Prior documents: Final rule—Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum published July 13, 2000 [65 FR 43498] and Proposed rule—Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum published April 18, 2000 [65 FR 20862].

This interim final rule has been determined to be not significant for purposes of Executive Order 12866 and therefore has not been reviewed by Office of Management and Budget (OMB).

This interim rule has been reviewed under Executive Order 12998, Civil Justice Reform. It is not intended to have a retroactive effect. The Pork Promotion, Research, and Consumer Information Act of 1985 (Act) states that the statute is intended to occupy the field of promotion and consumer education involving pork and pork products and of obtaining funds thereof from pork producers and that regulation of such activity (other than a regulation or requirement relating to a matter of public health or the provision of State or local funds for such activity) that is in addition to or different from the Act may not be imposed by a State.

The Act provides that any person subject to the Pork Promotion, Research, and Consumer Information Order (Order) may file with the Secretary a petition stating that the Order, any provision of the Order, or any obligation imposed in connection with the Order is not in accordance with the law, and requesting a modification of the Order or an exemption from certain provisions or obligations of the Order. The petitioner will have the opportunity for a hearing on the petition. Thereafter the Secretary will issue a decision on the petition. The Act provides that the district court of the United States in any district in which the petitioner resides or carries on business has jurisdiction to review a ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of the Secretary's decision. The petitioner must exhaust his or her administrative remedies before he or she can initiate any such proceedings in the district court.

Pursuant to requirements set forth in the Regulatory Flexibility Act (5 United States Code (U.S.C.) 601 et seq. ), the Administrator of AMS has considered the economic impact of this interim rule on small entities.

According to the December 29, 1999, issue of the “Hogs and Pigs” report published by the National Agricultural Statistics Service, the number of farms with hogs or pigs was 98,460. The majority of these hog producers subject to the Order should be classified as small entities under the criteria established by the Small Business Administration.

This interim rule amends 7 CFR part 1230 Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum; to establish an additional five business days for challenging absentee ballots to give interested persons an opportunity to challenge producers who requested absentee ballots and who were not subject to challenge during the September 19, 2000, through October 2, 2000, challenge period. Those producers whose names were listed on the Absentee Voter Request List and who were subject to challenge because the Absentee Voter Request List indicated they had returned their ballot are not subject to challenge during this additional 5-day period. It also establishes new dates for notifying challenged producers, the dates by which challenged producers must submit proof of eligibility to the county Farm Service Agency (FSA) offices, and the dates by which FSA county offices must resolve challenges. This amendment imposes no new requirements upon those producers who cast their votes by absentee ballot or persons who wish to challenge absentee voters beyond those requirements provided by the pork referendum final rule (65 FR 43498). In the Paperwork Reduction Act section of the final rule the Agency estimated that 25,000 pork producers would request absentee ballots. It was also estimated that the number of voters whose votes would be challenged would be 4,000. Pork producers who requested absentee ballots during the period provided for in the final rule and who have already been subject to challenge under the provisions of § 1230.631 of the final rule will not be subject to further challenge during the additional 5-day challenge period.

The information collection requirements, as discussed below, will be minimal. Therefore, this interim rule will not impose a significant economic burden on producers affected by these changes. Accordingly, the Administrator of AMS has determined that this rule will not have a significant impact on a substantial number of small entities.

In accordance with the OMB regulation in 5 CFR part 1320 that implements the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the reporting and recordkeeping included in 7 CFR part 1230 were previously approved by OMB and were assigned OMB Number 0581-0194.

As discussed in the pork referendum rule, the relevant provisions concerning this action include:

Estimate of Burden: The public reporting burden for this collection of information is estimated to average .08 hours per response.

Respondents: Only persons wishing to challenge a vote of another producer will be required to provide such challenge in writing to the county FSA office.

Estimated Number of Respondents: 2,000.

Estimated Number of Responses per Respondent: 2.

Estimated Total Annual Burden on Respondents: 320 hours.

Total Cost: $6,400.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: Producers responding to a challenge of their eligibility to vote will be required to submit to the county FSA office records such as sales documents, tax records, or other similar documents to prove that the person owned and sold hogs or pigs during the representative period.

Estimated Number of Respondents: 4,000.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 4,000 hours.

Total Cost: $80,000.

Estimate of Burden: The public reporting burden for this collection of information is estimated to average 1 hour per response.

Respondents: Producers appealing a determination of their ineligibility to vote in the referendum will be required to submit to the county FSA office records such as sales documents, tax records, or other similar documents to prove that the person owned and sold hogs or pigs during the representative period.

Estimated Number of Respondents: 500.

Estimated Number of Responses per Respondent: 1.

Estimated Total Annual Burden on Respondents: 500 hours.

Total Cost: $10,000.

Estimate of Burden: Employees in each county FSA office will fill out one or more of the Absentee Voter Request List (Form LS-74). Because only county FSA employees will complete the Absentee Voter Request List, the estimated average reporting burden would not apply to producers voting absentee in the referendum.

Under the Act, a pork referendum was conducted during the period August 18, 2000, through September 21, 2000. The referendum was conducted pursuant to referendum rules published July 13, 2000, [65 FR 43498] Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum: final rule. The referendum was conducted among eligible pork producers who owned and sold one or more hogs or pigs and importers who imported pigs, hogs, pork or pork products to determine whether they favored the continuation of the Order. Producer in-person voting in the referendum was held September 19, 20, 21, 2000, at county FSA offices. Producer absentee ballots were available at those offices from August 18, 2000, through September 18, 2000. Importers could obtain ballots from the FSA headquarters office in Washington, D.C., from August 18, 2000, through September 21, 2000. The representative period to establish voter eligibility was the period from August 18, 1999, through August 17, 2000.

This interim rule amends the final rule on the conduct of the Pork Checkoff Program referendum to provide an additional five business days for challenging absentee votes. These changes will ensure that persons have had an opportunity to challenge all absentee voters and that all eligible absentee votes will be counted. The final pork referendum rules required that persons voting by absentee ballot print their name and address on the outside of the absentee ballot mailing envelope so that FSA county offices could check whether the absentee ballot had been returned. The final rule also required that the absentee ballot be received by the FSA county office before a producer's vote could be challenged. Due to incorrectly completed or missing names and addresses on the absentee ballot mailing envelope, some FSA county offices were not able to determine the name of the person returning the absentee ballot and were, therefore, unable to post a complete list of absentee voters for public review and challenging.

In order to ensure that eligible absentee ballots will be counted, AMS is amending the final referendum rule to allow for an additional period, beginning October 23, 2000, and ending October 27, 2000, for interested persons to review the Absentee Voter Request List (Form LS-74) posted in FSA county offices and challenge absentee voters, who were not subject to challenge during the initial challenge period, September 19, 2000, through October 2, 2000. Those producers whose names were listed on the Absentee Voter Request List and who were subject to challenge because the Absentee Voter Request List (Form LS-74) indicated the date by which they had returned their ballot are not subject to challenge during this additional 5-day period. Absentee voters whose ballots are challenged will have until November 7, 2000, to submit proof of eligibility. These changes do not affect producers who voted in-person or pork importers who voted by mail ballot.

We are deleting the requirement in § 1230.631(c) of the final rule that states that “Absentee ballots have to be received in the FSA county office before a producer's vote can be challenged.”

During the conduct of the referendum a question was raised concerning whether a ballot would be invalid if no return address was included on the outside envelope. The return address was for the FSA county offices' administrative convenience to ensure that an absentee ballot had been requested and returned. It was never intended to invalidate an otherwise complete absentee ballot simply because the return address was missing on the mailing envelope, and the provision in the final rule specifying the reasons for declaring a ballot invalid is consistent with our intent.

Pursuant to 5 U.S.C. 553, it is found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect and that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register . This action amends 7 CFR part 1230, the Pork Promotion, Research, and Consumer Information Program: Procedures for the Conduct of Referendum, to provide an additional 5-day period to give interested persons an opportunity to challenge all producers who requested absentee ballots and who were not subject to challenge during the initial challenge period. This interim rule also establishes new dates for notifying challenged producers, submitting proof of eligibility, and resolving challenges.

Voting in the pork referendum was completed on September 21, 2000, and the ballots will be counted by FSA county offices on November 29, 2000, as provided for in § 1230.633 of the final rule. Accordingly, the changes made in this action should be implemented as soon as possible. Further, for the same reasons, a 30-day comment period is deemed appropriate.

Section 301(c) of the FMIA (21 U.S.C. 661(c)) and section 5(c) of the PPIA (21 U.S.C. 454(c)), respectively, authorize the Secretary of Agriculture to designate a State as one in which the provisions of Titles I and IV of the FMIA and sections 1-4, 6-10, and 12-22 of the PPIA will apply to operations and transactions wholly within the State after the Secretary has determined that requirements at least “equal to” those imposed under the Acts have not been developed and effectively enforced by the State.

On June 22, 1970, and January 2, 1971, the Secretary designated the State of North Dakota under section 301(c) of the FMIA and section 5(c) of the PPIA respectively as a State in which the Federal Government is responsible for providing meat and poultry inspection at eligible establishments and for otherwise enforcing the applicable provisions of the FMIA and the PPIA with regard to intrastate activities in the State.

In addition, on July 23, 1973, and October 29, 1975, the Federal Government assumed the responsibility of administering the authorities provided for under sections 202, 203, and 204 of the FMIA (21 U.S.C. 642, 643, and 644) and sections 11(b) and (c) of the PPIA (21 U.S.C. 460 (b) and (c)) respectively regarding certain classes of operators of meat and poultry products in North Dakota.

These designations were undertaken by the Department when it determined that the State of North Dakota was not in a position to enforce requirements that are at least “equal to” the requirements of FMIA and PPIA enforced by the Federal Government.

The Commissioner of Agriculture of the State of North Dakota has advised FSIS that on October 15, 2000, the State of North Dakota will be in a position to administer a State meat inspection program that includes requirements at least “equal to” those imposed under the Federal meat inspection program. The Commissioner of Agriculture of the State of North Dakota also has advised FSIS that the State, at this time, will remain designated for poultry products under the PPIA.

Section 301(c)(3) of the FMIA provides that whenever the Secretary of Agriculture determines that any designated State has developed and will enforce State meat inspection requirements at least “equal to” those imposed by the Federal Government under Titles I and IV of the FMIA, with regard to intrastate operations and transactions within the State, the Secretary will terminate the designation of such State. The Secretary has determined that the State of North Dakota has developed, and will enforce, such a State meat inspection program in accordance with such provisions of Titles I and IV of the FMIA. In addition, the Secretary has determined that the State of North Dakota is in a position to enforce effectively the provisions of sections 202, 203, and 204 of the FMIA. The designation of the State of North Dakota under sections 1-4, 6-10, and 12-22 of the PPIA will remain in effect and is not terminated.

Since it does not appear that public participation in this matter would make additional relevant information available to the Secretary under the administrative procedure provisions in 5 U.S.C. 553, it is found upon good cause that such public procedure is impracticable and unnecessary.

This final rule is issued in conformance with Executive Order 12866 and has been determined not to be a major rule. It will not result in an annual effect on the economy of $100 million or more and will not adversely affect the economy or any segment of the economy. Because this final rule is not a significant rule under Executive Order 12866, it has not undergone review by the Office of Management and Budget.

The FSIS Administrator has determined that this action will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act, Pub. L. 96-354 (6 U.S.C. 601). As stated above, the State of North Dakota is assuming a responsibility, previously limited to the Federal Government, of administering the meat inspection program for intrastate operations and transactions. The State's poultry products inspection program, at this time, will remain designated. No additional requirements are being imposed on small entities.

FSIS has considered the potential civil rights impact of this final rule on minorities, women, and persons with disabilities. Public involvement in all segments of rulemaking and policy development is important. Consequently, in an effort to better ensure that minorities, women, and persons with disabilities are aware of this rulemaking, FSIS will announce it and provide copies of this Federal Register publication in the FSIS Constituent Update.

FSIS provides a weekly Constituent Update, which is communicated via fax to more than 300 organizations and individuals. In addition, the update is available on-line through the FSIS web page located at http://www.fsis.usda.gov. The update is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, recalls, and any other types of information that could affect or be of interest to our constituents and shareholders. The constituent fax list consists of industry, trade, and farm groups, consumer interest groups, allied health professionals, and other persons who have requested to be included. Through these various channels, FSIS is able to provide information to a much broader and diverse audience. For more information and to be added to the constituent fax list, fax your request to (202) 720-5704.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended (NWPA), requires that “[t]he Secretary [of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear reactor power sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 218(a) for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the NRC-approved dry storage of spent nuclear fuel in NRC-approved casks under a general license, publishing a final rule in 10 CFR part 72 entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new Subpart L within 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks” containing procedures and criteria for obtaining NRC approval of dry storage cask designs.

This rule will add the NAC-UMS cask system to the list of approved spent fuel storage casks in 10 CFR 72.214. Following the procedures specified in 10 CFR 72.230 of subpart L, NAC International (NAC) submitted an application for NRC approval with the Safety Analysis Report (SAR) entitled, “Safety Analysis Report for the NAC UMS Universal Storage System.” The NRC evaluated the NAC submittal and issued a preliminary Safety Evaluation Report (SER) and a proposed Certificate of Compliance (CoC) for the NAC-UMS cask system. The NRC published a proposed rule in the Federal Register (64 FR 45918; August 23, 1999) to add the NAC-UMS cask system to the listing in 10 CFR 72.214. The comment period ended on April 5, 2000. Seven comment letters were received on the proposed rule.

Based on NRC review and analysis of public comments, the NRC has modified, as appropriate, its proposed CoC and the Technical Specifications (TS) for the NAC-UMS cask system. The NRC has also modified its SER in response to some of the comments.

The NRC finds that the NAC-UMS cask system, as designed and when fabricated and used in accordance with the conditions specified in its CoC, meets the requirements of 10 CFR part 72, subpart L. Thus, use of the NAC-UMS cask system, as approved by the NRC, will provide adequate protection of public health and safety and the environment. With this final rule, the NRC is approving the use of the NAC-UMS cask system under the general license in 10 CFR part 72, subpart K, by holders of power reactor operating licenses under 10 CFR part 50. Simultaneously, the NRC is issuing a final SER and CoC that will be effective on November 20, 2000. Single copies of the final CoC and SER will be available by November 2, 2000 for public inspection and/or copying for a fee at the NRC Public Document Room (PDR), 11555 Rockville Pike, Rockville, Maryland and electronically at http://ruleforum.llnl.gov.

Documents created or received at the NRC after November 1, 1999, are also available electronically at the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. The public can gain entry from this site into the NRC's Agency wide Document Access and Management System (ADAMS), which provides text and image files of the NRC's public documents. An electronic copy of the final CoC, Technical Specifications, and SER for the NAC-UMS cask system can be found in ADAMS under Accession No. ML003737374. However, because the NRC must incorporate the date of publication of this Federal Register notice into the CoC, these documents are not yet publicly available. The NRC will make these documents publically available by November 2, 2000. Contact the NRC PDR reference staff for more information. PDR reference staff may be reached at 1-800-397-4209, 301-415-4737, or by e-mail at pdr@nrc.gov.

The NRC received seven comment letters on the proposed rule. The commenters included two utilities, an NAC-UMS cask users group, two States, and two members of the public. Copies of the public comments are available for review in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD and electronically at http://ruleforum.llnl.gov.

The comments and responses have been grouped into nine subject areas: general, radiation protection, accident analysis, design, welds, structural, thermal, technical specifications (TS), and miscellaneous issues. Several of the commenters provided specific comments on the draft CoC, NRC's preliminary SER, and TSs. To the extent possible, all of the comments on a particular subject are grouped together. The NRC's decision to list the NAC-UMS cask system within 10 CFR 72.214, “List of approved spent fuel storage casks,” has not been changed as a result of the public comments. A review of the comments and the NRC's responses follow:

Comment A-1: One commenter noted the regulatory analysis indicates that issuing a site-specific license would cost the NRC and the utility more time and money than the proposed action. The commenter asked for proof of this statement and suggested that a study or evaluation should be done. The commenter considers that in the long run it costs the NRC more time and money to make all the site-specific changes needed later. Further, if each cask were site-specific, the vendor and utility would pay for a thorough analysis before presentation to the NRC, rather than the NRC “fixing up” everything at taxpayer expense after certification for a general license.

Response: The NRC disagrees with the comment. The scope of an NRC review of a cask design to be added under the listing of 10 CFR 72.214 is enveloped by the NRC review efforts to license that same cask design for a site-specific license. The NRC's review of that same cask design for a site-specific license also includes, but is not limited to, evaluations of siting factors, licensee financial qualifications, physical protection provisions, emergency plan provisions, the quality assurance program and the decommissioning plan. Clearly, and as stated in the regulatory analysis, the NRC and licensee costs would increase to conduct multiple site-specific reviews associated with the use of the same cask design.

Conducting site-specific reviews would ignore the alternative procedures and criteria currently in place for the addition of new cask designs that can be used under a general license and would be in conflict with the NWPA direction to the NRC to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. It also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees. Also, because of the long experience with the CoC process and other similar processes the NRC has determined that site-specific licensing would be inefficient because of the significant number of amendments that would have to be processed and therefore would add to the costs of granting CoCs rather than being more efficient.

Prior to storing spent fuel under the general license, each licensee must perform written evaluations to establish that: (1) The conditions set forth in the CoC have been met; (2) the reactor site parameters are encompassed by the cask design bases considered in the cask SAR and SER; and (3) other requirements detailed in 10 CFR 72.212 have also been met. Each general licensee must retain a copy of these written evaluations until spent fuel is no longer stored under the general license. Furthermore, these written evaluations may be inspected at any time by NRC staff.

The NRC's fee recovery structure in 10 CFR Parts 170 and 171 for the conduct of licensing and regulatory oversight activities under 10 CFR Part 72 does not differentiate between the type of license used ( i.e., general or specific).

Comment A-2: One commenter commented that the proposed rules for casks and the environmental assessments have become almost a “fill in the blank” form, and said that this needs rethinking. The commenter also made several general statements about the overall waste program and that everything is going too fast, spent fuel pools are filling to capacity, more cask designs being built by more inexperienced workers with the cheapest materials. The commenter suggested that the NRC examine the program and carefully evaluate the end result.

Response: This comment is beyond the scope of this rule that is focused solely on whether to add a particular cask design, the NAC-UMS cask system, to the list of approved casks. However, since the beginning of the CoC rulemaking process, the NRC and Congress have continuously evaluated the direction and progress of the program with the primary consideration continuing to be the health and safety of the public.

Comment A-3: One commenter cited a news article stating that one utility is seeking an accelerated licensing review and approval schedule for storage of fuel in the NAC-UMS, and was concerned that there may be pressure because of the schedule. The commenter asked how much public comment is valued when the public knows the approval needs to be completed as fast as possible. The commenter stated that NRC's job is to ensure public and worker safety.

Response: This comment is beyond the scope of this rule that is focused solely on whether to add a particular cask design, the NAC-UMS cask system, to the list of approved casks. However, since the beginning of the CoC rulemaking process, the NRC and Congress have continuously evaluated the direction, progress, and schedules of the program with the primary consideration continuing to be the health and safety of the public. The public comment and response procedure has always been and will continue to be an important part of the rulemaking process.

Comment A-4: One commenter did not receive the reference section as listed in the Table of Contents for the SER and asked why. The commenter stated that the references and dates are important and that the public wants these references and dates. However, the references are often dated from the 1970's causing concern to the commenter. The commenter requested the missing pages from the SER.

Response: The NRC separately provided the reference section of the SER issued with the preliminary SER to the commenter. The NRC had appropriately included the dates of references in the preliminary SER, and is uncertain why the commenter did not receive this section.

Comment A-5: One commenter noted differences between NAC-MPC and NAC-UMS and stated that the terms “multipurpose” and “universal” are not explained. The commenter stated the casks are for storage only at this point and that is what they should be called in the documents.

Response: Similarities or differences between the NAC-UMS cask design under consideration and any other cask design are beyond the scope of this rulemaking. The terms “universal” and “multi-purpose” have been selected by the applicant as descriptive of the system's design flexibility. The NRC agrees with the commenter that the NAC-UMS cask design evaluated in this rulemaking is limited to its acceptability for storage. However, the NRC does not consider descriptive nomenclature of the intended use beyond storage to be inappropriate.

Comment A-6: One commenter asked what the “M” in UMS stands for and why is it not USS for Universal Storage System.

Response: The NAC-UMS is the model name selected by the vendor. UMS stands for “Universal MPC System,” where MPC is intended to indicate “multi-purpose canister.”

Comment A-7: One commenter agreed with one of the State's published comments. Several comments also were made on topics pertaining to the decommissioning of the Maine Yankee site.

Response: The agreement with the State's published comments was noted. The State's comments in their entirety have been considered within this section. The comments pertaining to the decommissioning of the Maine Yankee site are outside the scope of this rule.

Comment B-1: One commenter disagreed with the SER statement that it is unnecessary for the applicant to specify the source term for the confinement analyses and stated that the source term and corresponding dose consequence should be provided to the public in these documents. The commenter stated there is no reason not to require this information that the NRC may need to know in the future.

Response: The NRC disagrees with the comment. Revision 1 of Interim Staff Guidance (ISG) No. 5, “Confinement Evaluation” specifies that for storage casks having closure lids that are designed and tested to be leak tight as defined in “American National Standard for Leakage Tests on Packages for Shipment of Radioactive Materials,” American National Standards Institute (ANSI) N14.5-1997, detailed confinement analyses are not necessary. Therefore, the applicant is not required to provide a detailed analysis of the leakage of radioactive materials through the welded canister. As indicated in SAR Section 7.1, the confinement boundary is completely welded and inspected in accordance with both the American Society of Mechanical Engineers (ASME) Code and ISG No. 4, “Cask Closure Weld Inspections,” and is leak tested to ANSI leaktight standards. Further, the analyses presented in the SAR demonstrated that the stresses, temperatures, and pressures of the Transportable Storage Canister (TSC) are within the design basis limits under the accident conditions identified by the applicant and that the confinement boundary of the TSC remains intact for all credible accidents. The NRC concurs with the evaluation in the SAR and believes that the design of the confinement boundary, that includes the inspection of welds is adequately rigorous and meets the applicable regulations.

Comment B-2: One commenter asked if there is an explanation in the SAR of detailed plans for how to dispose of the radioactive gases purged from the canister with nitrogen during unloading. The commenter asked if the disposal process has been clearly thought out so it could be performed the day after a cask is loaded, if necessary, and all personnel would know the process.

Response: SAR Chapter 8 includes guidance for the development of site-specific operating procedures to be followed for unloading the TSC and includes consideration of the radioactive gases purged from the canister. The canister to be unloaded will be flushed with nitrogen gas to remove any accumulated radioactive gases prior to initiating fuel cooldown. The amount of radioactive gases displaced by the nitrogen gas is first assessed by sampling to determine the appropriate radiological controls. Any radioactive gaseous effluent released from the canister would be processed through High-Efficiency Particulate Air (HEPA) filters and any additional filtration systems a facility may have in order to filter the air from a fuel handling building or reactor building. All radioactive effluents released to the environment must meet Federal and State regulations.

Comment B-3: One commenter asked if the high peak dose rates could be reduced in some way for the transfer cask top during shield lid welding, the top of the transfer cask containing a sealed canister filled with Boiling Water Reactor (BWR) fuel, and the bottom of the transfer cask with a canister filled with Pressurized Water Reactor (PWR) fuel.

Response: The high peak dose rates are based upon loading the design basis fuel and present the worst case scenario for estimating doses to workers. The actual doses received by workers should be less than the calculated doses because the actual fuel loaded may have a longer cooling time and a different, lower burnup. Under the facility's as low as reasonably achievable (ALARA) does exposure program, the licensee will have to evaluate ways to reduce the dose to those who will be working with the cask. For example, temporary shielding could be used to reduce dose to workers.

Comment B-4: Three commenters noted that the Completion Time for Required TS Action A.1 of Limiting Condition for Operation (LCO) 3.2.1 (Decontamination of Canister Surface Contamination) is unnecessarily restrictive. The commenters request that the Completion Time be revised to 25 days because this LCO is not time dependent.

Response: The NRC disagrees with this comment. The applicant evaluated and proposed the 7-day time frame. During the review process, the staff evaluated and found acceptable the applicant's proposal. The NRC found the 7-day completion time reasonable to decontaminate the surface if contamination on the canister or transfer cask is identified. The commenters did not provide adequate justification for revising the LCO. If there is surface contamination on the canister or transfer cask, then it is good health physics practice to decontaminate the surface as soon as practicable but within the seven day completion time.

Comment B-5: Three commenters stated that the Completion Time for Required Action A.2 of LCO 3.2.2 (Concrete Cask Average Surface Dose Rates) is unnecessarily restrictive, and request that the Completion Time be revised to 25 days.

Response: The NRC disagrees with this comment. The applicant evaluated and proposed the 7-day time frame. During the review process, the NRC evaluated and found acceptable the applicant's proposal. The NRC found the 7-day completion time reasonable to verify compliance with the regulations. The comment did not provide adequate justification for revising the LCO.

Comment B-6: Two commenters noted that the radiological dose to adjacent controlled or noncontrolled site areas is based on 20 loaded vertical storage modules (Preliminary Safety Evaluation Report [PSER] Sections 10.3 and 10.4), and that the prototypical modules are arranged in two rows with ten storage modules per row. The commenters stated this assumption is unrealistic in Independent Spent Fuel Storage Installations (ISFSIs) that support the complete decommissioning of an operating nuclear power plant where there may be 50 or more modules. The more storage modules, the greater the sky shine interaction that is available at the boundary of the site control area and the greater the onsite occupational dose. The commenters stated that the PSER does not analyze the more typical module configurations and, thus, does not meet the requirements of 10 CFR 72.236(d).

Response: NRC disagrees with this comment. This application is for a general license and therefore a generic approach has been taken in evaluating the doses to site workers and the public. Prior to a general licensee using this cask, the licensee is required to meet the conditions stated in 10 CFR 72.212. Specifically, 10 CFR 72.212(b)(2)(iii) states that the requirements in 10 CFR 72.104 (the criteria for radioactive materials in effluents and direct radiation from an ISFSI or Monitored Retrievable Storage Facility (MRS)) must be met. Therefore, to demonstrate compliance with 10 CFR 72.104, the § 72.212 evaluation will have to contain a dose evaluation for the ISFSI site that includes the actual number and arrangement of storage canisters.

Comment B-7: One commenter stated that compliance with required actions A.1 and A.2 for LCO 3.2.2 in the TS does not either restore compliance with the LCO or allow exiting the LCO. LCO 3.2.2 in the TS contains limits for the average surface dose rates of each concrete cask during loading operations. Surveillance requirement (SR) 3.2.2.1 requires that the average surface dose rates be measured once after completion of transfer of a loaded canister into the concrete cask and before beginning storage operations. Condition A and required actions A.1 and A.2 for this LCO state that if the concrete average surface dose rate limits are not met, the licensee must administratively verify correct fuel loading, and perform analysis to verify compliance with the ISFSI offsite radiation protection requirements of 10 CFR Parts 20 and 72. However, there is no provision in this LCO to allow the loaded concrete cask to be stored in the ISFSI after actions A.1 and A.2 are completed satisfactorily. The LCO does not provide for any course of action after actions A.1 and A.2 are completed. SER Sections 5.4.3 and F5.3 state that the final determination of compliance with 10 CFR 72.104(a) is the responsibility of each applicant for a site license. Section 10.1.1 states that, as required by 10 CFR 72.212, a general licensee will be responsible for demonstrating site-specific compliance with 10 CFR part 20 and §§ 72.104 and 72.106 requirements. The intent of LCO 3.2.2 is that a licensee may store a cask that does not meet the LCO average surface dose rate limits as long as the licensee completes an analysis showing compliance with 10 CFR parts 20 and 72 limits at the ISFSI. Therefore, in order for required actions A.1 and A.2 to restore compliance with the LCO, the LCO should state: “The average surface dose rates of each Concrete Cask shall not exceed the following limits unless required actions A.1 and A.2 are met.”

Response: NRC agrees with this comment. LCO 3.2.2 has been revised.

Comment B-8: One commenter asked why there is axial reflection of neutrons from one tube to another bypassing the poison panels under full or partial flooding, and how this affects analysis. The commenter stated that if the NRC does not support NAC's claim that the infinite-length approximation adds conservatism, it should be removed.

Response: Although the NRC does not concur with NAC's statement that the infinite-length model adds conservatism, removal of the statement from the SAR is not necessary because the statement does not affect the overall conclusions of the safety analysis. The axial reflection of neutrons from one tube to another occurs when neutrons leaving the end of one fuel tube are scattered into another fuel tube by water, fuel hardware, or cask materials located beyond the ends of the poison panels. This phenomenon provides a neutron pathway between assemblies that is not considered in infinite-length models of the fuel and cask. The NRC's analysis shows that the resulting small increase in the computed reactivity roughly balances the small reactivity decrease arising from axial neutron leakage, which is likewise neglected in NAC's infinite-length model. The NRC therefore views the infinite-length approximation as neutral; i.e. , it neither adds nor subtracts conservatism.

Comment C-1: One commenter noted that the thermal accident is postulated with 50 gallons of transporter fuel burning for 8 minutes and suggested that an evaluation for a possible jet crash and associated fire be performed.

Response: The NRC staff's standard review plan for dry cask storage systems, Chapter 11 “Accident Analysis,” specifies that structures, systems, and components important to safety must be designed to withstand credible accidents and natural phenomena events. A cask transporter fire is considered credible for the NAC-UMS cask design, and is the basis for the 8-minute fire associated with the time it would take to burn 50 gallons of fuel. Other modes of transport causing the fire (such as airplanes, trains, and delivery trucks) are not considered plausible for this cask design and are beyond the scope of this rule. However, before using the NAC-UMS cask, the general licensee must evaluate the site to determine if the chosen site parameters are enveloped by the design bases of the approved cask as required by 10 CFR 72.212(b)(3). The licensee's site evaluation should consider the effects of nearby transportation and military activities. Also included in this evaluation is the verification that the cask handling equipment used to move the Vertical Concrete Cask (VCC) to the pad is limited to 50 gallons of fuel (as detailed in Technical Specification B 3.4.5-Site Specific Parameters and Analyses).

Comment C-2: Three commenters requested that LCO 3.1.7 (Fuel Cooldown Requirement) be deleted from the TS because there are no design basis accidents that require fuel cooldown for removal from a sealed canister. The commenters believed that the applicant demonstrated that cooldown can be performed as shown by the “Thermal Evaluation” section of NUREG-1536, “The Standard Review Plan for Dry Cask Storage Systems, January, 1997” and that if the fuel cooldown requirements cannot be removed from the TS, the cooldown requirements should be moved to the “Administrative Controls and Programs” section.

Response: The NRC agrees with the comment that the TS A 3.1.7, “Fuel Cooldown Requirements” associated with canister unloading procedures can be deleted from the TS. The NRC agrees that this would be a highly unlikely scenario that could be adequately controlled by approved site-specific operating procedures developed based on the technical basis contained in SAR Chapter 8. Reuse of the canister after unloading would not be likely. The fuel would be returned to the spent fuel pool for subsequent dry cask storage in another canister and/or transport.

Comment C-3: One commenter asked a number of questions related to the Boral panels regarding the continued efficiency over time, the number of casks that have utilized Boral, how the Boral is manufactured and tested, and whether the panels can structurally deform.

Response: Boral has been used in the nuclear industry since the 1950's and has been used in spent fuel storage and transportation cask baskets since the 1960's. Several utilities have also used Boral in spent fuel pool storage racks. Industry experience has revealed no credible mechanisms for a loss of Boral efficacy in the cask. Therefore, the NRC has reasonable assurance that the Boral panels in the PWR and BWR baskets of the TSC will perform their intended criticality function throughout the licensed storage period.

Each Boral panel is held in place by a stainless steel cover plate, that is welded around its perimeter to the outer wall of the fuel tube. As noted in SAR Section 6.1, criticality control in the PWR basket is achieved by surrounding the fuel assemblies with four panels of Boral for each fuel assembly. In the BWR basket, single panels of Boral placed between each fuel assembly are used for criticality control.

Boral will be manufactured and tested under the control and surveillance of a quality assurance and quality control program that conforms to the requirements of 10 CFR Part 72, Subpart G. A statistical sample of each manufactured lot of Boral is tested by the manufacturer using wet chemistry procedures and/or neutron attenuation techniques. The specified minimum content of the neutron poison in the Boral panels ( i.e. , 0.025 grams of B 10 per cm 2 for the PWR basket and 0.011 grams of B10 per cm2 for the BWR basket) is ensured by the acceptance testing procedures described in SAR Section 9.1.6.

Comment C-4: One commenter noted that the NRC had reviewed the Boral vendor's product literature and believed this should be done for all materials because most cask vendors do not review this information. The commenter stated that nonstandard Boral sheets, are an area where mistakes may be made and verifications are not performed. The commenter asked why NAC was not “up front” with the issue of using nonstandard Boral sheets.

Response: The NRC disagrees that most vendors do not review material specifications selected for use within cask designs. The vendor is responsible for implementing a quality assurance program. The NRC expects that the material used in the cask systems meets minimum design specifications. The NRC has no specific information that this or other vendors do not properly specify and confirm material properties. Furthermore, the NRC does specifically evaluate and consider the materials utilized in a proposed cask design. Regarding the use of “non-standard” Boral sheets, the vendor had already committed to obtaining a specific B 10 loading for the neutron absorbers, both in the SAR and as stipulated in the design features section of the TS. The NRC's safety evaluation fully describes the basis for the NRC's acceptance.

Comment C-5: One commenter expressed a concern about the possible production of hydrogen from the aluminum heat transfer disks during loading and unloading operations.

Response: The NRC has considered the possible production of hydrogen in its evaluation. As noted in SAR Section 3.4.1.2.2, the applicant anticipates that no hydrogen gas is expected to be detected prior to, or during, the loading or unloading operations. However, if a reaction between the aluminum heat transfer disks and the spent fuel pool water occurs, the loading and unloading procedures of SAR Chapter 8 that include procedures to detect and remove hydrogen from the space between the shield lid and the top of the water during any welding or cutting operations, provide adequate assurance that the welders will be protected. Further, the NRC has licensed other storage casks that utilize aluminum heat transfer components.

Comment C-6: Two commenters stated that the NAC-UMS system does not provide for a capability to verify periodically whether or not the storage conditions have changed, thus requiring canning or other remedial measures for fuel that has developed further damage during storage. The commenters stated that the fuel-containing canisters may need to be opened periodically in a hot cell and visually inspected, and that an ISFSI using the NAC-UMS system may require such a facility because the canisters may not be shipped under 10 CFR Part 71 without verification of fuel rod integrity. The commenters stated that the PSER should define verification requirements for the NAC-UMS system prior to shipment under Part 71 and evaluate the applicant's verification methods.

Response: The NRC disagrees with the comment. The NRC, with the issuance of Interim Staff Guidance (ISG) No. 1, “Damaged Fuel” addressed the definition of damaged fuel and clarified the fuel conditions for which spent fuel should be placed in cans prior to storage for the purposes of retrievability. The NAC-UMS storage cask application, as considered in this rulemaking, did not seek approval for the storage of damaged fuel as defined in ISG-1. Additionally, both the design of the NAC-UMS system and the thermal, structural, and criticality analyses ensure that the fuel will not be disrupted under normal, off-normal and accident conditions once undamaged, or intact, fuel is placed into a storage canister. Further, the results of a cask demonstration program at Idaho National Engineering and Environmental Laboratory (INEEL) (where determinations were made of the effects of dry storage casks on spent fuel integrity) showed that there were no significant fuel failures that would require extraordinary handling of the fuel. Therefore, the NRC staff has reasonable assurance that the spent fuel is adequately protected against degradation that might otherwise lead to gross rupture during storage. As such, periodic verification of cladding conditions during the storage period or prior to transportation is not warranted.

Regarding requirements associated with the safe transportation of spent fuel under 10 CFR Part 71, it is appropriate to establish the necessary conditions that ensure the health and safety of the public under the conditions of the 10 CFR Part 71 CoC. A 10 CFR Part 72 storage cask design certification does not serve to authorize the shipment of the stored contents under 10 CFR Part 71. NRC does an independent evaluation of casks for shipping under 10 CFR Part 71. Similarly, conditions of any approval under 10 CFR Part 71 are independent of necessary conclusions pertaining to a cask design's capability to meet the requirements of 10 CFR Part 72 for storage.

Comment C-7: Two commenters raised concerns about the radiation hardening of borated neutron absorber materials, including the NS-4-FR neutron shield employed in the NAC-UMS storage cask. The commenters stated there is no evidence and no analysis in the PSER to establish NS-4-FR's ability to maintain form over the expected lifetime integrated neutron flux.

Response: The NRC has reasonable assurance that NS-4-FR will maintain its form over the expected lifetime integrated gamma and neutron doses. Independent laboratory tests of the NS-4-FR material have demonstrated that radiation exposures significantly higher than those of any neutron shield component of the NAC-UMS system have not resulted in any physical deterioration of the neutron shield material. Calculations have shown that over 500 continuous years of exposure to a design basis neutron source would have to occur before the transfer cask shield neutron exposure would reach the level of the laboratory tests. Similarly, over 50 years of continuous design basis gamma exposure would be required before the laboratory test exposure levels were reached. In actuality, the exposures would need to be considerably longer with spent fuel due to the continually declining source term.

The NS-4-FR neutron shield material is used as a neutron shield in the transfer cask and the Vertical Concrete Cask (VCC) shield plug. It is not used in the storage cask. In the transfer cask, the amount of time this material will experience significant neutron fluxes is minuscule compared to the amount of time to cause radiation embrittlement of the material. In the VCC shield plug, the NS-4-FR material is placed above the canister lid and is exposed to significantly lower neutron fluxes than seen by the transfer cask.

Further, for both the transfer cask and the VCC shield plug, the NS-4-FR neutron shield is completely enclosed within welded steel components. In the transfer cask, the top and bottom plates are seam welded to the shell with full penetration or fillet welds to enclose the NS-4-FR material. Similarly, the NS-4-FR in the VCC shield plug, is enclosed between the shield plug, a retaining ring and a cover plate using fillet welds. Since the NS-4-FR is sandwiched between these various steel shells for the transfer cask and VCC shield plug, the NRC has reasonable assurance that the NS-4-FR material will maintain its form over the expected lifetime of the transfer cask's or shield plugs radiation exposures. Even if the material were to become embrittled, its placement within the VCC shield plug and transfer cask components would not allow the material to redistribute.

Comment C-8: One commenter stated that eight supply and two discharge lines in the transfer cask wall adds to confusion and mistakes, and that introducing forced air to cool the contents and allow the canister to remain longer in the transfer cask is asking for trouble because workers bank on the time being available.

Response: The NRC disagrees with the comment. The number of supply and discharge lines is a specific design objective to ensure uniform cooling so the spent fuel contents in the canister remain within the design envelope during loading and unloading operations. Activities associated with the safe and proper use of the transfer cask design are to be conducted in accordance with site-specific operating procedures generated by the user. Appropriate identification and controls for the operation of the air supply and discharge lines, sufficient to minimize confusion and mistakes, are a responsibility of the general licensee. The objective of the option to provide forced air cooling to the transfer cask, although not intended to be routine, is to maintain the spent fuel contents within the design envelope at all times. If an operational situation results in the use of the forced air option, the spent fuel contents will remain under analyzed conditions, and thus the availability of this option is considered beneficial.

Comment C-9: One commenter opposed the idea of using the transfer cask if a canister must be removed from a concrete cask. The commenter asked if the intent is to use the transfer cask for storage if there are problems and why.

Response: The NRC evaluated and accepted the use of the transfer cask if a canister must be removed from a concrete cask, including unloading operations. The transfer cask is not an authorized configuration for long-term storage. The use of the transfer cask for loading and unloading operations is controlled by the TSs.

Comment C-10: One commenter asked that preferential loading and administrative control of fuel assemblies not be allowed to leave a wide safety margin to protect the public.

Response: The NRC disagrees with the comment. The NRC's safety evaluation determines with reasonable assurance that an adequate (rather than “wide”) safety margin is ensured with respect to all cask activities. The proper selection and loading of candidate spent fuel assemblies necessarily relies on appropriate administrative controls. All 10 CFR Part 50 licensees that will use this cask design under the general license have extensive experience in selecting uniquely identified fuel assemblies for placement in uniquely identified locations, such as the reactor core or the spent fuel pool. Preferential loading specifications, in conjunction with the appropriate administrative loading controls, have been accepted by the NRC because they maintain an adequate safety margin and rely on similar existing administrative controls for safe fuel handling.

Comment C-11: Three commenters requested the removal of the inference in Chapter 10 of the SAR that a daily inspection of the VCC vents is an expected or routine activity. The commenters stated that identification of blocked VCC vents is accomplished by use of the temperature monitoring systems, and that physical inspection of the VCC vents, especially daily, results in unnecessary exposure and is not in keeping with preferred As Low As Reasonably Achievable (ALARA) practices.

Response: NRC disagrees with this comment. The cask user is required to verify the operability of the heat removal system by monitoring temperature instrumentation daily, as specified in TS A.3.1.6. As stated in SAR section 1.2.1.5.9, the temperature monitoring system can be read at a display device located on the outside surface of the cask or at a remote readout location. A daily inspection of the VCC vents is included in Chapter 10 of the SAR as an expected routine operation in determining a conservative, estimated annual dose due to routine operations as per ALARA practices. Whether to use a temperature monitoring system with a display on the outside of the casks or to use remote readout instrumentation is left to the cask user's discretion.

Comment C-12: Two commenters stated that the operator testing and training exercises described in CoC Section A5.0 do not require training in the importance of sequence, and commented that the CoC implies that training will be conducted solely on the activity basis, and thus, the planned training loses the importance of the various interface requirements between activities that follow each other. This omission permits operator mistakes at activity intersections and may contribute to missing parameter values or conditions that must be met for safe loading and transfer of the assembly canister from the spent fuel pool to the storage cask. The commenters stated that individual procedures should include stated preconditions that must be satisfied by the previous sequential procedure and are necessary for safely performing the subsequent activity, and that without these procedures, the application does not satisfy the requirements of 10 CFR 72.236(l).

Response: The NRC disagrees with the comment. The Administrative Controls and Programs section of the TS stipulates that the training program for the NAC-UMS system must be developed under the general licensee's systematic approach to training (SAT). The training modules must include comprehensive instructions for the operation and maintenance of the NAC-UMS System. The TS provides a detailed listing of the preoperational tests and training exercises that must be performed prior to the first use of the system to load spent fuel assemblies. Although the TS specifically recognizes that dry runs may be performed in an alternate step sequence from the actual procedures, it is the general licensee's responsibility under the SAT to establish and execute an effective preoperational testing and training program. With respect to the contents of individual procedures, Condition No. 2 of the CoC specifies that the user's written site-specific operating procedures must be consistent with the technical basis described in Chapter 8 of the SAR. The preparation of written site-specific operating procedures that contain adequate and appropriate initial conditions, prerequisites, and verifications, is not necessary prior to this rulemaking to add the NAC-UMS cask design to the list of approved storage cask designs of 10 CFR 72.214.

Comment C-13: One commenter asked why the speed of a vertical tornado-driven missile is assumed to be only 70 percent of the speed of a horizontal missile.

Response: The primary wind velocities associated with tornadoes are in the horizontal direction, and thus wind velocities in the vertical direction are considered to be less as stated in NRC review guidance. Specifically, the NUREG-0800, Section 3.5.1.4, review guidance describes the basis for the assumption that the maximum speed of a vertical tornado-driven missile, at 88.2 mph, is specified as 70 percent of a horizontal missile, at 126 mph. This vertical speed is enveloped by the horizontal missile speed of 126 mph considered conservatively in the SAR evaluation of the 1 1/2 inch-thick VCC closure plate, that can only be hit by a vertical missile. The SAR has satisfactorily demonstrated that the VCC closure plate is adequate to withstand local impingement of a tornado missile traveling at the higher horizontal speed, e.g., 126 mph.

Comment C-14: One commenter remarked that the transfer cask gets highly irradiated and exposed to high temperatures and contamination through repeated use and asked what happens to the transfer cask over time, especially the welds. The commenter stated that the trunnion area welds need inspection over time for possible leakage of pool water inside the transfer cask walls. The commenter stated that transfer casks for all cask designs need specific criteria for examination periodically and that maybe the transfer casks are too neglected in NRC thinking. The commenter also asked what happens if water gets inside the walls starting chemical reactions and adding unaccounted for weight in lifts, and what are the requirements for transfer cask testing or checking over time.

Response: The NRC agrees that the transfer cask will be subject to hostile environmental conditions such as high radiation, temperature, and contamination through repeated use. In SAR Section 9, NAC has committed to a transfer cask maintenance program to inspect the transfer cask trunnions and shield door assemblies for gross damage and proper function for each use. Annually, the lifting trunnions, shield doors, and shield door rails must be either dye penetrant or magnetic particle examined. The SAR states that the examination method must be in accordance with Section V of the ASME Code and the acceptance criteria Section III, Section NF, NF-5350, or NF5340, as required by ANSI N14.6. Therefore, the transfer cask, including trunnion welds, is examined periodically to ensure that it will function as designed over its entire service life. This provides reasonable assurance, supplemented by inspections prior to use that water will not get inside the wall to result in potential chemical reactions or unaccounted weight in lifts.

Comment C-15: One commenter stated that if berms or shield walls are to be used for radiological protection, an evaluation of tornado missiles that could be generated as a result of their constituent materials should be performed.

Response: The NRC agrees with the comment. Use of berms or shield walls for radiological protection is a site-specific consideration that is to be evaluated by the general licensee under 10 CFR 72.212 to ensure that the reactor sites parameters, including analyses of tornado missiles that could be generated due to the material constituency of any berms or shield walls, are enveloped by the cask design bases.

Comment C-16: One commenter stated that explosion needs more evaluation, noting that where there is hydrogen, there can be an explosion.

Response: The NRC disagrees with the comment. The NRC staff has found reasonable assurance that the possible generation of hydrogen due to cask loading and unloading operations has been evaluated, and that adequate controls are in place to detect and take corrective actions if significant quantities of combustible gases are generated. SAR Subsection 11.2.5 (explosion accident analysis under storage conditions) evaluates the NAC-UMS system subject to an external pressure up to 22 psig, has been accepted by the NRC staff, and provides part of the technical basis for site parameters evaluations performed in accordance with 10 CFR 72.212(b)(3). Further evaluation of the possible effects of an explosion involving hydrogen or other combustible materials under storage conditions is site-specific and beyond the scope of this rulemaking.

Comment C-17: Three commenters stated that the parameters provided in B 3.4(6) of the Approved Contents and Design Features in Appendix B of CoC 1015 are not relevant to the drop accident condition and are not relevant to the tip-over provided that the allowable seismic accelerations are not exceeded ( i.e., the cask does not tip over). As a result, the commenters request that Item 6 be revised to read: “In addition to the requirements of 10 CFR 72.212(b)(2)(ii), the seismic acceleration at the top surface of the ISFSI pad cannot exceed the value provided in B 3.4 (3).”

Response: The NRC agrees in part with the comment in that the parameters are not relevant to the SAR Subsection 11.2.4.3 VCC 24-inch vertical drop accident. These parameters have been removed from the TS as suggested. However, the same set of site concrete pad and soil parameters relevant to the tip-over analysis is being summarized in SAR Subsection 11.2.12 to ensure that the bounding side drop decelerations determined for the NAC-UMS system are available for site specific application without the need for going through additional cask tip-over analysis.

Comment C-18: Two commenters stated the heavy load lifting ability of the transfer and storage systems (described in PSER Section 3.2.3) appears to be inadequately supported and that the systems are not redundant for either attachment or lift capability, and therefore, do not satisfy the requirements for single failure of the lifting equipment. The commenters also stated that the transfer cask trunnions and storage cask lifting lugs are not redundant and do not satisfy the requirements for single failure or the requirements of 10 CFR 72.236(h).

Response: The NRC disagrees with the comment on the adequacy of SAR evaluation for heavy load lifting abilities of the VCC lifting lugs and transfer cask trunnions.

As noted in SER Subsection 3.2.3.4, the SAR demonstrates structural acceptance of the VCC components for the top lift operation in accordance with ANSI N14.6. The basic design stress factors of 3 and 5 against materials yield (S y ) and ultimate (S u ) strengths, respectively, are met with the allowable stress the lesser of S y /3 or S u /5. The commenters were correct that the VCC lifting lugs do not meet the single-failure-proof lifting provision because the lifting lugs provide a single-load path. However, the SAR Subsection 11.2.4 VCC drop analysis is consistent with the assumption of non-single failure proof lifting lugs. Also, the VCC lift lugs do not need to be single failure proof because of accident analysis and administrative controls. The applicant's evaluation of a possible 24-inch vertical drop (limited by controls to a lift height of 24 inches or less) of the VCC was shown to have no significant radiological consequences, and has been accepted by the NRC staff.

On transfer cask trunnions, SER Subsection 3.2.3.1 recognizes that, for a two-trunnion lifting configuration, the maximum trunnion bending stress corresponds to the stress design factors of 9.4 and 20.7 that are larger than the required factors of 6 and 10 against the material yield and ultimate strengths, respectively. Therefore, the structural capability of the trunnions satisfies the ANSI N14.6, Section 7.1, requirements for lifting critical loads with either a dual-load path handling system (with the basic design stress factors of 3 and 5 against materials yield and ultimate strengths, respectively), or a single-load path system with increased design stress factors that double the basic design stress factors.

Comment C-19: Two commenters stated that the criticality analysis as discussed in the PSER Section 6.4 does not provide a listing of the fissile material in the spent fuel assemblies, without which the analysis is questionable and does not satisfy the requirements of 10 CFR 72.236(c). Of particular concern is the concentration of Pu-239 which continues to undergo spontaneous fission and therefore, increased neutron flux.

Response: The NRC disagrees with the comment. The criticality analysis uses the conservative assumption of fresh fuel without burnable poisons. The analyzed fresh-fuel composition is always more reactive than the actual composition of irradiated fuel. Consistent with the fresh-fuel assumption, the criticality analysis lists only the fissile materials present in fresh fuel. Results of the analysis clearly demonstrate compliance with 10 CFR 72.236(c), the requirement that the spent fuel be maintained in a subcritical condition. The NRC notes that the neutron flux arising from spontaneous fission or other fixed neutron sources in the cask has no bearing on the neutron multiplication factor, k eff . Furthermore, as shown in the shielding analysis, the neutron flux in stored spent fuel arises mainly from the spontaneous fission of Cm-242 and Cm-244. Spontaneous fission of Pu-239 contributes very little to the neutron flux in spent fuel.

Comment D-1: One commenter expressed concern about icicles forming and covering the cask vent holes. The commenter stated that more study is needed for full cask array monitoring and cleaning in an ice storm, and that plans should be made for this situation.

Response: TS A.3.1.6, “Concrete Cask Heat Removal System” requires that the cask user perform daily surveillance to verify the cask outlet temperature. The method of performing the daily check is a site-specific consideration of the cask user. If the daily temperature surveillance indicates a temperature outside of the acceptable range, then an inspection must be performed within 4 hours to verify that the inlets and outlets are not blocked or obstructed.

Comment D-2: One commenter did not share the NRC's reasonable assurance that cladding will be protected in unloading because it has never really been tried and tested. The commenter stated that this testing needs to be performed on cladding material and that the commenter has been requesting the NRC to prove the cladding integrity for years.

Response: The NRC disagrees with the comment. The NAC-UMS storage cask system design has been reviewed by the NRC. The basis of the safety review and findings are identified in the SER and CoC. Testing is normally required when the analytic methods have not been validated or assured to be appropriate and/or conservative. In place of testing, the NRC finds acceptable analytic conclusions that are based on sound engineering methods and practices. The NRC has reviewed the analyses performed by NAC and found them acceptable. However, as part of an ongoing cooperative research effort (NRC, DOE, and EPRI) regarding long-term performance of spent fuel storage, one spent fuel storage cask has been unloaded and inspected at INEEL in Idaho. Results to date are quite reassuring that the behavior of the casks and fuel assemblies is as expected.

Comment D-3: One commenter asked what is the purpose of adding solar heat to the outer cask surface and averaging over a 12-hour period for the air flow and concrete cask model. The commenter also stated that reducing the view factor when analyzing thermal interaction among casks in an array, as was done for this design, should be done for all cask designs.

Response: The purpose of adding insolation to the air flow and concrete cask model is to include the effect of solar heat on the cask that would heat the outer surface of the concrete cask and reduce heat removal from the canister through the concrete. The amount of solar heat is determined from 10 CFR Part 71 and may be averaged over a 24-hour period per the guidance provided in NUREG-1536, the Standard Review Plan for Dry Cask Storage Systems. The comment that other cask designs should similarly reduce the view factor to compensate for an array arrangement is outside the scope of this NAC-UMS rule.

Comment D-4: Three commenters requested that the language in B 2.1.2 of the “Approved Contents and Design Features” addressing preferential loading and center position loading of shortest cooled fuel be revised as follows:

• The last two sentences of the first paragraph of this section should be deleted.

• The second paragraph should be revised to delete reference to the “basket interior,” which is described as the “basket center positions” in the previous paragraph.

• The third paragraph should be moved prior to the current first paragraph.

• The first sentence of the current second paragraph should be made a separate paragraph, as it is not related to the text that follows.

Response: The NRC has no objection to editing Section B2.1.2 as suggested, because it does not change the loading configuration or the means of accomplishing preferential loading. The specification has been revised consistent with the comment.

Comment D-5: One commenter noted that SER Section 1.1.1 does not specify the material of the tie rods of the BWR basket. The commenter asked why the change in materials to carbon steel for the BWR basket disks were made, necessitating the electroless nickel coating to protect from corrosion. The commenter also asked several other questions about the nickel coating including the criteria for applying the coating; how the coating is checked to ensure it is properly applied; how the coating is checked for long term storage and unloading pressures, stresses, and temperatures; if the NRC has checked the manufacturer's sheets for the coating; and if the BWR support disk coating has been evaluated for material reactions.

Response: The tie rods of the PWR and BWR baskets are fabricated with ASME SA-479 Type 304 stainless steel. The applicant chose carbon steel as the BWR support disk material because it has higher allowable stresses and load carrying capability.

The BWR support disks are coated with electroless nickel in accordance with American Society for Testing and Materials (ASTM) Specification B733-1997 (SC3, Type V, Class 1). The drawings specify the application in accordance with the ASTM specification, and the ASTM specification includes criteria to ensure proper application. All fabrication activities are to be carried out under a quality assurance program that meets the requirements of 10 CFR Part 72. As noted in SAR Section 3.4.1.2.4, the applicant demonstrated that the nickel coating is not expected to react with the spent fuel pool water during loading or unloading operations such that unsafe levels of flammable gas are produced. In the event flammable gases are produced from chemical or galvanic reactions, the procedures of SAR Sections 8.1 and 8.3, which specify that the cask user monitor the concentration of hydrogen gas during welding or cutting operations on the shield lid welds, ensure that accumulation of flammable gases is negligible and that workers are protected. Therefore, the NRC has reasonable assurance that the BWR support disk coating will not react with the spent fuel pool water during loading and unloading to produce unsafe levels of flammable gases.

Comment D-6: Two commenters stated that neither the PSER nor the PSAR explain how consolidated fuel assemblies that have been canned will maintain confinement in the NAC-UMS system. They also note that the process of consolidation is expected to produce broken/damaged rods and that the screens will not confine the powder form (U 3 O 8 ) of the fuel.

Response: This comment is beyond the scope of this rule. For this rulemaking, the NAC-UMS storage system SAR only considers the storage of intact spent fuel that meets the limits as specified in the TS.

Comment D-7: One commenter questioned the design and performance of the transfer cask extension and asked if it had been evaluated in relation to all evaluations for the TSC itself. The commenter asked if there is any possibility that the active fuel region could be pulled up into the extension area of the transfer cask and if all risks associated with use of the extension have been evaluated.

Response: The extension for the transfer cask is needed to provide gamma shielding to the workers while the transfer cask is being moved from the spent fuel pool to the VCC. The extension provides gamma shielding when the overall height of a standard fuel assembly has been increased due to the insertion of a control assembly. Because there is no neutron source associated with the control assembly, the NS-4-FR neutron shield is not needed. Because of the distribution of the active fuel region of a fuel assembly and the configuration of the transfer cask, the possibility of the active fuel region being pulled up into the extension is improbable.

The structural performance of the bolts that attach the transfer cask extension to the PWR Class 2 transfer cask has been evaluated in SAR Subsection 3.4.3.3.4 for inadvertent TSC lifting against the retaining ring. Subsection 3.2.3.1 of the SER evaluates transfer cask load bearing components, including the transfer cask extension, and concludes that they are structurally acceptable.

Comment D-8: Three commenters stated that a number of the NAC-UMS license drawings require some minor revisions, citing that the initial fabrication processes for the NAC-UMS have identified the need for additional clarifications and corrections to address editorial omissions for some of the current license drawings. The commenters noted that the requested revisions do not constitute design changes to the components or require revision of the existing SAR text or supporting evaluations. The commenters also stated that the incorporation of the requested revisions will significantly enhance the fabrication inspection process and allow authorized users of the NAC-UMS System to fabricate the components without processing 10 CFR 72.48 evaluations for minor variations with the current license drawings. The commenters' comments relate specifically to the following drawings: 790-559, 790-560, 790-561, 790-562, 790-563, 790-564, 790-570, 790-575, 790-581, 790-582, 790-583, 790-584, 790-585, 790-595, and 790-605.

Response: The NRC agrees, with the exception of the addition of NS-3 as a neutron shield material in the VCC shield plug, that the additional clarifications and corrections to address editorial omissions on the drawings do not constitute design changes to the components or require revisions to SAR text or the NRC's CoC, TS, or SER. The characteristics and evaluation of the use of NS-3 neutron shielding material have not been provided in the SAR; thus the NRC considers this aspect to be a design change. The NRC considers enhancements to the fabrication inspection process as a result of the drawing changes beneficial to all stakeholders.

Comment D-9: Three commenters requested that B.2.2.3 of the Approved Contents and Design Features be revised to indicate the phrase “or demonstrate” between the (existing) words “restore” and “compliance.”

Response: The NRC agrees with the proposed clarification of the TS, and it has been revised accordingly.

Comment D-10: Three commenters requested that the following additional note be added to both Tables B2-2 and B2-4 of the Approved Contents and Design Features: “Parameters shown are nominal pre-irradiation values.”

Response: The NRC agrees with the proposed clarification of the TS, and it has been revised accordingly.

Comment D-11: One commenter noted that a 24-inch drop would result in permanent deformation of the air inlets of the TSC pedestal and loss of part of the inlets. The commenter did not believe that the pedestal should be part of the inlets.

Response: The NRC disagrees with the comment. The air inlets are an integral part of the pedestal or base weldment. The base weldment, that supports the TSC is expected to undergo yielding and partial collapse in a 24-inch drop of the VCC. SAR Subsection 11.2.4 presents the finite element analysis for calculating a bounding TSC deceleration and corresponding VCC base weldment deformation, that have been evaluated in SER Subsection 3.3.5.2. The NRC agrees with the SAR assessment that the 1-inch deformation of the air inlets is small compared to the 12-inch height of the air inlet because the effect of this deformation is bounded by the blockage of half of the air inlets evaluated in SAR Subsection 11.1.2 for satisfying the radiological dose limits of 10 CFR 72.102(a). It is important to note that although the accident evaluation for the concrete cask 24-inch drop has determined that the cask will remain functional and that there would be no radiological impact from the event, a full evaluation and corrective action of such an event's effects on cask performance, such as replacing the damaged VCC, would be performed according to the cask users corrective action and quality assurance processes.

Comment D-12: Three commenters requested that B 3.5.2.1 (4) of the Approved Contents and Design Features be revised to read: “The CHF design shall incorporate an impact limiter for CANISTER lifting and movement if a qualified single failure proof crane is not used.”

Response: The NRC agrees with the comment. B 3.5.2.1 (4) has been revised as suggested.

Comment D-13: Three commenters agreed that the following parameter definition clarifications are needed to Table B3-2 of the Approved Contents and Design Features: “D” should be revised to read “Crane hook dead load” and “D*” should be revised to read “Apparent crane hook dead load”.

Response: The NRC agrees with the comment. Table B3-2 has been revised as suggested.

Comment D-14: Two commenters stated that the process of placing the spent fuel in the canister is not adequately justified as required by 10 CFR 72.236(l). The industry consensus standard, ANSI/ANS-57.1, “Design Requirements for Light Water Reactor Fuel Handling Systems” requires a translation inhibit for the spent fuel handling equipment. The commenters commented that although the standard permits an allowed bypass for this interlock, the bypass is limited to a jogging function. The NAC-UMS procedures do not make it clear that installed bypasses must be performed step-by-step as required by the standard, not in a continuous motion. The commenters stated that the handling equipment of a plant applying for approval to load dry storage canisters should be checked for continuous translation bypass in sensitive areas to eliminate the potential for a major radioactive dispersal accident.

Response: This comment is beyond the scope of this rule. Safe fuel handling practices at reactor sites, including cask loading and unloading operations, are the responsibility of the 10 CFR Part 50 licensee. Section 72.212 requires general licensees to determine if activities related to the storage of spent fuel involve any unreviewed safety question or change in the facility TS. The general licensee's evaluations and spent fuel handling practices are subject to regulatory oversight by the NRC's inspection process.

Comment D-15: One commenter was concerned that a fuel assembly with too short bottom hardware can extend below the bottom of the poison panels, and asked if requiring a minimum length of bottom hardware will prevent this extension and if workers will measure it correctly. The commenter thought it would be safer to have longer poison panels and asked if cost-cutting is a factor.

Response: Requiring a minimum length of bottom fuel hardware will indeed prevent the bottom of the active fuel from extending below the bottom of the poison panels under normal and accident conditions. The length of a fuel assembly's bottom hardware is usually known from the fuel design drawings or other fuel records. When this is not the case, the NRC sees no significant difficulties in the use of simple in-pool measurements (e.g., with a video camera and ruler) to adequately determine the bottom hardware dimensions. Because the required minimum length of fuel bottom hardware and spacer effectively precludes unanalyzed configurations of the fuel and poison, the NRC finds no basis for requiring NAC to use longer poison panels. The NRC has not considered cost factors in concluding that the cask design complies with the applicable safety regulations.

Comment E-1. One commenter asked why partial penetration welds should be acceptable for the shield and structural lids. The commenter does not consider the closure redundant if the shield lid cannot be ultrasonically tested and stated that the structural lid needs a full penetration weld with ultrasonic testing because this area is crucial.

Response: The NRC accepts the closure weld's configuration and examination in accordance with Interim Staff Guidance-4, Revision 1 that allows the use of a partial penetration closure weld and a multi-layer (i.e. progressive) liquid penetrant (PT) surface examination in lieu of a volumetric examination. Furthermore, ASME Code Case N-595-2, “Requirements for Spent Fuel Storage Canisters” permits partial penetration welds for end closures using two cover plates and liquid penetrant examination of the weld.

Comment E-2: One commenter was concerned about the pedestal weldment, stated that one inch may make a big difference in deformation, and asked if all possible problems have been examined.

Response: The pedestal weldment that supports the TSC, is expected to undergo yielding and partial collapse in a 24-inch drop of the VCC. SAR Subsection 11.2.4 presents a finite element analysis for calculating a bounding TSC deceleration and corresponding pedestal air inlets deformation that has been evaluated in SER Subsection 3.3.5.2. The NRC agrees with the SAR assessment that the 1-inch deformation is small compared to the 12-inch height of the air inlet. Also, the effect of this deformation is bounded by that of the blockage of half of the air inlets that has been evaluated in SER Subsection 11.1.2 for satisfying the radiological dose limits of 10 CFR 72.102(a). See also related response D-11.

Comment F-1: One commenter asked why the pedestal plate and cask base plate are carbon steel and not stainless steel. The commenter asked for an explanation of the pedestal plate: how it is used, for what purpose, what shape it is, can it rust to the cask bottom plate and the canister bottom plate creating a problem in pulling out the canister, why is it not ceramic, why the VSC-24 necessitated ceramic tiles, and what it does long term in storage.

Response: As depicted in SAR Figure 11.2.4-1 and Drawing 790-561, the pedestal or weldment plate is a 2-inch thick, 67.5-inch diameter, horizontal circular carbon steel plate. It provides a direct bearing surface to the TSC for transmitting gravity and impact vertical loads, through the vertical ring and inner cone baffle weldments, to the VCC support pad. Detail B-B of SAR Drawing 790-560 shows that a 1/4 -inch thick stainless steel plate is installed between the TSC bottom and the pedestal plate. The stainless steel plate isolates the TSC from the VCC carbon steel base plate. This configuration will prevent the carbon steel pedestal plate from rusting to the stainless steel TSC canister bottom. Therefore, no adherence force will develop to cause any shifting, deforming, or cracking of the pedestal plate in handling, as suggested.

Analysis of the VSC-24 cask design is beyond the scope of this rule.

Comment F-2: Two commenters noted that although the PSER structural analysis (Sections 3.1 and 3.4) discusses three types of tornado-generated missiles, there is no analysis of a terrorist attack in the form of a fired missile. Foreign regulatory agencies are now requiring such an analysis. The commenters commented that the need for the analysis is driven further by a common location of the ISFSIs near international waters and that the recent introduction of high penetrating depleted uranium missile shells adds to the concern of a terrorist event. The commenters stated that an analysis of the vulnerability of an ISFSI to such an attack may identify the need for sturdier storage module surfaces, an expanded site security area, or a storage enclosure, and that without such an analysis, the application does not satisfy the requirements of 10 CFR 72.236(l).

Response: The NRC disagrees with the comment. The NRC reviewed potential issues related to possible radiological sabotage of storage casks at reactor site ISFSIs in the 1990 rulemaking that added Subparts K and L to 10 CFR Part 72 (55 FR 29181; July 18,1990). The NRC regulations in 10 CFR Part 72 establish physical protection requirements for an ISFSI located within the owner-controlled area of a licensed power reactor site. Spent fuel in the ISFSI is required to be protected against radiological sabotage using provisions and requirements as specified in 10 CFR 72.212(b)(5). Further, specific performance criteria are specified in 10 CFR Part 73. Each utility licensed to have an ISFSI at its reactor site is required to develop physical protection plans and install systems that provide high assurance against unauthorized activities that could constitute an unreasonable risk to the public health and safety.

The physical protection systems at an ISFSI and its associated reactor are similar in design features to ensure the detection and assessment of unauthorized activities. Alarm annunciations at the general license ISFSI are monitored by the alarm stations at the reactor site. Response to intrusion alarms is required. Each ISFSI is periodically inspected by the NRC. The licensee conducts periodic patrols and surveillances to ensure that the physical protection systems are operating within their design limits. It is the ISFSI licensee who is responsible for protecting spent fuel in the casks from sabotage rather than the certificate holder. Therefore, the commenter's interpretation of 10 CFR 72.236(l) as requiring the cask design to be analyzed for specific forms of terrorist attacks is beyond the scope of this rule.

Comment F-3: One commenter noted that the NAC-MPC VCC weighs 155,000 pounds and that the NAC-UMS VCC weighs between 221,000 and 238,000 pounds empty, and asked if this weight has been evaluated for all systems. The commenter also asked why the UMS wall is 7 inches thicker than the MPC and the carbon steel liner thickness is 1 inch less in the UMS than in the MPC, suggesting that more concrete and less steel was used to cut costs.

Response: The weights for five classes of VCC listed in SAR Table 1.2-5 have been considered to establish bounding values for evaluating structural performance of the NAC-UMS system. The design for the thickness of the concrete wall and its liner plate for different storage cask systems is NAC's choice to meet various cask performance objectives such as protection from tornado missiles and radiation shielding and heat rejection. The design has been evaluated in the SAR and found acceptable by the NRC.

Comment F-4: One commenter asked why in Section 3.1.1.3 of the SER the transfer cask extension is identified as “low alloy steel” instead of “carbon steel.”

Response: The NRC recognizes that the transfer cask extension is fabricated with the ASTM A516, Grade 70, carbon steel, per SAR Drawing 790-560. Accordingly, SER Subsection 3.1.1.3 is revised to read: “The transfer cask extension is a carbon steel ring designed to be bolted to the transfer cask.”

Comment F-5: Three commenters noted that either plate or forging material specified in ASME SA240 or ASME SA 182 should be permitted for both the shield lid and structural lid of the TSC. The commenters stated that only minor differences exist between the properties of each material and that these differences do not affect the performance of the components in the NAC-UMS System.

Response: The NRC agrees with the comment. NAC has noted in SAR Section 3.4.4.1.11 that the forged material is required to have ultimate and yield strengths that are equal to or greater than the plate material. This ensures that the critical flaw size determination is applicable to both the SA-240 and SA-182 materials. SAR Drawing 790-584 has been revised to permit the use of ASME SA182 as an alternate to SA240 for both the shield and structural lids of the TSC.

Comment G-1: One commenter asked how the NRC can assure the public that determination of the design basis decay heat load was done properly and who checks this determination.

Response: The design basis heat load is determined by the applicant, supported by their calculations, loaded in accordance with their procedures, and demonstrated to be in compliance with the design by TS surveillance measurements of the cask air inlet and air outlet temperatures. The NRC reviewed the SAR to provide assurance that the thermal design meets the regulations and performs as intended. The NRC, as stated in Section 4.3 of the SER, confirmed through analysis a sample of the decay heat loads identified in the SAR and verified through independent analysis that the design bases heat load is bounding. The NRC has concluded that the design bases heat load was determined properly. The user has the responsibility to load the canister in accordance with site-specific operating procedures that reflect the TS limits, including those limits imposed on heat load.

Comment G-2: One commenter considered the fuel cladding temperature increase and reduction in normal temperature margin to be quite large when a sensitivity analysis was performed on fabrication tolerances on gap size between the support/heat transfer disks and the canister shell. The commenter asked if the fabrication tolerances can be tightened.

Response: The NRC evaluated the effect of fabrication tolerances and has determined that the consequences are acceptable. Further “tightening” of tolerances may hinder fabrication of the canister/basket assembly and possibly adversely effect spent fuel loading and unloading operations.

Comment G-3: Three commenters requested that the language of LCO 3.1.1 (Canister Maximum Time in Vacuum Drying) with respect to “in-pool cooling” be clarified to not restrict this cooling to only the spent fuel pool. The commenters noted that in some plant configurations, the use of the cask loading area or area other than the fuel pool may be desirable for providing cooling. The commenters also request that the second frequency for both surveillance requirement 3.1.1.1 and surveillance requirement 3.1.1.2 be revised to read: “as required to meet the Limiting Condition for Operation (LCO) time limits.”

Response: The NRC disagrees with the comment. Insufficient information has been provided to describe the alternative to in-pool cooling. Spent fuel pools are maintained in a specific temperature range whereas the proposed alternative appears not to be limited in either temperature or configuration. Currently, more than one cooling method is provided because the referenced LCO 3.1.1 does allow forced air cooling as an alternative to in-pool cooling. Adding “as required to meet Limiting Condition for Operation (LCO) time limits” to the second frequency of surveillance requirement (SR) 3.1.1.1 and SR 3.1.1.2 more clearly identifies the required time intervals, is acceptable to the NRC staff, and has been revised accordingly.

Comment G-4: Three commenters stated that under LCO 3.1.6 (Concrete Cask Heat Removal System), SR 3.1.6.2 should be deleted. The commenters noted that this surveillance is already required under A 5.4, “Administrative Controls and Programs” and that A 5.4 should be revised to clearly state for which off-normal, accident, or natural phenomena events the surveillance should be performed. The commenters stated that reference to Chapter 11 of the SAR, NUREG-1536, or 10 CFR 72.24 and 72.122 would identify events that would require surveillance.

Response: The NRC agrees with the comment to delete SR 3.1.6.2 because Administrative Control A 5.4 ensures that the ISFSI will be inspected within 4 hours of an off-normal, accident, or natural phenomena event to ensure that at least half of the air inlets and outlets on each concrete cask are free of blockage within 24 hours. Also, SR 3.1.6.1 requires a comparison of the cask outlet temperature to the ambient temperature every 24 hours. However, the NRC does not agree to list the specific events in A 5.4 that could cause blockage because SAR Chapter 11 does not provide a comprehensive listing, but instead gives examples of possible events.

Comment G-5: Two commenters noted the NAC-UMS system dissipates heat through conduction from the center of the fuel assembly-filled canister to the canister walls and away from the canister through natural convection by air circulation over the canister's outer surface. The commenters stated that the analysis of the expected configuration described in the PSER Section 4.4.1.2 is based on an unrealistic physical model that assumes concentrically centered fuel assemblies. In fact, conduction is radial (not axial) and is based solely on the physical contact of the fuel assembly with the basket holding the assemblies. The commenters stated that because the NAC-UMS system is a vertical storage system, there is a potential for nonuniform physical contact between the basket and the fuel assembly and that for this reason, hot spots may develop along the axial direction of the fuel rod. The commenters stated that the PSER does not analyze the degradation effects of these hot spots to assure cladding integrity throughout the license storage period and thus, the application does not satisfy the requirements of 10 CFR 72.236(b), (e), (f), and (l).

Response: The NRC disagrees with the comment. The SAR clearly states that conduction and radiation are modeled in the axial and radial directions. Certain aspects of heat transfer are conservatively ignored (e.g. radiation heat transfer from the fuel tubes, and contact between fuel assemblies and fuel tubes, fuel tubes and support/heat transfer disks, and support/heat transfer disks and the canister wall). Consideration of these omissions would only increase the heat transfer from the basket assembly and result in a lowering of the calculated fuel cladding temperature.

Comment G-6: Three commenters stated that to provide for a safer approach and greater flexibility in the loading and use of the NAC-UMS System, the TS should be revised to extend the LCO completion time frames based on a variable heat loading, as appropriate. The commenters noted that the design basis heat load time frames do not provide for an optimal approach to the loading and use of the first canister or those canisters that contain fuel with significantly lower heat loads. The commenters indicated that lower thermal loading will provide for extended time frames for many of the current LCO's and enhance operational safety when loading a canister with lower heat loads. The commenters propose that time frames for 20kW, 17kW, 14kW, 11kW, and 8kW be added to the current 23kW design maximum heat load used in developing the current LCO time frame.

Response: The NRC agrees with the comment in principle; however, the NRC considers the certificate amendment process the most appropriate vehicle for implementing such a change at this time. The NRC has already completed its evaluation and solicited public comments by the rulemaking process, based on the request contained in the application. Extensive changes to the TS to include 5 levels of lower cask heat loads, with corresponding changes to the LCO completion time frames, would necessitate additional NRC review and changes to the CoC and SER to an extent that would warrant soliciting additional public comments on the proposed changes. The NRC notes that similar modifications have already been submitted for NRC review in connection with a certificate amendment request to accommodate the contents of the Maine Yankee spent fuel pool.

Comment H-1: One commenter stated that the evacuated envelope helium leak test sounds inadequate and that the sniffer probe is not the greatest test either. The commenter said that if the shield lid weld cannot be ultrasonically tested, the weld cannot be called a redundant seal. The commenter has concerns for future leakage, especially in shield lid welds, because of the perceived flaws possible in these lid welds.

Response: The NRC disagrees with the comment. For the types of helium leak tests proposed, the NRC found that these tests are capable of detecting leaks to the required sensitivity provided they are performed properly. Furthermore, liquid penetrant examinations are performed on all field welds' root and final surfaces, or progressive liquid penetrant examinations ( i.e. root, mid-plane, and final surface of the structural closure weld) in accordance with Interim Staff Guidance ISG-4. For the type of welding process, the environmental conditions near the weld, and the austenitic stainless steel weld base material, there are no known delayed cracking mechanisms that could cause the weld to crack after it has been examined. Subsequent to completing the shield lid field weld, a pneumatic pressure test is performed and then a helium leak test is conducted in accordance with the leak-tight criteria of ANSI N14.5. These tests and examinations have been accepted by the NRC as assurance that the requirements of 10 CFR 72.236(e) for redundant sealing of the confinement boundary have been met.

Comment H-2: One commenter objected to the use of progressive liquid penetrant examination (PT) instead of ultrasonic examination (UT) for the structural lid-to-shell weld. The commenter stated the NRC's justification of allowable flaw size is inadequate and needs reevaluation. The commenter commented that the NRC admits progressive PT is not in agreement with ASME code and that making it easier to test welds and accept flaws is in the favor of the utility and vendor, not the safety of the public and workers. The commenter also stated that “sufficient intermediate layers” is an inadequate requirement that should be more specific.

Response: The NRC accepts examination of the cask closure welds in accordance with Interim Staff Guidance-4, Revision 1 that allows the use of a multi-layer ( i.e. progressive) liquid penetrant (PT) examination in lieu of a volumetric examination. As stated in the ISG, the critical flaw size is determined in accordance with ASME Section XI methodology and is used to determine the spacing between successive PT examination layers. There is enough experience with the progressive PT method to conclude with reasonable assurance that it will detect flaws that are open to the surface and are of a size that would affect the serviceability of the weld. The probability of a failure to detect a flaw of this size because it did not break the surface is low because the liquid penetrant test is undertaken at intermediate weld pass levels ( i.e. at 3/8 inch for the 7/8 -inch thick structural lid closure weld) as well as at the root and final weld passes.

Comment H-3: Three commenters stated that LCO 3.1.6 (Concrete Cask Heat Removal System) should be revised to modify Required Action B.2.2 to allow for the use of supplemental cooling to the concrete cask with a completion time of 12 hours. The commenters also requested a deletion of the reference to transferring the canister to the transfer cask, as use of the transfer cask only is overly restrictive and may not be feasible in some conditions.

Response: The NRC disagrees with the request to change LCO 3.1.6 to provide an alternative to cooling the canister (by presumably providing some form of forced convection) prior to being required to remove it from the concrete cask. No details have been provided that describe how this would be accomplished. Therefore, this request is not acceptable to the NRC. Additionally, in the NRC's judgment, the use of the transfer cask to provide a means of cooling should remain as an option.

Comment H-4: Three commenters stated that the language of LCO 3.1.5 (Canister Helium Leak Rate) should be revised to read “demonstrate a helium leak rate of less than or equal to” rather than “demonstrate a helium leak rate of less than.”

Response: The NRC agrees with the comment. The TS has been changed to incorporate the change in wording.

Comment H-5: One commenter noted that ISG No. 3 lets the vendor and utility “off the hook” as to letting the public know an analysis of the dose consequence from a ground level canister breach with 100% fuel rod failure because it is not credible and the analysis is unnecessary. The commenter's view was that vendors and utilities do not want this analysis out to the public to reduce fear of such a failure. The commenter stated that dry cask storage is in its infancy and that such a failure is possible. The commenter said that the public deserves to know dose consequences of all related events, the NRC should be for public and worker safety, and the more information and education the public can get on dry cask storage, the more the public can help solve the problems and ask the right questions.

Response: The NRC disagrees with the implication that ISG-3 was developed to reduce the fear of the public to nonmechanistic accidents such as noncredible failures of the confinement boundary. ISG-3 clarifies the distinction between retrievability and postaccident recovery, and focuses on the identification and evaluation of all credible accident scenarios affecting public health and safety. ISG-3 specifically places emphasis on identifying accidents with potential consequences resulting in the failure of the confinement boundary and also recommends the modification of emergency plans and event detection capabilities to ensure that licensees have the ability to identify an accident or non-compliance situation. The NRC agrees with the remainder of the comment regarding the rights of the public pertaining to the dose consequences of credible events, concerns regarding public and worker safety, and providing information that enhances the overall understanding of dry cask storage.

Comment H-6: Three commenters requested that Section A5.2 [after A5.2 (n)]of the TS be revised to add the following sentence: “Appropriate mockup fixtures may be used to demonstrate and/or to qualify procedures, processes, or personnel in welding, weld inspection, vacuum drying, helium backfilling, leak testing, and weld removal or cutting.”

Response: The NRC agrees with the proposed clarification of the TS and it has been revised accordingly.

Comment H-7: Three commenters requested that Table A5-1 of the TS be revised to indicate a Lifting Height Limit of “<24 inches.” The commenters noted that this requested change is consistent with Section 11.2.4.2 of the Preliminary Safety Evaluation Report.

Response: The NRC agrees with the comment. Table A5-1 of the TS has been revised as suggested.

Comment I-1. One commenter recommended that the SAR title shown in the proposed cask CoC state “as amended” instead of “Revision 2.” The commenter commented that identifying a specific SAR revision in the CoC may imply that a CoC amendment requiring prior NRC approval would be required to amend or revise the FSAR. However, the approved changes to 10 CFR 72.48 will allow the cask certificate holder to make changes to the FSAR without prior NRC approval. Also, 10 CFR 72.248 requires the cask certificate holder to periodically update the cask FSAR. Therefore, it would be more accurate and reflect the 10 CFR 72.48 change process and the 10 CFR 72.248 FSAR update requirement if the SAR title shown in the CoC were to state “as amended.” This is typically how Part 50 reactor operating licenses refer to the reactor FSAR.

Response: The NRC agrees with the comment. The SAR Title shown on the CoC has been revised to delete a reference to a particular SAR revision number.

Comment I-2: Two commenters stated that neither the applicant nor the NRC has analyzed the impact of pinhole and hairline crack cladding defects over the 20-year license period, much less over the likely storage duration. The commenters stated that extraordinary attention must be given to the removal of water from the loaded canister and that the proposed vacuum drying process will not remove the water completely. They also asserted that available water will react with UO 2 based fuel to form a U 3 O 8 phase that could lead to unzipping of the cladding with hairline cracks or pinhole leaks. Therefore, they believe emerging research shows that incomplete drying of the spent fuel before storage combined with demonstrated physical processes can enlarge those defects and “unzip” the cladding, thus breaching a primary containment barrier for the fuel.

Response: The NRC agrees that vacuum drying is an important procedure to prevent the degradation of the spent fuel cladding during storage. However, the NRC disagrees that the impacts of pinhole and hairline crack cladding defects on long term storage have not been evaluated.

All spent fuel storage cask licensees are required to conduct vacuum drying and inert gas backfilling operations to remove oxidizing species from the cask and prevent cladding degradation. As discussed in the report, “Evaluation of Cover Gas Impurities and Their Effects on the Dry Storage of LWR Spent Fuel” (Report Number PNL-6365), and as described in the Standard Review Plan for Dry Cask Storage Systems (NUREG-1536), the combination of the low pressure and elevated temperature of the spent fuel during vacuum drying should remove all of the water from the cask and oxidizing species to an amount less than 1.0 gram-mole. More specifically, after the liquid water has been removed from the storage cask, the air and water vapor are evacuated from the cask until a steady pressure of less than or equal to 3 millimeters of mercury (mm Hg) is achieved and maintained for 30 minutes. Then, the cask is backfilled with helium gas before a second cycle of vacuum drying ( i.e. , 3 mm Hg for another 30 minutes) is performed. The cask user is required, by the operating procedures in the SAR and in the TS to perform the vacuum drying procedure to ensure there is less than 1.0 gram-mole of oxidizing gases in the cask. These procedures reduce the levels of oxidizing gases to concentrations below those that could cause the fuel to oxidize to the U 3 O 8 phase and produce larger gaps in cladding with existing pinhole or hairline crack defects. Therefore, the NRC has reasonable assurance that, if cask licensees conduct the vacuum drying and inert gas backfilling procedures in accordance with the TS of the SAR, the cladding will be protected from gross ruptures (or “unzipping”) during storage.

Comment I-3: Two commenters stated that the applicant has not provided reasonable assurance that the NAC-UMS storage system will maintain the required level of confinement integrity in the proposed dry storage installation under the known, normal conditions; has not provided the required assurance that the single failure-proof confinement requirements for cladding and cask integrity will be unimpaired during the expected storage interval; and in particular, has not provided assurance that the integrity of the primary confinement barrier (cladding) will be maintained during the licensed period from cask closure until relicensing or shipment. The commenters also stated that the absence of a primary barrier violates the single failure requirement in 10 CFR 72.236(e) for confinement of the radioactive material.

Response: The NRC disagrees with the comment. In general, the spent fuel cladding is not considered to be the primary confinement boundary of a dry storage cask. Cladding integrity is very important to prevent the fuel from redistributing in the storage cask and to ensure that any release of radioactive material from the cladding has been analyzed in the SAR. For example, one assumption of the confinement analysis is that 1%, 10%, and 100% of the fuel source term are available for release from the cladding under normal, off-normal, and hypothetical accident conditions, respectively. As a conservative approach, the analyses are conducted with those source term release fractions even though there may be no pinholes or hairline cracks in the cladding under normal, off-normal, and hypothetical accident conditions. Further, the NRC has reasonable assurance that existing cladding integrity will be preserved by both maintaining cladding temperatures below the calculated temperature limits and conducting vacuum drying operations in accordance with the TS. (Also, refer to the responses to comments C-6 and I-2.)

As noted in SER Section 7.1, the primary confinement boundary of the NAC-UMS storage system includes the TSC shell, bottom baseplate, shield lid (including the vent and drain port cover plates), and the associated welds. The shield lid (with the vent and drain port cover plates welded to the lid) and the structural lid are independently welded to the upper part of the TSC shell. This design provides redundant sealing of the confinement boundary and satisfies the requirements of 10 CFR 72.236(e). Therefore, through the analyses presented in SAR Chapter 7, the applicant has demonstrated that the NAC-UMS storage system will maintain the required level of confinement integrity under all conditions of storage. As documented in SER Chapter 7, the NRC concludes that the design of the confinement system of the NAC-UMS storage system is in compliance with 10 CFR Part 72.

Comment I-4: One commenter stated that control components should be low level waste and that only high level waste should be allowed in high level waste containers being sent to a repository. The commenter thinks that failure to separate high and low level waste will result in more handling and confusion in the long run.

Response: The NRC has issued Interim Staff Guidance No. 9, entitled, “Storage of Pressurized Water Reactor (PWR) Fuel Assembly Integral Hardware” to address the authorized storage of control components in spent fuel storage casks. Although control rods are specifically excluded from the NAC-UMS authorized contents, other integral components ( e.g. , burnable poison inserts and thimble plugs) associated with fuel assemblies have been requested as authorized contents. The NRC's evaluation considered the guidance of ISG-9 in the preliminary SER as it relates to storage under 10 CFR Part 72. The aspects of the comment pertinent to the separation of high and low-level wastes and the future acceptance criteria at a repository are beyond the scope of this rule.

Comment I-5: One commenter noted that two cycles of vacuum drying and helium backfilling are specified for this cask design, and asked if the VSC-24 casks at Palisades and Pt. Beach did not have this done, how safe are those casks and is there any water vapor in the casks.

Response: This rule pertains solely to the evaluation and safe operation of the NAC-UMS storage cask design. Comments pertaining to the VSC-24 or any other cask design were not a subject of the NRC's evaluation of the NAC-UMS design, and are thus beyond the scope of this rule.

Comment I-6: One commenter stated that during cooldown for reflooding, very detailed definite criteria are needed for the steam and water being discharged. The commenter also stated that each cask user should have site-specific procedures in place to add to generic procedures so that all is ready before any cask is loaded, and that the NRC needs to check this activity.

Response: The NRC has reviewed and accepted the generic unloading procedure guidance contained in SAR Chapter 8 that includes detailed criteria to control the evolution. Detailed loading and unloading procedures prepared using the technical basis established in the SAR are a site-specific aspect that is beyond the scope of this rule.

Comment I-7: One commenter stated there should be definite criteria regarding records as to what are permanent and not left up to the licensees to decide, resulting in faded photographs and videos that have disappeared. The commenter suggested checking with experts on permanent recordkeeping.

Response: 10 CFR Part 72, Subpart G, requires that records pertaining to the design, fabrication, erection, testing, maintenance, and use of systems, structures, and components important to safety be maintained until decommissioning of the cask is complete. Criteria for records are specified in Subpart G.

Comment I-8: One commenter remarked that “mobile lifting frame” sounds very vague. The commenter asked if the mobile lifting frame is a transporter, how it works, and if it has been developed.

Response: The TS in the “Design Features” section establishes requirements for the design and operation of a canister handling facility, including any mobile lifting devices. The specific design for a mobile lifting frame was not, and is not required to be, submitted as part of the approval for the NAC-UMS storage cask design. Such a design, if implemented in the future, must be consistent with the cask design basis described in the SAR, the TS, and implemented on a site-specific basis in accordance with existing heavy-loads provisions at a facility licensed under 10 CFR Part 50.

Comment I-9: One commenter stated that the off-normal and accident conditions always assume a cask is fabricated correctly, and asked what problems could occur if there were fabrication problems. The commenter thought fabrication problems and worker mistakes are the leading concerns with dry casks, stated that is why the design has to have the best review possible, and that instructions and criteria have to be simple and clear. The commenter said that the casks will be on the pads forever and the issuance of a CoC should not be rushed.

Response: The NRC agrees that instructions and criteria should be clear and that issuance of a CoC should not be rushed. Part 72 CoCs are issued for 20 years and are then subject to review for renewal, if applicable. The NAC-UMS design has been under NRC review since 1997.

The NRC's approval of cask designs does rely, in part, on the design, fabrication and operation being conducted under an approved quality assurance (QA) program. An approved QA program includes programmatic controls of non conformances, corrective actions, and audits. The NRC has found reasonable assurance that the approved design, manufactured under an approved QA program, will ensure public health and safety under all normal, off-normal, and accident conditions.

Comment I-10: One commenter stated that a quality assurance program is only as good as it is put to use, and that NRC's unannounced visits to contractors and subcontractors are very important. The commenter also stated that licensees need to give full documentation to changes in the design and keep the SAR current.

Response: The NRC agrees with the comments.

Comment I-11: One commenter stated the “main problem” is that nothing in the review considers or involves the review of ultimate disposal of spent nuclear fuel and speculated that Yucca Mountain will never open. The commenter made several general comments about storage and disposal of nuclear waste and alternative forms of energy, and suggested that as more spent nuclear fuel is handled and transported, the probability of more problems will arise.

Response: Comments regarding the future use of a repository, transport and disposal of nuclear waste, and alternative energy forms are beyond the scope of this rule. The NRC recognizes its responsibility to ensure the public's health and safety, independent of the amount of spent fuel handling and transport that occurs under its regulatory oversight, now and in the future.

Comment I-12: One commenter asked how the 5-inch carbon steel temporary shield is used during welding, draining, drying, and helium backfill operations.

Response: A carbon steel temporary shield is placed over the transport cask top to shield workers from the loaded canister. Because gamma radiation is the predominant radiation emitted from the top of the canister, the 5-inch thick carbon steel temporary shield will reduce the gamma radiation dose to the workers.

Comment I-13: One commenter asked for an explanation and dates of the skyshine experiments performed at Kansas State University.

Response: The Skyshine-III, version 4.0.0 code was benchmarked with a Co 60 skyshine experiment and a neutron skyshine calculation, both reported by Kansas State University (KSU). The Co 60 skyshine experiment was performed for a Co 60 source in a concrete silo with two different thickness roofs and no roof. The KSU neutron benchmark computations were performed for upward directed conical neutron point sources. Skyshine experiments are performed at KSU on an on-going basis. Discussions of skyshine experiments can be found in the book, “Radiation Shielding” by J. Kenneth Shultis and Richard E. Faw, published by Prentice Hall PTE, 1996 and also in the SKYSHINE-III PC and SKYSHINE-KSU computer code manuals. The codes and manuals are available from the Oak Ridge National Laboratory's Radiation Safety Information Computational Center.

Comment I-14: One commenter was concerned with computer models and the wording in Section 5.3 of the SER that states “input for these codes * * * appears to be appropriate.” The commenter asked if the input is correct.

Response: The input data used by NAC for determining the source term of the design basis PWR and BWR nuclear fuel is acceptable. The NRC staff performed independent calculations to confirm NAC's evaluation of the source terms. The SAS2H module of the SCALE computer code uses a free form style for inputting the data that must be carefully reviewed to determine which keywords and variables have been used in the input. Also, the various fuel parameters can have a range of acceptable values that may be used in the input.

Comment I-15: Three commenters requested that Section 1.b (page 2 of 4, last paragraph) of the CoC be revised to read: “To minimize contamination of the Transportable Storage Canister (TSC) exterior and interior of the transfer cask, clean water is circulated in the gap between the transfer cask and the Transportable Storage Canister (TSC) during loading.”

Response: NRC agrees with this comment. The CoC has been revised accordingly.

Comment I-16: Two commenters stated the PSER does not address the impact of the NAC-UMS cask storage system on stormwater quality.

Response: Stormwater quality is beyond the scope of this rule. Any applicable stormwater quality issues will be addressed in the 10 CFR Part 72.212 site-specific evaluations performed prior to using the cask.

Comment I-17: One commenter recommended that the wording in SER 5.4.3 be: “Consequently, final determination of compliance with 72.104(a) is the responsibility of each Independent Spent Fuel Storage Installation (ISFSI) licensee” instead of “responsibility of each applicant for a site license.” The commenter commented that the reference to an “applicant for a site license” is contrary to the SER introduction which states that the cask may be used by an ISFSI general licensee under 10 CFR Part 72. An ISFSI general licensee would be required to have site-specific evaluations in accordance with 10 CFR 72.212 but would not be required to apply for a site license. Further, an ISFSI licensee would be responsible for compliance with 10 CFR 72.104(a) at all times, not just during an application for a license.

Response: The NRC agrees. The SER has been revised accordingly.

Comment I-18: Three commenters requested that the first paragraph of Section 8.2 of the SER be revised to refer to CoC Appendix A, Section A 5.6 for the transport evaluation program, not Section A 5.5.

Response: The NRC agrees with the proposed clarification of the SER, that has been revised accordingly.

Comment I-19: Two commenters expressed concerns about the implications of long-term storage of spent nuclear fuel. One of the commenters had an acute interest in NRC's evaluation of this application because of Maine Yankee's intended use of this system for long-term storage following decommissioning. The commenters expected that the DOE will not remove all the spent nuclear fuel for 20 years or longer after plants cease operations and stated that whatever storage system is chosen must ensure the public's health and safety for an extended period and must ensure that the fuel will be acceptable for removal when the DOE is prepared to take it years in the future. One commenter commented that because spent fuel with pinholes or hairline cracks may deteriorate during storage, the NRC's evaluation of the NAC-UMS system does not provide the necessary assurance that the spent fuel will be acceptable to the DOE for permanent disposal.

Response: The NRC agrees with and shares the commenters' concerns regarding the safe storage of spent nuclear fuel for any and all lengths of time.

The NRC's cask certification regulations stipulate that the user's general license to store spent fuel in a particular cask design terminates 20 years after the cask design's first use by that licensee. If the CoC has been renewed, the general license expires 20 years after the CoC's renewal date. The NRC will review spent fuel storage cask designs periodically to consider any new information, either generic to spent fuel storage or specific to cask designs, that may have arisen since issuance of the cask's CoC. The 20-year time limitation expressly provides an opportunity for the NRC to address any and all safe storage implications associated with storing spent fuel, including spent fuel whose cladding has pinhole leaks or hairline cracks, in particular casks for longer than 20 years. The NRC's initial and recertification reviews of cask designs are independent of the DOE's capabilities to accept spent fuel for permanent disposal at any point in time. However, the NRC's initial and renewal evaluations of a cask design have and will consider both the public health and safety and the retrievability of the spent fuel contents.

Regarding the DOE's acceptance of spent fuel for permanent disposal in the future and the impact of storing spent fuel cladding with pinholes or hairline cracks, Dr. Ivan Itkin, Director of the Office of Civilian Radioactive Waste Management, addressed that issue for the Maine Yankee reactor. Dr. Itkin confirmed in a letter to Maine's Governor Angus S. King dated May 3, 2000 that DOE's contract for disposal with Maine Yankee covers the acceptance, transport, and disposal of all spent nuclear fuel from the Maine Yankee reactor, regardless of the condition of the spent fuel. Dr. Itkin further noted that, although the DOE may be currently delayed in its ability to begin the disposal of the Nation's commercial spent nuclear fuel, DOE has every intention of fulfilling its contractual obligations to all of its utility customers.

Comment I-20: Two commenters requested that as a prerequisite to approving the proposed rule, the NRC acquire binding assurances from the DOE that the DOE will accept spent fuel for transport and disposal that has been stored in accordance with NRC-approved procedures. Those procedures must ensure that stored spent fuel will remain in a condition the DOE can accept. The commenters stated that these considerations and 10 CFR 72.236 preclude approval of the proposed certification until the NRC and the applicant have thoroughly analyzed and resolved critical outstanding issues.

Response: The NRC disagrees that 10 CFR 72.236 requires the NRC to obtain binding assurances from the DOE regarding the acceptance of spent fuel for disposal prior to approving a storage cask design.

DOE's efforts to develop a multi-purpose canister (MPC) program gave rise to several recent dual purpose (storage and transportation) cask design applications, including the NAC-UMS. With dual purpose designs, fuel no longer must be returned to the reactor spent fuel pool for repackaging. Dual purpose cask designs have the capability of being prepared for offsite transportation without having to handle individual fuel assemblies or return to a spent fuel pool. DOE is continuing to develop the cask design characteristics and parameters for disposal.

Regarding the DOE's acceptance of spent fuel for permanent disposal in the future, Dr. Ivan Itkin, Director of the Office of Civilian Radioactive Waste Management, recently addressed that issue for the case of Maine Yankee reactor. Dr. Itkin confirmed in a letter to Maine's Governor Angus S. King dated May 3, 2000, that DOE's contract for disposal with Maine Yankee covers the acceptance, transport, and disposal of all spent nuclear fuel from the Maine Yankee reactor, regardless of the condition of the spent fuel. Dr. Itkin further noted that, although the DOE may be currently delayed in its ability to begin the disposal of the Nation's commercial spent nuclear fuel, DOE has every intention of fulfilling its contractual obligations to all of its utility customers. Because the DOE's spent fuel acceptance criteria for ultimate disposal has not yet been formalized, it would be not be practical to preclude a storage approval on this basis at this time.

Comment I-21: Two commenters stated that the PSER does not address the necessary financial capability of a license holder to operate and maintain the NAC-UMS cask storage system over the 20-year license period.

Response: This comment is beyond the scope of this rule. The financial capabilities of a certified cask design's user, a general licensee, are not required to be addressed in an application under 10 CFR Part 72, Subpart L. The NRC published a proposed rule in the Federal Register on November 3, 1999 (64 FRN 59677) that would clarify the portions of 10 CFR Part 72 that apply to activities associated with the general license, a specific license, and a CoC. Requirements regarding the financial capabilities of a cask user are not identified as being applicable to activities associated with obtaining a CoC in the proposed rule.

Comment I-22: Two commenters stated that the PSER does not address the necessary technical capability of the license holder to operate and maintain the NAC-UMS cask storage system.

Response: This comment is beyond the scope of this rulemaking. Requirements on the technical capabilities of a general licensee are principally contained in §§ 72.210 and 72.212. This rulemaking addressed question on the adequacy of the NAC-UMS cask design and changes to § 72.214. Therefore, the preliminary SER was not required to address questions on the adequacy of a general licensee who may wish to use the NAC-UMS cask design. The NRC's requirements on the adequacy of a cask design are contained in Subpart L of Part 72. These requirements apply to an applicant for a CoC and a certificate holder, not a general licensee. The NRC recently added a new section (§ 72.13) to Part 72 in a final rule to clarify which requirements apply to a specific licensee, a general licensee, or a certificate holder (see 65 FR 50606; August 21, 2000). Section 72.13 specifies that requirements for the qualification of a spent fuel storage cask design do not apply to a general licensee. Rather, they apply to the certificate holder (and applicant for a CoC).

Comment I-23: One commenter preferred that sensitivity studies for the canister deceleration g-loads and the tipover analysis be done by an independent party, not by NAC, and that sensitivity checks should be done by independent evaluation.

Response: The SAR sensitivity analyses examine how the structural performance, including impact decelerations of the NAC-UMS system, varies with changes of modeling parameter values for the 24-inch vertical drop and tip-over accidents. These analyses follow standard engineering practice for evaluating applicability of analytical modeling and results. In evaluating the SAR analyses, the NRC determined that the analyses were adequate. Therefore, additional independent evaluation is not warranted.

Comment I-24: One commenter expressed concern about long-term cask materials performance issues such as lead slumping and thermal aging, specifically as reactions that could cause creation of new materials and new interactions between the newly formed materials.

Response: As part of any storage cask application review, the NRC evaluates the long term materials issues, such as thermal aging and lead slumping. The maximum calculated temperatures of the various cask materials do not exceed the temperature limits for any conditions of storage. Therefore, the NRC is assured from the analyses provided in SAR Chapter 4 that the thermal load from the spent fuel will not adversely impact the ability of those materials to perform their intended functions during storage. Further, lead slumping would only be a concern for the lead in the annulus of the transfer cask while the TSC is contained inside (i.e., during transfer of the fuel from the spent fuel pool to the VCC). When the transfer cask is not being used, the lead is assumed to be at ambient temperatures. As noted in SER Section 3.1.4.2, no softening or flow of lead is expected in the annulus due to lead slumping.

Comment I-25: One commenter stated that Charpy testing of materials needs to be verified before any casks are loaded. The commenter asked who verifies the Charpy test of materials, where is the verification in the documents, and is the information clear.

Response: In general, some steel materials require minimum Charpy impact properties for structural applications as required by the governing consensus standard or codes ( e.g., ASTM, ASME Boiler and Pressure Vessel Code, etc.). The NAC-UMS storage cask utilizes several types of steel including stainless and carbon steel. The PWR support disks are fabricated with ASME SA-693, Type 630 (H1150) precipitation-hardened steel. A typical minimum impact absorption energy requirement for Type 630 stainless steel is 48 foot-pounds at −110 °F. Therefore, for the NAC-UMS storage cask, there is enough ductility in the material so that fracture of the material is not expected at the minimum specified service temperature of −40 °F. The BWR support disks are fabricated from ASME SA-533, Type B, carbon steel. As noted in SER Section 3.1.4.1, the applicant has committed to specifying Charpy impact testing for each plate of material in accordance with ASME Code Section III, Subsection NG-2320. With regard to testing the Charpy impact energy, it is the responsibility of the supplier of the material to perform the necessary tests in accordance with the purchase order and to document the results of those tests on the Certified Materials Test Record that accompanies each lot of material shipped to a customer. For the NAC-UMS cask, documentation for the materials used to fabricate a cask will be controlled in accordance with a quality control program that conforms to the requirements of 10 CFR part 72, Subpart G.

Comment I-26: One commenter asked if ferritic steel is different than carbon steel. The commenter asked if the ferritic steel anchor base plate and optional lifting anchors should be stainless steel.

Response: Ferritic steel is one of several classifications of stainless steel. In general, stainless steels are more resistant to rusting than plain-carbon and low-alloy steels. Stainless steels also have superior corrosion resistance because they contain relatively large amounts of alloying elements ( e.g., chromium). Carbon steels, also known as plain carbon steels, have no minimum quantity for any alloying elements and contain only a small amount of elements other than the commonly accepted carbon, silicon, manganese, copper, sulfur, and phosphorus. Carbon steels are generally much less corrosion resistant than stainless steels.

The use of the ASTM A537, Class 2, carbon steel for the VCC lifting lug and its anchor plate is NAC's choice for meeting its design objectives. SAR Subsection 3.4.3.1.3 evaluates the lifting lug and its anchor plate, that has been reviewed and determined structurally adequate in SER Subsection 3.2.3.4.

Comment I-27: One commenter asked what the word “chemical” means in the term “interlocking chemical lead bricks” in Section 3.1.4.2 of the SER and what are the chemicals. The commenter also asked what could the chemicals create if water leaked into the lead chamber.

Response: Interlocking chemical lead bricks are used in the transfer cask for gamma shielding. There are no chemicals added to the lead. The term “chemical” refers to a grade of lead that is specified in the ASTM Standard B29 for lead materials. The grade specified as “Chemical-Copper Lead” is almost identical to the “Pure Lead” grade. Chemical-copper lead has 99.90% elemental lead (versus 99.94% elemental lead for the Pure Lead grade) and has 0.04% more alloying elements ( e.g., copper) than Pure Lead. Because the lead is encased between the inner and outer shells and the top and bottom end plates of the transfer cask, the lead is not expected to come in contact or react with the spent fuel pool water.

Comment I-28: One commenter asked several questions about the NS-4-FR shielding material including: what other cask systems use NS-4-FR; how long has NS-4-FR been in use; what does the word “reliably” mean as used in SER Section 3.1.4.2; how has the NS-4-FR been tested for fire resistance; what can happen if the NS-4-FR gets wet because of a transfer cask leak; where NS-4-FR has been tested to prove it will work well in long term dry cask storage; and if the NRC has checked the materials sheets from the manufacturer of NS-4-FR for the specifications.

Response: NS-4-FR has been used as a neutron shield in two licensed storage casks in the United States for up to 10 years and in more than 50 licensed casks in Japan, Spain and the United Kingdom. Various research groups have performed both radiation and thermal stability testing over the last 15 years. Data from these tests adequately demonstrate long-term thermal and radiation stability. Further, the NRC has not received any reports that the shielding effectiveness of the NS-4-FR material has become degraded. Therefore, the NRC staff believes that this material is reliable for the purpose of shielding neutrons from personnel and the environment.

The NS-4-FR material consists of many elements including hydrogen. The chemistry of the material ( e.g., the way the elements are bonded to one another) contribute significantly to the fire retardant capability of the NS-4-FR. Even though the material contains hydrogen, the ingredients were selected so the NS-4-FR resists fire and the generation of hydrogen gas that could cause the material to combust. Data supplied by the applicant show that approximately 90% of the gases that evolve from the NS-4-FR material when it is exposed to relatively high temperatures consists of water.

The neutron shields in the transfer cask and the VCC shield plug are enclosed in welded steel shells so water and direct flames from a fire cannot get in contact with the NS-4-FR. If water were to contact NS-4-FR, the material is inert. Therefore, gases will not form due to contact between the NS-4-FR and water. Further, if fire were to contact the shield material, data show that the material only becomes charred on the surface and rapid extinguishing of the flame after the source of the flame is removed.

Thermal and radiation testing of the NS-4-FR material was conducted in the United States by Bisco Products, Inc. and by several Japanese organizations to assess the material's long term performance under dry cask storage conditions. As part of the SAR review, the NRC staff routinely checks any manufacturer specification sheets to ensure that the material is being used in accordance with manufacturer's recommendations.

Comment I-29: One commenter asked if Keeler & Long and Carboline epoxy enamel paint has been checked for use on casks in actual situations. The commenter also asked whether paint patch-up jobs exacerbate corrosion.

Response: The Keeler & Long E-Series Epoxy and Carboline 890 paint coatings that are used to coat the exposed surfaces of the transfer cask are routinely recommended by the paint manufacturers for use in nuclear power plant applications. Further, these particular paint coatings have been used extensively under radiation and spent fuel pool water immersion conditions. Therefore, the NRC staff agrees with the applicant's statements in SAR Section 3.4.1.2.4 that there will be no adverse effects from contact between either of the paint coatings and spent fuel pool water because the paint will be applied in accordance with the paint manufacturer's recommendations. With regard to repainting areas where the coating has been removed ( e.g., by scratching), paint patching will be done in accordance with the paint manufacturer's recommendations and the transfer cask maintenance program described in SAR Chapter 9, and is specifically performed to not exacerbate corrosion.

Comment I-30: One commenter asked what is the date of ASME Code Section III, Part D, referenced in Section 3.1.4.6 of the SER. The commenter also asked what are the other acceptable references and their dates, and that the references be included in the SER.

Response: The 1995 Edition of the ASME Boiler and Pressure Vessel Code (B&PVC), Section II, Part D, is referenced in Section 3.1.4.6 of the SER. Other acceptable sources of information are referenced in SAR Section 3.2 and include: the 4th Editions of the Metallic Materials Specification Handbook, 1992; Military handbook MIL-HDBK-5G, U.S. Department of Defense, 1994; ASME B&PVC Code Cases—Nuclear Components, 1995 Edition, Code Case NC-71-17; and the Genden Engineering Services & Construction NS-4-FR Product Data Sheet.

Comment I-31: One commenter stated that the dry spent fuel loading and unloading referenced in Evaluation Finding F3.9 should not be in the SER unless it has been evaluated. The commenter asked what dry loading procedures are being referenced.

Response: The SAR procedures only address wet loading and unloading fuel from the NAC-UMS storage cask. Dry loading or unloading procedures are not included with this application and were not a part of the NRC's review. The SER finding was modified to indicate that the materials are compatible with wet loading and unloading operations and facilities.

Based on the responses above, the NRC has modified the CoC, the TSs and the SER as follows:

• LCO 3.2.2 has been revised (Comment B-7).

• TS A 3.1.7, “Fuel Cooldown Requirements” associated with canister unloading procedures has been deleted from the TS (Comment C-2).

• Parameters provided in B 3.4(6) of the “Approved Contents and Design Features” in Appendix B of CoC 1015 have been removed from the TS. This same set of site concrete pad and soil parameters is relevant to the tip-over analysis are being summarized in SAR Subsection 11.2.12 (Comment C-17).

• Section B 2.1.2 of the “Approved Contents and Design Features” has been edited (Comment D-4).

• B 2.2.3 of the “Approved Contents and Design Features” has been revised (Comment D-9).

• Tables B2-2 and B2-3 of the “Approved Contents and Design Features” have been revised. (Comment D-10).

• B 3.5.2.1 (4) of the Approved Contents and Design Features has been revised (Comment D-12).

• Table B3-2 of the Approved Contents and Design Features has been revised (Comment D-13).

• SER Subsection 3.1.1.3 has been revised (Comment F-4).

• SAR Drawing 790-584 has been revised to permit the use of ASME SA182 as an alternate to SA240 for both the shield and structural lids of the TSC (Comment F-5).

• The second frequency of surveillance requirement (SR) 3.1.1.1 and SR 3.1.1.2 within LCO 3.1.1 has been revised (Comment G-3).

• SR 3.1.6.2 has been deleted (Comment G-4).

• LCO 3.1.5 (Canister Helium Leak Rate) has been revised (Comment H-4).

• Section A 5.2 [after A 5.2 (n)]of the TS has been revised (Comment H-6).

• Table A5-1 of the TS has been revised (Comment H-7).

• The SAR title on the CoC has been revised (Comment I-1).

• Section 1.b (page 2 of 4, last paragraph) of the CoC has been revised (Comment I-15).

• SER 5.4.3 has been revised (Comment I-17).

• Section 8.2 of the SER been revised to refer to CoC Appendix A, Section A 5.6 for the transport evaluation program, while the Section A 5.5 reference to the transport evaluation program has been deleted (Comment I-18).

• SER Evaluation Finding F3.9 has been revised (Comment I-31).

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the NRC on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as compatibility Category “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 Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this final rule, the NRC is adding the NAC-UMS cask system to the list of NRC-approved cask systems for spent fuel storage in 10 CFR 72.214. This action does not constitute the establishment of a standard that establishes generally-applicable requirements.

Under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, the NRC has determined that this rule is not a major Federal action significantly affecting the quality of the human environment and therefore, an environmental impact statement is not required. This final rule adds an additional cask to the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites without additional site-specific approvals from the NRC. The environmental assessment and finding of no significant impact on which this determination is based are available for inspection at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD and electronically at http://ruleforum.llnl.gov. Single copies of the environmental assessment and finding of no significant impact are available from Stan Turel, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555, telephone (301) 415-6234, e-mail spt@nrc.gov.

This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing requirements were approved by the Office of Management and Budget, approval number 3150-0132.

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to, the information collection.

On July 18, 1990 (55 FR 29181), the Commission issued an amendment to 10 CFR part 72. The amendment provided for the storage of spent nuclear fuel in cask systems with designs approved by the NRC under a general license. Any nuclear power reactor licensee can use cask systems with designs approved by the NRC to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. In that rule, four spent fuel storage casks were approved for use at reactor sites and were listed in 10 CFR 72.214. That rule envisioned that storage casks certified in the future could be routinely added to the listing in 10 CFR 72.214 through the rulemaking process. Procedures and criteria for obtaining NRC approval of new spent fuel storage cask designs were provided in 10 CFR Part 72, Subpart L.

The alternative to this action is to withhold approval of this new design and issue a site-specific license to each utility that proposes to use the casks. This alternative would cost both the NRC and utilities more time and money for each site-specific license. Conducting site-specific reviews would ignore the procedures and criteria currently in place for the addition of new cask designs that can be used under a general license, and would be in conflict with Nuclear Waste Policy Act (NWPA) direction to the Commission to approve technologies for the use of spent fuel storage at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site reviews. This alternative also would tend to exclude new vendors from the business market without cause and would arbitrarily limit the choice of cask designs available to power reactor licensees. This final rule will eliminate the above problems and is consistent with previous NRC actions. Further, the rule will have no adverse effect on public health and safety.

The benefit of this rule to nuclear power reactor licensees is to make available a greater choice of spent fuel storage cask designs that can be used under a general license. The new cask vendors with casks to be listed in 10 CFR 72.214 benefit by having to obtain NRC certificates only once for a design that can then be used by more than one power reactor licensee. The NRC also benefits because it will need to certify a cask design only once for use by multiple licensees. Casks approved through rulemaking are to be suitable for use under a range of environmental conditions sufficiently broad to encompass multiple nuclear power plants in the United States without the need for further site-specific approval by NRC. Vendors with cask designs already listed may be adversely impacted because power reactor licensees may choose a newly listed design over an existing one. However, the NRC is required by its regulations and NWPA direction to certify and list approved casks. This rule has no significant identifiable impact or benefit on other Government agencies.

Based on the above discussion of the benefits and impacts of the alternatives, the NRC concludes that the requirements of the final rule are commensurate with the Commission's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and thus, this action is recommended.

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

The NRC has determined that the backfit rule (10 CFR 50.109 or 10 CFR 72.62) does not apply to this rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required.

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

Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862) (the Act) authorizes investigations to determine the effects on the national security of imports of articles which are the subject of a request or application for an investigation. The implementing regulation, “Effect of Imported Articles on the National Security” (15 CFR Part 705)), prescribes procedures to be followed by the Department of Commerce (the Department) to commence and conduct such investigations.

Consistent with amendments in 1995 to the Paperwork Reduction Act of 1980 to reduce the paperwork burden on persons submitting a request or application for an investigation, section 705.5 of this regulation is being amended to reduce the number of copies of a request or application for and investigation to be filed with the Department from 12 copies to 1 copy, plus the original.

Accordingly, section 705.5 of the regulation is revised to require that an original and 1 copy of a request or application for an investigation be filed with the Director, Office of Strategic Industries and Economic Security, Room 3876, U.S. Department of Commerce, Washington, DC 20230.

The Department has made certain determinations with respect to the following rulemaking requirements:

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

2. Notwithstanding any other provision of law, no person is required to, nor shall a person be subject to a penalty for failure to comply with a collection of information, subject to the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule involves collections of information subject to the Paperwork Reduction Act of 1995 (U.S.C. 3501 et seq. ). This regulation involves collections previously approved by the Office of Management and Budget under Control Number 0694-0120, “Procedure to Initiate an Investigation Under the Trade Expansion Act of 1962”, which carries a burden hour estimate of 12 hours per submission.

3. Executive Order 13132: This proposed rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.

4. Administrative Procedure Act and Regulatory Flexibility Act: The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation and a delay in effective date, are inapplicable because this regulation relates to agency procedures (Sec. 5 U.S.C. 553 (b)(A)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act ( 5 U.S.C. 601 et seq. ) are not applicable.

On July 17, 2000, the United States announced further updates to its encryption export policy coinciding with the recent regulations adopted by the European Union which ease exports among 23 countries. This action is consistent with the Administration's decision to ensure that U.S. companies are not disadvantaged by such changes and will be able to compete effectively in these markets. Post-export reports were examined and action taken for the requirements to more accurately reflect companies' business models. The rule further streamlines reexport controls by considering certain components and software for de minimis treatment. The review of de minimis eligibility will take into account national security interests. These steps continue to serve the full range of national interests: promote electronic commerce, support law enforcement and national security and protect privacy.

Specifically, this rule amends the EAR in the following ways:

1. In § 732.2 (Steps Regarding Scope of the EAR) conforming changes are made with respect to de minimis consideration for encryption items controlled under ECCNs 5A002 and 5D002, as described in paragraph (2) below.

2. In § 734.4 ( De Minimis U.S. Content), software controlled under ECCN 5D002 eligible for export under the “retail” or “source code” provisions of license exception ENC and parts and components controlled under ECCN 5A002 may be made eligible for de minimis treatment after review and classification by BXA. As a result of this change, certain U.S. origin encryption items, incorporated into foreign products, which were previously prohibited from de minimis consideration, may now be made eligible in a process similar to that used now for retail determinations. Examples include retail operating systems and desktop applications (e.g. e-mail, browsers, games, word processing, database, financial applications or utilities) designed for, bundled with, or pre-loaded on single CPU computers, laptops, hand-held devices, or components or software designed for use in retail communication devices (e.g. wireless devices or smart cards), or decontrolled products. Exporters applying for de minimis eligibility must explain why the part or component would qualify for de minimis treatment in the support documents included with the classification request. De minimis eligibility continues to apply to encryption items controlled under ECCNs 5A992, 5D992 and 5E992.

3. § 740.9 (Temporary imports, exports and reexports (TMP)), now includes encryption software controlled for EI reasons under ECCN 5D002 to be allowed under the beta test provisions of License Exception TMP. The exporter must provide BXA the information described in Supplement 6 to Part 742 by the time of export. Exporters should note that any final resulting product will require review and classification under the provisions of § 740.17. Names and addresses of the testers, except individual consumers, and the name and version of the beta software are to be reported every six months consistent with § 740.17(e)(5). Encryption software controlled under ECCN 5D992 is eligible for this beta test provision.

4. § 740.13 (Technology and Software Unrestricted (TSU)) clarifies the treatment of open source object code. Object code compiled from source code eligible for License Exception TSU can also be exported under the provisions of License Exception TSU if the requirements of § 740.13 are met and no fee or payment is required for object code (other than reasonable and customary fees for reproduction and distribution). Object code for which there is a fee or payment can be exported under the provisions of 740.17(b)(4)(i). The intent of this section is to release publicly available software available without charge (e.g. “freeware”) from control. Also in § 740.13, crypt@bxa.doc.gov address is added to prompt exporters to notify BXA electronically. Exporters should note the intent of the phrase “released from EI controls” in 740.13(e) means that 5D002 software eligible for TSU is released from the mandatory access controls procedures described in 734.2(b)(9)(ii).

5. In § 740.17 (Encryption Commodities and Software (ENC)), language is added to further streamline the export and reexport of encryption items under License Exception ENC and to parallel the changes adopted by the EU. Please note that the paragraph numbering was changed in this section to simplify the structure and provide for more changes to License Exception ENC. License Exception ENC (Encryption Commodities and Software) is revised as follows:

a. § 740.17 begins with an introductory paragraph describing the commodity and country scope of License Exception ENC.

b. § 740.17(a) adds a provision to allow all encryption items, except for “cryptanalytic products,” as specified in ECCN 5A002.a.2 and the software and technology relating to these cryptanalytic commodities (defined in part 772), to be exported to EU member states, Australia, Czech Republic, Hungary, Japan, New Zealand, Norway, Poland and Switzerland (listed in Supplement 3 to Part 740), under License Exception ENC provided the exporter has submitted to BXA a completed classification request by the time of export. Exports and reexports to foreign subsidiaries or offices of firms, organizations and governments headquartered in Canada or in the above-listed countries for internal use are also eligible under this provision.

c. § 740.17(b) adds an introductory paragraph for the provisions set out under License Exception ENC for exports to countries outside of those listed in Supplement 3 to part 740, as well as for exports and reeexports of items which provide an open cryptographic interface.

d. § 740.17(b)(1) (Encryption Items to U.S. Subsidiaries) is revised to clarify that foreign nationals, who may not be permanent employees (contractors, interns, etc.) working for U.S. companies are eligible to receive technology controlled under ECCN 5E002 in the United States under License Exception ENC. Note that all encryption items produced or developed by U.S. subsidiaries continue to be subject to the EAR and require review and classification before any sale or retransfer outside of the U.S. company.

e. In § 740.17(b)(2)(i) (Encryption Commodities and Software), any encryption commodity, general purpose toolkit, software and component is authorized for export or reexport, after review and classification by BXA under ECCNs 5A002 and 5D002, to any individual, commercial firm or other non-government end-user located outside the countries listed in Supplement 3 to Part 740 under License Exception ENC. Exporters should note that a license is still required for exports to government end-users in these destinations. In addition, to further streamline License Exception ENC, the provisions for general purpose toolkits is moved from paragraph (a)(5) to this paragraph (b)(2)(i).

f. In § 740.17(b)(2)(ii) (Encryption Commodities and Software), to simplify the regulation, the paragraph on Internet or telecommunications service providers was deleted and the part relating to products not classified as retail was moved to this paragraph. Note that Internet and telecommunications service providers may now provide services to the governments of the countries listed in Supplement 3 to Part 740 under License Exception ENC. Such exports previously required a license under former paragraph (a)(4). Exporters should note that a license is still required for exports to government end-users located in other destinations.

g. In § 740.17(b)(3) (Retail Encryption Commodities and Software), License Exception ENC is revised to authorize, without prior review and classification or reporting, those items which are controlled only because they incorporate components providing encryption functionality which is limited to short-range wireless encryption, such as those based on the Bluetooth and Home Radio Frequency (HomeRF) specifications. Examples of such products include audio devices, cameras and videos, computer accessories, handheld devices, mobile phones and consumer appliances ( e.g. , refrigerators, microwaves and washing machines). The part of the Internet or telecommunications service providers paragraph relating to obtaining retail products under License Exception ENC and using them to provide service to any entity is moved to this paragraph. As a result of this revision, former paragraph (a)(4) (Internet and Telecommunications Service Providers) is removed.

h. Additional changes are made under § 740.17(b)(3). In paragraph (i)(C), a clarification is made to allow the retail provisions to include anticipated sales by changing the phrase “sold in large volume” to “which are sold or will be sold in large volume.” To further streamline the encryption controls, exporters may now export and reexport finance-specific encryption products and 56-bit products (with key exchange mechanisms greater than 512 bits and up to and including 1024 bits) immediately after submitting a completed classification request to BXA. As a result, the former paragraphs (a)(3)(vi) and (vii), which relate to these items, are combined into one paragraph.

i. § 740.17(b)(4) (Commercial encryption source code) is revised to clarify that object code resulting from the compiling of source code which would be considered publicly available and eligible for export under License Exception ENC or TSU can also be exported or reexported under ENC if the requirements of § 740.17(b)(4)(i) are otherwise met. Commercial encryption source code which would not be considered publicly available may now be exported or reexported using License Exception ENC to any non-government end-user immediately after submitting a completed classification request. Requirements for source code containing an open cryptographic interface are addressed separately in paragraph (b)(5). For the purpose of streamlining the provisions of License Exception ENC, references to general purpose toolkits are removed and are now addressed in § 740.17(b)(2) and (c).

j. § 740.17(b)(5) (Cryptographic interfaces) is added to authorize the export and reexport of encryption commodities, software and components which provide an open cryptographic interface to any end-user located in the countries listed in Supplement 3 to Part 740 under License Exception ENC. Exports and reexports to other destinations continue to require a license except to subsidiaries of a U.S. company for their internal use. This paragraph also permits encryption products that enable foreign developed products to operate with U.S. products (e.g. digitally signing) to be exported or reexported to any eligible end-user. The foreign “enabled” product is not subject to review, however, and limited reporting is required as specified in § 740.17(e)(3).

k. § 740.17(c) (Reexports and Transfers) is added by combining the transfer provisions of paragraph (c) with former paragraph (d) relating to exports and reexports of foreign products incorporating U.S. encryption source code, components or general purpose encryption toolkits, former paragraph (h) relating to distributors and resellers, and the related provisions of former paragraph (b)(5)(iv).

l. In § 740.17(d),(Eligibility for License Exception ENC), conforming changes are made to review and classification requirements and grandfathering provisions to take into account the new policy that allows most exports of encryption to the countries listed in Supplement 3 to Part 740.

m. In § 740.17(e) (Reporting requirements), new paragraphs are added to eliminate reporting requirements for consumer products incorporating short-range wireless encryption, client Internet appliance and client wireless LAN cards, and for retail operating systems or desktop applications (e.g., browsers, e-mail, word processing, database, games, financial applications or utilities) designed for, bundled with, or preloaded on single CPU computers , laptops or handheld devices. In addition, a new paragraph is added to eliminate reporting requirements for foreign products developed by bundling or compiling of source code. This rule clarifies that exporters must report only exports to subsidiaries of U.S. companies when the U.S. subsidiary is reselling or distributing the product. The reporting obligation is consistent with the provisions for distributors or resellers. Lastly, since exporters may now export technology to the countries listed in Supplement 3 to Part 740 under License Exception ENC, the semi-annual reports require the name and address of the manufacturer using the technology when intended for use in foreign products developed for commercial sale and a non-proprietary technical description of what is being developed using that technology. For further streamlining, the requirement of reporting exports to Internet and telecommunication service providers immediately is removed. These exports are now reported consistent with the semi-annual time frames.

n. Remaining reporting requirements are streamlined to reflect business models normally used by exporters. Note that reporting for exports and reexports of encryption components can be adjusted or reduced, on a case-by-case basis, provided an exporter supplies BXA with sufficient information during the initial technical review of the U.S. encryption component concerning its incorporation in a final foreign product. Companies should request such adjustments or reductions from BXA to ensure that reporting requirements reflect their business model.

o. Supplement No. 3 to Part 740 is created to identify those countries which are now eligible for the expanded treatment under License Exception ENC based on the new policy.

6. § 742.15 (Encryption Items) revises the licensing policy for export and reexports of encryption items, as follows:

a. The license requirements section is streamlined.

b. Combines into one paragraph (1)(i) the former subparagraphs which individually described the eligibility for 56-bit encryption items, key management products and 64-bit mass market encryption commodities and software. In addition, adds a provision to allow exporters to self-classify these encryption items under ECCNs 5A992, 5D992, and 5E992. After submitting the information described in paragraphs (a) through (e) of Supplement 6 to part 742 to BXA, these encryption items may be exported and reexported as “NLR” (No License Required). This submission is not a classification and no response is required from BXA for shipment.

c. Removes the requirement that all products developed using U.S. encryption items are subject to the EAR. This clarifies that de minimis eligibility applies for encryption commodities controlled under ECCNs 5A992, 5D992 and 5E992. In addition, BXA may apply, on a case-by-case basis, the de minimis rule to foreign products incorporating 5A002 and 5D002 parts, components and software which are eligible for export under the “retail” or “source code” provisions of License Exception ENC.

d. Adds the provision that any end-user located in the countries listed in Supplement 3 to Part 740 is eligible to receive encryption items classified by BXA under ECCNs 5A002, 5D002 and 5E002. Exports and reexports to foreign subsidiaries or offices of firms, organizations and governments headquartered in the above-listed countries are also eligible under this provision.

7. Supplement No. 6 to Part 742 is further streamlined to provide more detailed guidelines for submitting a classification request for encryption items.

8. § 744.9 is revised to expressly provide that the restrictions imposed by that section do not prohibit technical assistance abroad by U.S. persons in connection with the discussion of information in the work of groups or bodies engaged in standards development.

9. In § 748.3 (Classification and Advisory Opinions), is revised to clarify that exporters may self-classify 5A992, 5D992 and 5E992 items after submitting by the time of export the information described in paragraphs 1-5 of Supplement 6 to Part 742.

10. In § 770.2 (Interpretation 14), conforming changes are made to regulatory citations.

11. In Part 772 (Definition of Terms), the definition of “cryptanalytic items” is added.

12. In Part 774, ECCNs 5A002, 5A992, 5D992, and 5E992 are revised to clarify that items previously classified under 5A002, 5D002 and 5E002 continue to be controlled for AT1 reasons.

Licenses required for export or reexports to governments for network management products not classified as retail which do not allow for encryption of data by the network users may be considered favorably for civil end-uses.

For further clarity, this rule makes clear that the seven terrorist designated countries are not eligible under the provisions of License Exception ENC.

BXA received a number of comments on the January 14 regulation (65 FR 2492). These comments all reflected certain common themes: that the regulation was too complex; that the United States needed to match any EU action; that reporting should be reduced or eliminated and that encryption items should be made eligible for de minimis treatment. These comments were carefully considered by the Interagency Working Group on Cryptography in the development of this regulation, and a number of the concerns are explicitly addressed by this regulation. Section 740.17 (License Exception ENC) has been shortened and simplified. It also implements a number of changes to streamline U.S. practice and bring it into line with EU licensing practice. Reporting requirements have been greatly reduced by the elimination of reporting required from foreign subsidiaries of U.S. firms and for software used on low level computers. Finally, this regulation institutes a process whereby certain retail encryption products can now be made eligible for de minimis treatment.

Although the Export Administration Act (EAA) expired on August 20, 1994, the President invoked the International Emergency Economic Powers Act and continued in effect the EAR, and, to the extent permitted by law, the provisions of the EAA in Executive Order 12924 of August 19, 1994, as extended by the President's notices of August 15, 1995 (60 FR 42767), August 14, 1996 (61 FR 42527), August 13, 1997 (62 FR 43629), August 13, 1998 (63 FR 44121), August 10, 1999 (64 F.R. 44101), and August 8, 2000 (65 FR 48347).

1. This final rule has been determined to be significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule involves collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). These collections have been approved by the Office of Management and Budget under control numbers 0694-0088, “Multi-Purpose Application” and 0694-0104, “Commercial Encryption Items Transferred from the Department of State to the Department of Commerce.” Collection 0694-0088 carries a burden hour estimate of 45 minutes per manual submission and 40 minutes per electronic submission. Miscellaneous and recordkeeping activities account for 12 minutes per submission. For collection 0694-0104, it is estimated it will take companies 5 minutes to complete notifications for source code under License Exceptions TSU and ENC. It will take companies 15 minutes to complete upgrade notifications. For reporting under License Exception ENC and licenses for encryption items, it will take companies 8 hours to complete semi-annual reporting requirements.

3. This rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed Rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military and foreign affairs function of the United States (Sec. 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Therefore, this regulation is issued in final form. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis. Comments should be submitted to Kirsten Mortimer, Office of Exporter Services, Bureau of Export Administration, Department of Commerce, P.O. Box 273, Washington, D.C. 20044.

Copies of the public record concerning these regulations may be requested from: Bureau of Export Administration, Office of Administration, U.S. Department of Commerce, Room 6883, 14th and Constitution Avenue, NW, Washington, DC 20230; (202) 482-0637. This component does not maintain a separate public inspection facility. Requesters should first view BXA's website (which can be reached through http://www.bxa.doc.gov ). If requesters cannot access BXA's website, please call the number above for assistance.

Section 18 of the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. 667, provides that States which wish to assume responsibility for developing and enforcing their own occupational safety and health standards may do so by submitting and obtaining Federal approval of a State plan. State plan approval occurs in stages which include initial approval under section 18(b) of the Act and, ultimately, final approval under section 18(e).

The North Carolina State plan was initially approved on February 1, 1973 (38 FR 3041). On December 18, 1996, OSHA announced the final approval of the North Carolina State plan pursuant to section 18(e) and amended Subpart I of 29 CFR part 1952 to reflect the Assistant Secretary's decision (61 FR 66593). As a result, Federal OSHA relinquished its authority with regard to occupational safety and health issues covered by the North Carolina plan. Federal OSHA retained its authority over Federal government employers and employees; the U.S. Postal Service (USPS), including USPS employees, and contract employees and contractor-operated facilities engaged in USPS mail operations; private sector maritime activities; employment on Indian reservations; enforcement relating to any contractors or subcontractors on any Federal establishment where the land has been ceded to the Federal Government; railroad employment; and enforcement on military bases.

29 CFR 1952.155, which codifies OSHA's final approval decision, provides that any hazard, industry, geographical area, operation or facility over which the State is unable to effectively exercise jurisdiction for reasons not related to the required performance or structure of the plan shall be deemed to be an issue not covered by the plan and shall be subject to Federal enforcement.

In response to jurisdictional questions raised concerning a local chapter of the American National Red Cross, the North Carolina Department of Labor, the State agency responsible for occupational safety and health enforcement, sought a determination from its Attorney General regarding the State's jurisdiction over working conditions at American National Red Cross facilities. On February 4, 2000, the North Carolina Attorney General's Office issued a determination which concluded the “Red Cross” to be an “instrumentality of the federal government” within the meaning of North Carolina General Statute § 95-128, which provides that the State Occupational Safety and Health Act applies to all employers and employees except “the federal government, including its departments, agencies and instrumentalities.” Thus, North Carolina has concluded that it does not have authority under State law to regulate safety and health with regard to working conditions of employees at the American National Red Cross. The State now has requested that such facilities be excluded from coverage under its State plan and that Federal OSHA assume enforcement authority.

Although Federal OSHA believes that most States with OSHA-approved State plans have authority under State law to regulate working conditions of employees of the American National Red Cross and that the Red Cross is not a Federal instrumentality, North Carolina law has a somewhat different provision which has been interpreted by the State Attorney General's Office to preclude State OSHA coverage. Therefore, since the State has excluded the American National Red Cross from coverage under its plan and Federal OSHA has determined that Federal coverage of American National Red Cross facilities would be administratively practicable, Federal OSHA will assume jurisdiction over the American National Red Cross facilities in North Carolina.

A copy of the North Carolina Attorney General determination referenced in this notice as well as information on the North Carolina plan is available during normal business hours at the following locations:

For electronic copies of this notice, visit OSHA's Web Page at http://www.osha.gov/.

Under 29 CFR 1953.2(c), the Assistant Secretary may prescribe alternative procedures to expedite the review process or for other good cause which may be consistent with applicable laws. North Carolina's Final Approval determination issued after an opportunity for public comment in 1996, specifically provides that Federal standards and enforcement will apply to safety or health issues the State is unable to cover under its State plan, and this notice implements that provision. Accordingly, OSHA finds that further public participation is not necessary.

To assure worker protection under the OSH Act, Federal OSHA will assume jurisdiction over the American National Red Cross and its facilities in North Carolina. OSHA is hereby amending 29 CFR part 1952, Subpart I, to reflect this change in the scope of the State plan and the level of Federal enforcement in North Carolina

OSHA certifies pursuant to the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ) that this action will not have a significant economic impact on a substantial number of small entities. No additional burden will be placed upon the State government beyond the responsibilities already assumed as part of the approved State plan.

Executive Order 13132 on “Federalism” emphasizes consultation between Federal agencies and the States and establishes specific review procedures the Federal government must follow as it carries out policies which affect State or local governments. OSHA has included in the Supplementary Information section of today's notice a general explanation of the relationship between Federal OSHA and the State Plan States under the Occupational Safety and Health Act. OSHA has consulted with the State on its decision on this issue. Although OSHA has determined that the requirements and consultation procedures provided in Executive Order 13132 are not applicable to State decisions on the extent of State Plan coverage under the OSH Act which have no effect outside the particular State, OSHA has reviewed the decision approved today and believes it has been made in a manner consistent with the principles and criteria set forth in the Executive Order.

This document was prepared under the direction of Charles N. Jeffress, Assistant Secretary of Labor for Occupational Safety and Health. It is issued under section 18 of the OSH Act, (29 U.S.C. 667), 29 CFR Part 1902, and Secretary of Labor's Order No. 1-90 (55 FR 9033).

The principal author of this final rule is Richard Adamski, Royalty Valuation Division, Royalty Management Program (RMP), MMS.

On August 10, 1999, MMS published a final rule titled “Amendments to Gas Valuation Regulations for Indian Leases,” (64 FR 43506) with an effective date of January 1, 2000. These regulations apply to all gas production from Indian (tribal or allotted) oil and gas leases (except leases on the Osage Indian Reservation). The new regulations resulted from a negotiated rulemaking among Indian tribes and allottees, the oil and gas industry, and MMS.

Among the newly adopted regulations was a provision at 30 CFR 206.174(l) requiring that for Indian leases in Montana and North Dakota, lessees must make adjustments to reported royalty values sooner, and MMS must complete its audits sooner, than either has done historically. This provision does not apply to Indian leases in other States.

The final rule limited the adjustment and audit period for Indian leases in Montana and North Dakota because, unlike most other producing regions, there are no acceptable published indexes applicable to that area (64 FR 43510). Accordingly, in areas such as Montana and North Dakota, valuation must be based on other criteria that are more difficult to determine than index prices.

After the final rule was promulgated, tribal auditors informed MMS that the special timing requirements at 30 CFR 206.174(l) could force tribal and MMS auditors to expend additional time and money or postpone ongoing audits in Montana and North Dakota to meet the restricted time periods. Moreover, MMS believes that the reason for only placing time limits on Indian leases in Montana and North Dakota is not compelling. Consequently, on June 15, 2000, MMS published a proposed rulemaking (65 FR 37504) to remove the requirements. The proposed rulemaking provided for a 30-day comment period that ended July 17, 2000.

During the comment period for the proposed rule, MMS received two written comments: one from an Indian tribe (tribe) and one from industry. After careful consideration of the comments, MMS has decided to issue this final rule removing the special timing requirements for adjustments and audits of royalties on gas produced from Indian leases in Montana and North Dakota. This amendment to the regulations will apply prospectively to gas produced on or after the effective date specified in the DATES section above.

The industry commenter opposed the removal of the time limitations. The commenter believes that industry received the earlier valuation certainty in return for agreeing to an increase in the major portion calculation percentage to the 75th percentile. The commenter suggested that if MMS removes the adjustment and audit time limits then MMS should also change the major portion calculation to reflect the historical major portion value at the 50th percentile.

The tribal commenter supported the proposed amendments. As stated previously, the final rule limited the adjustment and audit period for Indian leases in Montana and North Dakota because there are no acceptable published indexes applicable to that area. The tribal commenter believes that the lack of such an index means that the determination of value will take more time, not less time, in the audit process.

Response. MMS and tribal auditors must retain the discretion to allocate audit resources to obtain the best data when that data becomes available. MMS believes that even without absolute time limits, industry is still afforded the certainty of a binding major portion value and no late-payment interest on any underpayment until that major portion value is due. Indian members of the Indian Negotiated Rulemaking Committee were unanimous in their belief that the median pricing methodology based on the 50th percentile did not accurately reflect the intent of lease terms. In exercising its trust responsibility to Indian lessors, MMS will continue to calculate the major portion value at the 75th percentile established in the August 1999 final rule.

MMS specifically sought comment on whether there is a valid reason for differentiating between leases located in other States and leases in Montana and North Dakota when they both may be required to use the same valuation standards.

The tribal commenter pointed out that under the provisions of the gas regulations that allow other tribes and allottees to opt out of the applicable indexes, no time limits for audits, adjustments, and collection are imposed. The commenter stated that the result is unfair and disparate treatment for the Montana and North Dakota tribes.

The industry commenter recognized that the Indian lessors in Montana and North Dakota are being treated differently from those groups under the index-based valuation. The commenter offered two solutions to remedy the situation:

• Apply the restricted time limits to all Indian lessors; or

• Calculate major portion at the 50th percentile.

Response. MMS concludes that there is no valid reason for differentiating between leases located in Montana and North Dakota and leases located in other States when they both may be required to use the same valuation standards. Further, we believe the suggestions proffered by the industry commenter are not in the best interests of Indian lessors and consistent with the Secretary's trust responsibilities.

MMS also sought comments on whether the time limits on adjustment and audit could have a negative revenue impact on royalties collected from gas produced from Indian lands in Montana and North Dakota.

The tribal commenter believes that the reduced time periods place a significant burden on tribes that conduct their own audit program. It may require tribes to put aside, postpone or abandon ongoing audits of earlier periods to meet the new deadlines. The reduced time period may affect tribes' abilities to do a comprehensive and thorough audit or possibly any audit at all within the shortened time period. The commenter is also concerned that MMS valuation resources may be stretched too thin. The above factors together may result in less revenues to Indian lessors located in Montana and North Dakota.

Response. MMS agrees that the timing restrictions could hinder MMS and tribal audit efforts.

The tribal commenter suggests that paragraphs (2), (3) and (4) of 30 CFR 206.174 be removed as they would no longer be necessary if paragraph (1) is removed.

Response. This comment is a misunderstanding caused by typographical errors in the June 15, 2000, proposed rule (65 FR 37504) which replaced the lowercase “L” with a numerical “1” in many parts of the text. MMS is removing 30 CFR 206.174(l) ( i.e., lowercase “L”) which includes paragraphs (1)-(4). MMS corrected these typographical errors in the July 7, 2000, Federal Register (65 FR 42064).

The objective of this rule is to remove the special timing requirements for adjustments and audits of royalties on gas produced from Indian leases in Montana and North Dakota. We have summarized below the estimated costs and benefits of this rule to the three affected groups: Indian lessors in Montana and North Dakota, industry, and the Federal Government. The cost and benefit information in this Item 1 of Procedural Matters is used as the basis for the departmental certifications in Items 3-10.

We estimate that in 1997, through audits, MMS identified and collected unpaid revenues amounting to 2 percent of the total royalties paid for gas production on certain Indian leases located in Montana.

In 1999, payors submitted about $420,000 in royalties from gas produced from Indian leases in Montana and $49,000 in royalties from gas produced from Indian leases in North Dakota. Using 2 percent to calculate the additional audit revenues that may be expected for the 1999 sales year, MMS should collect an additional $8,400 from leases in Montana and $980 from leases in North Dakota. We conclude that if audits cannot be completed within one year of the royalty line adjustments timeframes, Indian lessors could potentially lose these uncollected revenues, plus applicable late payment interest, annually.

This rule will impose no new reporting burdens on industry. Industry will benefit from the final rule by being able to make adjustments to royalty lines beyond the current 1-year period. However, industry will pay an undetermined amount of additional interest on any underpayments discovered during audits that take longer than 1 year to complete.

Small Business Issues. Approximately 17 entities in Montana and 5 in North Dakota—most of which are small businesses because they employ 500 or less employees—pay royalties to MMS on gas produced from Indian leases. As discussed in A. above, these 22 entities collectively will pay less than $10,000 in uncollected royalties annually as a result of an extended adjustment and audit period. The average estimated impact would be $426 in uncollected royalties affecting about 4 percent of the small businesses reporting gas royalties for Indian leases. This rule benefits small tribes that would otherwise have to hire additional audit staff to handle the burden of performing both past and present audits concurrently. From this information, we conclude that this rule will not have a significant economic impact on a substantial number of small entities.

Removing the time limits on audit will help to ensure that Indian mineral lessors receive the maximum revenues from mineral resources on their land consistent with the Secretary's trust responsibility and lease terms.

This document is not a significant rule and is not subject to review by the Office of Management and Budget under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule will not alter the budgetary effects or entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients.

(4) This rule does not raise novel legal or policy issues.

The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). See Small Business Issues in Item 1.B. above.

Your comments are important. The Small Business and Agricultural Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the enforcement actions in this rule, call 1-888-734-3247.

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Will not have an annual effect on the economy of $100 million or more.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

c. Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule will not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

Under Executive Order 12630, this proposed rule does not have significant takings implications. This rule does not impose conditions or limitations on the use of any private property; consequently, a takings implication assessment is not required.

Under Executive Order 13132, this proposed rule does not have Federalism implications. This rule does not substantially or directly affect the relationship between Federal and State governments or impose costs on States or localities.

Under Executive Order 12988, the Office of the Solicitor has determined that this proposed rule will not unduly burden the judicial system and does meet the requirements of sections 3(a) and 3(b)(2) of the Order.

This rule does not contain an information collection, as defined by the Paperwork Reduction Act, and the submission of Office of Management and Budget Form 83-I is not required.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required.

Pursuant to the authority granted in 33 U.S.C. 1605, the Department of the Navy amends 32 CFR part 706. This amendment provides notice that the Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS Mitscher (DDG 57) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I paragraph 3(a) pertaining to the location of the forward masthead light in the forward quarter of the vessel, and the horizontal distance between the forward and after masthead lights. The Deputy Assistant Judge Advocate General of the Navy (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR part 724. This amendment provides notice that the Department of the Navy has made administrative changes to the Naval Discharge Review Board regulations. These changes are found in subparts A and B and reflect updated references, removal of a redundant information, a change in the number of days an applicant has to submit documents to the Board after notification that certain documents are unavailable to the Board from 30 to 60 days, and other administrative changes. It has been determined that invitation of public comment on this amendment would be impracticable and unnecessary, and it is therefore not required under the public rulemaking provisions of 32 CFR Part 336 or Secretary of the Navy Instruction 5720.45. Interested persons, however, are invited to comment in writing on this amendment. All written comments received will be considered in making subsequent amendments or revisions of 32 CFR Part 724, or the instructions on which they are based. Changes may be initiated on the basis of comments received. Written comments should be addressed to Roger Claussen, Legal Advisor, Naval Council of Personnel Boards, 720 Kennon Street, SE, Room 309, Washington Navy Yard, DC 20374-5023. Phone: (202) 685-6399. It has been determined that this final rule is not a “significant regulatory action” as defined in Executive Order 12866.

It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will have little or no direct effect on States or local governments.

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR Part 1320).

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR Part 733. This amendment provides notice that significant changes were made in sections 733.3 and 733.4 to paragraphs applicable to the Marine Corps to reflect language found in the Marine Corps Legal Administration Manual (MCO 5800.16A (LEGADMINMAN)). Additionally, throughout Part 733 the term “basic allowance for quarters” was changed to “basic allowance for housing”, as well as other administrative changes. It has been determined that invitation of public comment on this amendment would be impracticable and unnecessary, and it is therefore not required under the public rulemaking provisions of 32 CFR Part 336 or Secretary of the Navy Instruction 5720.45. Interested persons, however, are invited to comment in writing on this amendment. All written comments received will be considered in making subsequent amendments or revisions of 32 CFR Part 733, or the instructions on which they are based. Changes may be initiated on the basis of comments received. Written comments should be addressed to Lieutenant Commander James L. Roth, JAGC, U.S. Navy, Head, Regulations and Legislation Branch, Administrative Law Division, Office of the Judge Advocate General (Code 13), 1322 Patterson Ave SE, Suite 3000, Washington Navy Yard, DC 20374-5066. It has been determined that this final rule is not a “significant regulatory action” as defined in Executive Order 12866.

It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will have little or no direct effect on States or local governments.

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR Part 1320).

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR Part 734. This amendment updates information on legal process brought against a Marine Corps member for the enforcement of a legal obligation to provide child support or alimony payments. Additionally, administrative changes were made to change reference to “Marine Corps Manual” to “MCO 5800.16A, Marine Corps Manual on Legal Administration (LEGADMINMAN)” on order to more accurately describe the manual. It has been determined that invitation of public comment on this amendment would be impracticable and unnecessary, and it is therefore not required under the public rulemaking provisions of 32 CFR Part 336 or Secretary of the Navy Instruction 5720.45. Interested persons, however, are invited to comment in writing on this amendment. All written comments received will be considered in making subsequent amendments or revisions of 32 CFR Part 734, or the instructions on which they are based. Changes may be initiated on the basis of comments received. Written comments should be addressed to Lieutenant Commander James L. Roth, JAGC, U.S. Navy, Head, Regulations and Legislation Branch, Administrative Law Division, Office of the Judge Advocate General (Code 13), 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374-5066. It has been determined that this final rule is not a “significant regulatory action” as defined in Executive Order 12866.

It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will have little or no direct effect on States or local governments.

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR Part 1320).

Pursuant to the authority cited below, the Department of the Navy amends 32 CFR Part 765. As part of our annual review of 32 CFR we identified a need to update information found at Part 765 concerning mileage allowances as part of the rewards for return of Navy and Marine Corps absentees and on the redelegated authority to grant written authority to use the emblem, names, and use of the United States Marine Corps. This rule is being published by the Department of the Navy for guidance and interest of the public in accordance with 5 U.S.C. 552(a)(1). It has been determined that invitation of public comment on this amendment would be impracticable and unnecessary, and it is therefore not required under the public rulemaking provisions of 32 CFR Part 336 or Secretary of the Navy Instruction 5720.45. Interested persons, however, are invited to comment in writing on this amendment. All written comments received will be considered in making subsequent amendments or revisions of 32 CFR Part 765, or the instructions on which they are based. Changes may be initiated on the basis of comments received. Written comments should be addressed to Lieutenant Commander James L. Roth, JAGC, USN, Head, Regulations and Legislation, FOIA/PA Branch, Administrative Law Division, Office of the Judge Advocate General (Code 13), 1322 Patterson Ave SE, Suite 3000, Washington Navy Yard, DC 20374-5066. It has been determined that this final rule is not a “significant regulatory action” as defined in Executive Order 12866.

It has been determined that this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in this rule will have little or no direct effect on States or local governments.

This rule will not have a significant economic impact on a substantial number of small entities for purposes of the Regulatory Flexibility Act (5 U.S.C. Chapter 6).

This rule does not impose collection of information requirements for purposes of the Paperwork Reduction Act (44 U.S.C. Chapter 35, 5 CFR Part 1320).

The following questions will be covered in this section:

A. What action is EPA taking?

B. What air pollutants are reduced by the changes to Connecticut's regulations?

C. Who is affected by today's action?

D. Where do the changes to the regulations apply?

E. When does today's action take effect?

F. What is “reasonably available control technology,” or RACT?

1. What is EPA's recommended VOC RACT for Miscellaneous Metal Parts and Products Coatings?

2. Do the Changes to Connecticut's VOC RACT for Miscellaneous Metal Parts and Products Coatings Meet EPA Guidance?

G. Why is EPA promulgating a full approval of the changes to subsections 22a-174-1, 22a-174-20(b), 22a-174-20(l), 22a-174-20(s) and section 22a-174-32?

H. Where to go for more information on the changes to Connecticut's regulations?

I. What does “direct final rulemaking” mean?

EPA is approving State Implementation Plan (SIP) revisions submitted by the State of Connecticut (CT). This action revises various volatile organic compound (VOC) regulations that are currently in the CT SIP. EPA is fully approving the following sections of the regulations of the State of Connecticut as changes to CT's SIP: (1) revisions to the definition of VOC, section 22a-174-1(97); (2) revisions to the gasoline loading regulation, section 22a-174-20(b); (3) revisions to the metal cleaning regulation, section 22a-174-20(l); (4) revisions to the miscellaneous metal parts and products coating regulation, section 22a-174-20(s); and (5) revisions to CT's reasonably available control technology (RACT) for VOC regulation, section 22a-174-32.

In addition to the regulatory changes, EPA is also approving negative declarations submitted by CT for two post-1990 CTG categories. Specifically, EPA is approving CT's negative declarations for the synthetic organic chemical manufacturing industry (SOCMI) distillation and reactor vessel source categories for which EPA issued CTG documents in 1993. Section 182(b)(2)(A) of the Clean Air Act (CAA) requires states with ozone nonattainment areas to revise their SIPs to require RACT at facilities in each industrial category covered by a CTG that is issued by the Administrator between November 1990 and the date of attainment. Through the negative declaration, CT is asserting that there are no sources within the State that would be subject to a rule for these source categories. EPA is approving this negative declaration submittal as meeting the section 182(b)(2)(A) RACT requirements for these two source categories. However, if evidence is submitted by November 20, 2000 that there are existing sources within CT that, for purposes of meeting the RACT requirements, would be subject to a rule for these categories, if developed, such comments would be considered adverse and EPA would withdraw its approval action on the negative declarations.

Additionally, in order to meet the requirements of section 182(b)(2)(A), CT revised section 22a-174-32 to apply to facilities subject to the three other final CTGs issued by EPA since 1990, i.e., the wood furniture, shipbuilding and repair, and aerospace coating CTGs. The revised section 22a-174-32 explicitly applies to wood furniture manufacturing and aerospace manufacturing and rework facilities. And, although there is no explicit applicability provision for shipbuilding facilities, section 22a-174-32 was revised to apply now to all major stationary sources, which is consistent with the applicability of the final shipbuilding CTG, as explained further below.

The changes to CT's regulations reduce emissions of volatile organic compounds, or VOCs. Volatile organic compounds are certain types of hydrocarbons that are precursors to the type of air pollution known as ground level ozone, the main ingredient of smog. Ground-level ozone is formed by a chemical reaction between VOCs and oxides of nitrogen ( NO X ) in the presence of sunlight. Therefore, the changes to CT's regulations will help reduce ground level ozone.

Today's action approves changes to category-specific regulations that affect a variety of VOC-emitting industrial facilities. Section 22a-174-20(b) applies to gasoline and volatile organic liquid loading facilities. Section 22a-174-20(l) applies to facilities that clean or prepare metal surfaces. Section 22a-174-20(s) applies to facilities that paint and coat certain kinds of metal parts and products.

Additionally, section 22a-174-32 is a general VOC RACT regulation that applies to all VOC emitting processes that are not already regulated by other VOC control regulations in the CT SIP. Today's action approves changes to the applicability of the earlier section 22a-174-32 requirements in order to include emissions from processes previously unregulated under the SIP such as: coating or painting wood products, coating or painting aerospace products, painting or refinishing commercial ships, storing volatile organic liquids, producing batch chemicals or pharmaceuticals, producing VOC-laden industrial wastewater and the coating of plastics.

All of the regulations being considered are applicable across the state. However, the applicability of section 22a-174-32 varies depending on the location of the VOC-emitting facility. In the area of CT designated as serious nonattainment of the ozone standard, the regulation applies to facilities with the potential to emit 50 tons of VOC or more per year. This area covers all of the State with the exception of southwestern CT. In the southwestern portion of CT designated as severe nonattainment for ozone, the regulation applies to facilities with the potential to emit 25 tons of VOC or more per year.

Since the shipbuilding CTG applies to facilities with the potential to emit 50 tons of VOC or more per year, the applicability of section 22a-174-32 now covers any shipbuilding sources subject to EPA's CTG. Also, consistent with the aerospace and wood furniture manufacturing CTGs, section 22a-174-32 specifically applies to facilities with the potential to emit 25 tons of VOC or more per year regardless of location within the state.

If EPA receives no relevant adverse comments during the 30-day public comment period that follows the publication of this notice, EPA approval action will be effective 60 days after the date of publication.

EPA defines RACT as the lowest emission limit that an existing polluting source is capable of meeting if it uses pollution control equipment and/or material or process changes that are reasonably available considering costs and current technology. For many VOC-emitting industrial categories, EPA has published control technique guidelines, or CTGs. CTGs analyze available control technologies and recommend emission limitations or technology standards that are considered economically feasible.

The changes being considered today to CT's definition of VOC, gasoline loading, and metal cleaning regulations do not affect the CTG-based RACT standards that are part of the existing regulations in CT. The changes being considered for CT's general VOC RACT regulation do not change the RACT norms established in the previous version of the regulation but do expand the applicability to cover additional facilities.

However, the changes being considered to CT's miscellaneous metal parts and products coating regulations define RACT for a new category of coatings, i.e., the “high performance architectural aluminum coatings.”

In the CTG for miscellaneous metal parts and products, EPA recommended limits for the VOC quantity of various metal coatings. For the “outdoor, harsh exposure, or extreme performance” coatings, EPA recommended a RACT limit of 3.5 pounds of VOC per gallon of coating, minus water and exempt solvents, at a cost effectiveness of $6,841 or less per ton VOC removed. See EPA document number EPA-450/2-78-015 for more details.

The revisions to section 22a-174-20(s) are approvable. These revisions include a new definition of “high performance architectural aluminum coating” and a 6.3 lb VOC per gallon of coating emission limit for this type of coating. CT's alternative limit, which represents a relaxation from the EPA Control Technique Guideline limit of 3.5 lbs VOC per gallon of coating, only applies to a coating applicator that emits 3,333 lbs of VOC per month or less (approximately 20 tons per year) and was an existing source in CT on or before November 1, 1994. CT's revisions were proposed in August 1994 and were adopted and effective in the State of Connecticut on March 1, 1995.

At the time of CT's rulemaking, it was documented that compliant coatings (3.5 lb VOC per gallon of coating) were not available at that add-on controls that were estimated to cost in excess of $15,000 per ton of VOC removed were not considered cost-effective. In addition, as previously stated, CT's alternative limit only applies to coating applicators in use in CT prior to November 1994 and is limited to 20 tons per year per applicator. There are only two applicators in CT that meet these criteria. Therefore, only 40 tons of VOC per year could be emitted at the higher limit. Also, new sources of sufficient size would trigger a BACT (Best Available Control Technology) or LAER (Lowest Achievable Emission Rate) review under CT's new source review program for minor and major sources. Furthermore, examination of CT's 1996 periodic emissions inventory shows that the 40 tons represents only 2 percent of CT's approximately 1990 tons of VOC emissions per year from miscellaneous metal parts and products surface coating operations. EPA's Blue Book  1 allows for deviations from CTG recommendations by means of the “5 percent rule” (i.e., emission resulting from implementation of the state's alternative must be within 5 percent of emissions resulting from implementation of EPA's CTG-based model rule).

Also, section 193 of the Clean Air Act ( i.e., the General Savings Clause), requires that any regulation in effect before the date of the enactment of the Clean Air Act Amendments of 1990 in any non-attainment area may only be modified if the modification insures equivalent or greater reductions of the same pollutant. Although the changes to pre-1990 section 22a-174-20(s) represent a potential increase in emissions of 40 tons per year, the expanded applicability of section 22a-174-32 is projected to reduce emissions by more than 40 tons per year. Given the VOC reductions resulting from the regulatory changes being acted on at this time, CT meets the requirements of the Savings Clause of section 193 of the Act.

The revisions submitted for subsections 22a-174-1, 22a-174-20(b), 22a-174-20(l), 22a-174-20(s), and the negative declarations for SOCMI reactor and distillation processes, are consistent with EPA guidance and meet the requirements of the CAA. Therefore, EPA is fully approving these changes as revisions to the Connecticut SIP.

Section 22a-174-32 establishes four RACT options. Options (A) and (B) of section 22a-174-32(e)(1), in combination with 22a-174-32(e)(2) and (e)(3), are methods of achieving RACT by either: (A) operating a system to capture and control VOC emissions to reduce VOC emissions by at least 85 percent of uncontrolled emissions; or by (B) reducing VOC use and emissions by 80 percent through reformulation or process changes. Options (C) and (D) are methods of achieving RACT through the use of emission reduction credits or an alternative compliance plan.

Options (A) and (B) define approvable VOC RACT methods. Options (C) and (D), however, describe processes by which RACT can be defined, but do not define RACT. Connecticut must define explicitly, and have approved by EPA, RACT for all of those sources complying with section 22a-174-32 through Options (C) and (D).

On October 5, 2000, EPA received a letter from Connecticut identifying the facilities for which RACT orders had not yet been issued and will be under section 22a-174-32(e)(1)(C) or (D). They are:

Connecticut has not yet submitted any of the necessary single source SIP revisions. Connecticut must submit and EPA must approve single source SIP revisions for the four sources listed above.

Although EPA has not received the final single source SIP revisions for these four facilities, section 22a-174-32 is fully approvable. On November 7, 1996, EPA issued a policy memorandum entitled “Approval Options for Generic RACT Rules Submitted to Meet the non-CTG VOC RACT Requirements and Certain NOX RACT Requirements,”  2 which applies to section 22a-174-32. Generic RACT provisions are those portions of a regulation where the emission limit or technology standard is not specified in the rule, rather, the determination of a limit is to be made on a case-by-case basis. Under the Act, these case-specific RACT determinations must be submitted to EPA as revisions to a State's SIP. The generic RACT policy allows full approval of a State's non-CTG VOC RACT regulation which contains generic provisions if an analysis has been completed that demonstrates that the remaining case-specific VOC RACT determinations involve a de minimis level of VOC emissions.

In the case of Connecticut's section 22a-174-32, analysis has shown that the emissions remaining to be covered by the case-specific RACT determinations for the four facilities constitute less than 3.5% of Connecticut's base year non-CTG VOC RACT emissions. Under the generic RACT policy, such emissions can be considered to be de minimis. Given this analysis, section 22a-174-32, including the generic provisions, is fully approvable.

It is important to note that approval of this regulation under the generic RACT policy does not exempt any remaining miscellaneous sources from RACT; rather it is a de minimis deferral of the approval of the remaining case-by-case RACT determinations. This means that approval of section 22a-174-32 will not relieve the remaining sources of the obligation to develop, submit and implement RACT level controls. Similarly, approval will not relieve Connecticut of the obligation to ensure that all sources within the State comply with the VOC RACT requirements of the Act by adopting and implementing emission limitations or technology standards. In fact, approval of this regulation will serve to reinforce the requirement for the State to submit any remaining case-specific RACT determinations. Because section 22a-174-32 requires that non-CTG VOC RACT determinations be submitted to EPA for approval as SIP revisions, approval of the regulation will make the requirement to submit remaining non-CTG VOC RACT orders enforceable by EPA, as well as by citizens under section 304 of the Act.

For a more detailed discussion of the changes to Connecticut's VOC RACT regulations and EPA's evaluation, you can refer to the technical support document, entitled, “Technical Support Document—Connecticut—Changes to Various VOC Regulations,” dated December 15, 1999 and the amendment to that document. For copies of the Technical Support Document, contact the EPA or the Connecticut Department of Environmental Protection at the addresses listed in the addresses section of this notice.

Essentially, “direct final rulemaking” means that the EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This action will be effective December 18, 2000 without further notice unless the Agency receives relevant adverse comments by November 20, 2000. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

If the EPA receives such comments, then EPA will publish a document withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period. Parties interested in commenting should do so at this time. If no such comments are received, the public is advised that this rule will be effective on December 18, 2000 and no further action will be taken on the proposed rule.

EPA is approving the SIP revisions concerning CT's changes to subsections 22a-174-1(97), 22a-174-20(b), 22a-174-20(l), 22a-174-20(s), and section 22a-174-32, as well as the negative declarations for SOCMI reactor and distillation processes CTG categories.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2000. Interested parties should comment in response to the proposed rule rather than petition for judicial review, unless the objection arises after the comment period allowed for in the proposal. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This Supplementary Information section is organized as follows:

EPA is approving post-1996 ROP emission reduction plans through 1999, and minor revisions to the 1990 base year inventory, submitted by the State of Connecticut for the Greater Hartford serious ozone nonattainment area, and the Connecticut portion of the NY-NJ-CT severe ozone nonattainment area, which is a multi-state ozone nonattainment area, as revisions to Connecticut's SIP. Connecticut did not enter into an agreement with New York and New Jersey to do a multi-state ROP plan, and therefore submitted a plan to reduce emissions only in the Connecticut portion of this area. EPA is taking action today only on the Connecticut portion of the NY-NJ-CT post-1996 plan.

The post-1996 ROP plans document how Connecticut complied with the provisions of section 182 (c)(2) of the Federal Clean Air Act (the Act), through 1999. These sections of the Act require states containing certain ozone nonattainment areas develop strategies to reduce emissions of the pollutants that react to form ground level ozone.

On June 30, 2000 (65 FR 40560), EPA published a proposed rulemaking for the State of Connecticut. That document proposed approval of the Connecticut post-1996 ROP plans. The formal SIP revision was submitted by Connecticut on December 30, 1997 and January 7, 1998.

Connecticut made two minor changes to its 1990 base year inventory, as described in the June 30, 2000 proposed approval action. EPA approved the Connecticut 1990 base year emission inventory on October 24, 1997 (62 FR 55336). The revised base year emission estimates shown in Table 1 are being approved as a revision to the State's SIP. The emission values in Table 1 represent tons per summer day (tpsd) emissions.

Connecticut's 1999 target emission levels are as follows. For the Greater Hartford area, the VOC target is 307.1 tpsd, and the NO X target is 297.9 tpsd. For the Connecticut portion of the NY-NJ-CT area, the VOC target is 93.0 tpsd, and the NO X target is 104.0 tpsd. These target emission levels represent the maximum amount of emissions that Connecticut can emit in 1999, given the State's post-1996 emission reduction requirements.

These target levels match the acetone-adjusted target levels EPA calculated in its June 30, 2000 proposed approval action. Connecticut confirmed in writing by letter dated July 21, 2000 its agreement with EPA's adjustments to the State's original emission target levels.

EPA's June 30, 2000 proposed approval action outlined the control strategy that Connecticut used to meet its emission target levels. In summary, the State's control strategy consists of the emission reductions from the continued enforcement of measures EPA approved as part of the State's 15 percent emission reduction plans (64 FR 12015) (March 10, 1999), coupled with emission reductions from the State's NO X control strategy for large industrial point sources, federal non-road engine standards, and Connecticut's Low Emission Vehicle program. All these control measures are approved as part of Connecticut's SIP or are otherwise enforceable under the Act.

Connecticut met the contingency requirements of sections 172(c)(9) and 182(c)(9) of the Act by using surplus NO X emission reductions achieved by the State's NO X control strategy. As explained in more detail in the EPA's June 30, 2000 proposed approval action, Connecticut's NO X control strategy achieves sufficient surplus reductions beyond those needed to meet the ROP targets to cover the State's 3 percent contingency measure obligation. The surplus reductions in the greater Hartford area are not sufficient to cover completely the area's 3 percent contingency obligation, but a significant 10.7 tpsd surplus remains in the NY-NJ-CT area. This surplus in the NY-NJ-CT area is sufficient to cover that area's 3 percent contingency obligation, to transfer 2.4 tpsd to the Greater Hartford area to complete that area's contingency obligation, and to use 1.2 tpsd to cover the VOC shortfall that occurred due to the State's failure to remove acetone from its area source base year inventory.

Although the Connecticut post-1996 ROP plans contain motor vehicle emission budgets for 1999, the current conformity budgets are those contained in the document, “Addenda to the Ozone Attainment Demonstrations for the Southwest Connecticut Severe Ozone Nonattainment area and Greater Connecticut Serious Ozone Nonattainment area,” which was submitted to EPA on February 15, 2000. This document included the transportation conformity budgets for 2007 shown below in Table 2.

Since these budgets are more restrictive, cover a time frame longer than the post-1996 ROP plans, and are based on the attainment plan, the 2007 budgets take precedence over the 1999 budgets. Furthermore, EPA New England published a document in the Federal Register announcing that these budgets are adequate for use in transportation conformity determinations on June 16, 2000 (65 FR 37778). Therefore, the 2007 budgets supersede the 1999 budgets. As a result, all new and revised State Transportation Improvement Programs that require a conformity determination must conform to these 2007 budgets, not the 1999 budgets contained in the post-1996 rate of progress plan.

Other specific requirements of post-1996 ROP plans and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. The only public comment received on the NPR was a July 21, 2000 letter from the Connecticut Department of Environmental Protection confirming their agreement with the manner in which EPA excluded acetone from the State's base year inventory.

EPA is approving post-1996 ROP plans for the Greater Hartford serious area, and the Connecticut portion of the NY-NJ-CT severe area through 1999, and minor revisions to the Connecticut 1990 emission inventory for ozone, as a revision to the Connecticut SIP.

Nothing in this action should be construed as permitting or allowing or establishing a precedent for any future request for revision to any State implementation plan. Each request for revision to the State implementation plan shall be considered separately in light of specific technical, economic, and environmental factors and in relation to relevant statutory and regulatory requirements.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document wherever “we,” “us” or “our” are used we mean EPA.

We are approving, as a SIP revision, the removal of references to TSP ambient standards from Virginia's regulations found at Title 9 VAC 5 Chapters 30 and 70. Chapter 30 is entitled, Ambient Air Quality Standards, and Chapter 70 is entitled, Air Pollution Episode Prevention.

In 1987, EPA replaced the National Ambient Air Quality Standards (NAAQS) for TSP with NAAQS for particulate matter less than 10 micrometers in diameter (PM10). At that time, we determined that smaller particles (PM10) were responsible for health and welfare effects. Unlike larger particles, the smaller particles are able to enter the respiratory system. On July 1, 1988, the Commonwealth adopted the Federal NAAQS for PM10 at 9 VAC 5-30-60. Likewise, Virginia adopted references to PM10 ambient levels in 9 VAC 5-70-40 “Episode determination.”

The SIP revision consists of the repeal of the entire text of 9 VAC 5-30-20 “Particulate matter (TSP)” to delete all references to TSP as a primary and secondary ambient standard. In addition, references to TSP ambient standards in 9 VAC 5-70-40 “Episode determination” are also being deleted. Although, these references to TSP ambient standards are being removed, the Commonwealth's regulations continue include the appropriate references to PM10.

The Commonwealth's regulations governing the control of fugitive dust of all sizes, including TSP, from various types of sources such as sand and gravel processing remain in effect. The removal of references to the former TSP ambient standards from 9 VAC -5-30-20 and 5-70-40 do not amend the Commonwealth's fugitive dust regulations. Therefore, no adverse environmental effects occur as the result of this SIP revision.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) that are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrates a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1997, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “regarding section 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1997 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under Section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law.

We are approving revisions to the Virginia SIP submitted on April 21, 2000. The revisions remove references to TSP ambient air quality standards and levels previously found at 9 VAC 5-30-20 and 9 VAC 5-70-40. We are publishing this action without prior proposal because we view this as a noncontroversial revision and anticipate no adverse comments. However, in a separate document in the “Proposed Rules” section of today's Federal Register , we are publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 18, 2000 without further notice unless we receive adverse comment by November 20, 2000. Should we receive such comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by Section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings' issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

Under Section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 18, 2000. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action regarding the removal of references to TSP ambient standards and levels from 9 VAC 5-30-20 and 9 VAC 5-70-40 of the Commonwealth of Virginia's regulations may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

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

1. Electronically . You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301066. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of February 25, 1998 (63 FR 9425) (FRL-5770-8), which announced that on its own initiative under section 408 of the FFDCA, 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the combined residues of norflurazon and its desmethyl metabolite in or on bermudagrass forage and hay at 2 and 3 parts per million (ppm) respectively, with an expiration date of 11/30/99. EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of FIFRA. Such tolerances can be established without providing notice or period for public comment. These tolerances were subsequently extended in the Federal Register of March 24, 1999 (64 FR 14099)(FRL-6063-2) until 11/30/00.

EPA received a request to extend the use of norflurazon on bermudagrass for this year's growing season due to the continuation of the emergency situation. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of norflurazon on bermudagrass for control of grassy weeds in Alabama, Arkansas, Georgia and Mississippi.

EPA assessed the potential risks presented by residues of norflurazon in or on bermudagrass forage and hay. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule published in the Federal Register of February 25, 1998 (63 FR 9425) (FRL-5770-8). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are extended for an additional 2-year period. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on 11/20/2002, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on bermudagrass forage and hay after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301066 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 18, 2000.

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

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301066, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104--113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

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

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

1. Electronically .You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,”“ Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/fedrgstr/.

2. In person . The Agency has established an official record for this action under docket control number OPP-301065. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall #2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of August 25, 1998 (63 FR 45176) (FRL-6021-6), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerance for the residues of phosphine resulting from the use of zinc phosphide in or on timothy, alfalfa, and clover at 0.1 ppm, with an expiration date of February 1, 2000. EPA established the tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment. These tolerances were subsequently extended until August 1, 2001 in the Federal Register of July 28, 1999 (64 FR 40769)(FRL-6090-9).

EPA received a request to extend the use of zinc phosphide on timothy, alfalfa, and clover for this year's growing season due to a continued emergency situation. After having reviewed the submission, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of zinc phosphide on timothy, alfalfa, and clover for control of Canada thistle and perennial sowthistle in Washington.

EPA assessed the potential risks presented by residues of zinc phosphide in or on timothy, alfalfa, and clover. In doing so, EPA considered the safety standard in FFDCA section 408(b)(2), and decided that the necessary tolerance under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rule of August 25, 1998 (63 FR 45176) (FRL-6021-6). Based on that data and information considered, the Agency reaffirms that extension of the time-limited tolerance will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerance is extended for an additional 1½-year period. EPA will publish a document in the Federal Register to remove the revoked tolerance from the Code of Federal Regulations (CFR). Although this tolerance will expire and is revoked on February 1, 2003, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on timothy, alfalfa, and clover after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996, EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulation for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301065 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 18, 2000.

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

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

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

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

3. Copies for the Docket . In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unit I.B.2. Mail your copies, identified by docket control number OPP-301065, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule establishes time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. , or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

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

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

1. Electronically. You may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/. To access this document, on the Home Page select “Laws and Regulations,” “Regulations and Proposed Rules,” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listing at http://www.epa.gov/fedrgstr/.

2. In person. The Agency has established an official record for this action under docket control number OPP-301070. The official record consists of the documents specifically referenced in this action, and other information related to this action, including any information claimed as Confidential Business Information (CBI). This official record includes the documents that are physically located in the docket, as well as the documents that are referenced in those documents. The public version of the official record does not include any information claimed as CBI. The public version of the official record, which includes printed, paper versions of any electronic comments submitted during an applicable comment period is available for inspection in the Public Information and Records Integrity Branch (PIRIB), Rm. 119, Crystal Mall # 2, 1921 Jefferson Davis Hwy., Arlington, VA, from 8:30 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The PIRIB telephone number is (703) 305-5805.

EPA issued a final rule, published in the Federal Register of June 20, 1997 (62 FR 33550) (FRL-5725-7), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the residues of tebuconazole in or on barley grain at 2.0 ppm, barley hay at 20.0 ppm, barley straw at 20.0 ppm, wheat hay at 15.0 ppm, and wheat straw at 2.0 ppm, with an expiration date of June 30, 1998.

EPA issued a final rule, published in the Federal Register of October 29, 1997 (62 FR 56089) (FRL-5752-4), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established time-limited tolerances for the residues of tebuconazole in or on sunflower oil and sunflower seed at 0.4 ppm and 0.2 ppm, respectively, with an expiration date of September 30, 1998.

EPA issued a final rule, published in the Federal Register of December 2, 1998 (63 FR 66449) (FRL-6036-3), which announced that on its own initiative under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, as amended by the Food Quality Protection Act of 1996 (FQPA) (Public Law 104-170) it established a time-limited tolerance for the residues of tebuconazole in or on hops at 4.0 ppm, with an expiration date of December 31, 2000.

EPA established these tolerances because section 408(l)(6) of the FFDCA requires EPA to establish a time-limited tolerance or exemption from the requirement for a tolerance for pesticide chemical residues in food that will result from the use of a pesticide under an emergency exemption granted by EPA under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Such tolerances can be established without providing notice or period for public comment.

EPA received requests to extend the use of tebuconazole on barley, hops, sunflowers and wheat for this year's growing season due to continued non-routine situations for growers of these crops. Idaho, Oregon and Washington requested emergency exemptions to control stripe rust in barley, and Oregon also requested the use of tebuconazole to control stripe and leaf rust in wheat; currently registered alternatives do not allow application at a sufficiently late stage of growth to control the disease. Michigan, Minnesota, North Dakota and South Dakota requested emergency exemptions to control Fusarium head blight in barley and/or wheat, as the disease continues to be a problem for growers in those states. Buildup of rust inoculum and continued wet and cool weather creates a potential emergency situation for sunflower growers in Colorado, Kansas, Nebraska and North Dakota. Idaho, Oregon and Washington requested the use on hops to control powdery mildew as it is claimed there are no effective alternatives currently registered. After having reviewed these submissions, EPA concurs that emergency conditions exist. EPA has authorized under FIFRA section 18 the use of tubconazole on barley, hops, sunflowers and wheat for control of the above pests in the states listed above.

EPA assessed the potential risks presented by residues of tebuconazole in or on barley, hops, sunflowers and wheat. In doing so, EPA considered the safety standard in FFDCA section 408(B)(2), and decided that the necessary tolerances under FFDCA section 408(l)(6) would be consistent with the safety standard and with FIFRA section 18. The data and other relevant material have been evaluated and discussed in the final rules of June 20, 1997; October 29, 1997; and December 2, 1998. Based on those data and information considered, the Agency reaffirms that extension of the time-limited tolerances will continue to meet the requirements of section 408(l)(6). Therefore, the time-limited tolerances are extended for an additional 1-year period. EPA will publish a document in the Federal Register to remove the revoked tolerances from the Code of Federal Regulations (CFR). Although these tolerances will expire and are revoked on December 31, 2001, under FFDCA section 408(l)(5), residues of the pesticide not in excess of the amounts specified in the tolerances remaining in or on barley grain, barley hay, barley straw, hops, sunflower oil, sunflower seed, wheat hay, and wheat straw after that date will not be unlawful, provided the pesticide is applied in a manner that was lawful under FIFRA and the application occurred prior to the revocation of the tolerances. EPA will take action to revoke these tolerances earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

Under section 408(g) of the FFDCA, as amended by the FQPA, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. The EPA procedural regulations which govern the submission of objections and requests for hearings appear in 40 CFR part 178. Although the procedures in those regulations require some modification to reflect the amendments made to the FFDCA by the FQPA of 1996. EPA will continue to use those procedures, with appropriate adjustments, until the necessary modifications can be made. The new section 408(g) provides essentially the same process for persons to “object” to a regulations for an exemption from the requirement of a tolerance issued by EPA under new section 408(d), as was provided in the old FFDCA sections 408 and 409. However, the period for filing objections is now 60 days, rather than 30 days.

You must file your objection or request a hearing on this regulation in accordance with the instructions provided in this unit and in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket control number OPP-301070 in the subject line on the first page of your submission. All requests must be in writing, and must be mailed or delivered to the Hearing Clerk on or before December 18, 2000.

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

Mail your written request to: Office of the Hearing Clerk (1900), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. You may also deliver your request to the Office of the Hearing Clerk in Rm. C400, Waterside Mall, 401 M St., SW., Washington, DC 20460. The Office of the Hearing Clerk is open from 8 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Office of the Hearing Clerk is (202) 260-4865.

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

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

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

3. Copies for the Docket. In addition to filing an objection or hearing request with the Hearing Clerk as described in Unit III.A., you should also send a copy of your request to the PIRIB for its inclusion in the official record that is described in Unite I.B.2. Mail your copies, identified by docket control number OPP-301070, to: Public Information and Records Integrity Branch, Information Resources and Services Division (7502C), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. In person or by courier, bring a copy to the location of the PIRIB described in Unit I.B.2. You may also send an electronic copy of your request via e-mail to: opp-docket@epa.gov. Please use an ASCII file format and avoid the use of special characters and any form of encryption. Copies of electronic objections and hearing requests will also be accepted on disks in WordPerfect 6.1/8.0 file format or ASCII file format. Do not include any CBI in your electronic copy. You may also submit an electronic copy of your request at many Federal Depository Libraries.

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

This final rule extends the expiration date of time-limited tolerances under FFDCA section 408. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). Nor does it require any prior consultation as specified by Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998); special considerations as required by Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994); or require OMB review or any Agency action under Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note). Since tolerances and exemptions that are established on the basis of a FIFRA section 18 petition under FFDCA section 408, such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) do not apply. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 entitled Federalism (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” This final rule directly regulates growers, food processors, food handlers and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4).

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

In rule document 00-22077 beginning on page 53472 in the issue of Friday, September 1, 2000, make the following corrections:

1. On page 53477, under the State of Florida, city of Ocala, column two (County and/or other defined location) is corrected to read “Marion”.

2. On page 53482, under the State of New Jersey, city of Edison, column two (County and/or other defined location) is corrected to read “Middlesex (except Piscataway)”.

3. On page 53482, under the State of New Jersey, cities of Piscataway/Belle Mead, column two (County and/or other defined location) is corrected to read “Somerset; and City limits of Piscataway”.

4. On page 53483, under the State of New York, city of Monroe, column two (County and/or other defined location) is corrected to read “Orange (except West Point)”.

5. On page 53484, under the State of North Carolina, city of New Bern, column two (County and/or other defined location) is corrected to read “City limits of New Bern”.

6. On page 53485, under the State of Rhode Island, a new entry is added prior to the city of East Greenwich, to read (column one) “Block Island”; (column two) “Block Island only”; (column three) “55”; (column four) “30”; (column five) “85”.

7. On page 53485, under the State of Rhode Island, city of Newport, column two (County and/or other defined location) is corrected to read “Newport (except Block Island)”.

8. On page 53485, under the State of Rhode Island, city of North Kingstown, column two (County and/or other defined location) is corrected to read “Washington”.

9. On page 53487, under the State of Virginia, city of Virginia Beach, the seasonal dates in column one are corrected to read “(April 1-October 31) (November 1-March 31)”.

10. On page 53488, under the State of Wisconsin, city of Sheboygan, column two (County and/or other defined location) is corrected to read “Sheboygan”.

Pages 53477, 53482, 53483, 53484, 53485, 53487, and 53488, as corrected, read as follows:

On July 23, 1987, we and the FDA jointly issued a final rule establishing the national cardiac pacemaker registry (52 FR 27756), as mandated by the Deficit Reduction Act of 1984 (Public Law 98-369). The final rule for the Registry was codified in 21 CFR part 805. The scope of the regulation provided that the FDA establish a nationwide registry for cardiac pacemakers and pacemaker leads. The FDA used the information submitted to the Registry to track the performance of permanent pacemakers and pacemaker leads and to perform studies and analysis regarding the use of the devices. They transmitted data to us to administer the Medicare program, and to other Federal components to carry out statutory responsibilities.

On October 2, 1996, An act to Repeal An Unnecessary Medical Device Reporting Requirement (Public Law 104-224), which amended title XVIII of the Social Security Act (the Act) (42 U.S.C. 1395), became law. The purpose of the new law was to remove section 1862(h) (42 U.S.C. 1395y(h)) of the Act to eliminate duplicative and unnecessary reporting. The registry was considered duplicative with the requirements of section 519(e) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360i(e)), which requires that manufacturers track and collect data for certain devices, including permanently implanted pacemakers and pacemaker leads, from the manufacturer, through the distribution chain, to the patient using the device. In accordance with this act, the FDA published a final rule in the Federal Register revoking the Registry on November 24, 1999 (64 FR 66105).

In response to the FDA revocation of the Registry, we are removing all requirements and references regarding the Registry that appear in our regulations. These appear in 42 CFR Parts 409, 410, 489, and 498. We are revising § 409.1(e) to remove the phrase “* * * and section 1862(h) requires a registry of pacemakers.” We are also removing §§ 409.19 and 410.64, which deal exclusively with requirements for providers and physicians related to the Registry. And we are removing and reserving §§ 489.21(g) and 498.3(b)(10), which contain cross references to §§ 409.19 and 410.64.

Under section 553(b)(B) of the Administrative Procedure Act (APA), we, for good cause, find that notice and comment procedures are unnecessary because we are not exercising discretion in removing the references to the Registry. And, under section 553(d)(3) of the APA, we, for good cause, waive the 30-day delay in the effective date because Public Law 104-224 was self-implementing.

We have reviewed this notice under the threshold criteria of Executive Order 13132. We have determined that this final rule will not have substantial direct effects on the states, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

Section 202 of the Unfunded Mandates Reform Act of 1995 requires that agencies assess anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million in any one year. This final rule will not have an effect on the governments mentioned, and the private sector costs will not be greater than the $100 million threshold.

We have examined the impacts of this rule as required by Executive Order 12866 (September 1993, Regulatory Planning and Review) and the Regulatory Flexibility Act (RFA) (September 19, 1980 Public Law 96-354). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more annually). This rule is not a major rule because costs will not meet this $100 million threshold. The RFA requires agencies to analyze options for regulatory relief of small businesses. For purposes of the RFA, small entities include small businesses, nonprofit organizations and government agencies. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of $5 million or less annually. Individuals and States are not included in the definition of a small entity.

In addition, section 1102(b) of the Act requires us to prepare a regulatory impact analysis if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area and has fewer than 50 beds.

In accordance with the provisions of Executive Order 12866, this final rule was not reviewed by the Office of Management and Budget.

The Commission, in its summary of the Memorandum Opinion and Order (MO&O), FR Doc. 00-24964, published in the Federal Register of September 29, 2000 (65 FR 58477) released information that requires correction. First, it misstated the correct agency docket number for the item (CC Docket No. 94-54) in the headings section. Then, in the SUPPLEMENTARY INFORMATION section of the preamble, the Commission erroneously incorporated a docket number and the associated adoption and release dates from another proceeding into this item thereby omitting the correct docket number for this proceeding (CC Docket No. 94-54), the correct adoption date of the MO&O (July 13, 2000), and the correct release date of the MO&O (August 28, 2000). Further, this item corrects the phone listing for Paul Murray to 418-7240.

In FR Doc. 00-24964, published in the Federal Register of September 29, 2000 (65 FR 58477), make the following corrections:

(1) On page 58477, in the second column, in the Agency Docket number, correct “PR Docket No. 94-54” to read “CC Docket No. 94-54.”

(2) On the same page, in the third column, line four, correct “(202) 418-0688” to read “(202) 418-7240.”

(3) On the same page, in the same column, line 11, correct “PR Docket No. 93-144” to read “CC Docket No. 94-54.”

(4) On the same page, in the same column, line 12, correct “August 2, 2000” to read “July 13, 2000.”

(5) On the same page, in the same column, lines 12 and 13, correct “August 4, 2000” to read “August 28, 2000.”

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands area (BSAI) according to the Fishery Management Plan for the Groundfish Fishery of the Bering Sea and Aleutian Islands Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

In accordance with section 206(b) of the American Fisheries Act (AFA), NMFS specified a pollock incidental catch allowance equal to 5 percent of the pollock total allowable catch after subtraction of the 10 percent Community Development Quota reserve in the Final 2000 Harvest Specifications for Groundfish for the BSAI (65 FR 8282, February 18, 2000).

As of October 10, 2000, the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that approximately 14,000 metric tons (mt) of pollock remain in the incidental catch allowance. Based on projected harvest rates of other groundfish species and the expected bycatch of pollock in those fisheries, the Regional Administrator has determined that 9,000 mt of pollock specified in the incidental catch account will not be necessary as incidental catch. Therefore, NMFS is apportioning the projected unused amount, 9,000 mt, of pollock from the incidental catch allowance to the directed fishing allowances established at section 206(b) of the AFA. This transfer will increase the allocation to catcher vessels harvesting pollock for processing by the inshore component by 4,500 mt, to catcher/processors and catcher vessels harvesting pollock for processing by catcher processors in the offshore component by 3,600 mt, and to catcher vessels harvesting pollock for processing by motherships in the offshore component by 900 mt. Pursuant to section 210(c) of the AFA, no less than 8.5 percent of the 3,600 mt allocated to catcher processors in the offshore component, 306 mt, will be available for harvest only by eligible catcher vessels delivering to listed catcher processors.

Regulations in the emergency interim rule establishing Steller sea lion protection measures for the pollock fisheries off Alaska (65 FR 3892, January 25, 2000) and extended (65 FR 36795, June 12, 2000) allow for catch to occur within the C/D season so that pollock removals from all sectors do not exceed 60 percent of the annual TAC. Sixty percent of the annual pollock TAC is equal to 683,400 mt tons. With this apportionment the C/D season catch for the three combined directed fisheries, the CDQ fishery, and bycatch of pollock in other directed groundfish fisheries will be less than 679,000 mt, thereby not violating the 60 percent restriction.

The emergency interim rule to establish AFA permit requirements (65 FR 380, January 5, 2000) and the extension (65 FR 39107, June 23, 2000) set out procedures for AFA inshore catcher vessel pollock cooperatives to apply for and receive cooperative fishing permits and inshore pollock allocations. NMFS received applications from seven inshore catcher vessel cooperatives by the application deadline of December 31, 1999. Table 1 revises the final 2000 BS subarea allocations to include the seven inshore catcher vessel pollock cooperatives that have been approved and permitted by NMFS for the 2000 fishing year consistent with this reallocation.

This action responds to the best available information recently obtained from the fishery. NMFS finds that the need to implement this action immediately in order to allow full utilization of the pollock TAC constitutes good cause to waive prior notice and comment as such procedures are unnecessary and contrary to the public interest. As further delay would only disrupt the AFA and the FMP’s objective of providing pollock for harvest in directed fisheries, NMFS finds for good cause that the implementation of this action cannot be delayed for 30 days. Accordingly, under 5 U.S.C. 553(d), a delay in the effective date is hereby waived.

This action is taken under 50 CFR 679.20, and is exempt from review under E.O. 12866.