The Nuclear Regulatory Commission (NRC) is amending the regulations that govern operators' licenses to allow applicants for operator and senior operator licenses to fulfill a portion of the required experience prerequisites by manipulating a plant-referenced simulator as an alternative to manipulation of the controls of the actual nuclear power plant. This final rule also removes requirements for facility licensee certification of their simulation facilities and routine submittal of reports to the NRC for review that identify any uncorrected performance test failures and a related schedule for correction. Continued assurance of simulator fidelity is provided because a facility licensee must: (1) Conduct performance testing and retain results for four years; (2) correct modeling and hardware discrepancies and discrepancies identified from scenario validation and from performance testing; (3) make the results of any uncorrected performance test failures available onsite; and (4) maintain the provisions for license application, examination, and test integrity consistent with Section 55.49. The final rule also revises two definitions and adds clarity to the regulations by relocating language relating to the use of a simulation facility to a new section dedicated to “Simulation Facilities.” Lastly, the final rule facilitates voluntary licensee transition to an improved approach to simulator testing as described in an American National Standards Institute/American Nuclear Society (ANSI/ANS) standard, ANSI/ANS-3.5-1998, “Nuclear Power Plant Simulators for Use in Operator Training and Examination.” Revision 3 to Regulatory Guide 1.149, “Nuclear Power Plant Simulation Facilities for Use in Operator Training and License Examinations,” (RG 1.149) endorses this standard and is being published in conjunction with this final rule.

Prior to 1987, the Commission's regulatory position was that simulator experience was not necessarily equivalent to actual nuclear power plant operating experience. The industry and the public supported this position, citing inherent problems and uncertainties in simulator technology, and the few plant-specific simulators in existence at the time.

The Commission became increasingly aware of the need to update its operator licensing requirements, in particular the need to clarify the extent to which simulators may be used in the operator licensing process. In 1987, the Commission amended substantial portions of 10 CFR part 55 to (1) formalize the requirement for license applicants to perform five significant manipulations to control reactivity or power level on the actual plant as a prerequisite for license eligibility; (2) require that every operating test be administered in a plant walk-through and a simulation facility that was either approved by the Commission or certified by the facility licensee as a plant-referenced simulator; and (3) require submittal of periodic performance tests on the simulation facility, and maintenance of records pertaining to the conduct of these tests and the results obtained. (See 52 FR 9453; March 25, 1987). Consequently, facility licensees began to develop simulators for operator licensing and training which were certified by licensees to be in accordance with national standard ANSI/ANS-3.5-1985, “Nuclear Power Plant Simulators for Use in Operator Training.” Eventually, every facility with a current Part 50 license procured a plant-referenced simulator and submitted a certification for its use to the Commission.

Since 1987, technology has allowed advances in the simulators' computing capability, model complexity, and fidelity. Consequently, the Commission has fewer concerns regarding the equivalence of experience gained on simulation facilities and that obtained on the actual plant. Additionally, simulator testing has changed considerably since the current rule was published in 1987. Specifically, the ANS 3.5 Standard Committee Working Group (WG) initiated a new, improved approach to simulator testing with the issuance of ANSI/ANS-3.5-1998, “Nuclear Power Plant Simulators for Use in Operator Training and Examination,” which employs a scenario-based testing philosophy that is inconsistent with the testing assumptions and requirements of the current rule. The Commission has reviewed this new industry standard, found it acceptable, and determined that the existing regulatory requirements contain prescriptive aspects that are impediments to industry adoption of the 1998 standard and are no longer necessary to support required training and examination programs. The Commission has also determined that the current requirements for facility licensee certification of plant referenced simulators and routine submittal of simulation facility performance test failures, with a schedule for corrections, are unnecessarily burdensome for licensees. As an alternate approach, the NRC can review plant-referenced simulators for acceptability and performance test results of simulation facilities before the simulator facility is used for operating tests.

With this final rule, the Commission is updating its positions regarding the use, certification, and reporting requirements for performance testing of simulation facilities. The final rule amends 10 CFR part 55 to take advantage of improvements in simulator technology and to reduce unnecessary regulatory burden on licensees by:

(1) Allowing applicants for operator and senior operator licenses to fulfill a portion of the required experience prerequisites by manipulating a plant-referenced simulator as an alternative to manipulation of the controls of the actual nuclear power plant,

(2) Removing current requirements for facility licensee certification of their simulation facilities, and

(3) Eliminating the necessity for routine submittal of reports to the NRC for review that identify any uncorrected performance test failures and a schedule for correction.

Finally, the final rule facilitates voluntary licensee transition to an improved approach to simulator testing as described in industry standard ANSI/ANS-3.5-1998, “Nuclear Power Plant Simulators for Use in Operator Training and Examination.” Revision 3 to Regulatory Guide 1.149, “Nuclear Power Plant Simulation Facilities for Use in Operator Training and License Examinations,” endorses this standard and is being published in conjunction with this final rule.

The current rule requires that applicants for operator and senior operator licenses perform five significant control manipulations that affect reactivity or power level on the actual plant. This final rule will allow applicants to perform the manipulations either on a plant-referenced simulator or on the actual plant at the facility licensee's discretion. When simulators are used to provide for performance of control manipulations, the final rule requires that: (1) Simulator models replicate the nuclear and thermal-hydraulic characteristics of the most recent core load in the nuclear power reference plant for which a license is being sought; and (2) significant control manipulations are completed without procedural exceptions, simulator performance exceptions, or deviation from the approved training scenario sequence. These requirements ensure that simulator experience replicates evolutions on the plant and that license applicants receive the same overall experience in safe plant operation as they would on the plant itself.

The use of a plant-referenced simulator of appropriate fidelity for these manipulations is acceptable because of improvements in simulator technology and 14 years of successful experience in using simulators after the 1987 revision of part 55. Plant-referenced simulators provide operator training and realistic examination scenarios on reactivity manipulations, other normal and abnormal procedure operations, complex plant operations, and emergency operating procedure evolutions, including the management of simultaneous tasks and faulted conditions. This final rule will allow license applicants to fulfill a portion of the required experience requirements in the facility's plant-referenced simulator without disrupting the operation of the actual plant.

During the public comment period, the Nuclear Energy Institute (NEI) and several additional commenters recommended changing proposed § 55.45(b)(3)(i)(A), which would have required that the simulator model replicate the plant “at the time of the applicant's operating test.” The commenters stated that the words “at the time of the applicant's operating test” could unnecessarily restrict the candidate's opportunities to conduct reactivity manipulations. The commenters also stated that the proposed language would create a problem if a refueling outage occurs near the time the applicant was scheduled for the operating test or if the date of the operating test changed. The Commission acknowledges the concern that the proposed wording of § 55.45(b)(3)(i)(A) (§ 55.46(c)(2)(i) of the final rule) would have restricted the candidates' opportunities to conduct the reactivity manipulations. The Commission does not intend to be unduly restrictive with regard to the timing for conduct of the five significant control manipulations on a plant-referenced simulator. Therefore, the Commission has revised § 55.46(c)(2)(i) of the final rule to require the plant-referenced simulator to “replicate the most recent core load in the nuclear power reference plant for which a license is being sought,” while deleting the words “at the time of the applicant's operating test.” It is the Commission's intent that the phrase “most recent” means the current core or if the plant is in a refueling outage, the core just previous to the outage.

The current rule requires licensees who use plant-referenced simulators to certify on NRC Form 474, “Simulation Facility Certification,” that their simulator meets Commission regulations. The current regulations also require that test documentation and test schedules be submitted quadrennially. Currently licensed power reactor facilities have licensee-certified, plant-referenced simulators and the NRC staff's experience has shown that the submitted quadrennial reports are of minimal value.

The final rule eliminates current requirements in § 55.45(b) for: (1) Facility licensee certification of their simulation facilities, and (2) routine submittal of reports to the NRC for review which identify any uncorrected performance test failures and a schedule for correction. Continued assurance of simulator fidelity is provided, in the final rule in new § 55.46(d), by requiring licensees to: (1) Conduct performance testing and retain results for four years, (2) correct modeling and hardware discrepancies and discrepancies identified from scenario validation and from performance testing, (3) make the results of any uncorrected performance test failures available for NRC review, and (4) maintain the provisions for license application, examination, and test integrity consistent with Section 55.49. In addition, NRC reviews or inspections to ensure compliance with final rule requirements at simulation facilities will maintain safety without the unnecessary burden of certification and submittal of simulator performance test reports. If NRC reviews associated with operating tests for operator license applicants or inspections completed using the Requalification Inspection Procedure as part of the oversight process find that a plant-referenced simulator is unsuitable because it does not demonstrate expected plant performance or meet the requirement specified in items (1) and (4) above, then the simulator may not be used to conduct operating tests for operator license applicants, requalification training, or control manipulations until the simulator is made suitable. In any case, simulation facilities, including plant-referenced simulators, must additionally meet (2) and (3) of the requirements of § 55.46(d) for continued assurance of simulator fidelity. Further, NUREG-1021, Revision 8, “Operator Licensing Examination Standards for Power Reactors,” provides detailed policies, procedures, and practices for examining applicants for reactor operator and senior reactor operator licenses. NUREG-1021 essentially ensures that simulator scenarios for examinations are completed without procedure exceptions or simulator performance exceptions.

Facility licensees have trained licensed operators and applicants for operator and senior operator licenses on plant-referenced simulators that were certified in accordance with the 1985 edition of ANSI/ANS-3.5, “Nuclear Power Plant Simulators for Use in Operator Training and Examination.” This national industry standard specifies full-scope, stand-alone testing of system models and simulator training capabilities as part of initial simulator acceptance testing. Facility licensees have continued to test their plant-referenced simulators during initial development and to submit test schedules and reports on a quadrennial basis. The industry's approach to computer software development and simulator testing has changed considerably since 1987 through the issuance of the 1998 version of ANSI/ANS-3.5. The standard has moved away from continued full-scope, stand-alone testing of system models and simulator training capabilities toward a scenario-based testing and quality-control philosophy.

For facility licensees that adopt the 1998 revised national standard, the final rule revision allows for a change in the type of performance testing from a prescriptive simulator testing program in the context of initial simulator procurement to a scenario-based and operability performance testing program. The final rule does not require facility licensees to adopt the 1998 version of ANSI/ANS-3.5 or to modify existing simulator support programs or practices. Because the final rule continues to require performance testing, facility licensees that do not adopt the 1998 revised national standard will perform the same type of performance testing as before. The final rule will allow facility licensees to adjust their performance test programs to their end-user needs, as defined by their accredited systems-approach-to-training (SAT) programs, or to conform their existing simulator programs to the new revision of ANSI/ANS-3.5.

This rule and the associated Revision 3 of Regulatory Guide 1.149, “Nuclear Power Simulation Facilities for Use in Operator Training and License Examinations,” that endorses ANSI/ANS-3.5-1998 without exceptions, reduces inconsistencies between the operational needs of facility licensee programs and the simulator testing requirements.

In 10 CFR 55.4, “Definitions,” the proposed rule would have defined performance testing as follows: “Performance testing means validation, scenario-based, or operability testing conducted to verify a simulation facility's performance as compared to actual or predicted reference plant performance.” During the public comment period, the ANS 3.5 Standards Committee WG recommended that the proposed definition be changed to eliminate the word “validation.” The Commission agrees with that suggestion and, further, the Commission has reconsidered the inclusion of the phrase “* * * scenario-based, or operability * * *” because it could be interpreted as limiting a facility licensee to the use of the ANSI/ANS-3.5-1998 standard. Therefore, the Commission has retained the original definition of performance testing in the final rule as “Performance testing means testing conducted to verify a simulation facility's performance as compared to actual or predicted reference plant performance.”

The definition of “plant-referenced simulator” is revised to remove the last sentence and to relocate the substance of that sentence—a “plant-referenced simulator demonstrates expected plant response to operator input, and to normal, transient, and accident conditions to which the simulator has been designed to respond”—to new § 55.46(c)(1). This is a conforming change that provides clarity to the regulation. The first sentence of the definition remains the same.

The term “reference plant” is defined in § 55.4 as “the specific nuclear power plant from which a simulation facility's control room configuration, system control arrangement, and design data are derived.” This definition remains the same in the final rule and continues to provide clarification that for a simulation facility, a specific plant (unit) at a multi-plant (unit) site is the “reference plant.” The Commission realizes that the use of inconsistent terminology can be confusing and has made clarifications where appropriate in preparing the final rule. However, the Commission intends to re-evaluate the use of the term “reference plant” in the future.

The term “simulation facility” is revised to include part-task and limited-scope simulator devices so that these devices can be used if a request were received and approved by the Commission for their use. The definition of “simulation facility” is also revised to remove “the plant” as a potential “simulation facility.” Use of “the plant” is now addressed in the new § 55.46(b). This is a conforming change that provides clarity to the regulation. The intent remains to allow facility licensees to use the plant, if approved, for the administration of the operating test and to meet experience requirements for applicants for operator and senior operator licenses. This conforming change is intended to continue to provide the regulatory flexibility that facility licensees have had since 1987.

The final rule includes administrative changes to move the requirements for the use of simulation facilities from § 55.45 to a new § 55.46, “Simulation Facilities.” Former §§ 55.45(b) (4) and (5) dealing with simulators have been separated from § 55.45 and consolidated in the new § 55.46. This is simply an administrative change to clarify the existing rule by separating requirements concerning simulation facilities from requirements in § 55.45 concerning operating tests.

To implement this rule the NRC staff is also developing revisions to the process for initial licensing, requalification, and examination of reactor and senior operators, including updating NUREG-1021, Revision 8, and the “Licensed Operator Requalification Program Inspection Procedure,” (IP- 71111.11) of the reactor oversight process. Training of examiners will be conducted as appropriate. The NRC staff expects that these revisions will be completed one year from the date the final rule is published. Since the proposed rulemaking notice, the staff has determined that it is not necessary to revise and update NUREG-1262, “Answers to Questions at Public Meetings Regarding Implementation of Title 10, Code of Federal Regulations, part 55 on Operator's Licenses” and NUREG-1258, “Evaluation Procedure for Simulation Facilities Certified Under 10 CFR 55.” Instead of revising the NUREG's listed above, answers to questions from a public meeting/workshop concerning this final rulemaking will be posted on the NRC's homepage at www.nrc.gov in the Nuclear Reactors icon under “Principal Reactor Regulatory Programs” under “Operator Licensing Program.” Additionally, the answers to any questions will be available and may be viewed as discussed above under the heading ADDRESSES .

A draft version of the associated regulatory guide (DG-1080, Proposed Revision 3 of Regulatory Guide 1.149) that proposed endorsing ANSI/ANS-3.5-1998 was made available for public comment (64 FR 45985). The final Regulatory Guide 1.149 is being made available concurrently with this final amendment. The regulatory guide is available for inspection in the NRC Public Document Room or it may be viewed and downloaded electronically through the interactive rulemaking web site established by the NRC for this rulemaking, as discussed above under the heading ADDRESSES . Single copies may be obtained from David Trimble, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-2942, or by electronic mail to dct@nrc.gov.

The proposed rule was published in the Federal Register on July 3, 2000 (65 FR 41021), and the public comment period ended on September 18, 2000. The Commission received 15 comment letters on the proposed rule: 3 comments from individuals, 9 from nuclear power plant licensees (utilities), 1 from a utility organization (Nuclear Energy Institute), 1 from a licensed operator organization (the Professional Reactor Operators Society (PROS)), and 1 from a national consensus standard working group (Standards Committee WG ANS-3.5). One letter with a request for an extension to the comment deadline was also received. No public comments were received from any State agency. No public meetings were held to discuss the proposed rule nor were any requested. However, the general status of the proposed rule was discussed at NEI Initial Operator Licensing Focus Group Meetings open to the public. The comment letters may be viewed on the NRC's Web site, http://www.nrc.gov/NRC/rule.html, under “NRC Rulemaking Web Site,” at “News, Information and Contacts for Current Rulemaking.”

Twelve of the 15 commenters expressed support for amending the rule. Several of the commenters provided specific recommendations for changes to the proposed rule. The comments and responses were grouped into five categories: (1) General support of the proposed rule, (2) general opposition to the proposed rule, (3) reactivity manipulations, (4) simulator issues, including certification of simulation facilities, and (5) definitions and wording.

Comment 1-1: The majority of commenters supported the proposed changes to 10 CFR part 55, “Operator's licenses” to allow licensed operator candidate reactivity manipulations on a plant-referenced simulator as an alternative to use of the actual plant.

Response: No response necessary.

Comment 1-2: The Professional Reactor Operator Society (PROS) commented that the proposed rule would allow initial license candidates to perform required reactivity changes on a plant-referenced simulator is a welcome and acceptable change. PROS stated that the rule does not specify that license candidates cannot or should not perform manipulations on the actual plant. The amended rule will simply allow the requirement for performing five significant control manipulations that affect reactivity to be performed on either the actual plant or on the simulation facility.

Response: No response necessary.

Comment 1-3: One commenter stated that hands-on individual demonstrations of a reactivity manipulation on a simulator would seem to be a significant benefit of the rule change.

Response: The Commission agrees.

Comment 2-1: One commenter stated that plant owners should not be able to shirk their responsibility for adequately training new operators. The commenter noted that there may be an enormous cost involved with the current rule and although it may be inconvenient, it does not justify diluting the licensing requirements to the point where a licensed operator does not even have to operate the real plant. The current cold license exceptions should not be used as justification because there are many extra controls and safeguards in place on a new startup. Another commenter stated that the industry needs clear guidelines, minimum deviations, and appropriate penalties for any noncompliance. The commenter also stated that safety dictates that initial license candidates are given the opportunity to move the plant without regard to real or perceived costs and that it has always been hard to put a dollar value on training until past mistakes are examined. The opportunity for actual reactivity manipulations reduces the stress-induced error rate, notably during transient conditions when clear decision-making counts.

Response: The Commission believes that the level of reactor safety established under the regulations is adequate and that the rule does not need to be strengthened. The Commission believes that the proposed changes are justified based not on an extension of the cold license exceptions (cold license examinations are those administered before the unit completes pre-operational testing and the initial start up test program) in the existing regulation, but rather on significant improvements in simulation technology, including increases in computing capability, model complexity, and fidelity. In addition, the NRC staff has conducted and observed operator licensing and requalification examinations on plant-referenced simulators for approximately 15 years and has found that scenarios are performed on simulators in a very realistic manner.

Further, this final rule does not change any of the training requirements of § 50.120 or the specific licensed operator training and requalification requirements in § 55.45(a) or § 55.59. The candidates are still required to spend a substantial amount of time actually performing the duties of their particular positions in an on-the-job training environment. In response to the concern that the industry needs clear guidelines, minimum deviations, and appropriate penalties for any noncompliance, the Commission believes that the final rule in conjunction with the regulatory guide endorsing the ANSI/ANS standard provides clear guidance to the industry. Penalties for noncompliance are addressed by the Commission's enforcement program.

Although the NRC's primary mission is to maintain adequate levels of reactor safety, it must also give due consideration to the principle of regulatory efficiency. Because the Commission has concluded that the proposed regulatory change will not affect the existing level of reactor safety, it would be inappropriate not to take advantage of this opportunity to adopt a regulatory alternative that will minimize the burden on facility licensees. The Commission concludes that there is no measurable net benefit in requiring facility licensees to have license candidates perform reactivity control manipulations on the plant for experience purposes when doing so can entail significant expense for the facility licensee and a measure of risk to plant operations and safety. Therefore, no changes are warranted in response to this comment.

Comment 3-1: The Nuclear Energy Institute (NEI) and several additional commenters recommended changing proposed § 55.45(b)(3)(i)(A), which requires that the simulator model replicate the plant “at the time of the applicant's operating test.” The commenters recommended that the words “at the time of the applicant's operating test” be deleted because this could unnecessarily restrict the candidate's opportunities to conduct reactivity manipulations to a short time just before the operating test. The commenters also stated that this would be a problem if a refueling outage occurs near the time the applicant was scheduled for the operating test or if the date of the operating test changed.

Response: The Commission agrees with this comment as discussed above in the “Discussion” section under “Performance of Control Manipulations on the Plant-Referenced Simulator.” This change has been incorporated in the final rule.

Comment 3-2: The NEI and several additional commenters recommended that because plant-referenced simulators are modeled to one plant, the reference plant, the regulatory text should be clarified to indicate that the simulator modeling is for the referenced plant.

Response: The Commission agrees with NEI's recommendation that the regulatory text be clarified to indicate that the simulator core model will replicate the reference plant for the simulation facility. This change has been incorporated in the final rule.

Comment 3-3: The NEI and several additional commenters recommended that training objectives could be met if the models reasonably represent the reference plant at the time of the manipulations. Therefore, they recommend that § 55.45(b)(3)(i)(A) be changed to read: “The plant-referenced simulator uses models relating to nuclear and thermal-hydraulic characteristics that reasonably represent the core load that exists in the nuclear power reference plant for the facility at which a license is being sought; and ...” Another commenter stated that “replicate” could be misleading in a more legal application. Another commenter stated that in discussing the requirements of the simulator that will be used for control manipulations, the terms “replicate,” “represent,” and “reasonably represent” are used interchangeably.

Response: The Commission does not agree with NEI's recommendation that the simulator core model “reasonably represent” rather than “replicate” the core load that exists in the reference plant. The Commission believes that the terminology in the proposed rule is appropriate and consistent with ANSI/ANS-3.5-1998, “Nuclear Power Plant Simulators for Use in Operator Training and Examination,” the current industry consensus standard. It means that the plant-referenced simulator's nuclear and thermal-hydraulics models operate within the tolerances specified in section 4.1.3, “Steady-State and Normal Evolutions” of the industry standard. The commenter did not explain and the Commission does not understand why “replicate could be misleading in a more legal application.” On the contrary, the NRC staff believes that using different terminology in the regulation than in the industry standard would be more confusing and misleading.

Comment 3-4: One commenter thought that the five reactivity manipulations should be “evaluated” manipulations. The commenter also stated that perhaps three of the five reactivity manipulations should be required to be evaluated by senior management.

Response: The Commission agrees with the commenter's suggestion that the five reactivity manipulations should be “evaluated” manipulations and believes that this expectation is already addressed in the Commission's regulations and guidance documents. Section 55.4, “Definitions” describes the five elements of a systems approach to training, including the requirement to evaluate the trainees' mastery of the objectives during training, that apply to all licensed operator training programs. Section 4.6 of NUREG-1220, “Training Review Criteria and Procedures,” that provides direction to NRC staff for reviewing training programs to verify compliance with the regulations, clarifies the Commission's expectations regarding the evaluation of tasks performed to ensure that the trainees master the actual job performance requirements. The Commission believes that requiring senior management to evaluate the reactivity manipulations would be overly prescriptive while adding little value. In practice, whenever license applicants are engaged in on-the-job training (OJT) in the actual control room, they have to be closely supervised and evaluated by the on-shift licensed operators. Generally, the more safety-significant activities, including reactivity and power changes, are more closely supervised and evaluated than others, regardless of whether they are performed in the actual control room or the simulator.

The Commission encourages communication and cooperation between plant operations and training management when making determinations regarding the license applicants' mastery of the training objectives and job requirements and, ultimately, their readiness for the licensing examination. Under § 55.31(a)(4), an authorized representative of the facility licensee, usually the plant manager or higher, must certify on the license application that the applicant has successfully completed the facility licensee's requirements to be licensed as an operator or senior operator. Based on the foregoing, no changes are warranted in response to this comment.

Comment 3-5: One commenter indicated that it would appear that there are so many required reactivity manipulations for each operator that the time constraint alone would preclude all manipulations from being currently performed on the reactor. The commenter stated that the simulator must already be used extensively in meeting reactivity manipulations requirements.

Response: Although it is true that simulators are already being used extensively for operator training and to practice reactivity manipulations, the control manipulations that are required by the regulations cannot be performed on the simulator, though, a few exceptions to this rule have recently been granted. These five required significant control manipulations, which affect reactivity or power level, must be performed by applicants, as trainees at the controls of the facility for which a license is sought. The Commission believes that the proposed changes to the regulation will promote the original intent of the control manipulation requirement.

Comment 3-6: One commenter stated that “as a minimum, one 10 percent power change should be mandatory prior to an unconditional license. If plant conditions warrant, a conditional license is issued. The condition is that an observed manipulation is performed. For those plants not in compliance with 100 percent of the fidelity issues as delineated by the guideline, the candidates must perform three 10 percent changes, that would include startups and responses to reactor trips.” The commenter also stated that they believed strictly requiring compliance with fidelity issues will ensure the identified fidelity issues are addressed.

Response: The commenter appears to address two different issues: (1) The need for an explicit requirement that the control manipulations involve at least a 10 percent change and (2) where the simulator is not “100 percent” compliant with fidelity requirements, then three 10 percent changes must be accomplished by the operator applicant. However, no basis was provided for these two proposals. The Commission does not believe that either proposal is necessary. With regard to the first issue, neither the current nor the final rule address how much of a percentage power change is required for the control manipulations. The first proposal indicates that the commenter believes that the magnitude of a power level change must be at least 10 percent if it is to be a meaningful experience for an operator. The Commission believes that the magnitude of a power level change is a secondary issue. It is more important that a license candidate understand the operation of the systems involved and that the experience reinforce that knowledge and be conducted in an atmosphere as conducive to training as possible. A simulator setting in many ways is a more optimum setting for gaining this experience. To address the commenters' apparent concern, it is more likely that larger magnitude changes can be performed on the simulator than on the plant. The final rule does not alter the requirement for every license applicant to complete the control manipulations on the facility for which a license is sought, it simply gives facility licensees the flexibility to conduct some or all of the required manipulations on a plant-referenced simulator, but only if the simulator satisfies the NRC's core modeling and fidelity requirements. With regard to the second issue, the final rule does address the continued assurance of simulator fidelity issues in § 55.46(d) and also requires simulator fidelity to be demonstrated so that significant control manipulations can be completed without procedural exceptions, simulator performance exceptions, or deviation from the approved training scenario sequence.

Comment 3-7: One commenter thought that in the past the Commission has allowed utilities to deviate from the intent of the reactivity manipulation requirements. This allowed the utilities to use a wide range of interpretations for the required reactivity manipulations. The commenter also thought that deviations had become the norm rather than the rule. The commenter stated that wholesale deviations from this rule cannot be made.

Response: NRC expects that the rule is uniformly applied to all facility licensees. The Commission agrees that deviations cannot be made. Contrary to the commenters belief, the Commission does not allow anyone to deviate from the requirements without an exemption. Therefore, no changes are warranted in response to this comment.

Comment 4-1: A few commenters stated that an operator's license should not be issued based on only operating a simulator.

Response: The Commission acknowledges that operating a plant-referenced simulator is not identical to operating the actual plant despite all efforts to maximize realism and fidelity. However, today's plant-referenced simulators are of sufficient quality and fidelity that significant control manipulations can be completed without procedural exceptions, simulator performance exceptions, or deviation from the approved scenario sequence. The Commission does not believe that the rule will dilute the operators' licensing requirements. The rule will not change the requirement for every initial license applicant to complete five significant (power or reactivity) control manipulations, nor will it allow all of an applicant's training to be “simulated” because it does not change the requirement for every applicant to complete an on-the-job-training (OJT) program. OJT programs include hands-on experience in shift operations under the direct supervision of a licensed operator. Therefore, no changes are warranted in response to this comment.

Comment 4-2: One commenter stated that the difference between operating a real plant and a simulator is “stress” and further noted that the Commission did not mention the difference in operator stress while operating the real plant versus a simulator. Another commenter stated that the fidelity of the simulator is not proportional to the induced stressed from real plant operations.

Response: The level of stress experienced by licensed operators while performing the required significant control manipulations and other routine, controlled, and supervised evolutions are, in the Commission's opinion, insignificant when compared with the level of stress that they experience while responding to major plant transients (real or simulated as part of an examination scenario) that require the implementation of emergency operating procedures and response plans. Consequently, the Commission believes that there is little value in trying to distinguish between the levels of stress associated with routine control manipulations performed on a plant-referenced simulator and the actual plant. While undergoing OJT, the license applicants will still be given many opportunities to operate the real plant and experience “the stress of knowing that the impact of a mistake may be much more dramatic than a call to ‘reset the simulator.’ ” The NRC staff has conducted and observed operator licensing and requalification examinations on plant-referenced simulators for approximately 15 years and has detected no discernible difference in the operators' and applicants' demeanor while performing control manipulations in simulators versus actual control rooms.

Comment 4-3: One commenter stated that the Commission should give very high priority to comments submitted by qualified operators and further stated that “if qualified operators do not believe that plant-referenced simulators are an adequate replication for this purpose, or indicate that this proposal is a step toward degrading operator training, or judge that safety in reactor operation is compromised, then the rule should not go forward without modifications that can gain the operators' support.”

Response: The Commission agrees completely and has given high priority and serious consideration to comments submitted by qualified operators and to any concerns they have about this amendment. Only one formerly licensed senior operator and one instructor of licensed operators submitted comments in general opposition to the rule. PROS, who submitted comments on behalf of its members, portrayed the change to the rule as welcome and acceptable.

Comment 4-4: One commenter thought that with more reliance being placed on the plant-referenced simulator for operator qualification, it would seem logical that greater attention is paid to ensure that the simulator is the best possible replication of the plant. If removal of current requirements for certification of simulation facilities and routine submittal of simulator performance test reports to the Commission is not consistent with greater attention, then the proposal seems self-contradictory.

Response: The Commission agrees that, when a plant-referenced simulator is used for operator qualification, there must be assurance that the simulator is the best possible replication of the plant. The fact that this rule removes the current regulatory requirements for facility licensees to certify their simulator facilities and submit periodic performance test results to the Commission does not mean that the Commission is reducing the technical requirements for simulator fidelity. When simulators are used to provide control manipulation experience, the final rule requires the simulator to utilize models relating to nuclear and thermal-hydraulic characteristics that replicate the most recent core load in the nuclear power reference plant for which a license is being sought. It also requires simulator fidelity to be demonstrated so that significant control manipulations can be completed without procedure exceptions, simulator performance exceptions, or deviation from the approved training scenario sequence. These requirements should ensure that experience gained on the simulator essentially replicates that obtained from actual control manipulations on the plant. The final rule simply changes the nature of the reporting requirements for the performance test reports but does not eliminate the requirement for performance testing. No changes are warranted in response to this comment.

Comment 4-5: One commenter noted that there are licensed operators and senior licensed operators who have never seen or responded to an actual reactor trip. They should not experience an actual trip for the first time during real plant operations. The stress-induced error rate would be unacceptable.

Response: The Commission acknowledges that there may be licensed operators and senior operators who have never seen or responded to an actual reactor trip because many plants are experiencing record runs with unplanned reactor trip rates far below the levels seen several years ago. This simply highlights the importance of having high-quality, high-fidelity, plant-referenced simulators that enable operators to practice normal, abnormal, and emergency evolutions (most of which would never be possible to perform on the plant) without procedural or simulator performance exceptions. Although there is no regulatory requirement to do so, the Commission believes that facility licensees assign most new and inexperienced operators to crews containing other operators having greater levels of experience. Moreover, the Commission has encouraged teamwork between control room operators and, therefore, in 1987, significantly revised its requalification examination process to focus primarily on the crews' ability to successfully accomplish those activities deemed critical to safe plant operation.

Comment 5-1: The Standards Committee WG ANS-3.5 stated that the ANSI/ANS-3.5-1998 Standard defines performance testing as, “testing characterized by a comparison of the results of integrated operation of the simulation facility to actual or predicted reference plant data. Performance testing encompasses testing other than software development testing.” Also Section 4.4.3 states, “Simulator performance testing comprises operability and scenario-based testing.” In § 55.4, “Definitions,” the proposed rule would define performance testing as follows: “Performance testing means validation, scenario-based, or operability testing conducted to verify a simulation facility's performance as compared to actual or predicted reference plant performance.” The Standards Committee WG ANS-3.5 recommends that the proposed definition be changed to read as follows: “Performance testing means scenario-based and operability testing conducted to verify a simulation facility's performance as compared to actual or predicted reference plant performance.”

Response: The Commission agrees that the proposed wording of the definition of “performance testing” (i.e., “validation, scenario-based, or operability testing”) may have caused some confusion. Further, the Commission has reconsidered the inclusion of the phrase “ * * * scenario-based, or operability * * * ” because it could be interpreted as limiting a facility licensee to the use of the ANSI/ANS-3.5-1998 standard. Therefore, the Commission has retained the original definition of performance testing in the final rule as “Performance testing means testing conducted to verify a simulation facility's performance as compared to actual or predicted reference plant performance.”

Comment 5-2: One commenter stated that the terms “plant facility,” “plant,” and “nuclear power unit” are used interchangeably when discussing the requirement for control manipulations. For a multi-unit facility, the three phrases can have distinctly different meanings and ramifications on the actual number of manipulations that would be required. The use of “nuclear power unit” could be slightly different on each unit at the time of an operator license application due to staggered outages and design upgrade implementation schedules. The use of “plant” could be interpreted as one of the units of a multi-unit facility or as a “facility.” A more appropriate term would be “reference unit.”

Response: The Commission acknowledges the commenter's observation that the terms “plant facility,” “plant,” and “nuclear power unit” were used interchangeably when discussing the requirement for control manipulations. The Commission does not require that a plant-referenced simulator reflect multiple unit configurations or that the control manipulations would have to be completed on each configuration separately. The term “reference plant” is defined in § 55.4 as “the specific nuclear power plant from which a simulation facility's control room configuration, system control arrangement, and design data are derived.” This definition remains the same in the final rule and continues to clarify that for a simulation facility, a specific plant (unit) at a multi-plant (unit) site is the “reference plant.” The Commission realizes that the use of inconsistent terminology can be confusing and has made clarifications where appropriate in preparing the final rule. However, the Commission intends to re-evaluate the use of the term “reference plant” in the future.

Comment 5-3: One commenter stated that in discussing the testing that would be required by the Commission to take credit for a manipulation performed as a plant-reference simulator in the Statements of Consideration, the scope of testing is described as (1) to encompass verification, validation, and documentation and (2) developmental and verification testing. On the other hand, the proposed wording in § 55.45(b)(3)(i)(B) of the proposed rulemaking (65 FR 41021) describes the specific performance testing requirements as follows: “Simulator fidelity has been demonstrated so that significant control manipulations are completed without procedural exceptions, simulator performance exceptions, or deviation from approved training scenarios sequence.” It is important to note that certain words with specific definitions in ANSI/ANS-3.5-1998 (i.e., verification and validation) are not used in the rule itself. The commenter recommends that the Statements of Consideration use the same language as the rule itself.

Response: The Commission acknowledges the commenter's observation that certain words with specific definitions in ANSI/ANS-3.5-1998 (i.e., verification and validation) were not used in the proposed rule and the recommendation that the Statements of Consideration use the same language as the rule itself. The intent of § 55.45(b)(3)(i)(B) of the proposed rule was not to establish specific performance testing requirements but to ensure that the significant control manipulations that are performed on the simulator are completed without procedural exceptions, simulator performance exceptions, or deviation from the approved training scenario sequence. It is important to remember that while the Commission has endorsed ANSI/ANS-3.5-1998, it is not requiring facility licensees to upgrade their commitments and requirements with respect to simulator testing. Therefore, no changes are warranted in response to this comment.

Comment 5-4: One commenter noted that § 55.45(b)(3)(i)(A) states in part that “the plant-referenced simulator uses models related to nuclear and thermal-hydraulic characteristics that replicate the core load that exists in the nuclear power unit.” Engineering and real-time numerical models contain approximations. Generally, neither reproduces physical processes exactly. Therefore, guidance identifying the level of modeling detail required and a definition for the term “replicate” need to be developed. The level of modeling detail required has to coincide with actual plant's response as seen by the operators. Paragraphs 4.1.3.1.3 and 4.1.3.1.4 of the 1998 ANSI/ANS-3.5 Standard do not provide any assistance. Additionally, no guidance is provided on rod worth, notch worth, SRM-IRM range performance, axial power distribution, radial power distribution, stored energy, fuel time constant, core coupling, etc., that are the actual plant responses that the operator sees. Also, older, coarser mesh models are less refined than the more recent wheel-up engineering look-alike models. Therefore, the commenter believes that guidance as to what level of modeling detail is acceptable to the Commission needs to be developed.

Response: When the Commission developed the proposed rule, it purposely excluded prescriptive guidance on the level of modeling detail for a plant-referenced simulator because the NRC staff believes that section 4.1, “Simulator Capabilities Criteria” of ANSI/ANS-3.5-1998, the latest industry consensus standard, provides adequate guidance in that area. The NRC staff believes that the concerns regarding paragraphs 4.1.3.1.3 and 4.1.3.1.4 of the standard and the specific parameters identified in the comment are unrelated to the proposed rule. Technical issues such as these should be brought to the attention of the Standards Committee WG ANS-3.5 for resolution. Therefore, no changes are warranted in response to this comment.

Comment 5-5: One commenter stated that clear guidance should be provided for multi-unit sites training on one simulator. In addition, the commenter stated that provisions have to be made that allow for training on a simulator that may not exactly replicate the reactor core in each reactor unit.

Response: The Commission acknowledges the commenter's concerns regarding training at multi-unit sites and has clarified the final rule language to indicate that the simulator core model will replicate the reference plant for the facility. The NRC does not expect that a plant-referenced simulator would reflect multiple unit configurations or that the control manipulations would have to be completed on each configuration separately. If a facility licensee wishes to use a simulation facility to simulate more than one nuclear power plant, it must be able to demonstrate to the NRC that the differences between the plants are not so significant that they have an impact on the ability of the simulation facility to meet the requirements and guidance of ANSI/ANS-3.5. Therefore, no additional changes are warranted in response to this comment.

Comment 5-6: One commenter noted that under the “Discussion of Proposed Rule Change,” the statement is made that “absent certification, assurance of simulator suitability would be provided through Commission reviews and validation of operating test scenarios, with review of performance test results, and uncorrected modeling or hardware discrepancies, if needed.” Objective guidance should be developed for Commission's review of “uncorrected modeling or hardware discrepancies” because such a review could render the simulator unsuitable for examination.

Response: As discussed in the proposed regulatory analysis attached to SECY-00-0083, the Commission is planning to revise and develop additional implementation guidance for use by the NRC staff in evaluating whether a plant-referenced simulator is suitable for use in conducting the required control manipulations and operating examinations. This effort is expected to include revisions of the appropriate sections of NUREG-1021, Revision 8, “Operator Licensing Examination Standards for Power Reactors,” and the Licensed Operator Requalification Inspection Procedure (IP-71111.11) of the reactor oversight process.

Comment 5-7: One commenter notes that, as stated in SECY-00-0083, dated April 12, 2000, the current revision of the national standard, ANSI/ANS-3.5-1998, “Nuclear Power Plant Simulators for Use in Operator Training and Examination,” employs a scenario-based testing and quality control philosophy that is inconsistent with the testing assumptions and requirements of the rule. With the elimination of the certification process and NRC Form 474, the commenter did not understand where the linkage between the proposed regulatory change, Regulatory Guide 1.149, “Nuclear Power Plant Simulation Facilities for Use in Operator Training and License Examinations,” and the ANSI/ANS-3.5-1998 Standard is maintained.

Response: The Commission believes that the rule will facilitate the voluntary implementation of ANSI/ANS-3.5-1998 because it deletes the prescriptive requirements for simulator test performance and scheduling that were implemented in connection with the industry standard that was in effect at the time of the 1987 rule change. If those requirements had not been deleted, facility licensees would have had little incentive to revise their programs to be compatible with the current industry standard. As with most other NRC regulations, the linkage between 10 CFR Part 55 and ANSI/ANS-3.5, the industry consensus standard for nuclear power plant simulation facilities, is established by the associated regulatory guide, in this case RG 1.149. Eliminating NRC Form 474 does not affect that linkage.

In 10 CFR part 55, “Operators's Licenses,” the Table of Contents regarding subpart E-Written Examinations and Operating Tests, is amended by reference to new § 55.46.

The term “plant-referenced simulator” is revised to remove the provision that “a plant-referenced simulator demonstrates expected plant response to operator input, and to normal, transient, and accident conditions to which the simulator has been designed to respond” from the definition and move it to new § 55.46(c)(1).

The term “simulation facility” is revised to include part-task and limited-scope simulator devices so that such devices can be used if a request were received and approved by the Commission for their use. The definition of “simulation facility” is also revised to relocate the “the plant” as a potential “simulation facility” to new § 55.46 (b).

NRC Form 474, “Simulation Facility Certification” no longer needs to be filed. Accordingly § 55.8(c)(3) is deleted.

Section 55.31(a)(5) is revised to allow that the required five significant control manipulations that affect reactivity or power level to be performed either on a plant-referenced simulator or on the plant itself, at the facility licensee's discretion.

By providing an option for facility licensees to use plant-referenced simulators for control manipulations, the final rule makes unnecessary the need for current provisions in § 55.31(a)(5) addressing the use of simulators for performance of control manipulations for facilities that have not yet completed pre-operational testing and initial startup test programs and provisions addressing plants in extended shutdowns. Thus those provisions are removed.

Additionally, acceptable simulator training scenarios involving control manipulations that affect reactivity are identified in § 55.31(a)(5) for clarity by reference to current control manipulations and training scenarios described in § 55.59. Consistent with previously issued regulatory guidance, the list provides examples of acceptable control manipulations, which are a subset of evolutions in § 55.59 (c)(3)(i), and affect reactivity in a controlled manner and exclude those items on the list that are major transients and accidents.

Former §§ 55.45(b)(4) and (5) dealing with simulators have been separated from the requirements for operating tests in § 55.45 and consolidated in a new § 55.46, “Simulation Facilities.”

Section 55.45(b) requires that the operating test for an operators license be administered on either a Commission-approved simulation facility, a plant-referenced simulator, or on the actual plant, if approved by the Commission.

Facility licensees proposing to use a plant-referenced simulator meeting the definition in § 55.4 are not required to submit a request for Commission approval of that simulator. For cases when facility licensees propose to use a simulation facility not meeting the definition of a plant-referenced simulator, the Commission will continue to require additional information to determine the acceptability of the simulator and thus, will require an application for Commission approval.

The final rule implements administrative changes to former § 55.45(b) to move the requirements to a new § 55.46, “Simulation Facilities.” The new section has one general and three implementation criteria as discussed below.

(a) General.

Section 55.46(a) explains that the purpose of this section is to set forth the requirements for the use of a simulation facility for the administration of the operating licensing operator test, and for the use of a plant-referenced simulator for fulfilling a portion of the experience requirements for applicants for operator and senior licenses.

(b) Commission-approved simulation facilities and Commission approval of use of the plant in the administration of the operating test.

Section 55.46(b)(1) provides that facility licensees who propose to use a simulation facility, other than a plant-referenced simulator, or the plant in the administration of the operating test under § 55.45(b)(1) or § 55.45(b)(3) shall request approval of the simulation facility from the Commission and that this request must include certain criteria as described below.

Section 55.46(b)(1)(i) provides that the request for approval of the simulation facility, other than solely a plant-referenced simulator, must describe the components of the simulation facility or the plant intended to be used for each part of the operating test, unless previously approved. Section 55.46(b)(1)(ii) provides that the request for approval of the simulation facility, other than solely a plant-referenced simulator, must describe the performance tests and the results of the tests. Section 55.46(b)(1)(iii) provides that the request for approval of the simulation facility, other than solely a plant-referenced simulator, must describe the procedures for maintaining examination and test integrity consistent with the requirements of § 55.49. Section 55.46(b)(2) provides that the Commission will approve a simulation facility or use of the plant for administration of operating tests if it finds that the simulation facility or the plant and their proposed use are suitable for the conduct of operating tests for the facility licensee's reference plant under § 55.45(a).

(c) Plant-referenced simulators.

Section 55.46(c) requires that a plant-referenced simulator used for the administration of the operator licensing operator test or to meet the experience requirements of § 55.31(a)(5) to demonstrate expected plant response to operator input and to normal, transient, and accident conditions to which the simulator has been designed to respond. Sections 55.46(c)(1)(i) and (ii) are revised to include the provision that a plant-referenced simulator is designed and implemented so that it: (1) Is sufficient in scope and fidelity to allow conduct of the evolutions listed in §§ 55.45(a)(1) through (13) and §§ 55.59(c)(3)(i)(A) through (AA), as applicable to the design of the reference plant; and, (2) allow for the completion of control manipulations for licensed operator applicant eligibility consistent with § 55.46(c)(2).

Section 55.46(c)(2)(i) provides that the plant-referenced simulator utilizes models relating to nuclear and thermal-hydraulic characteristics that replicate the most recent core load in the nuclear power reference plant for which a license is being sought. Section 55.46(c)(2)(ii) provides that simulator fidelity has been demonstrated so that significant control manipulations are completed without procedural exceptions, simulator performance exceptions, or deviation from the approved training scenario sequence. It is the Commission's intent that the phrase “most recent” means the current core or if the plant is in a refueling outage, the core just previous to the outage.

(d) Continued assurance of simulator fidelity.

Section 55.46(d) requires that facility licensees which maintain a simulation facility shall: (1) Conduct performance testing throughout the life of the simulation facility in a manner sufficient to ensure that the criteria of § 55.46(c)(1)(ii), as applicable, and § 55.46(d)(3) are met, and retain the test results for four years after the completion of each performance test or until superseded by updated test results; (2) correct modeling and hardware discrepancies and discrepancies identified from scenario validation and from performance testing; (3) make the results of any uncorrected performance test failures that may exist at the time of the operating test or requalification program inspection available for NRC review, prior to or concurrent with preparations for each operating test or requalification program inspection; and, (4) maintain the provisions for license application, examination, and test integrity consistent with § 55.49.

As a result of the changes to § 55.45(b) that eliminate the simulator certification requirement, a conforming change to § 55.59(c)(4)(iv) deletes the terms “certified” when referring to a simulation facility in this section.

The Commission is currently in the process of implementing an electronic document management and reporting program, known as the Agency Wide Documents Access and Management System (ADAMS) that will provide for electronic access of many types of reports. Accordingly, there is no separate rulemaking effort to provide for electronic access or submittal of reports.

Many States (Agreement States and Non-Agreement States) have agreements with power reactors to inform the States of plant issues. State reporting requirements are frequently triggered by Commission reporting requirements. Accordingly, the Commission sought State comment on issues related to the proposed amendment by letters to State Liaison Officers as well as by a specific request in the proposed rule. No comments on the proposed rule were received from any State agency.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires that Federal agencies use technical standards developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. This final rule sets forth requirements with respect to training of operators, and removing current certification requirements for simulators. The Commission has determined that the industry consensus standard in this area, American National Standards Institute/American Nuclear Society (ANSI/ANS) 3.5, “Nuclear Power Plant Simulators for Use in Operator Training and Examination” is one acceptable means for complying with specific parts of the requirements of the final rule. Accordingly, Regulatory Guide 1.149, Revision 3, endorses the ANSI/ANS-3.5-1998 as an acceptable method by which facility licensees might implement specific parts of this rule.

The Commission has determined under the National Environmental Policy Act (NEPA) of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51 that this rule falls within the categorical exclusions of §§ 51.22(c)(1), (2), and (3)(i) and (iii). Therefore, neither an environmental impact statement nor an environmental assessment is required.

This final rule eliminates all the information collection requirements for Office of Management and Budget approval number 3150-0138. Because the rule will reduce information collection requirements, the public burden for these information collections is expected to be decreased by 120 hours per response. This reduction includes the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed and completing and reviewing the information collection. Send comments on any aspect of these information collections, including suggestions for further reducing the burden, to the Records Management Branch (T-6E6), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail at BJS1@nrc.gov. and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0138), Office of Management and Budget, Washington, DC 20503.

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.

The Commission prepared a draft regulatory analysis for the proposed rule to examine the costs and benefits of the alternatives considered by the Commission. Public comments on this analysis were requested in connection with the proposed rule. No significant comments were received. Minor changes have been made to the draft regulatory analysis to prorate the cost and benefit of the final rule over the average remaining years of operating life of the facility. The final regulatory analysis is available for inspection in the Commission Public Document Room or it may be viewed and downloaded electronically via the interactive rulemaking web site established by NRC for this rulemaking, as discussed above under the heading ADDRESSES. Single copies may be obtained from the contact listed above under the heading, “For Further Information Contact.”

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

The Commission has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule because it does not impose new requirements as defined in 10 CFR 50.109(a)(1). The final rule changes constitute either permissible relaxations from current requirements or provide an alternative regulatory approach without changing substantive existing requirements. Therefore, a backfit analysis has not been prepared. Facility licensees would not be required by this final rule to change existing programs. The final rule permits the five significant control manipulations to be conducted at either the actual facility or a plant-referenced simulator. The final rule clarifies criteria on simulator fidelity assurance. The final rule also eliminates certification of simulation facilities and submittal of quadrennial test reports and schedule information.

The final rule entails costs on the part of both the NRC and the industry for one-time revision of existing programs. However, the regulatory analysis suggests that industry could recover these costs and the final rule would be an overall burden reduction.

As discussed above, the Commission has prepared a regulatory analysis for the proposed rule that examines the costs and benefits of the proposed requirements in this rule. The Commission regards the regulatory analysis as a disciplined process for assessing information collection and reporting requirements to determine that the burden imposed is justified in light of the potential safety significance of the information to be collected.

In accordance with the Small Business Regulatory Enforcement Fairness Act of 1996, the Commission has determined that this action will have no adverse impact on small businesses and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

On September 26, 2000, the FAA issued AD 2000-20-04, amendment 39-11915 (65 FR 59707, October 6, 2000). (A correction to that AD was published in the Federal Register on January 9, 2001 (66 FR 1574)). That AD is applicable to certain McDonnell Douglas Model MD-90-30 series airplanes, to require replacement of certain ground block screws with new screws; and retermination of the circuit ground wires of the electrical power control unit (EPCU) to separate grounding points. That action was prompted by the Federal Aviation Administration's determination that the existing AD must be revised to ensure that the requirements apply to the appropriate airplane groups. The actions required by that AD are intended to prevent a loose electrical ground block of the circuit ground wires of the EPCU, which could result in complete loss of the primary electrical power of an airplane during flight.

Since the issuance of that AD (which referenced McDonnell Douglas Service Bulletin MD90-24-062, dated February 3, 2000, and Alert Service Bulletin MD90-24-A060, Revision 01, dated September 2, 1999, as the appropriate sources of service information), the manufacturer has released McDonnell Douglas Alert Service Bulletin MD90-24-A060, Revision 02, dated February 28, 2001. Revision 02 removes six airplanes from the alert service bulletin effectivity and adds two more airplanes. Revision 02 also specifies that no additional work is required for airplanes previously modified per prior revisions of the service bulletin.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of this same type design, this AD supersedes AD 2000-20-04, amendment 39-11915 (65 FR 59707, October 6, 2000). This AD requires replacement of certain ground block screws with new screws; and retermination of the circuit ground wires of the EPCU to separate grounding points. The actions are required to be accomplished in accordance with the alert service bulletin described previously.

None of the new airplanes affected by this action are on the U.S. Register. The affected airplanes included in the applicability of this rule currently are operated by non-U.S. operators under foreign registry; therefore, they are not directly affected by this AD action. However, the FAA considers that this rule is necessary to ensure that the unsafe condition is addressed in the event that any of these subject airplanes are imported and placed on the U.S. Register in the future.

Should an affected airplane be imported and placed on the U.S. Register in the future, it would require approximately 1 work hour to accomplish the required actions at an average labor rate of $60 per work hour. Based on these figures, the cost impact of this AD would be $60 per airplane.

Since this AD action does not affect any airplane that is currently on the U.S. register, it has no adverse economic impact and imposes no additional burden on any person. Therefore, prior notice and public procedures hereon are unnecessary and the amendment may be made effective in less than 30 days after publication in the Federal Register .

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

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2001-NM-171-AD.” The postcard will be date stamped and returned to the commenter.

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

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

The Controlled Substances Act (CSA) and its implementing regulations, specifically 21 U.S.C. 802(34) and 21 CFR 1310.02(c), provide the Attorney General with the authority to specify, by regulation, additional chemicals as “List I” chemicals if they are used in the manufacture of a controlled substance in violation of the CSA and are important to the manufacture of the controlled substance. This authority has been delegated to the Administrator of DEA by 28 CFR 0.100.

Phosphorus is a nonmetallic element that can occur in three main allotropic (i.e. crystalline) forms (white, red and black). Elemental phosphorus is derived from phosphate rock. The most abundant variety produced is white phosphorus (also known as yellow phosphorus). Most other forms of phosphorus and phosphorus chemicals are produced from white phosphorus.

The second crystalline form is red phosphorus. Red phosphorus is usually prepared as a powder and is more stable and less toxic than the white form. A black crystalline form of phosphorus is also occasionally made and is similar to graphite in its physical, thermal and electrical properties.

The white and red forms of elemental phosphorus are being designated as List I chemicals. Black phosphorus and phosphate rock will not be affected by this action.

Additionally, DEA is adding hypophosphorous acid and its salts as List I chemicals. While hypophosphorous acid (H 3 PO 2 ) is most commonly sold as 10%, 30% or 50% solutions, control will apply to all aqueous dilutions of hypophosphorous acid. Salts of hypophosphorous acid are known as hypophosphite salts. These salts are also being designated as List I chemicals. Examples of these salts include: Ammonium hypophosphite, calcium hypophosphite, iron hypophosphite, potassium hypophosphite, manganese hypophosphite, magnesium hypophosphite and sodium hypophosphite.

DEA has identified these chemicals as being used in the illicit production of methamphetamine. The public health consequences of the manufacture, trafficking, and abuse of methamphetamine are well known and documented. The September 25, 2000 NPRM (65 FR 57577) demonstrated how the chemistry and illicit use of these chemicals make them important to the manufacture of methamphetamine and therefore meet the definition of List I chemicals. Hence, this rulemaking makes these chemicals subject to CSA regulatory controls for List I chemicals, including registration, recordkeeping, reporting, and import/export requirements as specified in 21 CFR parts 1309, 1310 and 1313. DEA believes that these regulatory controls are needed to prevent the diversion of these phosphorus chemicals to clandestine laboratories.

As List I chemicals, red phosphorus, white phosphorus, and hypophosphorous acid and its salts will be subject to the chemical regulatory control provisions and civil and criminal sanctions of the CSA. As such, recordkeeping, reporting and import/export notification requirements (as described in 21 CFR parts 1310 and 1313) shall apply. Manufacturers, distributors, importers and exporters of white phosphorus, red phosphorus and hypophosphorous acid (and its salts) will be required to register with DEA pursuant to the provisions of 21 CFR part 1309.

Handlers of these chemicals will also be required to maintain records and meet CSA import/export notification requirements for “regulated transactions” of these chemicals. The CSA (21 U.S.C. 802(39)) defines the term “regulated transaction” as a “distribution, receipt, sale, importation, or exportation of, or an international transaction involving the shipment of, a listed chemical, or if the Attorney General establishes a threshold amount for a specific listed chemical, a transaction involving a threshold amount”. The CSA, therefore, provides the Attorney General with authority to establish a threshold amount for “listed chemicals” if the Attorney General so elects. This rulemaking does not establish a threshold for red phosphorus, white phosphorus or hypophosphorous acid (and its salts). Therefore, all transactions regardless of size will be considered “regulated transactions”.

DEA has endeavored, within this rulemaking, to limit the impact of these regulations on the affected industry. In some instances, as discussed below in the responses to specific comments (e.g., separate registration for separate locations) the specific language of the CSA established the parameters of control. However, in other areas, DEA has been able to take additional steps in these final regulations to lessen the impact of these regulatory requirements on the affected industry, while simultaneously carrying out DEA's mandate of preventing diversion of these chemicals.

Effective November 16, 2001, any person distributing, importing, or exporting any of these listed chemicals will become subject to the registration requirement under the CSA. DEA recognizes, however, that it is not possible for persons who distribute, import, or export any of these listed chemicals to immediately complete and submit an application for registration and for DEA to immediately issue registrations for those activities. Therefore, in order to allow continued legitimate commerce in these listed chemicals, DEA is establishing in 21 CFR 1310.09 a temporary exemption from the registration requirement for persons desiring to distribute, import, or export red phosphorus, white phosphorus and hypophosphorous acid (and its salts), provided that DEA receives a properly completed application for registration on or before December 17, 2001. The temporary exemption for such persons will remain in effect until DEA takes final action on their application for registration. The temporary exemption applies solely to the registration requirement; all other chemical control requirements, including recordkeeping and reporting, are effective on November 16. 2001. Additionally, the temporary exemption does not suspend applicable Federal criminal laws relating to these listed chemicals, nor does it supersede state or local laws or regulations. All handlers of the listed chemicals must comply with applicable state and local requirements in addition to the CSA regulatory controls.

DEA received eight comments in response to the NPRM. While the general tone of the comments was supportive of efforts to prevent the flow of listed chemicals to clandestine laboratories, the commentors raised a number of concerns regarding certain provisions of the proposed regulation.

1. Four commentors expressed concerns regarding the registration requirement for handlers of List I chemicals. These commentors requested clarification as to the need for the List I registration requirement and expressed the belief that List II controls would be adequate to address the diversion problem.

DEA strongly believes that given the nature of the diversion of red phosphorus, white phosphorus and hypophosphorous acid (and its salts), the registration requirement is necessary in order to effectively prevent diversion. While neither DEA nor any commentors identified any household uses for any of these chemicals, they have been widely distributed by firms engaged primarily in retail sales to the general public.

The CSA requires persons who distribute, import or export a List I chemical to obtain a registration and requires that DEA determine if such registration would be in the public interest pursuant to the criteria set forth in 21 U.S.C. 823(h). Each registration applicant would be subject to a separate pre-registration investigation that would require, among other things, a visit to the applicant's place of business and a determination as to whether the criteria regarding public interest are met. DEA will closely scrutinize each registration applicant to ensure that only those who distribute these chemicals for legitimate purposes become and remain registered.

DEA has also noted that these chemicals have commonly been sold via the Internet to the general public. DEA has strong concerns regarding the sale of these chemicals via such means. DEA believes that those Internet sites which choose not to prohibit the sales of such items should, at a minimum, require sellers to provide proof of DEA registration prior to listing such items for sale. The registration requirement is essential to identify rogue distributors and eliminate the ability of firms to illegally distribute these chemicals.

2. Two commentors stated that the List I registration requirement would place a significant burden on industry. One of these commentors, a major national trade association, stated that it had identified six member firms which distribute hypophosphorous acid (and its salts). The commentor further stated that two of these members have between 22 and 30 facilities and expressed concerns regarding the need to register each location. One additional commentor objected to the requirement that a separate registration be obtained at each location at which List I chemicals activities are carried out. The commentor suggested that DEA allow companies to obtain a single registration, with attendant fee, for multiple locations.

The law, however, is specific on this point. The Domestic Chemical Diversion Control Act of 1993 (Pub. L. 103-200) requires that a separate registration be obtained at each location at which the List I chemicals are distributed, imported or exported (21 U.S.C. 822(e) and 958(h).

3. The previously-mentioned trade association also expressed concerns that if a firm handles multiple phosphorus chemicals, then they must obtain multiple registrations. However, DEA wishes to emphasize that registration is by individual location (and not by chemicals handled). Only one registration is required for a firm which handles multiple listed chemicals at a single location.

Furthermore, there is the likelihood that chemical distributors represented by this trade association are already registered with DEA since they may already handle other listed chemicals. Therefore these firms would not be required to obtain a new registration, and instead, would only be required to add additional chemicals to their existing registration. No additional fees are required to make such additions.

Additionally, DEA is attempting to reduce the financial burden of registration. On December 1, 1999, DEA published a Notice of Proposed Rulemaking (64 FR 67216) which proposed a reduction in application fees for registration and reregistration of manufacturers, distributors importers and exporters of list I chemicals. DEA proposed a registration fee of $326 and re-registration fee of $171.

4. Two commentors requested clarification regarding the registration of importers which distribute List I chemicals. These commentors inquired as to whether multiple registrations are required for importers which distribute. Pursuant to 21 CFR 1309.22(b), “a person registered to import any List I chemical shall be authorized to distribute that List I chemical after importation, but no other chemical that the person is not registered to import.” Therefore, an importer is not required to obtain multiple registrations to distribute a List I chemical, as long as the only List I chemical distributed is imported material for which the person is a registered importer.

5. One commentor stated that its red phosphorus is distributed in a thermoplastic encapsulated form and requested that such mixtures be exempted. It is apparent to DEA that such material is considered a “chemical mixture”. Chemical mixtures are currently exempt from regulatory provisions of the CSA such as recordkeeping, registration and import/export requirements. On September 16, 1998 (63 FR 49506) DEA proposed regulations pertaining to the regulation of mixtures containing any of 34 listed chemicals. That notice proposed criteria for the determination of whether a chemical mixture shall qualify for automatic exemption from CSA regulatory controls. The NPRM was published to implement CSA requirements that only those chemical mixtures identified by regulation be exempt from applicable regulatory controls. Additionally, the NPRM defined an application process by which manufacturers may apply for an exemption for chemical mixtures that do not qualify for automatic exemption.

Upon publication of this Final Notice, red phosphorus, white phosphorus and hypophosphorous acid (and its salts) shall be subject to CSA chemical regulatory controls. However, chemical mixtures containing these chemicals shall remain exempt until such time as DEA proposes and finalizes regulations for chemical mixtures containing these chemicals. At such time, the manufacturer of chemical mixtures containing these chemicals may either qualify for automatic exemption, or may apply to DEA for exemption after documenting why the mixtures can not be easily used in the manufacture of a controlled substance and the listed chemical can not be readily extracted.

6. One commentor suggested that the zero threshold would place an undue burden on the company and its customers in the research community. The commentor stated that the Special Surveillance List controls should be adequate to prevent diversion.

The Special Surveillance List chemicals are subject to civil penalties for the distribution of a “laboratory supply” with “reckless disregard” for the intended purpose. Red phosphorus and hypophosphorous acid have been on the Special Surveillance List since its initial publication on May 13, 1999.

DEA has determined that these civil penalty provisions alone are not adequate to prevent illicit use of these chemicals and the unregulated sale to the general public continues to be a source of diversion. DEA has concluded that these chemicals should be subject to registration, recordkeeping, reporting and import/export notification requirements of the CSA. As noted in the NPRM, these chemicals are used as catalysts in the illicit synthesis of methamphetamine. As such, the manufacture of methamphetamine requires only small quantities of these chemicals. DEA has evidence that indicates that small transactions are being diverted for illicit use. Therefore, no threshold is being established for domestic and international transactions. Consequently, all transactions involving these chemicals, regardless of size, shall be regulated.

7. Two commentors requested clarification regarding the term “chemical handler” and the potential applicability of this regulation on end-users which utilize red phosphorus in their production processes. These commentors expressed concerns that an end-user may become subject to regulatory requirements because of distribution of excess material off-site for disposal purposes or because of the transfer of stock from one company location to another.

Under the proposed regulations, distributions of red phosphorus, white phosphorus and/or hypophosphorous acid (and its salts) for the purpose of disposal would be considered regulated transactions subject to all CSA chemical regulatory requirements including registration, recordkeeping and reporting. Additionally, the transfer of stock from one company location to another would require the registration of each location.

However, in order to reduce any burden on end-users of these chemicals, DEA is waiving the registration requirement for any person whose activities with respect to List I chemicals are limited to the distribution of red phosphorus, white phosphorus, or hypophosphorous acid (and its salts) to: another location operated by the same firm solely for internal end-use; or an EPA or State licensed waste treatment or disposal firm for the purpose of waste disposal.

This waiver of registration as it pertains to distributions for waste disposal applies only to the registration requirement and all other CSA chemical regulatory controls such as recordkeeping and reporting will still apply. It is likely, however, that the CSA recordkeeping requirements are already being met as part of normal business practice. For phosphorus, compliance with EPA and DOT regulations should document such distributions. Hypophosphorous acid shipments should be documented, but shipments of the hypophosphites may not be. Nonetheless, it is likely that chemical handlers already maintain records of shipments and customers even if shipping papers are not required.

21 U.S.C. 822(d) provides that the Attorney General may, by regulation, waive the requirement of registration of certain manufacturers, distributors or dispensers, if consistent with the public health and safety. DEA is therefore modifying 21 CFR 1309.29 to provide that “The requirement of registration is waived for any person whose activities with respect to List I chemicals are limited to the distribution of red phosphorus, white phosphorus, or hypophosphorous acid (and its salts) to: Another location operated by the same firm solely for internal end-use; or an EPA or State licensed waste treatment or disposal firm for the purpose of waste disposal”.

8. Two producers of elemental phosphorus requested that large transactions be exempted when shipped in reusable containers with capacities of 2500 or 2800 gallons. These commentors stated that these bulk containers are exclusively rail cars or large isotainers specially designed to enable safe transport.

After unloading, the bulk containers are shipped back to the producers (filled with water for safety reasons due to the remaining phosphorus in the container) for reuse. Therefore, the commentors expressed concerns that their other sites and customers would possibly be subject to recordkeeping and registration requirements due to the return shipments.

The commentors further stated that “safeguards already include recordkeeping, incident reporting, tamper-detection, sealed valves, and use of bulk reusable containers”. The commentors believe that “registering and tracking these types of shipments back and forth with DEA would provide no additional benefit and would impose an undue burden on DEA, our operations and our customers.”

DEA agrees that return shipments should not be impacted by this regulation. DEA also recognizes the difficulty in quantifying the residual amounts of red and white phosphorus contained in these rail cars and isotainers. The CSA authorizes DEA, pursuant to 21 U.S.C. 802(39)(A)(iii), to remove certain transactions in listed chemicals from the definition of regulated transaction. Therefore DEA is excluding from the definition of regulated transaction (21 CFR 1310.08(j)), domestic transactions involving red phosphorus and white phosphorus which are return shipments (from customer to producer) in rail cars and isotainers with capacities greater than or equal to 2500 gallons. As such, these return shipment transactions will not require recordkeeping. Additionally, DEA is waiving the registration requirement pursuant to 21 CFR 1309.29(c) for any person whose distribution of red phosphorus or white phosphorus is limited solely to residual quantities of chemical returned to the producer in reusable rail cars and isotainers (with capacities greater than or equal to 2500 gallons in a single container).

This exemption and waiver, however, pertain only to these return shipments. Manufacturers shall still be subject to registration, recordkeeping, reporting and other CSA chemical regulatory requirements pertaining to the production and distribution of listed chemicals to their customers. The customers will not be subject to registration or recordkeeping requirements for the return of reusable containers to the producer. However, should these customers re-distribute any of the received material (other than the return of reusable containers to the producer), they shall be subject to all CSA chemical regulatory requirements.

Since the two commentors noted that they already maintain records of these transactions, it is likely that normal business records are adequate to meet CSA recordkeeping requirements. 21 CFR 1310.06(b) provides that normal business records shall be considered adequate, provided they contain information described in § 1310.06(a) and are readily retrievable from other business records. These records can be those already required by other Federal, state and local regulatory agencies.

Because the above exemption was not discussed in the NPRM published on September 25, 2000, DEA requests public comment with respect to this exemption.

This final rule will establish on an interim basis, an exclusion from the definition of regulated transaction for domestic transactions involving red phosphorus and white phosphorus which are return shipments (from customer to producer) in rail cars and isotainers with capacities greater than or equal to 2500 gallons. This final rule will also establish, on an interim basis, a waiver from the registration requirement for such activity. Additionally, this final rule will establish on an interim basis, a waiver from the registration requirement for any person whose activities with respect to List I chemicals are limited to the distribution of red phosphorus, white phosphorus, or hypophosphorous acid (and its salts) to: another location operated by the same firm solely for internal end-use; or an EPA or State licensed waste treatment or disposal firm for the purpose of waste disposal.

DEA is soliciting comments only on those portions of this Final Rule pertaining to these specific issues. DEA will allow 30 days for persons to comment on the exclusion and waivers. DEA will accept comments until November 16, 2001. After the close of this comment period, DEA will publish a final rule in the Federal Register to inform interested parties if changes are needed or if the exclusion and waivers will be adopted as stated.

DEA became aware of these issues via comments received in response to the September 25, 2000 NPRM (65 FR 57577). Since that Notice did not propose the exclusion and waivers, the general public did not have an opportunity to comment on these issues.

DEA has determined that good cause exists under the Administrative Procedure Act (5 U.S.C. 553 et seq.) (APA) to forgo a Notice of Proposed Rulemaking for the exclusion and waivers. The APA states that an agency may forgo a NPRM if it is impracticable, unnecessary, or contrary to the public interest. To avoid unnecessary or temporary burdens on affected companies during the pendency of proceedings in this matter, DEA will include as part of this rulemaking an interim rule, with request for comments regarding these issues.

This regulation is not considered to have an impact upon a substantial number of firms, given the limited distribution of these three chemicals. The Administrator hereby certifies that this rulemaking has been drafted in a manner consistent with the principles of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It will not have a significant economic impact on a substantial number of small business entities.

The Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 section 1(b). DEA has determined that this is not a significant rulemaking action. Therefore, this action has not been reviewed by the Office of Management and Budget.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.

This rule will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Drug Enforcement Administration makes every effort to write clearly. If you have suggestions as to how to improve the clarity of this regulation, call or write Patricia M. Good, Chief, Liaison and Policy Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537, telephone (202) 307-7297.

On July 9, 2001 (66 FR 35850), HUD published an interim rule for the designation of Renewal Communities (RCs) and Round III urban Empowerment Zones (EZs). The preamble, at 66 FR 35853, cited the Crime Index (CI) of the FBI's Uniform Crime Reporting (UCR) as including the offense of arson. The rule, in § 599.107(a)(3) at 66 FR 35858, includes arson in the list of offenses that must be included when determining the Local Crime Index (LCI) in a nominated area for purposes of comparing the LCI to the CI.

Although the offense of arson is included as part of the UCR, it is not included in the CI determination because the reporting for arson is not as consistent as for other offenses. The references to arson in the interim rule are, therefore, being removed. In addition, a correction to make conforming changes to the August 7, 2001 (66 FR 41432) Notice Inviting Applications for Designation of Forty Renewal Communities is published elsewhere in this issue of the Federal Register .

Accordingly, FR Doc. 01-17011, Designation of Round III Urban Empowerment Zones and Renewal Communities, (FR-4663-I-01), published in the Federal Register on July 9, 2001 (66 FR 35850), is corrected as follows:

This document contains additions to the Income Tax Regulations (26 CFR part 1) under section 125 of the Internal Revenue Code of 1986 (Code). These additions conform the cafeteria plan regulations to the Family and Medical Leave Act of 1993 (FMLA), Public Law 103-3, 29 U.S.C. 2601 et seq. FMLA imposes certain requirements on employers regarding coverage, including family coverage, under group health plans for employees taking FMLA leave and regarding the restoration of benefits to employees who return from FMLA leave. Proposed regulations, EE-20-95, published in the Federal Register on December 21, 1995 (60 FR 66229), addressed a number of the principal questions that were raised about how these FMLA requirements affect the operation of cafeteria plans (including flexible spending arrangements) maintained under section 125. These final regulations are based on the 1995 proposed regulations, and include clarifications and other changes resulting from comments received on the proposed regulations.

A number of comments that were made in response to the 1995 proposed regulations relate to FMLA. The requirements pertaining to FMLA leave, including the employer's obligation to maintain coverage under a group health plan during FMLA leave and to restore benefits upon return from FMLA leave, are established by FMLA, not the Code. The U.S. Department of Labor, in 29 CFR part 825, has published rules interpreting the requirements of FMLA, and the Department of Labor has jurisdiction relating to those rights or obligations. These final regulations do not interpret FMLA or the rules published by the Department of Labor. Rather, they provide guidance on the cafeteria plan rules that apply to an employee in circumstances to which FMLA and the Labor Regulations thereunder also apply. Accordingly, these final regulations include a number of changes intended to clarify which particular conditions must be satisfied to comply with FMLA and with the cafeteria plan rules.

The Department of the Treasury, including the Internal Revenue Service (IRS), discussed these final regulations with the Department of Labor to ensure that they do not conflict with, and are not inconsistent with, the provisions of FMLA or the Labor regulations thereunder, at 29 CFR part 825. In response to those discussions and comments made by the public, these cafeteria plan regulations have been changed to clarify the circumstances under which an employer is required to maintain coverage and an employee is required to continue paying premiums. These changes are described below.

As a general matter, under FMLA, an employer has the obligation to offer coverage under any group health plan for the duration of FMLA leave, whether paid or unpaid, and under the same conditions as coverage would have been provided if the employee had been continuously working during the entire leave period. The employee has the right to keep this coverage by continuing to pay the premium. During the period of FMLA leave, the employer is required to continue payment of its share of the costs of group health insurance coverage, but may condition such continued payments on the employee paying his or her share of the costs under one of the methods set forth at 29 CFR 825.210. See also the notice requirements at 29 CFR 825.301(b)(1)(iv).

Furthermore, the employer must either allow the employee to revoke coverage while on unpaid FMLA leave, or continue coverage but allow the employee to discontinue his or her share of the premium payments while the employee is on unpaid leave. Although ordinarily health plan coverage would cease if an employee does not make his or her share of the premium payments, FMLA does not give the employee a right to require that the employer terminate coverage. The FMLA permits an employer to continue health plan coverage while the employee is on unpaid FMLA leave by paying both the employer's and the employee's share of group health plan contributions. In this event, the employer may recover the employee's share of the contributions when the employee returns from leave or, if the employee fails to return from leave, the employer may recover the employee's share of contributions and may also recover its own share as well under the circumstances set forth in 29 CFR 825.213(a). However, under the FMLA, an employee who chooses to discontinue premium payments may not be required to make contributions until the unpaid FMLA leave ends.

Upon return from leave, FMLA requires that the employee have the right to be reinstated under the same terms as if the employee had worked during the entire leave period without any break in coverage. An employee who has revoked coverage or has failed to make required payments therefore has the right to be reinstated in the group health plan upon return from leave. If the employee does not elect to be reinstated in the group health plan upon return from FMLA leave, the employer may nevertheless require the employee to resume participation if the employer also requires employees who return from unpaid non-FMLA leave to resume participation upon return from leave. This reflects a change in position from the 1995 proposed regulations, which specifically prohibited an employer from requiring an employee whose coverage has terminated while on FMLA leave to reinstate coverage under a health FSA upon return from FMLA leave. Several commentators disagreed with this position, and suggested that the FMLA regulations do not require this rule. In response to these comments, the rule has been modified as described above.

One commentator questioned whether an employee on paid FMLA leave may change or revoke an election. Whether an employer is required to permit an employee on paid FMLA leave to revoke an election is governed by the FMLA and the Labor Regulations thereunder, rather than these regulations. As described above, the FMLA permits an employer to require that the employee continue coverage during an FMLA leave if the employer is continuing the employee's pay during the FMLA leave and does not treat employees on paid FMLA leave differently from other employees on paid leave. If these two conditions are satisfied, as described in Q&A-4, an employer may require that an employee who goes on paid FMLA leave continue to pay premiums by the method normally used during any paid leave.

In response to comments, the rule in the 1995 regulations concerning the catch-up payment option was modified. Under the 1995 regulations, an employee who elected to use the catch-up payment option before going on FMLA leave was required to enter into an advance agreement with the employer specifying that the employee wanted to continue health coverage while on unpaid FMLA leave, that the employer would pay the premiums during the FMLA leave, and that the employee would repay these amounts upon return. Commentators noted that this rule did not provide enough flexibility for employers attempting to recoup payments in situations where employees originally elected the pay-as-you-go method but then were not able to make those required payments. Accordingly, the rule under the final regulations eliminates the requirement that an employee who elects the catch-up payment option enter into an advance agreement with the employer. The new rule adds flexibility and permits continued coverage because, although employees may still use either the catch-up payment option or the after-tax pay-as-you-go method from the outset, now employers may continue coverage and, under the catch-up payment option, recoup any amounts paid on an employee's behalf if the employee cannot make all the payments under the pay-as-you-go method.

The 1995 proposed regulations included a special proration rule for cases in which health coverage under a flexible spending arrangement (FSA) did not continue during an FMLA leave because the employee revoked coverage or failed to make required payments, and then the employee elects to resume the coverage when the leave ends during the same year. The proposed regulation permitted the employee's coverage to be reduced after the employee resumes work if the employee did not have coverage during the FMLA leave. Based on information provided by the Department of Labor concerning FMLA, the final regulations require that, where an employee does not have coverage under the FSA during FMLA leave because the employee chooses to revoke coverage or does not pay required premiums for any reason during FMLA leave, the employer must provide the employee upon return from FMLA leave a choice between: (1) Resuming coverage at the original level and making up the unpaid premium payments or (2) resuming coverage at a level that is reduced under the proration rule and resuming premium payments at the original level. Where the employee selects the prorated method and the plan has already made disbursements to the employee that exceed the premiums that will be paid for the year, the employer may not require the employee to pay any more than the remaining premiums due. If health FSA coverage does continue during the leave (whether due to an FMLA coverage continuation election by the employee or because the employer's plan requires health FSA coverage to be continued during a leave), there would of course be no proration.

Commentators requested clarification regarding whether employers are required to obtain elections from employees who are on FMLA leave when an open enrollment period occurs. In response to this comment, the final regulations clarify that employees on FMLA leave have the same rights during the leave period as employees participating in a cafeteria plan who are not on FMLA leave. Accordingly, employers are required to give employees on FMLA leave the right to enroll in a plan or change their election while they are on leave in the same manner as for active employees, rather than waiting for the employees on FMLA leave to return to work.

These final regulations supplement the regulations that were issued at § 1.125-4 (TD 8878 issued in March of 2000 (65 FR 15548) and TD 8921 (issued in January of 2001 (66 FR 1837)) setting forth the conditions under which a cafeteria plan can permit an employee to make an election change during the year. Thus, as provided at § 1.125-4(g), if an employee goes on an FMLA leave, section 125 allows a cafeteria plan to permit the employee to make an election change if the conditions in either these final regulations or the regulations at § 1.125-4 are satisfied. Further, as described above, FMLA requires that an employee who goes on an FMLA leave have the same election rights under a group health plan as an employee who is not on FMLA leave. Thus, a cafeteria plan that is subject to FMLA must allow an employee who goes on an FMLA leave to be able to make the same election changes as an employee who is not on an FMLA leave.

It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to these regulations, and, therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, these regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Christine Keller, Division Counsel/Associate Chief Counsel (Office of Tax Exempt and Government Entities). However, other personnel from the IRS and Department of the Treasury participated in their development.

The proposed rule was previously published on August 9, 2001 at 66 FR 41811. No comments were received.

Executive Order 12866, “Regulatory Planning and Review”.The Director of Administration and Management, Office of the Secretary of Defense, hereby determines that Privacy Act rules for the Department of Defense are not significant rules. The rules do not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6).

The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35).

The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that Privacy Act rules for the Department of Defense impose no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.Section 202, Public Law 104-4, “Unfunded Mandates Reform Act'.

The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that the Privacy Act rulemaking for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments.Executive Order 13132, “Federalism'.

The Director of Administration and Management, Office of the Secretary of Defense, hereby certifies that the Privacy Act rules for the Department of Defense do not have federalism implications. The rules do 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.

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a Notice of proposed rulemaking in the Federal Register .

This closure is not expected to have any significant impact on navigation because vessel traffic on the Hutchinson River is mostly commercial vessels that must schedule their transits at or near high tide. The commercial vessels that require openings normally call the bridge in advance when scheduling their transits. The Coast Guard and the bridge owner contacted all the commercial waterway users and facilities and it was determined as a result of that coordination that the one-hour advance requirement would not adversely effect any existing waterway operators since they call the bridge in advance of requested openings normally.

Any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest since immediate action is needed to facilitate necessary electrical and mechanical maintenance at the bridge to insure the continued safe reliable operation of the bridge.

The Pelham Parkway Bridge has a vertical clearance of 13 feet at mean high water and 20 feet at mean low water in the closed position. The current operating regulations for the bridge, listed at 33 CFR 117.793, require the bridge to open on signal at all times.

The bridge owner, New York City Department of Transportation (NYCDOT), requested a temporary change to the operating regulations governing the Pelham Parkway Bridge to facilitate the safe evacuation of construction workers and equipment from the bridge when the bridge is required to open for vessel traffic. This temporary final rule will require a one-hour advance notice for openings, 7 a.m. to 5 p.m., Monday through Friday, from November 15, 2001 through May 12, 2002. The Coast Guard believes this temporary change to the drawbridge operation regulations is reasonable and will meet the present needs of navigation based upon coordination with the operators that use this waterway.

This temporary final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; Feb. 26, 1979). The Coast Guard expects the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This conclusion is based on the fact that the bridge will continue to open at all times for vessel traffic after a one-hour advance notice is given.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the bridge will continue to open for vessel traffic at all times after a one-hour advance notice is given.

This temporary final rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Coast Guard has analyzed this temporary final rule in accordance with the principles and criteria contained in Executive Order 12612 and has determined that this temporary final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Coast Guard considered the environmental impact of this temporary final rule and concluded that, under Section 2.B.2., Figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this temporary final rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this temporary final rule.

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

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

The Macombs Dam Bridge, mile 3.2, across the Harlem River has a vertical clearance in the closed position of 27 feet at mean high water and 32 feet at mean low water. The existing drawbridge operating regulations at 33 CFR 117.789 require the bridge to open on signal from 10 a.m. to 5 p.m. if at least a four-hour notice is given.

The bridge owner, The New York City Department of Transportation (NYCDOT), requested a temporary deviation from the drawbridge operating regulations to facilitate scheduled maintenance, replacement of structural steel and the bridge roadway deck.

This deviation to the operating regulations will allow the bridge to remain in the closed position from November 1, 2001 through December 30, 2001.

This deviation from the operating regulations is authorized under 33 CFR 117.35, and will be performed with all due speed in order to return the bridge to normal operation as soon as possible.

The Coast Guard published a notice of proposed rulemaking on March 19, 2001 (66 FR 15373). The proposed rule would have permitted the draws of the S3087 bridge, the Howard Avenue bridge, and the Daigleville bridge to open on signal if at least four hours notice were given, except that, the draw need not open for the passage of vessels Monday through Friday, except Federal holidays, from 6 a.m. to 8 a.m. and 4 p.m. to 6 p.m.

Two letters were received in response to the public notice. The Louisiana Department of Agriculture offered no comments. Mr. Richard Block of the Gulf Coast Mariners Association stated that the changes requested would adversely impact commercial businesses and commercial vessel traffic in the area. Comments received prompted the Coast Guard to reevaluate the proposal. The response letters were forwarded to the Louisiana Department of Transportation and Development (LDOTD) for their reevaluation.

LDOTD responded to the Coast Guard with a new proposal. They determined that the special operating regulations for the S3087 bridge and the Daigleville bridge would remain unchanged and they would only request a change to the operation of the Howard Avenue Bridge. They requested that the Howard Avenue bridge be operated on the same schedule as the Daigleville bridge which is 0.5 miles upstream of the Howard Avenue bridge.

The Coast Guard published a supplemental notice of proposed rulemaking in the Federal Register on July 12, 2001 (66 FR 36525). The proposed rule would place this bridge on the same operating schedule as the Daigleville Bridge, mile 35.5, to facilitate the flow of vehicular traffic during rush hours while still meeting the reasonable needs of navigation.

The S3087 Bridge, mile 33.9, the newly constructed Howard Avenue Bridge, mile 35.0, and the Daigleville Bridge, mile 35.5 all lie within a 1.6 mile section on Terrebonne Bayou. These three bridges are currently on three different operating schedules, which requires the owner to man them at various times. Due to the close proximity of the bridges to one another and the low volume of waterway traffic, the Department of Transportation and Development (DOTD) for the State of Louisiana has requested that the Coast Guard revise the regulations. 33 CFR 117.505 governs the S3087 and Daigleville Bridges. DOTD wanted to include the Howard Avenue Bridge in a new regulation placing all three bridges under the same operating schedule. Currently, the Howard Avenue Bridge opens on signal at any time for the passage of vessels. Due to a comment in response to the NPRM, DOTD revised their request to have the Howard Avenue bridge placed on the same schedule as the Daigleville bridge. The SR 3087 bridge will remain on its existing schedule.

Two responses were received for the NPRM. One response was received from the Supplemental Notice of Proposed Rulemaking. The National Marine Fisheries Service offered no comments. No public hearing was requested, none was held and no changes have been incorporated into the Final Rule.

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979).

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary.

This rule allows commercial fishing vessels ample opportunity to transit this waterway before and after the peak vehicular traffic period that occurs between 7 a.m. and 8:30 a.m. and 4:30 p.m. and 6 p.m. according to the vehicle traffic surveys.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities.

Under the 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, we want to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.

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

We have analyzed this rule under Executive Order 13132 and have determined that this rule would not have implications for federalism under that Order. No comments were received with regards to federalism during the NPRM or SNPRM comment periods.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government's having first provided the funds to pay those costs. This rule would not impose an unfunded mandate. No comments were received with regards to unfunded mandates during the NPRM or SNPRM comment periods.

This rule would not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. No comments were received with regards to the taking of private property during the NPRM or SNPRM comment periods.

This rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. No comments were received with regards to the taking of private property during the NPRM or SNPRM comment periods.

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

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

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

We considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.ID, this rule is categorically excluded from further environmental documentation. Bridge Administration Program actions that can be categorically excluded include promulgation of operating regulations or procedures for drawbridges. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES .

Pursuant to 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Good cause exists for not publishing a NPRM and for making this regulation effective in less than 30 days after publication in the Federal Register . Conclusive information about the New York City Marathon was not provided to the Coast Guard until September 10, 2001, making it impossible to draft or publish a NPRM or a final rule 30 days in advance of its effective date. This closure is not expected to have a significant impact on navigation because vessel traffic on the Harlem River and Newtown Creek is mostly commercial vessels that normally pass under the draws without openings. The commercial vessels that do require openings are work barges that do not operate on Sundays.

Any delay encountered in this regulation's effective date would be unnecessary and contrary to the public interest since immediate action is needed to close the bridge in order to provide for public safety and the safety of marathon participants.

The Willis Avenue Bridge, mile 1.5, across the Harlem River has a vertical clearance of 24 feet at mean high water (MHW) and 30 feet at mean low water (MLW) in the closed position. The Madison Avenue Bridge, mile 2.3, across the Harlem River has a vertical clearance of 25 feet at MHW and 29 feet at MLW in the closed position. The Pulaski Bridge across Newtown Creek, mile 0.6, has a vertical clearance of 39 feet at MHW and 43 feet at MLW in the closed position.

The current operating regulations for the Willis Avenue and Madison Avenue bridges, listed at 33 CFR 117.789(c), require the bridges to open on signal from 10 a.m. to 5 p.m., if at least four-hours notice is given. The current operating regulations for the Pulaski Bridge listed at 117.801(g) require it to open on signal if at least a two-hour advance notice is given.

The bridge owner, New York City Department of Transportation (NYCDOT), requested a temporary change to the operating regulations governing the Willis Avenue Bridge, the Madison Avenue Bridge, and the Pulaski Bridge, to allow the bridges to remain in the closed position at different times on November 4, 2001, to facilitate the running of the New York City Marathon. Vessels that can pass under the bridges without bridge openings may do so at all times during these bridge closures.

This temporary final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; Feb. 26, 1979). The Coast Guard expects the economic impact of this temporary final rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This conclusion is based on the fact that the requested closures are of short duration and on Sunday when there have been few requests to open these bridges.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact that the bridge closures are of short duration and on Sunday when there have been few requests to open these bridges.

This temporary final rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Coast Guard has analyzed this temporary final rule in accordance with the principles and criteria contained in Executive Order 12612 and has determined that this temporary final rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

The Coast Guard considered the environmental impact of this temporary final rule and concluded that, under Section 2.B.2., Figure 2-1, paragraph (32)(e), of Commandant Instruction M16475.1C, this temporary final rule is categorically excluded from further environmental documentation because promulgation of changes to drawbridge regulations have been found not to have a significant effect on the environment. A written “Categorical Exclusion Determination” is not required for this temporary final rule.

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

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

The St. Claude Avenue bascule bridge across the Inner Harbor Navigation Canal, mile 0.5 (GIWW mile 6.2 East of Harvey Lock) in New Orleans, Orleans Parish, Louisiana, has a vertical clearance of 1 foot above high water in the closed-to-navigation position and unlimited in the open-to-navigation position. Navigation on the waterway consists mainly of tugs with tows and some ships. The bridge owner requested a temporary deviation from the normal operation of the drawbridge in order to accommodate repair work on the bridge. These repairs are necessary for the continued operation of the bridge.

This deviation allows the draw of the St. Claude Avenue bascule bridge across the Inner Harbor Navigation Canal, mile 0.5 (GIWW mile 6.2 East of Harvey Lock), to remain closed to navigation from 6 a.m. until midnight on Saturday, October 27, 2001.

A notice of proposed rulemaking (NPRM) for this regulation was not published. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM. Publishing an NPRM, which would incorporate a comment period before a final rule was issued date would be contrary to the public interest since immediate action is needed to protect the public, ports and waterways of the United States. For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . The Coast Guard will issue a broadcast notice to mariners and place Coast Guard vessels in the vicinity of these zones to advise mariners of the restriction.

Based on the September 11, 2001, terrorist attack on the World Trade Center in New York and the Pentagon in Arlington, VA, there is an increased risk that subversive activity could be launched by vessels or persons in close proximity to the Ports Jacksonville or Canaveral, Florida, against tank vessels, cruise ships and military pre-positioned vessels entering, departing and moored within these ports. These temporary security zones are activated when the subject vessels pass the St. Johns River Sea Buoy, at approximate position 30°23′35″ N, 81°19′08″ W, when entering the port of Jacksonville, or pass Port Canaveral Channel Entrance Buoys # 3 or # 4, at respective approximate positions 28°22.7′ N, 80°31.8′ W, and 28°23.7′ N, 80°29.2′ W, when entering Port Canaveral. The zone for a vessel is deactivated when the vessel passes these buoys on its departure from port.

Military pre-positioned ships are U.S. commercial ships on long-term charter to the Military Sealift Command. They are utilized to transport military equipment and cargo. The Captain of the Port will notify the public via Marine Safety Radio Broadcast on VHF-FM marine band radio, channel 22 (157.1 MHz) of all active security zones in port by identifying the names of the vessels around which they are centered. There will be Coast Guard and local police department patrol vessels on scene to monitor traffic through these areas. Entry into these security zones is prohibited, unless specifically authorized by the Captain of the Port, Jacksonville, Florida.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979) because these zones will encompass a small portion of the waterway for a limited time and vessels may be allowed to enter the zones on a case-by-case basis.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities because small entities may be allowed to enter on a case by case basis with the authorization of the Captain of the Port.

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

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

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

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

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

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

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

The Coast Guard considered the environmental impact of this rule and concluded under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation.

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

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

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

As authorized by 5 U.S.C. 553, we did not publish a notice of proposed rulemaking (NPRM) for this regulation. In keeping with the requirements of 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM, and that under 5 U.S.C. 553 (d)(3), good cause exists for making this regulation effective less than 30 days after publication in the Federal Register . Due to the recent terrorist attacks on the United States, a heightened level of security has been established concerning all vessels entering navigable waters of the United States. As a result, this security zone is needed to protect the United States and more specifically the people, ports, waterways, and properties of the San Francisco Bay area. The incidents necessitating this security zone did not allow a 30-day period for publication prior to the issuance of this temporary regulation; publishing an NPRM and delaying the effective date would be contrary to public and national security interests.

As part of the Diplomatic Security and Antiterrorism Act of 1986 (Pub. L. 99-399), Congress amended the Ports and Waterways Safety Act (PWSA) to allow the Coast Guard to take actions, including the establishment of security and safety zones, to prevent or respond to acts of terrorism. 33 U.S.C. 1226. Due to the terrorist acts against the United States on September 11, 2001, the Coast Guard is establishing a temporary security zone in the navigable waters of the United States from the entrance to San Francisco Bay out to 12 nautical miles. Under the PWSA, navigable waters of the United States includes all waters of the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988. This Presidential proclamation declared that the territorial sea of the United States extends to 12 nautical miles from the baselines of the United States determined in accordance with international law. This security zone will encompass navigable waters within a 12-nautical-mile-arc that is drawn seaward from the following coordinate: latitude 37°48′16″ N and longitude 122°31′09″ W.

Recent terrorist actions against the United States have increased the need for safety and security measures for U.S. ports and waterways. The zone will be in effect from 5 p.m. (PDT) on September 13, 2001 to 3:59 p.m. (PDT) on March 12, 2002.

This temporary security zone is necessary to provide for the safety and security of the United States of America and the people, ports, waterways and properties within the San Francisco Bay area. The security zone extends from the entrance of San Francisco Bay to the limit of the navigable waters of the United States, a distance of 12 nautical miles, and will be enforced by Coast Guard patrol craft. Persons and vessels are prohibited from entering into or transiting through this security zone unless authorized by the Captain of the Port, or his designated representative.

Pursuant to 33 U.S.C. 1232, any violation of the security zone described herein, is punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment for not more than 6 years and a fine of not more than $250,000), in rem liability against the offending vessel, and license sanctions. Any person who violates this regulation, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years (class C felony).

This temporary final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6 (a)(3) of that Order. It has not been reviewed by the Office of Management and Budget under that Order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). Due to the recent terrorist actions against the United States the implementation of this security zone is necessary for the protection of the United States and its people.

The size of the zone is the minimum necessary to provide adequate protection for the public, vessels, and vessel crews. Any vessels seeking entry into or movement within the security zone must request permission from the Captain of the Port or his authorized patrol representative. Any hardships experienced by persons or vessels are considered minimal compared to the national interest in protecting the public, vessels, and vessel crews from the further devastating consequences of the aforementioned acts of terrorism, and from potential future sabotage or other subversive acts, accidents, or other causes of a similar nature.

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

This security zone will not have a significant impact on a substantial number of small entities because although the security zone will occupy the entire entrance of San Francisco Bay, vessels will receive authorization to transit into San Francisco Bay by the Captain of the Port on a case-by-case basis. Therefore, the Coast Guard certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) that this temporary final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), the Coast Guard offers to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If your small business or organization is affected by this rule and you have questions concerning its provisions or options for compliance, please contact Lieutenant Andrew B. Cheney, U.S. Coast Guard Marine Office San Francisco Bay at (510) 437-3073.

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

This temporary final rule does not provide for a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

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

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

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

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

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

We have considered the environmental impact of this rule and concluded that under figure 2-1, paragraph 34(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation, because we are establishing a security zone. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES.

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

Recent terrorist incidents in New York and Washington, D.C. have called for the implementation of additional measures to protect the national security. These temporary rules are intended to provide for the safety and security of the public, maritime commerce, and transportation, by creating security zones in designated harbors, anchorages, facilities, and adjacent navigable waters of the United States. In accordance with 5 U.S.C. 553, a Notice of Proposed Rulemaking (NPRM) was not published for this regulation and good cause exists for making it effective in less than 30 days after Federal Register publication. Publishing an NPRM and delaying this action's effective date would be contrary to the public interest since immediate action is needed to protect various areas on the islands of Oahu, Maui, Hawaii, and Kauai, HI, any vessel moored there, and all involved personnel. Details were not available 30 days prior to the event, thus, there was insufficient time to publish a proposed rule in advance of the event or to provide a delayed effective date. Under these circumstances, following normal rulemaking procedures would be impracticable.

The Coast Guard is establishing designated security zones in the waters adjacent to the islands of Oahu, Maui, Hawaii, and Kauai, HI for a period of six-months. These security zones are necessary to protect personnel, vessels, and facilities from acts of sabotage or other subversive acts, accidents, or other causes of a similar nature during operations. These security zones extend from the surface of the water to the ocean floor. Entry into these zones is prohibited unless authorized by the U. S. Coast Guard Captain of the Port Honolulu, HI. Representatives of the Captain of the Port Honolulu will enforce these security zones. The Captain of the Port may be assisted by other federal or state agencies.

This temporary final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. The Office of Management and Budget has not reviewed it under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979). The U. S. Coast Guard expects the economic impact of this action to be so minimal that a full Regulatory Evaluation under paragraph 10(e) of the regulatory policies and procedures of DOT is unnecessary. This expectation is based on the short duration of the zone and the limited geographic area affected by it.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The U. S. Coast Guard certifies under 5 U.S.C. 605(b) that this regulation will not have a significant economic impact on a substantial number of small entities. No small business impacts are anticipated due to the small size of the zone and the short duration of the security zone in any one area.

Because we did not anticipate any small business impacts, we did not offer assistance to small entities in understanding the rule.

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

The U. S. Coast Guard has analyzed this rule under Executive Order 13132, and has determined this rule does not have implications for federalism under that Order.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a State, local, or tribal government or the private sector to incur direct costs without the Federal Government having first provided the funds to pay those unfunded mandate costs. This rule will not impose an unfunded mandate.

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

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

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

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

The U. S. Coast Guard considered the environmental impact of this action and concluded that, under figure 2-1, paragraph (34)(g) of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. As an emergency action, the environmental analysis requisite regulatory consultations, and categorical exclusion determination, will be prepared and submitted after establishment of this temporary security zone, and will be available for inspection or copying where indicated under addresses.

On March 21, 1996, October 18, 1996, January 21, 1997, July 1, 1997, March 23, 2001, and April 19, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC. This rulemaking pertains to nine of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of operating permits (OPs) issued by PADEP and plan approval and agreement upon consent orders (Consent Orders or COs) issued by the Allegheny County Health Department (ACHD). These nine sources are located in the Pittsburgh area and consist of Armstrong World Industries, Inc., Beaver Falls; Bacharach, Inc.; Bakerstown Container Corporation; Chestnut Ridge Foam, Inc.; Flexsys America L. P. Monongahela Plant; Haskell of Pittsburgh; Three Rivers Aluminum Company; Tuscarora Plastics, Inc.; and Witco Corporation.

On August 24, 2001, EPA published a direct final rule (66 FR 44528) and a companion notice of proposed rulemaking (66 FR 44580) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 28, 2001 (66 FR 49540), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 24, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 44580). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 24, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs , requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States' [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by -case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options' (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations. The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC RACT for nine major sources located in the Pittsburgh area. EPA is approving these RACT SIP submittals because ACHD and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. The ACHD and PADEP has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note ) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for nine named sources.

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 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control VOC from nine individual sources in the Pittsburgh area Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On July 1, 1997, October 23, 1997, November 4, 1997, December 31, 1997, April 9, 1999, and August 9, 2000, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several sources of VOC and/or NO X . This rulemaking pertains to ten of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of operating permits, consent orders and/or enforcement orders which impose VOC and/or NO X RACT requirements for each source. These sources are all located in the Pittsburgh area and consist of Carbidie Corporation; Fansteel Hydro Carbide; Newcomer Products, Inc.; Heinz USA—Pittsburgh; Nabisco Biscuit Company; Aristech Chemical Corporation; Dyno Nobel Inc.—Donora Plant; General Carbide Corp.; Koppers Industries, Inc.; and Pressure Chemical Company.

On August 24, 2001, EPA published a direct final rule (66 FR 44538) and a companion notice of proposed rulemaking (66 FR 44581) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). On September 28, 2001 (66 FR 49540), we published a timely withdrawal in the Federal Register informing the public that the direct final rule did not take effect. We indicated in our August 24, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 44581). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 24, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by case RACT determinations by the DEP. Rather, EPA stated that “* * *RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt ).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States” [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by-case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options” (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations. The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for ten major of sources located in the Pittsburgh area. EPA is approving these RACT SIP submittals because the ACHD and PADEP established and imposed these RACT requirements in accordance with the criteria set forth in SIP-approved RACT regulations applicable to these sources. The ACHD and PADEP have also imposed record keeping, monitoring, and testing requirements on these sufficient to determine compliance with the applicable RACT determinations.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note ) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for ten named sources.

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 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control VOC and/or NO X from ten individual sources located in the Pittsburgh-Beaver Valley of Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

On January 10, 1996, July 24, 1998, April 9, 1999, February 2, 2001 and April 19, 2001, PADEP submitted revisions to the Pennsylvania SIP which establish and impose RACT for several major sources of VOC and/or NO X . This rulemaking pertains to five of those sources. The remaining sources are or have been the subject of separate rulemakings. The Commonwealth's submittals consist of plan approvals (PAs) and operating permits (OPs) issued by PADEP. These five sources are located in the Pittsburgh area and consist of BASF Corporation—Monaca Site; Equitrans, Inc.—Hartson Station; Nova Chemicals, Inc.; Ranbar Electrical Materials, Inc.; and Witco Corporation—Petrolia.

On August 21, 2001, EPA published a direct final rule (66 FR 43779) and a companion notice of proposed rulemaking (66 FR 43822) to approve these SIP revisions. On September 7, 2001, we received adverse comments on our direct final rule from the Citizens for Pennsylvania's Future (PennFuture). We published a withdrawal notice in the Federal Register informing the public that the direct final rule did not take effect on October 5, 2001. We indicated in our August 21, 2001 direct final rulemaking that if we received adverse comments, EPA would address all public comments in a subsequent final rule based on the proposed rule (66 FR 43822). This is that subsequent final rule. A description of the RACT determination(s) made for each source was provided in the August 21, 2001 direct final rule and will not be restated here. A summary of the comments submitted by PennFuture germane to this final rulemaking and EPA's responses are provided in Section II of this document.

The Citizens for Pennsylvania's Future (PennFuture) submitted adverse comments on twenty proposed rules published by EPA in the Federal Register between August 6 and August 24, 2001 to approve case-by-case RACT SIP submissions from the Commonwealth for NO X and or VOC sources located in the Pittsburgh area. PennFuture's letter includes general comments and comments specific to EPA's proposals for certain sources. A summary of those comments and EPA's responses are provided below.

A. Comment: PennFuture comments that EPA has conducted no independent technical review, and has prepared no technical support document to survey potential control technologies, determine the capital and operating costs of different options, and rank these options in total and marginal cost per ton of NO X and VOC controlled. In citing the definition of the term “RACT,” and the Strelow Memorandum [Roger Strelow, Assistant Administrator for Air and Waste Management, EPA, December 9, 1976, cited in Michigan v. Thomas, 805 F.2d 176, 180 (6th Cir. 1986) and at 62 FR 43134, 43136 (1997)], PennFuture appears to comment that in every situation, RACT must include an emission rate. PennFuture asserts that EPA should conduct its own RACT evaluation for each source, or at a minimum document a step-by-step review demonstrating the adequacy of state evaluations, to ensure that appropriate control technology is applied. The commenter also believes that EPA's failure to conduct its own independent review of control technologies has resulted in our proposing to approve some RACT determinations that fail to meet the terms of EPA's own RACT standard.

Response: On March 23, 1998 (63 FR 13789), EPA granted conditional limited approval of Pennsylvania's generic RACT regulations, 25 PA Code Chapters 121 and 129, thereby approving the definitions, provisions and procedures contained within those regulations under which the Commonwealth would require and impose RACT. Subsection 129.91, Control of major sources of NO X and VOCs, requires subject facilities to submit a RACT plan proposal to both the Pennsylvania Department of Environmental Protection (DEP) and to EPA Region III by July 15, 1994 in accordance with subsection 129.92, entitled, RACT proposal requirements. Under subsection 129.92, that proposal is to include, among other information: (1) A list of each subject source at the facility; (2) The size or capacity of each affected source, and the types of fuel combusted, and the types and amounts of materials processed or produced at each source; (3) A physical description of each source and its operating characteristics; (4) Estimates of potential and actual emissions from each affected source with supporting documentation; (5) A RACT analysis which meets the requirements of subsection 129.92 (b), including technical and economic support documentation for each affected source; (6) A schedule for implementation as expeditiously as practicable but not later than May 15, 1995; (7) The testing, monitoring, recordkeeping and reporting procedures proposed to demonstrate compliance with RACT; and (8) any additional information requested by the DEP necessary to evaluate the RACT proposal. Under subsection 129.91, the DEP will approve, deny or modify each RACT proposal, and submit each RACT determination to EPA for approval as a SIP revision.

The conditional nature of EPA's March 23, 1998 conditional limited approval did not impose any conditions pertaining to the regulation's procedures for the submittal of RACT plans and analyses by subject sources and approval of case-by case RACT determinations by the DEP. Rather, EPA stated that “* * * RACT rules may not merely be procedural rules (emphasis added) that require the source and the State to later agree to the appropriate level of control; rather the rules must identify the appropriate level of control for source categories or individual sources.”

On May 3, 2001 (66 FR 22123), EPA published a rulemaking determining that Pennsylvania had satisfied the conditions imposed in its conditional limited approval. In that rulemaking, EPA removed the conditional status of its approval of the Commonwealth's generic VOC and NO X RACT regulations on a statewide basis. EPA received no public comments on its action and that final rule removing the conditional status of Pennsylvania's VOC and NO X RACT regulations became effective on June 18, 2001. As of that time, Pennsylvania's generic VOC and NO X RACT regulations retained a limited approval status. On August 24, 2001 (66 FR 44578), EPA proposed to remove the limited nature of its approval of Pennsylvania's generic RACT regulation in the Pittsburgh area. EPA received no public comments on that proposal. Final action converting the limited approval to full approval shall occur once EPA has completed rulemaking to approve either (1) the case-by-case RACT proposals for all sources subject to the RACT requirements currently known in the Pittsburgh-Beaver area or (2) for a sufficient number of sources such that the emissions from any remaining subject sources represent a de minimis level of emissions as defined in the March 23, 1998 rulemaking (63 FR 13789).

EPA agrees that it has an obligation to review the case-by-case RACT plan approvals and/or permits submitted as individual SIP revisions by Commonwealth to verify and determine if they are consistent with the RACT requirements of the Act and any relevant EPA guidance. EPA does not agree, however, that this obligation to review the case-by-case RACT determinations submitted by Pennsylvania necessarily extends to our performing our own RACT analyses, independent of the sources' RACT plans/analyses (included as part of the case-by case RACT SIP revisions) or the Commonwealth's analyses. EPA first reviews this submission to ensure that the source and the Commonwealth followed the SIP-approved generic rule when applying for and imposing RACT for a specific source. Then EPA performs a thorough review of the technical and economic analyses conducted by the source and the state. If EPA believes additional information may further support or would undercut the RACT analyses submitted by the state, then EPA may add additional EPA-generated analyses to the record.

While RACT, as defined for an individual source or source category, often does specify an emission rate, such is not always the case. EPA has issued Control Technique Guidelines (CTGs) which states are to use as guidance in development of their RACT determinations/rules for certain sources or source categories. Not every CTG issued by EPA includes an emission rate. There are several examples of CTGs issued by EPA wherein equipment standards and/or work practice standards alone are provided as RACT guidance for all or part of the processes covered. Such examples include the CTGs issued for Bulk gasoline plants, Gasoline service stations—Stage I, Petroleum Storage in Fixed-roof tanks, Petroleum refinery processes, Solvent metal cleaning, Pharmaceutical products, External Floating roof tanks and Synthetic Organic Chemical Manufacturing (SOCMI)/polymer manufacturing. (The publication numbers for these CTG documents may be found at http://www.epa.gov/ttn/catc/dir1/ctg.txt).

EPA disagrees with PennFuture's general comment that our failure to conduct our own independent review of control technologies for every case-by-case RACT determination conducted by the Commonwealth has resulted in our proposing to approve some RACT determinations that fail to meet the terms of our own RACT standard. PennFuture submitted comments specific to the case-by-case RACT determinations for only three sources located in the Pittsburgh area, namely for Duquesne Light's Elrama, Phillips and Brunot Island stations. EPA summarizes those comments and provides responses in the final rule pertaining to those sources.

B. Comment: PennFuture comments that when EPA reviewed Pennsylvania's RACT program, it noted that Pennsylvania coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour “are some of the largest NO X emitting sources in the Commonwealth and in the Northeast United States” [63 FR 13789, 13791 (1998)] and as such should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93) to guarantee that sources would achieve quantifiable emissions reductions under the RACT program. PennFuture goes on to comment that because EPA has not conducted and documented a technical review of Pennsylvania case-by case RACT submissions, EPA has not demonstrated that these large boilers are subject to “numeric emission limitations” under RACT. EPA must conduct a thorough RACT evaluation or review for each such source, and must document the application of numeric emission limits and quantifiable reductions for each coal-fired boiler with a rated heat input of over 100 million Btu per hour.

Response: Circumstances may exist wherein a state could justify otherwise, however, in general, EPA agrees with PennFuture that coal-fired boilers with a rated heat input of equal to or greater than 100 million Btu per hour should have numeric emission limitations imposed as RACT whether or not they install presumptive RACT (under 25 Pa.Code 129.93).

As provided in the response found in II. A, EPA does not agree that it must conduct its own technical analysis of each of the case-by-case RACT determinations submitted for each RACT source in order to document that its RACT requirements include numeric emission limitations. That determination can be made by EPA when it reviews the plan approval, consent order, or permit issued to such a source as submitted by the Commonwealth as SIP revision. PennFuture's comment did not point to a specific instance where a RACT plan approval, consent order or permit imposing RACT on a coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour did, in fact, lack a numerical emission limitation(s). Nonetheless, pursuant to PennFuture's comment, EPA has re-examined all of the case-by-case RACT SIP submissions made by the Commonwealth for such sources located in the Pittsburgh area. That re-examination, combined with information provided by the Commonwealth, indicates that each case-by-case RACT plan approval, consent order and/or permit for each coal-fired boiler with a rated heat input of equal to or greater than 100 million Btu per hour includes a numeric emission limitation. A listing of each source, its plan approval, consent order and/or permit number and its numerical emission limitation has been placed in the Administrative Records for the case-by -case RACT rulemakings for the Pittsburgh area.

C. Comment: PennFuture asserts that the Commonwealth has not adopted and submitted category RACT rules for all VOC source categories for which federal control technique guidelines (CTGs) have been issued. The commenter refers to Appendix 1 of the Technical Support Document (dated May 14, 2001), prepared by EPA in support of its proposed rule to redesignate the Pittsburgh-Beaver Valley Ozone Nonattainment Area (66 FR 29270), to assert that EPA has failed to require the Commonwealth to submit VOC RACT rules for certain categories of sources. PennFuture specifically names source categories such as equipment leaks from natural gas/gas processing plants, coke oven batteries, iron and steel foundries, and publically owned treatment works and asserts that the Commonwealth has neglected a statutory requirement to adopt category RACT regulations for these and 14 other unnamed VOC source categories.

Response: EPA has not issued CTGs for coke oven batteries, iron and steel foundries and publically owned treatment works. The Appendix 1, referred to by the commenter, lists CTG covered categories as well as source categories taken from two STAPPA/ALAPCO documents entitled, “Meeting the 15-Percent Rate-of-Progress Requirement Under the Clean Air Act—A Menu of Options” (September 1993) and “Controlling Nitrogen Oxides Under the Clean Air Act—A Menu of Options” (July 1994). The categories referenced by PennFuture are not VOC categories for which EPA has issued CTGs, but were included in Appendix A as examples of some of the types of sources that could be subject to Pennsylvania's generic RACT regulations.

The Commonwealth is under no statutory obligation to adopt RACT rules for source categories for which EPA has not issued a CTG. In fact, CTGs do not exist for all but one of the categories to which the commenter explicitly refers.

The Act requires that states adopt regulations to impose RACT for “major sources of VOC,” located within those areas of a state where RACT applies under Part D of the Act [182(b)(2)(C)]. This is referred to as the non-CTG VOC RACT requirement. Moreover, EPA disagrees that there is a statutory mandate that a state adopt a source category RACT regulation even for a source category where EPA has issued a CTG. There are two statutory provisions that address RACT for sources covered by a CTG. One provides that states must adopt RACT for “any category of VOC sources” covered by a CTG issued prior to November 15, 1990 [182(b)(2)(A)]. The other provides that states must adopt VOC RACT for all “VOC sources” covered by a CTG issued after November 15, 1990 [182(b)(2)(B)]. EPA has long interpreted the statutory RACT requirement to be met either by adoption of category-specific rules or by source-specific rules for each source within a category. When initially established, RACT was clearly defined as a case-by-case determination, but EPA provided CTG's to simplify the process for states such that they would not be required to adopt hundreds or thousands of individual rules. See Strelow Memorandum dated December 9, 1976 and 44 FR 53761, September 17, 1979. EPA does not believe that Congress' use of “source category” in one provision of section 182(b)(2) was intended to preclude the adoption of source-specific rules.

Thus, where CTG-subject sources are located within those areas of a state where RACT applies under Part D of the Act, the state is obligated to impose RACT for the same universe of sources covered by the CTG. However, that obligation is not required to be met by the adoption and submittal of a source category RACT rule. A state may, instead, opt to impose RACT for such sources in permits, plan approvals, consent orders or in any other state enforceable document and submit those documents to EPA for approval as source-specific SIP revisions. This option has been exercised by many states, and happens most commonly when only a few CTG-subject sources are located in the state. The source-specific approach is generally employed to avoid what can be a lengthy and resource-intensive state rule adoption process for only a few sources that may have different needs and considerations that must be taken into account.

As stated earlier, there is one source category explicitly included in PennFuture's comment for which EPA has issued a CTG, namely natural gas/gas processing plants. The Commonwealth made a negative declaration to EPA on April 13, 1993, stating that as of that date there were no applicable sources in this category. Therefore, the Commonwealth did not adopt a category RACT regulation for natural gas/gas processing plants.

D. Comment: PennFuture cites EPA correspondence [letter from Marcia Spink, EPA, to James Salvaggio, DEP, December 15, 1993] to the Commonwealth which states that establishing any dollar figure in RACT guidance will not provide for the “automatic” selection or rejection of a control technology or emission limitation as RACT for a source or source category. With regard to the Pennsylvania DEP's intent to finalize a NO X RACT Guidance Document for implementation of its NO X RACT regulation, EPA's 1993 letter stated that the document could improperly be used to establish “bright line” or “cook-book” approaches, particularly for a regulation applicable to many source categories and suggested that if the guidance document must include dollar figures/ton, it provide approximate ranges by source category. PennFuture comments that DEP issued its “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions,” March 11, 1994, and on pp. 8-9 states that the acceptable threshold is $1500 per ton, and that this figure applies to “all source categories.” PennFuture notes that EPA later objected to the $1500 per ton methodology as “not generically acceptable to EPA” [letter from Thomas Maslany, EPA, to James Salvaggio, DEP, June 24, 1997] and further stated in a Federal Register notice that a “dollar per ton threshold” is “inconsistent with the definition of RACT” [62 FR 43134, 37-38 (1997)].

PennFuture comments that EPA is proposing to approve RACT determinations based on a cost per ton method that EPA had previously rejected, and according to its own clearly expressed standard, EPA must not approve RACT determinations by Pennsylvania DEP that apply this $1500 per ton threshold. The commenter states that PennFuture's review of several of the current DEP evaluations indicate that the Commonwealth applied this standard and provides the examples of Duquesne Light—Elrama (auxiliary boiler); Allegheny Ludlum—Washington (formerly Jessop Steel). PennFuture asserts EPA must reject all Pennsylvania RACT determinations applying the standard of $1500 per ton, or any other “bright line” approach, as failing to follow EPA procedures established for Pennsylvania RACT.

Response: EPA still takes the position that a single cost per ton dollar figure may not, in and of itself, form the basis for rejecting a control technology, equipment standard, or work practice standard as RACT. The Technical Support Document prepared by EPA in support of its March 23, 1998 rulemaking [63 FR 13789] clearly indicates that the Commonwealth's document, “Guidance Document on Reasonably Available Control Technology for Sources of NO X Emissions.” March 11, 1994, had not been included as part of the SIP submission of the Commonwealth's generic regulation and, therefore, had not been approved by EPA. EPA further notes that the Administrative Record of the March 23, 1998 rulemaking [63 FR 13789], in addition to the correspondence cited by PennFuture, also includes correspondence from DEP to EPA [letter from James Salvaggio, DEP to David Arnold, EPA, September 10, 1997] stating that DEP's RACT guidance document does not establish a maximum dollar per ton for determining the cost effectiveness for RACT determinations and notes that the DEP's $1500 per ton cost effectiveness is a target value and not an absolute maximum. For example, in its analyses of the cost effectiveness of RACT control options submitted by DEP as part of the case-by-case SIP revision for Peoples Natural Gas (PNG) Valley Compressor Station's turbo charged lean burn IC engine (see the Administrative Record for 66 FR 43492), the Commonwealth included DEP interoffice memoranda (Thomas Joseph to Krishnan Ramamurthy, July 14, 1994 and Krishnan Ramamurthy to Thomas McGinley, Babu Patel, Ronald Davis, Richard Maxwell, and Devendra Verma, July 15, 1994) which spoke directly to the $1500/ton dollar figure as being a guideline and not an upper limit. These memoranda explain that although PNG initially proposed intermediate original equipment manufacturer (OEM) combustion controls which would have reduced NO X emissions from 254.7 tons per year to 115 tons per year (by 55%) at a cost of $1355 per ton reduced, DEP required the installation of an OEM lean combustion modification that reduced NO X emissions from 254.7 tons per year to 76 tons per year (by 69%) at a cost of $1684 per ton reduced. The DEP's July 15, 1994 interoffice memorandum says of the PNG RACT determination which exceeded the cost effectiveness screening level of $1500 per ton “ Tom's (Joseph) insistence for the next more stringent level of control than the company's chosen level in the case of PNG was consistent with EPA Region III's sentiment that establishing any dollar figure in RACT guidance will not provide for an “automatic” rejection of a control technology as RACT for a source.”

In no instance, including that for Duquesne Light—Elrama (auxiliary boiler) and Allegheny Ludlum—Washington (formerly Jessop Steel), has EPA proposed to approve a RACT determination submitted by the Commonwealth which was based solely on a conclusion that controls that cost more than $1500/ton were not required as RACT. As explained in the response provided in section II. A. of this document, EPA conducts its review of the entire case-by-case RACT SIP submittal including the source's proposed RACT plan and analyses, Pennsylvania's analyses and the RACT plan approval, consent order or permit itself to insure that the requirements of the SIP-approved generic RACT have been followed. These analyses not only evaluate and consider the costs of potential control options, but also evaluate their technological feasibility.

E. Comment: PennFuture comments that any emission reduction credits (ERCs) earned by sources subject to RACT must be surplus to all applicable state and federal requirements. Under Pennsylvania law, ERCs must be surplus, permanent, quantified, and Federally enforceable. 25 Pa.Code 127.207(1). As to the requirement that ERCs be surplus, the Pennsylvania Code states: ERCs shall be included in the current emission inventory, and may not be required by or be used to meet past or current SIP, attainment demonstration, RFP, emission limitation or compliance plans. Emission reductions necessary to meet NSPS, LAER, RACT, Best Available Technology, BACT and permit or plan approval emissions limitations or another emissions limitation required by the Clean Air Act or the [Air Pollution Control Act] may not be used to generate ERCs. 25 Pa.Code 127.207(1)(i). To be creditable, ERCs must surpass not only RACT requirements but a host of other possible sources of emission limits. PennFuture comments that some of the RACT evaluations at issue in the current EPA notices purport to establish RACT as a baseline for future ERCs. PennFuture does acknowledge that EPA notes in its boilerplate for the notices, that Pennsylvania and EPA have established a series of NO X -reducing rules, including the recent Chapter 145 rule, to reduce NO X at large utility and industrial sources. See, for example, 66 FR 42415, 16-17 (August 13, 2001). Because any ERCs must be surplus to the most stringent limitation applicable under state or federal law as described in the Pennsylvania Code provision set forth above, DEP and EPA must not approve ERCs unless they surpass all such limitations in addition to any limits set by RACT.

Response: EPA agrees with this comment by PennFuture. The approval of a case-by-case RACT determination, in and of itself, does not establish the baseline from which further emission reductions may be calculated and assumed creditable under the Commonwealth's SIP-approved NSR and ERC program. Moreover, EPA's review of the Pennsylvania DEP's implementation of its approved SIP-approved NSR and ERC program indicates that the Commonwealth calculates and credits ERCs in accordance with the SIP-approved criteria for doing so as outlined in PennFuture's comment. No source for which EPA is approving a case-by-case RACT determination should assume that its RACT approval alone automatically establishes the baseline against which it may calculate creditable ERCs.

F. Comment: PennFuture comments that as in the case with Pennsylvania Power—Newcastle, EPA should compare RACT proposals to applicable acid rain program emission limits and control strategies. PennFuture contends that EPA previously disapproved a RACT proposal for the Pennsylvania Power—Newcastle plant [62 FR 43959 (1997); 63 FR 23668 (1998)] and that EPA did so on the basis that the acid rain program requires more stringent emission limits. PennFuture asserts that while EPA had originally proposed to approve this proposal, an analysis of comparable boilers and, especially, a comparison to Phase II emission limits under the acid rain program led EPA to conclude that the RACT proposal emission limits were too lenient. [62 FR at 43961]. Therefore, PennFuture contends that for sources subject to the acid rain program, EPA should consider emissions and control strategies for compliance with acid rain emission limits when evaluating proposals for compliance with RACT.

Response: Title IV of the Act, addressing the acid rain program, contains NO X emission requirements for utilities which must be met in addition to any RACT requirements (see NO X Supplement to the General Preamble at 57 FR 55625, November 25, 1992). The Act provides for a number of control programs that may affect similar sources. For example, new sources may be subject to new source performance standards (NSPS), best available control technology (BACT), and lowest achievable emission rate (LAER). Other controls, under such programs as the acid rain program or the hazardous air pollutant program may also apply to sources. However, the applicability of these other requirements, which are often more stringent than RACT, do not establish what requirements must apply under the RACT program. While these programs may provide information as to the technical and economic feasibility of reduction programs for RACT, there is no presumption that acid rain controls should be mandated as RACT.

EPA stated in the final disapproval of the NO X RACT determination for PPNC [63 FR at 23669], that the discussion concerning average emission rates for boilers with respect to the acid rain program requirements were included in order to provide a context for EPA's proposed disapproval. EPA made clear in its August 18, 1997 proposed disapproval of Pennsylvania Powers'—Newcastle (PPNC) RACT determination, that the basis for disapproval was a comparison between PPNC's boilers and other similar combustion units, not acid rain limits. In fact, EPA stated in the August 18, 1997 proposed disapproval that “Without additional knowledge or information, it would be erroneous and premature to conclude that the limits in the acid rain permit are RACT.” [62 FR at 43961]. EPA clearly stated in the final disapproval for PPNC that it did not use acid rain permit limits, or Pennsylvania's participation in any other NO X control program, to determine PPNC RACT approvability [63 FR at 23670]. Nor has EPA intended to use participation in NO X control programs including acid rain, in determining RACT for PPNC or any other subject sources. EPA also stated that the April 30, 1998, PPNC disapproval was based on the absence of pertinent information regarding a computerized combustion optimization system through an enforceable permit, not comparison of acid rain permit limits.

EPA is approving the revisions to the Pennsylvania SIP submitted by PADEP to establish and require VOC and NO X RACT for five major sources located in the Pittsburgh area. EPA is approving these RACT SIP submittals because PADEP established and imposed these RACT requirements in accordance with the criteria set forth in the SIP-approved RACT regulations applicable to these sources. PADEP has also imposed record-keeping, monitoring, and testing requirements on these sources sufficient to determine compliance with the applicable RACT determinations.

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability establishing source-specific requirements for five named sources.

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 17, 2001. 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 approving the Commonwealth's source-specific RACT requirements to control VOC and NO X from five individual sources in Pennsylvania may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-149, adopted September 19, 2001, and released September 28, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202 863-2893. Facsimile 202 863-2898, or via e-mail qualexint@aol.com.

This is a synopsis of the Commission's Report and Order, MM Docket No. 01-87, adopted September 26, 2001, and released October 5, 2001. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualtex International, Portals II, 425 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

Aboriginal subsistence whaling in the United States is governed by the Whaling Convention Act (16 U.S.C. 916 et seq. ), which requires the Secretary of Commerce (Secretary) to publish, at least annually, aboriginal subsistence whaling quotas and any other limitations on aboriginal subsistence whaling deriving from regulations of the IWC.

At the 1997 Annual Meeting of the IWC, the Commission set quotas for aboriginal subsistence use of bowhead whales from the Bering-Chukchi-Beaufort Seas stock. The bowhead quota was based on a joint request by the United States and the Russian Federation, accompanied by documentation concerning the needs of 2 Native groups: Alaska Eskimos and Chukotka Natives in the Russian Far East.

This action by the IWC thus authorized aboriginal subsistence whaling by the AEWC for bowhead whales. This aboriginal subsistence harvest is conducted in accordance with a cooperative agreement between NOAA and the AEWC.

The IWC set a 5-year block quota of 280 bowhead whales landed. For each of the years 1998 through 2002, the number of bowhead whales struck may not exceed 67, except that any unused portion of a strike quota from any year, including 15 unused strikes from the 1995-1997 quota, may be carried forward. No more than 15 strikes may be added to the strike quota for any 1 year. The 2000 strike quota was 75. At the end of the 2000 harvest, there were 15 unused strikes available for carry-forward, so the combined strike quota for 2001 is also 82 (67 + 15).

The United States and the Russian Federation have concluded an arrangement to ensure that the total quota of bowhead whales landed and struck in 2001 will not exceed the quotas set by the IWC. Under that arrangement, the Russian natives may use no more than 7 strikes, and the Alaska Eskimos may use no more than 75 strikes.

NOAA is assigning 75 strikes to the Alaska Eskimos. The AEWC will allocate these strikes among the 10 villages whose cultural and subsistence needs have been documented in past requests for bowhead quotas from the IWC, and will ensure that its hunters use no more than 75 strikes.

The IWC regulations, as well as the NOAA rule at 50 CFR 230.4(c), forbid the taking of calves or any whale accompanied by a calf.

NOAA rules (at 50 CFR 230.4) contain a number of other prohibitions relating to aboriginal subsistence whaling, some of which are summarized here. Only licensed whaling captains or crew under the control of those captains may engage in whaling. They must follow the provisions of the relevant cooperative agreement between NOAA and a Native American whaling organization. The aboriginal hunters must have adequate crew, supplies, and equipment. They may not receive money for participating in the hunt. No person may sell or offer for sale whale products from whales taken in the hunt, except for authentic articles of Native handicrafts. Captains may not continue to whale after the relevant quota is taken, after the season has been closed, or if their licenses have been suspended. They may not engage in whaling in a wasteful manner.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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.

Within any fishing year under harvest or over harvest of a seasonal allowance of pollock may be added to or subtracted from the subsequent seasonal allowances of pollock in a manner to be determined by the Administrator, Alaska Region, NMFS (Regional Administrator), provided that a revised seasonal allowance does not exceed 30 percent of the annual TAC apportionment (§ 679.20(a)(5)(ii)(C)). The annual 2001 pollock TAC in the combined Central and Western GOA is 87,180 mt and 30 percent of this amount is 26,154 mt (66 FR 7276, January 22, 2001, and 66 FR 37167, July 17, 2001). This is the maximum amount of TAC that may harvested in any season, in this case the D season. Pollock TACs in the Western and Central Regulatory Areas in the C and D seasons are apportioned among Statistical Areas 610, 620, and 630 in proportion to the distribution of biomass as determined by the four most recent NMFS summer surveys. These amounts are 42.05 percent, 25.03 percent, and 32.92 percent respectively (66 FR 7276, January 22, 2001 and 66 FR 37167, July 17, 2001). In Statistical Area 610 this translates to a maximum TAC for the D season of 10,998 mt (26,154 mt x 0.4205). The Regional Administrator has determined that 11,666 mt of the original pollock TAC remains in Statistical Area 610. In accordance with § 679.20(a)(5)(ii)(C), the Regional Administrator hereby increases the original D season pollock TAC of 9,165 mt by 1,833 mt. The revised D season allowance of pollock TAC in Statistical Area 610 is 10,998 mt.

In accordance with § 679.20(d)(1)(i), the Regional Administrator, has determined that the D season allowance of the pollock TAC in Statistical Area 610 will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 10,798 mt, and is setting aside the remaining 200 mt as bycatch to support other anticipated groundfish fisheries. Consequently in accordance with § 679.20(d)(1)(iii), NMFS is prohibiting directed fishing for pollock in Statistical Area 610 of the GOA.

Maximum retainable bycatch amounts may be found in the regulations at § 679.20(e) and (f).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA, finds that the need to immediately implement this action to prevent exceeding the seasonal allocation of pollock in Statistical Area 610 constitutes good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(3)(B) and 50 CFR 679.20(b)(3)(iii)(A), as such procedures would be unnecessary and contrary to the public interest. Similarly, the need to implement these measures in a timely fashion to prevent exceeding the seasonal allocation of pollock in Statistical Area 610 constitutes good cause to find that the effective date 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 required by § 679.20 and is exempt from review under Executive Order 12866.