker-Just equation to numerous data sets has shown the equation to be conservative. A significant example of this conservatism is discussed under Issue 3.

In summary, the NRC found no technical basis in the petition or in NRC records for the assertion that the NRC requirement to use the Baker-Just equation, along with other requirements of Appendix K, is flawed and is a significant safety concern.

The petitioner stated that RG 1.157, which allows use of the data and the Cathcart-Pawel equation presented in NUREG-17, results in flawed evaluations of ECCS performance. The NRC disagrees with the petitioner's assertions on this issue. In Section 3.2 of the petition, the petitioner states that the limited test conditions described in NUREG-17 preclude the use of the results for LOCA calculations. He further states that Zircaloy-4 specimens were not exposed to LOCA fluid conditions and that only steam was applied at very low velocities for the main test series. The petitioner states that there was no documented heat transfer from the Zircaloy surface to the slow-flowing steam and that as a result the conditions of the small-scale laboratory tests were not typical of the complex thermal-hydraulic conditions that prevail during a LOCA.

The petitioner suggests that without liquid water, the tests are invalid. The NRC disagrees. The presence of liquid water would invalidate the tests. Accurate steady-flow measurement would be extremely difficult. The droplets or liquid film would make it difficult to achieve the relatively constant sample temperatures that are necessary in these reaction kinetics tests. However, adequate steam flow is a concern. If the flow is too low, the reaction becomes steam starved. Otherwise, it is unnecessary to have steam flow typical of LOCA/ECCS conditions. These are not heat transfer tests. Once a reaction rate model is developed using data from experiments like these, the model should be validated against transient tests under LOCA conditions, as in the four Zircaloy tests described in WCAP-7665 and the transient tests described in the Cathcart-Pawel report.

Calculations were performed to assure that there was adequate steam flow for the MiniZWOK experiments used to derive the Cathcart-Pawel correlation in NUREG-17. These calculations are described in the RES technical study.

An important argument for the absence of steam starvation is how the isothermal Cathcart-Pawel experiments described in NUREG-17 give consistent results that support the parabolic/Arrhenius behavior. This is also discussed in the RES technical study.

Much of the petitioner's criticism of the Cathcart-Pawel work is related to a comparison of MiniZWOK and MaxiZWOK experimental conditions. MiniZWOK was used to develop a consistent set of data for correlation development. Controlling sample temperature by adjusting heater power (MiniZWOK) was much more successful than adjusting steam flow (MaxiZWOK). As the petitioner notes, temperature overshoot was a problem with MaxiZWOK and at high temperatures could have led to temperature runaway. As noted previously, temperature control is absolutely necessary in reaction kinetics experiments such as these. The petitioner implies that the experimenters abandoned MaxiZWOK in favor of MiniZWOK. Actually, the isothermal MiniZWOK experiments were essentially complete before the MaxiZWOK experiments were begun. Results from MaxiZWOK between 1652 °F and 1832 °F agreed well with MiniZWOK data at the same temperatures. Cathcart and Pawel state that:

Certainly, with steam velocities at least an order of magnitude greater in MaxiZWOK than MiniZWOK, the potential for more rapid gas phase diffusion of steam to the sample surface “mass transfer” is greater for MaxiZWOK. But clearly this is not the limiting phenomenon. This was demonstrated by the good agreement between MiniZWOK and MaxiZWOK data and the good agreement of MiniZWOK data to parabolic/Arrhenius behavior. There is no evidence to suggest that high “mass transfer coefficients” in MaxiZWOK caused temperature overshoot in MaxiZWOK at 1832°F, as the petitioner proposes. It is true, as the petitioner suggests, that “[i]t is not possible to achieve an isothermal rate of oxidation of Zircaloy-4 if the Zircaloy-4 is exposed to LOCA fluid conditions at elevated conditions,” but not for the reasons postulated by the petitioner. Rather, large-break LOCA reflood conditions are characterized by constantly decreasing power (decay heat) and increasing heat transfer coefficients after a few seconds. Under these conditions, isothermal conditions are impossible. WCAP-7665 showed that this kind of heat transfer and power behavior was universal for all tests done under design basis conditions, and as a result, these heat transfer tests did not exhibit isothermal cladding temperature behavior.

The petitioner implies that Cathcart and Pawel's statement, that scoping tests on the effect of steam pressure were in progress, is an admission of inapplicability of their work. On the contrary, the scoping work was completed and subsequent work by others has been undertaken to examine pressure effects. The petitioner's notion that the authors' statement about ongoing work applies to very low steam velocities is also unsupported.

Work in this area did not end in 1977. The NRC, foreign partners, and the industry have continued to conduct and evaluate experimental and analytical programs on fuel cladding behavior. As in the case with many other research activities and their link to the agency's regulatory framework, an important objective of this work is the confirmation of current § 50.46 criteria and models and the development of more realistic, performance-based, and contemporary criteria and models. An important link to the current work is the extensive research reported by Cathcart and Pawel.

The NRC disagrees with the petitioner's assertion that the disclaimer in the introduction to NUREG-17 causes the technical work to be inapplicable to reactor regulation. The disclaimer protects the United States Government from potential litigation. It is not intended to discredit the technical validity of the work documented in NUREG-17. As such, the disclaimer is irrelevant to whether the NUREG-17 work is an adequate basis for reactor regulation. That is a question that should be decided solely on the technical merits of the work.

The NRC found no technical basis in the petition nor in NRC records to support the assertion that the Regulatory Guide 1.157 conditions for acceptance of the use of ORNL/NUREG-17 information result in flawed evaluation of ECCS performance.

In Section 3.4 of his petition, the petitioner quotes from the AEC decision on the ECCS rulemaking [See Rulemaking Hearing, Acceptance Criteria for Emergency Core Cooling Systems for Light-Water Cooled Nuclear Power Reactors, RM-50-1, CLI-73-39, 6AEC1085, at 1124]: “It is apparent, however, that more experiments with Zircaloy cladding are needed to overcome the impression left from run 9573.” The petitioner claims that such experiments have not been performed and are necessary. The NRC disagrees.

Run 9573 refers to one of four Zircaloy clad FLECHT experiments performed in 1969 and reported in WCAP-7665. The “impression” referred to by the AEC Commissioners in 1973 appears to be the fact that run 9573 indicates lower “measured” heat transfer coefficients than the other three Zircaloy clad tests reported in WCAP-7665 when compared to the equivalent stainless steel tests. This is not a concern about the zirconium-water reaction models. The AEC Commissioners believed that this anomaly could be cleared up with more experiments on Zircaloy cladding. Some of the anomaly can probably be explained by a deficiency in the data reduction process. As will be discussed later, additional Zircaloy clad tests were performed in the 1980s.

Regarding the data reduction process, heat transfer coefficients are not directly measurable quantities. They must be calculated from measured temperatures, known heat sources, and known thermal properties. WCAP-7665 describes the heat transfer data reduction process using the DATAR code. For these experiments, the decay heat simulation was well known, as was the time of heater failure. However, the heat source, due to the zirconium-water reaction, had to be estimated in some way. The Baker-Just correlation was used for that purpose. Because of its conservatism, the Baker-Just correlation overestimates the amount of reaction and the associated heat generation rate. At 21 locations on 19 rods among the four Zircaloy tests, post-test oxide thickness measurements were made. Westinghouse applied the Baker-Just correlation to each temperature transient measured at or very near to each oxide thickness measurement. The comparison between predicted and measured oxide thickness was presented in Figure B-12 of WCAP-7665. The Baker-Just calculated oxide thickness is about 1.6 times the measured value. Thus for this data set, the Baker-Just correlation overpredicts the data by about 60 percent, which is quite conservative.

The NRC obtained tabular time/temperature data from Westinghouse for 19 of the 21 locations analyzed by Westinghouse for the four Zircaloy FLECHT tests. The Baker-Just correlation was applied to these 19 data sets as a check on the analysis in WCAP-7665. The RES technical study clearly demonstrates that the analysis in WCAP-7665 is correct and that the Baker-Just correlation is conservative even under the severe conditions of run 9573.

The petitioner asserts that a detailed thermal-hydraulic analysis of run 9573, including evaluation of the heating from Zircaloy-water reactions, was never performed. Contrary to that assertion, not only was an evaluation of the heating from Zircaloy-water reaction performed for run 9573, it was done for all four Zircaloy tests. Unfortunately, using the conservative Baker-Just correlation to estimate the zirconium-water heat release results is an overestimation of the derived heat transfer coefficients. Thirty-five years later, it would be difficult to replicate the DATAR code, substitute a better metal-water model, and re-derive the heat transfer coefficients. The difficulty would be in addition to the significant monetary expense of conducting high-temperature Zircaloy tests and would have marginal benefit in terms of increased understanding of large-break LOCA heat transfer and metal-water reaction kinetics. The current programs being conducted at Pennsylvania State University and Argonne National Laboratory are far more cost-effective.

High-temperature tests similar to run 9573 would require rod bundle powers well outside the range of operation of any current or proposed pressurized water reactors (PWRs) and would produce very little useful heat transfer information. Therefore, the NRC does not believe that such tests are necessary.

The petitioner states that more experiments with Zircaloy cladding have not been conducted on the scale necessary to overcome the impression left from run 9573. The NRC disagrees. In fact additional Zircaloy tests have been performed. In the early 1980s, the NRC contracted with National Research Universal (NRU) at Chalk River, Ontario, Canada to run a series of LOCA tests in the NRU reactor. More than 50 tests were conducted to evaluate the thermal-hydraulic and mechanical deformation behavior of a full-length 32-rod nuclear bundle during the heatup, reflood, and quench phases of a large-break LOCA. The NRC is reviewing the data from this program to determine its value for assessing the current generation of codes such as TRAC-M (now renamed TRACE).

In assessing the need for further experiments like the Zircaloy-clad FLECHT tests, it is important to understand the past and current role of rod bundle reflood heat transfer tests. In the late 1960s, a mechanistic understanding of reflood heat transfer did not exist. To develop heat transfer models as expeditiously as possible, the Atomic Energy Commission (AEC), Westinghouse, and Electric Power Research Institute (EPRI), cooperatively developed the PWR FLECHT program. The principal objective was to determine reflood heat transfer coefficients as a function of key initial and boundary conditions, rod elevation, and time after the beginning of reflood and to develop empirical correlations based on that dependency. As long as a sufficiently large matrix of tests was performed with full-scale rod bundles, there was no great need for a comprehensive mechanistic understanding. The key parameters were:

When nuclear plant behavior and design conditions are outside the envelope defined by these test parameters or the design of the experimental system, there is no basis for extrapolation, since the derived heat transfer models are not necessarily based on the physical models governing the reflood heat transfer processes. For the very empirical process used in the early FLECHT experiments, limited effort was expended obtaining data needed for development of mechanistic physical models. It would have been impractical to obtain sufficient Zircaloy heat transfer coefficient data for the empirical process used with the early FLECHT experiments.

As the FLECHT program and other rod bundle reflood heat transfer programs have progressed over the last 30 years, more information appropriate for mechanistic model development has been obtained. As better mechanistic models are developed, careful extrapolation has a better chance of success, and the role of experiments like FLECHT has shifted from model development to developmental assessment. In fact, many of the FLECHT-SEASET experiments are used to assess the new code models. As mentioned previously, the NRC is reviewing the NRU Zircaloy-clad nuclear fuel bundle test results to establish their value for further code assessment.

The NRC investigated each of the petitioner's key concerns. The NRC concludes that Appendix K of 10 CFR Part 50 and the existing guidance on best-estimate ECCS evaluation models are adequate to assess ECCS performance for U.S. light water reactors (LWRs) using Zircaloy-clad UO 2 at burnup levels currently permitted by regulations. This general conclusion is based on the following considerations:

The Baker-Just correlation using the current range of parameter inputs is conservative and adequate to assess Appendix K ECCS performance. Virtually every data set published since the Baker-Just correlation was developed has clearly demonstrated the conservatism of the correlation for the temperature range important to clad oxidation calculations for LOCAs.

The parabolic/Arrhenius behavior of the Cathcart-Pawel isothermal experiments confirmed that there was adequate availability of steam. An NRC analysis confirms the ORNL/ANL assessment that the Cathcart-Pawel isothermal experiments were not steam starved by at least two orders of magnitude. Therefore, the experimental data is valid.

NRC has continued to study complex thermal hydraulic effects on ECCS heat transfer processes during LOCA accident conditions consistent with Commission direction. As part of that initiative, the NRC funded more than 50 Zircaloy-clad nuclear fueled bundle reflood experiments at the NRU reactor. These experiments evaluated fuel rod and heat transfer behavior but did not include metallurgical examination to evaluate oxidation behavior. The NRC is continuing to conduct and evaluate experimental and analytical programs on fuel cladding behavior.

The petitioner did not take into account Westinghouse's metallurgical analyses performed on the cladding for all four FLECHT Zircaloy-clad experiments reported in WCAP-7665. The petitioner also ignored the Westinghouse application of the Baker-Just correlation to these experiments, which had the “complex thermal hydraulic phenomena” deemed important by the petitioner. This application of the correlation to the metallurgical data clearly demonstrates the conservatism of the Baker-Just correlation for 21 typical temperature transients. The NRC also applied the Baker-Just correlation to the FLECHT Zircaloy experiments with nearly identical results, confirming the WCAP-7665 results.

For the development of oxidation correlations, limited by oxygen diffusion into the metal, well-characterized isothermal tests are more important than the complex thermal hydraulics suggested by the petitioner. The petitioner's suggested use of complex thermal-hydraulic conditions would be counter-productive in reaction kinetics tests because temperature control is required to develop a consistent set of data for correlation development. Isothermal tests allow this needed temperature control. It is more appropriate to apply the developed correlations to more prototypic transients (including complex thermal hydraulic conditions) to verify that the proposed phenomena embodied in the correlations are indeed limiting. This is what was done by Westinghouse in WCAP-7665, by Cathcart and Pawel in NUREG-17 and by the NRC in its technical safety analysis of PRM-50-76.

The NRC applied the Cathcart-Pawel oxygen uptake and ZrO 2 thickness equations to the four FLECHT Zircaloy experiments, confirming the best-estimate behavior of the Cathcart-Pawel equations for large-break LOCA reflood transients.

Cathcart and Pawel applied their oxide thickness equation, using the BILD5 program, to 15 of their transient temperature experiments as described in ORNL/NUREG-17. The results showed that the correlation, based on numerous isothermal experiments, was conservative or best-estimate when applied to this transient data set.

The petitioner submitted two public comment letters in which he again asserted that the Baker-Just and Cathcart-Pawel equations are grossly misapplied by the NRC. The first comment letter basically repeated the arguments in the petition. No new technical information was supplied. The second comment letter introduced the issue of severe fouling, which was the subject of PRM-50-78 and addressed by the staff's evaluation of that petition for rulemaking. Other issues addressed in the second letter are related to the issues already discussed in this document, and therefore, no further response is necessary.

For the reasons cited in this document, the Commission is denying the petition for rulemaking (PRM-50-76) submitted by Mr. Robert Leyse. The NRC believes that the requested rulemaking would not make a significant contribution to maintaining safety because current regulations and regulatory guidance already adequately address the evaluation of performance of the ECCS. No data or evidence was provided by the petitioner or found in NRC records to suggest that the research, calculation methods, or data used to support ECCS performance evaluations were sufficiently flawed so as to create significant safety problems. NRC's technical safety analysis demonstrates that current procedures for evaluating performance of ECCS are based on sound science and that no amendments to the NRC's regulations and guidance documents are necessary. Additionally, the petitioner has not shown, nor has the NRC found, the existence of any safety issues regarding calculation methods or data used to support ECCS performance evaluations that would compromise the secure use of licensed radioactive material. The proposed revisions would not improve efficiency, effectiveness, and realism because licensees and the NRC would be required to generate additional information (as part of the evaluation of ECCS performance) that has no safety value and does not significantly improve realism.

The FAA proposed to amend 14 CFR part 39 with an AD for certain Boeing Model 737-100, -200, -200C, and -300 series airplanes. That action, published in the Federal Register on August 17, 2004 (69 FR 51017), proposed to require repetitive detailed inspections to detect discrepancies of the retaining pin lugs on the support fitting of the main landing gear (MLG) beam, and rework of the support fitting or replacement of the fitting if necessary.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments that have been submitted on the proposed AD.

One commenter, the manufacturer, agrees with the proposed AD.

One commenter, an operator, agrees with the proposed AD provided that there are adequate parts available if the discrepant condition is found.

The FAA agrees that adequate availability of parts is necessary. We have received no information from the manufacturer concerning a possible delay in availability of parts. In the event there is a delay in the availability of parts, an operator may request approval for an alternative method of compliance as specified in paragraph (k)(1) of this AD.

One commenter, an operator, requests additional information and clarification regarding the reference in paragraph (g)(2) of the proposed AD to replacing the fittings in accordance with the Accomplishment Instructions, Part III—Fitting Replacement, of Boeing Service Bulletin 737-57-1216, Revision 2, dated May 6, 1999. The commenter notes that, in certain situations, those Accomplishment Instructions instruct the operator to install a self-locking nut to secure the support pin of the MLG support beam. However, the commenter advises that installing a self-locking nut would be in conflict with AD 2002-02-08 (67 FR 6372, February 12, 2002).

We agree that clarification of paragraph (g)(2) of the AD is necessary in order to prevent a conflict between the requirements of this AD and AD 2002-02-08. Therefore, we have added further information to paragraph (g)(2) of the AD to specify that, if operators choose to accomplish the corrective action specified in paragraph (g)(2) of the AD, replacing the fitting in accordance with the Accomplishment Instructions, Part III—Fitting Replacement, of Boeing Service Bulletin 737-57-1216, Revision 2, dated May 6, 1999, must also include replacing the retaining bolt, self-locking nut, and associated hardware of the support beam for the MLG with a new bolt, castellated nut, and new hardware; in accordance with Boeing Service Bulletin 737-57A1260, Revision 2, dated October 18, 2001.

One commenter, an operator, requests that the original issue, dated December 17, 1992, and Revision 1, dated September 23, 1993, of Boeing Service Bulletin 737-57-1216 be approved as acceptable for terminating the requirements of the proposed AD. The commenter states that the original issue and Revision 1 provide procedures for replacing the fitting that are essentially the same as those in Revision 2, which is cited as the appropriate service information in paragraph (g)(2) of the proposed AD.

We agree with the commenter for the reason stated and have revised paragraph (g)(2) of the AD accordingly.

One commenter, an operator, requests that the fittings acceptable for installation be stated in a more definite manner than “a new lug.” The commenter suggests that paragraph (j) of the proposed AD be revised to specify a part number or serial number, rather than just “a new lug.” The commenter also requests that the inspection and rework instructions of paragraph (j) of the proposed AD be more specific.

We agree that clarifying the intent of the words “new lug” is necessary. Although the inspection requirements of this AD are intended to detect cracking of “the retaining pin lugs of the support fitting of the MLG, or elongation of a bolt hole in a lug,” the corrective actions of paragraph (g) of this AD require reworking or replacing the fittings. We specify reworking or replacing the fittings, rather than the lugs, since the lugs are not available as individual replacement parts. The intent and purpose of paragraph (j) of this AD is to specify that any lug must be inspected and the fitting reworked or replaced, as applicable, except for those fittings that previously have been reworked or replaced, in accordance with paragraph (g) of this AD. We have revised paragraph (j) of the AD accordingly. We do not, however, agree that the inspection and rework instructions of paragraph (j) of the AD need to be more specific. The requirements of paragraph (j) of the AD indicate multiple actions that are clearly encompassed by stating “in accordance with this AD,” rather than to specify each action that has already been stated in previous paragraphs of the AD.

Boeing has received a Delegation Option Authorization (DOA). We have revised this final rule to delegate the authority to approve an alternative method of compliance for any repair required by this AD to the Authorized Representative for the Boeing DOA Organization rather than the Designated Engineering Representative (DER).

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

There are about 1,670 airplanes worldwide of the affected design and 668 airplanes of U.S. registry. The required actions take about 2 work hours per airplane, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the required actions for U.S. operators is $86,840, or $130 per airplane, per inspection cycle.

The rework, if accomplished, will take about 24 work hours per airplane to accomplish at an average labor rate of $65 per work hour. Required parts will cost about $1,006 per airplane. Based on these figures, the cost impact of the rework provided by this AD is estimated to be $2,566 per airplane.

The replacement of the support fitting of the MLG beam, if accomplished, will take about 128 work hours per airplane to accomplish at an average labor rate of $65 per work hour. Required parts will cost between $4,540 and $5,271 per airplane. Based on these figures, the cost impact of the replacement provided by this AD is estimated to be between $12,860 and $13,591 per airplane.

The replacement of the support fitting and installation of a special bushing of the MLG beam (for Group 9 and Group 10 airplanes), if accomplished, will take about 144 work hours per airplane to accomplish at an average labor rate of $65 per work hour. Required parts will cost about $5,081 per airplane. Based on these figures, the cost impact of this replacement and installation is estimated to be $14,441 per airplane.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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 regulatory evaluation of the estimated costs to comply with this AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes was published as a supplemental notice of proposed rulemaking (NPRM) in the Federal Register on June 27, 2005 (70 FR 36862). That action proposed to require performing an inspection of the electrical harnesses of the spoiler and the brake pressure sensor unit on both sides of the wing root to detect any chafing or wire damage, and repairing or replacing any damaged or chafed harness or wire with a new harness, as applicable. The action also proposed to require performing a terminating modification for the one-time inspection.

Interested persons have been afforded an opportunity to participate in the making of this amendment. We received no comments on the proposed AD or on the determination of the cost to the public.

After careful review of the available data, the FAA has determined that air safety and the public interest require the adoption of the rule as proposed.

The FAA estimates that 709 airplanes of U.S. registry will be affected by this AD.

It will take approximately 1 work hour per airplane to accomplish the required inspection, at the average labor rate of $65 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $46,085, or $65 per airplane.

It will take approximately 5 work hours per airplane to accomplish the required modification, at the average labor rate of $65 per work hour. Required parts will be supplied by the airplane manufacturer at no cost to operators. Based on these figures, the cost impact of the modification required by this AD on U.S. operators is estimated to be $230,425, or $325 per airplane.

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

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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.

This amendment to 14 CFR part 71 establishes Class D airspace at Eau Clair, WI, to accommodate aircraft operating into and out of Chippewa Valley Regional Airport. The area will be depicted on appropriate aeronautical charts. Class D airspace designations are published in Paragraph 5000 of FAA Order 7400.9M, dated August 30, 2004, and effective September 16, 2004, which is incorporated by reference in 14 CFR Sec. 71.1. The Class D airspace designation listed in this document will be published subsequently in the order.

The FAA anticipates that this regulation will not result in adverse or negative comment and therefore is issuing it as a direct final rule. A substantial number of previous opportunities provided to the public to comment on substantially identical actions have resulted in negligible adverse comments or objections. Unless a written adverse or negative comment, or a written notice of intent to submit an adverse or negative comment is received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, the FAA will publish a document in the Federal Register indicating that no adverse or negative comments were received and confirming the date on which the final rule will become effective. If the FAA does receive, within the comment period, an adverse or negative comment, or written notice of intent to submit such a comment, a document will be published in Federal Register . This document may withdraw the direct final rule in whole or in part. After considering the adverse or negative comment, we may publish another direct final rule or publish a notice of proposed rulemaking with a new comment period.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-21256/Airspace Docket No. 05-AGL-04.” The postcard will be date stamped and returned to the commenter.

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

Further, the FAA has determined that this regulation is noncontroversial and unlikely to result in adverse or negative comments and only involves an established body of technical regulations that require frequent and routine amendments to keep them operationally current. Therefore, I certify that this regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. Since this rule involves routine matters that will only affect air traffic procedures and air navigation, it does not warrant preparation of a Regulatory Flexibility Analysis because the anticipated impact is so minimal.

The FAA published this direct rule with a request for comments in the Federal Register on July 20, 2005 (70 FR 41610). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on October 27, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on July 29, 2005 (70 FR 43747). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on October 27, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

The FAA published this direct final rule with a request for comments in the Federal Register on July 20, 2005 (70 FR 41613). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments were anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on October 27, 2005. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On October 15, 2004, a notice of proposed rulemaking entitled “Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products” was published in the Federal Register (69 FR 61165), and comments were solicited. Four sets of comments were received. The substance of the comments and the resulting changes made to the regulation are summarized below.

One set of comments stated that the Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products was an inappropriate activity for NOAA. In response, NOAA cites the Hydrographic Services Improvement Act of 1998, as amended (codified at 33 U.S.C. 892b), under which this program was established. The comments further suggested that a substantial fee structure would be appropriate for the program. Again, NOAA refers to the enabling legislation that limits the fees NOAA may charge.

A second set of comments offered that § 995.8, “Alterations,” appeared to permit NOAA to change program regulations without following the Administrative Procedure Act that allows for public comment. NOAA's intent is to follow those procedures in executing this section, but stating so in the rule is redundant with NOAA's obligation under the Administrative Procedure Act. The section was deleted from the regulations to eliminate confusion. The comment also suggested that in § 995.15(a), the first sentence, “NOAA reserves the right to audit certified distributors” be deleted as redundant with § 995.14. NOAA deleted the sentence.

A third set of comments received contained two recommendations. The first was that NOAA should use the ISO 19379 standard to certify privately made Electronic Chart Systems (ECS) databases and the second was that NOAA should eliminate the limitation in the proposed rule that prevents the use of ISO 19379 certified electronic charts for mandated chart carriage. Related to the recommendations was a set of comments.

As to the comment/recommendation that NOAA might adopt an existing standard such as ISO 19379 for certifying privately made ECS databases, NOAA recognizes this opportunity, and acknowledges this possibility in a separate rule, entitled: Quality Assurance and Certification Program for NOAA Hydrographic Products , in the Federal Register dated January 5, 2005 (70 FR 693). With this rule for distribution of official NOAA ENCs, NOAA does not intend to certify privately made ECS databases, but only to allow for the redistribution of official NOAA ENCs, while retaining their official status.

As to the comment that NOAA's policy of not certifying privately made ECS databases would deny adequate electronic chart coverage to support the mandatory carriage of electronic charts, which the Coast Guard has been directed to implement, NOAA sees no concern, and this was not the purpose of this rulemaking. NOAA already provides 100 percent coverage of its area of responsibility with official raster navigational charts (one type of electronic chart), 45 percent coverage with official electronic navigational charts (a second type of electronic chart) with completion of the full suite scheduled during 2007, and the U.S. Army Corps of Engineers anticipates completing full coverage of primary and secondary inland river routes with official electronic charts during 2007, thus serving vessels that carry 90 percent of the inland river shipping tonnage. Also, while the Coast Guard must promulgate electronic chart carriage regulations by January 1, 2007, the effective date of those regulations, exactly which vessels are to be covered, and what waivers may be issued is left to their discretion. NOAA, the Corps of Engineers, and the Coast Guard will continue to coordinate closely to ensure that electronic chart carriage is not mandated before official charts are available.

Another comment stated that since the proposed rule did not provide a means to certify privately made ECS databases for meeting chart carriage regulations, it closes the markets to private companies for equipping non-SOLAS, regulated vessels and thus was contrary to the Regulatory Flexibility Act. Such certification is beyond the intent of this rule, which is merely to certify distributors of official NOAA ENCs. Further, the final rule does not take away regulated vessels as a market for privately made electronic charts. Privately made charts have never been accepted as meeting chart carriage regulations, but may be carried as an aid to navigation. This situation will continue under the final rule. In any case, because NOAA provides official electronic charts at no cost, the commercially-viable market for private charts aboard regulated vessels would be small, thus causing little impact on small businesses. Finally, the number of companies that NOAA estimates might be affected is few (approximately 3 to 9), not all of which may be small businesses. Thus, the rule does not appear to rise to the level of causing a significant economic impact on a substantial number of small businesses. If any impact is made on the industry it would provide a benefit to all participating entities by allowing certified businesses to sell a new product that is considered as having official NOAA ENC data in it, with the phrase “Certified NOAA ENC Distributor” or “Certified NOAA ENC Value Added Distributor” on products and marketing materials. NOAA appreciates that a nation-wide supply of electronic charts for ECS is important and so, in addition to these requirements, NOAA has promulgated a rule for Quality Assurance and Certification Program for NOAA Hydrographic Products , (70 FR 693, Jan. 5, 2005). That program supports companies in making and selling electronic charts into the non-regulated market, which is two orders of magnitude larger than the regulated market and provides additional commercial opportunities for private companies while preserving the safety of navigation.

The last set of comments had twelve recommendations, as follows:

One comment recommended that the title be changed to: “PART 995—Certification Requirements for Distributors of NOAA Electronic Navigational Charts.” NOAA is leaving the title in its present wording for the possibility of future products.

One comment recommended that we move and clarify the definition of “Distributor” versus “Value Added Distributor.” Each term has a specific definition as it applies to the section where it appears in the regulation. NOAA believes that it is necessary to maintain the difference between the two types of distributors.

One comment recommended a clarification between the certification of a distributor, the certification of a process, and the certification of a product, so that the end user would be able to identify if the product is suitable for navigation and meets Federal chart carriage requirements. For clarification, NOAA is certifying two types of distributors who may redistribute official NOAA ENC data and have it remain as official Federal data, which can be used to meet Federal carriage requirements. While NOAA is not certifying processes the distributors use to produce their end product, the rule requires them to follow accepted industry standards as noted in this rule if the entity wishes to have a product with data in it that complies with Federal carriage requirements. NOAA believes the revised rule clarifies these concerns.

One comment recommended that NOAA revise language where the rule mandates different outcomes for the same procedure simply because of who performed it. NOAA revised a portion of § 995.1(c) to read: “Any entity may continue to download from an official NOAA ENC® Web site and use NOAA ENCs for any purpose. As long as it is not redistributed, that ENC will still be considered as official Federal data. If the NOAA ENC is successfully imported unaltered into a type-approved system, it will comply with Federal nautical chart carriage requirements.” NOAA additionally clarified § 995.1 by providing examples illustrating when NOAA ENCs will or will not meet Federal chart carriage regulation.

One comment recommended that the rule should require any commercially redistributed official ENC or derived product from an uncertified entity to notify the user that the product does not meet federal chart carriage requirements. Instead of adding language to the rule, NOAA will add to the Agreement Statement on the NOAA ENC Web site, which the entity must accept in order to download any official NOAA ENCs. The statement will have words to the effect that: “Any entity that is not a certified NOAA ENC distributor, agrees that it will not redistribute NOAA ENCs as official data for the purpose of complying with Federal chart carriage requirements. The certification requirements and application can be found at: (inset hyper link). The final rule as published in Federal Register (insert number and page), can be found at (inset hyper link).” A second statement will read, “By clicking on the link below to proceed to download the NOAA ENCs, the user acknowledges having read and agreed to the above terms and conditions.”

One comment recommended that NOAA charge fees for all costs incurred in the certification process, including resubmissions of revised requests that were initially unacceptable. NOAA added language in the fee section of the rule to include resubmissions.

One comment recommended that NOAA strike a redundant sentence, in § 995.15 (a), which was done.

One comment recommended that NOAA should reserve the right, to the extent practicable, to require the recall of all redistributed ENCs and derived products that were produced during a period of non-compliance. NOAA does not believe that it is appropriate to require product recall while the distributor is under investigation. However, NOAA revised § 995.15, Termination of certification, to read: “CED or CEVAD shall notify all recipients of its products that its certification has been revoked and that the product may no longer be valid for use. In addition, the CED or CEVAD shall provide the dates of non-compliance.”

One comment stated that NOAA cannot regulate that CEDs or CEVADs ensure that the user (of its products) has a sufficient level of knowledge. NOAA agreed and revised § 995.22 to read: “CED or CEVAD shall provide some form of product training and education materials to the customer to ensure that the end user has a sufficient level of information about the intended use of the derived product and what is needed to properly use it ( e.g. , requires certain equipment).”

One comment recommended that NOAA strike all of § 995.24 (a)(4) Additional data. NOAA chose not to delete § 995.24(a)(4) for liability reasons.

One comment recommended that NOAA provide an up-to-date listing on the Office of Coast Survey (OCS) Web site of certified ENC distributors and their certified products. NOAA will provide this list.

One comment recommended that NOAA require that a certification statement accompany the NOAA logo when used on hydrographic products. NOAA added in § 995. 24 language that the CED/CEVAD should provide documentation to clarify to the user the suitability of use of product, the type and content of the files, when non-NOAA data is included, and any time delays for distribution of the data.

Due to NOAA's re-examination of § 995.15, NOAA determined that the section required changes to best serve and protect the CED/CEVAD throughout the termination process. NOAA revised the termination process to provide the CED/CEVAD with clearer guidelines for responding to a notification of potential termination administrative tracking and response time of its claim, add final action language, and provide an opportunity for the CED or CEVAD to resubmit a request for certification if terminated. One change to § 995.15, added to the information collection associated with the Paperwork Reduction Act. NOAA added that CED's or CEVAD's comments to OCS in response to a notification of potential termination shall contain at least: identification and contact information of the CED or CEVAD; a statement that CED or CEVAD is responding to an initial written notification of potential termination by OCS; and a thorough but concise argument as to why CED or CEVAD believes that its certification should not be terminated.

A digital copy of this published rule for certification requirements for NOAA ENC redistribution, with application templates, is accessible via the Internet at NOAA's Web site: http://nauticalcharts.noaa.gov/mcd/enc/index.htm .

NOAA produces electronic navigational charts (ENCs) as one of its products under its Nautical Charting Program. Official NOAA ENCs, which conform to International Hydrographic Organization (IHO) standards, may be used in a typeyapproved display system, such as an Electronic Chart Display and Information System (ECDIS), to comply with Federal nautical chart carriage requirements administered by the Coast Guard. NOAA distributes these official ENCs to the public for free over its Web site on the Internet.

Part 995 in the Code of Federal Regulations establishes the requirements by which entities may be certified to download, redistribute, repackage, or in some cases reformat, official NOAA ENCs and retain their official status. No other processes result in redistributed NOAA ENC® products that comply with Federal chart carriage requirements.

NOAA developed these certification requirements under the authority of Section 104 of the Hydrographic Services Improvement Act Amendments of 2002, 33 U.S.C. 892b(b)(1). NOAA also developed these requirements to ensure the quality and content of official NOAA ENCs remains intact throughout the redistribution process.

To obtain a written copy of the certification requirements for NOAA ENC distribution, refer to ADDRESSES section or visit the Internet at NOAA's Web site: http://nauticalcharts.noaa.gov/mcd/enc/index.htm.

In addition to the rules set forth in the NOAA certification process, if the Value Added Distributor converts NOAA ENC data to other formats, it will need to comply with the IHO Technical Resolution A3.11 published in M-3 Resolutions of the IHO, Chapter A, Section 3. This resolution is available from the IHO Web site: http://www.iho.shom.fr. Also, for reference, it is advised that distributors be familiar with the International Electrotechnical Commission (IEC) Publication 61174 and the IHO Special Publication S57 and S58. IEC Publication 61174 is the basis for type-approval specifications related to operational methods of testing and required test results for an International Maritime Organization (IMO) compliant ECDIS. The IEC Publication 61174 can be ordered from the IEC Web site: http://www.iec.ch. The IHO Special Publication S57 includes a description of the data structure and format to be used for the exchange of ENC data, product specification for the production of ENC data, and an updating profile. The IHO Special Publication S58 includes recommended ENC validation checks. The IHO Special Publication S57 and S58 are available at the IHO Web site: http://www.iho.shom.fr.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The purpose of this rule is to provide the procedures and requirements necessary for an entity to be certified as “Certified NOAA ENC Distributor” or “Certified NOAA ENC Value Added Distributor.”

This certification process is voluntary. Only those applicants who wish to redistribute NOAA ENC data as official Federal data with the phrase “Certified NOAA ENC Distributor” or “Certified NOAA ENC Value Added Distributor” on products and marketing materials need to apply. NOAA developed this certification process under the authority of 33 U.S.C. 892b(b)(1).

The Small Business Administration guideline to separate small from large businesses is $4 million for Mapmaking firms and $5 million for Navigational Services to Shipping and Other Support Activities for Water Transportation. NOAA is unable to determine the total number of small entities that will be affected by this rule, as it does not specifically track this type of information. However, based upon knowledge of the nature of the industry, NOAA believes the majority of the entities affected will be small businesses.

Public comments were received that the proposed rule does not certify privately produced electronic nautical charts for use by certain classes of regulated vessels. In response, NOAA reaffirmed that such an action would be beyond the scope of the rule being promulgated here. NOAA's intent with this rule is only to certify entities that wish to redistribute its NOAA ENCs as official Federal data and for meeting a set of requirements rather than certifying them for a particular use.

One comment stated that the proposed rule's limitation to use electronic charts on ECDIS closes the markets for all non-SOLAS vessels in the United States and thus was contrary to the Regulatory Flexibility Act. Certified official NOAA ENCs are not limited in their use by NOAA, nor does NOAA have the authority to make the determination of suitability of use. The determination of suitability of Federal carriage requirements for certain classes of vessels lies with the Coast Guard. NOAA believes that this rule is in the public interest and that it does not remove a market for privately made electronic charts since they never have been certified for regulatory carriage and do not have that market. Also, because NOAA and the Corps of Engineers give away for free official electronic charts for meeting carriage requirements, it appears that the portion of the market that this rule does not make readily accessible to private charts would be small. Finally, the number of companies that NOAA estimates might be affected is few (approximately 3 to 9), not all of which may be small entities. Thus the rule does not appear to rise to the level of causing a significant, negative economic impact on a substantial number of small businesses, and thus does not violate the Regulatory Flexibility Act. On the contrary, it should provide a benefit to all participating entities. NOAA appreciates that a nation-wide supply of electronic charts for ECS is important and so in union with these requirements, NOAA offers another proposed rule for Quality Assurance and Certification Program for NOAA Hydrographic Products, (69 FR 61172, Oct. 15, 2004). That program supports companies in making and selling electronic charts into the non-regulated market, which is two orders of magnitude larger than the regulated market and provides additional commercial opportunities for private companies while preserving the safety of navigation.

The total estimated economic impact to small entities associated with startup costs, software and equipment upgrades, the application process, reporting, recordkeeping, and compliance requirements is not expected to amount to sums greater than $5,228 per entity annually. However, NOAA does not believe this cost will have a negative impact on small companies, as the estimated costs incurred should be offset through the benefits in increased sales of the product because of its “certified” status. Also, NOAA requires only bi-annual reporting and recordkeeping, balancing the burden to the distributor, with the assurance of maintaining safe navigation through data quality verification for public safety. And, to lessen the economic impact, the duration of certification will be five years from the date of issuance.

It is anticipated the effects of this rule will be largely positive to small entities, with potential economic benefits. This rule will allow certified businesses to sell a new product that is considered as having official NOAA ENC data in it, with the phrase “Certified NOAA ENC Distributor” or “Certified NOAA ENC Value Added Distributor” on products and marketing materials. Under this rule, Federal regulation and reporting will be extremely limited, startup costs should be minimal and there is no charge to small businesses for this official product, which they could resell for profit.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA). The following requirements have been approved by OMB under control number 0648-0508:

1. A written request and application for certification.

2. Submission of a registry of customers receiving NOAA ENC data.

3. Notification when the CRC checksum value does not match the value in the CATALOG.031 file.

4. Compression/decompression and encryption/decryption software and documentation for testing.

5. A distribution report describing when NOAA ENC files were downloaded and when they were distributed to end users.

6. A label on products to identify data that are NOAA ENCs.

7. Report of any errors detected during the conversion process that apparently originate in the NOAA ENC files.

8. An application for reconsideration of termination.

The total estimate of burden hours annually for all distributors is 536 hours. The total estimate of burden hours per distributor is approximately 60 hours a year. These estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, completing and reviewing the collection of information, sending the initial application to OCS to become a certified distributor, and sending the bi-annual reports to OCS.

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

There are no duplicative, overlapping, or conflicting Federal rules associated with this rule.

In our May 13, 2005, decision, we approved, among other provisions, Section 4(g)(3) of PASMCRA, pertaining to Stage 3 bond release (70 FR at 25491). Our finding with respect to Section 4(g)(3) is on page 25474, Col. 2, the first complete paragraph and the ensuing three paragraphs. After publication, a member of the public pointed out a possible ambiguity with respect to our finding in support of approving the phrase, “the remaining portion of the bond could be released in whole or in part at Stage 3 when the operator has completed successfully all mining and reclamation activities and has made provisions with PADEP for the sound future treatment of any pollutional discharges.” Accordingly, we decided to clarify our finding in support of the decision in this regard. This clarification is limited to an expansion of this finding only, and does not change or otherwise affect our decision to aprove Section 4(g)(3). We are expanding the finding related to Section 4(g)(3) to read:

We did not publish a notice of proposed rulemaking (NPRM) for this regulation. Under 5 U.S.C. 553(b)(3), the Coast Guard finds that good cause exists for not publishing an NPRM. Additionally, under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for making this temporary final rule effective less than 30 days after publication in the Federal Register . The Coast Guard believes that not publishing an NPRM and making this final rule effective less than 30 days after publication is necessary for the reasons discussed below, coupled with the fact that the bridge rehabilitation is necessary, vital work that must be performed in order to assure the continued, safe, and reliable operation of the bridge. Any delay in the implementation of this regulation would not be in the best interest of the public and public safety.

On January 5, 2005, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations, Townsend Gut, Maine, in the Federal Register (70 FR 773). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held. Then, on March 16, 2005, we published a temporary final rule (TFR) entitled Drawbridge Operation Regulations, Townsend Gut, Maine, in the Federal Register (70 FR 12805) which suspended the existing regulations and put in place temporary rules effective until November 30, 2005.

On July 23, 2005, the bridge owner requested additional regulatory action to help facilitate the timely completion of the bridge painting aspect of this project. The contractor's progress would not allow completion of the project on time before the winter months, which require painting operations to stop due to cold temperatures. As a result, the bridge owner requested that the bridge remain closed at night from 8 p.m. through 6 a.m. to allow the contractor uninterrupted time to complete the bridge repairs and painting. However, before we could publish the requested change to the temporary regulation the bridge owner again changed their request. The bridge owner advised the Coast Guard that the night closure plan would not work due to known adverse public response to nighttime operations.

As a result of the late notice from the bridge owner and the necessity to complete vital repairs, the Coast Guard is now revising the current rules to allow the bridge to open less frequently during the daytime.

The SR 27 Bridge has a vertical clearance of 10 feet at mean high water, and 19 feet at mean low water in the closed position. The permanent drawbridge operating regulations at 33 CFR 117.5, which were suspended from March 14, 2005 through November 30, 2005, require the bridge to open on signal at all times.

On January 5, 2005, we published a notice of proposed rulemaking (NPRM) entitled Drawbridge Operation Regulations, Townsend Gut, Maine, in the Federal Register (70 FR 773). We received no comments in response to the notice of proposed rulemaking. No public hearing was requested and none was held.

On March 16, 2005, we published a temporary final rule (TFR) entitled Drawbridge Operation Regulations, Townsend Gut, Maine, in the Federal Register (70 FR 12805).

On July 23, 2005, the bridge owner requested additional regulatory action to help facilitate the timely completion of the bridge painting portion of this project. The contractor's progress would not allow completion of the project before the winter months when painting operations are not possible due to cold temperatures. As a result, the Coast Guard is revising the current temporary rules to allow the bridge to open less frequently during the daytime. A half-hour advance notice will be required to allow the construction workers sufficient time to clear the bridge before each bridge opening. Under this temporary rule the bridge will open during the daytime at 6 a.m., 12 p.m., 6 p.m. and 8 p.m., after a half-hour notice is given by calling the number posted at the bridge. At all other times from 8 p.m. until 6 a.m., the bridge will open on signal.

In order to facilitate necessary repairs, the bridge owner requested a nine-day bridge closure from September 19, 2005 through September 27, 2005. Therefore, in addition to the 4 closure periods identified in the March 16, 2005 temporary final rule, which have already occurred, the bridge will be closed from September 19, 2005 through September 27, 2005 under this regulation.

The Coast Guard is changing temporary final rule 117.T536, which authorized the bridge to open at 6 a.m., 8 a.m., 10 a.m., 12 p.m., 2 p.m., 4 p.m., and 6 p.m., after a half-hour notice is given. This temporary final rule changes that schedule to allow the bridge to open at 6 a.m., 12 p.m., 6 p.m., and 8 p.m. after a half-hour notice is given by calling the number posted at the bridge. At all other times from 8 p.m. to 6 a.m., the bridge will open on signal. In addition, a nine-day closure is in effect from September 19, 2005 through September 27, 2005.

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).

This conclusion is based on the fact that vessel traffic will still be able to transit through the SR 27 Bridge under a fixed opening schedule. Vessel operators may adjust their schedules to correspond with the opening schedule at the bridge. Vessel operators may also use the alternate route should they need to transit at other times.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we 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 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 on a substantial number of small entities.

This conclusion is based on the fact that vessel traffic will still be able to transit through the SR 27 Bridge under a fixed opening schedule. Vessel operators may adjust their schedules to correspond with the opening schedule at the bridge. Vessels operators may also use an alternate route should they need to transit at other times.

Under section 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.

During the course of rulemaking upon this bridge, beginning on January 5, 2005, no small entities requested Coast Guard assistance and none was given.

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 may 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. Though 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 affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

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

This final 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 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 systems practices) that are developed or adopted by voluntary consensus standards bodies.

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

We have analyzed this final rule under Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that 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 (32)(e), of the Instruction, from further environmental documentation. It has been determined that this final rule does not significantly impact the environment.

For the reasons set out in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

The SIP is a living document which the state can revise as necessary to address the unique air pollution problems in the State. Therefore, EPA from time to time must take action on SIP revisions containing new and/or revised regulations as being part of the SIP. On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference Federally-approved SIPs, as a result of consultations between EPA and Office of the Federal Register (OFR). The description of the revised SIP document, IBR procedures and “Identification of plan” format are discussed in further detail in the May 22, 1997 Federal Register document.

On December 7, 1998, (63 FR 67407) EPA published a document in the Federal Register beginning the new IBR procedure for the District of Columbia. On August 6, 2004 (69 FR 47773), EPA published an update to the IBR material for the District of Columbia. In this action, EPA is doing the following:

1. Announcing the second update to the material being IBR'ed.

2. Making corrections to the chart listed in § 52.470(c), as described below:

a. Chapter 1 (General), Section 199 (Definitions and Abbreviations)—Entries for Section 199 which were inadvertently removed by a December 28, 2004 rulemaking action are being restored to the table.

b. Chapter 3 (Operating Permits), Section 307, the State effective date is revised to read “4/16/04.”

c. Chapter 6 (Particulates), Section 600.1—In the “Additional explanation” column, a brief description of the revision is added.

d. Chapter 7 (Volatile Organic Compounds), Section 715—the State effective date is revised to read “4/16/04.”

e. Chapter 7, Sections 749 through 754—an entry is added to the “Additional explanation” column to reference a related correction final rulemaking action.

f. Chapter 7, Section 799—An entry for Section 799 which was inadvertently deleted by a December 23, 2004 rulemaking action is being restored.

g. Chapter 7, Section 799—The entry in the “Title/subject” column is revised to read “Definitions and Abbreviations.”

h. Chapter 7, Section 799—Language is added to the “Additional explanation” column to provide a brief explanation of the entries for this section.

i. Chapter 8 (Asbestos, Sulfur, and Nitrogen Oxides), Section 805—In the “EPA approval date” column, the Federal Register page citation is revised, and the language in the “Additional explanation” section is revised to include citations for all of the revised paragraphs.

EPA has determined that today's falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make a rule effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). Today's simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs. Under section 553 of the APA, an agency may find good cause where procedures are “impractical, unnecessary, or contrary to the public interest.” Public comment is “unnecessary” and “contrary to the public interest” since the codification only reflects existing law. Immediate notice in the CFR benefits the public by removing outdated citations and incorrect chart entries.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

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

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

EPA has also determined that the provisions of section 307(b)(1) of the Clean Air Act pertaining to petitions for judicial review are not applicable to this action. Prior EPA rulemaking actions for each individual component of the District of Columbia SIP compilations had previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA sees no need in this action to reopen the 60-day period for filing such petitions for judicial review for these “Identification of plan” update actions for the District of Columbia.

Throughout this document, the terms “we,” “us,” and “our” refer to EPA.

On March 9, 2005, pursuant to the Clean Air Act (CAA), we published a final rulemaking action (1) approving various plan elements contained in two submittals of revisions to the Arizona state implementation plan (SIP) by the Arizona Department of Environmental Quality (ADEQ), (2) approving Arizona's request for the redesignation of the metropolitan Phoenix carbon monoxide (CO) area to attainment for the carbon monoxide (CO) national ambient air quality standard (NAAQS), and (3) redesignating the boundary of the metropolitan Phoenix CO area to exclude the Gila River Indian Reservation. See 70 FR 11553 (March 9, 2005). Our March 9th final rulemaking contained amendments to 40 CFR part 52 relating to the two SIP submittals and amendments to 40 CFR part 81 relating to the redesignation actions. Three of these amendments were incorrect.

First, in the regulatory language we added as 40 CFR 52.120(c)(118), we incorrectly listed ADEQ's adoption and submittal date for the Revised MAG 1999 Serious Area Carbon Monoxide Plan for the Maricopa County Nonattainment Area (March 2001) as March 30, 2001. The correct date for both ADEQ's adoption and submittal of this plan (to EPA) as a revision to the Arizona SIP is April 18, 2001 and today's action revises 40 CFR 52.120(c)(118) accordingly.

Second, in 40 CFR 81.303, which contains a table describing in detail the metropolitan Phoenix CO area, we did not intend any change to paragraph 13 as codified prior to our March 9th final rule except for the added phrase at the end of the paragraph (“except that portion in the Gila River Indian Reservation”), but, through transcription error, we made other changes to that paragraph that were unintended. In today's notice, we are correcting paragraph 13 by reinstating the prior language.

Third, also in the CO table in 40 CFR 81.303, we codified our action to redesignate the boundary of the metropolitan Phoenix CO area to exclude the Gila River Indian Reservation by adding the phrase, “except that portion in the Gila River Indian Reservation,” to the end of each of the 28 paragraphs that describe the metropolitan Phoenix CO area. In 40 CFR 81.303, the metropolitan Phoenix CO area is described by reference to a point of origin (paragraph 1) that lies at the southeast corner of the area followed by a series of 27 contiguous lines (paragraphs 2 through 28) that starts at the point of origin and proceeds in a counter-clockwise direction back to the point of origin. We now find that excluding “the portion in the Gila River Indian Reservation” from the point of origin and from each of the lines that collectively define the CO area was erroneous because the description, as revised in our March 9th final rule, is ambiguous as to its southern boundary.

We continue to believe that the redesignation of the boundary of the metropolitan Phoenix CO area to exclude the Gila River Indian Reservation is appropriate and are taking action today to re-codify this redesignation in a manner that avoids the unintended ambiguity introduced by the regulatory text we used in our March 9th final rule. Specifically, in this action, we are revising each of the 28 paragraphs that define the metropolitan Phoenix CO area in 40 CFR 81.303 to remove the phrase that we added in our March 9th final rule ( i.e. , “except that portion in the Gila River Indian Reservation”) and are instead adding a new paragraph 29 that states: “except that portion of the area defined by paragraphs 1 through 28 above that lies within the Gila River Indian Reservation.”

We are taking this action under our authority in CAA section 110(k)(6). Section 110(k)(6) provides, “Whenever the Administrator determines that the Administrator's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification, or reclassification was in error, the Administrator may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State.” For the reasons stated above, we are correcting errors in the regulatory language we promulgated in approving a revision to the Arizona SIP, in redesignating the metropolitan Phoenix CO area to attainment, and in redesignating the boundary of the metropolitan Phoenix CO area to exclude the Gila River Indian Reservation.

In this action, EPA is correcting amendments to 40 CFR part 52, subpart D, and 40 CFR part 81, subpart C, that were contained in the final Federal Register notice published on March 9, 2005 approving submittals of revisions to the Arizona state implementation plan, redesignating the metropolitan Phoenix carbon monoxide area to attainment for the carbon monoxide National Ambient Air Quality Standards, and redesignating the boundary of the metropolitan Phoenix CO area to exclude the Gila River Indian Reservation. Specifically, this action amends 40 CFR 52.120 relating to the Arizona SIP and 40 CFR 81.303 describing the boundaries of the metropolitan Phoenix CO area.

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to correct the errors described herein should adverse comments be filed. This action will be effective November 7, 2005, without further notice unless the EPA receives relevant adverse comments by October 6, 2005.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on November 7, 2005 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule, and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

Under section 5(b) of Executive Order 13175, EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults with tribal officials early in the process of developing the proposed regulation. Under section 5(c) of Executive Order 13175, EPA may not issue a regulation that has tribal implications and that preempts tribal law, unless the Agency consults with tribal officials early in the process of developing the proposed regulation.

As discussed above, in a previous action, EPA excluded the Gila River Indian Reservation from the metropolitan Phoenix CO area, and this action merely corrects the corresponding regulatory text. Consistent with EPA policy, EPA has discussed the need for correction of the previous action with representatives of the Gila River Indian Community. EPA finds that this action, which simply corrects an action that the Agency has previously taken, will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule.

This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely corrects a previous EPA rule, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this rule present a disproportionate risk to children.

This rule does not involve establishment of technical standards, and thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. section 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. section 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 7, 2005. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

On July 6, 2005, we published an interim final rule with comment period (70 FR 39022) in the Federal Register with respect to provisions of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (MMA) that require the implementation of a competitive acquisition program (CAP) for certain Medicare Part B drugs not paid on a cost or prospective payment system basis. Physicians will generally be given a choice between obtaining these drugs from vendors selected through a competitive bidding process or directly purchasing these drugs and being paid under the average sales price (ASP) system.

In the July 6, 2005 interim final rule, we stated that implementation of the CAP would take place on January 1, 2006 to coordinate the CAP physician election process with the Medicare participating physician election process described in section 1842(h) of Social Security Act (the Act). Subsequent to the publication of the July 6, 2005 interim final rule, we received comments requesting a delay in implementation of the CAP from a variety of sources including written public comments as well as comments voiced during the conference call for potential vendors that we held on July 8, 2005.

Effective August 3, 2005, we suspended the vendor bidding process that began with publication of the interim final rule on July 6, 2005, to allow us more time to fully review public comments on the interim final rule and also to further refine the bidding process. We provided notification of the suspension on the CMS Web site http://www.cms.hhs.gov/providers/drugs/compbid/ and through the pharmacy and physician Listservs. We will publish a final rule for implementing the CAP after we analyze the additional comments on the interim final rule and determine the best manner for improving the efficiency of the CAP and increasing potential participation of both vendors and physicians in the program.

We will announce the dates for the new vendor bidding period concurrent with the publication of the final rule. We also will be announcing a special physician election period. Currently, we expect that drugs will first be delivered through the CAP by July 2006. During the special election period, physicians will have the opportunity to elect to participate in the CAP from its start date in 2006 through the end of calendar year 2006.

As we specified in the July 2005 Federal Register document, we will continue to accept comments on the interim final rule until September 6, 2005.

In section II of this document, we provide clarification of the timeline for implementation of the CAP as well as further interpretation of what will constitute an “exigent circumstance” for purposes of allowing a physician to elect to participate in the CAP and select a CAP vendor at a time other than the annual election period.

In FR Doc. 05-12938 of July 6, 2005 (70 FR 39022), we identified errors to Addendum A and Addendum B that are corrected under “Correction of Addenda Errors” in section III of this document. These corrections are effective as if they had been included in the document published July 6, 2005.

On March 4, 2005, we published a proposed rule (70 FR 10746) to implement a CAP program, as required by section 1847B of the Act, as added by section 303(d) of the MMA, for certain Medicare Part B drugs not paid on a cost or prospective payment system basis. In response to the proposed rule, commenters expressed concern about the short timeframe for implementation of the CAP, that is, the proposed January 1, 2006 effective date stated in the July 6, 2005 interim final rule. These commenters suggested we delay the effective date of the CAP to allow us to fully structure the CAP to meet congressional objectives and benefit physicians without compromising beneficiary access to drug therapies and treatment.

We responded to those comments in the July 6, 2005 interim final rule (70 FR 39025) by stating that we recognized that the timeframe for implementation was ambitious but we believed that the regulatory framework provided a firm basis for implementing the CAP in January 2006.

We also stated that the statute requires that we coordinate the physicians' election to participate in the CAP with the Medicare Participating Physician Process described in section 1842(h) of the Act.

However, upon further consideration of these comments, as well as additional feedback we have received from potential participants in the program, we have concluded that more time is needed to further refine the program before implementation. After reviewing public comments, we agree that a short delay in implementing the CAP will allow us to improve the efficiency of the program and increase interest in participating in the program. Therefore, in accordance with our authority to phase-in the program as appropriate during 2006, we are delaying implementation of the CAP. The CAP program will not begin on January 1, 2006, and the initial physician election process will not occur in 2005.

As noted above, we intend to implement the CAP during 2006 and we expect that the CAP program will begin sometime in or around July 2006. In addition, we expect the initial physician election period to occur in the spring of 2006 rather than in fall 2005. We consider the initial implementation of the CAP program to constitute an “exigent circumstance” for purposes of section 1847B(a)(5)(A)(i) of the Act and § 414.908(a)(2) of our regulations, which allow for a physician election period at times other than the regular, annual election period. We are specifying the initial election period as an “exigent circumstance” because we intend the program to run on a calendar year basis, as stated in the July 2005 interim final rule, after the initial implementation of the CAP in 2006. In later years, the annual CAP election period will be coordinated with the annual Medicare Participating Physician Enrollment Process described in section 1842(h) of the Act, which occurs in the fall of each year, as specified in the July 2005 interim final rule.

We believe that, after the initial election period in 2006, an annual election period that ends on November 15 before the beginning of each CAP year is still necessary to allow time for the carrier, the designated carrier, the vendors, and our claims processing system to complete tasks in preparation for that CAP year. We expect to include the dates of the initial physician election period in the final rule. Physicians will then be provided with a second election period in 2006 for participation in the CAP in 2007.

In the July 6, 2005 interim final rule, we stated in several other places in the preamble that the CAP would begin on January 1, 2006.

For example, we referred to a January 1, 2006 start date in our discussion of the activities that would be necessary to implement the CAP on that date. These included CAP operations, analysis and coding of the CAP claims processing system, and educating beneficiaries and physicians about the program. In the July 2005 interim final rule, we specified that in response to the March 2005 proposed rule, several commenters expressed concern about introducing the CAP so quickly without any formal testing or analysis of the program. Other commenters expressed concern about education and outreach efforts relating to the CAP. Our decision to suspend the current vendor bidding process and delay the start date of the CAP will allow time for refining CAP operations, additional testing of the claims processing system, and for further beneficiary, physician, and vendor applicant educational efforts. We believe this additional preparation time will greatly improve and ease the implementation process.

In the July 6, 2005 interim final rule, Addendum A “Single Drug Category List” does not include the column reflecting the weights assigned to each CAP drug that will be used in computing the composite bids. In this interim final rule, we are correcting the error by republishing Addendum A in its entirety, with the third column included. In addition, in Addendum B, “New Drugs for CAP Bidding for 2006,” we inadvertently included J7518 (mycophenolic acid), which should be excluded from this list because it is an orally administered immunosuppressive agent rather than a physician-administered drug. We are correcting this error by republishing Addendum B, which reflects the omission of J7518 (mycophenolic acid).

In FR Doc. 05-12938 of July 6, 2005 (70 FR 39022), make the following corrections:

1. On pages 39099 through 39102, Addendum A is corrected to read as follows:

2. On page 39102, Addendum B is corrected to read as follows:

We ordinarily provide an effective date 30 days after the publication of an interim final rule in the Federal Register . We can waive this delay, however, if we find good cause that it is impracticable, unnecessary, or contrary to the public interest and incorporate a statement of the finding and the reasons for it into the notice issued.

We find a delay in the effectiveness of this rule unnecessary because this rule merely provides further clarification of and technical corrections to the interim final rule with comment published July 6, 2005. We also find that a delay in the effectiveness of this interpretation would be contrary to the public interest: a delay in the effectiveness of this rule would defeat the purpose of this rule, which is to delay the implementation of the CAP in order to consider further public comment and issue a final rule before beginning this major new payment system. Therefore, for all of these reasons, we find good cause to waive the delay in the effective date of this rule. It will take effect on the same day as the July 6, 2005 interim final rule with comment.

This document does not impose information collection and recordkeeping requirements. Consequently, it need not be reviewed by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 35).

We have examined the impact of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Social Security Act, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132.

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $6 million to $29 million in any 1 year. Individuals and States are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined that this rule will not have a significant economic impact on a substantial number of small entities.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Core-Based Statistical Area and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined that this rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule that may result in expenditure in any 1 year by State, local, or tribal governments, in the aggregate, or by the private sector, of $110 million. This rule will have no consequential effect on the governments mentioned or on the private sector.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. Since this regulation does not impose any costs on State or local governments, the requirements of E.O. 13132 are not applicable.

In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget.

The NFIP enables property owners to purchase flood insurance which is generally not otherwise available. In return, communities agree to adopt and administer local floodplain management aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage as authorized under the NFIP, 42 U.S.C. 4001 et seq. ; unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59 et seq. Accordingly, the communities will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. However, some of these communities may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. These communities will not be suspended and will continue their eligibility for the sale of insurance. A notice withdrawing the suspension of the communities will be published in the Federal Register .

In addition, FEMA has identified the Special Flood Hazard Areas (SFHAs) in these communities by publishing a Flood Insurance Rate Map (FIRM). The date of the FIRM, if one has been published, is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may legally be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year, on FEMA's initial flood insurance map of the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the communities listed on the date shown in the last column. The Administrator finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and unnecessary because communities listed in this final rule have been adequately notified.

Each community receives 6-month, 90-day, and 30-day notification letters addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Considerations. No environmental impact assessment has been prepared.

The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The communities listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the communities unless remedial action takes place.

This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

FEMA makes the final determinations listed below of modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate has resolved any appeals resulting from this notification.

The modified BFEs are not listed for each community in this notice. However, this rule includes the address of the Chief Executive Officer of the community where the modified base flood elevation determinations are available for inspection.

The modifications are made pursuant to Section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR Part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

These modified elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

The modified BFEs are not listed for each community in this interim rule. However, the address of the Chief Executive Officer of the community where the modified BFE determinations are available for inspection is provided.

Any request for reconsideration must be based upon knowledge of changed conditions, or upon new scientific or technical data.

The modifications are made pursuant to Section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001 et seq. , and with 44 CFR part 65.

For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.

The modified BFEs are the basis for the floodplain management measures that the community is required to either adopt or to show evidence of being already in effect in order to qualify or to remain qualified for participation in the National Flood Insurance Program (NFIP).

These modified elevations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities.

The changes in BFEs are in accordance with 44 CFR 65.4.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This interim rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

FEMA makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Mitigation Division Director of the Emergency Preparedness and Response Directorate, has resolved any appeals resulting from this notification.

This final rule is issued in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67.

The Agency has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community.

The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this rule is exempt from the requirements of the Regulatory Flexibility Act because final or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. No regulatory flexibility analysis has been prepared.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This rule meets the applicable standards of Section 2(b)(2) of Executive Order 12778.

On May 13, 2005, the Assistant Administrator for Procurement approved a deviation to NFS 1802.101 to designate the Executive Director for the NSSC as head of the contracting activity for all contracts that directly support the NSSC. This final rule implements that deviation.

This final rule does not constitute a significant revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comment is not required. However, NASA will consider comments from small entities concerning the affected NFS Part 1802 in accordance with 5 U.S.C. 610.

The Paperwork Reduction Act does not apply because the changes do not impose recordkeeping or information collection requirements which require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule will delete references to the “alpha” and “date” associated with NASA Procedural Requirements (NPR) 6000.1 entitled “Requirements for Packaging, Handling, and Transportation for Aeronautical and Space Systems, Equipment and Associated Components.” Specifically, NFS clause 1852.211-70 will be revised to delete the “E” at the end of NPR 6000.1 and the date, namely “dated April 26, 1999”. This clause provides direction to the contractor that they must comply with the NPR. The NPR changes from time to time and so as to not have to revise clause 1852.211-70 every time the NPR changes it would be best to delete the “alpha” and “date” associated with the NPR. The revised clause will require the contractor to comply with the most recent version of the NPR which purpose is to establish a standard streamlined approach for packaging, handling, and transportation shipment activities to adequately maintain the reliability of NASA items and achieve their damage-free delivery to the place and time of ultimate use. In addition, this change will ensure consistency with the rest of the NFS because the date and alpha are not referenced when citing a particular NPR in other NFS clauses.

This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

This final rule is not expected to have a significant economic impact on a substantial number of small entities with the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , because contractors are required to comply with this clause when packaging, handling, and transporting, and shipping on behalf of NASA to maintain reliability of NASA items and to achieve damage-free delivery to their time and place of ultimate use and therefore, changing the date of the NASA procedural requirements will have little or no impact on small businesses.

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