Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site http://www.regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

You can access publicly available documents related to this document using the following methods:

NRC's Public Document Room (PDR): The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Publicly available documents created or received at the NRC are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail to PDR.Resource@nrc.gov.

Federal Rulemaking Web site: Public comments and supporting materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID: NRC-2010-0134.

Documents that are not publicly available because they are considered to be either Sensitive Unclassified Non-Safeguards Information (SUNSI) (including SUNSI constituting proprietary information), or Safeguards Information (SGI) may be available to interested persons who may wish to comment on the proposed design certification amendment. Interested persons shall follow the procedures described in the SUPPLEMENTARY INFORMATION section of this document, Section VII, “Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Preparation of Comments on the Proposed Amendment to the U.S. ABWR Design Certification.”

Title 10 of the Code of Federal Regulations, (10 CFR) Part 52 “Licenses, Certifications, and Approvals for Nuclear Power Plants,” Subpart B, presents the process for obtaining standard design certifications. Section 52.63, “Finality of standard design certifications,” provides criteria for determining when the Commission may amend the certification information for a previously certified standard design in response to a request for amendment from any person. On June 30, 2009, STPNOC tendered its application with the NRC for amendment of the U.S. ABWR standard plant design certification to comply with the requirements of 10 CFR 50.150, “Aircraft impact assessment” (ADAMS Accession Number ML092040048). STPNOC submitted this application in accordance with 10 CFR 52.63. STPNOC proposed several changes to the certified U.S. ABWR design to comply with 10 CFR 50.150, including the addition of an alternate feedwater injection system, the addition and upgrading of fire barriers and doors, and the strengthening of certain structural barriers. The NRC formally accepted the application as a docketed application for amendment to the U.S. ABWR design certification (Docket No. 52-001) on December 1, 2009 (74 FR 62829).

On June 12, 2009 (74 FR 28112), the NRC amended its regulations to require applicants for new nuclear power reactor designs to perform a design-specific assessment of the effects of the impact of a large, commercial aircraft (the AIA rule). These new provisions in 10 CFR 50.150 require applicants to use realistic analyses to identify and incorporate design features and functional capabilities to ensure, with reduced use of operator actions, that (1) the reactor core remains cooled or the containment remains intact, and (2) spent fuel cooling or spent fuel pool integrity is maintained. When it issued the AIA rule, the Commission stated that the requirements in existence at that time, in conjunction with the March 2009 revisions to 10 CFR 50.54 to address loss of large areas of the plant due to explosions or fires, would continue to provide adequate protection of the public health and safety and the common defense and security. Nevertheless, the Commission decided to also require applicants for new nuclear power reactors to incorporate into their design additional features to show that the facility can withstand the effects of an aircraft impact. The Commission stated that the AIA rule to address the capability of new nuclear power reactors relative to an aircraft impact is based both on enhanced public health and safety and enhanced common defense and security, but is not necessary for adequate protection. Rather, the AIA rule's goal is to enhance the facility's inherent robustness at the design stage.

The AIA rule requirements apply to various categories of applicants, including applicants for combined licenses (COLs) that reference a standard design certification issued before the effective date of the AIA rule, which have not been amended to comply with the rule. These COL applicants have two methods by which they can comply with 10 CFR 50.150. They can request an amendment to the certified design or they can address the requirements of 10 CFR 50.150 directly in their COL application. STPNOC submitted an application for a COL on September 20, 2007. STPNOC has requested this amendment to the U.S. ABWR certified design to address the requirements of the AIA rule.

The NRC's review of the applicant's proposed amendment to the U.S. ABWR design certification confirmed that the applicant has complied with 10 CFR 50.150. Specifically, the staff confirmed that the applicant adequately described key AIA design features and functional capabilities in accordance with the AIA rule and conducted an assessment reasonably formulated to identify design features and functional capabilities to show, with reduced use of operator action, that the facility can withstand the effects of an aircraft impact. In addition, the staff determined that there will be no adverse impacts from complying with the requirements for consideration of aircraft impacts on conclusions reached by the NRC in its review of the original U.S. ABWR design certification. Finally, the staff determined that STPNOC and its contractors are technically qualified to perform the design work associated with the amended portion of the U.S. ABWR design represented by STPNOC's application and to supply the amended portion of the U.S. ABWR design. STPNOC's amendment to the U.S. ABWR design has achieved the Commission's objectives of enhanced public health and safety and enhanced common defense and security through improvement of the facility's inherent robustness at the design stage.

In the 1989 10 CFR part 52 rulemaking, the Commission decided to approve standard reactor designs by rulemaking, as opposed to licensing, and stated that a design certification rule “does not, strictly speaking, belong to the designer” (54 FR 15327; April 18, 1989, at 15375, third column). Nonetheless, the Commission implicitly recognized the need to protect the commercial and proprietary interests of the original applicant who intends to supply the certified design, should there be another entity who intends to use the design in some fashion without approval or compensation to the original design certification applicant. Id. The protection was provided, in part, through the decision of the Commission to protect “proprietary information” 1 developed by the original design certification applicant, as well as by several other regulatory provisions in both 10 CFR part 52 and 10 CFR part 170.

Based upon the licensing experience with operating nuclear power plants, the Commission understood that portions of proposed design certifications, primarily in the area of fuel design, would likely be regarded as proprietary information (trade secrets) by future design certification applicants. To ensure that design certification applicants would not be adversely affected in their capability to protect this proprietary information as a result of the NRC's decision to approve designs by rulemaking rather than licensing, the Commission adopted 10 CFR 52.51(c), which states, in relevant part:

Having protected proprietary information developed by the design certification applicant, the Commission then adopted several additional rulemaking provisions in 10 CFR part 52 providing additional regulatory protection to the original design certification applicant against unfair use of the design certification by other suppliers. The Commission required the (original) design certification applicant, as well as the applicant for renewal of the design certification, to include in the application:

The Commission also adopted 10 CFR 52.63(c), requiring the applicant referencing the design certification to provide the information required to be developed by 10 CFR 52.47(a)(2) or its equivalent:

The Commission also relied on its statutory authority to make a technical qualifications finding under Section 182 of the Atomic Energy Act of 1954 (AEA) as amended, to adopt 10 CFR 52.73, which effectively prohibits a COL applicant from referencing a certified design unless the entity that actually supplies the design to the referencing applicant is technically qualified to supply the certified design:

Apart from the provisions discussed previously, the Commission also indicated in the statements of consideration for the 1989 10 CFR part 52 rulemaking that the finality provisions in 10 CFR 52.63 provided some protection against arbitrary amendment or rescission of the design certification. Any proposed rescission or amendment of the design certification must be accomplished under notice and comment rulemaking procedures, as required by 10 CFR 52.63(a)(1). The original applicant would, accordingly, have the opportunity to comment on any proposed change to the design, including those changes initiated by other entities.

Finally, the Commission adopted, as part of the 1989 rulemaking, conforming amendments to 10 CFR 170.12(d) and (e). Under these provisions, entities other than the original design certification applicant who provide either the renewed or original certified design to a referencing applicant for a construction permit, operating license or COL must pay the applicable installment of the deferred NRC fee  5 for review of the original or renewed design certification.

After the 1989 rulemaking, in each of the four existing DCRs in 10 CFR part 52, Appendices A through D, the Commission adopted an additional provision serving to protect the proprietary information and SGI developed by the original design certification applicant. Paragraph IV.A.3 of each rule required an applicant referencing the DCR to “physically include in the plant-specific DCD proprietary information and safeguards information referenced in the DCD.” The Commission's view was that by “physically” including the proprietary information and SGI developed by the original DCR applicant in the application, this would be demonstrative of the referencing applicant's rights to use that information; otherwise, the referencing applicant could provide the equivalent information (62 FR 25800; May 12, 1997, at 25818, third column). In 2007, at the request of NEI and other industry commenters, the word, “physically” was removed from Paragraph IV of each of the four DCRs, to allow the DCR applicant more flexibility in how the proprietary information and SGI are included in the application referencing the DCR (72 FR 49352; August 28, 2007, at 49363-49365). This change was not intended to represent a retreat from the Commission's position that the referencing applicant has the appropriate commercial rights to reference the proprietary and SGI information or its equivalent. However, the NRC acknowledges that under the current language of paragraph IV.A.3., the NRC must do more to verify that the referencing applicant has the appropriate commercial rights to the proprietary and SGI information developed by the originating applicant (unless, of course, the referencing applicant indicates that it is supplying “equivalent” information).

The Commission did not describe in the 1989 rulemaking the particular regulatory approach and structure to be used for a design certification rule with two or more suppliers of the certified design. In the years after the 1989 Part 52 rulemaking, the Commission did not need to address the circumstance of multiple suppliers of the same certified design (multiple suppliers) to an end user. 6 However, with the filing of the U.S. ABWR design certification amendment request by STPNOC, as well as Toshiba's March 3, 2010, letter to the NRC stating that it intends to seek renewal of the U.S. ABWR design certification (ADAMS Accession No. ML100710026), the NRC must now determine the regulatory approach and structure for the amendment (and, for completeness, the renewal) of a certified design where there will be multiple suppliers.

When the NRC was advised of STPNOC's intent to submit an amendment of the U.S. ABWR design certification, it began a process of identifying and considering possible regulatory alternatives, with the goal of identifying a single regulatory approach and structure to be used for all design certifications with multiple suppliers. The NRC considered three alternatives which it could reasonably select:

1. Separate rules: Develop separate design certification rules for each supplier.

2. Branches: Develop one design certification rule with multiple branches, with each branch describing a complete design to be supplied by each supplier.

3. Options: Develop one design certification rule with options, with each option describing a portion of the certified design which may be selected by the user as an option to the original “reference” certified design.

Table 1 presents the NRC's current views with respect to the differences between these three alternatives.

In light of the Commission's past practice of protecting the proprietary information and legitimate commercial interests of the original design certification applicant wherever consistent with other applicable law, the NRC believes that it should consider that practice when evaluating possible alternatives for the approach and structure of a design certification rule with multiple suppliers. Upon consideration, the NRC concludes that the “branches” alternative should be adopted as the general approach for all renewals of design certifications and for major design certification amendments. The “branches” alternative: (1) Is consistent with all applicable law; (2) protects the proprietary information and legitimate commercial interests of the original design certification applicant (as well as the additional suppliers); and (3) meets the NRC's regulatory concerns. Each of these considerations is discussed separately below.

There is no statutory or other legal prohibition, explicit or otherwise, against use of the “branches” alternative in the AEA, the Administrative Procedure Act, the National Technology Transfer and Advancement Act, or other statutes applicable to the NRC. Design certification rulemaking is not specifically addressed in the AEA. The AEA provisions do not appear to circumscribe or prohibit the NRC's use of a regulatory approach of approving multiple suppliers of a set of closely related certified designs in a single codified rule. Moreover, nothing in Part 52 compels the use of a particular alternative for addressing multiple suppliers. As discussed previously, the Commission contemplated that multiple suppliers could supply the same certified design from the time it first adopted the concept of design certification by rulemaking. However, the Commission did not mandate any specific regulatory approach for accommodating multiple suppliers of a certified design. Those provisions intended to protect proprietary information and the commercial interests of each supplier do not mandate any specific approach for accommodating multiple suppliers, and do not foreclose the use of the “branches” alternative.

The “branches” alternative fully protects the proprietary information and legitimate commercial interests of all suppliers. Under the “branches” alternative, each supplier is responsible for creating and maintaining its own DCD (including the non-public version of the DCD containing SUNSI (including proprietary information) and SGI developed by the supplier). Because each DCD is self-contained, the NRC does not foresee any circumstance that would require the NRC to provide the non-public DCD (or information supporting its DCD) prepared and supported by the original design certification applicant to the new supplier, or to provide the non-public DCD prepared and supported by the new supplier to the original applicant. Nor does the use of the “branches” alternative affect the legal issues associated with providing access to SUNSI (including proprietary information) and SGI to members of the public to facilitate public comment on a proposed design certification rulemaking adding a new supplier and branch.

The “branches” alternative has no effect on the legal applicability, or on the NRC's implementation of the 10 CFR part 52 and part 170 provisions discussed previously, which are directed at protecting the proprietary information and commercial interests of the original design applicant. These provisions, properly applied, should also protect the proprietary information and interests of all other suppliers of a subsequently-approved “branch.” Thus, the “branches” alternative affords all suppliers all of the protection of their proprietary information and commercial interests, which the Commission intended to be provided to these suppliers.

A rulemaking adopting a new “branch” (a “ ‘branch’ rulemaking”) would not disturb the issue resolution and finality accorded to the original certified design (as amended in any subsequent rulemakings), or to the certified design of any other suppliers in any previously approved branches. Nor would a “branch” rulemaking necessarily require the Commission to consider and address, in the final rulemaking adding the new “branch,” comments on the existing certified design. The NRC believes that each “branch” rulemaking is limited to adding the new “branch” together with requirements and conditions specific to the new “branch.” Therefore, the NRC asserts that: (1) The nuclear safety and other associated matters (severe accident mitigation design alternatives (SAMDAs)) resolved in the preceding design certification rulemaking(s) continue to be effective and are not being re-examined in the “branch” rulemaking; and (2) comments on the existing certified design(s) are out-of-scope and should not be considered in the “branch” rulemaking. 7

The “branches” alternative would not require the original supplier (or indeed any previously-approved supplier) of the certified design to modify their DCD, or incur other costs as part of the “branch” rulemaking. Hence, there is no financial impact upon the pre-existing suppliers. The NRC has not identified any credible argument that could be raised by the original design certification applicant that an NRC decision allowing a new supplier to supply the certified design could be the proximate cause of any diminution in the commercial value of the original applicant's certified design. The concept of multiple suppliers of a single certified design is inherent in the concept of design certification by rulemaking. The Commission anticipated multiple suppliers of a single design certification when it was considering the regulatory approach for certification (rulemaking versus licensing), and afforded protection to the original applicant by various provisions of 10 CFR part 52. This protection was embodied in provisions included in each of the design certification rules issued to date, and these provisions would continue to be included in future design certification rules. Hence, no supplier—including the original design certification applicant—may reasonably claim that the approval of a new “branch” constitutes an unwarranted diminution in the commercial value of the certified design which it sponsored.

The NRC believes that any alternative and structure for a design certification rule with multiple suppliers must meet the following regulatory concerns. Any rule amendment (or renewal) which introduces a new supplier must minimize the possibility of re-opening the safety and regulatory conclusions reached by the NRC with respect to previously approved aspects of the design and supplier(s). In addition, if the new supplier is proposing changes to the actual certified design, then the substitute or new portions of the design  8 must, to the maximum extent practical, be attributable solely to the “sponsoring” supplier, and therefore distinguishable from the “common” portions of the design which each supplier must support (the “branches” alternative adopting the premise that the supplier must be technically qualified to supply all of the certified design, including the “common” portions). 9 The regulatory approach and structure must reflect a sound basis for allowing the NRC to make a technical qualifications finding with respect to the supplier. Finally, the approach and structure must allow for imposition of applicable NRC requirements on each supplier, and the legal ability of the NRC to undertake enforcement and regulatory action on each supplier.

The “branches” alternative meets all of these regulatory concerns. By creating a separate branch for the design to be supplied by the new supplier in the rule and requiring the new certified design to be described in a separate DCD created and supported by the new supplier, there is a strong basis for arguing that the certified design(s) already approved by the NRC are not affected and that the issue finality accorded to those certified designs (as controlled by 10 CFR 52.63) continues. Hence, in any rulemaking approving a new branch, the NRC need not consider any comments seeking changes to the existing certified design.

The use of a separate DCD to describe the new certified design, by its very nature, serves to distinguish any substitute or new portions of the certified design sponsored only by the new supplier, and make clear that the substitute or new portions are being sponsored solely by the new supplier (because the other branches do not contain any reference to or mention of the substitute or new portions of the design sponsored by the new supplier). The use of a separate DCD describing the entire design is also consistent with the NRC's position that it must conduct a technical qualifications review of the new supplier, and make a finding that the new supplier is technically qualified to provide the entire certified design. The NRC's recommendation to use a separate DCD, coupled with a structure of the design certification rule language (as codified in one of the appendices to 10 CFR part 52) that applies common regulatory requirements to all suppliers, allows for the NRC to take regulatory action against any supplier without regard to whether the supplier was the original design certification applicant.

For these reasons, the NRC concluded that its regulatory concerns are met under the “branches” alternative. However, during discussions with STPNOC about the processing of its request to amend the U.S. ABWR design certification, STPNOC proposed that the NRC adopt a process similar to the “options” approach for the STPNOC U.S. ABWR amendment. The STPNOC request was based upon a number of factors which the NRC considered to be unique to STPNOC's situation. First, under the “branches” approach, STPNOC would have to supply the U.S. ABWR proprietary information (or its equivalent) which was originally developed by GE Nuclear Energy (GE) and approved by the NRC in the original U.S. ABWR design certification rulemaking. While STPNOC has contractual rights from GE Hitachi Nuclear Energy (GEH) to use the GE-developed U.S. ABWR proprietary information for South Texas Project (STP) Units 3 & 4, it does not have the right to supply the GE-developed U.S. ABWR proprietary information to other companies in connection with any other application for a COL that references the certified U.S. ABWR. In addition, neither STPNOC nor its contractors would be in a position to provide complete information to substitute for the GE-developed U.S. ABWR proprietary information in time to support the schedule for issuance of the COLs for STP Units 3 & 4, should they be approved by the NRC. Second, STPNOC indicated that some portion of the GE-developed U.S. ABWR proprietary information relates to fuel design, and STPNOC does not intend to use the GE fuel design for initial operation of STP Units 3 & 4. Rather, STPNOC intends to use another fuel design and obtain NRC approval via an application for a COL amendment ( i.e., after the issuance of the COLs). The GE-developed fuel design also would not be used to operate any of the possible six U.S. ABWRs that could be developed under the agreement between Toshiba and Nuclear Innovation North America LLC, which has the right to develop four U.S. ABWRs in addition to STP Units 3 & 4. Finally, STPNOC indicated that the “options” approach would not be used at renewal; the renewal application Toshiba was developing would reflect the use of the “branches” alternative ( i.e., Toshiba would be seeking approval of and supplying the entire U.S. ABWR design at renewal, including replacement proprietary information). Based on these factors, STPNOC requested that it be considered the supplier for only that portion of the U.S. ABWR design certification necessary to comply with the AIA, and which is the subject of its amendment request.

Upon consideration, the NRC is proposing to use the “options” approach for the STPNOC amendment of the U.S. ABWR design certification, based on the following considerations. As with the “branches” alternative, there is no statute or NRC regulation prohibiting the use of the “options” approach. Nor is there any provision which prohibits the concurrent use of both alternatives—so long as the NRC is able to articulate a basis for doing so. Moreover, all of the NRC's safety and regulatory objectives are met. STPNOC is providing sufficient information to determine its technical qualifications 10 to supply the STPNOC-sponsored amendments addressing the AIA rule to third party users ( i.e., users other than STPNOC itself). In addition, the NRC believes that there are no insurmountable issues in requiring the user (in most cases, the COL applicant referencing the U.S. ABWR and the STPNOC option) to prepare a single DCD integrating information from both the DCD developed by GE and the DCD developed by STPNOC. The “options” approach also avoids or addresses all of STPNOC's concerns with the use of the “branches” alternative for its request to amend the U.S. ABWR. STPNOC would not have to develop and submit to the NRC information equivalent to the proprietary information developed by GE to support the STPNOC amendment application. Nor does STPNOC have to demonstrate its technical qualifications to supply the entire U.S. ABWR certified design; it would only have to demonstrate its technical qualifications to supply the STPNOC option. Toshiba will prepare an application for renewal of the U.S. ABWR design certification (with Toshiba being the renewal applicant) that reflects the “branches” approach, and that application is likely to be submitted within the next year. Thus, the STPNOC option would have a limited period of effectiveness, that is, until the renewal of the U.S. ABWR design certification. Finally, the “options” approach fully protects the legitimate proprietary and commercial interests of GE in the original U.S. ABWR design certification.

Based on these considerations, the NRC is proposing to adopt the “options” alternative for the STPNOC amendment of the U.S. ABWR design certification, but will regard the “branches” alternative as the default for all renewals of design certifications and for major design certification amendments. Under the “options” approach, applicants seeking amendments to already certified designs must be found to be qualified to supply the limited scope of the revisions they seek. If the NRC receives other limited-scope design certification amendments (similar in scope to the STPNOC amendment request), it will consider whether the “branches” approach or the “options” approach offers the most effective and efficient regulatory option at that time based on the scope of the amendment and the specific circumstances associated with the particular application.

By implementing the “options” approach for the STPNOC U.S. ABWR amendment, a COL applicant that references the U.S. ABWR standard design certification can meet the requirements of the AIA rule by referencing both the GE DCD and the STPNOC DCD or by referencing only the GE DCD and addressing the requirements of the AIA rule separately in its COL application.

The NRC proposes to amend Section I, “Introduction,” to identify STPNOC as the applicant for the amendment of the U.S. ABWR design certification rule to address the AIA rule, 10 CFR 50.150. The portion of the certified design sponsored by STPNOC in this amendment, and which this rulemaking finds STPNOC (acting together with TANE) is technically qualified to supply, is termed the “STPNOC certified design option” or “STPNOC option.” As discussed in greater detail in the section-by-section analysis for Section III, “Scope and Contents,” an applicant or licensee referencing this appendix may use the GE certified design (which was first certified by the NRC in a 1997 rulemaking (62 FR 25800; May 12, 1997)), or both the GE certified design together with the STPNOC option (the GE/STPNOC composite certified design).

The overall purpose of paragraph I of this appendix is to identify the standard plant design that was approved and the applicant for certification of the standard design. Identification of both the original design certification applicant and the applicant for any amendment to the design is necessary to implement this appendix, for two reasons. First, the implementation of 10 CFR 52.63(c) depends on whether an applicant for a COL contracts with the design certification applicant to provide the generic DCD and supporting design information. If the COL applicant does not use the design certification applicant to provide the design information and instead uses an alternate nuclear plant supplier, then the COL applicant must meet the requirements in paragraph IV.A.4 of this appendix and 10 CFR 52.73. The COL applicant must demonstrate that the alternate supplier is qualified to provide the standard plant design information.

By identifying STPNOC as the applicant for the amendment of the U.S. ABWR design certification rule, the provisions of 10 CFR 52.63 will be given effect whenever a COL applicant references the certified design option sponsored by STPNOC, but does not use STPNOC to supply the design information for this option and instead uses an alternate supplier. In this circumstance, the COL applicant must meet the requirements in paragraph IV.A.4 of this appendix and 10 CFR 52.73 with respect to the STPNOC option ( i.e., the COL applicant must demonstrate that the alternate supplier is qualified to provide the certified design information constituting the STPNOC option).

In addition, by identifying STPNOC as the applicant, STPNOC must maintain the generic DCD for the STPNOC option throughout the time this appendix may be referenced by a COL, as required by paragraph X.A.1 of this appendix.

The NRC is proposing to revise the definition of “generic design control document (generic DCD)” in paragraph A in Section II, “Definitions,” to indicate that there will now be two generic DCDs incorporated by reference into this appendix—the DCD for the original U.S. ABWR design certification submitted by GE Nuclear Energy (GE DCD) and the DCD for the amendment to the U.S. ABWR design submitted by STPNOC (STPNOC DCD). The NRC is proposing this change to the definition of “generic DCD” to make it clear that all requirements in this appendix related to the “generic DCD” apply to both the GE DCD and the STPNOC DCD, unless otherwise specified.

During development of the first two DCRs, the Commission decided that there would be both generic (master) DCDs maintained by the NRC and the design certification applicant, as well as individual plant-specific DCDs maintained by each applicant and licensee that reference this appendix. This distinction is necessary to specify the relevant plant-specific requirements to applicants and licensees referencing the appendix. To facilitate the maintenance of the master DCDs, the NRC proposes that each application for a standard design certification or amendment to a standard design certification be updated to include an electronic copy of the final version of the DCD. The final version would be required to incorporate all amendments to the DCD submitted since the original application as well as any changes directed by the NRC as a result of its review of the original DCD or as a result of public comments. This final version would become the master DCD incorporated by reference in the DCR. The master DCD would be revised as needed to include generic changes to the version of the DCD approved in this design certification rulemaking. These changes would occur as the result of generic rulemaking by the Commission, under the change criteria in Section VIII.

The NRC proposes to incorporate by reference a second DCD into Appendix A of 10 CFR part 52, i.e., the DCD for the STPNOC option (STPNOC DCD). Under the proposed rule, a reference to a “generic DCD” means, in context, either or both: (i) The DCD for the original U.S. ABWR design certification submitted by GE (GE DCD); and (ii) the STPNOC DCD submitted by STPNOC.

The purpose of Section III is to describe and define the scope and contents of this design certification and to present how documentation discrepancies or inconsistencies are to be resolved. Paragraph III.A is the required statement of the Office of the Federal Register (OFR) for approval of the incorporation by reference of Tier 1, Tier 2, and the generic technical specifications into this appendix. The NRC is proposing to redesignate the existing paragraph A regarding the GE DCD as paragraph A.1 and to add a new paragraph A.2 indicating that the STPNOC DCD is also approved for incorporation by reference.

The legal effect of incorporation by reference is that the incorporated material has the same legal status as if it were published in the Code of Federal Regulations. This material, like any other properly issued regulation, has the force and effect of law. The STPNOC DCD was prepared to meet the technical information contents of application requirements for design certifications under 10 CFR 52.47(a) and the requirements of the OFR for incorporation by reference under 1 CFR part 51. One of the requirements of the OFR for incorporation by reference is that the applicant for the design certification (or amendment to the design certification) must make the generic DCD available upon request after the final rule becomes effective. Therefore, paragraph III.A.2 would identify a STPNOC representative to be contacted to obtain a copy of the STPNOC DCD.

The generic DCD (master copy) for the STPNOC DCD is electronically accessible in ADAMS (Accession No. ML102870017); at the OFR; and at www.regulations.gov by searching under Docket ID NRC-2010-0134. Copies of the generic DCD would also be available at the NRC's PDR. Questions concerning the accuracy of information in an application that references this appendix will be resolved by checking the master copy of the generic DCD in ADAMS. If the design certification amendment applicant makes a generic change (through NRC rulemaking) to the DCD under 10 CFR 52.63 and the change process provided in Section VIII, then at the completion of the rulemaking the NRC would request approval of the Director, OFR, for the revised master DCD. The NRC would require that the design certification amendment applicant maintain an up-to-date copy of the master DCD under paragraph X.A.1 that includes any generic changes it has made because it is likely that most applicants intending to reference the standard design would obtain the generic DCD from the design certification amendment applicant.

In addition, the NRC is proposing to revise paragraph III.B to add text indicating that an applicant or licensee referencing this appendix may reference either the GE DCD, or both the GE DCD and the STPNOC DCD. An applicant referencing this appendix would be required to indicate in its application and in all necessary supporting documentation which of these two alternatives it is implementing. This information is necessary to support the NRC's review and processing of the license application. A COL applicant that does not reference both the GE DCD and the STPNOC DCD will be required, in accordance with 10 CFR 50.150(a)(3)(v)(B) to comply with the requirements of 10 CFR 50.150 as part of its COL application.

Paragraphs III.C and III.D set forth the way potential conflicts are to be resolved. Paragraph III.C would establish the Tier 1 description in the DCD as controlling in the event of an inconsistency between the Tier 1 and Tier 2 information in the DCD. The NRC is proposing a minor change to paragraph III.C, which currently states that, if there is a conflict between Tier 1 and Tier 2 of the DCD, then Tier 1 controls. The revised paragraph would state that, if there is a conflict between Tier 1 and Tier 2 of a DCD, then Tier 1 controls. This change is necessary to indicate that this requirement applies to both the GE DCD and the STPNOC DCD.

The NRC is also proposing a change to paragraph III.D. Paragraph III.D establishes the generic DCD as the controlling document in the event of an inconsistency between the DCD and the Final Safety Evaluation Report (FSER) for the certified standard design. The proposed revision would indicate that this is also the case for an inconsistency between the STPNOC DCD and the NRC's associated FSER, referred to as the “AIA FSER.”

The NRC is proposing to redesignate current paragraph III.E as proposed paragraph III.F and to add a new paragraph, III.E. Proposed paragraph III.E would state that, if there is a conflict between the design as described in the GE DCD and a design matter which implements the STPNOC certified design option but is not specifically described in the STPNOC DCD, then the GE DCD controls. This paragraph, which would be effective only with respect to the GE/STPNOC composite certified design, addresses the situation when, despite the best efforts of STPNOC and the NRC, there are unintended consequences or unaddressed issues resulting from STPNOC's amendment to the U.S. ABWR design. The NRC would expect the applicant or licensee discovering such issues to notify the NRC and STPNOC so that the issue could be addressed generically (if not reportable under existing NRC requirements such as 10 CFR part 21, 10 CFR 52.6, 10 CFR 50.72 and 10 CFR 50.73).

Section IV presents additional requirements and restrictions imposed upon an applicant who references this appendix. Paragraph IV.A presents the information requirements for these applicants. Paragraph IV.A.3 currently requires the applicant to include, not simply reference, the proprietary and SGI referenced in the U.S. ABWR DCD, or its equivalent, to ensure that the applicant has actual notice of these requirements. The NRC is proposing to revise paragraph IV.A.3 to indicate that a COL applicant must include, in the plant-specific DCD, the proprietary information and SGI referenced in both the GE DCD and the STPNOC DCD, as applicable.

The NRC is also proposing to add a new paragraph IV.A.4 to indicate requirements that must be met in cases where the COL applicant is not using the entity that was the original applicant for the design certification (or amendment) to supply the design for the applicant's use. Proposed paragraph IV.A.4.a would require that a COL applicant referencing this appendix include, as part of its application, a demonstration that an entity other than GE Nuclear Energy is qualified to supply the U.S. ABWR certified design unless GE Nuclear Energy supplies the design for the applicant's use. Proposed paragraph IV.A.4.b would require that a COL applicant referencing the STPNOC certified design option include, as part of its application, a demonstration that an entity other than STPNOC and TANE acting together is qualified to supply the STPNOC certified design option, unless STPNOC and TANE acting together supply the design option for the applicant's use. In cases where a COL applicant is not using GE Nuclear Energy to supply the U.S. ABWR certified design, or is not using STPNOC and TANE acting together to supply the STPNOC certified design option, this information is necessary to support any NRC finding under 10 CFR 52.73(a) that an entity other than the one originally sponsoring the design certification or design certification amendment is qualified to supply the certified design or certified design option.

Under 10 CFR 52.47(a)(7), a design certification applicant is required to include information in its application to demonstrate that it is technically qualified to engage in the proposed activities ( e.g., supplying the certified design to license applicants). Based on the NRC's review of the STPNOC application to amend to the U.S. ABWR certified design, the NRC determined that STPNOC and its contractors are technically qualified to perform the design work associated with the amended portion of the U.S. ABWR design represented by STPNOC's application and to supply the amended portion of the U.S. ABWR design. However, the staff determined that STPNOC, by itself, is not technically qualified to supply the amended portion of the U.S. ABWR design certification represented in STPNOC's DCD. Rather, the staff determined that STPNOC and TANE acting together are qualified to supply the amended portion of the U.S. ABWR design certification represented in STPNOC's DCD. Therefore, the NRC is including paragraph IV.A.4.b to ensure that the basis for the NRC finding of technical qualifications in support of this design certification amendment remains valid.

The purpose of Section V is to specify the regulations applicable and in effect when the design certification is approved ( i.e., as of the date specified in paragraph V.A, which is the date that Appendix A was originally approved by the Commission and signed by the Secretary of the Commission). The NRC is proposing to revise paragraph V.A to indicate that the current text in this paragraph applies to the GE DCD and to add a new paragraph indicating the regulations that apply to the STPNOC DCD (10 CFR Parts 50 and 52), as would be approved by the Commission and signed by the Secretary of the Commission should this amendment to Appendix A be approved. All of the requirements related to the NRC's AIA requirements can be found in 10 CFR Parts 50 and 52.

The purpose of Section VI is to identify the scope of issues that were resolved by the Commission in the original certification rulemaking and, therefore, are “matters resolved” within the meaning and intent of 10 CFR 52.63(a)(5). Paragraph VI.B presents the scope of issues that may not be challenged as a matter of right in subsequent proceedings and describes the categories of information for which there is issue resolution. Paragraph VI.B.1 provides that all nuclear safety issues arising from the Atomic Energy Act of 1954, as amended, that are associated with the information in the NRC staff's FSER (ADAMS Accession No. ML102710198), the Tier 1 and Tier 2 information and the rulemaking record for this appendix are resolved within the meaning of 10 CFR 52.63(a)(5). These issues include the information referenced in the DCD that are requirements ( i.e., “secondary references”), as well as all issues arising from proprietary information and SGI which are intended to be requirements. Paragraph VI.B.2 provides for issue preclusion of proprietary and SGI.

The NRC is proposing to revise paragraphs VI.B.1 and VI.B.2 to redesignate references to the “FSER” as references to the “ABWR FSER,” and references to the “generic DCD” as references to the “GE DCD” to distinguish the FSER and DCD for the original certified design from the FSER and DCD that would be issued to support the STPNOC amendment to the U.S. ABWR design. In addition, this proposed revision would add additional text to paragraph VI.B.1 to identify the information that would be resolved by the Commission in the rulemaking to certify the STPNOC amendment to the U.S. ABWR design.

The NRC is also proposing to revise paragraph VI.B.7, which identifies as resolved all environmental issues concerning severe accident mitigation design alternatives arising under the National Environmental Policy Act of 1969 (NEPA) associated with the information in the NRC's final environmental assessment for the U.S. ABWR design and Revision 1 of the technical support document for the U.S. ABWR, dated December 1994, for plants referencing this appendix whose site parameters are within those specified in the technical support document. The NRC is proposing to revise this paragraph to also identify as resolved all environmental issues concerning severe accident mitigation design alternatives associated with the information in the NRC's final environmental assessment and Revision 0 of ABWR-LIC-09-621, “Applicant's Supplemental Environmental Report-Amendment to ABWR Standard Design Certification,” for the AIA amendment to the U.S. ABWR design for plants referencing this appendix whose site parameters are within those specified in the technical support document.

Finally, the NRC is proposing to revise paragraph VI.E, which provides the procedure for an interested member of the public to obtain access to proprietary information and SGI for the U.S. ABWR design, and to request and participate in proceedings identified in paragraph VI.B of this appendix, that is, proceedings involving licenses and applications which reference this appendix. The NRC is proposing to replace the current information in this paragraph with a statement that the NRC will specify, at an appropriate time, the procedure for interested persons to review SGI or SUNSI (including proprietary information), for the purpose of participating in the hearing required by 10 CFR 52.85, the hearing provided under 10 CFR 52.103, or in any other proceeding relating to this appendix in which interested persons have a right to request an adjudicatory hearing.

Access to such information would be for the sole purpose of requesting or participating in certain specified hearings, viz., (i) the hearing required by 10 CFR 52.85 where the underlying application references this appendix; (ii) any hearing provided under 10 CFR 52.103 where the underlying COL references this appendix; and (iii) any other hearing relating to this appendix in which interested persons have the right to request an adjudicatory hearing.

For proceedings where the notice of hearing was published before [effective date of final rule], the Commission's order governing access to SUNSI and SGI shall be used to govern access to SUNSI (including proprietary information) and SGI on the STPNOC option. For proceedings in which the notice of hearing or opportunity for hearing is published after [effective date of final rule], paragraph VI.E. applies and governs access to SUNSI (including proprietary information) and SGI for both the original GE certified design, and the STPNOC option; as stated in paragraph VI.E, the NRC will specify the access procedures at an appropriate time.

The NRC expects to follow its current practice of establishing the procedures by order when the notice of hearing is published in the Federal Register . ( See, e.g., Florida Power and Light Co, Combined License Application for the Turkey Point Units 6 & 7, Notice of Hearing, Opportunity To Petition for Leave To Intervene and Associated Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation (75 FR 34777; June 18, 2010); Notice of Receipt of Application for License; Notice of Consideration of Issuance of License; Notice of Hearing and Commission Order and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation; In the Matter of AREVA Enrichment Services, LLC (Eagle Rock Enrichment Facility) (74 FR 38052; July 30, 2009).

In the four currently approved design certifications (10 CFR part 52, Appendices A through D), paragraph VI.E presents specific directions on how to obtain access to proprietary information and SGI on the design certification in connection with a license application proceeding referencing that design certification rule. The NRC is proposing this change because these provisions were developed before the terrorist events of September 11, 2001. After September 11, 2001, the Congress changed the statutory requirements governing access to SGI, and the NRC revised its rules, procedures, and practices governing control and access to SUNSI and SGI. The NRC now believes that generic direction on obtaining access to SUNSI and SGI is no longer appropriate for newly approved DCRs. Accordingly, the specific requirements governing access to SUNSI and SGI contained in paragraph VI.E of the four currently approved DCRs should not be included in the design certification rule for the U.S. ABWR. Instead, the NRC should specify the procedures to be used for obtaining access at an appropriate time in the COL proceeding referencing the U.S. ABWR DCR. The NRC intends to include this change in any future amendment or renewal of the other existing DCRs. However, the NRC is not planning to initiate rulemaking to change paragraph VI.E of the existing DCRs, to minimize unnecessary resource expenditures by both the original DCR applicant and the NRC.

The purpose of Section VIII is to present the processes for generic changes to, or plant-specific departures (including exemptions) from, the DCD. The Commission adopted this restrictive change process to achieve a more stable licensing process for applicants and licensees that reference this DCR. The change processes for the three different categories of Tier 2 information, namely, Tier 2, Tier 2*, and Tier 2* with a time of expiration, are presented in paragraph VIII.B.

Departures from Tier 2 that a licensee may make without prior NRC approval are addressed under paragraph VIII.B.5 (similar to the process in 10 CFR 50.59). The NRC is proposing changes to Section VIII to address the change control process specific to departures from the information required by 10 CFR 52.47(a)(28) to address the NRC's AIA requirements in 10 CFR 50.150. Specifically, the NRC is proposing to revise paragraph VIII.B.5.b to indicate that the criteria in this paragraph for determining if a proposed departure from Tier 2 requires a license amendment do not apply to a proposed departure affecting information required by 10 CFR 52.47(a)(28) to address 10 CFR 50.150. In addition, the NRC is proposing to redesignate paragraphs VIII.B.5.d, B.5.e, and B.5.f as paragraphs VIII.B.5.e, B.5.f, and B.5.g, respectively, and to add a new paragraph VIII.B.5.d. Proposed paragraph VIII.B.5.d would require an applicant or licensee who proposed to depart from the information required by 10 CFR 52.47(a)(28) to be included in the final safety analysis report (FSAR) for the standard design certification to consider the effect of the changed feature or capability on the original assessment required by 10 CFR 50.150(a). The FSAR information required by the aircraft impact rule which is subject to this change control requirement are the descriptions of the design features and functional capabilities incorporated into the final design of the nuclear power facility and the description of how the identified design features and functional capabilities meet the assessment requirements in 10 CFR 50.150(a)(1). The objective of the change controls is to determine whether the design of the facility, as changed or modified, is shown to withstand the effects of the aircraft impact with reduced use of operator actions. In other words, the applicant or licensee must continue to show, with the modified design, that the acceptance criteria in 10 CFR 50.150(a)(1) are met with reduced use of operator actions. The rule does not require an applicant or a licensee implementing a design change to redo the complete aircraft impact assessment (AIA) to evaluate the effects of the change. The NRC believes it may be possible to demonstrate that a design change is bound by the original design or that the change provides an equivalent level of protection, without redoing the original assessment.

Consistent with the NRC's intent when it issued the AIA rule, under the proposed revision to this section, plant-specific departures from the AIA information in the FSAR would not require a license amendment, but may be made by the licensee upon compliance with the substantive requirements of the AIA rule ( i.e., the AIA rule acceptance criteria). The applicant or licensee would also be required to document, in the plant-specific departure, how the modified design features and functional capabilities continue to meet the assessment requirements in 10 CFR 50.150(a)(1) in accordance with Section X of this appendix. Applicants and licensees making changes to design features or capabilities included in the certified design may also need to develop alternate means to cope with the loss of large areas of the plant from explosions or fires to comply with the requirements in 10 CFR 50.54(hh). The proposed addition of these provisions to this appendix is consistent with the NRC's intent when it issued the AIA rule in 2009, as noted in the statements of consideration for that rule (74 FR 28112; June 12, 2009, at 28122, third column).

The purpose of Section X is to present the requirements that apply to maintaining records of changes to and departures from the generic DCD, which would be reflected in the plant-specific DCD. Section X also presents the requirements for submitting reports (including updates to the plant-specific DCD) to the NRC. Paragraph X.A.1 requires that a generic DCD and the proprietary information and SGI referenced in the generic DCD be maintained by the applicant for this rule. The NRC is proposing to revise paragraph X.A.1 to indicate that there are two applicants for this appendix and that the requirements to maintain a copy of the applicable generic DCD would apply to both the applicant for the original U.S. ABWR certification (GE) and the applicant for the AIA amendment to the U.S. ABWR design (STPNOC). Paragraph X.A.1 would also require the design certification applicant to maintain the proprietary information and SGI referenced in the generic DCD. The NRC is proposing to replace the term “proprietary information” with the broader term “sensitive unclassified non-safeguards information (including proprietary information).” Information categorized as SUNSI is information that is generally not publicly available and encompasses a wide variety of categories, including information about a licensee's or applicant's physical protection or material control and accounting program for special nuclear material not otherwise designated as SGI or classified as National Security Information or Restricted Data (security-related information), which is required by 10 CFR 2.390 to be protected in the same manner as commercial or financial information ( i.e., they are exempt from public disclosure). This change is necessary because, although the NRC is not approving any proprietary information or SGI as part of this amendment rulemaking, it is approving some security-related information that is categorized as SUNSI.

This change would ensure that both GE and STPNOC (as well as any future applicants for amendments to the U.S. ABWR DCR who intend to supply the certified design) are required to maintain a copy of the applicable generic DCD, and maintain the applicable SUNSI (including proprietary information) and SGI—developed by that applicant—that were approved as part of the relevant design certification rulemakings. In the certification of the original U.S. ABWR design, the NRC approved both proprietary information and SGI as part of the design certification rulemaking. In this amendment to the U.S. ABWR design, the NRC would only be approving non-proprietary SUNSI as part of the amendment rulemaking.

The NRC notes that the generic DCD concept was developed, in part, to meet OFR requirements for incorporation by reference, including public availability of documents incorporated by reference. However, the proprietary information and SGI were not included in the public version of the DCD prepared by GE, and the SUNSI was not included in the public version of the DCD prepared by STPNOC. Only the public version of the generic STPNOC DCD would be identified and incorporated by reference into this rule. Nonetheless, the SUNSI for the STPNOC option was reviewed by the NRC and, as stated in paragraph VI.B.2, the NRC would consider the information to be resolved within the meaning of 10 CFR 52.63(a)(5). Because this information is in the non-public versions of the GE and STPNOC DCDs, this SUNSI (including proprietary information) and SGI, or its equivalent, is required to be provided by an applicant for a license referencing this DCR.

In addition, the NRC is proposing to add a new paragraph X.A.4.a that would require the applicant for the amendment to the U.S. ABWR design to address the AIA requirements to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) for the term of the certification (including any period of renewal). The NRC is also proposing a new paragraph X.A.4.b that would require an applicant or licensee who references this appendix to include both the GE DCD and the STPNOC DCD to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) throughout the pendency of the application and for the term of the license (including any period of renewal). The addition of paragraphs X.A.4.a and X.A.4.b is consistent with the NRC's intent when it issued the AIA rule in 2009 (74 FR 28112; June 12, 2009, at 28121, second column).

The NRC is proposing to amend Section I, “Introduction,” to identify STPNOC as the applicant for the amendment of the U.S. ABWR design certification rule to address the AIA rule, 10 CFR 50.150.

The NRC is proposing to revise the definition of “generic design control document (generic DCD)” to indicate that there will be two generic DCDs incorporated by reference into this appendix—the DCD for the original U.S. ABWR design certification submitted by GE Nuclear Energy (GE DCD) and the DCD for the amendment to the U.S. ABWR design submitted by STPNOC (STPNOC DCD). This will make it clear that all requirements in this appendix related to the “generic DCD” apply to both the GE DCD and the STPNOC DCD, unless otherwise specified.

The NRC is proposing to redesignate existing paragraph A regarding the GE DCD as paragraph A.1 and to add a new paragraph A.2 indicating that the STPNOC DCD is also approved for incorporation by reference into 10 CFR part 52, Appendix A by OFR.

The NRC is proposing to revise paragraph III.B to add text indicating that an applicant or licensee referencing this appendix may use either the GE DCD, or both the GE DCD and the STPNOC DCD. By doing so, the applicant or licensee effectively indicates which generic design it is using ( i.e., the GE certified design, or the GE/STPNOC composite certified design). An applicant referencing this appendix would be required to indicate in its application and in all necessary supporting documentation which of these two alternatives it is implementing.

The NRC is proposing a minor change to paragraph III.C, which currently states that, if there is a conflict between Tier 1 and Tier 2 of the DCD, then Tier 1 controls. The revised paragraph would state that, if there is a conflict between Tier 1 and Tier 2 of a DCD, then Tier 1 controls, because the requirement would also apply to the STPNOC DCD.

Paragraph III.D establishes the generic DCD as the controlling document in the event of an inconsistency between the DCD and the FSER for the certified standard design. The NRC is proposing a change to paragraph III.D which would indicate that in the event of an inconsistency between the STPNOC DCD and the AIA FSER, the STPNOC DCD controls.

The NRC is proposing to redesignate current paragraph III.E as proposed paragraph III.F and to add a new paragraph III.E. Proposed paragraph III.E would state that, if there is a conflict between the design as described in the GE DCD and a design matter which implements the STPNOC certified design option but is not specifically described in the STPNOC DCD, then the GE DCD controls.

The NRC is proposing to revise paragraph IV.A.3 to indicate that a COL applicant must include, in the plant-specific DCD, the proprietary information and SGI referenced in both the GE DCD and the STPNOC DCD, as applicable, or its equivalent.

Section IV presents additional requirements and restrictions imposed upon an applicant who references this appendix. Paragraph IV.A presents the information requirements for these applicants. Paragraph IV.A.3 requires the applicant to include the proprietary information and SGI referenced in the DCD, or its equivalent, to ensure that the applicant has actual notice of these requirements. The NRC is proposing to revise paragraph IV.A.3 to indicate that a COL applicant must include, in the plant-specific DCD, the proprietary information and SGI referenced in both the GE DCD and the STPNOC DCD, as applicable, or the equivalent of this information. If the COL applicant is referencing only the GE DC, then the applicant must include the proprietary information and SGI developed by GE (as presented in the non-public version of the GE DCD), or the equivalent of this information. If the COL applicant is referencing both the GE DCD and the STPNOC DCD, then the applicant must include: (1) The proprietary information and SGI developed by GE (as presented in the non-public version of the GE DCD), or the equivalent of this information; and (2) the proprietary information and SGI developed by STPNOC (as presented in the non public version of the STPNOC DCD), or the equivalent of this information.

The NRC is also proposing to add a new paragraph IV.A.4 to indicate requirements that must be met in cases where the COL applicant is not using the entity that was the original applicant for the design certification (or amendment) to supply the design for the applicant's use. Proposed paragraph IV.A.4.a would require that a COL applicant referencing this appendix include, as part of its application, a demonstration that an entity other than GE is qualified to supply the U.S. ABWR certified design unless GE supplies the design for the applicant's use. Proposed paragraph IV.A.4.b would require that a COL applicant referencing the STPNOC certified design option include, as part of its application, a demonstration that an entity other than STPNOC and TANE acting together is qualified to supply the STPNOC certified design option, unless STPNOC and TANE acting together supply the design option for the applicant's use. In cases where a COL applicant is not using GE to supply the U.S. ABWR certified design, or is not using STPNOC and TANE acting together to supply the STPNOC certified design option, the required information would be used to support any NRC finding under 10 CFR 52.73(a) that an entity other than the one originally sponsoring the design certification or design certification amendment is qualified to supply the certified design or certified design option.

Paragraph V.A would be revised so that the first sentence of paragraph V.A identifies the applicable regulations for the GE certified design, and the second sentence presents the applicable regulations for the STPNOC Option.

The NRC is proposing to revise paragraphs VI.B.1 and VI.B.2 to redesignate references to the “FSER” as references to the “ABWR FSER” and references to the “generic DCD” as references to the “GE DCD” to distinguish the FSER and DCD for the original certified design from the FSER and DCD that would be issued to support the STPNOC amendment to the U.S. ABWR design. In addition, this proposed revision would add text to paragraph VI.B.1 to identify the information that would be resolved by the Commission in the rulemaking to certify the STPNOC AIA amendment to the U.S. ABWR design.

The NRC is proposing to revise paragraph VI.B.7 to identify as resolved all environmental issues concerning severe accident mitigation design alternatives associated with the information in the NRC's final environmental assessment and Revision 0 of ABWR-LIC-09-621, “Applicant's Supplemental Environmental Report-Amendment to ABWR Standard Design Certification,” for the AIA amendment to the U.S. ABWR design for plants referencing this appendix whose site parameters are within those specified in the technical support document. The existing site parameters specified in the technical support document are not affected by this design certification amendment.

The NRC is proposing changes to Section VIII to address the change control process specific to departures from the information required by 10 CFR 52.47(a)(28) to address the NRC's AIA requirements in 10 CFR 50.150. Specifically, the NRC is proposing to revise paragraph VIII.B.5.b to indicate that the criteria in this paragraph for determining if a proposed departure from Tier 2 requires a license amendment do not apply to a proposed departure affecting information required by 10 CFR 52.47(a)(28) to address aircraft impacts.

In addition, the NRC is proposing to redesignate paragraphs VIII.B.5.d, B.5.e, and B.5.f as paragraphs VIII.B.5.e, B.5.f, and B.5.g, respectively, and to add a new paragraph VIII.B.5.d. Proposed paragraph VIII.B.5.d would require an applicant referencing the U.S. ABWR DCR, who proposed to depart from the information required by 10 CFR 52.47(a)(28) to be included in the FSAR for the standard design certification, to consider the effect of the changed feature or capability on the original 10 CFR 50.150(a) assessment.

The NRC is proposing to revise paragraph X.A.1 to refer to “applicants” for this appendix and to replace the term “proprietary information” with the broader term “sensitive unclassified non-safeguards information.” Paragraph X.A.1 would be revised to require the design certification amendment applicant to maintain the SUNSI which it developed and used to support its design certification amendment application. This would ensure that the referencing applicant has direct access to this information from the design certification amendment applicant, if it has contracted with the applicant to provide the SUNSI to support its license application. The STPNOC generic DCD and the NRC-approved version of the SUNSI would be required to be maintained for the period that this appendix may be referenced.

The NRC is also proposing to add a new paragraph X.A.4.a that would require STPNOC to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) for the term of the certification (including any period of renewal). This proposed provision, which is consistent with 10 CFR 50.150(c)(3), would facilitate any NRC inspections of the assessment that the NRC decides to conduct.

Similarly, the NRC is proposing new paragraph X.A.4.b that would require an applicant or licensee who references this appendix, to include both the GE DCD and the STPNOC DCD, to maintain a copy of the AIA performed to comply with the requirements of 10 CFR 50.150(a) throughout the pendency of the application and for the term of the license (including any period of renewal). This provision is consistent with 10 CFR 50.150(c)(4). For all applicants and licensees, the supporting documentation retained onsite should describe the methodology used in performing the assessment, including the identification of potential design features and functional capabilities to show that the acceptance criteria in 10 CFR 50.150(a)(1) would be met.

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; September 3, 1997), this rule is classified as compatibility “NRC.” 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 AEA or the provisions of this chapter. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements by 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 NRC is making the documents identified below available to interested persons through one or more of the following methods, as indicated. To access documents related to this action, see Section I, “Submitting Comments and Accessing Information” of this document.

This section contains instructions regarding how interested persons who wish to comment on the proposed design certification amendment may request access to documents containing SUNSI to prepare their comments.

Within 10 days after publication of this document, an individual or entity (thereinafter, the “requester”) may request access to such information. Requests for access to SUNSI submitted more than 10 days after publication of this document will not be considered absent a showing of good cause for the late filing explaining why the request could not have been filed earlier.

The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications Staff, Washington, DC 20555-0001. The expedited delivery or courier mail address is: Office of the Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications Staff, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary is rulemaking.comments@nrc.gov. The requester must send a copy of the request to the design certification applicant at the same time as the original transmission to the NRC using the same method of transmission. Copies of the request to the applicant must be sent to Mr. Scott M. Head, Regulatory Affairs Manager, South Texas Project Nuclear Operating Company, P.O. Box 289, Wadsworth, TX 77483, or to smhead@STPEGS.com. For purposes of complying with this requirement, a “request” includes all the information required to be submitted to the NRC as presented in this section.

The request must include the following information:

1. The name of this design certification amendment at the top of the first page of the request, and a citation to this document.

2. The name, address, and e-mail or FAX number of the requester. If the requester is an entity, the name of the individual(s) to whom access is to be provided, then the address and e-mail or FAX number for each individual, and a statement of the authority granted by the entity to each individual to review the information and to prepare comments on behalf of the entity must be provided. If the requester is relying upon another individual to evaluate the requested SUNSI and prepare comments, then the name, affiliation, address, and e-mail or FAX number for that individual must be provided.

3. The requester's need for the information to prepare meaningful comments on the proposed design certification must be demonstrated. Each of the following areas must be addressed with specificity.

(a) The specific issue or subject matter on which the requester wishes to comment;

(b) An explanation why information which is publicly available, including the publicly available versions of the application and design control document, and information on the NRC's docket for the design certification application is insufficient to provide the basis for developing meaningful comment on the proposed design certification with respect to the issue or subject matter described previously in paragraph 3(a); and

(c) Information demonstrating that the individual to whom access is to be provided has the technical competence (demonstrable knowledge, skill, experience, education, training or certification) to understand and use (or evaluate) the requested information in order to develop meaningful comments on the proposed design certification with respect to the issue or subject matter described in paragraph 3(a) above.

4. Based on an evaluation of the information submitted under paragraph 3 of this section, the NRC staff will determine within 10 days of receipt of the written access request whether the requester has established a legitimate need for the SUNSI access requested.

5. If the NRC staff determines that the requester has established a legitimate need for access to SUNSI, the NRC staff will notify the requester in writing that access to SUNSI has been granted.

The written notification to the requester will contain instructions on how the requester may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions will include, but are not necessarily limited to, the signing of a protective order presenting terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI by each individual who will be granted access to SUNSI. Claims that the provisions of such a protective order have not been complied with may be filed by calling NRC's toll-free safety hotline at 1-800-695-7403. Please note that calls to this number are not recorded between the hours of 7 a.m. to 5 p.m. Eastern Time. However, calls received outside these hours are answered by the Incident Response Operations Center on a recorded line. Claims may also be filed via e-mail to NRO_Allegations@nrc.gov, or may be sent in writing to the U.S. Nuclear Regulatory Commission, Attention: N. Rivera-Feliciano, Mail Stop T7-D24, Washington, DC 20555-0001.

6. Any comments in this rulemaking proceeding that are based upon the disclosed SUNSI must be filed by the requester no later than 25 days after receipt of (or access to) that information, or the close of the public comment period, whichever is later. The commenter must comply with the NRC requirements regarding the submission of SUNSI to the NRC when submitting comments to the NRC (including marking and transmission requirements).

7. Review of Denials of Access.

(a) If the request for access to SUNSI is denied by the NRC staff, the staff shall promptly notify the requester in writing, briefly stating the reason or reasons for the denial.

(b) Appeals from a denial of access must be made to the Executive Director for Operations (EDO) in accordance with 10 CFR 9.29. The decision of the EDO constitutes final agency action, as provided in 10 CFR 9.29(d).

The Presidential memorandum `Plain Language in Government Writing” published on June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the NRC as explained in the ADDRESSES heading of this document.

The National Technology and Transfer Act of 1995 (Act), 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 proposes to approve the AIA amendment to the U.S. ABWR standard plant design for use in nuclear power plant licensing under 10 CFR part 50 or 52. Design certifications (and amendments thereto) are not generic rulemakings establishing a generally applicable standard with which all 10 CFR Parts 50 and 52 nuclear power plant licensees must comply. Design certifications (and amendments thereto) are Commission approvals of specific nuclear power plant designs by rulemaking. Furthermore, design certifications (and amendments thereto) are initiated by an applicant for rulemaking, rather than by the NRC. For these reasons, the NRC concludes that the Act does not apply to this proposed rule.

The Commission has determined under NEPA, and the Commission's regulations in Subpart A, “National Environmental Policy Act; Regulations Implementing Section 102(2),” of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” that this proposed design certification rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement (EIS) is not required. The basis for this determination, as documented in the draft environmental assessment (EA), is that that the Commission has made a generic determination under 10 CFR 51.32(b)(2) that there is no significant environmental impact associated with the issuance of an amendment to a design certification.

This amendment to 10 CFR part 52 would not authorize the siting, construction, or operation of a facility using the AIA amendment to the U.S. ABWR design; it would only codify the AIA amendment to the U.S. ABWR design in a rule. The NRC will evaluate the environmental impacts and issue an EIS as appropriate under NEPA as part of the application for the construction and operation of a facility referencing the AIA amendment to the U.S. ABWR design certification rule.

In addition, as part of the draft EA for the AIA amendment to the U.S. ABWR design, the NRC reviewed STPNOC's evaluation of various design alternatives to prevent and mitigate severe accidents in Revision 0 of ABWR-LIC-09-621, “Applicant's Supplemental Environmental Report-Amendment to ABWR Standard Design Certification.” According to 10 CFR 51.30(d), an EA for a design certification amendment is limited to the consideration of whether the design change which is the subject of the proposed amendment renders a severe accident mitigation design alternative (SAMDA) previously rejected in the earlier EA to become cost beneficial, or results in the identification of new SAMDAs, in which case the costs and benefits of new SAMDAs and the bases for not incorporating new SAMDAs in the design certification must be addressed. Based upon review of STPNOC's evaluation, the Commission concludes that the proposed design changes (1) do not cause a SAMDA previously rejected in the environmental assessment for the original U.S. ABWR design certification to become cost-beneficial; and (2) do not result in the identification of any new SAMDAs that could become cost beneficial.

The Commission is requesting comment on the draft EA. As provided in 10 CFR 51.31(b), comments on the draft EA will be limited to the consideration of SAMDAs as required by 10 CFR 51.30(d). The Commission will prepare a final EA following the close of the comment period for the proposed standard design certification. If a final rule is issued, all environmental issues concerning SAMDAs associated with the information in the final EA and Revision 0 of ABWR-LIC-09-621, “Applicant's Supplemental Environmental Report-Amendment to ABWR Standard Design Certification,” will be considered resolved for plants referencing the AIA amendment to the U.S. ABWR design whose site parameters are within those specified in Revision 1 of the technical support document for the U.S. ABWR, dated December 1994. The existing site parameters specified in the technical support document are not affected by this design certification amendment.

The draft EA, upon which the Commission's finding of no significant impact is based, and the STPNOC DCD are available for examination and copying at the NRC's Public Document Room (PDR), One White Flint North, 11555 Rockville Pike, Room O1-F21, Rockville, Maryland 20852.

This proposed rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). This rule has been submitted to the Office of Management and Budget (OMB) for review and approval of the information collection requirements.

Type of submission, new or revision: Revision.

The title of the information collection: 10 CFR part 52, Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment.

The form number if applicable: N/A.

How often the collection is required: On occasion. Reports required under 10 CFR part 52, Appendix A, paragraph IV.A.4, are collected and evaluated once, when licensing action is sought on a combined license application referencing the U.S. ABWR design and the combined license applicant is not using the entity that was the original applicant for the design certification, or amendment, to supply the design for the license applicant's use.

Who will be required or asked to report: Combined license applicants.

An estimate of the number of annual responses: 2 (0 annual responses plus 2 recordkeepers).

The estimated number of annual respondents: 2.

An estimate of the total number of hours needed annually to complete the requirement or request: 6 hours (0 hours reporting and 6 hours recordkeeping).

Abstract: The NRC proposes to amend its regulations to certify an amendment to the U.S. ABWR standard plant design to comply with 10 CFR 50.150, “Aircraft Impact Assessment.” This action will allow applicants or licensees intending to construct and operate a U.S. ABWR to comply with 10 CFR 50.150 by referencing the amended DCR.

The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule (or proposed policy statement) and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?

2. Is the estimate of burden accurate?

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?

4. How can the burden of the information collection be minimized, including the use of automated collection techniques?

A copy of the OMB clearance package may be viewed free of charge at the NRC's PDR, One White Flint North, 11555 Rockville Pike, Room O1-F21, Rockville, Maryland 20852. The OMB clearance package and rule are available at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the signature date of this notice.

Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by February 22, 2011 to the Information Services Branch (T5-F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to INFOCOLLECTS.Resource@NRC.GOV and to the Desk Officer, Christine Kymn, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0151), Office of Management and Budget, Washington, DC 20503. Comments on the proposed information collection may also be submitted via the Federal eRulemaking Portal http://www.regulations.gov, Docket ID NRC-2010-0134. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. You may also e-mail comments to Christine_J._Kymn@omb.eop.gov or comment by telephone at 202-395-4638

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 not prepared a regulatory analysis for this proposed rule. The NRC prepares regulatory analyses for rulemakings that establish generic regulatory requirements applicable to all licensees. Design certifications (and amendments thereto) are not generic rulemakings in the sense that design certifications (and amendments thereto) do not establish standards or requirements with which all licensees must comply. Rather, design certifications (and amendments thereto) are Commission approvals of specific nuclear power plant designs by rulemaking, which then may be voluntarily referenced by applicants for COLs. Furthermore, design certification rulemakings are initiated by an applicant for a design certification (or amendments thereto), rather than the NRC. Preparation of a regulatory analysis in this circumstance would not be useful because the design to be certified is proposed by the applicant rather than the NRC. For these reasons, the Commission concludes that preparation of a regulatory analysis is neither required nor appropriate.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule provides for certification of an amendment to a nuclear power plant design. Neither the design certification amendment applicant, nor prospective nuclear power plant licensees who reference this design certification rule, fall within the scope of the definition of “small entities” presented in the Regulatory Flexibility Act, or the size standards established by the NRC (10 CFR 2.810). Thus, this rule does not fall within the purview of the Regulatory Flexibility Act.

The Commission has determined that this proposed rule does not constitute a backfit as defined in the backfit rule (10 CFR 50.109) because this design certification amendment does not impose new or changed requirements on existing 10 CFR part 50 licensees, nor does it impose new or changed requirements on existing DCRs in Appendices A through D of 10 CFR part 52. Therefore, a backfit analysis was not prepared for this rule.

The proposed rule does not constitute backfitting as defined in the backfit rule (10 CFR 50.109) with respect to either operating licenses under 10 CFR part 50 because there are no operating licenses referencing this design certification rule. The proposed rule does not constitute backfitting as defined in the backfit rule or otherwise impose requirements inconsistent with the applicable finality requirements under 10 CFR part 52 (10 CFR 52.63, 52.83 and 52.98) because: (i) There are no COLs issued by the NRC referencing this rule, and (ii) neither the backfit rule nor the finality provisions in 10 CFR part 52 protect COL applicants from changes in NRC requirements which may occur during the pendency of their application before the NRC.

The proposed rule is not inconsistent with the finality requirements in 10 CFR 52.63 as applied to COLs. The proposed rule would establish an option to the existing design certification rule which addresses the requirements of the AIA rule. A COL referencing the U.S. ABWR design certification rule may voluntarily choose to select the STPNOC option, or may choose to reference the U.S. ABWR design without selecting the STPNOC option.

The AIA rule itself mandated that the U.S. ABWR DCR be revised (either during the DCR's current term or no later than its renewal) to address the requirements of the AIA rule. The AIA rule may therefore be regarded as inconsistent with applicable finality provisions in 10 CFR part 52 and Section VI of the U.S. ABWR DCR. However, the NRC provided an administrative exemption from these finality requirements when the final AIA rule was issued. See 74 FR 28112; June 12, 2009, at 28143-45. Accordingly, the NRC has already addressed the backfitting implications of applying the AIA rule to the U.S. ABWR.

Because the proposed rule does not constitute backfitting and is not otherwise inconsistent with finality provisions in 10 CFR part 52, the NRC has not prepared a backfit analysis or documented evaluation for this rule.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR part 52.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0027; Directorate Identifier 2010-NM-127-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received reports of eleven events related to thermal damage of the thrust reverser (T/R) inner wall on Rolls Royce RB211 Trent 800 engines. The events have included air turnbacks, in-flight shutdowns, T/R inner wall panel sections and parts being separated from the airplane, collapse of the T/R inner wall panel, and engine fire loop fault messages. No hull loss or personal injury has occurred from these events. Boeing issued Alert Service Bulletin 777-78A0059, dated February 24, 2005; and Alert Service Bulletin 777-78-0060, dated February 24, 2005; to provide instructions for inspecting the T/R inner wall panel structure and sealing the insulation blankets to prevent hot under-cowl air from contact with the T/R inner wall panel. Since those service bulletins were released, there have been seven events on thrust reversers, four T/Rs on which those service bulletins had not been fully accomplished, and three on which those service bulletins had been fully accomplished. A separated T/R piece could result in a rejected takeoff and cause asymmetric thrust and consequent loss of control of the airplane during reverse thrust operation. If a thrust reverser inner wall overheats, separated components could cause structural damage to the airplane, damage to other airplanes, or injury to people on the ground.

We have reviewed Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010. This service bulletin describes procedures for doing actions specified in Work Packages 1 through 6 (as necessary) of the Accomplishment Instructions. This service bulletin states that operators may choose between doing Work Package 2 (doing a full non-destructive test (NDT)), or Work Package 6 (doing a limited NDT with more restrictive repetitive intervals).

Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, describes procedures for reviewing the airplane maintenance records to determine whether sealant was added; repetitive detailed inspections of all thrust reverser (T/R) inner wall insulation blanket edges, grommet holes, penetrations, and seams for sealant that is cracked, has gaps, is loose, or is missing; repetitive general visual inspections of click bond studs, blanket studs, and temporary fasteners; replacement of sealant if necessary; and related investigative and corrective actions if necessary. The related investigative actions include:

• Measuring the distance between the overlapped blanket face sheets adjacent to the damaged or missing sealant, or measuring the distance between the inner wall and the insulation blanket adjacent to the damaged or missing sealant

• Doing an NDT and general visual inspection for thermal degradation of the exposed T/R inner wall panel area within 12 inches of cracks, gaps, or loose or missing sealant

• Doing an NDT of an uncovered compression pad if it is within 12 inches of the crack, gap, loose, or missing sealant

• Doing a general visual inspection for areas of thermal degradation

• Doing an NDT of the T/R inner wall panel where the fitting was installed

• Doing a detailed inspection of the T/R panel wall inner bolt holes for elongation

• Doing a general visual inspection and NDT inspection for thermal degradation of the inner wall panel area where a damaged click bond stud, blanket stud, and temporary fastener is loose, damaged, or missing

• Doing an NDT (eddy current conductivity test) of the number 1 upper, or numbers 1 and 2 lower, compression pad fittings if they are exposed by blanket removal and within 12 inches of the loose, damaged, or missing click bond studs, blanket studs, or temporary fasteners

• Doing a Barcol hardness test of the area of thermal degradation

• Doing a general visual inspection of bushings for migration or looseness

The corrective actions include:

• Replacing damaged or missing sealant

• Repairing or replacing T/R inner wall panel areas

• Contacting Boeing for repair instructions and doing the repair

• Installing compression pad fittings

• Installing replacement click bonds, blanket studs, or temporary fasteners

• Installing the removed replacement blankets and fittings

• Removing the bushing and repairing the inner wall panel bolt hole

Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, describes procedures for either a repetitive full inner wall panel NDT of each T/R half and repetitive general visual inspections for areas of thermal degradation, or a partial inner wall panel NDT, and related investigative and corrective actions. The related investigative actions include an NDT of the area of different color, and a Barcol hardness inspection of the inner wall panel for areas of thermal degradation. The corrective actions are repairing or replacing unsatisfactory T/R inner wall panel areas, installing insulation blankets, and contacting Boeing for repair instructions and doing the repair. This service bulletin states that Work Package 6 may be done as an alternative to Work Package 2, provided that the shorter interval for the repetitive inspections specified in Work Package 6 are followed.

Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, describes procedures for repetitive detailed inspections of the powered door opening system (PDOS) lug bushings on the upper number 1 compression pad fittings for hole elongation, deformation, and contact with the PDOS actuator, and related investigative and corrective actions. Related investigative actions include a detailed inspection of the PDOS lug. Corrective actions include replacing unserviceable upper number 1 compression pad fittings and replacing unserviceable bushings with serviceable parts, and installing PDOS actuator rods and sealant.

Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, describes procedures for repetitive NDTs of the number 1 upper and numbers 1 and 2 lower compression pad fittings, and related investigative and corrective actions. The related investigative actions include doing an NDT of the T/R inner wall panel, a general visual inspection for areas of thermal degradation, a detailed inspection of the T/R inner wall panel bolt holes for elongation, a Barcol hardness test of the area, and a general visual inspection of the bushing for migration or looseness. Corrective actions include repairing the T/R inner wall panel with a serviceable panel, installing removed installation blankets, installing serviceable compression pad fittings, contacting Boeing for repair instructions and doing the repair, replacing the T/R inner wall panel with a new or serviceable T/R inner wall panel, and removing bushings and repairing the inner wall panel bolt hole.

Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, describes procedures for repetitive general visual inspections of the perforated side of the T/R wall aft of the intermediate pressure compressor 8th stage (IP8) duct and high pressure compressor 3rd stage (HP3) bleed port exits for a color that is different from that of the general area, and related investigative and corrective actions. The related investigative action is an NDT inspection of discolored areas for delamination and disbonding on the perforated side of the inner wall. The corrective actions are contacting Boeing for repair instructions and doing the repair.

Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, describes procedures for a limited area NDT inspection of the inner wall panel of each T/R half for delaminating and disbonding, a general visual inspection for areas of thermal degradation, and related investigative and corrective actions. Related investigative actions include a Barcol hardness test of the area. Corrective actions include repairing or replacing the T/R inner wall panel with a new or serviceable one. Work Package 6 may be done as an option to Work Package 2 provided that the shorter repeat inspection intervals specified in Work Package 2 are followed.

The compliance times for Work Package 1 are as follows. The compliance time for the initial inspections and replacement of sealant (if necessary) is within 1,500 flight hours after the date on the original issue of the service bulletin. The interval for the repetitive inspections is 1,500 flight hours.

The compliance times for doing the initial and repetitive NDT inspections on the T/R wall depend on which work packages are done—either the full NDT option (Work Packages 2 and 5) or limited NDT option (Work Packages 5 and 6). For the initial full NDT and limited NDT options, the compliance time is between 600 and 2,000 flight cycles, depending on the number of total airplane flight cycles and whether a previous inspection has been conducted. The interval for the repetitive inspections for the full NDT is 2,000 flight cycles. The interval for the repetitive inspections for the limited NDT is 700 flight cycles.

The compliance times for Work Package 3 are as follows. The compliance time for the detailed inspection of the PDOS lug bushings on the upper number 1 compression pad fittings ranges from within 600 to 1,700 flight cycles after the date on the original issue of the service bulletin. The interval for the repetitive inspections is 2,000 flight cycles.

The compliance times for Work Package 4 are as follows. The compliance time for the initial NDT inspection of the number 1 upper, and number 1 and 2 lower, compression pad fittings are within 2,000 flight cycles after the date on the original issue of this service bulletin. The interval for the repetitive inspections is 2,000 flight cycles.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Information.”

Although Boeing Alert Service Bulletin 777-78A0065, Revision 2, dated May 6, 2010, specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions using a method approved by the FAA.

We consider this proposed AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this proposed AD would affect 54 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2010-0042; Directorate Identifier 2009-NM-010-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We issued a supplemental notice of proposed rulemaking (NPRM) (the “first supplemental NPRM”) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Saab AB, Saab Aerosystems Model SAAB 340A (SAAB/SF340A) and SAAB 340B airplanes. That first supplemental NPRM was published in the Federal Register on August 23, 2010 (75 FR 51696). That first supplemental NPRM proposed to require inspecting the fuselage surface for corrosion and cracking behind the external adapter plate of the antennae installation, and repair if necessary.

Since we issued the first supplemental NPRM, we have determined that STC number SA00224WI-D, identified in the applicability of the first supplemental NPRM, is an incorrect STC number; the correct number is ST00224WI-D. We have corrected this error, which expands the airplanes affected by the first supplemental NPRM.

We gave the public the opportunity to comment on the first supplemental NPRM. We received no comments on that NPRM or on the determination of the cost to the public.

We are proposing this second supplemental NPRM because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs. The change described above expands the scope of the first supplemental NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this second supplemental NPRM.

This second supplemental NPRM would retain all the requirements in the first supplemental NPRM.

We estimate that this proposed AD would affect 201 airplanes of U.S. registry. The proposed inspection would take about 4 work hours per airplane, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $68,340, or $340 per airplane.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0026; Directorate Identifier 2010-NM-104-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received reports of system disconnect boxes that have been contaminated with hydraulic fluid. One operator has found cracks in the system disconnect assembly bulkheads and lower skin panel. Subsequent analysis at Boeing found hydrogen enbrittlement of the system disconnect assembly bulkheads and lower skin panel. The system disconnect assembly is made from titanium and is located near the hot engine core of the engine where temperatures can exceed 270 degrees Fahrenheit. The presence of hydraulic fluid and temperature above 270 degrees Fahrenheit can result in hydrogen embrittlement of the titanium system disconnect assembly. Hydrogen embrittlement combined with a high sonic vibration environment can result in cracking of the system disconnect assembly. The system disconnect assembly is a box where hydraulic, fuel, and electrical connections are made between the engine and the strut. This box acts as a firewall between the engine compartment and the strut. The engine compartment has a fire extinguishing system while the strut does not. The strut is considered a flammable leakage zone where flammable fluids may be present. These fluids are subsequently drained from the strut and system disconnect box. A cracked firewall can allow fire in the engine area to enter the strut and can lead to an uncontained engine strut fire if flammable fluid is present. Cracking of the disconnect box may also reduce the effectiveness of the fire extinguishing system in the engine compartment and could contribute to an uncontained engine fire. In addition, a cracked disconnect box can leak flammable fluids into the engine core, which can initiate an engine fire, and lead to one or both fire conditions discussed above.

We have reviewed Boeing Alert Service Bulletin 777-54A0024, Revision 1, dated November 4, 2010. This service bulletin describes procedures for doing repetitive general visual inspections for hydraulic fluid contamination of the interior of the strut disconnect assembly; repetitive detailed inspections for discrepancies ( e.g., hydraulic fluid coking, heat discoloration, cracks, and etching or pitting) of the interior of the strut disconnect assembly, if certain conditions are found; repetitive detailed inspections of the exterior of the strut disconnect assembly for cracks; and corrective action, if certain conditions are found. The corrective action is replacing the titanium system disconnect assembly with an Inconel system disconnect assembly. If accomplished, the replacement will eliminate the potential for hydrogen embrittlement and subsequent cracking, and would eliminate the need for the inspections of the titanium strut disconnect assembly.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. This proposed AD would require accomplishing the actions specified in the service information described previously.

We estimate that this proposed AD would affect 53 airplanes of U.S. registry. We also estimate that it would take about 48 work-hours per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $122,617 per product. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $6,714,941, or $122,697 per product.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2010-1209 and Airspace Docket No. 10-ANM-10) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2010-1209 and Airspace Docket No. 10-ANM-10”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue, SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Yellowstone Airport, West Yellowstone, MT, to accommodate new ILS LOC standard instrument approach procedures at Yellowstone Airport, West Yellowstone, MT. This action would enhance the safety and management of aircraft operations at Yellowstone Airport.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes additional controlled airspace at Yellowstone Airport, West Yellowstone, MT.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR Part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2010-1189 and Airspace Docket No. 10-AWP-19) and be submitted in triplicate to the Docket Management System ( see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2010-1189 and Airspace Docket No. 10-AWP-19”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office ( see the ADDRESSES section for the address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue, SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class E airspace extending upward from 700 feet or more above the surface at Taylor Airport, Taylor, AZ, to accommodate aircraft using the CAMBO One Departure RNAV at Taylor Airport. This action would enhance the safety and management of IFR operations at the airport.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes additional controlled airspace at Taylor Airport, Taylor, AZ.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA 2010-1233 and Airspace Docket No. 10-AWP-21) and be submitted in triplicate to the Docket Management System ( see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov .

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2010-1233 and Airspace Docket No. 10-AWP-21”. The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov . Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office ( see the ADDRESSES section for the address and phone number) between 9 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue, SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace designated as surface areas at Kahului Airport, Kahului, HI, to accommodate new standard instrument approach procedures at Kahului Airport. This action would enhance the safety and management of aircraft operations at Kahului Airport, Kahului, HI.

Class E airspace designations are published in paragraph 6002, of FAA Order 7400.9U, dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes additional controlled airspace at Kahului Airport, Kahului, HI.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Background TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act requires that these regulations, among other things, prohibit consumer deception and the use of misleading statements on labels, and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the regulations promulgated under the FAA Act.

Part 4 of the TTB regulations (27 CFR part 4) sets forth the standards promulgated under the FAA Act for the labeling and advertising of wine. Section 4.23 of the TTB regulations (27 CFR 4.23) sets forth rules for varietal (grape type) labeling. Paragraph (a) of that section sets forth the general rule that the names of one or more grape varieties may be used as the type designation of a grape wine only if the wine is labeled with an appellation of origin as defined in § 4.25. Under paragraphs (b) and (c), a wine bottler may use the name of a single grape variety on a label as the type designation of a wine if not less than 75 percent of the wine (or 51 percent in certain limited circumstances) is derived from grapes of that variety grown in the labeled appellation of origin area. Under paragraph (d), a bottler may use two or more grape variety names as the type designation of a wine if all the grapes used to make the wine are of the labeled varieties and if the percentage of the wine derived from each grape variety is shown on the label (and with additional rules in the case of multicounty and multistate appellations of origin). Paragraph (e) of § 4.23 provides that only a grape variety name approved by the TTB Administrator may be used as a type designation for an American wine and states that a list of approved grape variety names appears in subpart J of part 4.

Within subpart J of part 4, the list of prime grape variety names and their synonyms approved for use as type designations for American wines appears in § 4.91 (27 CFR 4.91). Alternative grape variety names temporarily authorized for use are listed in § 4.92 (27 CFR 4.92). Finally, § 4.93 (27 CFR 4.93) sets forth rules for the approval of grape variety names.

Section 4.93 provides that any interested person may petition the Administrator for the approval of a grape variety name and that the petition should provide evidence of the following:

• That the new grape variety is accepted;

• That the name for identifying the grape variety is valid;

• That the variety is used or will be used in winemaking; and

• That the variety is grown and used in the United States.

Section 4.93 further provides that documentation submitted with the petition may include:

• A reference to the publication of the name of the variety in a scientific or professional journal of horticulture or a published report by a professional, scientific, or winegrowers' organization;

• A reference to a plant patent, if patented; and

• Information pertaining to the commercial potential of the variety, such as the acreage planted and its location or market studies.

Section 4.93 also places certain eligibility restrictions on the approval of grape variety names. TTB will not approve a name:

• If it has previously been used for a different grape variety;

• If it contains a term or name found to be misleading under § 4.39 (27 CFR 4.39); or

• If it contains the term “Riesling.”

Typically, if TTB determines that the evidence submitted with a petition supports approval of the new grape variety name, TTB will send a letter of approval to the petitioner advising the petitioner that TTB will propose to add the grape variety name to the list of approved grape variety names in § 4.91 at a later date. After one or more approvals have been issued, a notice of proposed rulemaking will be prepared for publication in the Federal Register proposing to add the name(s) to the § 4.91 list, with opportunity for public comment. In the event that one or more comments or other information demonstrate the inappropriateness of an approval action, TTB will determine not to add the grape variety name in question to the list and will advise the original petitioner that the name is no longer approved.

Since the last revision of the list in § 4.91, TTB has received and approved a number of petitions for new grape variety names. TTB is proposing in this notice to add a number of grape variety names to the list of names in § 4.91 to reflect those approvals. The evidence that the petitioners submitted in support of each name—and that formed the basis for the TTB approval—is summarized below. TTB is also requesting comments on three petitioned-for grape names that TTB did not approve by letter. The petitions for these names—Canaiolo Nero, Moscato Greco, and Princess—are also discussed below. In addition, TTB has received a petition requesting that two grape variety names currently listed in § 4.91 as separate varieties—Petite Sirah and Durif—be recognized as synonyms. TTB is requesting comments on this petition. This petition is discussed below under the listing “Petite Sirah,” as that name is more widely used in the United States than “Durif.”

Adelsheim Vineyard, Newberg, Oregon, petitioned TTB to add “Auxerrois” to the list of approved grape variety names. Auxerrois is a white Vitis vinifera grape variety widely grown in the Alsace region of France. The petitioner submitted documentation showing that Oregon State University imported Auxerrois clones into the United States and had them released from quarantine in 1977. According to the petitioner, these clones were the source for the Auxerrois currently planted in Oregon and elsewhere in the United States. Adelsheim Vineyard reports having produced a varietal Auxerrois wine from its 2003 vintage. TTB is aware of at least one other winery producing a varietal Auxerrois wine. Some of the published references to Auxerrois note that the name is sometimes used in the Cahors region of France as a synonym for the Malbec variety, but the viticultural experts whom TTB consulted agreed that the name correctly applies only to the white variety described in the petition. Therefore, based on this evidence, TTB proposes to add Auxerrois to the list of grape variety names in § 4.91.

Avanguardia Wines LLC, Nevada City, California, petitioned TTB to add “Biancolella” to the list of approved grape variety names. A white Italian Vitis vinifera variety, Biancolella is grown on the islands of Ischia and Capri and in the Campania region on the southern Italian mainland. In Italy, it is an authorized component of Ischia Bianco Superiore (Denominazione di Origine Controllata (DOC), a category in Italy's wine designation system). The petitioner submitted published references to Biancolella and documented having obtained vines from Foundation Plant Services (FPS) at the University of California at Davis (UC Davis). The variety is available from FPS and at least one commercial nursery in California. Based on the evidence submitted by the petitioner, TTB proposes to add Biancolella to the list of grape variety names in § 4.91.

Rotta Winery, Templeton, California, petitioned TTB to add “Black Monukka,” a black Vitis vinifera variety, to the list of approved grape variety names. Although the variety is usually used for table grapes or for raisins, the petitioner reported having produced a dessert wine from Black Monukka grapes since 2001. As evidence of the grape's acceptance and usage in California, the petitioner submitted two statistical tables issued by the California Department of Food and Agriculture. The first table, from the 2005 California Grape Crush Report, shows that 468.9 tons of Black Monukka grapes were crushed in California that year. The second table, from the 2005 California Grape Acreage Report, shows that 253 acres were planted to Black Monukka grapevines in California in 2004. Based on this evidence, TTB proposes to add Black Monukka to the list of grape variety names in § 4.91.

Santa Lucia Winery, Inc., Templeton, California, petitioned TTB to add the name “Blaufränkisch” to § 4.91 as a synonym for the currently listed name “Limberger” and its synonym “Lemberger.” According to “The Oxford Companion to Wine” (Jancis Robinson, ed., Oxford University Press, 2d ed., 1999, p. 82), “Blaufränkisch is the Austrian name for the middle European black variety the Germans call Limberger and growers in Washington State call Lemberger.”

The petitioner submitted numerous published references to the name, “Blaufränkisch,” to demonstrate its validity and wide use among U.S. consumers. The references included copies of the 2000 and 2001 California Grape Crush Reports issued by the California Department of Food and Agriculture that listed the variety as Blaufränkisch, rather than as Lemberger or Limberger. The petitioner also submitted entries from the “Vitis International Variety Catalogue” and the “European Vitis Database,” which both list Blaufränkisch as the grape variety's prime name and list Limberger and Lemberger as synonyms.

The petitioner states that the name “Blaufränkisch” will be less misleading and more appealing to U.S. consumers than the already approved names “Limberger” and “Lemberger,” which, the petitioner contends, the consumer associates with “the infamous, offensive-smelling cheese.” TTB notes that even though one synonym for the grape variety has already been approved, the Winegrape Advisory Committee, the panel of experts whose report was the basis for the establishment of §§ 4.91-4.93, recommended adding up to two synonyms for each grape variety where appropriate. See Notice No. 749, 57 FR 40381, September 3, 1992. The evidence shows that “Blaufränkisch” is a valid name commonly used in the United States for this grape variety; hence, TTB believes the approval of the name is warranted, but welcomes comments on the issue. Based on the submitted evidence, TTB proposes to add Blaufränkisch to the list of grape variety names in § 4.91 as a synonym to Limberger and Lemberger.

Acquaviva Winery, Batavia, Illinois, petitioned TTB to add “Brianna” to the list of approved grape variety names. Brianna is a white hybrid grape variety developed by grape breeder Elmer Swenson. According to the petitioner it planted 429 Brianna vines in 2006 and produced wine from Brianna grapes in 2008. According to the petition, this grape variety is available from commercial nurseries in New York and Minnesota, and is widely planted across the Upper Midwest. The petitioner notes that wineries in Nebraska and Iowa are producing wine made from Brianna grapes. The Web sites of the University of South Dakota, Iowa State University, and the University of Nebraska-Lincoln describe the Brianna grape variety as growing well in their respective States. Based on this evidence, TTB proposes to add Brianna to the list of grape variety names in § 4.91.

Lucian Dressel of Davis Viticultural Research, Carrollton, Illinois, petitioned TTB to add “Cabernet Diane” to the list of approved grape variety names. Cabernet Diane is a red variety bred by the petitioner from a cross of Cabernet Sauvignon and Norton made in 2000. Although Cabernet Diane has the same parentage as Crimson Cabernet ( see below), the petition states that the variety ripens later than Crimson Cabernet and that its wine is darker and more intense. The petitioner has applied for a patent for Cabernet Diane. According to the petitioner, 7 growers in 6 States grow about 16 acres of the variety and the Mary Michelle Winery of Carrollton, Illinois, has made wine from Cabernet Diane since 2006. Based on this evidence, TTB proposes to add Cabernet Diane to the list of grape variety names in § 4.91.

Lucian Dressel of Davis Viticultural Research, Carrollton, Illinois, also petitioned TTB to add “Cabernet Doré” to the list of approved grape variety names. Cabernet Doré is a white variety bred by the petitioner from a cross of Cabernet Sauvignon and Norton made in 2000. The petitioner has applied for a patent for Cabernet Doré and also has trademarked the name. According to the petitioner, 5 growers in 5 States grow about 18 acres of the variety and the Mary Michelle Winery has made wine from Cabernet Doré grapes since 2006. Based on this evidence, TTB proposes to add Cabernet Doré to the list of grape variety names in § 4.91.

Acorn Winery, Healdsburg, California, petitioned TTB to add “Canaiolo” and its synonym, “Canaiolo Nero,” to the list of approved grape variety names. Canaiolo is a black Vitis vinifera grape variety with origins in central Italy. In Italy, it is an authorized component of Chianti (DOC) and Vino Nobile di Montepulciano (DOC).

According to the petitioner, Canaiolo has been grown in California for years, albeit on a small scale. Acorn Winery has grown Canaiolo since 1992 from budwood obtained from the National Germplasm Repository, located at the University of California in Davis. The winery has made wine from this variety and has blended it into Sangiovese, as is generally done in Italy. The petitioner notes that other California growers of Sangiovese have contacted Acorn Winery and requested Canaiolo budwood.

The petitioner claims that both proposed names, “Canaiolo” and “Canaiolo Nero,” are widely used in Italy and elsewhere. To support this claim, the petitioner submitted several published references to the variety that use both names. Additionally, the petitioner noted that both names have appeared on labels of Italian wines sold in the United States. TTB approved the name “Canaiolo” by letter, but did not approve “Canaiolo Nero” because there was not as much evidence for that form of the name. However, TTB welcomes comments on whether “Canaiolo Nero” should also be approved for use on American wine labels. Because the evidence submitted shows that both names are used by and are known to U.S. consumers, TTB proposes to add Canaiolo and its synonym, Canaiolo Nero, to the list of grape variety names in § 4.91.

David Coffaro Winery, Geyserville, California, petitioned TTB to add the name “Carignan” to the list of approved grape variety names as a synonym for the currently approved grape variety name “Carignane.” This red Vitis vinifera variety is widely planted in Southern France under the name “Carignan,” but when it was brought to California the name acquired a final “e.” The petitioner submitted several published references that refer to this variety by the name “Carignan” and indicated that the grape is called Carignane in California. The evidence shows that the name “Carignan” is a valid, widely used name for this grape variety; hence, TTB proposes to add Carignan to the list of grape variety names in § 4.91.

Dr. Bruce Reisch, Professor, Department of Horticultural Sciences, New York State Agricultural Experiment Station, Cornell University, petitioned TTB to add “Corot noir” to the list of approved grape variety names. Corot noir is a red hybrid variety developed at Cornell from a cross between Seyve Villard 18-307 grapes and Steuben grapes. According to a Cornell University bulletin, this variety is moderately winter hardy and produces wines free of the hybrid aromas typical of many other red hybrids. Corot noir vines are currently available at commercial vineyards, and virus-tested cuttings may be obtained from FPS, UC Davis. In addition, TTB is aware of wineries in New York and Virginia making wine from Corot noir. Based on the above evidence, TTB proposes to add Corot noir to the list of grape variety names in § 4.91.

Lucian Dressel of Davis Viticultural Research, Carrollton, Illinois, petitioned TTB to add “Crimson Cabernet” to the list of approved grape variety names. Crimson Cabernet is a red variety bred by the petitioner from a cross of Cabernet Sauvignon and Norton made in 2000. Although Crimson Cabernet has the same parentage as Cabernet Diane ( see above), the petition states that the variety ripens earlier than Cabernet Diane and its wine is lighter in color and less intense. The petitioner has applied for a patent for Crimson Cabernet and has trademarked the name. According to the petitioner, 16 growers in 11 States grow about 33 acres of the variety, and the Mary Michelle Winery, Carrollton, Illinois, has made wine from Crimson Cabernet since 2006. Based on this evidence, TTB proposes to add Crimson Cabernet to the list of grape variety names in § 4.91.

Avanguardia Wines, Nevada City, California, petitioned TTB to add “Erbaluce” to the list of approved grape variety names. Erbaluce is a white Vitis vinifera variety grown in the Piedmont region of northwestern Italy. In Italy, it is authorized for use in a single varietal Erbaluce (DOC). The petitioner submitted published references to Erbaluce and documented having obtained Erbaluce vines from FPS, UC Davis. The variety is available from FPS and at least one commercial nursery in California. Based on the petitioner's evidence, TTB proposes to add Erbaluce to the list of grape variety names in § 4.91.

Chateau Z Vineyard, Monroe, Virginia, petitioned TTB to add “Favorite” to the list of approved grape variety names. Favorite, a hybrid red wine variety, was developed in Texas by John Niederauer around 1938. The National Germplasm Repository, located at the University of California in Davis, maintains this variety in its collection. According to evidence submitted by the petitioner, the variety is currently grown and used for winemaking in South Carolina and Texas. The winery states that it grows Favorite and produced wine from it in 2007. Based on the petition evidence, TTB proposes to add Favorite to the list of grape variety names in § 4.91.

Avanguardia Wines petitioned TTB to add “Forastera” to the list of approved grape variety names. Forastera is a white Vitis vinifera variety indigenous to the island of Ischia, near Naples, Italy. In Italy, it is one of the authorized varieties for use in Ischia Bianco Superiore (DOC). The petitioner has made wine from Forastera grapes grown on vines obtained from FPS, UC Davis. The variety is available from FPS and at least one commercial nursery in California. Based on the petitioner's evidence, TTB proposes to add Forastera to the list of grape variety names in § 4.91.

Capello Winery, Manteca, California, petitioned TTB to add “Freedom” to the list of approved grape variety names. The most common commercial use of the Freedom variety is as a rootstock. Other grape varieties are grafted onto its roots because of its resistance to grape pests, specifically phylloxera and rootknot nematodes. Freedom was introduced in 1974 from a cross of the 1613 and Dodge Ridge grape varieties. The petitioner notes that while a rootstock variety doesn't usually produce grapes, Capello Winery harvested 162 tons of Freedom grapes on 100 acres for the vintage year 2001. The winery fermented these grapes into 35,000 gallons of red wine and bottled almost 15,000 cases of wine. As evidence of the grape's acceptance and name validity, the petitioner submitted four research articles published by UC Davis referencing the Freedom variety. Freedom and its use as a rootstock are also mentioned in the “Oxford Companion to Wine” (Robinson, p. 595). According to the VIVC, 13 viticultural institutions in 9 countries are holding Freedom in their collections. Freedom is a recognized variety, and the petitioner has produced Freedom wine; consequently, TTB proposes to add Freedom to the list of grape variety names in § 4.91.

Peter Hemstad, research viticulturalist at the University of Minnesota, petitioned TTB to add “Frontenac” to the list of approved grape variety names. Frontenac, a red variety developed by the university's grape breeding program, is from a cross of the Vitis riparia # 89 variety and the Landot # 4511 variety. According to the petitioner, the variety is very cold hardy, productive, disease resistant, and thus suitable for cold climates. The petitioner states that Frontenac has been extensively planted throughout the upper Midwest, noting that a 2000 census conducted by the Minnesota Grape Growers Association found over 10,000 Frontenac vines growing in Minnesota. Included with the petition were letters from growers and wineries in Minnesota, Iowa, and Indiana that were successful in growing and using the Frontenac grape for winemaking. The variety is also widely available for sale at commercial vineyards. Based on the above evidence, TTB proposes to add Frontenac to the list of grape variety names in § 4.91.

Peter Hemstad of the University of Minnesota also petitioned TTB to add “Frontenac gris” to the list of approved grape variety names. A naturally occurring gray mutation of the Frontenac variety described above, Frontenac gris was found growing in the university's experimental vineyard in 1992. Although it is a new variety, the petitioner notes that 11 nurseries in 6 States are licensed to propagate Frontenac gris, and sales of 18,336 vines were reported in 2005. Two Minnesota vineyards that wrote to TTB in support of the petition reported having successfully grown the Frontenac gris variety and attested that some commercial wineries are bottling wine made from the Frontenac gris variety. Based on the above evidence, TTB proposes to add Frontenac gris to the list of grape variety names in § 4.91.

Bokisch Vineyards and Winery, Victor, California, petitioned TTB to add “Garnacha” to the list of approved grape variety names as a synonym for the currently listed name “Grenache.” According to “The Oxford Companion to Wine” (Robinson, p. 300), “Garnacha is the Spanish, and therefore original, name for the grape known in France and elsewhere as Grenache.” The petitioners state that the U.S. wine industry has accepted and has used the name Garnacha. The National Grape Registry maintained by UC Davis lists Garnacha as a common synonym for the Grenache noir grape. TTB also received a petition for the name “Grenache noir” ( see discussion below). Based on the submitted evidence, TTB proposes to add the name Garnacha to the list of grape variety names in § 4.91 to be identified with its synonyms, Grenache and Grenache noir.

Bokisch Vineyards and Winery petitioned TTB to add “Garnacha blanca” to the list of approved grape variety names. Garnacha blanca, a white Vitis vinifera grape, originated in Spain. TTB also received a petition for “Grenache blanc,” the French name for this grape ( see discussion below). The petitioner submitted a number of published references to Garnacha blanca, and stated that it and several other California wineries are producing wine from the variety. At the time of the petition, the winery planned to bottle 100 gallons of wine labeled as Garnacha blanca. Based on the submitted evidence, TTB proposes to add the name Garnacha blanca to the list of grape variety names in § 4.91 to be identified with its synonym Grenache blanc.

Stone House Vineyard, Mooers, New York, petitioned TTB to add “Geneva Red 7” to the list of approved grape variety names. Geneva Red 7 is a red hybrid grape variety developed by Cornell University. According to a Cornell University bulletin, this variety is highly productive and very winter hardy. The variety is listed on UC Davis's National Grape Registry and is commercially available from at least three nurseries. Geneva Red 7 is also known by the name “GR 7,” which is listed as the grape variety's prime name in the National Grape Registry. TTB is not proposing to add the name “GR 7” to its list of approved grape variety names because TTB does not believe consumers would recognize that name as a grape variety name. However, TTB welcomes comments on this issue. Based on the above evidence, TTB proposes to add Geneva Red 7 to the list of grape variety names in § 4.91.

Bokisch Vineyards and Winery petitioned TTB to add “Graciano” to the list of approved grape variety names. Graciano is a black Vitis vinifera variety thought to have originated in the Rioja region of Spain. The petitioner, who submitted a number of published references to the variety, states that it and at least three other California wineries are making wine from Graciano grapes. Also, TTB is aware of a Virginia winery producing wine from Graciano grapes. Based on the above evidence, TTB proposes to add Graciano to the list of grape variety names in § 4.91.

Tablas Creek Vineyard, Paso Robles, California, petitioned TTB to add “Grenache blanc” to the list of approved grape variety names. Grenache blanc, a white Vitis vinifera grape variety, originated in Spain, but is commonly associated with the Rhône Valley of France. TTB also received a petition for “Garnacha blanca,” the Spanish name for this grape variety ( see discussion above). A red version of the grape variety is already listed in § 4.91 as “Grenache.” The petitioner submitted numerous published references to books, periodicals, and Internet sites to establish the acceptance and validity of Grenache blanc. Tablas Creek Vineyard imported Grenache blanc into the New York State Agricultural Experiment Station, Geneva, New York, in 1992. After indexing, the variety was declared virus free and shipped bare root to the petitioner in February 1995. Tablas Creek Vineyard started planting Grenache blanc in 1996, and by the time of the petition had planted 4.73 acres of the variety. The petitioner reports the vineyard has supplied Grenache blanc vines and budwood to four other California growers, including the development vineyard at UC Davis. Based on the evidence presented by the petitioner, TTB proposes to add Grenache blanc to the list of grape variety names in § 4.91 to be identified with its synonym Garnacha blanca.

The Wine Institute, a trade association of California wineries, petitioned TTB to add the name “Grenache noir” to the list of approved grape variety names as a synonym for the currently listed “Grenache.” The petitioner submitted numerous published references to the name Grenache noir, many of them using the name interchangeably with Grenache. Those references included nursery catalogs, wine reference books, and the California Grape Crush Report. FPS, UC Davis, identifies the variety as Grenache noir in its list of registered grape selections. The National Grape Registry maintained by UC Davis lists Grenache noir as the variety's prime name and lists Garnacha and Grenache as common synonyms. If Grenache noir and Garnacha ( see above) are approved, three names for one variety will appear in § 4.91. TTB believes that the evidence warrants the approval of Grenache noir and Garnacha, but TTB welcomes comments on the issue. Based on the above evidence, TTB proposes to add the name “Grenache noir” to the list of grape variety names in § 4.91 to be identified with its synonyms “Grenacha” and “Grenache.”

Reustle Vineyards & Winery LLC, Umpqua, Oregon, petitioned TTB to add “Grüner Veltliner” to the list of approved grape variety names. Grüner Veltliner is a well-documented, white Vitis vinifera variety. Although the most widely grown grape in Austria, it is relatively new to the United States. The petitioner, who produced 70 cases of Grüner Veltliner wine in vintage year 2005, states that other wineries in Oregon and Washington are also growing the variety. Grüner Veltliner vines are available from a number of commercial vineyards in the United States. Based on the above evidence, TTB proposes to add Grüner Veltliner to the list of grape variety names in § 4.91.

Sue Gorton, Cougar Creek Wine, Fall City, Washington, petitioned TTB to add “Interlaken” to the list of approved grape variety names. Interlaken, a white hybrid grape variety, is most often used for table grapes or for raisins, but is sometimes used to produce a white wine. The petitioner submitted a number of references to the variety from academic and nursery Web sites as evidence of the name's acceptance and validity. She also noted that, prior to the establishment of her winery, her Interlaken wine won the Best of Show award for homemade wines at the Evergreen State Fair in Monroe, Washington. The above evidence satisfies the provisions of § 4.93, and TTB proposes to add Interlaken to the list of grape variety names in § 4.91.

Peter Hemstad of the University of Minnesota petitioned TTB to add the name “La Crescent” to the list of approved grape variety names. La Crescent is a white hybrid variety that the university's grape breeding program developed. According to the petitioner, 12 nurseries in 6 States are licensed to propagate the variety. He further reports that 22,678 vines were sold in 2005, or enough for about 35 acres. Two Minnesota vineyards wrote to TTB in support of the petition, claiming to have successfully grown La Crescent grapes and attesting that some commercial wineries are bottling wine made from the variety. Based on this evidence, TTB proposes to add La Crescent to the list of grape variety names in § 4.91.

Piedra Creek Winery, San Luis Obispo, California, petitioned TTB to add “Lagrein” to the list of approved grape variety names. Lagrein is a red Vitis vinifera variety that originated in Italy. As evidence of the variety's acceptance and use in California, the petitioner submitted a table from the 2003 Final Grape Crush Report issued by the California Department of Food and Agriculture. The table, entitled “Tons of Grapes Crushed by California Processors,” shows that 314.1 tons of Lagrein grapes were crushed in California that year. Lagrein vines may be obtained from FPS at UC Davis and from commercial nurseries. Based on this evidence, TTB proposes to add Lagrein to the list of grape variety names in § 4.91.

The Minnesota Grape Growers Association petitioned TTB to add “Louise Swenson,” a white hybrid grape variety, to the list of approved grape variety names. This grape, developed by Elmer Swenson, is a cross between E.S. 2-3-17 grapes and Kay Gray grapes. Like other grapes that Mr. Swenson developed, this variety was bred to withstand the harsh winters of the upper Midwest. The petitioner submitted evidence that the variety shows little or no winter injury even in temperatures reaching minus 40 degrees Fahrenheit. The petitioner further states that Louise Swenson is grown in several upper Midwestern States and in New York. Included with the petition were letters from four Minnesota growers and wineries claiming to have successfully grown and/or used Louise Swenson grapes for winemaking. Based on the above evidence, TTB proposes to add Louise Swenson to the list of grape variety names in § 4.91.

Chateau Z Vineyard, Monroe, Virginia, petitioned TTB to add “Lucie Kuhlmann” to the list of approved grape variety names. Lucie Kuhlmann, a French red wine hybrid, was bred by Eugene Kuhlmann in Alsace in the early 20th century. The National Germplasm Repository, located in Geneva, New York, maintains this variety in its collection and distributes cuttings. The petitioner, a grower of Lucie Kuhlmann, reports producing wine from the variety in 2006 and 2007. According to evidence submitted by the petitioner, the variety is also grown and used for winemaking in Colorado. Although a majority of reference sources use the name “Lucie Kuhlmann” for this variety, one source (USDA, ARS, National Genetic Resources Program) identifies it by the name “Kuhlmann 149-3.” TTB is not proposing to include Kuhlmann 149-3 in the list of grape variety names because it believes that Lucie Kuhlmann is used more frequently; however, TTB welcomes comments on this issue. Based on the above, TTB proposes to add Lucie Kuhlmann to the list of grape variety names in § 4.91.

Acorn Winery, Healdsburg, California, petitioned TTB to add “Mammolo” to the list of approved grape variety names. Mammolo is a red Vitis vinifera grape variety that has long been grown in central Italy. In Italy, it is an authorized component of Chianti (DOC). According to the petitioner, Mammolo has been grown for decades in California, though on a small scale. Acorn Winery has grown Mammolo since 1992 from budwood obtained from the National Germplasm Repository, located at the University of California in Davis. The winery has made wine from that variety and blended it with its Sangiovese wine, as is generally done in Italy. The petitioner notes that other California growers of Sangiovese have contacted Acorn Winery and requested Mammolo budwood. Based on the above evidence, TTB proposes to add Mammolo to the list of grape variety names in § 4.91.

The petitioner also requested the approval of the synonym “Mammolo Toscano.” Toscano refers to the Tuscany region of Italy where the variety is commonly grown. Based on the submitted evidence, TTB does not believe that Mammolo Toscano is in common enough usage to warrant its approval for the designation of American wines, but TTB welcomes comments on the issue.

Peter Hemstad of the University of Minnesota petitioned TTB to add the name “Marquette” to the list of approved grape variety names. Marquette, a red hybrid developed by the University of Minnesota grape breeding program, was introduced in 2006 and has been granted Patent # 19579. According to the petitioner, 12 nurseries in 5 States are licensed to propagate the variety. He further reports that 125,776 vines were sold in 2006-8, or enough for roughly 193 acres of vine plantings. Based on this evidence, TTB proposes to add Marquette to the list of grape variety names in § 4.91.

Bokisch Vineyards and Winery, Victor, California, petitioned TTB to add “Monastrell” to the list of approved grape variety names as a synonym for the currently listed names “Mourvèdre” and “Mataro.” The petitioner submitted a number of published references that note that Monastrell is the Spanish name for this grape variety. The variety, in fact, originated in Spain where it is the second-most-planted red grape. The National Grape Registry maintained by UC Davis lists Monastrell as the variety's prime name and lists Mourvèdre and Mataro as common synonyms. At the time of the petition, the petitioner stated it planned to bottle 120 gallons of 2007 and 2008 Monastrell wine. If Monastrell is approved, three names for this variety will appear in § 4.91. TTB believes that the evidence warrants the approval of Monastrell, but TTB welcomes comments on the issue. Based on the above evidence, TTB proposes to add Monastrell to the list of grape variety names in § 4.91, to be identified with its synonyms Mourvèdre and Mataro.

Avanguardia Wines petitioned TTB to add “Montepulciano” to the list of approved grape variety names. Montepulciano is a red Vitis vinifera variety widely planted in the Abruzzi region of Italy. The petitioner submitted published references to the Montepulciano grape and documented having obtained the vines of that grape from FPS, UC Davis. The variety is also available from at least three commercial nurseries in California. The petitioner reports having made wine from Montepulciano grapes and having blended it with Sangiovese wine. Based on the above evidence, TTB proposes to add Montepulciano to the list of grape variety names in § 4.91.

Edna Valley Vineyard, San Luis Obispo, California, petitioned TTB to add the name “Moscato greco” to the list of approved grape variety names as a synonym for the currently listed “Malvasia bianca” variety. As evidence, the petitioner submitted a letter in which Dr. Carole Meredith of the Viticulture and Enology Department at UC Davis discusses DNA research into the identity of Malvasia bianca grown in California. According to Dr. Meredith, it has been known for years that the Malvasia bianca grown in California is not the same as the most common types of Malvasia bianca grown in Italy. The DNA profile of Malvasia bianca vines from both FPS and a large commercial California vineyard was analyzed by UC Davis. The DNA profile of all the analyzed vines matched that of Moscato greco, a rare, Muscat-flavored variety from the Piedmont region of Italy. That grape, which according to Dr. Meredith has no official correct name in Italy, is also commonly called Malvasia greca and Malvasia bianca di Piemonte. Dr. Meredith stated that the variety had a definite muscat taste.

TTB contacted Dr. Meredith directly about this letter and asked if Moscato greco and Malvasia bianca can accurately be called synonyms. She stated that the names are not synonymous in Italy because there the name “Malvasia bianca” is used for several different varieties. However, the DNA evidence from California vines indicates that California Malvasia bianca is indeed Moscato greco. For this reason, Dr. Meredith stated it is accurate to consider them synonymous when applied to California grapes; however, the name “Moscato greco” could be considered a more specific name that will better identify Muscat grapes for the consumer. She stated that the name “Malvasia bianca” should be retained because it has long been used in California to identify this variety. In her opinion, winemakers should therefore have the option of using either name.

TTB did not approve this petition by letter, believing that this was an issue warranting public comment. TTB is therefore requesting comments on whether Moscato greco should be listed as a synonym for Malvasia bianca because of the long usage of the latter name in California, or if the Malvasia bianca should be changed to “California Malvasia bianca.” TTB is also requesting comments on whether, alternatively, Moscato greco should be listed as a separate variety.

Avanguardia Wines petitioned TTB to add the name “Negrara” to the list of approved grape variety names. Negrara is a red Vitis vinifera variety from the Veneto region of Italy. In Italy, it is one of the authorized components for use in Valpolicella (DOC). The petitioner submitted published references to Negrara and documented having obtained the vines for Negrara from FPS, UC Davis. The petitioner reports making wine from Negrara grapes and blending it with Sangiovese wine. Based on the petitioner's evidence, TTB proposes to add Negrara to the list of grape variety names in § 4.91.

Chiarito Vineyard, Ukiah, California, petitioned TTB to add “Negro Amaro” to the list of approved grape variety names. Negro Amaro is a red Vitis vinifera variety that originated in the Apulia region of Italy. To support the grape's consumer acceptance and use in California, the petitioner submitted a table from the Final Grape Crush Report for 2003 issued by the California Department of Food and Agriculture. The table shows that 0.6 and 2.4 tons of Negro Amaro grapes were crushed in the State in 2003 and 2002, respectively. The petitioner also submitted letters from two viticultural experts attesting that the vines from which Chiarito Vineyard obtained its Negro Amaro grapes have been determined to be true to type. In addition, the petitioner submitted evidence that at least two other California wineries are making wine from Negro Amaro grapes. Based on the petitioner's evidence, TTB proposes to add Negro Amaro to the list of grape variety names in § 4.91.

Chiarito Vineyard also petitioned TTB to add “Nero d'Avola” to the list of approved grape variety names. Nero d'Avola is a red Vitis vinifera variety originally from Sicily, now also grown in California. As part of the petition, the petitioner submitted letters from two viticultural experts attesting that they have determined that the vines from which Chiarito Vineyard obtained its grapes are true to type. In addition, the petitioner submitted evidence that at least two other California wineries are making wine from Nero d'Avola grapes. Based on the above evidence, TTB proposes to add Nero d'Avola to the list of grape variety names in § 4.91.

Dr. Bruce Reisch, Professor, Department of Horticultural Sciences, New York State Agricultural Experiment Station, Cornell University, petitioned to add “Noiret,” a red hybrid variety, to the list of approved grape variety names. The Noiret variety was developed at Cornell from a cross made in 1973 between NY65.0467.08 (NY33277 x Chancellor) grapes and Steuben grapes. According to a Cornell bulletin, this variety is moderately winter hardy, and produces wines that have good tannin structure and that are free of the hybrid aromas typical of many other red hybrid grapes. Noiret vines are currently available at commercial vineyards, and virus-tested cuttings may be obtained from FPS, UC Davis. In addition, the petitioner stated that wineries in New York, Pennsylvania, Indiana, and elsewhere are making varietal wines from Noiret grapes. Based on the above evidence, TTB proposes to add Noiret to the list of grape variety names in § 4.91.

The David Coffaro Winery petitioned TTB to add “Peloursin” to the list of approved grape variety names. Peloursin is a red Vitis vinifera variety of French origin that has long been grown in California, though often misidentified as Petite Sirah. In a study conducted by UC Davis in the 1990's, DNA analysis of commercial vineyards in California found that some vines labeled as “Petite Sirah” were in fact the Peloursin grape variety. ( See “The Identity and Parentage of the Variety Known in California as Petite Sirah,” by Carole P. Meredith, John E. Bowers, Summaira Riaz, Vanessa Handley, Elizabeth B. Bandman, and Gerald S. Dangl, Department of Viticulture and Enology, University of California, Davis, American Journal of Enology and Viticulture, vol. 50, no. 3, 1999.) Using the same DNA analysis, UC Davis identified grapevines from the petitioner's vineyard as Peloursin. The petitioner reported having produced several wines from Peloursin grapes, and would like to label his wine with the Peloursin name. Based on the petitioner's evidence, TTB proposes to add Peloursin to the list of grape variety names in § 4.91.

Acorn Winery, Healdsburg, California, petitioned TTB to add “Petit Bouschet” to the list of approved grape variety names. Petit Bouschet, a red Vitis vinifera variety, was created in France in 1824 by Louis Bouschet as a cross of Aramon grapes and Teinturier du Cher grapes. The petition included several pieces of evidence showing international acceptance of this grape and its name. According to historical references that the petitioner cited, the Petit Bouschet variety has been grown in California since the 1880's. George Husmann, influential in California's early winegrape industry, wrote in 1895 that Petit Bouschet was “especially cultivated [in California] because it contains a great amount of color and tannin, which makes it valuable for blending” (“American Grape Growing and Winemaking,” 1921, p. 201). The petitioner states that Petit Bouschet's popularity was eclipsed by its progeny, Alicante Bouschet, produced in 1865 as a cross of Petit Bouschet grapes and Grenache grapes. When Alicante Bouschet became available in California and demand exceeded supply, nurseries sold it mixed with Petit Bouschet. As a result, California Petit Bouschet is often found in vineyards mixed with Alicante Bouschet vines. The petitioner states that while Petit Bouschet is not usually bottled as a varietal wine, it continues to be blended into many California wines. Petit Bouschet vines are also available at FPS, UC Davis, and at commercial vineyards. Based on the petitioner's evidence, TTB proposes to add Petit Bouschet to the list of grape variety names in § 4.91.

Chrysalis Vineyards, Middleburg, Virginia, petitioned TTB to add “Petit Manseng,” a white Vitis vinifera grape with origins in southwestern France, to the list of approved grape variety names. As evidence of the acceptance of this grape and its name, the petitioner submitted numerous published references to the Petit Manseng grape variety. The petitioner also submitted letters from two professors at Virginia Polytechnic Institute and State University, attesting that Petit Manseng is grown in Virginia. In 1998, Chrysalis Vineyards planted Petit Manseng cuttings obtained from a commercial nursery in New York and has since bottled and sold wine made from these grapes. The petitioner reports having received numerous requests for Petit Manseng cuttings from growers in Virginia and other States. Based on the petitioner's submitted evidence, TTB proposes to add Petit Manseng to the list of grape variety names in § 4.91.

P.S. I Love You, Inc. (PSILY), a self-described Petite Sirah advocacy organization based in California, petitioned TTB to recognize the grape variety names “Petite Sirah” and “Durif” as synonyms. Both names are currently listed in § 4.91 as separate grape varieties.

As evidence that the two names refer to the same grape, the petitioner submitted an article concerning DNA research on California Petite Sirah vines conducted by Dr. Carole Meredith and others (“The Identity and Parentage of the Variety Known in California as Petite Sirah,” Meredith et al. ). After comparing California Petite Sirah plants to French Durif plants, Dr. Meredith concluded that the majority of vines labeled “Petite Sirah” were genetically identical to Durif. DNA marker analysis of 13 Petite Sirah vines from the UC Davis private collection identified 9 of the vines as Durif. DNA testing of 53 commercial Petite Sirah vines from 26 private vineyards identified 49 of these vines as Durif. The testing found the remaining vines to be Peloursin ( see above), Syrah, or Pinot Noir. Dr. Meredith attributed the misidentification of those three grape vines to decades-old labeling and planting errors. PSILY also submitted a June 3, 2009, letter from Dr. Meredith supporting its current petition.

To demonstrate that this scientific research is widely accepted, the petitioner cited a number of nurseries that use the names Petite Sirah and Durif synonymously. The petitioner also noted that two wine-related Web sites, Professional Friends of Wine ( http://www.winepros.org ) and Appellation America ( http://wine.appellationamerica.com ), refer to the two names as synonyms. The National Grape Registry maintained by UC Davis also lists Petite Sirah and Durif as synonyms.

The petitioner also included a letter from Dr. Deborah Golino, Director of Foundation Plant Services (FPS), UC Davis, regarding FPS' naming conventions for Petite Sirah. Because of historical confusion about the use of the name “Petite Sirah,” FPS uses the name “Durif” to identify and distinguish Petite Sirah/Durif vines from Peloursin vines that were earlier mistakenly labeled “Petite Sirah.” Because § 4.91 currently does not recognize Petite Sirah and Durif as synonyms, vineyards purchasing vines labeled as “Durif” from FPS are unable to market them as “Petite Sirah,” the name more widely recognized in the United States.

TTB's predecessor agency, the Bureau of Alcohol, Tobacco and Firearms (ATF), previously proposed recognizing Petite Sirah and Durif as synonyms in Notice No. 941 published in the Federal Register (67 FR 17312) on April 10, 2002. In support of this proposal, Notice No. 941 cited Dr. Carole Meredith's DNA research, discussed above. In Notice No. 941, ATF also proposed to recognize the names “Zinfandel” and “Primitivo” as synonyms, also based on Dr. Meredith's research.

ATF received one supporting comment and one neutral comment in response to the Petite Sirah/Durif proposal in Notice No. 941. However, because of the length of time that has elapsed since publication of Notice No. 941, TTB has determined that further public comment on this proposal would be appropriate.

Based on the above-described evidence, TTB proposes to recognize Petite Sirah and Durif as synonymous names in § 4.91.

Tablas Creek Vineyards petitioned TTB to add “Piquepoul Blanc” and its synonym “Picpoul” to the list of approved grape variety names. Piquepoul Blanc is a white Vitis vinifera variety associated with the Rhône Valley of France. In France, it is one of the varieties authorized for use in Châteauneuf-du-Pape (Appellation d'origine contrôlée, (AOC), a category in France's wine designation system). As evidence of the grape's acceptance and name validity, the petitioner submitted numerous published references to the names “Piquepoul Blanc” and “Picpoul” from books, periodicals, and Internet sites. In 1995, Tablas Creek Vineyards imported Piquepoul Blanc vines into the New York State Agricultural Station, Geneva, New York. After indexing, the vines were declared virus free and shipped bare root to the petitioner in February 1998. In 2000, Tablas Creek started planting Piquepoul Blanc, and by the time of the petition had planted one-half acre of the variety. The petitioner reports having supplied Piquepoul Blanc budwood and vines to three other California growers, including the development vineyard at UC Davis. Based on the evidence that the petitioner presented and because both names are used extensively in the references that the petitioner submitted, TTB proposes to add both Piquepoul Blanc and Picpoul to the list of grape variety names in § 4.91.

The Minnesota Grape Growers Association petitioned TTB to add “Prairie Star” to the list of approved grape variety names. Prairie Star, a white hybrid variety, was developed by Elmer Swenson as a cross between E.S. 2-7-13 grapes and E.S. 2-8-1 grapes. The petitioner provided evidence that the variety is very winter hardy and suffers little damage in all but the harshest winters (minus 40 degrees Fahrenheit and below). The petitioner further states that Prairie Star is grown in several upper Midwestern States and in New York. Additionally, letters from four Minnesota growers and wineries claiming success in growing and/or using Prairie Star in winemaking were included with the petition. Based on the above evidence, TTB proposes to add Prairie Star to the list of grape variety names in § 4.91.

Clayhouse Vineyard, Paso Robles, California, petitioned TTB to add “Princess” to the list of approved grape variety names. Princess is a white Vitis vinifera grape developed by the USDA Agricultural Research Service in Fresno, California. Although it was originally named “Melissa,” the name was changed to Princess because a grocery chain had previously trademarked the name Melissa. The variety is available from a number of commercial nurseries and, according to the 2007 California Grape Crush Report, 2,651.7 tons of Princess grapes were crushed in California in 2007. Although this grape is most frequently used as a table grape, the petitioner used it to produce about 1,875 gallons of wine in 2007.

Although TTB believes that the petition contains sufficient evidence under § 4.93 for us to approve the name “Princess,” TTB opted to propose adding the name to the list of grape variety names through rulemaking action rather than to approve it by letter due to potential conflicts with existing certificates of label approval (COLAs). An electronic search of TTB's COLAs online database for the word “Princess” produced 67 results, and TTB found five current COLAs that use the word “Princess” on a wine label as part of a fanciful name. These fanciful names are: “Brut Princess Cruises” on a domestic champagne; “Princess Foch” on a red wine; “Princess Peach” on a flavored wine; “Little Princess” on a white wine; and “The Princess” on a domestic champagne. These labels do not also contain grape varietal designations. The use of a grape variety name in a brand name may be misleading and prohibited under § 4.39. If the name Princess is approved as a grape varietal name, these labels may be misleading. Because of this potentially adverse impact on current labels, TTB believes that the label holders should be given an opportunity to comment on this proposal prior to any administrative action that would add the grape variety to the list of approved names in § 4.91.

OOVVDA Winery in Springfield, Missouri, petitioned TTB to add “Reliance” to the list of approved grape variety names. Reliance, a cross of Ontario and Suffolk Red grapes, is a red grape developed at the University of Arkansas in 1984. The petitioner states that it made and sold Reliance wine in 2005 and 2006. According to UC Davis's National Grape Registry, this variety is commercially available at four nurseries in New York and Arkansas. Also, TTB is aware of at least one other winery selling a wine made from Reliance grapes. Based on this evidence, TTB proposes to add Reliance to the list of grape variety names in § 4.91.

Avanguardia Wines petitioned TTB to add “Rondinella” to the list of approved grape variety names. Rondinella is a red Vitis vinifera variety grown mainly in the Veneto region of Italy. In Italy, it is one of the varieties authorized for use in Valpolicella (DOC). The petitioner submitted published references to the Rondinella grape and documented having obtained Rondinella vines from FPS, UC Davis. The petitioner claims having made wine from Rondinella grapes. Based on the above evidence, TTB proposes to add Rondinella to the list of grape variety names in § 4.91.

The Minnesota Grape Growers Association petitioned TTB to add “Sabrevois” to the list of approved grape variety names. A red hybrid variety, Sabrevois was developed by Elmer Swenson as a cross between E.S. 283 grapes and E.S. 193 grapes. The petitioner submitted evidence that the variety is very winter hardy and suffers little damage in all but the harshest winters (minus 31 degrees Fahrenheit). The petitioner further states that Sabrevois is grown in several upper Midwestern States and in New York. Letters from four Minnesota growers and wineries claiming success in growing and/or using Sabrevois in winemaking were included with the petition. Based on the above evidence, TTB proposes to add Sabrevois to the list of grape variety names in § 4.91.

Witch Creek Winery, Carlsbad, California, petitioned TTB to add “Sagrantino” to the list of approved grape variety names. Sagrantino is a red Vitis vinifera grape from the Umbria region of Italy, where it is most prominently used in Sagrantino di Montefalco (DOC). However, a limited amount of Sagrantino is also grown in the U.S. Recent DNA testing by UC Davis found that a vine in the FPS collection originally labeled as “Sangiovese” is actually Sagrantino. In addition, the petitioner states that it and eight other U.S. wineries are growing and/or producing wine from Sagrantino. Based on the above evidence, TTB proposes to add Sagrantino to the list of grape variety names in § 4.91.

The Minnesota Grape Growers Association petitioned TTB to add “St. Pepin” to the list of approved grape variety names. A white hybrid variety, St. Pepin was developed by Elmer Swenson as a cross between E.S. 114 grapes and Seyval grapes. The petitioner submitted evidence that the variety can withstand temperatures to minus 25 °F, and thus is suitable for use in many northern growing regions. The petitioner states that St. Pepin is grown in several upper Midwestern States and in New York. Letters from five growers and wineries from Minnesota and Iowa claiming success in growing and/or using St. Pepin in winemaking were included with the petition. Based on the above evidence, TTB proposes to add St. Pepin to the list of grape variety names in § 4.91.

Lucian Dressel of Carrollton, Illinois, and Scott Toedebusch of Augusta, Missouri, submitted a petition to add “St. Vincent” to the list of approved grape variety names. St. Vincent is a red hybrid variety that originated in Missouri in the 1970s from what is believed to be a chance crossing in Mr. Dressel's vineyard in Augusta, Missouri. The petitioners note that St. Vincent is winter hardy and produces wine that resembles Pinot Noir, which they believe is one of its parents. The petitioners state that St. Vincent has become a standard grape in Missouri, and they submitted evidence showing that it is grown and used for winemaking in several Midwestern and Northeastern States. Based on this evidence, TTB proposes to add St. Vincent to the list of grape variety names in § 4.91.

Chimney Rock Winery, Napa, California, petitioned TTB to add “Sauvignon gris” to the list of approved grape variety names. Sauvignon gris is a pink-skinned mutation of the Sauvignon blanc grape. The petitioner submitted a report from FPS, UC Davis, stating that two professors of viticulture have identified three selections of Sauvignon gris at FPS. The report also states that FPS has sold Sauvignon gris propagation materials to 13 commercial nurseries and vineyards. Based on the above evidence, TTB proposes to add Sauvignon gris to the list of grape variety names in § 4.91.

Philip Favreau of Mooers, New York, petitioned TTB to add “Valiant” to the list of approved grape variety names. Valiant, a hybrid variety, was developed at South Dakota State University. A crossing of the Fredonia grape variety and the Wild Montana grape variety, it is reportedly cold hardy to temperatures of minus 70 degrees Fahrenheit. Valiant vines are available at commercial nurseries, and wineries in several Northern and Midwestern States are producing wine from the variety. Based on this evidence, TTB proposes to add Valiant to the list of grape variety names in § 4.91.

Dr. Bruce Reisch, Professor, Department of Horticultural Sciences, New York State Agricultural Experiment Station, Cornell University, petitioned TTB to add “Valvin Muscat” to the list of approved grape variety names. Valvin Muscat, a white hybrid variety developed at Cornell University, resulted from a crossing made in 1962 between Couderc 299-35 grapes (known as “Muscat du Moulin”) and Muscat Ottonel grapes. A Cornell bulletin states that this variety is more winter hardy and disease resistant than muscat grapes that are pure Vitis vinifera. Valvin Muscat vines are currently available at commercial vineyards, and virus-tested cuttings are available at FPS, UC Davis. In addition, the petitioner stated that wineries in New York, Pennsylvania, Indiana, and elsewhere are making varietal wines from Valvin Muscat. Based on the above evidence, TTB proposes to add Valvin Muscat to the list of grape variety names in § 4.91.

Arbor Hill Grapery/Winery, Naples, New York, petitioned TTB to add “Vergennes” to the list of approved grape variety names. Vergennes, a Vitis labrusca grape variety, was developed in Vergennes, Vermont, in 1874. A red grape, it is used to produce a white wine. The petitioner documented that the variety has been grown commercially in New York for at least 100 years. In addition, the petitioner reports having made and sold Vergennes wine for 3 years with good consumer acceptance. Based on the petitioner's evidence, TTB proposes to add Vergennes to the list of grape variety names in § 4.91.

Santa Lucia Winery, Inc., petitioned TTB to add “Vermentino” to the list of approved grape variety names. Vermentino is a white Vitis vinifera grape commonly associated with Italy, particularly the island of Sardinia, and with the French island of Corsica. As evidence of the grape's consumer acceptance and name validity in the United States, the petitioner submitted numerous published references to Vermentino, including retailers' price lists, wine reviews, restaurant wine lists, magazine articles, and excerpts from wine reference books. As evidence of the grape's usage in California, the petitioners submitted a report published in 2002 by the Paso Robles Vintners and Growers Association stating that 1.77 acres of Vermentino was being grown in the Paso Robles area. Santa Lucia Winery planted its Vermentino in 1997 using vines purchased from Tablas Creek Vineyard, Paso Robles, and made wine from its first harvest in 2001. The petitioner included a letter from Tablas Creek Winery stating that three other California wineries purchased Vermentino vines from the winery between 2000 and 2002. Based on the above evidence, TTB proposes to add Vermentino to the list of grape variety names in § 4.91.

Chateau Z Vineyard, Monroe, Virginia, petitioned TTB to add “Wine King” to the list of approved grape variety names. Wine King, a hybrid red wine variety, was developed in Texas in 1898 by Thomas Volnay Munson. The National Germplasm Repository located in Geneva, New York, maintains this variety in its collection and distributes cuttings. The petitioner, a grower of Wine King, reports producing wine from the variety in 2006 and 2007. The winery further states that it has shipped cuttings of the variety to three other wineries in Virginia and Kentucky. Based on the petition evidence, TTB proposes to add Wine King to the list of grape variety names in § 4.91.

Lucian Dressel of Davis Viticultural Research, Carrollton, Illinois, petitioned TTB to add “Zinthiana” to the list of approved grape variety names. Zinthiana is a red variety bred by the petitioner from a cross of Zinfandel and Norton (Cynthiana) made in 2000. The petitioner has applied for a patent for Zinthiana and has trademarked the name. According to the petitioner, 5 growers in 5 States grow about 13 acres of the variety. The Mary Michelle Winery in Carrollton, Illinois, has made wine from Zinthiana since 2006. Two other wineries plan to make wine from the variety in 2009, according to the petitioner. Based on this evidence, TTB proposes to add Zinthiana to the list of grape variety names in § 4.91.

Mokelumne Glen Vineyards, Lodi, California, petitioned TTB to add “Zweigelt” to the list of approved grape variety names. Zweigelt was developed in Austria in 1922 as a cross of St. Laurent and Blaufränkisch, and is now Austria's most widely planted red grape. The petitioner, who obtained its Zweigelt vines from a Virginia nursery, has grown the variety since 2001. The petitioner states it has sold wine made from the grape and plans to expand its use of it. The petitioner reports that a local nursery is presently sold out of Zweigelt vines and that other American vineyards are also growing the variety. Based on the above evidence, TTB proposes to add Zweigelt to the list of grape variety names in § 4.91.

The § 4.91 list is currently structured as a list of prime grape names. Where a synonym is specified for a grape varietal, the synonym appears in parenthesis after the prime grape name. In most cases, the synonym does not have its own listing. For example, the name “Black Malvoisie” is only listed in § 4.91 as a synonym after the variety's prime name, “Cinsaut.” If the reader does not know that “Black Malvoisie” is a synonym for “Cinsaut,” the reader may have difficulty determining if “Black Malvoisie” is an approved grape variety name. TTB believes that the current structure poses challenges for the reader in identifying approved names. Moreover, it may suggest that synonyms are in some way not as valid as grape names as the prime names when, in fact, every name in § 4.91, whether a prime name or a synonym, is equally acceptable for use as a type designation on an American wine label.

Because no distinction should exist between prime names and synonyms for the purposes of labeling, TTB proposes to eliminate the word “prime” from the heading of § 4.91, as well as from the second sentence of the introductory text of that section, and list each synonym as if it were a prime name. As a result, § 4.91 would simply set forth a list of grape names that have been approved as type designations for American wines, followed, in parentheses, by the approved synonyms for that name.

Finally, TTB has become aware of a technical error in § 4.91, that is, the grape variety name “Agawam” is currently misspelled as “Agwam.” TTB proposes to correct this error in this document. TTB also proposes to allow the use of the spelling “Agwam” for a period of one year after publication of a final rule so that anyone holding a COLA with the misspelling has sufficient time to obtain new labels. This allowance appears as a new paragraph (d) to proposed 27 CFR 4.92. If this proposal is adopted as a final rule, at the end of the one year period, holders of approved “Agwam” labels must discontinue their use as their certificates of label approval will be revoked by operation of the final rule ( see 27 CFR 13.51 and 13.72(a)(2)). TTB believes the one year period will provide such label holders with adequate time to use up their supply of previously approved “Agwam” labels.

TTB requests comments from members of the public, particularly any person whose use of an approved label might be impacted by final approval of the grape variety names that are the subject of this proposed rule, for example, label holders with brands that include any of these names, such as “Princess.” TTB is interested in comments that might bring into question whether an added grape name is accurate and appropriate for the designation of American wines. TTB is also interested in comments concerning the grape names discussed above that TTB did not approve by letter: Canaiolo Nero, Mammolo Toscano (as a synonym for Mammolo), Moscato Greco, and Princess, as well as TTB's proposal to recognize as synonyms two names currently on the list in § 4.91, Petit Sirah and Durif. TTB also invites comments on whether it is still necessary to distinguish between prime names and synonyms for purposes of grape variety names for American wine. Finally, TTB invites comment on any other issue raised by this notice of proposed rulemaking, including, but not limited to, the proposed technical correction of the grape variety name “Agawam” and the proposed one year use-up period from the publication of the final rule for any existing labels that use the name “Agwam”. Please support your comment with specific information about the grape varietal name in question, as appropriate.

You may submit comments on this notice by using one of the following three methods:

• Federal e-Rulemaking Portal: You may send comments via the online comment form linked to this notice in Docket No. TTB-2011-0002 on “Regulations.gov,” the Federal e-rulemaking portal, at http://www.regulations.gov. A link to the docket is available under Notice No. 116 on the TTB Web site at http://www.ttb.gov/wine/wine-rulemaking.shtml. Supplemental files may be attached to comments submitted via Regulations.gov. For information on how to use Regulations.gov, click on the site's Help or FAQ tabs.

• U.S. Mail: You may send comments via postal mail to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

• Hand Delivery/Courier: You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200E, Washington, DC 20005.

Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 116 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. TTB does not acknowledge receipt of comments and considers all comments as originals.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via Regulations.gov, please include the entity's name in the “Organization” blank of the comment form. If you comment via postal mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or that is inappropriate for public disclosure.

On the Federal e-rulemaking portal, Regulations.gov, TTB will post, and the public may view, copies of this notice, selected supporting materials, and any electronic or mailed comments received about this proposal. A direct link to the Regulations.gov docket containing this notice and the posted comments received on it is available on the TTB Web site at http://www.ttb.gov/wine/wine-rulemaking.shtml under Notice No. 116. You may also reach the docket containing this notice and the posted comments received on it through the Regulations.gov search page at http://www.regulations.gov. All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. TTB may omit voluminous attachments or material that it considers unsuitable for posting.

You and other members of the public may view copies of this notice, all related petitions, maps and other supporting materials, and any electronic or mailed comments TTB receives about this proposal by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies for 20 cents per 8.5 x 11-inch page. Contact TTB's information specialist at the above address or by telephone at 202-453-2270 to schedule an appointment or to request copies of comments or other materials.

TTB certifies under the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this proposed rule will not have a significant economic impact on a substantial number of small entities. The decision of a grape grower to petition for a grape variety name approval, or the decision of a wine bottler to use an approved name on a label, is entirely at the discretion of the grower or bottler. This regulation does not impose any new reporting, recordkeeping, or other administrative requirements. Accordingly, a regulatory flexibility analysis is not required.

This proposed rule is not a significant regulatory action as defined by Executive Order 12866. Therefore, it requires no regulatory assessment.

Jennifer Berry of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.

For the reasons discussed in the preamble, TTB proposes to amend 27 CFR part 4 as set forth below:

In the Rules and Regulations section of this issue of the Federal Register , we are issuing a temporary rule reissuing and updating regulatory amendments to implement certain provisions of the Uruguay Round Agreement Act of 1994 (URA) (Pub. L. 103-465, 108 Stat. 4809), and the 2005 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA) (Pub. L. 109-59, 119 Stat. 1144). The reissued temporary rule updates and reissues Alcohol and Tobacco Tax and Trade Bureau (TTB) regulations pertaining to the semimonthly payments of Federal excise tax on distilled spirits, wine, beer, tobacco products, and cigarette papers and tubes. The temporary rule also reissues temporary regulations regarding quarterly payment of excise tax for small alcohol excise taxpayers. The regulations contained in the temporary rule and proposed in this document replace temporary regulations issued under T.D. ATF-365 and T.D. TTB-41, which were originally published in 1995 and 2006, respectively.

The temporary regulations involve amendments to parts 19, 24, 25, 26, 40, 41, and 70 of the TTB regulations (27 CFR parts 19, 24, 25, 26, 40, 41, and 70). The text of the temporary regulations serves as the text of these proposed regulations. The preamble to the temporary regulations explains the proposed regulations.

We invite comments from interested members of the public on this proposed rulemaking. Please submit your comments by the closing date shown above in this notice. Your comments must reference Notice No. 115 and include your name and mailing address. Your comments also must be made in English, be legible, and be written in language acceptable for public disclosure. We do not acknowledge receipt of comments, and we consider all comments as originals.

You may submit comments on this notice by one of the following three methods:

• Federal e-Rulemaking Portal: You may electronically submit comments on this notice through “Regulations.gov,” the Federal e-rulemaking portal. A direct link to the Regulations.gov docket containing this notice, Docket No. TTB-2011-0001, and its related comment submission form is available on the TTB Web site at http://www.ttb.gov/regulations_laws/all_rulemaking.shtml under Notice No. 115. You may also reach this notice and its related comment form via the Regulations.gov search page at http://www.regulations.gov. Supplemental files may be attached to comments submitted via Regulations.gov. For information on how to use Regulations.gov, visit the site and click on the “Help” or “FAQ” tabs.”

• Mail: You may send written comments to the Director, Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, P.O. Box 14412, Washington, DC 20044-4412.

• Hand Delivery/Courier: You may hand-carry your comments or have them hand-carried to the Alcohol and Tobacco Tax and Trade Bureau, 1310 G Street, NW., Suite 200E, Washington, DC 20005.

If you are commenting on behalf of an association, business, or other entity, your comment must include the entity's name as well as your name and position title. If you comment via http://www.regulations.gov, please enter the entity's name in the “Organization” blank of the comment form. If you comment via mail, please submit your entity's comment on letterhead.

You may also write to the Administrator before the comment closing date to ask for a public hearing. The Administrator reserves the right to determine whether to hold a public hearing.

All submitted comments and attachments are part of the public record and subject to disclosure. Do not enclose any material in your comments that you consider to be confidential or inappropriate for public disclosure.

On the Federal e-rulemaking portal, Regulations.gov, we will post, and you may view, copies of this notice, any electronic or mailed comments we receive about this proposal, and the related temporary rule. A direct link to the Regulations.gov docket containing this notice and the comments received on this proposal is available on the TTB Web site at http://www.ttb.gov/regulations_laws/all_rulemaking.shtml under Notice No. 115. You may also reach the relevant docket through the Regulations.gov search page at http://www.regulations.gov.

All posted comments will display the commenter's name, organization (if any), city, and State, and, in the case of mailed comments, all address information, including e-mail addresses. We may omit voluminous attachments or material that we consider unsuitable for posting.

You also may view copies of this notice, any electronic or mailed comments we receive about this proposal, and the related temporary rule by appointment at the TTB Information Resource Center, 1310 G Street, NW., Washington, DC 20220. You may also obtain copies at 20 cents per 8.5- x 11-inch page. Contact our information specialist at the above address or by telephone at 202-453-2270 to schedule an appointment or to request copies of comments or other materials.

Since the regulatory text proposed in this notice of proposed rulemaking is identical to that contained in the companion temporary rule published elsewhere in this issue of the Federal Register , the analysis contained in the preamble of the temporary rule concerning the Regulatory Flexibility Act, the Paperwork Reduction Act, the inapplicability of prior notice and comment, and Executive Order 12866 also apply to this proposed rule.

Kara Fontaine of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this document.

For the reasons discussed in the preamble, we propose to amend 27 CFR, chapter I, parts 19, 24, 25, 26, 40, 41, and 70 as follows:

The information presented in this preamble is organized as follows:

In the “Rules and Regulations” section of this Federal Register , we have also published for the new source performance standards for electric utility steam generating units and industrial-commercial-institutional steam generating units a direct final action amending the rule with the identical regulatory language proposed by this action because we view these amendments as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

If we receive no adverse comment by February 22, 2011, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the amendments in the direct final rule or certain amendments in the direct final rule and those amendments will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

The regulated categories and entities potentially affected by this proposed rule include, but are not limited to, the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this proposed rule. To determine whether your facility is regulated by this proposed rule, you should examine the applicability criteria in § 60.40, § 60.40Da, § 60.40b, or § 60.40c of 40 CFR part 60. If you have any questions regarding the applicability of this proposed rule to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

In addition to the docket, an electronic copy of this proposed action will be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of this proposed action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/ . The TTN provides information and technology exchange in various areas of air pollution control.

On January 28, 2009, EPA promulgated amendments to the performance standards for steam generating units to add compliance, recordkeeping, and reporting requirements for owners and operators of certain affected facilities. Subsequently, EPA received a petition for reconsideration which it granted. The petitioner that submitted the petition for reconsideration also filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit. In this action, EPA is proposing to amend specific provisions in the performance standards for steam generating units to resolve specific issues and questions raised in the petition for review, but not in the petition for reconsideration, and to address one issue raised in the petition for reconsideration.

For a detailed description of the proposed amendments, see the information provided in the direct final rule published in the Rules and Regulations section of this Federal Register .

This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, exempt from review under the 12866. EPA has concluded that the amendments EPA is proposing would not change the costs or benefits of this proposed rule.

This action would not impose any new information collection burden. These proposed amendments would result in no changes to the information collection requirements of the existing standards of performance and would have no impact on the information collection estimate of projected cost and hour burden made and approved by the Office of Management and Budget (OMB) during the development of the existing standards of performance. Therefore, the information collection requests would not been amended. However, OMB has previously approved the information collection requirements contained in the existing standards of performance (40 CFR part 60, subparts D, Da, Db, and Dc) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., at the time the standards were promulgated on June 11, 1979 (40 CFR part 60, subpart Da, 44 FR 33580), November 25, 1986 (40 CFR part 60, subpart Db, 51 FR 42768), and September 12, 1990 (40 CFR part 60, subpart Dc, 55 FR 37674). OMB assigned OMB control numbers 2060-0023 (ICR 1053.07) for 40 CFR part 60, subpart Da, 2060-0072 (ICR 1088.10) for 40 CFR part 60, subpart Db, 2060-0202 (ICR 1564.06) for 40 CFR part 60, subpart Dc. OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of these proposed amendments on small entities, small entity is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I certify that this action would not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This proposed rule would reduce testing requirements for owner/operators of affected facilities using PM CEMS and would allow reduced opacity monitoring for owner/operators of natural gas-fired affected facilities. We have therefore concluded that today's proposed rule will relieve regulatory burden for all affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

This proposed rule contains no Federal mandates that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any one year. Thus, the proposed amendments are not subject to the requirements of section 202 or 205 of the Unfunded Mandates Reform Act (UMRA).

This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments because the burden is small and the regulation does not unfairly apply to small governments.

The proposed amendments do not have federalism implications. It would not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. These amendments would not impose substantial direct compliance costs on State or local governments, and they would not preempt State law. Thus, Executive Order 13132 does not apply to this action.

These proposed amendments do not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). These proposed amendments would not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Thus, Executive Order 13175 does not apply to the proposed amendments.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health and safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it is based solely on technology performance.

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, 12(d)(15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., material specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

This action does not involve any new technical standards or the incorporation by reference of existing technical standards. Therefore, the consideration of voluntary consensus standards is not relevant to this action.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

EPA lacks the discretionary authority to address environmental justice in this proposed rulemaking. New source performance standards are technology-based standards intended to promote use of the best air pollution control technologies, taking into account the cost of such technology and any other non-air quality, health, and environmental impact and energy requirements at a broad national level.

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

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

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

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

On August 9, 2010, FEMA published a proposed rulemaking at 75 FR 47751, proposing flood elevation determinations along multiple flooding sources in Cumberland County, Maine. FEMA is withdrawing the proposed rulemaking in order to convert the Cumberland County flood study to FEMA's Risk Mapping, Assessment, and Planning (Risk MAP) Program as requested by several communities in the county.

On August 18, 2010, FEMA published a proposed rulemaking at 75 FR 50955, proposing flood elevation determinations along multiple flooding sources in York County, Maine. FEMA is withdrawing the proposed rulemaking in order to convert the York County flood study to FEMA's Risk Mapping, Assessment, and Planning (Risk MAP) Program as requested by several communities in the county.

The Caribbean queen conch fishery is managed under the Fishery Management Plan for Queen Conch Resources of Puerto Rico and the USVI (FMP). The FMP was prepared by the Caribbean Fishery Management Council (Council), and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Amendment 1 to the FMP (70 FR 62073, Oct. 28, 2005), prohibited fishing for and possession of Caribbean queen conch in or from the Caribbean EEZ, except during October through June in the area east of 64°34′ W. longitude, which includes Lang Bank east of St. Croix, USVI (this area will subsequently be referred to as Lang Bank). Amendment 1 was intended to reduce fishing mortality and help rebuild the overfished stock of Caribbean queen conch.

According to the NMFS Report on the Status of the U.S. Fisheries for 2008, Caribbean queen conch continues to be overfished and is undergoing overfishing. Additional management measures are therefore needed to prevent additional fishing pressure on the queen conch resource.

In June 2008, the USVI implemented several measures to address overfishing of queen conch, including setting an annual quota of 50,000 lb (28,680 kg) for St. Croix, an annual quota of 50,000 lb (28,680 kg) for St. Thomas and St. John, and closing the fishery seasonally from June 1 through October 31 each year. In April 2009, the St. Croix quota was determined to be reached, and territorial waters off St. Croix were closed to queen conch fishing beginning May 1, 2009. In a letter to the Council dated April 21, 2009, the USVI government requested the Council implement a compatible quota closure for queen conch through an emergency rule that would prohibit the harvest and possession of queen conch in or from the EEZ when St. Croix closes territorial waters to queen conch fishing.

The Council and NMFS have evaluated this request and have determined that an emergency rule to end overfishing of queen conch is not warranted at this time. The available data for queen conch landings does not distinguish between harvest obtained from Federal vs. territorial waters; therefore, it is not clear whether these management measures would actually end overfishing of the queen conch resource. Instead, the Council and NMFS acted to implement a compatible seasonal closure and compatible quota closure for queen conch through a regulatory amendment and this rulemaking. These measures would prevent additional fishing pressure from occurring, until additional landings data are available to determine if these measures would end overfishing. Additionally, these measures would aid in enforcement efforts because when territorial waters close, Federal waters would close as well.

The USVI seasonal closure is a 5-month closure, from June 1 through October 31 each year. To be compatible with this territorial seasonal closure, this rule would extend the current 3-month (July 1 through September 30) closure in Federal waters at Lang Bank to a 5-month closure, from June 1 through October 31 each year.

This rule would also implement a compatible queen conch harvest quota closure for Federal waters. Under this rule, when the USVI closes territorial waters off St. Croix to the harvest and possession of queen conch, NMFS would concurrently close the queen conch harvest in Lang Bank. NMFS would notify the public of the closure by filing a notice with the Office of the Federal Register. During the closure, fishing for or possession of Caribbean queen conch on board a fishing vessel, in or from Lang Bank would be prohibited. Closure of Lang Bank would be in effect until the next fishing season for territorial waters opens November 1, each year.