The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56-1 through 319.56-49, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States.

On January 7, 2009, we published in the Federal Register (74 FR 651-664, Docket No. APHIS-2008-0126) a proposal 1 to amend the regulations to allow the importation of Hass avocados from Peru into the continental United States. As a condition of entry, we proposed to require Hass avocados from Peru to be produced in accordance with a systems approach that included requirements for importation in commercial consignments; registration and monitoring of places of production and packinghouses; grove sanitation; pest-free areas, trapping, or treatment for fruit flies; surveys for the avocado seed moth; and inspection for quarantine pests by the national plant protection organization (NPPO) of Peru. We also proposed to require Hass avocados from Peru to be accompanied by a phytosanitary certificate with an additional declaration stating that the avocados were grown, packed, and inspected and found to be free of pests in accordance with the proposed requirements. We proposed to add the systems approach to the regulations in a new § 319.56-49.2

We solicited comments concerning our proposal for 60 days ending March 9, 2009. We received 30 comments by that date. They were from private citizens, producers, importers, exporters, and representatives of State and foreign governments. Twenty of the commenters supported the proposed rule. The issues raised by the remaining commenters are discussed below by topic.

Two commenters expressed general concerns about the proposed rule. One stated that scientists say that not enough time has passed to study the pests associated with the importation of Hass avocados from Peru and the potential threat those pests pose. This commenter stated that, without substantial inquiry into the effects of the pests, allowing the importation of avocados from Peru would be unsafe, with very serious consequences for California avocado growers. Another commenter stated that California avocado growers have experienced pest introductions due to the inadequate inspection of Hass avocados imported from Mexico, and further stated that there is no reason to expect that inspection of Hass avocados from Peru will provide any better protection.

We prepared a pest risk assessment (PRA) and risk management document (RMD) as part of our evaluation of the request from the NPPO of Peru to export Hass avocados to the United States. Based on the evidence and discussion presented in the PRA and RMD, we have concluded that the mitigations we proposed, with some changes as discussed later in this document, will be effective at preventing the quarantine pests identified in the PRA from being introduced into the United States via the importation of avocados from Peru.

The first commenter did not provide any specific citations supporting the assertion that scientists say not enough time has passed to study the pests associated with the importation of Hass avocados from Peru, nor did the commenter indicate that the evidence presented in the PRA and RMD was inadequate.

With regard to the second commenter's concern about pests being introduced via the importation of Hass avocados from Mexico, it should be noted that, in 9 years of fruit cutting and inspection of Hass avocados imported from Mexico, over 28 million fruit were examined (20.2 million in the orchards, 7.2 million in packinghouses, and 602,490 at border inspection ports) for pests. Twice, the quarantine pest Contrachelus perseae was found, both times in backyard avocados that would not have been eligible to be exported to the United States. Both outbreaks of this pest were eradicated. All other avocados from this export program have been found to be free of quarantine pests. There is no evidence that the importation of Hass avocados from Mexico has resulted in the introduction of quarantine pests into the United States.

We prepared a draft PRA titled “Importation of `Hass' Avocado (Persea americana) Fruit from Peru into the Continental United States” (May 2006). The draft PRA evaluated the risks associated with the importation of Hass avocados into the continental United States (the lower 48 States and Alaska) from Peru. We published a notice 3 in the Federal Register on May 25, 2006 (71 FR 30113, Docket No. APHIS-2006-0072), in which we advised the public of the availability of the draft PRA and solicited comments on it for 60 days ending July 24, 2006. We also conducted a peer review of the draft PRA. We made changes to the May 2006 PRA in response to public comments and peer review comments and prepared a revised PRA, dated December 2008, for the January 2009 proposal. We accepted comments on the revised PRA during the comment period for the proposed rule.

One commenter provided a comment on the May 2006 PRA recommending that mirids of the genus Dagbertus be added to the list of quarantine pests associated with Hass avocados from Peru. We stated in the December 2008 PRA that we had not found any evidence that Dagbertus spp. were pests of avocados in Peru. Addressing this statement, the commenter provided an unpublished study that the commenter believed supported the addition of Dagbertus spp. to the list of quarantine pests of avocados in Peru. The commenter also consulted an entomologist, who stated that he had not tested whether Dagbertus spp. can oviposit in hard mature avocado fruit and added, with respect to the pests' ability to travel the commercial pathway, “I can't guarantee it won't happen.” The commenter urged APHIS to further evaluate the quarantine pest status of Dagbertus spp. to determine whether risk mitigation measures are warranted.

We appreciate the opportunity to clarify our earlier statement. While Dagbertus spp. are pests of avocados in Peru, they are highly unlikely to travel the pathway of commercial avocado fruit exported from Peru. According to Wysocki et al. (2002), pests of the family Miridae, which includes the Dagbertus genus, “feed and insert their eggs on opening buds, leaves, flowers and small fruit. Attacks seem to especially affect flowers and recently set fruit, causing them to drop.” Fallen immature fruit would not be marketable and thus would typically not be exported for commercial sale. The other plant parts mentioned would not be allowed to be included in shipments of avocados intended for export.

The information in Wysocki et al. (2002) is corroborated by the fact that, since 1985, Dagbertus spp. have been intercepted at U.S. ports of entry only 26 times from anywhere in the world, on any commodity, including flowers and other plant parts in addition to fruit.

The paper the commenter submitted does not identify a specific species of Dagbertus spp. as a pest. Additionally, none of the information we have about Dagbertus spp. indicates that we should further analyze any specific species within the genus. In the PRA accompanying this final rule, we have added Dagbertus spp. to the list of plant pests potentially affecting Hass avocados in Peru, but we have indicated in that list that these species will not follow the pathway of commercial fruit. We continue to consider Dagbertus spp. not to be quarantine pests.

One commenter examined the references in the PRA regarding the quarantine pest Stenoma catenifer, the avocado seed moth, and stated that we should have considered the work of Dr. Mark Hoddle and Dr. C.L. Hohmann in assessing the risk posed by that pest. The commenter stated that the omission of the work of these authors called into question whether the risk mitigation strategy we proposed for the avocado seed moth would be effective.

The avocado seed moth was rated as a high-risk pest, meaning that the references we consulted were sufficient to establish that the pest risk rating was the highest available. The work of Dr. Hoddle indicates that the avocado seed moths can cause extensive damage to Hass avocado crops, meaning that it supports our rating of the pest risk of the avocado seed moth as high. It also describes the seasonality of this pest, which is not relevant for Peru; avocados are only produced in one season in Peru, unlike Guatemala, the site of Dr. Hoddle's research, where avocados are produced year-round.

The two papers by Dr. Hohmann that the commenter cited discuss pesticide treatment and avocado seed moth infestation levels in avocados grown in Brazil (Hohmann et al., 2000) and the placement of avocado seed moth eggs laid within the tree and in the avocados (Hohmann et al., 2003). This work does not directly address the question of the appropriate pest risk rating for avocado seed moth. As appropriate, it will inform our operational workplan, which is required under the systems approach, and specifically the provisions of the workplan that deal with specific details of fruit cutting and sampling.

One commenter stated that Ferrisia malvastra, a mealybug, should not have been identified in the PRA as a quarantine pest. The commenter stated that the NPPO of Peru does not have records indicating that F. malvastra is present in Peru and that the reference (Ben-Dov et al., 2003) that the PRA cites as evidence of the pest's presence in Peru also indicates that the pest is present in the United States.

The genus Ferrisia is comprised of several species which may be difficult to differentiate from one another (Gullan et al., 2003). Soon after being described, Heliococcus malvastrus, a parthenogenic mealybug first described by McDaniel in 1962, was synonymized with F. virgata (McKenzie, 1967). The species was then separated, redescribed, and named F. consobrina (Williams and Watson, 1988), a name that was the junior synonym to F. malvastra (Ben-Dov, 2005). Hence, the observation noted in Williams & Granara (1992) records the presence of what is now considered F. malvastra in Peru.

The PRA notes that F. malvastra is present in the United States and further indicates that this pest is on the actionable pest list maintained by the Plant Protection and Quarantine program's National Identification Service. Our regulatory practice is to treat such pests as quarantine pests. We are making no changes to the quarantine pest status of F. malvastra in response to this comment.

One commenter stated that, between 2001 and 2005, the NPPO of Peru sampled a total of 12,505 Hass avocados attached to trees, finding no fruit infested with fruit flies. The commenter asserted that these data indicate that Hass avocados attached to trees are not hosts for the fruit flies identified in the PRA as quarantine pests: Anastrepha fraterculus, the South American fruit fly; A. striata, the guava fruit fly; and Ceratitis capitata, the Mediterranean fruit fly or Medfly.

While these data are not inconsistent with the assertion made by the commenter, the data are not sufficient to prove that assertion. (For example, research would need to be done to determine the host status of avocados off the tree.) APHIS has developed a protocol for surveys and sampling to demonstrate that a fruit or vegetable is not a host of a specific pest. If the NPPO of Peru wishes to establish that Hass avocados in Peru are not hosts of these fruit flies, it can follow the APHIS protocol for doing so.

However, one of these fruit flies, A. striata, has been demonstrated not to infest Hass avocados, in Aluja et al. (2004). We do not currently consider Hass avocados to be a host of this pest; in a final rule published in the Federal Register on June 30, 2009 (74 FR 31154-31160, Docket No. APHIS-2006-0189), and effective on July 30, 2009, we removed restrictions related to the movement of Hass avocados from areas where certain Anastrepha spp. fruit flies (including A. striata) are present. Accordingly, we have removed A. striata from the pest list in the PRA that accompanies this final rule. It should be noted that A. fraterculus is still on the pest list, meaning that avocados from Peru will still need to be grown in places of production that have a low prevalence of A. fraterculus, as demonstrated by trapping, or that are free of that pest, as described in further detail later in this document.

Two commenters addressed APHIS monitoring and oversight of the systems approach generally. One asked what the level of APHIS oversight would be in Peru, what level of expertise and resources would be dedicated to the systems approach by the NPPO of Peru, and whether periodic site visits were planned to verify program compliance. The second commenter, noting the RMD's statement that “APHIS will be directly involved with SENASA [the NPPO of Peru] in monitoring and auditing implementation of the systems approach,” stated that APHIS should provide on-site monitoring of all aspects of the systems approach throughout the harvest period and that a requirement for such APHIS monitoring should be included in the regulations.

The NPPO of Peru is obligated to fulfill its responsibilities under the systems approach as a signatory to the International Plant Protection Convention (IPPC). We have determined that it is not necessary for us to monitor program activities on site unless we have reason to believe that such activities may not be adequately mitigating pest risks. Thus, we do not plan to make periodic site visits. This is consistent with our practice in other import programs. We have conducted site visits as part of developing the systems approach; we found the NPPO of Peru to have the necessary resources and capacity to implement the systems approach. In addition, APHIS inspection of Hass avocados from Peru at the port of entry will serve as a check on the effectiveness of the systems approach.

Paragraph (c) of proposed § 319.56-49 contained grove sanitation requirements. We proposed to require avocado fruit that has fallen from the trees to be removed from each place of production at least once every 7 days, starting 2 months before harvest and continuing to the end of harvest.

One commenter stated that we should require grove sanitation to occur only during the harvest season, rather than beginning 2 months before harvest, and that we should require removal of fallen fruit every 15 days, rather than every 7 days. The commenter provided the following reasons:

• Hass avocados on the ground are poor hosts for fruit flies, and fruit attached to trees are not hosts for fruit flies.

• The avocado seed moth does not occur in the coast of Peru, where most avocado production in Peru is expected to occur.

• Hass avocado fruit fall to the ground because of a normal physiological characteristic of the avocado crop, not due to pest attacks.

We disagree with this commenter. Avocado fruit do, in fact, fall from trees due to pest attacks; indeed, unusual fruit drop is often a symptom of pest infestation. In addition, fallen avocado fruit are typically damaged and thus provide good host material for pests of avocados, including fruit flies; for this reason, we proposed to prohibit fallen avocado fruit from being included in field containers of fruit brought to the packinghouse to be packed for export. The occurrence of the avocado seed moth in only one area in Peru is not relevant to this provision of the systems approach, which targets all the quarantine pests.

The 7-day interval for removal of fallen fruit that we proposed is consistent with our regulations for the importation of Hass avocados from Mexico in § 319.56-30; the requirement to begin grove sanitation 2 months before harvest is consistent with other import programs that contain grove sanitation requirements (although not the Mexican program, since Hass avocados are exported from Mexico year-round). We have determined that this sanitation period and interval are necessary to provide appropriate protection against the introduction of quarantine pests via Hass avocados imported from Peru.

In paragraph (d) of proposed § 319.56-49, we proposed to provide two options for mitigating the risk associated with the fruit flies A. fraterculus, the South American fruit fly, and A. striata, the guava fruit fly, in avocados from Peru: Establishment of an area free of A. fraterculus and A. striata, in accordance with our pest-free area regulations in § 319.56-5, or trapping to demonstrate that places of production have a low prevalence of A. fraterculus and A. striata.

Although the January 2009 PRA identified both A. fraterculus and A. striata as potential pests of Hass avocados from Peru, Hass avocados are known to be poor hosts for Anastrepha spp. fruit flies in general. However, the risk that these fruit flies will infest Hass avocados increases if their population is high in areas where avocados are produced. Trapping to demonstrate an area of low pest prevalence was proposed as an appropriate mitigation for these two fruit flies.

As noted above, we have removed A. striata from the pest list in the PRA accompanying this final rule, meaning that these requirements apply only with regard to A. fraterculus in this final rule.

One commenter stated that allowing the NPPO of Peru to define areas of low pest prevalence without direct APHIS oversight would not be prudent. Perhaps, the commenter stated, the NPPO of Peru could define areas of low pest prevalence after several years of program implementation without incident, but without a proven track record, the risks would be too great to place an untried systems approach in the hands of government officials in the exporting country. The commenter recommended that the final rule include provisions for mandatory monitoring of fruit fly trapping by APHIS.

The commenter did not identify a specific risk associated with oversight of the fruit fly trapping by the NPPO of Peru. In import programs that involve fruit fly trapping, we do not typically require APHIS oversight of the trapping itself. Instead, we require in the regulations that records of the fruit fly trapping be kept and made available to APHIS. We included in the proposed rule requirements for the NPPO of Peru to keep records of fruit fly detections for each trap, update the records each time the traps are checked, and make the records available to APHIS inspectors upon request. Fruit fly trapping itself is conducted in accordance with the International Atomic Energy Agency (IAEA) guidelines for fruit fly trapping, which are internationally recognized and well-understood. By auditing the fruit fly trapping records, we can determine whether the trapping is being conducted consistent with the IAEA guidelines. Records of finds of fruit flies in the trapping would also indicate whether the trapping procedures needed to be adjusted. As noted earlier, we have conducted site visits as part of developing the systems approach; we found the NPPO of Peru to have the necessary resources and capacity to implement the systems approach, including fruit fly trapping. We are making no changes to the proposed rule in response to this comment.

This commenter also asserted that the proposed rule did not provide adequate mitigations for the risk associated with A. fraterculus and A. striata, stating that we should add to the final rule provisions prohibiting the distribution of Hass avocados from Peru to areas of the United States where fruit flies could become established. The commenter stated that A. fraterculus is considered the most important fruit fly pest in South America, with a very wide range of hosts ranging from tropical to temperate species. A. fraterculus exhibits greater morphological variation than related species, and there is strong evidence that a complex of cryptic species is included in the nominal species A. fraterculus, of which the South American variety may be more aggressive and dangerous.

The commenter stated that provisions prohibiting the distribution of Hass avocados from Mexico to certain areas of the United States were only removed when research was completed establishing that Hass avocados were not hosts of the Anastrepha species present in Mexico, but that A. fraterculus was not included in this research, in part because of evidence that the Mexican morphotype differs significantly from the South American morphotype. The commenter stated that, until and unless field research in Peru demonstrates the non-susceptibility of Hass avocados to attack by A. fraterculus and A. striata, provisions limiting the distribution of Hass avocados from Peru should be imposed.

We agree with the commenter that A. fraterculus is likely composed of “sibling species,” as discussed in the PRA, and we also agree that the host status of Hass avocados for A. fraterculus is uncertain. However, the commenter did not provide any evidence that we did not consider in the PRA when discussing the host status of Hass avocados for A. fraterculus, nor did the commenter point out any evidence suggesting that some species of A. fraterculus exhibit a greater preference for Hass avocados than others. As stated in the PRA, a review of the current literature suggests that under most circumstances, Hass avocados do not serve as hosts for Anastrepha spp. The PRA ultimately concluded that, given the available evidence, A. fraterculus could be considered a pest of avocado in Peru. This is consistent with allowing the importation of Hass avocados from Peru that originate in an area of low pest prevalence for A. fraterculus and requiring that Hass avocados be inspected for A. fraterculus before being exported to the United States.

The research to demonstrate the non-susceptibility of Hass avocados to attack by A. fraterculus that the commenter recommends would be necessary if we had proposed to require no mitigations for A. fraterculus; instead, we proposed to require Hass avocados from Peru to come from areas that are free of A. fraterculus or areas that have been demonstrated by trapping to have a low prevalence of A. fraterculus.

As noted earlier, we have determined that A. striata is not a pest of Hass avocados, based on research to which the commenter alludes.

The commenter also recommended that we require the storing of “voucher specimens” of A. fraterculus in 95 percent alcohol, to facilitate genetic analyses conducted later in time and aimed at differentiating sibling/cryptic species, some of which may exhibit a stronger preference for avocados.

If a sibling or cryptic species of A. fraterculus that has a stronger preference for Hass avocados were to emerge in Peru, we would become aware of it through fruit fly trapping, fruit inspection, and general monitoring, and we would impose additional restrictions on the importation of Hass avocados from Peru as appropriate. Therefore, it is not necessary to require the specimen storage that the commenter suggests.

Paragraph (e) of proposed § 319.56-49 provided three options for mitigating the risk associated with Medfly in avocados from Peru: Establishment of an area free of Medfly, trapping to demonstrate that places of production are free of Medfly, or treatment. With regard to trapping, we proposed to require that, when traps are serviced, if any Medfly are found, 10 additional traps be deployed in a 0.5-km2 area immediately surrounding all traps where Medfly was found to determine whether a reproducing population is established. If any additional Medfly are found within 30 days of the first detection, the affected place of production would be ineligible to export avocados without treatment for Medfly until the source of the infestation is identified and the infestation is eradicated. APHIS would have to concur with the determination that the infestation has been eradicated.

One commenter expressed concern about using trapping to demonstrate place of production freedom from Medfly, noting that allowing pest-free places of production would be unprecedented unless all of the export groves in Peru are greater than 0.5 km2 and are surrounded by buffer zones. The commenter stated that international standards for area freedom from Medfly should continue to be used.

We agree with the commenter's concern. Peru's places of production do not all meet the conditions noted by the commenter, thus making determining place of production freedom from Medfly operationally difficult. Therefore, this final rule does not include trapping to establish a pest-free place of production as a mitigation option for Medfly. We are providing only for the establishment of pest-free areas and treatment as mitigation options in paragraph (e). We are also making several changes elsewhere in the proposed regulatory text to remove references to pest-free places of production as a mitigation option for Medfly.

In paragraph (f) of proposed § 319.56-49, we proposed to require surveys to demonstrate that registered places of production are free of the avocado seed moth. Specifically, we proposed to require Peruvian departamentos 4 in which avocados are grown for export to the United States to be surveyed by the NPPO of Peru at least once annually, no more than 2 months before harvest begins, and found to be free from infestation by the avocado seed moth. We stated that an annual survey is appropriate for the avocado seed moth because the pest has limited mobility; the results of a survey conducted no more than 2 months before harvest would indicate freedom from the avocado seed moth for the entire harvest period.

Two commenters addressed the fact that we proposed to require an annual rather than a semiannual survey for the avocado seed moth, noting that the regulations for the importation of Hass avocados from Mexico in § 319.56-30 require semiannual surveys for the avocado seed moth (and other seed pests), once during the wet season and once during the dry season. One commenter noted that, while the moth does have limited mobility, other factors may have greater bearing on the timing of surveys. The commenter cited field work by Dr. Mark Hoddle in Guatemala in which it was observed that seasonal transitions from humid to dry climatic conditions are accompanied by an increase in the detection of the avocado seed moth in avocado fruit. This commenter recommended that we require semiannual surveys for the avocado seed moth to provide a more accurate picture of the risk posed by that pest.

We have determined that semiannual surveys for the avocado seed moth are not necessary because the climatic shifts from wet to dry seasons that occur in Guatemala and Mexico do not occur in Peru's avocado production areas; rather, Peru's avocado production areas remain arid throughout the year. Additionally, Peru's avocado production areas are separated by desert, further inhibiting the spread of the moth between places of production. These factors indicate that an annual survey is adequate to detect the avocado seed moth.

As part of the departamento surveys, we proposed to require the NPPO of Peru to cut and inspect a biometric sample of fruit at a rate determined by APHIS. We stated that we expect the biometric sample to include about 300 fruit from each place of production.

One commenter recommended that we include more specificity in the regulations with regard to fruit cutting, stating that the NPPO of Peru should not be in a position to negotiate with APHIS on a fruit cutting sampling plan given the importance of the avocado seed moth as a pest. The commenter stated that the fact that no specific sample size would be included in the regulations provides little assurance that the survey will protect against the introduction of the avocado seed moth.

As stated in the proposal, the rate at which the fruit will be sampled will be determined by APHIS; it will not be subject to negotiation, other than the sharing of data that informs all determinations of appropriate biometric sample rates. The sample rate will detect a pest prevalence with a confidence level that is consistent with other import programs in which surveys and inspection are used to detect high-risk pests. APHIS can adjust the rate if necessary to provide further security against pest risks. The number of fruit to be sampled will be determined based on this biometric sample rate and will be contained in the workplan developed by the NPPO of Peru and approved by APHIS; the workplan is required under the systems approach. Given this, it is not necessary to include a specific number of fruit to be sampled in the regulations.

If one or more avocado seed moths was detected in the annual survey, we proposed to require the affected place of production to be immediately suspended from the export program until appropriate measures to reestablish pest freedom, agreed upon by the NPPO of Peru and APHIS, have been taken. These measures could include further delimiting surveys, appropriate pesticide treatments, or removal of infested host material.

One commenter noted that we proposed to require surveys for the avocado seed moth to be conducted at the departamento level, but to suspend places of production when an avocado seed moth is found. This commenter stated that we should require suspension of the affected departamento for at least the remainder of the export season during which the avocado seed moth is detected, similar to the requirements in the regulations for the importation of Hass avocados from Mexico in § 319.56-30. The commenter also recommended that we amend the regulations to indicate that finding the avocado seed moth during any monitoring or inspection activity, not just the annual survey, would result in the suspension of the affected departamento.

Another commenter praised the approach in the proposed rule of suspending only the affected place of production, rather than the entire departamento, upon detection of the avocado seed moth. This commenter recommended that we change the regulations for the importation of Hass avocados from Mexico to match the approach described in the proposed rule.

The NPPO of Peru conducts its surveys for avocado seed moth at the departamento level; we proposed to recognize this survey methodology by requiring the survey to be at the departamento level. As noted earlier, the limited mobility of the pest, combined with the continual arid climate of Peru's avocado production areas and their separation by desert, mean that the avocado seed moth will not move very far under its own power and is unlikely to move between places of production. In addition, if the pest is present in places of production close to a place of production in which the avocado seed moth has been found, the surveys would find it in those nearby places of production, and we would suspend those places of production as well. Given this information, it is appropriate to suspend from the export program only the places of production in which the avocado seed moth has been found, rather than the entire departamento.

We agree with the first commenter that any detection of an avocado seed moth, including detections during monitoring and inspection other than the annual survey, should result in suspension of the affected place of production. We have amended the regulatory text in this final rule to include detections during any monitoring or inspection activity as a reason for suspension.

We have evaluated the similar provisions of the regulations for the importation of Hass avocados from Mexico and have determined that it is not necessary to suspend the entire municipality in which an avocado seed pest has been found. We are preparing a proposed rule that would amend those regulations accordingly.

One commenter recommended two additional mitigations for the risk posed by the avocado seed moth. One, which the commenter presented as an additional, precautionary step until the incidence of avocado seed moth in the production areas of Peru is better understood, was to hold a random sample of fruit (perhaps 300 per departamento) under controlled conditions to test for emergence of adult moths. Although this would not prevent potentially infested fruit picked at the same time from entering the commercial pathway, the commenter stated that the observance of adult moths could still be used to suspend shipments once an infestation became evident, thereby reducing overall risk.

The other mitigation the commenter suggested was to prohibit the importation or distribution of Hass avocados from Peru to the State of California, to offset what the commenter characterized as the poor reliability of fruit cutting to detect larval infestations of the avocado seed moth.

The NPPO of Peru has been conducting surveys for the avocado seed moth for years, and we have visited Peru's avocado production areas to better understand the pest conditions there. We therefore disagree with the commenter's suggestion that the incidence of avocado seed moth in the growing areas of Peru is not well understood. We also disagree with the commenter's assertion that fruit cutting is an unreliable means of detecting larval infestations of avocado seed moth. Surveying and cutting techniques can be designed to reduce uncertainties, and our selection of a biometric sampling rate will take any remaining uncertainties into account. Fruit cutting has been successful at preventing the introduction of avocado seed pests from Mexico into the United States through the importation of Hass avocados. Therefore, we have determined that the additional mitigations suggested by the commenter are not necessary to prevent the introduction of avocado seed moth into the United States via the importation of Hass avocados from Peru.

Paragraph (h) of proposed § 319.56-49 contained packinghouse requirements. To safeguard consignments of avocados to be exported from Peru to the United States, proposed paragraph (h)(4) would have required the fruit to be packed in insect-proof packaging, or covered with insect-proof mesh or a plastic tarpaulin, for transport to the United States. These safeguards would have had to remain intact until arrival in the United States.

Two commenters noted that the proposed rule did not include a requirement to seal containers while in transit to the United States. One of these commenters encouraged us to require the use of cargo seals to enhance the phytosanitary integrity of consignments during transit, to provide evidence of any container breaches, and to prevent cross-contamination from boxes of uncertified avocados or other potentially infested fruit. The other commenter also noted that the proposed rule did not include repackaging requirements for containers of Hass avocados from Peru.

We agree with the commenters that seals are useful to ensure the phytosanitary integrity of consignments. We typically require the use of such seals in the bilateral workplan that provides specific details on how the export program will be implemented in the exporting country. We will do so for avocados from Peru. Similarly, we will include repackaging requirements in the bilateral workplan.

Proposed paragraph (h)(5) provided that shipping documents accompanying consignments of avocados from Peru that are exported to the United States would have to include the official registration number of the place of production at which the avocados were grown and would have to identify the packing shed or sheds in which the fruit was processed and packed, and that this identification would have to be maintained until the fruit is released for entry into the United States.

Two commenters recommended that we additionally require individual cartons of avocados to be labeled with this information. (One of these commenters also recommended that we require individual avocado fruit to be so labeled as well.) The commenters stated that this information would allow for traceback to and suspension of individual places of production and packinghouses in the event that a pest is discovered in the United States, rather than having to suspend all avocado exports from Peru. The commenters stated that this requirement would thereby isolate the problem without unnecessarily disrupting the flow of trade.

We agree with these commenters that labeling cartons and fruit with place of production and packinghouse registration numbers would allow for traceback to specific places of production or packinghouses and would thus help to continue the flow of trade if a pest is discovered. We typically require in the bilateral workplan that such information be included on individual cartons. We will do so for avocados from Peru. As the commenters noted, an exporting country has an incentive to provide this information in order to minimize unnecessary trade disruptions in the event of a pest detection.

Paragraph (i) of proposed § 319.56-49 provided for inspection of a biometric sample of fruit from each place of production by the NPPO of Peru at a rate to be determined by APHIS.

One commenter stated that the regulations should limit the amount of discretion granted to the NPPO of Peru in this most critical aspect of the systems approach, providing a specific sampling plan. Another commenter stated that the regulations for the importation of Hass avocados from Mexico require specific numbers of fruit to be cut for inspection prior to export and at the port of first arrival in the United States; this commenter praised the approach in the proposal and asked that the specific fruit cutting requirements be removed from the Mexican Hass avocado regulations.

As we proposed, the sampling rate for this inspection will be determined by APHIS. The general sampling plan will be contained in the bilateral workplan, which APHIS must approve in order for Peru to be able to export avocados. Therefore, the NPPO of Peru will not have sole discretion in setting a biometric sample rate or developing a sampling plan. The regulations provide mechanisms by which APHIS will direct this activity.

In fact, with respect to the Mexican Hass avocado import program, the requirement to cut specific numbers of fruit for inspection prior to export and at the port of first arrival is contained in the bilateral workplan required to be developed under paragraph (c) of § 319.56-30. Paragraph (c)(3)(iv) of § 319.56-30, which contains the pre-export inspection requirement for Hass avocados from Mexico, refers to a biometric sample, at a rate determined by APHIS. Paragraph (h) of that section, which contains the requirement for inspection at the port of first arrival, does not refer to any specific sampling mechanism. We will use the workplan in a similar manner in the import program for Hass avocados from Peru.

In addition, it should be noted that Hass avocados from Peru will be inspected at the port of entry into the United States, providing a check on the efficacy of the inspection in Peru.

One commenter noted that systems approaches, such as the one we proposed for the importation of Hass avocados from Peru, are more complex in nature than post-harvest treatments and require a higher level of expertise and oversight. This commenter asked whether there would be a higher level of inspection than normal of avocados from Peru at ports of entry to verify that the avocados are free of pests.

We do not plan to inspect at a higher level than our usual level, unless evidence indicates that there may be a problem with the implementation of the systems approach. As noted earlier, we have found the NPPO of Peru to have the necessary resources and capacity to implement the systems approach.

Four commenters noted that the provisions of the proposed rule and the regulations for importing Hass avocados from Mexico in § 319.56-30 were inconsistent in various ways. Some of these comments have been addressed earlier in this document. The remaining comments are addressed here.

One commenter stated that it was only over a period of years that APHIS relinquished oversight of Hass avocado growers in Mexico to the Mexican NPPO, and recommended that APHIS take a similar path with the NPPO of Peru. In contrast, two commenters stated generally that the phytosanitary track record of the Mexican Hass avocado import program over the past 11 years warrants at least no more burdensome treatment than APHIS proposed to provide for Hass avocados imported from Peru. One commenter recommended that several specific provisions of the regulations for the importation of Hass avocados from Mexico be changed to be consistent with similar provisions in the proposed rule.

Since the establishment of the Mexican Hass avocado import program, APHIS has accumulated experience with how large-scale systems approach programs such as the Mexican program work, which in turn has given us better information on the appropriate level of oversight for such programs. As stated earlier, we have found the NPPO of Peru to have the necessary resources and capacity to implement the systems approach, and, as a signatory to the IPPC, the NPPO of Peru is obligated to fulfill its responsibilities under the systems approach.

The specific differences between the proposed rule and the Mexican Hass avocado regulations brought up by the last commenter are addressed below.

The commenter stated that, because area freedom is not required, APHIS seems inclined to accept that the Hass avocado is a poor host for A. fraterculus and Medfly without any supporting documentation. The commenter stated that APHIS should remove fruit fly-related restrictions for Mexican Hass avocados before allowing the same commodity into the United States from another country under fewer restrictions.

Our analysis establishing that Hass avocado is a poor host for A. fraterculus is documented in the PRA; the commenter did not provide any comments specific to that analysis. With regard to fruit flies, as noted earlier, we published a June 2009 final rule removing restrictions related to the movement of Hass avocados from areas where certain Anastrepha spp. fruit flies (including A. striata) are present, including Mexico. The PRA did not determine that Hass avocados are a poor host for Medfly; as discussed earlier, this final rule requires Hass avocados from Peru to be produced in an area that the Administrator has determined to be free of Medfly or to be treated for Medfly.

The commenter noted that we proposed to allow the whole country of Peru to export avocados to the United States, but exports from Mexico are limited to approved municipalities in only one State, Michoacan.

Other States in Mexico have different pests and different pest densities than Michoacan, which is less warm and humid than surrounding avocado production areas in Mexico. Mitigating the pest risk associated with Hass avocados produced in States other than Michoacan would require the development of a different systems approach. We have not received a formal request from the Government of Mexico to do so.

The commenter noted that we did not propose to require personnel conducting trapping and pest surveys to be hired by the NPPO of Peru. Instead, we proposed to require any personnel conducting trapping and pest surveys to be trained and supervised by the NPPO of Peru. The commenter requested that we remove the requirement that the Mexican NPPO hire its personnel conducting trapping and pest surveys, which is contained in § 319.56-30(c).

We have evaluated this provision of the regulations for the importation of Hass avocados from Mexico and have determined that it is not necessary for such personnel to be hired by the Mexican NPPO. We are preparing a proposed rule that would amend those regulations accordingly.

The Mexican Hass avocado import regulations require APHIS to be directly involved with the Mexican NPPO in the monitoring and supervision of its activities. We did not propose to require direct monitoring and supervision for Hass avocados from Peru. The commenter stated that the strong record of success of the Mexican Hass avocado import program provides ample reason to remove the requirement for direct monitoring and supervision from that program.

We acknowledge the success of the Mexican Hass avocado import program, as noted earlier in this document. We plan to reevaluate this provision of the regulations and, if warranted, issue a proposal to change it.

The commenter noted that there is no specific requirement for inspection of Hass avocados imported from Peru.

Under the general fruits and vegetables regulations in § 319.56-3, APHIS is authorized to inspect all fruits and vegetables imported into the United States. It is thus not necessary to include specific provisions for port-of-entry inspection for Hass avocados from Peru.

Four commenters opposed the proposed rule for economic reasons, stating that domestic avocado farm profit margins are already low due to adverse weather and other foreign competition. They cited specific concerns. One commenter stated that the vast majority of California avocado growers operate small family farms, with 5- to 20-acre groves, and would be adversely affected by the proposal. One commenter stated that imports should be limited to things or specialties that cannot be produced in the United States, as buying close to home helps to improve the U.S. economy and reduces carbon emissions associated with global climate change while providing better-tasting fruit to the consumer.

Another commenter mentioned that the recent economic downturn had affected domestic avocado farmers' personal wealth and access to credit. This commenter also noted that Peru's avocado growing season is from May to September, meaning that the effects on the domestic market would be seasonal, and stated that the proposal should not be finalized in order to promote sustainable, long-term, non-seasonal employment. Finally, this commenter stated that the American Recovery and Reinvestment Act of 2009 exhibits protectionism of U.S. products and employment as a policy to aid the U.S. economy, and stated that the proposed rule should reflect this policy.

The Plant Protection Act (7 U.S.C. 7701 et seq.), the authorizing statute for APHIS' plant-health-related activities, authorizes the Secretary of Agriculture to prohibit or restrict the importation of any plant product if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction of a plant pest or noxious weed into the United States. We have determined that the measures in the systems approach we proposed, amended as described earlier, are sufficient to prevent the introduction of any plant pests. The factors cited by the commenters are not within our decisionmaking authority under the Act.

The initial regulatory flexibility analysis (IRFA) we prepared for the proposed rule acknowledged that the majority of U.S. producers and packers of fresh avocados are considered to be small entities as defined by Small Business Association size standards. However, we have estimated that U.S. consumption (demand) is more than double U.S. production of avocados, indicating that consuming only U.S. avocados would create a shortage of avocados on the U.S. market. Projected imports of avocados from Peru would likely decrease the U.S. avocado price by a maximum of 4 percent, assuming no displacement of other imports. Furthermore, we have concluded that it is likely that at least a portion of the projected imports from Peru would displace imports from other foreign sources when fresh avocado supplies are low and demand is high, meaning that price effects would likely be smaller than 4 percent.

The Office of Management and Budget designated the proposed rule as not significant under Executive Order 12866. One commenter stated that this rule should not have been designated not significant, saying that the rule runs counter to the interests of U.S. avocado growers and does little to assure the health and safety of U.S. consumers.

Executive Order 12866 provides specific criteria for the Office of Management and Budget to use in determining the appropriate designation of a rule. This commenter did not provide any reasons why the rule should have been designated significant under Executive Order 12866. In addition, the commenter did not specify how the proposed rule should be changed to assure the health and safety of U.S. consumers. This final rule will allow the importation of Hass avocados from Peru into the United States while continuing to provide protection against the introduction of quarantine pests.

One commenter stated that allowing the importation of Hass avocados from Peru could only adversely affect producer prices while having a negligible effect on the consumer price.

As indicated in the IRFA prepared for the proposed rule, we have determined that estimated price effects and welfare impacts are highly sensitive to displacement and import levels; however, given the conservative assumption of zero displacement, imports from Peru at an estimated 50 percent more than current projections (28,500 metric tons), and short-run supply and demand elasticities, we have concluded that the overall net changes in welfare of allowing the importation of fresh Hass avocados from Peru under the specified systems approach are likely to be positive. This indicates that any decline in producer welfare would be exceeded by a gain in consumer welfare, primarily in the form of lower prices.

One commenter stated that the demand and supply elasticities used in calculating changes in producer and consumer welfare in the IRFA accompanying the proposed rule should be modified based on more recent data that reflect the current state of the U.S. economy. This commenter noted that our elasticity projections originated from a 2003 publication that used data from 1998 and stated that demand for avocados, a product with no substitutes that is a relative mainstay in the diet of many Americans, will be inherently inelastic, meaning that price changes have relatively less effect on the amount demanded. However, the commenter stated, a new supplier of lower-priced avocados, coupled with American consumers' heightened awareness to price changes for relatively common produce (due to the poor economic climate), will cause the demand for avocados to become much more elastic and responsive to price changes than reflected in the elasticities used in the IRFA. Accordingly, the commenter recommended that we use a greater elasticity of demand value for projecting net welfare gains and that we use these elasticities to measure the effects on suppliers.

There is no published evidence to suggest that avocados have emerged as a “mainstay” of the U.S. diet. Rather, APHIS believes that avocados remain a specialty item that has become more popular in American culture over the last two decades. Furthermore, the state of the economy is not a major determinant of the price elasticity of demand for a good or service; however, consumers in a recession are more likely to reevaluate goods and services in terms of necessity or luxury. Goods and services deemed to be necessities are typically less elastic while goods determined to be luxuries are typically more elastic. A change in the price of fresh avocados may cause a consumer to reconsider purchasing avocados in times of economic downturn. The price elasticity of demand of −1.2 that we used in the IRFA is a relatively elastic price elasticity of demand that reflects that consumers are relatively sensitive to changes in prices of fresh avocados.

It should be noted that, for the analysis, we used two sets of supply elasticities to measure both short-term and long-term welfare effects on producers as a result of the projected increase in imports of fresh avocados to fully capture potential changes in the market.

One commenter noted that several commenters who supported the rule stated that U.S. consumption of avocados will increase by 15 to 20 percent in 2009 and stated that such a rise in consumption is likely an overstatement based on data not reflecting the current financial condition of U.S. consumers.

Domestic consumption of fresh avocados has nearly doubled over the last decade, with an overall average increase in 10 percent per season. Although demand has been estimated to be price-elastic and domestic consumption has declined over one season, the overall trend indicates that market demand is likely to experience long-term growth. In any case, our analysis is not dependent on such projections.

One commenter stated that, while the IRFA accompanying the proposed rule framed displacement around how imports from Peru will displace Mexican and Chilean imports, the more appropriate question is how much of the domestic supply will be displaced. The commenter asserted that more of the domestic supply will be displaced than the imports from Mexico and Chile, meaning a negative impact on an already depressed market of domestic suppliers.

The commenter provided no data to support this assertion, and published data 5 support our analysis. Domestic consumption of fresh avocados declined by 10 percent during the 2007-2008 season, while fresh domestic production increased by 25 percent and U.S. exports of fresh avocados increased by 47 percent. During this same season, imports from foreign sources decreased by nearly 24 percent over the previous season, suggesting that some displacement of foreign sources occurred during this period.

In this final rule, we are correcting an error in proposed paragraph (b), which referred incorrectly to the NPPO of Peru verifying that growers are complying with the requirements of paragraphs (c) and (f) of § 319.56-49. Paragraph (f) contains the requirements for surveys for the avocado seed moth; we had intended to refer to paragraph (g), which contains harvesting requirements, and we have corrected the error in this final rule.

In addition, the proposed requirement in paragraph (b)(4) referred to “groves,” rather than places of production, which was the term used in the rest of the proposed regulations. We are changing proposed paragraph (b)(4) to refer to places of production in this final rule.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

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

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities.

The NPPO of Peru requested market access for commercial shipments of fresh Hass avocados into the continental United States for domestic consumption. APHIS is finalizing a proposed rule that was published on January 7, 2009, to grant this request provided Peru produces its Hass avocados in accordance with a systems approach that will include registration and monitoring of places of production and packinghouses; grove sanitation; pest-free areas or trapping for the South American fruit fly; pest-free areas or treatment for Medfly; surveys for the avocado seed moth; and inspection for quarantine pests by Peru's NPPO. Hass avocados from Peru will also be required to be accompanied by a phytosanitary certificate with an additional declaration stating that the avocados have been inspected for quarantine pests and were grown and packed in accordance with the requirements of this final rule. These mitigations will allow for the importation of Hass avocados from Peru into the United States while providing protection against the introduction of quarantine pests. Application of the mitigation measures in granting Peru's request is consistent with World Trade Organization agreements that sanitary and phytosanitary regulatory restrictions should be based on scientific evidence and applied only to the extent necessary to protect human, animal, and plant health.

The Regulatory Flexibility Act of 1980 requires agencies to evaluate the potential effects of proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 605 of the Act allows an agency to certify a rule if the proposed rulemaking will not have a significant economic impact on a substantial number of small entities. APHIS has determined this to be the case for this final rulemaking, and this analysis provides the factual basis for such certification in this case.

The United States is the world's leading importer of all fresh Hass avocados, with imports between 60 and 75 percent of total world exports annually. Japan and Canada rank a distant second and third with combined imports of 18 to 20 percent annually. Mexico and Chile account for approximately 50 and 30 percent, respectively, of U.S. imports of Hass avocados.6 The United States exports less than 1.5 percent of its production, whereas U.S. consumption is more than double production. While the final rule is consistent with World Trade Organization agreements that sanitary and phytosanitary regulatory restrictions should be based on scientific evidence and applied only to the extent necessary to protect human, animal, and plant health, it will have the added benefit in meeting an average annual increase in domestic market demand for Hass avocados.

APHIS received several comments based on the findings of the initial regulatory flexibility analysis (IRFA) prepared for the proposed rule; however, after careful consideration none was found to contain significant issues that would require a reevaluation of the proposed regulations. We address these comments in detail in the Background section of this document.

The final rule may directly affect U.S. domestic producers of Hass avocados, as well as firms responsible for packing and shipping these commodities for domestic and foreign markets. We find that a substantial number of these businesses are small entities, according to Small Business Administration (SBA) guidelines and based on 2002 Census of Agriculture data. SBA classifies producers within the category Other Non-Citrus Fruit Farming (NAICS 111339) having annual sales of not more than $750,000 as small entities. California is the largest U.S. producer of avocados, accounting for approximately 86 percent of all production and nearly all Hass avocado production. According to the 2002 Census of Agriculture Summary and State Data report, there were a total of 6,251 avocado farms in the United States in 2002, with California farms representing approximately 85 percent (or 4,801 farms) of this total.7 Of the remaining farms, 839 are located in Florida, 601 are located in Hawaii, and 10 are located in Texas.

APHIS does not have information on the size distribution of the total U.S. avocado producers, but according to the 2002 Census of Agriculture, there were a total of 95,680 Fruit and Tree Nut farms (NAICS 1113) in the United States in 2002.8 Of this number, nearly 99 percent had annual sales in 2002 of less than $500,000, which is well below the SBA's small-entity threshold of $750,000.9 While cash receipts by size for avocado farms were not reported in the 2002 Census of Agriculture, it is reasonable to assume that most of the 6,251 domestic avocado farms currently in operation qualify as small entities.

I. Background II. Discussion III. Responses to Comments on the Proposed Rule and Supplemental Proposed Rule IV. Section-by-Section Analysis V. Availability of Documents VI. Agreement State Compatibility VII. Voluntary Consensus Standards VIII. Finding of No Significant Environmental Impact: Availability IX. Paperwork Reduction Act Statement X. Regulatory Analysis XI. Regulatory Flexibility Act Certification XII. Backfit Analysis XIII. Congressional Review Act I. Background

PTS events are system transients in a PWR in which there is a rapid operating temperature cooldown that results in cold vessel temperatures with or without repressurization of the vessel. The rapid cooling of the inside surface of the reactor vessel causes thermal stresses. The thermal stresses can combine with stresses caused by high pressure. The aggregate effect of these stresses is an increase in the potential for fracture if a pre-existing flaw is present in a material susceptible to brittle failure. The ferritic, low alloy steel of the reactor vessel beltline adjacent to the core, where neutron radiation gradually embrittles the material over the lifetime of the plant, can be susceptible to brittle fracture.

The current PTS rule, described in § 50.61, “Fracture Toughness Requirements for Protection against Pressurized Thermal Shock Events,” adopted on July 23, 1985 (50 FR 29937), establishes screening criteria below which the potential for a reactor vessel to fail due to a PTS event is deemed to be acceptably low. These screening criteria effectively define a limiting level of embrittlement beyond which operation cannot continue without further plant-specific evaluation.

A licensee may not continue to use a reactor vessel with materials predicted to exceed the screening criteria in § 50.61 without implementing compensatory actions or additional plant-specific analyses unless the licensee receives an exemption from the requirements of the rule. Acceptable compensatory actions are neutron flux reduction, plant modifications to reduce the PTS event probability or severity, and reactor vessel annealing, which are addressed in §§ 50.61(b)(3), (b)(4), and (b)(7); and 50.66, “Requirements for Thermal Annealing of the Reactor Pressure Vessel.”

Currently, no operating PWR vessel is projected to exceed the § 50.61 screening criteria before the expiration of its 40 year operating license. However, several PWR vessels are approaching the screening criteria, while others are likely to exceed the screening criteria during the extended period of operation of their first license renewal.

The NRC's Office of Nuclear Regulatory Research (RES) developed a technical basis that supports updating the PTS regulations. This technical basis concluded that the risk of through-wall cracking due to a PTS event is much lower than previously estimated. This finding indicated that the screening criteria in § 50.61 are unnecessarily conservative and may impose an unnecessary burden on some licensees. Therefore, the NRC developed a proposed new rule, § 50.61a, “Alternate Fracture Requirements for Protection against Pressurized Thermal Shock Events,” providing alternate screening criteria and corresponding embrittlement correlations based on the updated technical basis. The NRC decided that providing a new section containing the updated screening criteria and updated embrittlement correlations would be appropriate. The NRC could have revised § 50.61 to include the new requirements, which could be implemented as an alternative to the current requirements. However, providing two sets of requirements within the same regulatory section was considered confusing and/or ambiguous as to which requirements apply to which licensees.

The NRC published the proposed rule for public comment in the Federal Register on October 3, 2007 (72 FR 56275). Following the closure of the comment period on the proposed rule and during the development of the PTS final rule, the NRC determined that several changes to the October 3, 2007 proposed rule language were desirable to adequately address issues raised in stakeholder's comments. Because these modifications may not have represented a logical outgrowth from the October 2007 proposed rule's provisions, the NRC requested stakeholder feedback on the modified provisions in a supplemental proposed rule published in August 11, 2008 (73 FR 46557). In the supplemental proposed rule, the NRC proposed modifications to the provisions related to the applicability of the rule and the evaluation of reactor vessel surveillance data. In addition, the NRC requested comments on the adjustments of volumetric examination data to demonstrate compliance with the rule. After consideration of the October 2007 proposed rule, the August 2008 supplemental proposed rule and the stakeholder comments received on both, the NRC has decided to adopt the PTS final rule as described further in this document.

The NRC completed a research program that concluded that the risk of through-wall cracking due to a PTS event is much lower than previously estimated. This finding indicates that the screening criteria in § 50.61 are unnecessarily conservative and may impose an unnecessary burden on some licensees. Therefore, the NRC developed a final rule, § 50.61a, that can be implemented by PWR licensees.

The § 50.61a alternate screening criteria and corresponding embrittlement correlations are based on a technical basis as documented in the following reports: (1) NUREG-1806, “Technical Basis for Revision of the Pressurized Thermal Shock (PTS) Screening Limits in the PTS Rule (10 CFR 50.61): Summary Report,” (ADAMS Accession No. ML061580318); (2) NUREG-1874, “Recommended Screening Limits for Pressurized Thermal Shock (PTS),” (ADAMS Accession No. ML070860156); (3) Memorandum from Elliot to Mitchell, dated April 3, 2007, “Development of Flaw Size Distribution Tables for Draft Proposed Title 10 of the Code of Federal Regulations (10 CFR) 50.61a,” (ADAMS Accession No. ML070950392); (4) “Statistical Procedures for Assessing Surveillance Data for 10 CFR Part 50.61a,” (ADAMS Accession No. ML081290654); and (5) “A Physically Based Correlation of Irradiation Induced Transition Temperature Shifts for RPV Steel,” (ADAMS Accession No. ML081000630).

The final rule is based on, in part, analyses of information from three currently operating PWRs. Because the severity of the risk-significant transient classes (e.g., primary side pipe breaks, stuck open valves on the primary side that may later re-close) is controlled by factors that are common to PWRs in general, the NRC concluded that the results and screening criteria developed from the analysis of these three plants can be applied with confidence to the entire fleet of operating PWRs. This conclusion is based on an understanding of characteristics of the dominant transients that drive their risk significance and on an evaluation of a larger population of high embrittlement PWRs. This evaluation revealed no design, operational, training, or procedural factors that could credibly increase either the severity of these transients or the frequency of their occurrence in the general PWR population above the severity and frequency characteristic of the three plants that were modeled in detail. The NRC also concluded that insignificant PTS events are not expected to become dominant.

The final rule is applicable to licensees whose construction permits were issued before February 3, 2010 and whose reactor vessels were designed and fabricated to the American Society of Mechanical Engineers Boiler and Pressure Vessel Code (ASME Code), 1998 Edition or earlier. This would include applicants for plants such as Watts Bar Unit 2 who have not yet received an operating license. However, it cannot be demonstrated, a priori, that reactor vessels that were not designed and fabricated to the specified ASME Code editions will have material properties, operating characteristics, PTS event sequences and thermal-hydraulic responses consistent with those evaluated as part of the technical basis for this rule. Therefore, the NRC determined that it would not be prudent at this time to extend the use of the rule to future PWR plants and plant designs such as the Advanced Passive (AP) 1000, Evolutionary Power Reactor (EPR) and U.S. Advanced Pressurized Water Reactor (US-APWR). These designs have different reactor vessels than those in the currently operating plants, and the fabrication of the vessels based on these designs may differ from the vessels evaluated in the analyses that form the bases for the final rule. Licensees of reactors who commence commercial power operation after the effective date of this rule or licensees with reactor vessels that were not designed and fabricated to the 1998 Edition or earlier of the ASME Code may, under the provisions of § 50.12, seek an exemption from § 50.61a(b) to apply this rule if a plant-specific basis analyzing their plant operating characteristics, materials of fabrication, and welding methods is provided.

The technical basis for § 50.61a uses many different models and parameters to estimate the yearly probability that a PWR will develop a through-wall crack as a consequence of PTS loading. One of these models is a revised embrittlement correlation that uses information on the chemical composition and neutron exposure of low alloy steels in the reactor vessel's beltline region to estimate the resistance to fracture of these materials. Although the general trends of the embrittlement models in §§ 50.61 and 50.61a are similar, the form of the revised embrittlement correlation in § 50.61a differs substantially from the correlation in § 50.61. The correlation in the § 50.61a final rule has been updated to more accurately represent the substantial amount of reactor vessel surveillance data that has accumulated since the embrittlement correlation was last revised during the 1980s.

The § 50.61a final rule differs from § 50.61 in that it contains a requirement for licensees who choose to follow its requirements to analyze the results from the ASME Code, Section XI, inservice inspection volumetric examinations. The examinations and analyses will determine if the flaw density and size distribution in the licensee's reactor vessel beltline are bounded by the flaw density and size distribution used in the technical basis. The technical basis was developed using a flaw density, spatial distribution, and size distribution determined from experimental data, as well as from physical models and expert elicitation. The experimental data were obtained from samples removed from reactor vessel materials from cancelled plants (i.e., Shoreham and the Pressure Vessel Research Users Facility (PVRUF) vessel). The NRC considers that the analysis of the ASME Code inservice inspection volumetric examination is needed to confirm that the flaw density and size distributions in the reactor vessel, to which the final rule may be applied, are consistent with those in the technical basis.

Paragraph (g)(6)(ii)(C) of 10 CFR 50.55a requires licensees to implement the ASME Code, Section XI, Appendix VIII, Supplements 4 and 6. Supplement 4 contains qualification requirements for the reactor vessel inservice inspection volume from the clad-to-base metal interface to the inner 1.0 inch or 10 percent of the vessel thickness, whichever is larger. Supplement 6 contains qualification requirements for reactor vessel weld volumes other than those near the clad-to-base metal interface. Analysis of the performance by qualified inspectors indicates that there is an 80 percent or greater probability of detecting a flaw that contributes to crack initiation from PTS events when they are inspected using the ASME Code, Section XI, Appendix VIII, Supplement 4 requirements.1

The true flaw density for flaws with a through-wall extent of between 0.1 and 0.3 inch can be inferred from the ASME Code examination results and the probability of detection. The technical basis for the final rule concludes that flaws as small as 0.1 inch in through-wall extent contribute to the through-wall crack frequency (TWCF), and nearly all of the contributions come from flaws buried less than 1 inch below the inner diameter surface of the reactor vessel. For weld flaws that exceed the sizes prescribed in the final rule, the risk analysis indicates that a single flaw can be expected to contribute a significant fraction of the 1 × 10−6 per reactor year limit on TWCF. Therefore, if a flaw that exceeds the sizes prescribed in the final rule is found in a reactor vessel, it is important to assess it individually.

The technical basis for the final rule also indicates that flaws buried deeper than 1 inch from the clad-to-base interface are not as susceptible to brittle fracture as similar size flaws located closer to the inner surface. Therefore, the final rule does not require the comparison of the density of these flaws, but still requires large flaws, if discovered, to be evaluated for contributions to TWCF if they are within the inner three-eighths of the vessel thickness. The limitation for flaw acceptance, specified in ASME Code, Section XI, Table IWB-3510-1, approximately corresponds to the threshold for flaw sizes that can make a significant contribution to TWCF if present in reactor vessel material at this depth. Therefore, the final rule requires that flaws exceeding the size limits in ASME Code, Section XI, Table IWB-3510-1 be evaluated for contribution to TWCF in addition to the other evaluations for such flaws that are prescribed in the ASME Code.

The numerical values in Tables 2 and 3 of the final rule represent the number of flaws in each size range that were derived from the technical basis. Verifying that a plant that intends to implement this rule has weld, plate and/or forging flaw distributions which are consistent with those assumed in the technical basis is necessary to ensure the applicability of the rule to that plant. If one or more larger flaws are found in a reactor vessel, they must be evaluated to ensure that they are not causing the TWCF to exceed the regulatory limit.

The final rule also clarifies that, to be consistent with ASME Code, Section XI, Appendix VIII, the smallest flaws that must be sized are 0.075 inches in through-wall extent. For each flaw detected that has a through-wall extent equal to or greater than 0.075 inches, the licensee shall document the dimensions of the flaw, its orientation and its location within the reactor vessel, and its depth from the clad-to-base metal interface. Those planar flaws for which the major axis of the flaw is identified by an ultrasonic transducer oriented in the circumferential direction must be documented as “axial.” All other planar flaws may be categorized as “circumferential.” The NRC may also use this information to evaluate whether plant-specific information gathered suggests that the NRC staff should generically re-examine the technical basis for the rule.

Surface cracks that penetrate through the stainless steel clad and more than 0.070 inch into the welds or the adjacent base metal were not included in the technical basis because these types of flaws have not been observed in the beltline of any operating PWR vessel. However, flaws of this type were observed in the Quad Cities Unit 2 reactor vessel head in 1990 (NUREG-1796, “Safety Evaluation Report Related to the License Renewal of the Dresden Nuclear Power Station, Units 2 and 3 and Quad Cities Nuclear Power Station, Units 1 and 2,” dated October 31, 2004). The observed cracks had a maximum depth into the base metal of approximately 0.24 inch and penetrated through the stainless steel clad. Quad Cities Units 2 and 3 are boiling water reactors which are not susceptible to PTS events and hence are not subject to the requirements of 10 CFR 50.61. The cracking at Quad Cities Unit 2 was attributed to intergranular stress corrosion cracking of the stainless steel cladding, which has not been observed in PWR vessels, and hot cracking of the low alloy steel base metal. If these cracks were in the beltline region of a PWR, they would be a significant contributor to TWCF because of their size and location. The final rule requires licensees to determine if cracks of this type exist in the beltline weld region at each ASME Code, Section XI, ultrasonic examination.

The flaw sizes in Tables 2 and 3 represent actual flaw dimensions while the results from the ASME Code examinations are estimated dimensions. The available information indicates that, for most flaw sizes in Tables 2 and 3, qualified inspectors will oversize flaws. Comparing oversized flaws to the size and density distributions in Tables 2 and 3 is conservative and acceptable, but not necessary.

As a result of stakeholder feedback received on the NRC solicitation for comments published in the August 2008 supplemental proposed rule, the final rule will permit licenses to adjust the flaw sizes estimated by inspectors qualified under the ASME Code, Section XI, Appendix VIII, Supplement 4 and Supplement 6.

The NRC determined that, in addition to the NDE sizing uncertainties, licensees should be allowed to consider other NDE uncertainties, such as probability of detection and flaw density and location, because these uncertainties may affect the ability of a licensee to demonstrate compliance with the rule. As a result, the language in § 50.61a(e) will allow licensees to account for the effects of NDE-related uncertainties in meeting the flaw size and density requirements of Tables 2 and 3. The methodology to account for the effects of NDE-related uncertainties must be based on statistical data collected from ASME Code inspector qualification tests or any other tests that measure the difference between the actual flaw size and the size determined from the ultrasonic examination. Verification that a licensee's flaw size and density distribution are upper-bounded by the distribution of Tables 2 and 3 is required to confirm that the risk associated with PTS is acceptable. Collecting, evaluating, and using data from ASME Code inspector qualification tests will require extensive engineering judgment. Therefore, the methodology used to adjust flaw sizes to account for the effects of NDE-related uncertainties must be reviewed and approved by the Director of the Office of Nuclear Reactor Regulation (NRR).

Paragraph (f) of the final rule defines the process for calculating the values for the reference temperature properties (i.e., defined as RTMAX-X) for a particular reactor vessel. These values must be based on the vessel material's copper, manganese, phosphorus, and nickel weight percentages, reactor cold leg temperature, and fast neutron flux and fluence values, as well as the unirradiated nil-ductility transition reference temperature (i.e., RTNDT).

The rule includes a procedure by which the RTMAX-X values, which are predicted for plant-specific materials using a generic temperature shift (i.e., ΔT30) embrittlement trend curve, are compared with heat-specific surveillance data that are collected as part of 10 CFR part 50, Appendix H, surveillance programs. The purpose of this comparison is to assess how well the surveillance data are represented by the generic embrittlement trend curve. If the surveillance data are close (closeness is assessed statistically) to the generic embrittlement trend curve, then the predictions of this embrittlement trend curve are used. This is expected to be the case most often. However, if the heat-specific surveillance data deviate significantly, and non-conservatively, from the predictions of the generic embrittlement trend curve, this indicates that alternative methods (i.e., other than, or in addition to, the generic embrittlement trend curve) may be needed to reliably predict the temperature shift trend, and to estimate RTMAX-X, for the conditions being assessed.

The NRC is modifying the final rule to include three statistical tests to determine the significance of the differences between heat-specific surveillance data and the embrittlement trend curve. The NRC determined that a single test is not sufficient to ensure that the temperature shift predicted by the embrittlement trend curve represents well the heat-specific surveillance data. Specifically, this single statistical test cannot determine if the temperature shift from the surveillance data show a more rapid increase after significant radiation exposure than the progression predicted by the generic embrittlement trend curve. This potential deficiency could be particularly important during a plant's period of extended operation. The deviations from the generic embrittlement trend curve are best assessed by licensees on a case-by-case basis, which would be submitted for the review of the Director of NRR.

The results of the first statistical test will determine if, on average, the temperature shifts from the surveillance data are significantly higher than the temperature shifts from the generic embrittlement trend curve. The results of the second and third tests will determine if the temperature shift from the surveillance data show a more rapid increase after significant radiation exposure than the progression predicted by the generic embrittlement trend curve.

The NRC received 5 comment letters for a total of 54 comments on the proposed rule published on October 3, 2007, and 3 comment letters for a total of 5 comments on the supplemental proposed rule published on August 11, 2008. All the comments on the proposed rule and supplemental proposed rule were submitted by industry stakeholders. A detailed discussion of the public comments and the NRC's responses are contained in a separate document (see Section V, “Availability of Documents,” of this document). This section only discusses the more significant comments received on the proposed rule and supplemental proposed rule provisions and the substantive changes made to develop the final rule requirements. The NRC also requested stakeholder feedback on one question in the supplemental proposed rule. This section discusses the comments received from the NRC inquiry and the changes made to the final rule language as a result of these comments. Comments are discussed by subject.

Comments on the Applicability of the Proposed Rule:

Comment: The commenters stated that the rule, as written, is only applicable to the existing fleet of PWRs. The characteristics of advanced PWR designs were not considered in the analysis. The commenters suggested adding a statement that this rule is applicable to the current PWR fleet and not the new plant designs.

Response: The NRC agrees with the comment that this rule is only applicable to the existing fleet of PWRs. The NRC cannot be assured that plants whose construction permit was issued after February 3, 2010, and whose reactor vessel was designed and fabricated to ASME Code Editions later than the 1998 Edition will have material properties, operating characteristics, PTS event sequences and thermal-hydraulic responses consistent with the reactors that were evaluated as part of the technical basis for § 50.61a. Other factors, including materials of fabrication and welding methods, would also be consistent with the underlying technical basis of 10 CFR 50.61a. As a result of this comment, the NRC modified § 50.61a(b) and the statement of considerations of the rule to reflect this position to allow the use of the rule only to plants whose construction permit was issued before February 3, 2010 and whose reactor vessel was designed and fabricated to the 1998 Edition or earlier of the ASME Code.

Comments on Surveillance Data:

Comment: The commenters stated that there is little added value in the requirement to assess the surveillance data as a part of this rule because variability in data has already been accounted for in the derivation of the embrittlement correlation.

The commenters also stated that there is no viable methodology for adjusting the projected ΔT30 for the vessel based on the surveillance data. Any effort to make this adjustment is likely to introduce additional error into the prediction. Note that the embrittlement correlation described in the basis for the revised PTS rule (i.e., NUREG-1874) was derived using all of the then available industry-wide surveillance data.

In the event that the surveillance data does not match the ΔT30 value predicted by the embrittlement correlation, the best estimate value for the pressure vessel material is derived using the embrittlement correlation. The likely source of the discrepancy is an error in the characterization of the surveillance material or of the irradiation environment. Therefore, unless the discrepancy can be resolved, obtaining the ΔT30 prediction based on the best estimate chemical composition for the heat of the material is more reliable than a prediction based on a single set of surveillance measurements.

The commenters suggested removing the requirement to assess surveillance data, including Table 5, of this rule.

Response: The NRC does not agree with the proposed change. The NRC believes that there is added value in the requirement to assess reactor vessel surveillance data. Although variability has been accounted for in the derivation of the embrittlement correlation, it is the NRC's view that the surveillance data assessment required in § 50.61a(f)(6) is needed to determine if the embrittlement for a specific heat of material in a reactor vessel is consistent with the embrittlement predicted by the embrittlement correlation.

The commenters also assert that there is no viable methodology for adjusting the projected ΔT30 for the vessel based on the surveillance data, and that any adjustment is likely to introduce additional error into the prediction. The NRC believes that although there is no single methodology for adjusting the projected ΔT30 for the vessel based on the surveillance data, it is possible, on a case-specific basis, to justify adjustments to the generic ΔT30 prediction. For this reason the rule does not specify a method for adjusting the ΔT30 value based on surveillance data, but rather requires the licensee to propose a case-specific ΔT30 adjustment procedure for review and approval of the Director of NRR. Although the commenters assert that it is possible that error could be introduced, it is the NRC view that appropriate plant-specific adjustments based upon available surveillance data may be necessary to project reactor pressure vessel embrittlement for the purpose of this rule.

As the result of these public comments, the NRC has continued to work on statistical procedures to identify deviations from generic embrittlement trends, such as those described in § 50.61a(f)(6) of the proposed rule. Based on this work, the NRC enhanced the procedure described in § 50.61a(f)(6) to, among other things, detect trends from plant- and heat-specific surveillance data that may emerge at high fluences that are not reflected by Equations 5, 6, and 7. The empirical basis for the NRC's concern regarding the potential for un-modeled high fluence effects is described in documents located at ADAMS Accession Nos. ML081120253, ML081120289, ML081120365, ML081120380, and ML081120600. The technical basis for the enhanced surveillance data assessment procedure is described in the document located at ADAMS Accession No. ML081290654.

Comment: The second surveillance data check described in the supplemental proposed rule should be eliminated from the rule because the slope change evaluation appears to be of limited value.

The second required surveillance data check is to address a slope change. The intent of this section appears to identify potential increases in the embrittlement rate at high fluence. The industry intends to move forward with an initiative to populate the power reactor vessel surveillance program database with higher neutron fluence surveillance data (i.e., extending to fluence values equivalent to 60-80 effective full power year (EFPY)) that will adequately cover materials variables for the entire PWR fleet. This database should provide a more effective means of evaluating the potential for enhanced embrittlement rates at high fluence values rather than using an individual surveillance data set to modify the trend with fluence. Data from this initiative will be available in the next few years to assess the likelihood of enhanced embrittlement rates for the PWR fleet.

Response: The NRC does not agree with the commenters' statement that the slope test (i.e., § 50.61a(f)(6)(iii)) has limited value and that it should be eliminated from the rule. The NRC believes that the slope test provides a method for determining whether high neutron fluence surveillance data is consistent with the ΔT30 model in the rule. Because there are currently only a few surveillance data points from commercial power reactors at high neutron fluences and the slope test will provide meaningful information, the NRC determines that the slope test should not be eliminated from the rule.

The NRC agrees with the industry initiative to obtain additional power reactor data at higher fluences. The NRC will review this data and the information available to evaluate the effects of high neutron fluence exposure when it becomes available. At that point, the NRC will determine if modifications to the embrittlement model and/or the surveillance data checks in § 50.61a should be made.

No changes were made to the rule language as a result of this comment.

Comments Related to the NRC Inquiry Related to the Adjustment of Volumetric Examination Data:

Comment: § 50.61a(e) should be modified to allow licensees to account for the effects of flaw sizing uncertainties and other uncertainties in meeting the requirements of Tables 2 and 3. The rule language should allow the use of applicable data from ASME qualification tests, vendor-specific performance demonstration tests, and other current and future data that may be applicable for assessing these uncertainties. The rule language should permit flaw sizes to be adjusted to account for the sizing uncertainties and other uncertainties before comparing the estimated size and density distribution to the acceptable size and density distributions in Tables 2 and 3.

The industry will provide guidance to enable licensees to account for the effects of sizing uncertainties and other uncertainties in meeting the requirements of Tables 2 and 3 of the rule. Guidance to ensure that the risk associated with PTS is acceptable will be provided to the Director of NRR for review and approval when completed.

Response: The NRC agrees that, in addition to the NDE sizing uncertainties, licensees should be allowed to consider other NDE uncertainties (e.g., probability of detection, flaw density and location) in meeting the requirements of the rule as these uncertainties may affect the ability of a licensee to demonstrate compliance with the rule. As a result, the language in § 50.61a(e) was modified to allow licensees to account for the effects of NDE-related uncertainties in meeting the flaw size and density requirements of Tables 2 and 3. This requirement would be accomplished by requiring licensees to base their methodology to account for the NDE uncertainties on statistical data collected from ASME Code inspector qualification tests and any other tests that measure the difference between the actual flaw size and the size determined from the ultrasonic examination. Collecting, evaluating, and using data from these tests will require extensive engineering judgment. Therefore, the methodology would have to be reviewed and approved by the Director of NRR.

Lastly, the commenters proposed to provide industry guidance to enable licensees to account for the effects of NDE uncertainties. The NRC determined that the rule language clearly states the information that must specifically be provided for NRC review and approval if licensees choose to account for NDE uncertainties. However, if industry guidance documents are developed, the NRC will consider them when submitted for review and approval.

The following section-by-section analysis discusses the sections that are being modified as a result of this final rulemaking.

This paragraph is modified to include the amended information collection requirements as a result of this final rule.

Section 50.61 contains the current requirements for PTS screening limits and embrittlement correlations. Paragraph (b) of this section is modified to reference § 50.61a as a voluntary alternative to compliance with the requirements of § 50.61. No changes are made to the current PTS screening criteria, embrittlement correlations, or any other related requirements in this section.

A new § 50.61a is added. Section 50.61a contains PTS screening limits based on updated probabilistic fracture mechanics analyses. This section provides requirements on PTS analogous to that of § 50.61, fracture toughness requirements for protection against PTS events for PWRs. However, § 50.61a differs extensively in how the licensee determines the resistance to fractures initiating from different flaws at different locations in the vessel beltline, as well as in the fracture toughness screening criteria. The final rule requires quantifying PTS reference temperatures (RTMAX-X) for flaws along axial weld fusion lines, plates, forgings, and circumferential weld fusion lines, and comparing the quantified value against the RTMAX-X screening criteria. Although comparing quantified values to the screening criteria is also required by the current § 50.61, the new § 50.61a provides screening criteria that vary depending on material product form and vessel wall thickness. Further, the embrittlement correlation and the method of calculation of RTMAX-X values in § 50.61a differ significantly from that in § 50.61 as described in the technical basis for this rule. The new embrittlement correlation was developed using multivariable surface-fitting techniques based on pattern recognition, understanding of the underlying physics, and engineering judgment. The embrittlement database used for this analysis was derived primarily from reactor vessel material surveillance data from operating reactors that are contained in the Power Reactor Embrittlement Data Base (PR-EDB) developed at Oak Ridge National Laboratory. The updated RTMAX-X estimation procedures provide a better (compared to the existing regulation) method for estimating the fracture toughness of reactor vessel materials over the lifetime of the plant. However, if extensive mixed oxide (MOX) fuels with a high plutonium component are to be used, the neutron irradiation of the vessel material will contain more neutrons per unit energy produced and those neutrons will have higher energies. Extensive use of MOX fuel would result in a change in the Reactor Core Fuel Assembly (RCFA) design. Thus, in accordance to § 50.90, licensees are required to submit a license amendment before changing the RCFA design. The § 50.61a final rule requires that licensees verify an appropriate RTMAX-X value has been calculated for each reactor vessel beltline material considering plant-specific information that could affect the use of the model. A licensee using MOX fuel would use its surveillance data to meet the requirements of § 50.61a and must justify the applicability of the model expressed by Equations 5, 6, and 7 listed in the final rule.

This paragraph contains definitions for terms used in § 50.61a. It explains that terms defined in § 50.61 have the same meaning in § 50.61a, unless otherwise noted.

This paragraph sets forth the applicability of the final rule and specifies that its provisions apply only to those holders of operating licenses whose construction permits were issued before February 3, 2010, and whose reactor vessels were designed and fabricated to the 1998 Edition or earlier of the ASME Code. Both elements must be satisfied in order for a licensee to take advantage of § 50.61a. The rule does not apply to any combined license issued under Part 52 for two reasons: (1) the combined license would be issued after February 3, 2010, and (2) none of the reactor vessels for the nuclear power reactors covered by these combined licenses would have been designed and fabricated to the 1998 Edition or earlier of the ASME Code. The same logic also explains why § 50.61a would not apply to any design certification or manufacturing license issued under Part 52.

This paragraph establishes the requirements governing NRC approval of a licensee's use of § 50.61a. The licensee has to make a formal request to the NRC via a license amendment, and would only be allowed to implement § 50.61a upon NRC approval. The license amendment request must provide information that includes: (1) Calculations of the values of RTMAX-X values as required by § 50.61a(c)(1); (2) examination and assessment of flaws discovered by ASME Code inspections as required by § 50.61a(c)(2); and (3) comparison of the RTMAX-X values against the applicable screening criteria as required by § 50.61a(c)(3). In doing so, the licensee also would be required to use §§ 50.61a(e), (f) and (g) to perform the necessary calculations, comparisons, examinations, assessments, and analyses.

This paragraph defines the requirements for subsequent examinations and flaw assessments after initial approval to use § 50.61a has been obtained under the requirements of § 50.61a(c). It also defines the required compensatory measures or analyses to be taken if a licensee determines that the screening criteria will be exceeded. Paragraph (d)(1) defines the requirements for subsequent RTMAX-X assessments consistent with the requirements of §§ 50.61a(c)(1) and (c)(3). Paragraph (d)(2) defines the requirements for subsequent examination and flaw assessments using the requirements of § 50.61a(e). Paragraphs (d)(3) through (d)(7) define the requirements for implementing compensatory measures or plant-specific analyses should the value of RTMAX-X be projected to exceed the PTS screening criteria in Table 1 of this section.

This paragraph defines the requirements for verifying that the PTS screening criteria in § 50.61a are applicable to a particular reactor vessel. The final rule requires that the verification be based on an analysis of test results from ultrasonic examination of the reactor vessel beltline materials required by ASME Code, Section XI.

This paragraph establishes limits on flaw density and size distributions within the volume described in ASME Code, Section XI, Figures IWB-2500-1 and IWB-2500-2, and limited to a depth of approximately 1 inch from the clad-to-base metal interface or 10 percent of the vessel thickness, whichever is greater. Flaws in this inspection volume contribute approximately 97 to 99 percent to the TWCF at the screening limit.

The verification shall be performed line-by-line for Tables 2 and 3. For example, for the second line in Table 2, the licensee would tabulate all of the flaws detected in the relevant inspection volume in welds and would tally the number that have through-wall extents between the minimum (TWEMIN) and maximum (TWEMAX) values for line 2 (0.075 inches and 0.475 inches), would divide that total number by the number of thousands of inches of weld length examined to get a density, and would compare the resulting density to the limit in line 2, column 3 (which is 166.70 flaws per 1000 inches of weld metal). The licensee would then perform a similar analysis for line 3 in Table 2 by tallying the number of the flaws that have through-wall extents between the TWEMIN and TWEMAX values for line 3 (0.125 inches and 0.475 inches), would divide the total number by the number of thousands of inches of weld length examined to get a density, and would compare the resulting density to the limit in line 3, column 3 (which is 90.80 flaws per 1000 inches of weld metal). This process would be repeated for each line in the tables.

This paragraph allows licensees to adjust test results from the volumetric examination to account for the effects of NDE-related uncertainties. If test data is adjusted to account for NDE-related uncertainties, the methodology and statistical data used to account for these uncertainties must be submitted for review and approval by the Director of NRR.

This paragraph also states that if the licensee's flaw density and size distribution exceeds the values in Tables 2 and 3, a neutron fluence map would have to be submitted in accordance with § 50.61a(e)(6).

These paragraphs describe the flaw density limits for welds and for plates and forgings, respectively.

This paragraph describes the specific ultrasonic examination information to be submitted to the NRC. This paragraph establishes the documenting requirement for axial and circumferential flaws with a through-wall extent equal to or greater than 0.075 inches. Licensees must document indications that have been observed through ultrasonic inspections intended to locate axially-oriented flaws as “axial” (i.e., an axial flaw would be one identified by an ultrasonic transducer oriented in the circumferential direction). All other indications may be categorized as “circumferential.” The NRC will use this information to evaluate whether plant-specific information gathered in accordance with this rule suggests that the NRC should generically re-examine the technical basis for the rule.

This paragraph requires that licensees verify that clad-to-base metal interface flaws do not open to the inside surface of the vessel. These types of flaws could have a substantial effect on the TWCF.

This paragraph establishes limits for flaws that are between the clad-to-base metal interface and three-eights of the reactor vessel wall thickness from the interior surface. Flaws exceeding these limits could affect the TWCF. Flaws greater than three-eights of the reactor vessel wall thickness from the interior surface of the reactor vessel thickness do not contribute to the TWCF at the screening limit.

This paragraph establishes requirements to be met if flaws exceed the limits in §§ 50.61a(e)(1) and (e)(3), or open to the inside surface of the reactor vessel. This section requires an analysis to demonstrate that the reactor vessel would have a TWCF of less than 1 × 10− 6 per reactor year. The analysis could be a complete, plant-specific, probabilistic fracture mechanics analysis or could be a simplified analysis of flaw size, orientation, location and embrittlement to demonstrate that the actual flaws in the reactor vessel are not in locations, and/or do not have orientations, that would cause the TWCF to be greater than 1 × 10− 6 per reactor year. With specific regard to circumferentially-oriented flaws that exceed the limits of §§ 50.61a(e)(1) and (e)(3), it may be noted that even if a reactor pressure vessel has a circumferential weld at the RTMAX-CW limits of Table 1, this weld only contributes 1 × 10− 8 per reactor year to the TWCF predicted for the vessel. Licensees must comply with this if the requirements of §§ 50.61a(e)(1), (e)(2), and (e)(3) are not satisfied.

This paragraph describes the critical parameters to be addressed if flaws exceed the limits in §§ 50.61a(e)(1) and (e)(3) or if the flaws would open to the inside surface of the reactor vessel. This paragraph will be required to be implemented if the requirements of §§ 50.61a(e)(1), (e)(2), and (e)(3) are not satisfied.

This paragraph establishes the requirements for submitting a neutron fluence map if the flaw density and sizes are greater than those specified in Tables 2 and 3. Regulatory Guide 1.190 provides an acceptable methodology for determining the reactor vessel neutron fluence.

These paragraphs define the process for calculating the values for the material properties (i.e., RTMAX-X) for a particular reactor vessel. These values are based on the vessel's copper, manganese, phosphorus, and nickel weight percentages, reactor cold leg temperature, and neutron flux and fluence values, as well as the unirradiated RTNDT of the product form in question.

This paragraph requires licensees to consider the plant-specific information that could affect the use of the embrittlement model established in the final rule.

This paragraph establishes the requirements to perform data checks to determine if the surveillance data show a significantly different trend than what the embrittlement model in this rule predicts. Licensees are required to evaluate the surveillance for consistency with the embrittlement model by following the procedures specified by §§ 50.61a(f)(6)(ii), (f)(6)(iii), and (f)(6)(iv).

This paragraph establishes the requirements to perform an estimate of the mean deviation of the surveillance data set from the embrittlement model. The mean deviation for the surveillance data set must be compared to values given in Table 5 or Equation 10. The surveillance data analysis must follow the criteria in §§ 50.61a(f)(6)(v) and (f)(6)(vi).

This paragraph establishes the requirements to estimate the slope of the embrittlement model residuals (i.e., the difference between the measured and predicted value for a specific data point). The licensee must estimate the slope using Equation 11 and compare this value to the maximum permissible value in Table 6. This surveillance data analysis must follow the criteria in §§ 50.61a(f)(6)(v) and (f)(6)(vi).

This paragraph establishes the requirements to estimate an outlier deviation from the embrittlement model for the specific data set using Equations 8 and 12. The licensee must compare the normalized residuals to the allowable values in Table 7. This surveillance data analysis must follow the criteria in §§ 50.61a(f)(6)(v) and (f)(6)(vi).

This paragraph establishes the criteria to be satisfied in order to calculate the ΔT30 shift values.

This paragraph establishes the actions to be taken by a licensee if the criteria in § 50.61a(f)(6)(v) are not met. The licensee must submit an evaluation of the surveillance data and propose values for ΔT30, considering their plant-specific surveillance data, for review and approval by the Director of NRR. The licensee must submit an evaluation of each surveillance capsule removed from the vessel after the submittal of the initial application for review and approval by the Director of NRR no later than 2 years after the capsule is withdrawn from the vessel.

This paragraph provides the necessary equations and variables required by § 50.61a(f). These equations were calibrated to the surveillance database collected in accordance with the requirements of 10 CFR part 50, Appendix H. This database contained data occupying the range of variables detailed in the table below.

Table 1 provides the PTS screening criteria for comparison with the licensee's calculated RTMAX-X values. Tables 2 and 3 provide values to be used in § 50.61a(e). Tables 4 through 7 provide values to be used in § 50.61a(f).

The documents identified below are available to interested persons through one or more of the following methods, as indicated.

Public Document Room (PDR). The NRC PDR is located at 11555 Rockville Pike, Rockville, Maryland 20852.

Regulations.gov (Web). These documents may be viewed and downloaded electronically through the Federal eRulemaking Portal http://www.regulations.gov, Docket number NRC-2007-0008.

NRC's Electronic Reading Room (ERR). The NRC's public electronic reading room is located at www.nrc.gov/reading-rm.html.

Under the “Policy Statement on Adequacy and Compatibility of Agreement States Programs,” approved by the Commission on June 20, 1997, and published in the Federal Register (62 FR 46517) on September 3, 1997, this rule is classified as compatibility category “NRC.” Agreement State Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws. Category “NRC” regulations do not confer regulatory authority on the State.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical.

The NRC determined that there is only one technical standard developed that could be used for characterizing the embrittlement correlations. That standard is the American Society for Testing and Materials (ASTM) standard E-900, “Standard Guide for Predicting Radiation-Induced Temperature Transition Shift in Reactor Vessel Materials.” This standard contains a different embrittlement correlation than that of this final rule. However, the correlation developed by the NRC has been more recently calibrated to available data. As a result, ASTM standard E-900 is not a practical candidate for application in the technical basis for the final rule because it does not represent the broad range of conditions necessary to justify a revision to the regulations.

The ASME Code requirements are used as part of the volumetric examination analysis requirements of the final rule. ASTM Standard Practice E 185, “Standard Practice for Conducting Surveillance Tests for Light-Water Cooled Nuclear Power Reactor Vessels,” is incorporated by reference in 10 CFR part 50, Appendix H and used to determine 30-foot-pound transition temperatures. These standards were selected for use in the final rule based on their use in other regulations within 10 CFR part 50 and their applicability to the subject of the desired requirements.

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

The determination of this environmental assessment is that there will be no significant offsite impact to the public from this action. Section 50.61a would maintain the same functional requirements for the facility as the existing PTS rule in § 50.61. This final rule establishes screening criteria, limiting levels of embrittlement beyond which plant operation cannot continue without further plant-specific evaluation or modifications. This provides reasonable assurance that licensees operating below the screening criteria could endure a PTS event without fracture of vessel materials, thus assuring integrity of the reactor pressure vessel. In addition, the final rule is risk-informed and sufficient safety margins are maintained to ensure that any potential increases in core damage frequency and large early release frequency resulting from implementation of § 50.61a are negligible. The final rule will not significantly increase the probability or consequences of accidents, result in changes being made in the types of any effluents that may be released off site, or result in a significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with this final rule. Nonradiological plant effluents are not affected as a result of this final rule.

The NRC requested the views of the States on the environmental assessment for this rule. No comments were received. Therefore, the environmental assessment determination published on October 3, 2007 (72 FR 56275) remains unchanged.

This final rule contains new or amended information collection requirements contained in 10 CFR part 50, that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). These requirements were approved by the Office of Management and Budget (OMB), approval number 3150-0011.

The burden to PWR licensees using the requirements of 10 CFR 50.61a in lieu of the requirements of 10 CFR 50.61 for these information collections is estimated to average 363 hours per response. This includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection.

Send comments on any aspect of these information collections, including suggestions for reducing the burden, to the Records and FOIA/Privacy Services Branch (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by e-mail to INFOCOLLECTS.Resource@nrc.gov; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0011), Office of Management and Budget, Washington, DC 20503, or by e-mail to ChristineJ.Kymn@omb.eop.gov.

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

The NRC has prepared a regulatory analysis of this regulation. The analysis examines the costs and benefits of the alternatives considered by the NRC. The NRC concluded that implementing the final rule would provide savings to licensees projected to exceed the PTS screening criteria established in § 50.61 in their plant lifetimes. Availability of the regulatory analysis is provided in Section V, “Availability of Documents” of this document. No public comments were received on the proposed or supplemental regulatory analyses.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this rule would not have a significant economic impact on a substantial number of small entities. This final rule would affect only the licensing and operation of currently operating nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has determined that the requirements in this final rule would not constitute backfitting as defined in 10 CFR 50.109(a)(1). Therefore, a backfit analysis has not been prepared for this rule.

The requirements of the current PTS rule, 10 CFR 50.61, would continue to apply to all PWR licensees and would not change as a result of this final rule. The requirements of the alternate PTS rule would not be required, but could be used by current PWR licensees at their option. Current PWR licensees choosing to implement the alternate PTS rule are required to comply with its requirements as an alternative to complying with the requirements of the current PTS rule. Because the alternate PTS rule would not be mandatory for any PWR licensee, but rather could be voluntarily implemented, the NRC has determined that this rulemaking would not constitute backfitting.

Under the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of the OMB.

The final rules that are the subject of these corrections were published as part of a continuing series of regulations the Commission promulgated implementing the Privacy Act of 1974, Public Law 93-579, 88 Stat. 1896 (1974), the Government in the Sunshine Act of 1976, Public Law 94-409, 90 Stat. 1241 (1976), the Freedom of Information Act of 1966, as amended, 5 U.S.C. 552, and the Federal Election Campaign Act (“FECA”) of 1971, as amended, 2 U.S.C. 431, et seq. Because these corrections are merely technical, this is not a substantive rule requiring notice and comment under the Administrative Procedure Act, 5 U.S.C. 553. Under the “good cause” exception to the notice and comment requirements, 5 U.S.C. 553(b)(B) and (d)(3), these corrections are effective upon publication. Thus, the corrected final rules are effective January 4, 2010.

The Commission is removing the definition of “Commissioners” and replacing it with a definition of “Commissioner,” to read as follows: “Commissioner means an individual appointed to the Federal Election Commission pursuant to 2 U.S.C. 437c(a).” The purpose of this change is to make the definition of “Commissioner” consistent in Commission regulations. The Commission is also placing the definitions in alphabetical order to assist the reader in locating a specific definition.

The Commission is correcting an obsolete reference in paragraph (b) of this section to conform it to updated internal agency procedures by replacing the term “Staff Director” with the term “Chief Privacy Officer.”

The Commission is correcting a typographical error in paragraph (a) of this section by replacing the semicolon after the phrase “2 U.S.C. 438(b)” with a comma.

The Commission is correcting erroneous punctuation in paragraph (b)(1) of this section by replacing the period after the last word of the paragraph, “practices,” with a semicolon.

The Commission is correcting erroneous punctuation in paragraph (c) of this section by inserting a comma after the last instance of the word “meeting.”

The Commission is correcting a typographical error in paragraph (a)(4) of this section by removing the letter “s” in the word “works” in the second sentence, so that the resulting word is “work.” In addition, the Commission is correcting missing words and capitalization in paragraphs (a)(4)(i), (iii), and (iv) of this section by inserting the word “Chief” in front of the word “FOIA” in all instances where “FOIA” appears. Also, in paragraphs (a)(4)(i) and (iii) of this section, the Commission is capitalizing the first letter of the word “officer,” so that it reads “Officer.” In addition, the Commission is correcting a typographical error in paragraph (b) of this section by replacing the colon after “11 CFR 4.5(a)(7)” with a comma. Finally, the Commission is correcting a typographical error in paragraph (b)(2)(i) of this section by replacing the comma after the word “pendency” with a semicolon.

The Commission is correcting a missing word and a typographical error in paragraph (b)(1) of this section by replacing the term “FOIA officer” with “Chief FOIA Officer.”

The Commission is inserting the word “Chief” directly before all instances of the term “FOIA Officer” in paragraph (i) of section 4.7, paragraph (c) of section 4.8, and paragraph (c) of section 5.5.

The Commission is correcting a typographical error in paragraph (c)(1)(iv) of this section, by changing the second sentence of the paragraph to read as follows: “Requests from persons for records about themselves will continue to be treated under the fee provisions of the Privacy Act of 1974, which permit fees only for duplication.”

The Commission is correcting an incorrect citation in paragraph (f) of this section by replacing the reference to 11 CFR 100.78(d) at the end of the section with “paragraph (d) of this section.”

The Commission is correcting two incorrect citations in this section by replacing the references to 11 CFR 100.7(b)(1) and 100.8(b)(1) with 11 CFR 100.72 and 100.131, respectively.

The Commission is correcting the heading to this section by replacing the reference to 2 U.S.C. 432(a)(3) with 2 U.S.C. 432(b)(3).

The Commission is correcting incorrect citations in paragraphs (a)(3)(vii)(B), (b)(2)(iii)(A), (b)(4)(iii), (d), and (d)(4) of this section by replacing all references to 11 CFR 100.7(b)(22) with 11 CFR 100.83, and by replacing all references to 100.8(b)(24) with 100.143.

The Commission is correcting two incorrect citations in paragraph (g) this section, by replacing the references to 11 CFR 100.7(b)(22) and 100.8(b)(24) with 11 CFR 100.83 and 100.143, respectively. The Commission is also correcting an incorrect citation in paragraph (g)(2) by replacing the reference to 11 CFR 100.7(b)(22)(iii) with 11 CFR 100.83(c).

The Commission is correcting an incorrect citation in paragraph (a) of this section by changing the reference to 11 CFR 110.10 to 11 CFR 100.10.

The Commission is correcting an inadvertent duplication of language in paragraph (f)(2)(i) of this section, governing expenditures by delegates for public political advertising that refers to candidates for public office. The duplicated language is from paragraph (f)(2)(ii) of this section, which concerns expenditures by delegates for communications that are not coordinated with candidates. As revised, paragraph (f)(2)(i) provides that delegate communications are in-kind contributions to a Federal candidate if they are coordinated communications under 11 CFR 109.21. This change is necessary to bring the rules governing delegates into alignment with the rules governing delegate committees in 11 CFR 110.14(i)(2) and coordinated communications in 11 CFR 109.21.

The Commission is correcting an incorrect citation in paragraph (a) of this section by replacing the reference to 11 CFR 110.7 with 11 CFR 109.32. Thus, the relevant part of the sentence will read “* * * expenditures established by 11 CFR 109.32 and 110.8 shall be increased * * *”

The Commission is correcting the first sentence of paragraph (g)(8) of this section by deleting the word “proposed” directly before the word “paragraphs.”

The Commission is removing the Editorial Note at the end of this section, on page 234 of the 2009 Code of Federal Regulations, in its entirety. In addition, the Commission is correcting a citation in paragraph (e)(2)(ii) of this section by replacing the reference to 11 CFR 104.14 with 11 CFR 104.20(b).

The Commission is changing the definition of “Commissioner” in paragraph (c) of this section to read as follows: “Commissioner means an individual appointed to the Federal Election Commission pursuant to 2 U.S.C. 437c(a).” The purpose of this change is to make the definition of “Commissioner” consistent in Commission regulations.

The Commission is correcting a typographical error in paragraph (g) of this section by replacing the phrase “State, district, or local committee or a political party” with “State, district, or local committee of a political party.”

The Commission is correcting the heading to this section by removing the word “party.”

The Commission is correcting the authority citations located in each of these parts. For part 2, the Commission is removing the redundant reference to the public law from the authority citation. For parts 101, 102, 113, 114, 201, and 300, the Commission is adding the word “and” before the last statutory reference in the authority citations to conform them to other authority citations in 11 CFR, and to make clear that there are no additional statutory references.

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

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

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

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

If you want us to let you know we received your comments on these special conditions, send us a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On September 15, 2009, Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac, Cedex, France, applied for a design change to Type Certificate No. A43NM for installation of seats that include non-traditional, large, non-metallic panels in Airbus Model A340 series airplanes. These airplanes, currently approved under Type Certificate No. A43NM, are swept-wing, conventional-tail, twin-engine, turbofan-powered, twin-aisle, large-sized transport-category airplanes.

The applicable regulations to airplanes currently approved under Type Certificate No. A43NM do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then-recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat-release and smoke-emission requirements.

Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage-bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14, Code of Federal Regulations (14 CFR), part 25, appendix F, parts IV and V, heat-release and smoke-emission requirements.

Under the provisions of § 21.101, Airbus must show that the Model A340 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A43NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A43NM are as follows: 14 CFR part 25, as amended by Amendments 25-1 through 25-63; certain regulations at later Amendments 25-65, 25-66, and 25-77; and Amendment 25-64 with exceptions. Refer to Type Certificate Data Sheet (TCDS) A43NM for a complete description of the certification basis for that model, including certain special conditions that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model A340 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model A340 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.

The Model A340 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of occupants of the cabin in the case of fire. These seats are considered a novel design for transport-category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established.

The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels. To provide a level of safety that is equivalent to that provided by the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions, required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels.

A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: seat backs and bottoms, leg/foot rests, kick panels, back shells, credenzas, and associated furniture. Examples of traditional exempted parts of the seat include: arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds.

“Exposed” is considered to include those panels directly exposed to the passenger cabin in the traditional sense, plus those panels enveloped such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials still must comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments.

In the early 1980s, the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large-surface-area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853, entitled “Compartment interiors,” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply.

At the time these standards were written, the FAA explored the potential application of the requirements of heat-release and smoke-emission requirements to seats. The seat frame itself was not a concern because it was primarily made of aluminum and only small amounts of non-metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat-release and smoke-emission requirements. The requirements, therefore, did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985), and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.”

Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.”

In the late 1990s, the FAA issued Policy Memorandum 97-112-39, “Guidance for Flammability Testing of Seat/Console Installations,” October 17, 1997 (http://rgl.faa.gov). That memo was issued when it became clear that seat designs were evolving to include large non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large-surface-area panels must comply with heat-release and smoke-emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event.

In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat-release and smoke-emission requirements. We have determined that special conditions would be issued to apply the standards defined in § 25.853(d) to seats with large, non-metallic panels in their design.

As discussed above, these special conditions are applicable to Airbus Model A340 series airplanes. Although the heat-release and smoke-emission testing requirements of § 25.853, per Appendix F, parts IV and V, are not part of the part 25 certification basis for the Airbus Model A340 series airplanes, these special conditions are applicable if the airplanes are in 14 CFR part 121 service. Part 121 requires applicable interior panels to comply with § 25.853, Appendix F, parts IV and V, regardless of the certification basis. It is not our intent to require seats with large, non-metallic panels to meet § 25.853, Appendix F, parts IV and V, if they are installed in cabins of airplanes that otherwise are not required to meet these standards. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on Airbus Model A340 series airplanes. It is not a rule of general applicability.

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

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

We invite interested persons to take part in this rulemaking by sending written comments. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

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

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

If you want us to let you know we received your comments on these special conditions, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On December 5, 2008, Bizjet International (Bizjet) applied for a supplemental type certificate for the Airbus Model A318-112 airplane, serial number 3886. The Airbus Model A318-112 airplane is a large, transport-category airplane powered by two CFM56-5B9/P engines, with a basic maximum takeoff weight of 130,071 pounds. The modified Airbus Model A318-112 airplane, serial number 3886, operates with a two-pilot crew, up to four flight attendants, and can hold up to 19 passengers.

The modification consists of installing an electrically heated surface, called a cooktop. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger-cabin environment. These potential hazards to the airplane and its occupants must be satisfactorily addressed. Because existing airworthiness regulations do not contain safety standards addressing cooktops, we issue these special conditions.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bizjet must show that the Airbus 318-112, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A28NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in A28NM are 14 CFR part 25, as amended by Amendments 25-1 through 25-56, with reversions to earlier amendments, voluntary compliance to later amendments, special conditions, equivalent-safety findings, and exemptions listed in the type-certificate data sheet.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25, as amended) do not contain adequate or appropriate safety standards for the Model A318-112 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model A318-112 must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type certification basis under § 21.101.

As noted earlier, the modification of the Airbus Model A318-112 airplane, serial number 3886, will incorporate a cooktop in the passenger cabin. Cooktops introduce high heat, smoke, and the possibility of fire into the passenger cabin environment. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards to protect the airplane and its occupants from these potential hazards. The applicant's proposed system is considered to be a novel or unusual design feature.

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

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

As discussed above, these special conditions are applicable to the Model A318-112 airplane, serial number 3886, modified by Bizjet. Should Bizjet apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A28NM, to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register. However, because the certification date for the subject modification to the Model A318-112 is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for the Airbus Model A318-112 airplane, serial number 3886, modified by Bizjet.

Cooktop installations with electrically powered burners must comply with the following criteria:

1. Means, such as conspicuous burner-on indicators, physical barriers, or handholds, must be installed to minimize the potential for inadvertent personnel contact with hot surfaces of both the cooktop and cookware. Conditions of turbulence must be considered.

2. Sufficient design means must be included to restrain cookware while in place on the cooktop, as well as representative contents, e.g., soup, sauces, etc., from the effects of flight loads and turbulence. Restraints must be provided to preclude hazardous movement of cookware and contents. These restraints must accommodate any cookware that is identified for use with the cooktop. Restraints must be designed to be easily utilized and effective in service. The cookware restraint system should also be designed so that it will not be easily disabled, thus rendering it unusable. Placarding must be installed which prohibits the use of cookware that cannot be accommodated by the restraint system.

3. Placarding must be installed which prohibits the use of cooktops (i.e., power on any burner) during taxi, takeoff, and landing.

4. Means must be provided to address the possibility of a fire occurring on or in the immediate vicinity of the cooktop. Two acceptable means of complying with this requirement are as follows:

a. Placarding must be installed that prohibits any burner from being powered when the cooktop is unattended, which would prohibit a single person from cooking on the cooktop and intermittently serving food to passengers while any burner is powered; and a fire detector must be installed in the vicinity of the cooktop, and which provides an audible warning in the passenger cabin; and a fire extinguisher of appropriate size and extinguishing agent must be installed in the immediate vicinity of the cooktop. Access to the extinguisher must not be blocked by a fire on or around the cooktop. One of the fire extinguishers required by § 25.851 may be used to satisfy this requirement. If this is not possible, then the extinguisher in the galley area would be additional, or,

b. An automatic, thermally activated, fire-suppression system must be installed to extinguish a fire at the cooktop and immediately adjacent surfaces. The agent used in the system must be an approved, total-flooding agent suitable for use in an occupied area. The fire-suppression system must have a manual override. The automatic activation of the fire-suppression system must also automatically shut off power to the cooktop.

5. The surfaces of the galley surrounding the cooktop, which would be exposed to a fire on the cooktop surface or in cookware on the cooktop, must be constructed of materials that comply with the flammability requirements of Part III of Appendix F of part 25. This requirement is in addition to the flammability requirements typically required of the materials in these galley surfaces. During the selection of these materials, consideration must also be given to ensure that the flammability characteristics of the materials will not be adversely affected by the use of cleaning agents and utensils used to remove cooking stains.

6. The cooktop must be ventilated with a system independent of the airplane cabin and cargo ventilation system. Procedures and time intervals must be established to inspect and clean or replace the ventilation system to prevent a fire hazard from the accumulation of flammable oils and be included in the instructions for continued airworthiness. The ventilation system ducting must be protected by a flame arrestor. [Note: The applicant may find additional useful information in the Society of Automotive Engineers, Aerospace Recommended Practice 85, Rev. E, article titled, “Air Conditioning Systems for Subsonic Airplanes,” August 1, 1991.]

7. Means must be provided to contain spilled foods or fluids in a manner that prevents the creation of a slipping hazard to occupants, and that will not lead to the loss of structural strength due to corrosion.

8. Cooktop installations must provide adequate space for the user to immediately escape a hazardous cooktop condition.

9. A means to shut off power to the cooktop must be provided at the galley containing the cooktop and in the cockpit. If additional switches are introduced in the cockpit, revisions to smoke or fire emergency procedures of the AFM will be required.

10. A deployable cover must be readily available to cover the cooktop. The cooktop must be in stowed position during taxi, takeoff, and landing operation. When the cooktop is in the stowed position, the power must be automatically shut off.

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

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

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

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

If you want us to let you know we received your comments on these special conditions, send us a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On September 15, 2009, Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac, Cedex, France, applied for a design change to Type Certificate No. A46NM for installation of seats that include non-traditional, large, non-metallic panels in Airbus Model A330 series airplanes. These airplanes, currently approved under Type Certificate No. A46NM, are swept-wing, conventional-tail, twin-engine, turbofan- powered, twin-aisle, large-sized transport-category airplanes.

The applicable regulations to airplanes currently approved under Type Certificate No. A46NM do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then-recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, the contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat-release and smoke-emission requirements.

Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead stowage-bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14, Code of Federal Regulations (14 CFR), part 25, appendix F, parts IV and V, heat-release and smoke-emission requirements.

Under the provisions of § 21.101, Airbus must show that the Model A330 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A46NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A46NM are as follows: 14 CFR part 25, as amended by Amendments 25-1 through 25-63, 25-65, 25-66, 25-68, 25-69, 25-73, 25-75, 25-77, 25-78, 25-81, 25-82, 25-84 and 25-85; certain regulations at Amendments 25-72 and 25-74; and Amendment 25-64 with exceptions. Refer to TCDS A46NM for a complete description of the certification basis for that model, including certain special conditions that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Model A330 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model A330 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.

The Model A330 series airplanes will incorporate the following novel or unusual design features: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of occupants of the cabin in the case of fire. These seats are considered a novel design for transport-category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established.

The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels. To provide a level of safety that is equivalent to that provided by the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions, required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels.

A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: Seat backs and bottoms, leg/foot rests, kick panels, back shells, credenzas, and associated furniture. Examples of traditional exempted parts of the seat include: Arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds.

“Exposed” is considered to include those panels directly exposed to the passenger cabin in the traditional sense, plus those panels enveloped such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials still must comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments.

In the early 1980s, the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large-surface-area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, Appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire survival time. Materials that comply with the standards (i.e., § 25.853, entitled “Compartment interiors,” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply.

At the time these standards were written, the FAA explored the potential application of the requirements of heat-release and smoke-emission requirements to seats. The seat frame itself was not a concern because it was primarily made of aluminum and only small amounts of non-metallic materials. It was determined that the overall effect on survivability was negligible, whether or not the food trays met the heat-release and smoke-emission requirements. The requirements, therefore, did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985), and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.”

Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.”

In the late 1990s, the FAA issued Policy Memorandum 97-112-39, “Guidance for Flammability Testing of Seat/Console Installations,” October 17, 1997 (http://rgl.faa.gov). That memo was issued when it became clear that seat designs were evolving to include large non-metallic panels with surface areas that would impact survivability during a cabin fire event, comparable to partitions or galleys. The memo noted that large-surface-area panels must comply with heat-release and smoke-emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin fire event.

In October of 2004, an issue was raised regarding the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional metal covered by fabric. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat-release and smoke-emission requirements. We have determined that special conditions would be issued to apply the standards defined in § 25.853(d) to seats with large, non-metallic panels in their design.

As discussed above, these special conditions are applicable to Airbus Model A330 series airplanes. Although the heat-release and smoke-emission testing requirements of § 25.853, per Appendix F, parts IV and V, are not part of the part 25 certification basis for the Airbus Model A330 series airplanes, these special conditions are applicable if the airplanes are in 14 CFR part 121 service. Part 121 requires applicable interior panels to comply with § 25.853, Appendix F, parts IV and V, regardless of the certification basis. It is not our intent to require seats with large, non-metallic panels to meet § 25.853, Appendix F, parts IV and V, if they are installed in cabins of airplanes that otherwise are not required to meet these standards. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on Airbus Model A330 series airplanes. It is not a rule of general applicability.

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

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Airbus Model A330 series airplanes.

1. Compliance with 14 CFR part 25, appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may be either a single component or multiple components in a concentrated area in their design. Traditional panels are exempted.

2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with No. 1. A triple-seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard seat place, 1 sq. ft.; middle, 1 sq. ft.; and inboard, 2.5 sq. ft.).

3. Seats need not meet the test requirements of 14 CFR part 25, appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include:

a. Airplanes with passenger capacities of 19 or less,

b. Airplanes that do not have smoke-and-heat release in their certification basis, and do not need to comply with the requirements per 14 CFR 121.312,

c. Airplanes exempted from smoke-and-heat-release requirements.

4. The applicability requirements fall into two categories: either new-seat certification program or previously certified. New-seat certification programs must meet the special conditions, previously certified are not required to.

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

We anticipate that seats with non-traditional, large, non-metallic panels will be installed in other makes and models of airplanes. We have made the determination to require special conditions for all applications requesting the installation of seats with non-traditional, large, non-metallic panels until the airworthiness requirements can be revised to address this issue. Having the same standards across the range of airplane makes and models will ensure consistent ruling for the aviation industry.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

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

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

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

On, April 9, 2009, Continental Airlines, Inc., 600 Jefferson St. HQJEG 13th Floor, Houston, TX 77002, applied for a supplemental type certificate for installing seats that include non-traditional, large, non-metallic panels in a Boeing Model 757 series airplane. The Boeing Model 757 series airplanes, currently approved under Type Certificate No. A2NM, are swept-wing, conventional-tail, twin-engine, turbofan-powered, single-aisle, medium-sized, transport-category airplanes.

The applicable regulations to airplanes currently approved under Type Certificate No. A2NM do not require seats to meet the more stringent flammability standards required of large, non-metallic panels in the cabin interior. At the time the applicable rules were written, seats were designed with a metal frame covered by fabric, not with large, non-metallic panels. Seats also met the then-recently adopted standards for flammability of seat cushions. With the seat design being mostly fabric and metal, their contribution to a fire in the cabin had been minimized and was not considered a threat. For these reasons, seats did not need to be tested to heat-release and smoke-emission requirements.

Seat designs have now evolved to occasionally include non-traditional, large, non-metallic panels. Taken in total, the surface area of these panels is on the same order as the sidewall and overhead-stowage-bin interior panels. To provide the level of passenger protection intended by the airworthiness standards, these non-traditional, large, non-metallic panels in the cabin must meet the standards of Title 14, Code of Federal Regulations (14 CFR), part 25, appendix F, parts IV and V, heat-release and smoke-emission requirements.

Under the provisions of 14 CFR 21.101, Continental Airlines, Inc., must show that the Boeing Model 757 series airplanes, as changed, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A2NM, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. A2NM are as follows:

• For Model 757-200 airplanes: part 25, as amended by Amendment 25-1 through Amendment 25-45. In addition, an equivalent safety finding exists with respect to § 25.853(c), Compartment interiors.

• For Model 757-300 airplanes: part 25, as amended by Amendment 25-1 through Amendment 25-85, with the exception of § 25.853(d)(3), Compartment interiors, at Amendment 25-72.

In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., part 25) do not contain adequate or appropriate safety standards for the Boeing Model 757 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 757 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19 and 11.38, and they become part of the type certification basis under § 21.101.

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

The Boeing Model 757 series airplanes will incorporate the following novel or unusual design feature: These models offer interior arrangements that include passenger seats that incorporate non-traditional, large, non-metallic panels in lieu of the traditional metal frame covered by fabric. The flammability properties of these panels have been shown to significantly affect the survivability of the cabin in the case of fire. These seats are considered a novel design for transport category airplanes that include Amendment 25-61 and Amendment 25-66 in the certification basis, and were not considered when those airworthiness standards were established.

The existing regulations do not provide adequate or appropriate safety standards for seat designs that incorporate non-traditional, large, non-metallic panels in their designs. To provide a level of safety that is equivalent to that afforded to the balance of the cabin, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement § 25.853. The requirements contained in these special conditions consist of applying the identical test conditions, required of all other large panels in the cabin, to seats with non-traditional, large, non-metallic panels.

A non-traditional, large, non-metallic panel, in this case, is defined as a panel with exposed-surface areas greater than 1.5 square feet installed per seat place. The panel may consist of either a single component or multiple components in a concentrated area. Examples of parts of the seat where these non-traditional panels are installed include, but are not limited to: seat backs, bottoms and leg/foot rests, kick panels, back shells, credenzas, and associated furniture. Examples of traditional exempted parts of the seat include: arm caps, armrest close-outs such as end bays and armrest-styled center consoles, food trays, video monitors, and shrouds.

“Exposed” is considered to include panels that are directly exposed to the passenger cabin in the traditional sense, and panels that are enveloped, such as by a dress cover. Traditional fabrics or leathers currently used on seats are excluded from these special conditions. These materials must still comply with § 25.853(a) and § 25.853(c) if used as a covering for a seat cushion, or § 25.853(a) if installed elsewhere on the seat. Non-traditional, large, non-metallic panels covered with traditional fabrics or leathers will be tested without their coverings or covering attachments.

In the early 1980s, the FAA conducted extensive research on the effects of post-crash flammability in the passenger cabin. As a result of this research and service experience, we adopted new standards for interior surfaces associated with large surface-area parts. Specifically, the rules require measurement of heat release and smoke emission (part 25, appendix F, parts IV and V) for the affected parts. Heat release has been shown to have a direct correlation with post-crash fire-survival time. Materials that comply with the standards (i.e., § 25.853, titled “Compartment interiors,” as amended by Amendment 25-61 and Amendment 25-66) extend survival time by approximately 2 minutes over materials that do not comply.

At the time these standards were written, the potential application of the requirements of heat release and smoke emission to seats was explored. The seat frame itself was not a concern because it was primarily made of aluminum and included only small amounts of non-metallic materials. We determined that the overall effect of these materials on survivability was negligible, whether or not the food trays met the heat-release and smoke-emission requirements. The requirements therefore did not address seats. The preambles to both the Notice of Proposed Rule Making (NPRM), Notice No. 85-10 (50 FR 15038, April 16, 1985), and the Final Rule at Amendment 25-61 (51 FR 26206, July 21, 1986), specifically note that seats were excluded “because the recently-adopted standards for flammability of seat cushions will greatly inhibit involvement of the seats.”

Subsequently, the Final Rule at Amendment 25-83 (60 FR 6615, March 6, 1995) clarified the definition of minimum panel size: “It is not possible to cite a specific size that will apply in all installations; however, as a general rule, components with exposed-surface areas of one square foot or less may be considered small enough that they do not have to meet the new standards. Components with exposed-surface areas greater than two square feet may be considered large enough that they do have to meet the new standards. Those with exposed-surface areas greater than one square foot, but less than two square feet, must be considered in conjunction with the areas of the cabin in which they are installed before a determination could be made.”

On October 17, 1997, the FAA issued Policy Memorandum 97-112-39, Guidance for Flammability Testing of Seat/Console Installations, (http://rgl.faa.gov). That memo was issued when it became clear that seat designs were evolving to include non-traditional, large, non-metallic panels with surface areas that would impact survivability during a cabin-fire event, comparable to partitions or galleys. The memo noted that large-surface-area panels must comply with heat-release and smoke-emission requirements, even if they were attached to a seat. If the FAA had not issued such policy, seat designs could have been viewed as a loophole to the airworthiness standards that would result in an unacceptable decrease in survivability during a cabin-fire event.

In October, 2004, we focused attention on the appropriate flammability standards for passenger seats that incorporated non-traditional, large, non-metallic panels in lieu of the traditional fabric-covered metal. The Seattle Aircraft Certification Office and Transport Standards Staff reviewed this design and determined that it represented the kind and quantity of material that should be required to pass the heat-release and smoke-emissions requirements. We have determined that special conditions would be issued to apply the standards defined in § 25.853(d) to seats designed with non-traditional, large, non-metallic panels.

As discussed above, these special conditions are applicable to Boeing Model 757 series airplanes. It is not our intent, however, to require seats with non-traditional, large, non-metallic panels to meet § 25.853, which calls out appendix F, parts IV and V, if they are installed in cabins of airplanes that otherwise are not required to meet these standards. Because the heat-release and smoke-emission testing requirements of § 25.853 per appendix F, parts IV and V, are not part of the type-certification basis of the Model 757, these special conditions are only applicable if the Model 757 series airplanes are in 14 CFR part 121 operations. Section 121.312 requires compliance with the heat-release and smoke-emission testing requirements of § 25.853, for certain airplanes, irrespective of the type-certification bases of those airplanes. For Model 757 series airplanes, these are the airplanes that would be affected by these special conditions. Should Continental Airlines, Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A2NM, to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model-series of airplanes. It is not a rule of general applicability and it affects only the applicant who applied to the FAA for approval of these features on the airplane.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the return-to-service date for the Boeing Model 757 series airplane, modified by Continental Airlines, Inc., is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type-certification basis for Boeing Model 757 series airplanes modified by Continental Airlines, Inc.

1. Except as provided in paragraph 3 of these special conditions, compliance with 14 CFR part 25, appendix F, parts IV and V, heat release and smoke emission, is required for seats that incorporate non-traditional, large, non-metallic panels that may either be a single component or multiple components in a concentrated area in their design.

2. The applicant may designate up to and including 1.5 square feet of non-traditional, non-metallic panel material per seat place that does not have to comply with special condition (1), above. A triple-seat assembly may have a total of 4.5 square feet excluded on any portion of the assembly (e.g., outboard-seat place 1 square foot; middle, 1 square foot; and inboard, 2.5 square feet).

3. Seats do not have to meet the test requirements of 14 CFR part 25, appendix F, parts IV and V, when installed in compartments that are not otherwise required to meet these requirements. Examples include:

a. Airplanes with passenger capacities of 19 or fewer,

b. Airplanes that do not have § 25.853, Amendment 25-61 or later, in their certification basis and do not need to comply with the requirements of 14 CFR 121.312, and

c. Airplanes exempted from § 25.853, Amendment 25-61 or later.

The FAA published a direct final rule with request for comments establishing Class E Airspace at Boggs Field Airport, Spencer, WV, in the Federal Register on October 19, 2009 (74 FR 53407), Docket No. FAA-2009-0602; Airspace Docket No. 09-AEA-13. 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 December 17, 2009. No adverse comments were received, and thus this notice confirms that effective date.

The rule modifying Class D and E airspace for Stanly County Airport, Albemarle, NC, published in the Federal Register May 6, 2009 (74 FR 20869), became effective August 27, 2009. Subsequent to the effective date of the rule, the FAA found that the True bearing in the Class D description for Stanly County Airport was stated incorrectly. This action corrects that error.

Accordingly, pursuant to the authority delegated to me, the reference to FAA Order 7400.9 for FR Doc. E9-10397, FAA Airspace Docket No. 09-ASO-12, as published in the Federal Register May 6, 2009 (74 FR 20869), is corrected as follows:

On page 20870, column two, line 38, amend the language to read

The FAA published a direct final rule with request for comments modifying Class E Airspace at Raleigh County Memorial Airport, Beckley, WV, in the Federal Register on October 19, 2009 (74 FR 53408), Docket No. FAA-2009-0651; Airspace Docket No. 09-AEA-15). 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 December 17, 2009. No adverse comments were received, and thus this notice confirms that effective date.

The FAA published a direct final rule with request for comments modifying Class E Airspace at Sarasota/Bradenton International Airport, Sarasota, FL, in the Federal Register on September 14, 2009 (74 FR 46898), Docket No. FAA-2009-0652; Airspace Docket 09-ASO-21. 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 December 17, 2009. No adverse comments were received, and thus this notice confirms that effective date.

The Census Bureau first adopted procedures for initiating informal challenges to certain population or per capita income estimates prepared by the Census Bureau in 1979 by amending Title 15 of the Code of Federal Regulations (CFR) to provide for a new Part 90 (44 FR 20646). These regulations were needed to standardize and codify procedures, and to extend to the state or local government the right to a hearing prior to a final determination of the challenged estimate by the Director of the Census Bureau. Legal authority for the challenge procedures remains 13 U.S.C. 4, which provides in pertinent part, that the Secretary may issue rules and regulations, as he deems necessary to carry out his functions and duties under Title 13.

The Census Bureau prepares estimates of total population and per capita income for states and units of local government for the period between decennial censuses. States, counties, and other units of general-purpose government may initiate informal challenges to population and per capita income estimates under the procedures set forth in 15 CFR Part 90. Under the regulations, a challenge is defined as “the process of objecting to or calling into question the Census Bureau's population or per capita income estimates of a state or unit of local government by that state or unit of local government.” Government entities are given 180 days after the release of the population or per capita income estimates to initiate an informal challenge. If the challenge cannot be resolved informally, the government submitting the challenge can choose to file a formal challenge (15 CFR 90.9), which is resolved in a hearing that is held at the Census Bureau Headquarters, and presided over by a hearing officer that is appointed by the Census Bureau Director.

On October 7, 2009, the Census Bureau published a proposed rule in the Federal Register (74 FR 51526) requesting comments on the proposed temporary suspension of the Population Estimates and Income Estimates Challenge Programs. Five sets of comments were received during the comment period. A summary of the public comments and the response of the Census Bureau are provided below:

Commenter 1. The commenter suggested that the Census Bureau produce accurate estimates initially and not allow any challenges to the population estimates. The commenter also suggested that the challenge program is an expensive and unnecessary program.

Response 1. The Census Bureau did not accept this suggestion. The challenge program is an essential and historical part of the estimates program, and it enables eligible general-purpose governmental units to comment upon population estimates of concern, and to provide alternative or supplemental data to the Census Bureau to evaluate for use in revising the original estimate. The Census Bureau will continue to work with state, county, and local governments to efficiently administer a program that focuses on improving the accuracy of the estimates.

Commenter 2. The commenter wrote in support of the temporary suspension, deeming that it would be both confusing and pointless for the Census Bureau to administer a challenge process where the challenge decisions and responses would overlap with the first release of Census 2010 population counts to the President and Congress.

Response 2. The Census Bureau acknowledges the comment and concurs.

Commenter 3. The commenter had a number of questions or comments regarding the notice. The commenter wanted to know if it was a normal practice to suspend the population estimates challenge during decennial years, if the suspension covered the informal and formal phases of the process, if it was a cost-effective use of resources, and if there might be localities concerned about suspension of the program. The commenter also was interested in future plans to revise the procedures following the 2010 Census.

Response 3. This instance is the first time that the Census Bureau has temporarily suspended the Population Estimates and the Per Capita Income Estimates Challenge Programs. Suspending the challenge programs is consistent with the practice applied to two other post-census population programs. Specifically, the Census Bureau has suspended the Special Census and the Geographically Updated Population Certification Program for the duration of the decennial census activities and resumed these programs afterwards. The suspension will apply to the entire scope of the program, including both informal and formal challenge procedures. The suspension is an appropriate cost-effective means to ensure the allocation of sufficient resources for the demographic analysis of the 2010 Census. In addition, the suspension will allow the Census Bureau to better integrate the data from the 2010 Census into the estimates program. Suspension of the program also reduces the risk of confusion resulting from the close timing between the release of the 2010 Census counts and the release of revised estimates as part of administering challenges to the 2009 estimates. During the comment period the Census Bureau received no responses from eligible governmental units that opposed this proposal. In response to concerns about the redesign of the challenge program after the 2010 Census, the Census Bureau will await the assessment of the 2010 Census compared to the estimates. In proposing any redesign of the challenge program, the Census Bureau will strive to capture the most accurate demographic components that are consistent with the estimates program methodologies, and reduce the need for a post-estimates review process.

Commenter 4. The commenter voiced support for the Census Bureau decision to temporarily suspend the Population Estimates Challenge Program and to resume it for the 2011 estimates. The commenter also supported the Census Bureau's stated intent to evaluate the results of the 2010 Census in comparison to the population estimates, conduct research to enhance the estimates and challenge programs, and to integrate the updates from the 2010 Census into the estimates program. The commenter also strongly recommended that the Census Bureau gather perspectives from a wide variety of stakeholders reliant on population estimates. The commenter also concurred with the Census Bureau intent to indefinitely suspend the income estimates challenge program until a rulemaking can be initiated to remove the regulations from the Code of Federal Regulations.

Response 4. The Census Bureau concurs with the comments and suggestion of this commenter. We agree that little disruption will occur with the suspension of the program, due to the proximate release of the 2010 Census counts to all stakeholders in early 2011. In considering any revisions to the challenge program, the Census Bureau will, in a reasonable period and through appropriate venues, consult a variety of stakeholders on the elements of the program. Any proposal to revise the program will allow for a comment period to ensure that the needs of the user community are included before any revisions are implemented.

Commenter 5. The commenter stated that the public should be able to challenge any estimate by opening the process to groups or individuals.

Response 5. The Census Bureau did not accept this suggestion. Opening the challenge program to groups or individuals that do not officially represent states, counties, or local governments would increase the administrative and evaluative complexity of this program for the Census Bureau. The potential for multiple, inconsistent challenges from individuals or other groups would result in an inefficient use of limited resources. States, counties, and local governments have a vested interest in securing the most accurate population estimates possible, and would have the best information and resources to challenge the population estimate. Thus, we have determined to retain the current requirements of the challenge program codified in Title 15, Part 90 of the CFR, which allow only eligible general-purpose governmental units to submit population estimates challenges.

As is done for other intercensal programs, the Census Bureau hereby notifies the public that it will suspend the Population Estimates Challenge Program after the resolution of all challenges to the 2008 population estimates, which should occur by February 3, 2010. The Census Bureau will release the 2009 population estimates in 2010 and the Census Bureau will not accept challenges to the 2009 estimates.

The Population Estimates Challenge Program will resume in 2012 for the 2011 estimates after the Census Bureau concludes its responsibilities in the conduct of the decennial census. During the period when the program is suspended, the Census Bureau will be conducting demographic analysis of the 2010 Census, evaluating the results of the 2010 Census in comparison with the population estimates, conducting research to enhance the estimates and challenge programs and integrating the updates from the 2010 Census into the estimates program after the 2010 Census.

After the conduct of the decennial census, the Census Bureau will resume accepting challenges to the population estimates by publishing a notice in the Federal Register that will announce the date when it will begin to accept challenges. The Census Bureau will accept challenges beginning with the 2011 population estimates. The 2011 population estimates are based upon the 2010 Census and are scheduled for release in 2012.

Suspending the Population Estimates Challenge Program is a necessary action to ensure that sufficient resources are allocated to the conduct of the decennial census and to allow the Census Bureau's Population Division staff to effectively evaluate the 2010 Census results.

In addition, the Census Bureau notifies the public that it also will suspend the Per Capita Income Estimates Challenge Program, which are codified in the same part as the Population Estimates Challenge Program. This program has not been active since the general revenue sharing program ended in 1986, along with its requirement for per capita income estimates, and thus the Census Bureau has determined to suspend the program indefinitely. The Census Bureau will undertake a rulemaking action in the near future to remove these regulations from the CFR.

Executive Order (EO) 12866: It has been determined that this notice is not significant for purposes of EO 12866.

Executive Order 13132: It has been determined that this notice does not contain policies with Federalism implications as that term is defined in EO 13132.

Regulatory Flexibility Act: The Chief Counsel for Regulations certified to the Chief Counsel for Advocacy that this rule, if implemented, would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this final rule. As a result, no final regulatory flexibility analysis was prepared.

You may retrieve a copy of the notice of proposed rulemaking (NPRM), comments submitted to the docket, and a copy of this final rule online through the Federal Rulemaking portal at: http://www.regulations.gov. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. It is available 24 hours each day, 365 days each year. Please follow the instructions. An electronic copy of this document also may be downloaded from the Office of the Federal Register's home page at: http://www.archives.gov and the Government Printing Office's Web page at: http://www.access.gpo.gov/nara.

During a 2003 Government Accountability Office (GAO) review of the States' highway construction costs, the GAO reviewed the FHWA's bid price data collection requirements. In a November 2003 report, GAO made recommendations to FHWA to review the usefulness and accuracy and/or under reporting of the bid price data collected.1 In response to GAO's review the FHWA Office of Infrastructure, Office of Program Administration, in collaboration with the Office of Transportation Policy Studies, hired a consultant to review the need, quality, and value of the current data collections system in partnership with the American Association of State Highway and Transportation Officials. This review also included data collected for material and labor prices and bid tabulation. As a result, FHWA has decided to discontinue the reporting requirements for the Form FHWA-45, Bid Price Data; Form FHWA-47, Statement of Materials and Labor Used by Contractors on Highway Construction Involving Federal Funds; and Form FHWA-810, Bid Tabulation Data. This decision is documented in a May 22, 2007, policy memorandum (see http://www.fhwa.dot.gov/federalaid/052207.cfm) as well as in a change to the Federal-Aid Policy Guide through Transmittal 38, dated July 3, 2007 (see http://www.fhwa.dot.gov/legsregs/directives/fapg/1trans38.htm).

Form FHWA-45, Bid Price Data, was collected on NHS projects over $500,000. Form FHWA-45 served as a means to compute the highway construction bid price index, which is published in the document “Price Trends for Federal-aid Highway Construction.” 2 The data were used in our “Highway Statistics” 3 publication and by other outside sources. With the discontinuance of the Form FHWA-45, the future of FHWA's construction price trends reporting has been temporarily suspended. Currently, the FHWA has a contract for the development of a new highway construction cost indexing system, which will involve the use of the Oman System Bid Tabs data. This system utilizes construction price data extracted directly from State DOT data bases. Targeted completion for the new system is early in calendar year 2010.

Form FHWA-810, Bid Tabulation Data, was collected on all NHS projects. The data from the Form FHWA-810 have been used to compute national summaries on the largest contract awards and contract size statistics. The data were also used to produce State-by-State summaries on contracts awards, number of bids, and average number of bids.

Section 635.126 of title 23, Code of Federal Regulations, requires Form FHWA-47, Statement of Materials and Labor Used by Contractors on Highway Construction Involving Federal Funds, which is the subject of this final rule, to be collected on all NHS projects over $1,000,000. Form FHWA-47 served as a means to collect data related to the quantities of materials, supplies, and labor used for various types of highway construction. The data reported on this form were used primarily to compute usage factors for these various materials, supplies, and labor. These factors were used to determine the economic impacts of cuts or increases in the cost of Federal-aid highway construction.

On June 23, 2009, FHWA published in the Federal Register at 74 FR 29634 a NPRM proposing to delete section 635.126 of title 23, Code of Federal Regulations, since the FHWA no longer intends to use the information submitted through Form FHWA-47. The FHWA received one comment to the docket from a member of the public in response to the NPRM. This commenter was against the discontinuance of Form FHWA-47 because the commenter believes it would hold contractors accountable for their work, the timeline of their work, the products and materials that go into their work for safety reasons, and the cost of their work. The FHWA disagrees. While FHWA does not disagree that all contractors should be held accountable for their work, the purpose of the FHWA-47 was not to serve as a tool to reinforce accountability. Its purpose, as noted in the earlier background paragraph, was to provide information on material usage factors for all projects on the NHS that were $1 million or more. This information was used by vendors, private sector engineers, state DOTs, etc., for estimators to determine various trends for construction. However, the rate of submitting the forms declined over the years and thus rendered the data inaccurate. As noted above, Form FHWA-47 has not been collected by the FHWA since 2007, and the FHWA believes there is little utility in such a data collection activity. As such, this final rule adopts the NPRM without change.

The FHWA has determined that this action would not be a significant regulatory action within the meaning of Executive Order 12866 or significant within the meaning of U.S. Department of Transportation regulatory policies and procedures. The enacted change is not anticipated to adversely affect, in any material way, any sector of the economy. The FHWA expects that the enacted change will alleviate confusion and provide policy consistency and clarity at little or no additional expense to public agencies or the motoring public. In addition, the enacted change would not create a serious inconsistency with another agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Therefore, a full regulatory evaluation is not required.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this change on small entities and has determined that this action would not have a significant economic impact on a substantial number of small entities.

This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995). This proposed action would not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128.1 million or more in any 1 year (2 U.S.C. 1532) period to comply with these changes.

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this rulemaking will not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

The FHWA has analyzed this action under Executive Order 13175, dated November 6, 2000, and believes that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

The FHWA has analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that it is not a significant energy action under that order because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

Catalog of Federal Domestic Assistance program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. Form FHWA-47 was previously approved under OMB Control Number 2125-0033 in July 1998, and was associated with 5 burden hours. We allowed this control number to expire because we no longer needed the information. Since this action eliminates a current reporting requirement and does not require any entity to write or submit new reports, the FHWA request for approval from OMB under the provisions of the PRA is not required.

This action 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.

The FHWA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not concern an environmental risk to health or safety that may disproportionately affect children.

The FHWA does not anticipate that this action would effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

The FHWA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that it would not have any effect on the quality of the environment.

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

Background

This document amends 26 CFR part 301 to provide modified rules relating to the ability of a tax return preparer to use tax return information for the purposes of compiling, maintaining and using lists for solicitation of tax return business under § 301.7216-2(n), disclose and use statistical compilations of data described in § 301.7216-1(b)(3)(i)(B) under § 301.7216-2(o), and disclose and use tax return information for the purpose of performing conflict reviews under § 301.7216-2(p), without taxpayer consent. These three paragraphs are being modified to expand the ability of tax return preparers to disclose or use certain limited tax return information under specific and limited circumstances in a manner that is expected to benefit taxpayers, tax return preparers, and the general public, as more fully described in the Explanation of Provisions section of this preamble. One set of these modifications, those to § 301.7216-2(o), are being made following the issuance of Notice 2009-13 and the receipt of comments submitted in response to that Notice, while the modifications to the other two paragraphs are being made as a result of the Treasury Department's and the IRS's efforts to regularly review the effect of the recently issued final regulations on taxpayers and tax return preparers. In the accompanying and cross-referenced notice of proposed rulemaking, the Treasury Department and the IRS request comments on the proposed rules from all interested parties.

On January 7, 2008, the Treasury Department and the IRS issued final regulations under section 7216 (TD 9375) (73 FR 1058) applicable to disclosures or uses of tax return information occurring on or after January 1, 2009. The final regulations replaced previously issued final regulations that remained applicable to disclosures or uses of tax return information occurring prior to January 1, 2009. The final regulations included § 301.7216-1(b)(3)(i)(B) which, for disclosures and uses of tax return information occurring on or after January 1, 2009, provides that tax return information includes statistical compilations of tax return information. The final regulations included § 301.7216-2(n), which provides that tax return preparers may use, without taxpayer consent, certain limited taxpayer contact information constituting tax return information for the purposes of compiling, maintaining, and using lists for the solicitation of tax return business, incorporating its predecessor, § 301.7216-2(m), but providing a minor expansion of the contact information allowed to be used. The final regulations included the addition of new § 301.7216-2(o), which describes the limited circumstances when a tax return preparer may use tax return information to produce statistical compilations, and when the preparer may use or disclose the produced statistical compilation without written consent. The final regulations included § 301.7216-2(p), which provides that tax return preparers may disclose and use tax return information without taxpayer consent in the performance of quality or peer reviews, incorporating its predecessor, § 301.7216-2(o), with only minor, non-technical adjustments.

The Treasury Department and the IRS subsequently issued Notice 2009-13 (2009-6 IRB 447 (February 9, 2009)) (see § 601(d)(2)(ii)(b)), to provide interim guidance relating to the ability of a tax return preparer to disclose and use statistical compilations of anonymous tax return information in support of a tax return preparer's tax return preparation business. The Notice provides guidance on the tax return information a tax return preparer may use to compile anonymous statistical information, and on the circumstances when the tax return preparer may disclose the anonymous statistical information without taxpayer consent. Notice 2009-13 sets forth rules to be applied by the Treasury Department and the IRS during 2009 while they consider whether the interim guidance should be adopted by regulations or further modified, taking into account public comments submitted in response to the Notice.

Written comments were received in response to the Notice. All comments were considered and are available for public inspection upon request. This preamble summarizes the responsive comments received by the Treasury Department and the IRS.

These temporary regulations modify the rules under §§ 301.7216-2(n), 301.7216-2(o), and 301.7216-2(p), and supersede the interim guidance provided by Notice 2009-13.

One commentator recommended that the regulations specifically provide that all tax preparation firms may use tax return information to connect taxpayers to free government programs and services, provided they have obtained the consent of their clients. This comment was not adopted. Under the regulations in force, this use would be permitted because the tax return preparer obtained the consent of its clients. Consents must conform to the requirements of § 301.7216-3 of the regulations and any other guidance issued pursuant to § 301.7216-3.

Several commentators recommended that the prohibition on disclosing cells containing data from fewer than 25 tax returns be eliminated as long as the data is anonymous and free of all taxpayer-identifying information. Some commentators recommended that return preparers be able to disclose, without consent, all aggregate data that is stripped of personal identifying information, noting that volunteer tax preparation programs utilize aggregate data to demonstrate and track the tax preparation and financial service needs of their clients. Additional commentators recommended that the 25 tax return threshold be modified to allow for the disclosure of cells containing data from ten or more tax returns. These commentators indicated that removal of all taxpayer-identifying information provides sufficient taxpayer protection and implied that it may not be feasible for tax return preparers who operate small tax return preparation businesses to always produce a statistical compilation that meets the 25 tax return threshold. These recommendations were adopted in part, and the temporary regulations now permit the disclosure of cells containing data from ten or more tax returns.

One commentator recommended that, for purposes of the guidance, the term “tax return preparation business” should include “bona fide research or public policy discussions (i) concerning state or federal taxation or (ii) utilizing data acquired during the tax return preparation process.” The commentator was concerned that the interim guidance would inhibit tax return preparers from cooperating with scholars or sharing anonymous data with bona fide academic researchers studying consumer financial behavior because this topic arguably might not be viewed as supporting a tax return preparation business. This comment was considered and the temporary regulations now clarify that a tax return preparer is allowed to disclose an anonymous statistical compilation for bona fide research or public policy discussions concerning state or federal taxation or requiring data acquired during the tax return preparation process.

One commentator stated that government agencies' presentation of aggregated refund data and other statistical compilations in press releases, public presentations, reports, Web sites, or other electronic communications should automatically fall within the meaning of bona fide research and public policy discussions. This recommendation was not adopted because it would not be appropriate in this context to create particularized rules for government agencies, and inclusion of this specific circumstance in the exception might require the creation of an exhaustive list of the circumstances that would be considered bona fide research or public policy discussions. Instead, tax return preparers must determine on a case-by-case basis whether a disclosure is in support of bona fide research or public policy discussions.

One commentator recommended that the regulations should allow for the disclosure of a statistical compilation in conjunction with the sale or disposition of a tax return preparation business only when the entire tax return preparation business is being sold or disposed. This recommendation was not adopted because circumstances can exist when a tax return preparer may in good faith sell or dispose of less than the preparer's entire tax return preparation business.

The Treasury Department and the IRS are amending the regulations under section 7216 to provide a limited expansion of the information tax return preparers may, without taxpayer consent, use and include in lists for solicitation of tax return business pursuant to § 301.7216-2(n). The regulations also clarify that lists for solicitation of tax return business may not be used to solicit non-tax return preparation services. Finally, the regulations clarify the meanings of the phrases “tax information” and “in conjunction with the sale or other disposition of the compiler's tax return business” for purposes of the exception provided by § 301.7216-2(n).

The current regulations allow a tax return preparer to compile and maintain a list for solicitation of tax return business consisting solely of the names, addresses, e-mail addresses, and phone numbers of taxpayers whose tax returns the preparer has prepared or processed. The current regulations allow a tax return preparer to use this list to contact the taxpayers on the list to offer “tax information or additional tax return preparation services to such taxpayers,” and limit the transfer of the list to transfers occurring “in conjunction with the sale or other disposition of the compiler's tax return preparation business.” Section 301.7216-2(n) in its current form is identical to its form in prior versions of the regulations, with the exception that an additional type of information, e-mail addresses, was added to the short list of information allowed to be included in § 301.7216-2(n) lists.

Upon further consideration, the Treasury Department and the IRS conclude that § 301.7216-2(n) should be amended, in the form of temporary regulations, to provide additional flexibility to tax return preparers and benefits to taxpayers without compromising the rights of taxpayers to control the use or disclosure of their tax return information. These regulations expand the information that may be compiled and maintained in a list for solicitation of tax return business to include the taxpayer entity classification or type, including individual status, and taxpayer income tax return form number (for example, Form 1040, “U.S. Individual Income Tax Return”, or Form 1120, “U.S. Corporation Income Tax Return”). Determining the information that may be used to provide targeted newsletters and marketing under § 301.7216-2(n) requires balancing the benefits from taxpayers receiving the tax information most relevant to them against the ability of taxpayers to control the use of their tax return information. The Treasury Department and the IRS conclude that the current amendments made to § 301.7216-2(n) strike the proper current balance between these competing interests, but also recognize that future information and needs may require permitting additional information to be included in the list maintained under § 301.7216-2(n). Accordingly, the regulations are amended to allow the IRS to identify additional information that may be included in the list by issuing guidance to be published in the Internal Revenue Bulletin.

These regulations clarify the phrase “tax information” by replacing that phrase with the phrase “tax information and general business or economic information or analysis for educational purposes.” It is contemplated that tax information includes explanations of current developments in tax law. The regulations also clarify that a list for solicitation of tax return business may not be used to solicit non-tax return preparation services.

The additions to the tax return information allowed to be compiled and maintained in § 301.7216-2(n) lists, along with the clarification of the phrase “tax information,” will provide additional flexibility to tax return preparers permitting them to more efficiently and effectively furnish relevant tax information and lawful solicitations to their taxpayer clients, and will benefit taxpayers by helping ensure that the taxpayers receive only information that may be useful to them and that specifically addresses tax issues relevant to them, thus improving taxpayer education and awareness and reducing the amount of needless information being received by taxpayers. By expressly prohibiting the use of these lists to solicit non-tax return preparation services, the regulation makes clear that the exception provided by § 301.7216-2(n) is limited to solicitations of tax return preparation services only. The phrase “in conjunction with the sale or other disposition of the compiler's tax return preparation business” is clarified to include due diligence performed in contemplation of a sale or other disposition of a tax return preparation business. The regulations also clarify that tax return information made available to a potential purchaser for due diligence purposes constitutes a disclosure of that information and not a transfer of that information.

The Treasury Department and the IRS have also amended the regulations to clarify that a person who is a tax return preparer solely because he provides auxiliary services to another tax return preparer may not use the tax return information he receives from such other tax return preparer to compile and maintain for his own use a list of taxpayers under § 301.7216-2(n). For example, a software company could in some cases market tax return preparation software to taxpayers directly and to tax return preparers. In connection with auxiliary services provided to tax return preparers, the software provider may receive information regarding the taxpayer clients of the tax return preparers. In such circumstances, the software provider could not use the tax return information it received from tax return preparers in the performance of auxiliary services to compile a list under § 301.7216-2(n) to market its software directly to the clients of the tax return preparers.

In light of these considerations, the Treasury Department and the IRS, pursuant to these regulations, amend § 301.7216-2(n) of the final regulations published on January 7, 2008, as described in this preamble.

The Treasury Department and the IRS are amending the regulations under section 7216 to provide additional exceptions to the general rule that a tax return preparer may not disclose or use statistical compilations of tax return information without taxpayer consent. Section 301.7216-2(o) currently prohibits the disclosure of statistical compilations unless the disclosure is made in order to comply with financial accounting or regulatory reporting requirements or occurs in conjunction with the sale or other disposition of the compiler's tax return preparation business; therefore, under the current regulations, tax return preparers may not disclose statistical compilations for other purposes that may provide benefits to taxpayers generally or to the public as a whole.

Responding to public comments received in response to Notice 2009-13, the Treasury Department and the IRS conclude that § 301.7216-2(o) should be amended, in the form of temporary regulations, to allow a tax return preparer to disclose statistical compilations of tax return information without taxpayer consent for additional limited purposes, with certain additional requirements.

While taxpayer consent regarding disclosure or use is a primary focus of the section 7216 regulations, the flexibility resulting from these temporary regulations will enable tax return preparers to disclose anonymous data for limited purposes that may provide benefit to both taxpayers in general and the public at large. Anonymous statistical data disclosed within the constraints provided by these temporary regulations can be used by tax return preparers for marketing purposes and to assist taxpayers in making informed choices about tax return preparers. The availability of anonymous statistical data can be useful from a public policy perspective, as the use and availability of such data can assist lawmakers, academics, non-profits, and other agencies in the facilitation of sound tax policy analysis and decisions. In addition, volunteer tax return preparers who provide free tax return preparation services to low- and moderate-income taxpayers and families would be able to demonstrate the impact of their efforts in order to obtain and administer funding necessary for their continued operation.

One concern that has been expressed regarding the disclosure of statistical compilations of tax return information by tax return preparers is that incentives will be created that encourage maximization of credits or refunds at the expense of tax return accuracy. To address this concern, while the amendment provides additional limited exceptions to the requirement that taxpayer consent be obtained in order to disclose or use tax return information, the temporary regulations prohibit, in the context of marketing or advertising, the use or disclosure of statistical compilations, or a part thereof, that identify dollar amounts of refunds, credits, or deductions associated with tax returns, whether or not the data are statistical, averaged, aggregated, or anonymous. The IRS will continue to rely on all existing enforcement powers to address concerns regarding advertising and marketing claims by tax return preparers.

In light of these considerations, the Treasury Department and the IRS, pursuant to these regulations, amend § 301.7216-2(o) of the final regulations published on January 7, 2008. The temporary regulations require that any disclosure of a statistical compilation, other than to satisfy reporting requirements or in conjunction with the disposition of a tax return business, be anonymous as to taxpayer identity, meaning that it must be in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer. Under these circumstances, the temporary regulations prohibit the disclosure of statistical compilations with cells containing data from fewer than ten tax returns. In addition to the disclosure exceptions set forth currently in § 301.7216-2(o), the temporary regulations authorize the disclosure by a tax return preparer in conjunction with bona fide research or public policy discussions concerning state or federal taxation or requiring data acquired during the tax return preparation process, and to provide tax information to the public regarding tax return preparation services. The temporary regulations allow section 501(c) organizations whose program services include the free preparation of tax returns to disclose statistical compilations in order to comply with reporting requirements in connection with the receipt of grants or to facilitate the solicitation of grants. The temporary regulations also allow lawful recipients of statistical compilations to disclose or use such tax return information, subject to the provisions of § 301.7216-2T(o). The temporary regulations continue to allow the disclosure of statistical compilations in order to comply with financial accounting or regulatory reporting requirements or in conjunction with the sale or other disposition of the compiler's tax return preparation business. Finally, the temporary regulations prohibit, in the context of marketing or advertising, use or disclosure of statistical compilations, or a part thereof, that identify dollar amounts of refunds, credits, or deductions associated with tax returns, or percentages relating thereto, whether or not the data are statistical, averaged, aggregated, or anonymous.

The Treasury Department and the IRS are amending the regulations under section 7216 to clarify that tax return preparers may use and disclose tax return information to the extent necessary to accomplish a conflict of interest review undertaken to comply with the requirements established by any federal, state, or local law, agency, board, or commission, or by a professional association ethics committee or board, to identify, evaluate, and monitor actual or potential legal and ethical conflicts of interest that may arise when a tax return preparer or tax return preparation business is employed or acquired by another tax return preparer or tax return preparation business, or when a tax return preparer is considering engaging a new client.

Upon further consideration, the Treasury Department and the IRS conclude that § 301.7216-2(p) should be amended, in the form of temporary regulations, to clarify that tax return preparers may use and disclose tax return information to the extent necessary to accomplish conflict reviews without compromising the rights of taxpayers to control the use or disclosure of their tax return information. Conflict reviews allow tax return preparers to fulfill legal and ethical requirements to identify and avoid client conflicts of interest. Conflict reviews also benefit taxpayers because these reviews provide taxpayers with the knowledge and comfort that their tax return preparers are acting in the taxpayers' best interests when providing tax return preparation services to them.

These regulations amend § 301.7216-2(p) by adding an exception to the written consent rules to allow disclosures of tax return information by a tax return preparer without taxpayer consent for the purpose of conducting conflict reviews, but only to the extent necessary to accomplish the reviews. For example, if the tax return preparer only needs to disclose the names of taxpayers, and nothing more, to allow the conflict review to be completed, then the tax return preparer shall not disclose any tax return information other than the taxpayers' names.

The regulations describe conflict reviews to include reviews that are undertaken to comply with requirements established by any federal, state, or local law, agency, board or commission, or by a professional association ethics committee or board, to either identify, evaluate, and monitor actual or potential legal and ethical conflicts of interest that may arise when a tax return preparer is employed or acquired by another tax return preparer, or to identify, evaluate, and monitor actual or potential legal and ethical conflicts of interest that may arise when a tax return preparer is considering engaging a new client. The regulations contemplate that the information necessary to accomplish a conflict review shall be disclosed to and used by only those persons permitted to be involved in the conflict review as described in the applicable law or regulations or as authorized by the relevant agency, board, commission, or professional association. The regulations also contemplate that, in order for tax return preparers to fulfill the required conflict reviews, circumstances may require the preparer to disclose the information necessary to perform a conflict review outside of the United States or a territory or possession of the United States. If disclosure outside of the United States is required to conduct a conflict review, the disclosure is authorized by these regulations provided the disclosing and receiving tax return preparers have procedures in place that are consistent with good business practices and designed to maintain the confidentiality of the disclosed information. The regulations also include specific restrictions on the further use and disclosure of information disclosed under this exception.

In light of these considerations, the Treasury Department and the IRS, pursuant to these regulations, amend § 301.7216-2(p) of the final regulations published on January 7, 2008, as described in this preamble.

The Treasury Department and the IRS anticipate that allowing tax return preparers to disclose and use the limited tax return information and anonymous statistical compilations for the limited purposes previously cited should provide the taxpayer and the public the policy benefits discussed above. The Treasury Department and the IRS also conclude that the amendments to §§ 301.7216-2(n), 301.7216-2(o), and 301.7216-2(p) appropriately balance concerns regarding safeguarding of sensitive tax return information against the tax industry's need to evaluate and use or disclose tax return information. In a separate notice of proposed rulemaking published with these regulations, the Treasury Department and IRS invite comments on the proposed rules.

The following publication is obsolete on or after January 4, 2010: Notice 2009-13 (2009-6 IRB 447).

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations because they are excepted from the notice and comment requirements of section 553(b) and (c) of the Administrative Procedure Act by section 7805(e) of the Internal Revenue Code and under the interpretative rule and good cause exceptions provided by sections 553(b)(3)(A) and (B) of that Act. These regulations are necessary to provide tax return preparers and taxpayers with immediate guidance on the application of the section 7216 rules regarding permissible disclosures and uses without the consent of the taxpayer, disclosures and uses that are currently required and necessary to allow the ongoing and beneficial educational, informational, operational, and funding efforts of tax return preparers and taxpayers to prepare for the imminent tax filing season, and to allow tax return preparers to comply with all legal and ethical requirements placed upon them by relevant government or professional agencies, boards, commissions or committees. These regulations are intended to provide additional limited exceptions to, and relief from, the rules prohibiting disclosure of tax return information, including statistical compilations of tax return information and information necessary to accomplish conflict reviews, because these regulations provide tangible benefits to both taxpayers and tax return preparers and appropriately balance concerns regarding safeguarding of sensitive tax return information with appropriate disclosures and uses of that information. In addition, the regulations regarding § 301.7216-2(o) have been publicly noticed and subject to comment through the publication of Notice 2009-13. For these reasons good cause exists for dispensing with notice and public comment pursuant to section 553(b) and (c) of the Administrative Procedure Act (5 U.S.C. chapter 5). For applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6), refer to the Special Analyses section of the preamble to the cross-referenced notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register. Pursuant to section 7805(f) of the Internal Revenue Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Molly K. Donnelly, Office of the Associate Chief Counsel (Procedure and Administration).

EPA is determining that the Greensboro, North Carolina, nonattainment area has attaining data for the 1997 PM2.5 NAAQS. This determination is based upon quality assured, quality controlled and certified ambient air monitoring data that show the area has monitored attainment of the 1997 PM2.5 NAAQS based on the 2006-2008 data. In addition, quality controlled and quality assured monitoring data submitted during the calendar year 2009, which are available in the EPA Air Quality System database, but not yet certified, indicate that this area continues to meet the 1997 PM2.5 NAAQS.

Other specific requirements of the determination and the rationale for EPA's proposed action are explained in the notice of proposed rulemaking (NPR) published on October 6, 2009 (74 FR 51246) and will not be restated here. The comment period for the NPR closed on November 5, 2009. No public comments were received in response to the NPR.

This final action, in accordance with 40 CFR 51.1004(c), suspends the requirements for this area to submit attainment demonstrations, associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIPs related to attainment of the 1997 PM2.5 NAAQS as long as this area continues to meet the 1997 PM2.5 NAAQS.

EPA finds that there is good cause for this approval to become effective on the date of publication of this action in the Federal Register, because a delayed effective date is unnecessary due to the nature of the approval. The expedited effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rule actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction” and 5 U.S.C. 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” As noted above, this determination of attainment suspends the requirements for the Greensboro, North Carolina, PM2.5 nonattainment area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and any other planning SIPs related to attainment of the standard as long as this area continues to meet the 1997 PM2.5 NAAQS. The suspension of these requirements is sufficient reason to allow an expedited effective date of this rule under 5 U.S.C. 553(d)(1). In addition, this nonattainment area's suspension from these requirements provide good cause to make this rule effective on the date of publication of this action in the Federal Register, pursuant to 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in 5 U.S.C. 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Where, as here, the final rule suspends requirements rather than imposing obligations, affected parties, such as the State of North Carolina, do not need time to adjust and prepare before the rule takes effect.

EPA is determining that the Greensboro, North Carolina, nonattainment area has attaining data for the 1997 PM2.5 NAAQS. This determination is based upon quality assured, quality controlled, and certified ambient air monitoring data showing that this area has monitored attainment of the 1997 PM2.5 NAAQS during the period 2006-2008. This final action, in accordance with 40 CFR 51.1004(c), will suspend the requirements for this area to submit attainment demonstrations, associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIPs related to attainment of the 1997 PM2.5 NAAQS as long as the Area continues to meet the 1997 PM2.5 NAAQS.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• 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);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 5, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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, pertaining to the determination of attaining data for the 1997 fine particulate matter standard for the Greensboro, North Carolina, PM2.5 nonattainment area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On February 26, 2009, the State of Tennessee, through TDEC, submitted a request to redesignate Shelby County, Tennessee (as part of the bi-state Memphis Area) to attainment for the 1997 8-hour ozone standard, and for EPA approval of the Tennessee SIP revision containing a maintenance plan for Shelby County, Tennessee. In an action published on November 19, 2009 (74 FR 59943), EPA proposed to approve the redesignation of Shelby County, Tennessee (as part of the bi-state Memphis Area) to attainment. EPA also proposed approval of Tennessee's plan for maintaining the 1997 8-hour NAAQS as a SIP revision, including the emissions inventory submitted pursuant to CAA section 182(a)(1); and proposed to approve the NOx and VOC MVEBs for Shelby County that were contained in the maintenance plan. In the November 19, 2009, proposed action, EPA also provided information on the status of its transportation conformity adequacy determination for the Shelby County NOX and VOC MVEBs. EPA received no comments on the November 19, 2009, proposal. Additionally, in a separate notice, EPA has already found the NOX and VOC MVEBs, as contained in Tennessee's maintenance plan for Shelby County, adequate for the purposes of transportation conformity. The MVEBs included in the maintenance plan area as follows:

EPA's adequacy public comment period on these MVEBs (as contained in Tennessee's submittal) began on March 12, 2009, and closed on April 13, 2009. No comments were received during EPA's adequacy public comment period. In a letter dated September 18, 2009, EPA informed the State of Tennessee of its intent to make an affirmative adequacy determination for the MVEBs contained in this maintenance plan for Shelby County, Tennessee. On November 12, 2009 (74 FR 58277), EPA published a Federal Register notice deeming the MVEBs for Shelby County, Tennessee adequate for transportation conformity purposes. EPA provided a separate adequacy posting for the MVEBs in association with Crittenden County, Arkansas. The Crittenden County, Arkansas MVEBs (in association with the bi-state Memphis Area) were found adequate through a separate action published May 7, 2009 (74 FR 21356). As was discussed in greater detail in the November 19, 2009, proposal, this redesignation is for the 1997 8-hour ozone designations finalized in April 30, 2004 (69 FR 23857). Various aspects of EPA's Phase 1 8-hour ozone implementation rule were challenged in court and on December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit Court) vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). South Coast Air Quality Management Dist. (SCAQMD) v. EPA, 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the DC Circuit Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the Rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS, remain effective. The June 8th decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8th decision affirmed the December 22, 2006, decision that EPA had improperly failed to retain measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS. The June 8th decision clarified that the Court's reference to conformity requirements for anti-backsliding purposes was limited to requiring the continued use of 1-hour MVEBs until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulations. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes.

With respect to the requirement for transportation conformity under the 1-hour standard, the Court in its June 8th decision clarified that for those areas with 1-hour MVEBs in their 1-hour maintenance plans, anti-backsliding requires only that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must continue to comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. Shelby County, Tennessee has 1-hour budgets and is currently using these budgets to demonstrate transportation conformity until 1997 8-hour budgets are in place.

For the above reasons, and those set forth in the November 19, 2009, proposal for the redesignation of Shelby County, Tennessee, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from finalizing this redesignation. EPA believes that the Court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of Shelby County, Tennessee to attainment. Even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.

EPA is taking final action to approve Tennessee's redesignation request and to change the legal designation of Shelby County, Tennessee from nonattainment to attainment for the 1997 8-hour ozone NAAQS. The bi-state Memphis 1997 8-hour ozone NAAQS nonattainment area is composed of Shelby County, Tennessee and Crittenden County, Arkansas. The redesignation request, maintenance plan and emission inventory in association with the Arkansas portion of this Area will be addressed through a separate, but coordinated action. In this action, EPA is also approving Tennessee's 1997 8-hour ozone maintenance plan for Shelby County, Tennessee (such approval being one of the CAA criteria for redesignation to attainment status), including the emissions inventory which was submitted pursuant to CAA section 182(a)(1). The maintenance plan is designed to help keep Shelby County, Tennessee (as part of the bi-state Memphis Area) in attainment for the 1997 8-hour ozone NAAQS through 2021. These approval actions are based on EPA's determination that Tennessee has demonstrated that Shelby County, Tennessee has met the criteria for redesignation to attainment specified in the CAA, including a demonstration that the bi-state Memphis Area has attained the 1997 8-hour ozone standard. EPA's analyses of Tennessee's 1997 8-hour ozone redesignation request and maintenance plan are described in detail in the proposed rule published November 19, 2009 (74 FR 59943).

Consistent with the CAA, the maintenance plan that EPA is approving also includes 2006, 2009, 2017, and 2021 MVEBs for NOX and VOC for Shelby County, Tennessee. In this action, EPA is approving these NOX and VOC MVEBs for the purposes of transportation conformity. For regional emission analysis years that involve years prior to 2017, the new 2009 MVEB are the applicable budgets (for the purpose of conducting transportation conformity analyses). For regional emission analysis years that involve years prior to 2021, the new 2017 MVEB are the applicable budgets (for the purpose of conducting transportation conformity analyses). For regional emission analysis years that involve the year 2021 and beyond, the applicable budgets, for the purpose of conducting transportation conformity analyses, are the new 2021 MVEB. In practical terms, the 2006 MVEBs will not be used in Shelby County, Tennessee because this action is being taken in 2009, and there are MVEBs being established for the year 2009 which are required to be used.

EPA has determined that the bi-state Memphis Area has attained the 1997 8-hour ozone standard and has also determined that Tennessee has demonstrated that all other criteria for the redesignation of Shelby County, Tennessee (as part of the bi-state Memphis Area) from nonattainment to attainment of the 1997 8-hour ozone NAAQS have been met. See, section 107(d)(3)(E) of the CAA. EPA is also taking final action to approve the maintenance plan for Shelby County, Tennessee as meeting the requirements of sections 175A and 107(d) of the CAA, and the emissions inventory as meeting the requirements of section 182(a)(1) of the CAA. Furthermore, EPA is approving the new NOX and VOC MVEBs for the years 2006, 2009, 2017, and 2021 contained in Tennessee's maintenance plan for Shelby County because these MVEBs are consistent with maintenance for the bi-state Memphis Area. In the November 19, 2009, proposal to redesignate Shelby County, Tennessee (as part of the bi-state Memphis Area), EPA described the applicable criteria for redesignation to attainment and its analysis of how those criteria have been met. The rationale for EPA's findings and actions is set forth in the proposed rulemaking and summarized in this final rulemaking.

Approval of the redesignation request changes the legal designation of Shelby County, Tennessee (as part of the bi-state Memphis Area) from nonattainment to attainment for the 1997 8-hour ozone NAAQS, found at 40 CFR part 81. The approval also incorporates into the Tennessee SIP a plan for maintaining the 1997 8-hour ozone NAAQS in the bi-state Memphis Area through 2021. The maintenance plan includes contingency measures to remedy future violations of the 1997 8-hour ozone NAAQS, and establishes NOX and VOC MVEBs for the years 2006, 2009, 2017, and 2021 for Shelby County, Tennessee. Additionally, this action approves the emissions inventory for this area pursuant to section 182(a)(1) of the CAA. The other portion of the bi-state Memphis Area is Crittenden County, Arkansas. EPA is taking action on Arkansas' redesignation request for Crittenden County Arkansas (as part of the bi-state Memphis area) and the associated emissions inventory and maintenance plan through a separate rulemaking action.

After evaluating Tennessee's redesignation request, EPA is taking final action to approve the redesignation and change the legal designation of Shelby County, Tennessee (as part of the bi-state Memphis Area) from nonattainment to attainment for the 1997 8-hour ozone NAAQS. EPA is addressing the redesignation request, emission inventory and maintenance plan for Crittenden County, Arkansas (as a portion of the bi-state Memphis Area) in a separate but coordinated action. Through this action, EPA is also approving into the Tennessee SIP, the 1997 8-hour ozone maintenance plan for the Shelby County, Tennessee, which includes the new NOX MVEBs of 55.878 tons per day (tpd) for 2006, 55.620 tpd for 2009, 55.173 tpd for 2017, and 54.445 tpd for 2021; and new VOC MVEBs of 25.216 tpd for 2006, 27.240 tpd for 2009, 18.323 tpd for 2017, and 13.817 tpd for 2021. These new MVEBs were found adequate through a previous action (74 FR 58277). Within 24 months from the effective date of EPA's adequacy finding for the MVEBs, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e). Additionally, EPA is approving the emissions inventory for the Shelby County pursuant to section 182(a)(1) of the CAA.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

• 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);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

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 action 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. 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 March 5, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action 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 section 307(b)(2).)

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. 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.

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

Regulatory Flexibility Act. 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.

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 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

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

On January 14, 2009, PHMSA published a final rule under Docket Numbers PHMSA-2007-0065 (HM-224D) and PHMSA-2008-0005 (HM-215J) [74 FR 2200] revising the Hazardous Materials Regulations (HMR) to maintain alignment with international standards by incorporating various amendments, including changes to proper shipping names, hazard classes, packing groups, special provisions, packaging authorizations, air transport quantity limitations, and vessel stowage requirements. The revisions were necessary to harmonize the HMR with recent changes to the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO TI), the International Maritime Dangerous Goods Code (IMDG Code), Transport Canada's Transportation of Dangerous Goods Regulations (TDG Regulations), and the United Nations Recommendations on the Transport of Dangerous Goods (UN Recommendations). These revisions also included amendments and clarifications addressing the safe transportation of batteries and battery-powered devices. This final rule corrects several errors in the final rule. Because these amendments do not impose new requirements notice and public comment procedures are unnecessary.

We received two appeals to the January 14, 2009 final rule from the Dangerous Goods Transport Consulting, Inc. (DGTC) and HMT Associates, LLC. Both DGTC and HMT Associates express concerns about the provisions of the final rule applicable to the transportation of fuel cell cartridges. These appeals are discussed in detail below.

The January 14, 2009 final rule revised the requirements for the transportation of fuel cell cartridges under § 173.230 of the HMR (49 CFR Parts 171-180). In addition to the proper shipping name for flammable liquid fuel cell cartridges (UN3473) already included in the § 172.101 Hazardous Materials Table (HMT), the final rule added four new proper shipping names to the HMT to describe the range of fuels used in fuel cell cartridges: “Water-reactive substances,” UN3476; “Corrosive substances,” UN3477; “Liquefied flammable gas,” UN3478; and “Hydrogen in metal hydride,” UN3479.

As indicated by the expanded list of proper shipping names, fuel cell cartridges contain a number of different types of fuels with distinct hazards. Because of this variety of fuel types, we also amended § 173.230 to provide comprehensive requirements including packaging to address the hazards for all fuel cell cartridge types. In its appeal, DGTC expressed concern that the provision in § 173.230(g) prohibiting the air transport of fuel cell cartridges as limited quantities is not practical, reasonable or in the public interest. Specifically, DGTC asserts its understanding that prohibiting the air transport of fuel cell cartridges as limited quantities is not consistent with provisions in § 173.230(h) that allow fuel cell cartridges conforming to § 173.230(g) and defined as consumer commodities to be renamed “Consumer commodity” and reclassed as ORM-D since consumer commodities are authorized for transport by air in Column (9) of the HMT for the entry “Consumer commodity.” DGTC also asserts inconsistency with HMR provisions that allow for air transport of limited quantities of the fuel types typically found in the fuel cell cartridges in inner packagings subject to less stringent requirements than those for the fuel cell cartridges themselves. DGTC further contends that the prohibition imposes unwarranted additional transportation costs and places emerging fuel cell technologies at a competitive disadvantage with other portable sources of electric power such as batteries and could be detrimental to their development as an alternative energy source.

The requirements applicable to the transportation of fuel cells adopted in the January 14, 2009 final rule were initially proposed in a notice of proposed rulemaking (NPRM) published July 31, 2008 (73 FR 44820) and are consistent with standards adopted internationally in the revised editions of the ICAO TI, the IMDG Code, and the UN Recommendations. Commenters to the NPRM supported the fuel cell proposals; no commenter addressed the potential economic impact of the proposals. We note, with regard to DGTC's concern about the economic impact of the limited quantity prohibition, that harmonization promotes safety and facilitates international trade by minimizing the costs and other burdens of complying with multiple or inconsistent safety requirements. Thus, the benefits of a harmonized domestic and international transportation regime outweigh the costs that may be incurred. As DGTC acknowledged in its appeal, the 2009-2010 ICAO TI also prohibit the transportation of fuel cell cartridges as limited quantities on aircraft. Authorizing limited quantity exceptions for fuel cell cartridges in the HMR would be inconsistent with the ICAO TI; such differing domestic and international requirements could cause confusion for both shippers and carriers, thereby adversely affecting safety.

We agree that the prohibition of air transport of limited quantities of fuels when contained in fuel cell cartridges is inconsistent with the current authorization that allows for air transport of limited quantities of the same fuels found in fuel cell cartridges when shipped under the proper shipping name appropriate to the fuel (e.g., “Methanol, UN1230”). The ICAO Dangerous Goods Panel is currently considering adoption of limited quantity exceptions, based in part on a proposal from the U.S. Fuel Cell Council (FCC). Based on the decision of the ICAO Dangerous Goods Panel, we will consider adopting limited quantity exceptions for air transport of fuel cell cartridges in a future rulemaking. Therefore, in this final rule, we are not revising the current prohibition of air transport of fuel cell cartridges as limited quantities.

The January 14, 2009 final rule also revised the packaging requirements for the transportation of fuel cell cartridges under § 173.230 of the HMR. Specifically, paragraph (e) of this section provides for authorized packagings; paragraph (f) sets forth additional requirements for transportation by aircraft. HMT Associates expressed concern that the provision in § 173.230(e) to require intermediate packaging for fuel cell cartridges packed with equipment for all modes of transportation, not just air transport, differs from the packaging requirements for fuel cell cartridges packed with equipment under international standards for highway, rail, and vessel transport. Specifically, HMT Associates states:

With regard to the packaging requirements for fuel cell cartridges packed with equipment in the January 14, 2009 final rule, § 173.230(e)(2)(i) requires fuel cell:

HMT Associates noted that the use of an intermediate packaging is required under the ICAO TI only when fuel cell cartridges packed with equipment are transported by aircraft (re: Packing Instruction 217).

Additionally, HMT Associates indicated that the wording of § 173.230(e)(2)(i) as adopted in the final rule is not as it was proposed in our NPRM. The wording was revised based on a comment submitted to the docket by FCC. The NPRM did not propose use of an intermediate packaging. In the preamble of the final rule [74 FR 2223], we agreed with FCC that the packaging requirements should be consistent with the UN Recommendations and the ICAO TI and indicated that revisions made to the regulatory text of the NPRM were intended to achieve consistency.

Finally, HMT Associates indicated that under the additional provisions for transportation by aircraft in § 173.230(f), the language specific to packaging requirements for fuel cell cartridges packed with equipment in the final rule differs from the proposed language in the NPRM. They noted that the proposed language is consistent with international standards by limiting the intermediate packaging requirement to the additional requirements for air transport rather than the language in the final rule that has additional requirements supplementing the general requirements for transport of fuel cell cartridges packed with equipment and transported by all modes.

HMT Associates is correct that the final rule language highlighted in its appeal was adopted in error. We intended that the requirement for intermediate packaging of fuel cell cartridges packed with equipment should be limited to packaging prepared for air transport consistent with the ICAO TI. This is also consistent with the suggested revisions to § 173.230(e) and (f) in comments we received from FCC in response to the July 31, 2008 NPRM. FCC suggested that we revise the language in paragraph (f) to include a requirement that:

Therefore, HMT Associates' appeal is granted. In this final rule, we are correcting paragraphs (e)(2)(i) and (f)(4) in § 173.230 to fully align the fuel cell cartridges packaging requirements with the multimodal packing requirements as prescribed in ICAO TI Packing Instruction 217 and UN Recommendations Packing Instruction P004. We are also making clarifying corrections to paragraphs (e) and (f) for consistency with changes made based on the appeal and for consistent use of terms in the section. For example, in paragraph (f)(2) we are correcting “fuel cells” to read “fuel cell cartridges” to clarify the applicability to fuel cell cartridges.

In this final rule, we are making editorial corrections and clarifying amendments to sections that were amended by the January 14, 2009 final rule for purposes of consistency with grammatical conventions and for consistency with similar provisions within the HMR. We are also making conforming amendments to sections in the HMR affected by the January 14, 2009 final rule. None of the clarifying or conforming amendments are new requirements but provide for a better understanding of the requirements adopted in the January 14, 2009 final rule. The corrections and amendments are as follows:

This section lists material incorporated by reference into the HMR. In the January 14, 2009 final rule, we updated the address for ICAO reference materials; however, we did not include the most current address. In this final rule, we are correcting the entry to reflect the current address.

This section outlines the purpose and instructions for use of the Hazardous Materials Table (HMT). We are removing an obsolete transitional period in paragraph (l)(3) and replacing it with a transition period specific to marking of cylinders containing “Chlorine, UN1017.” Under HM-215J, we revised the proper shipping name entry for “Chlorine” to include Division 5.1 (oxidizer) as an additional subsidiary hazard. Based on this revision, chlorine cylinders marked in accordance with CGA C-7, Appendix A (see § 172.400a) must now include the Division 5.1 subsidiary hazard number as part of the marking. To allow for additional time to incorporate this subsidiary hazard number as part of the marking, we are authorizing the use of preprinted cylinder markings without the Division 5.1 subsidiary hazard number until January 1, 2011.

We are also making a number of editorial corrections to entries in the § 172.101 Hazardous Materials Table (HMT). The editorial corrections are as follows:

• For the entry “Gasoline includes gasoline mixed with ethyl alcohol, with not more than 10% alcohol, UN1203,” the Special provisions in Column (7) are corrected to read “144, 177, B1, B33, IB2, T4, TP1.”

• The proper shipping name for the entry “Regulated medical waste, n.o.s. or Clinical waste, unspecified, n.o.s. or (BIO)Medical waste, n.o.s., or Biomedical waste, n.o.s. or Medical waste, n.o.s., UN3291” is corrected to read “Regulated medical waste, n.o.s. or Clinical waste, unspecified, n.o.s. or (BIO)Medical waste, n.o.s., or Biomedical waste, n.o.s. or Medical waste, n.o.s., UN3291.” This correction is a “remove/add.”

• The proper shipping name for the entry “Trimethyltrichlorosilane, UN1298” is corrected to read “Trimethylchlorosilane.” This correction is a “remove/add.”

• The information contained in the HMT for the following entries is being corrected by placing the information in the appropriate Columns of the:

○ “Receptacles, small, containing gas or gas cartridges (non-flammable) without release device, not refillable and not exceeding 1 L capacity, UN2037.”

○ “Receptacles, small, containing gas or gas cartridges (oxidizing) without release device, not refillable and not exceeding 1 L capacity, UN2037.”

This section sets forth requirements for the description of hazardous materials on shipping papers. In paragraph (a)(4) of this section, we are correcting the last sentence to enclose the phrase “for example, “PG II” ” in parentheses. The parentheses were inadvertently omitted in the January 14, 2009 final rule.

This section specifies marking requirements for packaging used to transport marine pollutants. In paragraph (e)(2)(i), the number “4” is corrected to read “3.9” and in paragraph (e)(2)(ii), the number “10” is corrected to read “9.8” for consistency with similar marking and labeling size specification requirements in the HMR.

This section establishes specifications for labels printed on or affixed to packaging. In the January 14, 2009 final rule, we adopted a new CARGO AIRCRAFT ONLY label in § 172.448 of the HMR. The new label contains text that differs from the previous label—specifically, the phrase “CARGO AIRCRAFT ONLY” replaces the word “DANGER.” When we adopted the new label, we failed to make conforming amendments to the label specifications in § 172.407 that reference text from the old label. In this final rule, we are amending paragraph (c)(2) of § 172.407 to correctly reference the phrase “CARGO AIRCRAFT ONLY” and amending the text size specifications to require the letters to measure at least 6.3 mm (0.25 inches) in height. The size requirement for the letters has been reduced to accommodate the greater amount of text that must be displayed on the label as shown in § 172.448.

This section specifies the design of the “CARGO AIRCRAFT ONLY” label. For consistency with the revisions discussed above in § 172.407, we are amending paragraph (c) of this section to emphasize conformance with the label specifications for a “CARGO AIRCRAFT ONLY” label in § 172.407 in addition to the specifications outlined in paragraph (c) of this section.

This section specifies conditions for exception from the HMR requirements for the transport of excepted quantities of hazardous materials. In this final rule, we are amending the language for inner packaging limits in paragraph (c)(1) to clarify the intent in the January 14, 2009 final rule that the provision applies to both primary and subsidiary hazards for Division 6.1 Packing Group I and II, solids and liquids. We are also correcting paragraphs (e)(3)(i) and (g)(2). In paragraph (e)(3)(i), we are removing the phrase “[i]n such cases, and” which is extraneous language that was inadvertently included with the paragraph and in paragraph (g)(2), we are correcting the word “symbol” to read “marking” to clarify that the size requirements are intended to apply to the size of the marking and not the size of the symbol within the marking.

This section specifies requirements for the transport of empty packagings containing only the residue of a hazardous material. In the January 14, 2009 final rule, we revised § 173.115 with respect to classification of Division 2.2 material by adopting the gauge pressure criteria of 200 kPa (29.0 psig) but failed to make a conforming revision to the Division 2.2 classification criteria in this section. In this final rule, we are amending § 173.29(b)(2)(iv)(B) for consistency with the new classification criteria for Division 2.2 material in § 173.115.

This section specifies authorized packaging for explosive materials. In this final rule, in paragraph (c)(5), we are amending Packing Instruction 114(b)(2) by correcting the words “pack-agings” and “pre-vented” to read “packagings” and “prevented,” respectively.

This section establishes the classification criteria for Class 2, Division 2.1, 2.2, and 2.3 gases. In this final rule, for the Division 2.2 non-flammable, nonpoisonous gas criteria in paragraph (b)(1), we are correcting the gauge pressure number “25.9” to read “29.0”. This correction reflects an error in conversion of the unit of measure and is not a revision to the classification criteria.

The section specifies the conditions for exception from the HMR requirements for the transport of non-spillable batteries. In this final rule, we are correcting the section heading “Exceptions for Non-spillable batteries” to read “Exceptions for non-spillable batteries.” In addition, in paragraph (b), we are correcting the word “nonspillable” in each place it appears to read “non-spillable.”

This section specifies the packaging requirements for chlorosilanes. In the January 14, 2009 final rule, we added this new packaging section to the HMR to harmonize with new packaging requirements for water-reactive chlorosilanes adopted in the Fifteenth revised edition of the UN Recommendations. In our effort to harmonize with the international standards, we inadvertently omitted the authorization to use cylinders for these materials. Cylinders were previously authorized for use in transport of these materials under §§ 173.201 and 173.202. In this final rule, we are correcting paragraph (c) by reinstating the authorization to use certain cylinders for transport of these materials. We note that aluminum cylinders should not be used for the transport of these materials due to safety concerns of incompatibility of aluminum and water-reactive chlorosilanes. We may adopt revisions to the packaging provisions prohibiting the use of aluminum cylinders for these materials in a future rulemaking.

This section specifies the conditions for transportation of internal combustion engines, vehicles, and mechanical equipment and battery-powered vehicles and equipment. In the January 14, 2009 final rule, we clarified the provisions for the transport of batteries and battery-powered devices including the transport of vehicles and equipment powered by batteries. In paragraph (d), we included an incorrect reference to § 173.185 regarding an exception to the prohibition of lithium metal batteries aboard passenger-carrying aircraft. In this final rule, we are correcting paragraph (d) to reference the correct provision, specifically, § 172.102, Special Provision A101.

This section specifies packaging requirements for fuel cell cartridges. Per the section II discussion of HMT Associates' appeal, in this final rule, we are correcting paragraphs (e)(2) and (f) in § 173.230 to clarify and align fully the fuel cell cartridge packaging requirements with the multimodal packing requirements as prescribed in the ICAO TI Packing Instruction 217 and UN Recommendations Packing Instruction P004.

This section specifies conditions for exception from the HMR requirements for transportation of limited quantities of compressed gases. In the January 14, 2009 final rule, we adopted provisions for the transportation of limited quantities of Division 2.2 (non-flammable) compressed gases in nonrefillable plastic receptacles packaged in a strong outside packaging. These provisions are set forth in conditions for shipment of these gases in specification 2S and non-DOT specification plastic containers (§ 173.306(a)(5)) and in a new specification 2S for the construction of these plastic containers (§ 178.33b). See 74 FR at 2265, 2268-69. These requirements are consistent with revisions adopted in the Fifteenth revised edition of the UN Recommendations (6.2.4.2.2) and the 2009-2010 edition of the ICAO TI (6;5.4.2.3). We concluded that these inner plastic containers provide a level of safety equivalent to other authorized packaging, and we could eliminate the need for issuance of a special permit to allow the use of plastic containers for transport of limited quantities of Division 2.2 gases with no subsidiary risk.

Inner metal containers authorized for transport of limited quantities of compressed gas have historically been subjected to a hot water bath after filling to ensure the containers are free of leaks prior to being offered for transportation. See § 173.306(a)(3)(v). Consistent with UN Recommendations and the ICAO TI, in the January 14, 2009 final rule, we adopted in § 173.306(a)(5)(v) a similar hot water bath test requirement for the specification 2S and non-DOT specification plastic containers. The hot water bath for plastic containers must be performed at temperatures and for a duration sufficient to achieve internal pressure requirements. These elevated temperatures may be destructive to the contents of containers or to the material of construction of plastic containers. Thus, the hot water bath test includes instruction for containers with contents sensitive to heat or containers made of plastic materials which soften at higher temperatures to be tested at a lower temperature. However, in adopting the hot water bath provisions, we inadvertently left out the language specific to plastic materials which soften at the test temperature. In this final rule, we are correcting paragraph (a)(5)(v) to include language that plastic materials which soften at the higher test temperature of the hot water bath must be tested at the lower temperature range of 20 °C (68 °F) to 30 °C (86 °F).

Additionally, as part of the conditions for the shipment of limited quantities of Division 2.2 (non-flammable) compressed gases in plastic containers, we intended to adopt test methods alternative to the hot water bath test in § 173.306, specifically, pressure and leakage tests subjected to each container prior to filling and a leakage test subjected to each container after filling. The provisions for alternative pressure and leakage tests to the hot water bath were incorrectly placed in § 178.33b-8, rather than in § 173.306 where they properly belong. In doing so, we inadvertently required manufacturers of the specification 2S plastic containers to perform the alternative pressure and leakage tests as part of their production run and then also required the filler to perform the hot water bath test. This misplacement of the pressure and leakage tests would put domestic manufacturers or fillers at a disadvantage as they are not afforded the opportunity to utilize these tests as an alternative to the hot water bath test as they would be if transporting under the ICAO TI or under other international regulations that have adopted these provisions based on the UN Recommendations. We believe this intent was understood by the public and the regulated community. Therefore, to correct this error, in this final rule, we are (1) removing the alternative pressure and leakage test method provisions currently found in § 178.33b-8(b); (2) adding these provisions to § 173.306 as a new paragraph (a)(5)(vi); and (3) redesignating current paragraph (a)(5)(vi) containing the packaging marking requirements as new paragraph (a)(5)(vii).

This section specifies conditions for exception from the HMR requirements for the transport of hazardous materials aboard passenger aircraft by passengers, crewmembers, and air operators. In the January 14, 2009 final rule, we revised paragraph (a)(18) to expand the types of fuel cell cartridges permitted in carry-on baggage. Fuel cell cartridges permitted for transport by passengers and crewmembers must continue to conform to the rigorous performance criteria outlined in this section. For consistency with the provisions for fuel cell cartridges in § 173.230, in this final rule, we are clarifying paragraph (a)(18) of this section to indicate that the maximum quantity of fuel for hydrogen in a metal hydride fuel cell cartridges is based on the water capacity of the fuel cell cartridges rather than the net quantity of fuel as is the case of all other types of fuels. Also, in this final rule, we are correcting a grammatical error in paragraph (a)(15)(iv)(B) by correcting the “,” (comma) at the end of the subparagraph to read “;” (semicolon).

In this final rule, we are correcting the section heading “Specification 2S; inner nonrefillable plastic receptacles [Reserved]” to read “Specification 2S; inner nonrefillable plastic receptacles.”

This section specifies design qualification testing requirements for Specification 2S packaging. In this final rule, we are correcting the section heading “§ 178.33b-7 Design Qualification Test” to read “§ 178.33b-7 Design qualification test.” We are also correcting paragraph (a) to specify that the drop test requirements apply to each new design rather than each container. The current wording “container type” used in paragraph (a) comes from the British Standard BS 5597:1991 (paragraph 2.11) in which “type testing” is defined as testing to indicate whether an aerosol dispenser, made to a unique specification and design, meets the appropriate requirements of the standard. BS 5597:1991 was the basis for several special permits issued by PHMSA authorizing the manufacture and use of these containers prior to adoption of the provisions into the HMR. Design qualification testing, or “type testing,” is intended to be performed only on new designs and is repeated when the design features change in a meaningful way, such as when the container is manufactured with a new mold, or if the properties of the plastic material have changed. Therefore, in this final rule, we are clarifying paragraph (a) by correcting § 178.33b-7(a)(1) to require each new design be subjected to the drop test requirements. Also, in the January 14, 2009 final rule, in a response to comments, we agreed with a commenter that the drop test criteria should be amended to specify that a container should not be dropped on the valve. However, we inadvertently left this instruction out of the final rule. In this final rule, we are correcting § 178.33b-7(a)(1) by revising the language to specify the orientation of the containers during the drop test. Finally, we are adding a new paragraph (b) to this section to clarify when design qualification testing is required.

This section specifies production testing requirements for Specification 2S packaging. In this final rule, we are correcting the section heading “§ 178.33b-8 Production Tests” to read “§ 178.33b-8 Production tests” and correcting paragraph (b) by removing the pressure and leak test requirements as discussed in § 173.306 above.

The section specifies the packaging marking requirements for IBCs. In the January 14, 2009 final rule, we included an additional marking requirement for IBCs to display a symbol specifying the maximum permitted stacking load applicable when an IBC is in use, with a transition date until January 1, 2011. In this final rule, we are correcting the language adopted in the January 14, 2009 final rule in § 178.703 by adding a new paragraph (b)(7) to specify that the symbol is in addition to the marking requirements already in place in paragraph (a)(1) and not a part of the that marking sequence. Additionally, we are clarifying that the marking of the figure “0” that is required as part of the marking sequence in § 178.703(a)(1) is not required in association with the symbol for IBCs not capable of being stacked.

This final rule is published under the following statutory authorities:

1. 49 U.S.C. 5103(b) authorizes the Secretary of Transportation to prescribe regulations for the safe transportation, including security, of hazardous material in intrastate, interstate, and foreign commerce. This final rule corrects several errors in the January 14, 2009 final rule.

2. 49 U.S.C. 5120(b) authorizes the Secretary of Transportation to ensure that, to the extent practicable, regulations governing the transportation of hazardous materials in commerce are consistent with standards adopted by international authorities. This final rule corrects errors made during the development of the January 14, 2009 final rule and printing process and makes amendments to conform to amendments made in the January 14, 2009 final rule.

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget. This final rule is a non-significant rule under the Regulatory Policies and Procedures of the Department of Transportation [44 FR 11034]. The revisions adopted in this final rule do not alter the cost-benefit analysis and conclusions contained in the Regulatory Evaluation prepared for the January 14, 2009 final rule. The Regulatory Evaluation is available for review in the public docket for this rulemaking.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”), and the President's memorandum on “Preemption” in published in the Federal Register on May 22, 2009 (74 FR 24693). This final rule preempts State, local and Indian Tribe requirements but does not propose any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian Tribe requirements for certain subjects. The subjects are:

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

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

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

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

(5) The design, manufacture, fabrication, marking, maintenance, recondition, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This final rule addresses covered subject items (1), (2), (3), and (5) above and preempts State, local, and Indian Tribe requirements not meeting the “substantively the same” standard. This final rule is necessary to incorporate changes adopted in international standards, effective January 1, 2009. If the changes in this final rule are not adopted in the HMR, U.S. companies, including numerous small entities competing in foreign markets, are at an economic disadvantage. These companies are forced to comply with a dual system of regulations. The changes in this rulemaking are intended to avoid this result. Federal hazardous materials transportation law provides at section 5125(b)(2) that, if DOT issues a regulation concerning any of the covered subjects, DOT must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of Federal preemption is April 5, 2010.

This final rule was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have Tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. The corrections and revisions contained in this final rule will have little or no effect on the regulated industry. Based on the assessment in the regulatory evaluation, to the January 14, 2009 final rule, I hereby certify that, while this rule applies to a substantial number of small entities, there will not be a significant economic impact on those small entities. A detailed Regulatory Flexibility analysis is available for review in the docket.

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

This final rule imposes no new information collection requirements.

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

This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more to either State, local or Tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

The National Environmental Policy Act of 1969 (NEPA) requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. In the January 14, 2009 final rule, we developed an assessment to determine the effects of these revisions on the environment and whether a more comprehensive environmental impact statement may be required. Our findings conclude that there are no significant environmental impacts associated with this final rule. Consistency in the regulations for the transportation of hazardous materials aids in shippers' understanding of what is required and permits shippers to more easily comply with safety regulations and avoid the potential for environmental damage or contamination. For interested parties, a detailed environmental assessment is included in the January 14, 2009 final rule which is available in the public docket.

Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the document (or signing the document, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or you may visit http://www.dot.gov/privacy.html.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the final rule to ensure that it does not exclude imports that meet this objective. Accordingly, this rulemaking is consistent with PHMSA's obligations under the Trade Agreement Act, as amended.