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

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. RUS has determined that this proposed rule meets the applicable standards in § 3 of the Executive Order. In addition, all state and local laws and regulations that conflict with this proposed rule will be preempted; no retroactive effect will be given to the proposed rule; and in accordance with § 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures, if any, must be exhausted before litigation against the Department or its agencies may be initiated.

It has been determined that the Regulatory Flexibility Act is not applicable to this proposed rule since the Agency is not required by 5 U.S.C. 551et seq.,or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule.

This proposed rule contains no additional reporting or recordkeeping burdens under Office of Management and Budget (OMB) control numbers 0572-0107 and 0572-0118 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

This proposed rule will not have any substantial direct effect on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this proposed rule does not have sufficient federalism implications requiring the preparation of a Federalism Assessment.

The program described by this proposed rule is listed in the Catalog of Federal Domestic Assistance Programs under number 10.850, Rural Electrification Loans and Loan Guarantees. This catalog is available on the Internet and the General Services Administration's (GSA) free CFDA Web site athttp://www.cfda.gov. The CFDA Web site also contains a PDF file version of the Catalog that, when printed, has the same layout as the printed document that the Government Printing Office (GPO) provides. GPO prints and sells the CFDA to interested buyers. For information about purchasing the Catalog of Federal Domestic Assistance from GPO, call the Superintendent of Documents at 202-512-1800 or toll free at 866-512-1800, or access GPO's online bookstore athttp://bookstore.gpo.gov.

This proposed rule is not subject to the provisions of Executive Order 12372, “Intergovernmental Review of Federal Programs,” as implemented under USDA's regulations at 7 CFR Part 3015.

This proposed rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments for the private sector. Thus, this proposed rule is not subject to the requirements of §§ 202 and 205 of the Unfunded Mandates Reform Act of 1995.

This proposed rule has been examined under RUS environmental regulations at 7 CFR Part 1794. The Administrator has determined that this proposed rule is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321et seq.), an Environmental Impact Statement or Assessment is not required.

RUS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The Rural Electrification Act of 1936 (7 U.S.C. 901-950bb (REAct)), as amended, establishes the authority for RUS to provide loans and loan guarantees to eligible entities for furnishing electric service to rural areas. The standard loan agreement between RUS and its electric borrowers provides that, in accordance with applicable RUS regulations, the borrower shall use standard forms of contracts promulgated by RUS for construction, procurement, engineering services and architectural services for transactions above the established threshold dollar levels (“threshold levels”).

Electric borrowers are also expected to obtain RUS approvals for procuring materials, equipment and contracting services for use in the electric systems where the contract amount exceeds specified threshold levels.

Threshold levels that apply to contracts entered into by borrowers were initially established to capture significant transactions that could adversely affect RUS loan security. The threshold levels were most recently revised in 1995. Cost increases and inflation over time have greatly increased the need for more approvals than is consistent with the earlier threshold levels. The result has been increased delay to the borrowers in receiving RUS approvals and increased workloads at RUS. Inflation is not the only relevant variable in the RUS proposal to modify the threshold levels. In this proposed rule RUS has also considered the level of sophistication in borrowers' operations, RUS staff constraints and competing priorities within RUS. The need to adjust the threshold levels is a result of these considerations.

In response to borrowers' requests and mindful of the directives in Executive Order 13563 of January 18, 2011, to determine if any regulations should be modified to make agencies' regulations less burdensome in achieving their objectives, RUS undertook an examination of certain thresholds used in determining when the use of prescribed forms and approvals would apply. RUS examined the number of contracts it reviewed over the last several years. RUS also reviewed the rate of inflation factors published in the Handy-Whitman Index of Public Utility Construction Costs in order to adjust for inflation occurring after the existing requirements were established.

As a result of this review, RUS determined that although it remains necessary and appropriate to continue these requirements as one means of oversight of its borrowers' financial and operational activities, the existing threshold levels should be raised. Raising these threshold levels will reduce the volume of contracts that borrowers will be required to submit for RUS approvals. Doing so will reduce the paperwork burdens on borrowers and the administrative burdens on RUS.

RUS is proposing to revise these threshold levels an average of 300 percent. RUS estimates that the revision will reduce the volume of contracts it receives pursuant to these requirements by 50 percent.

For reasons set forth in the preamble, RUS proposes to amend chapter XVII of title 7 of the Code of Federal Regulations as follows:

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

You can access publicly available documents related to the proposed rule and draft guidance document using the following methods:

•NRC's Public Document Room (PDR):The public may examine and have copied, for a fee, publicly available documents at the NRC's PDR, Room O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

•NRC's Agencywide Documents Access and Management System (ADAMS):Publicly available documents created or received at the NRC are available online in the NRC Library athttp://www.nrc.gov/reading-rm/adams.html.From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, or 301-415-4737, or by e-mail toPDR.Resource@nrc.gov.The proposed rule and draft guidance document are available electronically under ADAMS Accession Numbers ML110890797 and ML102520022, respectively.

•Federal Rulemaking Web Site:Public comments and supporting materials related to the proposed rule and draft guidance document can be found athttp://www.regulations.govby searching on the applicable Docket ID, NRC-2009-0079 (proposed rule) and NRC-2011-0080 (draft guidance document).

Health and safety risks at 10 CFR part 40 fuel cycle facilities authorized to possess significant quantities of UF6 are both radiological and chemical in nature. These facilities not only handle radioactive source material but also large volumes of hazardous chemicals that are involved in processing the nuclear material. For example, the presence of UF6 in large quantities means that the hazards of hydrogen fluoride (HF) must be considered. The HF gas (and uranyl fluoride) is quickly produced from the chemical reaction that occurs when UF6 is exposed to water, present as humidity in the air, and HF gas may quickly move offsite. The HF is a highly reactive and corrosive chemical that presents a substantial inhalation and skin absorption hazard to both workers and the public.

Such hazards were demonstrated in the 1986 accident involving UF6 and HF at Sequoyah Fuels (a 10 CFR part 40 licensed facility). A cylinder of UF6 ruptured and resulted in a worker fatality. The cause of the worker's death was the inhalation of HF gas produced when the cylinder ruptured. The fact that HF can be produced from UF6 under certain conditions, and that it has a significant potential for onsite and offsite consequences, are among the principle factors on which this proposed rulemaking is based.

The current 10 CFR part 40 does not contain ISA requirements for evaluating the consequences of facility accidents. Similar hazards, both radiological and chemical, that exist at fuel cycle facilities that are regulated under 10 CFR part 70 are addressed by requirements contained in 10 CFR part 70, subpart H, “Additional Requirements for Certain Licensees Authorized To Possess a Critical Mass of Special Nuclear Material.”

In March 2007, the NRC staff briefed the Commission on health and safety concerns involving 10 CFR part 40 fuel cycle facilities authorized to possess significant quantities of UF6. Based on these concerns, the Commission issued Staff Requirements Memorandum (SRM)-M070308B, “Staff Requirements—Briefing on NMSS Programs, Performance, and Plans” (March 22, 2007) directing the staff to propose options for rulemaking that would impose ISA requirements (similar to those currently found in 10 CFR part 70, subpart H) on current and future 10 CFR part 40 fuel cycle facilities authorized to possess significant quantities of UF6. The SRM also directed the staff to inform the Agreement States that the NRC would be the sole regulator for future major fuel cycle facilities under 10 CFR part 40. The NRC sent a letter to the Agreement States (ADAMS Accession Number ML071030304) on April 13, 2007, notifying them of the Commission's directive.

In SECY-07-0146 (August 24, 2007), the staff recommended that the Commission:

(1) Approve keeping the Starmet and Aerojet Ordnance facilities under Agreement State jurisdiction and, if similar new facilities are proposed in Agreement States in the future, the NRC would retain jurisdiction of only those facilities that exceed the threshold quantity limits discussed in Recommendation 2.

(2) Approve conducting a rulemaking to amend 10 CFR part 40. This would require new applicants and existing licensees for 10 CFR part 40 fuel cycle facilities with UF6 or uranium tetrafluoride (UF4) inventories greater than 10,000 kilograms (or alternative threshold quantity) to meet ISA requirements similar to those in 10 CFR part 70, subpart H. These requirements would not apply to existing facilities currently undergoing decommissioning. If new applicants submit license applications before the completion of the rulemaking, the NRC would issue orders establishing the 10 CFR part 70, subpart H, performance requirements as part of the licensing basis for the application review.

The Commission issued SRM for SECY-07-0146, dated October 10, 2007, approving Recommendations 1 and 2. The Commission stated that if new license applications are submitted before the completion of the rulemaking, “the staff shall impose 10 CFR part 70, subpart H, performance requirements as part of the licensing basis for the application review.” As further directed in the SRM, the NRC held a public meeting on February 22, 2008, at NRC Headquarters in Rockville, Maryland, to discuss the scope of the proposed rulemaking and to seek public input on the proposed threshold quantities for determining when a facility will be regulated by the NRC or an Agreement State. Industry stakeholders that would be impacted by the rulemaking and representatives from four Agreement States attended the meeting either in person or via teleconference. All participants were encouraged to send in written comments within 30 days.

The Nuclear Energy Institute (NEI) and Honeywell Specialty Materials (Honeywell) attended the meeting and both submitted similar written comments and concerns. While both supported the concept of threshold UF6 quantities to determine if ISA requirements analogous to 10 CFR part 70, subpart H, should be required for new licensees, neither supported implementing the proposed ISA requirements at existing facilities. The commenters expressed the opinion that the NRC's mission is to protect public health and safety from the effects of radiological materials, and that this mission does not encompass chemical hazards. Both noted that the 10 CFR part 70 ISA requirements focus on preventing criticality events, a concern not relevant to source material licensees, and assessing and mitigating the radiological risk of enrichment operations. They felt that the primary health and safety concerns from licensed operations are chemical in nature, and since chemical concerns are not the mission of the NRC, the ISA should be narrowly focused to deal only with radiological concerns.

Honeywell further noted that it had already voluntarily submitted a risk-based ISA to support the license renewal of its Metropolis, Illinois facility, and observed that its plant had only been operating under the ISA since November 2007. It argued that not enough time has passed to assess the effectiveness of the current ISA. Therefore, Honeywell should be given several years to determine whether its current ISA is adequate before the NRC proceeds with any ISA rulemaking.

The NRC does not agree with the above NEI and Honeywell comments. As discussed above, the Sequoyah Fuels accident that killed one of its employees did not involve a criticality event. The chemical hazard that produced the fatality resulted from the licensed UF6 material that was being handled at the facility, and such hazards are within the NRC's regulatory authority. A more in-depth discussion of the NRC's authority to regulate these specific chemical hazards can be found in the following section in Question E. Therefore, generic ISA requirements to ensure that an adequate level of public health and safety is maintained, are needed for existing and future 10 CFR part 40 facilities handling significant quantities of UF6.

The NRC staff, in later reviewing all the data and information available, determined that UF4 did not constitute the same risk as UF6 at 10 CFR part 40 fuel cycle facilities. In a memorandum to the Commission dated June 23, 2009, the staff informed the Commission of its findings and intentions not to pursue rulemaking at this time to require an ISA for licensees possessing UF4 in any quantity.

A draft proposed rule was provided to the Commission in SECY-10-0128, “Proposed Rule: Domestic Licensing of Source Material—Amendments/Integrated Safety Analysis,” dated October 1, 2010. In response to SECY-10-0128, the Commission issued an SRM dated November 30, 2010, which directed the staff to publish the draft proposed rule for public comment subject to Commission comments and changes which include:

(1) Adding a backfit provision similar to § 70.76, applicable to any source material licensee authorized to possess 2000 kilograms (kg) or more of UF6, which becomes effective once such a licensee's ISA summary has been approved by the NRC;

(2) Seeking public comment with regard to the potential challenges and impacts on the use of probabilistic risk analyses methodology at 10 CFR part 40 facilities;

(3) Publishing concurrently with the proposed rule draft regulatory guidance and a standard review plan related to the proposed rule;

(4) Issuing guidance regarding the completion of ISAs to account for differences in the processes or hazards for 10 CFR part 40 facilities, as compared to 10 CFR part 70 facilities; and

(5) Providing (from the effective date of the rule) 6 months to develop an ISA plan; 18 months to produce an ISA; and 3 years to correct all performance deficiencies.

Additionally, the SRM directed the staff to determine whether the 1988 Memorandum of Understanding (MOU) between the NRC and the Occupational Safety and Health Administration (OSHA) needs to be modified. If no need to modify the MOU was found, the SRM directed the staff to provide a clear explanation in this proposed rule and in guidance of how MOU Criterion 3 should be evaluated by a licensee in completing its ISA. The MOU Criterion 3 references plant conditions affecting “the safety of radioactive materials and [which] thus presents an increased radiation risk to workers.” As discussed further in Question E in Section III (Discussion), the staff found there was no need to modify the MOU, and guidance on how MOU Criterion 3 should be evaluated in completing ISAs has been developed. Comments on the draft guidance for this proposed rule may be submitted to the NRC by the methods listed in theADDRESSESsection of this document.

In addition to seeking comments in general on the proposed rule, the NRC is seeking specific public comments on the proposed provision to require an additional evaluation criterion in § 40.84(b) for chemical hazards. This criterion is not currently required for any fuel cycle facility. Specific discussion on this issue is located in Question H of this section and in Section IV (Discussion of Proposed Amendments by Section).

Additionally, the NRC is seeking public comments on the potential challenges and impacts of conducting probabilistic risk analyses (PRAs) rather than ISAs for 10 CFR part 40 fuel cycle facilities. This issue is discussed in Question K of this section.

Comments on these issues may be submitted as described in theADDRESSESsection of this document.

The NRC is proposing to amend 10 CFR part 40 to require applicants or licensees that are, or plan to be, authorized to possess 2000 kg or more of UF6 to conduct an ISA and submit an ISA summary. The new ISA requirements would be similar to requirements found in 10 CFR part 70 subpart H, which apply to fuel fabrication and enrichment facilities. In the rulemaking, the NRC would assert jurisdiction over all applicants and licensees that may possess 2000 kg or more of UF6.

The rulemaking would add an additional evaluation criterion for applicants or licensees that submit an evaluation in lieu of the emergency plan required by § 40.31(j). The evaluation would have to demonstrate that an acute chemical exposure from licensed material or hazardous chemicals produced from licensed material due to a release would result in neither irreversible nor mild transient health effects to a member of the public offsite. If such an evaluation is not submitted, an emergency plan must be submitted in accordance with § 40.31(j)(3).

The format of the requirements contained in 10 CFR part 40 would be administratively restructured to create subparts. Included in the restructuring would be the addition of a new subpart titled, “Additional Requirements for Certain Licensees Authorized to Possess 2000 kilograms (4400 lb) or More of Uranium Hexafluoride.” The rulemaking would also add definitions to § 40.4 that pertain to the proposed ISA requirements.

The rulemaking would add a backfit provision applicable to licensees authorized to possess 2000 kg or more of UF6. This provision would be similar to existing § 70.76.

The proposed amendment would affect current licensees and future applicants that possess or plan to possess 2000 kg or more of UF6. Agreement States and NRC licensees that are currently in the process of decommissioning would be exempt from the new requirements.

All future facilities authorized to possess 2000 kg or more of UF6 would be licensed by the NRC. On April 13, 2007, a letter was sent to all the Agreement States (FSME-07-036) informing them that the NRC “will regulate future major fuel cycle facilities licensed under 10 CFR part 40,e.g.,uranium conversion and deconversion facilities.”

The NRC held a public meeting on February 22, 2008, at NRC Headquarters in Rockville, Maryland, to discuss the scope of the proposed rulemaking and to seek public input on the proposed threshold quantities for determining when a facility will be regulated by the NRC or an Agreement State. The NRC announced the meeting on the NRC Web site as well as in a press release sent out by the Office of Public Affairs. The industry stakeholders that would be impacted by the rulemaking attended the meeting. The meeting followed a workshop format, and representatives from Honeywell and NEI gave presentations. All participants were encouraged to send written comments within 30 days.

Health and safety risks at uranium 10 CFR part 40 fuel cycle facilities authorized to possess significant quantities of UF6 are both radiological and chemical in nature. These facilities not only handle radioactive source material, but also large volumes of hazardous chemicals that are produced from the processing of the nuclear material. As previously explained, chemicals such as HF can be incidentally produced in processes that involve using UF6, and HF. Due to its reactive and corrosive qualities, HF has a significant potential to generate harmful onsite consequences to workers, and harmful offsite consequences to the public.

The basis for the NRC's oversight of hazardous chemicals produced from licensed materials is derived from the Atomic Energy Act (AEA). Section 161 of the AEA gives the NRC broad authority to establish regulatory requirements necessary to protect the public health and safety, and Chapter 7 of the AEA details the specific statutory bases for NRC licensing and regulating the use of source material, such as UF6. The 1988 MOU between the NRC and OSHA (53 FR 43950) further discusses the radiological and chemical hazards to workers handling radiological materials licensed by NRC. It defines the general areas of responsibilities for the NRC and OSHA at facilities that have both radiological and chemical hazards.

The NRC-OSHA MOU states that “there are four kinds of hazards that may be associated with NRC-licensed nuclear facilities.” It identifies them as:

1. Radiation risk produced by radioactive materials;

2. Chemical risk produced by radioactive materials;

3. Plant conditions which affect the safety of radioactive materials and thus present an increased radiation risk to workers;

4. Plant conditions which result in an occupational risk, but do not affect the safety of licensed radioactive materials.

The NRC-OSHA MOU states that the “NRC responsibilities cover the first three nuclear facility hazards” and the “NRC does not have statutory authority for the fourth hazard.”

The first three hazards and their attendant health and safety risks, involving the possession and use of licensed radioactive materials, are clearly regulated by the NRC (or by Agreement States to which AEA authority has been delegated) and are within the NRC's proper jurisdiction. Large quantities of hazardous chemicals, such as HF, can be generated during accidents at NRC-licensed facilities. Chemical hazards can impact radiological safety by incapacitating or causing death of a radiation worker who is performing a critical function in the processing of radioactive material.

As previously discussed, the SRM on SECY-10-0128 directed the staff to evaluate whether the MOU needed to be modified. Feedback from cognizant NRC Offices and OSHA indicated the MOU adequately delineates the agencies' respective responsibilities at nuclear facilities. In accordance with the SRM, a clear explanation and example of how to evaluate the MOU's Criterion 3 is in the discussion of the proposed § 40.81(a) in Section IV (Discussion of Proposed Amendments by Section) of this document. Guidance on the MOU's Criterion 3 has also been added to the draft guidance, NUREG-1962, developed to support the rulemaking. The draft guidance explains how MOU Criterion 3 should be evaluated by a licensee in completing its ISA.

The staff, in SECY-07-0146, recommended that 10,000 kg of UF6 be the threshold quantity for requiring 10 CFR part 40 fuel cycle licensees to perform an ISA and for NRC licensing jurisdiction. The NRC staff subsequently looked at threshold limits and determined that quantities of UF6 greater than 2000 kg represented a significant quantity. This reduction from 10,000 to 2000 kg was based in part on the chemical hazard associated with accident scenarios involving UF6. Specifically, in an accident scenario involving 2000 kg of UF6, approximately 453 kg (1000 lb) of HF vapor could be produced. OSHA, in Appendix A of Title 29 of the CFR (29 CFR) Section 1910.119, identifies threshold quantities of hazardous chemicals that “present a potential for a catastrophic event.” The HF is listed in this appendix with a threshold quantity of 1000 lb. In Appendix A to 29 CFR 1910.119, OSHA lists toxic and reactive highly hazardous chemicals which present a potential for a catastrophic event at or above specified threshold quantities. The regulations also contain requirements for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals that may result in toxic, fire, or explosion hazards.

The NRC believes that chemical quantities exceeding the quantities listed in Appendix A to 29 CFR 1910.119 at 10 CFR part 40 fuel cycle facilities can, and do, affect the safety of radioactive materials and thus present an increased radiation risk to workers.

Although the NRC staff originally recommended that licensees in possession of large quantities of UF4 also be required to submit an ISA, it was determined that UF4 did not pose the same risk as UF6. The UF4 is far less reactive than UF6, requiring days to months to react with moisture in the air. Based on a search of published literature, the staff does not believe there is sufficient information available to establish a threshold of UF4 for requiring an ISA or for the NRC to establish exclusive jurisdiction.

Appendix A to 29 CFR 1910.119 is part of an OSHA regulation that contains a listing of toxic and reactive highly hazardous chemicals which present a potential for a catastrophic event at or above the threshold quantity. The regulations at 29 CFR 1910.119 has requirements for preventing or minimizing the consequences of catastrophic releases of toxic, reactive, flammable, or explosive chemicals that may result in toxic, fire, or explosion hazards. However, § 1910.119 does not provide structured risk-informed requirements for evaluating the consequences of facility accidents as an ISA does.

Under the OSHA regulation, facilities that possess hazardous chemicals in quantities greater than listed in Appendix A to 29 CFR 1910.119 must perform a process hazard analysis. This analysis is similar but less comprehensive than the requirements inthe proposed ISA. Additionally, § 1910.119 only addresses chemical hazards. An ISA would address both the radiological and chemical hazards from licensed material and hazardous chemicals produced in the processing of licensed material.

Yes. The current regulations in § 40.31(j) require any licensee or applicant who plans to possess 1000 kg or more of UF6 (or more than 50 kg in a single container) to submit an emergency plan or, per § 40.31(j)(1)(i), an evaluation showing that the maximum intake of uranium by a member of the public due to a release would not exceed 2 milligrams. The proposed rule would add an additional criterion, in addition to § 40.31(j)(1)(i), for licensees or applicants who possess, or plan to possess, 2000 kg or more of UF6, and who opt to submit an evaluation in lieu of submitting an emergency plan. This additional criterion would require a demonstration that an acute chemical exposure from licensed material or hazardous chemicals produced from licensed material due to a release, would result in neither irreversible nor mild transient health effects to a member of the public offsite. An acute exposure guideline level (AEGL) or emergency response planning guidelines (ERPG) standard may be used in making this demonstration. Where no AEGL or ERPG is available, the applicant/licensee may develop or adopt a criterion that is comparable in severity to those that have been established for other chemicals.

Chemical consequence criteria corresponding to anticipated adverse health effects to humans from acute exposures (i.e.,a single exposure or multiple exposures occurring within a short time—24 hours or less) have been developed, or are under development, by a number of organizations. A set of chemical consequence criteria, known as ERPGs, has been developed by the American Industrial Hygiene Association to provide estimates of concentration ranges where defined adverse health effects might be observed because of short exposures to hazardous chemicals. The ERPG criteria are widely used by those involved in assessing or responding to the release of hazardous chemicals.

Another organization, the National Advisory Committee for Acute Guideline Levels for Hazardous Substances, is developing AEGLs. The committee, which works under the auspices of the Environmental Protection Agency (EPA) and the National Academy of Sciences, has identified a priority list of approximately 471 chemicals. Consequence criteria for approximately 200 extremely hazardous substances have been developed, including one for HF. As previously discussed, HF is a significant hazard associated with UF6.

Current licensees would have to submit for NRC approval, within 6 months after the rule becomes effective, a plan that describes the integrated safety analysis approach that will be used, the processes that will be analyzed, and the schedule for completing the analysis of each process. Unless an alternate schedule is approved, the licensee would submit for NRC approval an integrated safety analysis summary within 18 months after the rule becomes effective.

Additionally, within 3 years after the rule becomes effective (unless an alternate schedule is approved), current licensees would have to correct all unacceptable performance deficiencies identified in the ISA. Pending the correction of unacceptable performance deficiencies, the licensee would have to implement appropriate compensatory measures to ensure adequate protection.

A PRA is a systematic methodology to evaluate risks associated with complex technologies, often applied to light water power reactors licensed under 10 CFR part 50. A PRA usually answers three basic questions: What can go wrong, how severe are the consequences, and what are their probabilities or frequencies? The Commission has published a policy statement on the use of PRA entitled “Use of Probabilistic Risk Assessment Methods In Nuclear Regulatory Activities,” dated August 10, 1995.

The proposed rule does not contain a provision for using a PRA. However, the Commission has directed the staff to seek public comments on the potential challenges and impacts regarding the use of PRA methodology at facilities licensed under 10 CFR part 40. Additional information on PRA is available in documents related to the review conducted by the Advisory Committee on Reactor Safeguards including:

1. December 15, 2010, staff document entitled “A Comparison of Integrated Safety Analysis and Probabilistic Risk Assessment” (accession number ML103330478); and

2. February 17, 2011, ACRS response letter entitled “Comparison of Integrated Safety Analysis (ISA) and Probabilistic Risk Assessment (PRA) for Fuel Cycle Facilities” (accession number ML110460328).

Comments on this issue may be submitted as described in theADDRESSESsection of this document.

The NRC staff has prepared a regulatory analysis for this rulemaking. This analysis shows an estimated annual cost of $119,000 for each NRC licensee and $17,000 for the NRC from this proposed rule. The cost to Agreement States to implement this rule was estimated to be minimal; therefore, the cost to Agreement States was not quantified in the regulatory analysis supporting the rule.

This proposed rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq). The NRC staff has estimated the impact that this proposed rule will have on reporting and recordkeeping requirements for NRC licenses. There are no reporting or recordkeeping requirements for the Agreement State licensees. The NRC is seeking public comment on these proposed requirements. More information on this subject is in Section X, Paperwork Reduction Act Statement, of this document.

Tips for preparing your comments. When submitting your comments, remember to:

i. Identify the rulemaking (RIN 3150-AI50), Docket ID NRC-2009-0079.

ii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iii. Describe any assumptions and provide any technical information and/or data that you used.

iv. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

v. Provide specific examples to illustrate your concerns, and suggest alternatives.

vi. Explain your views as clearly as possible.

vii. Make sure to submit your comments by the comment period deadline identified.

viii. See Section VII for the request for comments on the use of plain language, Section X for the request for comments on the information collection, and Section XI for the request for comments on the draft regulatory analysis.

The format of the requirements contained in 10 CFR part 40 would be administratively restructured to conform to the structures of other parts in 10 CFR. Currently 10 CFR part 40 has undesignated subject headings preceding related sections. This proposed rule would replace the undesignated subject headings with specific lettered and titled subparts. In addition to this administrative restructuring, a new subpart H would be added to 10 CFR part 40, titled “Additional Requirements for Certain Licensees Authorized to Possess 2000 Kilograms (4400 lb) or More of Uranium Hexafluoride.” The proposed new 10 CFR part 40 subpart H would be similar to the existing subpart H to 10 CFR part 70.

This new section would specify that Agreement States lack regulatory authority over persons who possess or plan to possess 2000 kg or more of UF6. This section would not apply to facilities in Agreement States that are undergoing decommissioning as of the effective date of this regulation. The NRC would be the sole licensing authority for all classes of licensees who possess or plan to possess 2000 kg or more of UF6 (including generally and specifically licensed activities), and the NRC would thus hold licensing authority for all radiological activities of such licensees. This proposed requirement is consistent with the Commission's direction in SRM-M070308B, dated March 22, 2007, and the letter that the NRC sent to all the Agreement States (FSME-07-036), dated April 13, 2007, informing them that the NRC “will regulate future major fuel cycle facilities licensed under 10 CFR part 40,e.g.,uranium conversion and deconversion facilities.” The proposed requirement is similar to the existing § 72.8 requirement.

Definitions of the following 11 terms used in the new subpart H would be added to § 40.4: “Acute,” “Available and reliable to perform their function when needed, “Configuration management,” “Defense-in-depth practices,” “Hazardous chemicals produced from licensed materials,” “Integrated safety analysis,” “Integrated safety analysis summary,” “Items relied on for safety,” “Management measures,” “Unacceptable performance deficiencies,” and “Worker.”

Except as specified below, these terms are defined the same as those used in 10 CFR part 70, subpart H. Language referencing criticality events was removed from the definitions for “integrated safety analysis” and “unacceptable performance deficiencies” because 10 CFR part 40 licensees do not possess special nuclear material in concentrations where criticality events are possible. The proposed “defense-in-depth” definition originates from the footnote in § 70.64 that describes what defense-in-depth means.

Paragraph (b) of this section would be amended to add the applicable sections in the new subpart H and to reflect the administrative renumbering of 10 CFR part 40.

Paragraph (c)(1) of this section would be amended to add the applicable sections in the new subpart H and to reflect the administrative renumbering of 10 CFR part 40.

This new section would list the types of NRC licensees or applicants who would be subject to the new subpart H. The new requirements would apply to all applicants or licensees that are or plan to be authorized to possess 2000 kg or more of UF6. In general, the new subpart is intended to ensure that significant accidents, that are possible at 10 CFR part 40 fuel cycle facilities authorized to possess 2000 kg or more of UF6 have been analyzed in advance and that appropriate controls or measures are established to ensure adequate protection of workers, the public, and the environment.

The requirements and provisions in subpart H are in addition to, and not a substitute for, other applicable requirements, including those of the EPA and the U.S. Department of Labor, OSHA. The proposed NRC requirements would only apply to NRC's areas of responsibility (radiological safety and chemical safety directly related to licensed radioactive material). In this regard, the proposed requirements for hazards and accident analyses are intended to complement but not supersede any parallel OSHA and EPA regulations.

The new requirements in subpart H would not apply to licensees who, as of the effective date of the final rule, are undergoing decommissioning under the provisions of § 40.42. The NRC notes that existing § 40.42(g)(4)(iii) states that a proposed decommissioning plan (DP) must include “a description of methods used to ensure protection of workers and the environment against radiation hazards during decommissioning.” Because the DP is submitted for NRC approval before initiation of procedures and activities necessary to carry out decommissioning of the site or separate building or outdoor area, the DP will continue to be the vehicle for regulatory approval of the licensee's practices for protection of health and safety during decommissioning. The ISA should provide valuable information with respect to developing the DP and the use of the ISA in this manner is encouraged.

This new section would explicitly address potential radiological and chemical exposures to workers or members of the public and environmental releases as a result of accidents. The requirements in 10 CFR part 20 continue to be NRC's general standard for protection of workers and the public from licensed activities during normal operations and accidents. Although it is the NRC's intent that the regulations in 10 CFR part 20 also be observed to the extent practicable during an emergency, it is not the NRC's intent that the 10 CFR part 20 requirements apply as the design standard for all possible facility accidents, irrespective of the likelihood of those accidents. Because accidents are unanticipated events that usually occur over a relatively short period of time, the proposed changes to 10 CFR part 40 seek to assure adequate protection of workers, members of the public, and the environment by limiting the risk (combined likelihood and consequence) of accidents.

Two risk-informed performance requirements are being proposed, both of which are set out in § 40.81: (1) Paragraph (b) states that high-consequence events must meet a likelihood standard of highly unlikely; and (2) paragraph (c) states that intermediate-consequence events mustmeet a likelihood standard of unlikely. The term “performance requirements” thus considers together consequences and likelihood. For regulatory purposes, each performance requirement is considered an equivalent level of risk. For example, the acceptable likelihood of intermediate-consequence events is allowed to be greater than the acceptable likelihood for high-consequence events.

Section 40.81(a).A risk-informed approach must consider not only the consequences of potential accidents, but also their likelihood of occurrence. As mentioned above, the performance requirements rely on the terms “unlikely” and “highly unlikely” to focus on the risk of accidents. However, the NRC has decided not to include in the proposed rule quantitative definitions of the terms “unlikely” and “highly unlikely,” because a single definition for each term that would apply to all the facilities regulated by 10 CFR part 40 may not be appropriate. Depending on the type of facility and its complexity, the number of potential accidents and their consequences could differ markedly. Therefore, to ensure that the overall facility risk from accidents is acceptable for different types of facilities, the rule requires applicants to develop, for NRC approval, the meaning of “unlikely” and “highly unlikely” specific to their processes and facility (see discussion of § 40.84 in this document). Guidance documents are being developed to provide examples of acceptable approaches for the meaning of “unlikely” and “highly unlikely” that can be applied to existing 10 CFR part 40 fuel cycle facilities authorized to possess 2000 kg or more of UF6.

The general approach for complying with the performance requirements is that, at the time of licensing, each hazard (e.g.,fire, chemical, electrical, industrial) that can potentially affect either radiological health and safety, or chemical safety associated with hazardous chemicals produced from licensed material, is identified and evaluated by the licensee or applicant in an ISA. The impact of accidents, both internal and external, associated with these hazards is compared with the two performance requirements. Any (and all) structures, systems, components, or human actions, for which credit is taken in the ISA for mitigating (reducing the consequence of) or preventing (reducing the likelihood of) the accident such that the two performance requirements are satisfied, must be identified as an “item relied on for safety” (IROFS). Under this approach, the licensee or applicant has a great deal of flexibility in selecting and identifying the actual “items.” For example, IROFS can be defined at the systems-level, component-level, or sub-component level. “Management measures” (see discussion of § 40.82(d) in this document) are applied to IROFS in a graded fashion to ensure that the item will perform its safety function when needed. The combination of the set of “items relied on for safety” and the “management measures” applied to each item will determine the extent of the licensee's programmatic and design requirements, consistent with the facility risk, and will ensure that at any given time, the facility risk is maintained safe and protected from accidents.

The proposed performance requirements also address certain hazardous chemicals produced from licensed nuclear material. The question of the extent of NRC's authority to regulate chemical hazards at its fuel cycle facilities was raised after the Sequoyah Fuels accident discussed above, which resulted in a worker fatality. The cause of the worker's death was the inhalation of HF gas, which was produced from the chemical reaction of UF6 and water (present as humidity in air). Partly as a result of the coordinated Federal response and resulting Congressional investigation into that accident, the NRC and the OSHA entered into an MOU in 1988 that clarified the agencies' interpretations of their respective responsibilities for the regulation of chemical hazards at nuclear facilities. The MOU identified the following four areas of responsibility. Generally, the NRC covers the first three areas, whereas OSHA covers the fourth area:

(1) Radiation risk produced by radioactive materials;

(2) Chemical risk produced by radioactive materials;

(3) Plant conditions that affect the safety of radioactive materials; and

(4) Plant conditions that result in an occupational risk, but do not affect the safety of licensed radioactive materials.

One goal of the proposed performance requirements in § 40.81 is to be consistent with the NRC-OSHA MOU. Therefore, the performance requirements in § 40.81 include explicit standards for the MOU's first two areas of responsibility. In addition, the third MOU area of responsibility is specifically evaluated by licensees under the ISA requirements of § 40.82(c)(1)(iii). As an example of the third MOU area, if the failure of a chemical system adjacent to a nuclear system could affect the safety of the nuclear system such that the radiation dose (and associated likelihood of that accident) exceeded a performance requirement, the chemical system failure would be within the scope of the ISA and the means to prevent the chemical system failure from impacting the nuclear system would be within the NRC's regulatory purview.

Within each performance requirement, the NRC recognizes that the proposed radiological standards are more restrictive, in terms of acute health effects to workers or the public, than the chemical standards for a given consequence (high or intermediate). This is consistent with the NRC's current regulatory practice. The choice of each criterion is discussed in a paragraph-by-paragraph discussion of § 40.81(b) through (e) in this document.

The use of any of the performance requirements is not intended to imply that the specified worker or public radiation dose or chemical exposure constitutes an acceptable criterion for a maximum allowed dose to a worker or the public. Rather, these values have been proposed in this section as a reference value, to be used by licensees in the ISA (a forward-looking analysis) to establish controls (i.e.,items relied on for safety (IROFS) and associated management measures) necessary to protect workers from potential accidents with low or exceedingly low probabilities of occurrence that are not expected to occur during the operating life of the facility.

Section 40.81(b).This provision addresses performance requirements for “high-consequence events.” Such events include accidental radiological or chemical exposure of a worker or an individual located outside of the controlled area, and would involve exposure to high levels of radiation or hazardous chemicals produced from licensed materials. A high-consequence radiological accident, if it occurred, would produce radiation doses to a worker or an individual located outside of the controlled area at levels causing clinically observable biological damage. A high-consequence chemical accident would involve concentrations of hazardous chemicals produced from licensed material, and would be severe enough to cause death or life-threatening injury. The goal is to ensure an acceptable level of risk by limiting the combination of the likelihood of occurrence and the identified consequences. Thus, high-consequence events must be sufficiently mitigated to a lower consequence or prevented such that the event is highly unlikely to occur. The application of “items relied on for safety” provides this prevention or mitigation function.

Section 40.81(b)(1).An acute exposure of a worker to a radiation dose of 1 Sv (100 rem) or greater total effective dose equivalent (TEDE) is considered to be a high-consequence event. According to the National Council on Radiation Protection and Measurements (NCRP, 1971), life-saving actions—including the “search for and removal of injured persons, or entry to prevent conditions that would probably injure numbers of people”—should be undertaken only when the “planned dose to the whole body shall not exceed 100 rems.” This is consistent with a later NCRP position (NCRP, 1987) on emergency occupational exposures, that states “when the exposure may approach or exceed 1 Gy (100 rad) of low-LET [linear energy transfer] radiation (or an equivalent high-LET exposure) to a large portion of the body, in a short time, the worker needs to understand not only the potential for acute effects but he or she should also have an appreciation of the substantial increase in his or her lifetime risk of cancer.”

Section 40.81(b)(2).The exposure of an individual located outside of the controlled area to a radiation dose of 0.25 Sv (25 rem) or greater TEDE is considered a high-consequence event. This is generally consistent with the criterion established in 10 CFR 100.11, “Determination of exclusion area, low population zone, and population center distance,” and 10 CFR 50.34, “Contents of applications; technical information,” in which a whole-body dose of 0.25 Sv (25 rem) is used to determine the dimensions of the exclusion area and low-population zone required for siting nuclear power reactors.

Section 40.81(b)(3).The intake of 30 mg of soluble uranium by an individual located outside of the controlled area is considered a high-consequence event. This value is consistent with the performance requirements in § 70.61 which applies to fuel cycle facilities. Additionally, the use of this value is consistent with the selection of 30 mg of uranium as a criterion during the 10 CFR part 76 rulemaking (59 FR 48944; September 23, 1994).

Section 40.81(b)(4).An acute chemical exposure to hazardous chemicals produced from licensed material at concentrations that either (1) could cause death or life-threatening injuries to a worker; or (2) could cause irreversible health effects to an individual located outside of the controlled area, is considered a high-consequence event. Chemical consequence criteria corresponding to anticipated adverse health effects to humans from acute exposures (i.e.,a single exposure or multiple exposures occurring within a short time-24 hours or less) have been developed, or are under development, as discussed in Section II, question H above.

The qualitative language in § 40.81(b)(4) allows the applicant/licensee to propose and adopt an appropriate standard, which may be an AEGL or ERPG standard. Where no AEGL or ERPG is available, the applicant/licensee may develop or adopt a criterion that is comparable in severity to those that have been established for other chemicals. This approach is currently being used in 10 CFR part 70 for fuel cycle facilities.

Section 40.81(c).This provision addresses performance requirements for “intermediate-consequence events,” which would be of a lower magnitude than high consequence events, and thus not involve risk of death or life-threatening injury. Intermediate-consequence events include accidental radiological or chemical exposure of a worker or an individual located outside of the controlled area and would involve exposure to levels of radiation or hazardous chemicals produced from licensed materials that generally correspond to permanent injury to a worker or transient injury to a non-worker. An intermediate-consequence event is also specified as including significant releases of radioactive material to the environment.

The goal is to ensure an acceptable level of risk by limiting the combination of the likelihood of occurrence and the identified consequences. Thus, “intermediate consequence events” must be sufficiently mitigated to a lower consequence or prevented such that the event is unlikely to occur. The application of “items relied on for safety” provides this prevention or mitigation function.

Section 40.81(c)(1).A worker radiation dose between 0.25 Sv (25 rem) and 1 Sv (100 rem) TEDE is considered an intermediate-consequence event. This value was chosen because of the use of 0.25 Sv (25 rem) as a criterion in existing NRC regulations. For example, in 10 CFR 20.2202, “Notification of incidents,” immediate notification is required of a licensee if an individual receives “* * * a total effective dose equivalent of 0.25 Sv (25 rem) or more.” Also, in 10 CFR 20.1206, “Planned special exposures,” a licensee may authorize an adult worker to receive a dose in excess of normal occupational exposure limits if a dose of this magnitude does not exceed 5 times the annual dose limits [i.e.,0.25 Sv (25 rem)] during an individual's lifetime. In addition, EPA's Protective Action Guides (U.S. Environmental Protection Agency, 1992) and NRC's regulatory guidance (Regulatory Guide 8.29, “Instruction Concerning Risks from Occupational Radiation Exposure” 1996) identify 0.25 Sv (25 rem) as the whole-body dose limit to workers for life-saving actions and protection of large populations. The NCRP has also stated that a TEDE of 0.25 Sv (25 rem) corresponds to the once-in-a-lifetime accidental or emergency dose for workers.

Section 40.81(c)(2).A dose to any individual located outside of the controlled area between 0.05 Sv (5 rem) and 0.25 Sv (25 rem) is considered an intermediate-consequence event. The NRC has used a 0.05-Sv (5-rem) exposure criterion in a number of its existing regulations. For example, 10 CFR 72.106, “Controlled area of an ISFSI or MRS,” states that “Any individual located on or beyond the nearest boundary of the controlled area shall not receive a dose greater than 5 rem to the whole body or any organ from any design basis accident.” In addition, in the regulation of the above-ground portion of a proposed geologic repository, 10 CFR 60.136, “Preclosure controlled areas,” states that “for [accidents], no individual located on or beyond any point on the boundary of the preclosure controlled area will receive a total effective dose equivalent of 5 rem.” A TEDE of 0.05 Sv (5 rem) is also the upper limit of EPA's Protective Action Guides of between 0.01 to 0.05 Sv (1 to 5 rem) for emergency evacuation of members of the public in the event of an accidental release that could result in inhalation, ingestion, or absorption of radioactive materials.

Section 40.81(c)(3).The release of radioactive material to the environment outside the restricted area in concentrations that, if averaged over a period of 24 hours, exceed 5000 times the values specified in Table 2 of Appendix B to 10 CFR part 20, is considered an intermediate-consequence event. In contrast to the other consequences criteria that directly protect workers and members of the public, the intent of this criterion is to minimize the environmental impacts. The value established for this consequence criterion is identical to the NRC Abnormal Occurrence (AO) criterion that addresses the discharge or dispersal of radioactive material from its intended place of confinement (Section 208 of the Energy Reorganization Act of 1974, as amended, requires that AOs be reported to Congress annually). In particular, the AO reporting Criterion 1.B requires the reporting of an eventthat involves “* * * the release of radioactive material to an unrestricted area in concentrations which, if averaged over a period of 24 hours, exceed 5000 times the values specified in Table 2 of Appendix B to 10 CFR part 20, unless the licensee has demonstrated compliance with 10 CFR 20.1301 using 10 CFR 20.1302(b)(1) or 10 CFR 20.1302(b)(2)(ii)” [October 12, 2006, 71 FR 60199]. The concentrations listed in Table 2 of Appendix B to 10 CFR part 20 apply to radioactive materials in air and water effluents to unrestricted areas. The NRC established these concentrations based on an implicit effective dose equivalent limit of 0.5 mSv/yr (50 mrem/yr) for each medium, assuming an individual was continuously exposed to the listed concentrations present in an unrestricted area for a year. If an individual were continuously exposed for 1 day to concentrations of radioactive material 5000 times greater than the values listed in Appendix B to 10 CFR part 20, the projected dose would be about 6.8 mSv (680 mrem), or 5,000 × 0.5 mSv/yr × 1 day × 1 yr/365 days. In addition, a release of radioactive material, from a facility, resulting in these concentrations, would be expected to cause some contamination of property in the area affected by the release, with a resultant potential for further adverse health effects and loss of use. This contamination would pose a longer-term hazard to members of the public until it was properly remediated. Depending on the extent of contamination caused by such a release, the contamination could require considerable licensee resources to remediate. For these reasons, the NRC considered the existing AO reporting criterion for discharge or dispersal of radioactive material as an appropriate consequence criterion in this rulemaking.

Section 40.81(c)(4).An acute chemical exposure to hazardous chemicals produced from licensed material at concentrations that either: (1) Could cause irreversible health effects to a worker, or (2) could cause notable discomfort to an individual located outside of the controlled area, is considered an intermediate-consequence event. As stated in the § 40.81(b)(4) discussion, effects on humans from acute exposures to chemicals are being developed by a number of organizations. Two existing standards, AEGL-2 and ERPG-2, can be used to define the concentration level for irreversible health effects, and two existing standards, AEGL-1 and ERPG-1, can be used to define the concentration level for notable discomfort. The qualitative language in § 40.81(c)(4) allows the applicant/licensee to adopt and propose an appropriate standard, which may be an AEGL or ERPG standard. Where no such standard exists, the applicant/licensee may develop or adopt a criterion that is comparable in severity to those that have been established for other chemicals.

Section 40.81(d).This provision addresses IROFS and management measures. Paragraph (d) would require that each engineered or administrative control or control system that is needed to meet the performance requirements be designated as an item relied on for safety. This means that any control or control system that is necessary to maintain the acceptable combination of consequence and likelihood for an accident is designated an item relied on for safety. The importance of this section is that, once a control is designated as an item relied on for safety, it falls into the envelope of the safety program required by § 40.82. For example, records will be kept regarding the item, and management measures such as the configuration control program are applied to the item and to changes that affect the item, to ensure that the item will be available and reliable to perform its function when needed. The failure of an item relied on for safety does not necessarily mean that an accident will occur which will cause one of the consequences listed in the performance requirements to be exceeded.

Some control systems may have parallel (redundant or diverse) control systems that would continue to prevent the accident. The need for such defense-in-depth and single-failure resistance would ideally be based on the severity and likelihood of the potential accident. In other cases, the failure of an item may mean that the particular accident sequence is no longer “highly unlikely,” or “unlikely.” In these cases, the performance requirement is not met, and the expectation would be that a management measure would exist (possibly in the form of an operating procedure) that ensured that the facility would not operate in a condition that exceeds the performance requirement. For example, a facility that relies on emergency power could not operate for an extended time in the absence of an emergency power source even if grid power is available. In this manner, the IROFS and the management measures complement each other to ensure adequate protection from accidents at any given time.

Section 40.81(e).This provision addresses the term “controlled area” as defined in 10 CFR part 20 and as used in the performance requirements discussed above. Section 40.81(e) requires licensees to identify a controlled area consistent with the use of that term in 10 CFR part 20, and provides clarification regarding the activities that may occur inside the controlled area. The function of this term is to delimit an area over which the licensee exercises control of activities. Control includes the power to exclude individuals, if necessary.

The size of the controlled area is not specified in the regulation because it will be dependent upon the particular activities that are conducted at the site and their relationship to the licensed activities. Individuals who do not receive an “occupational dose” (as defined in 10 CFR part 20) in the controlled area will be subject to the dose limits for members of the public in 10 CFR 20.1301. However, the Commission recognizes that certain licensees may have ongoing activities at their site (i.e.,within the controlled area) that are not related to the licensed activities. For example, a non-nuclear facility may be adjacent to the nuclear facility but both are within the controlled area (which may be defined similar to the site boundary). This raises a question regarding the appropriate accident standard for these individuals.

Protection of members of the public within the controlled area boundary (e.g.,individuals working at a co-located non-nuclear facility) must consider that the fast-acting nature of many potential accidents at a UF6 facility covered by these proposed requirements is such that there will not be sufficient time to evacuate such individuals from the controlled area. Therefore, for purposes of the ISA accident evaluation, the rule explicitly contains two options to adequately protect these individuals (as well as an implicit third option). For the first option in § 40.81(e)(1), the licensee must demonstrate, in the ISA, that the risk to members of the public within the controlled area boundary does not exceed the performance requirements. For the second option in § 40.81(e)(2), the licensee must ensure that members of the public within the controlled area boundary are aware of the risks posed by potential accidents at the nuclear facility, and have received appropriate training and access to information. The NRC views the § 40.81(e) requirement as being consistent with the 10 CFR part 50 definition of “Exclusion area,” which states in relevant part that: “Activities unrelated to operation of the reactor may be permitted in an exclusion areaunder appropriate limitations, provided that no significant hazards to the public health and safety will result.”

The implied third option is to define (or redefine) a controlled area, such that within it, only activities associated with the licensed nuclear facility are permitted. The NRC's intent is that the ISA need not evaluate compliance with the accident standards for individuals who make infrequent visits to the controlled area and restricted area (e.g.,visitors). Use of the ISA to determine the risks to these individuals would need to consider second-order effects such as the probability of the individual being present at the time that the unlikely (or highly unlikely) accident occurred. This level of detail is unnecessary to accomplish the purpose of this rule (viz., to document and maintain the safety basis of the facility design and operations). Application of the 10 CFR part 20 regulations provides adequate protection for these individuals. In addition, the provisions (i.e.,performance requirements) to protect workers and non-workers during accidents should, implicitly, provide a degree of protection to the infrequently present individuals.

This new section would specify the safety program that licensees would be required to implement at covered UF6 facilities, including the performance of an ISA, and establishment of management measures. The performance of an ISA and the establishment of measures to ensure the availability and reliability of IROFS when needed are the means by which licensees would demonstrate an adequate level of protection at their UF6 facilities. The ISA is a systematic analysis to identify plant and external hazards and their potential for initiating accident sequences; the potential accident sequences and their consequences; and the site, structures, systems, equipment, components, and activities of personnel relied on for safety. As used here, an “integrated” analysis means joint consideration of, and protection from, all relevant hazards, including radiological, fire, and chemical. The structure of the safety program recognizes the critical role that the ISA plays in identifying potential accidents and the IROFS. However, it also recognizes that the performance of the ISA, by itself, will not ensure adequate protection. Instead, an effective management system is needed to ensure that the IROFS are available and reliable to perform their function when needed. Detailed requirements for each part of the safety program are included in this section.

Section 40.82(a).Each licensee would be required to establish and maintain a safety program that demonstrates compliance with the performance requirements of § 40.81. Although the ISA would be the primary tool in identifying the potential accidents requiring consequence mitigation and accident prevention, process safety information would be used to develop the ISA, and management measures would be used to ensure the availability and reliability of IROFS identified through the ISA. The management measures may be graded according to the risk importance associated with an IROFS.

The licensee is also required to establish and maintain records demonstrating that it has met, and continues to meet, the requirements of this section. These records serve two major purposes. First, they can supplement information that has been submitted as part of the license application. Second, records are often needed to demonstrate licensee compliance with applicable regulations and license commitments. It is important, therefore, that an appropriate system of recordkeeping be implemented to allow easy retrieval of required information.

Section 40.82(b).This provision would require the licensee to maintain process-safety information pertaining to the hazards of the materials used or produced from licensed materials, the technology of the process, and the equipment in the process. The NRC's confidence in the margin of safety at its licensed facilities depends, in part, on the ability of licensees to maintain a set of current, accurate, and complete records available for NRC inspection. The process-safety information should be used in support of development of an ISA.

Section 40.82(c).This provision proposes requirements for conducting an ISA. There are four major steps in performing an ISA:

(1) Identify all hazards at the facility, including both radiological and non-radiological hazards. Hazardous materials, their location, and quantities, should be identified, as well as all hazardous conditions, such as high temperature and high pressure. In addition, any interactions that could result in the generation of hazardous materials or conditions should be identified.

(2) Analyze the hazards to identify how they might result in potential accidents. These accidents could be caused by process deviations or other events internal to the plant, or by credible external events, including natural phenomena such as floods, earthquakes,etc.To accomplish the task of identifying potential accidents, the licensee needs to ensure that detailed and accurate information about plant processes is maintained and made available to the personnel performing the ISA.

(3) Determine the consequences of each accident that has been identified. For an accident with consequences at a “high” or “intermediate level,” as defined in § 40.81, the likelihood of such an accident must be shown to be commensurate with the consequences, as required in § 40.81.

(4) Identify the IROFS (i.e.,those items that are relied on to prevent accidents or to mitigate their consequences, identified in the ISA). These IROFS are needed to reduce the consequences or likelihood of the accidents to acceptable levels. The identification of IROFS is required only for accidents with consequences at a high or intermediate level, as defined in § 40.81.

It is expected that the licensee or applicant would perform the ISA using a “team” of individuals with expertise in engineering and process operations related to the system being evaluated. The team should include persons with experience in radiation safety, fire safety, and chemical process safety, as warranted by the materials and potential hazards associated with the process being evaluated. At least one member of the ISA team should be an individual who has experience and knowledge that is specific to the process being evaluated. Finally, at least one individual in the team must be knowledgeable in the specific ISA methodology being used.

Current 10 CFR part 40 licensees covered by the proposed rule would be required to develop plans and submit them to the NRC within 3 months of the effective date of the rule. Each plan would identify the processes that would be subject to an ISA, the ISA approach that would be implemented for each process and the schedule for completing the analysis of each process. Licensees would be expected to complete their ISA within the required time, correct any unacceptable vulnerabilities identified, and submit the results to the NRC for approval in the form of an ISA summary that contains the information required by § 40.84(b). Pending the correction of any unacceptable vulnerabilities, licensees would be expected to implement appropriate compensatory measures to ensure adequate protection until thevulnerability can be more appropriately corrected.

Applicants for licenses to operate new facilities or new processes at existing facilities would be expected to design their facilities or processes to protect against the occurrence of the adverse consequences identified in § 40.81, using the baseline design criteria specified in § 40.83(a). Before operation, applicants would be expected to update their ISAs, based on as-built conditions and submit the results to the NRC as ISA summaries, along with the applications, following the requirements in § 40.84(b).

Section 40.82(d).This provision proposes requirements to establish management measures. Although the ISA would play a critical role in identifying potential accidents and the IROFS, the performance of an ISA would not, by itself, ensure adequate protection. Thus, in addition to performing an ISA, management measures need to be established to ensure that an effective management system is in place such that IROFS will be available and reliable to perform their function when needed.

As indicated, management measures are functions performed by the licensee, in general on a continuing basis that are applied to IROFS. Management measures address topics such as: (a) Configuration management, (b) maintenance, (c) training and qualifications, (d) procedures, (e) audits and assessments, (f) incident investigations, (g) records management, and (h) other quality assurance elements. For example, changes in a UF6 facility's configuration need to be carefully controlled to ensure consistency among the facility design and operational requirements, the physical configuration, and the facility documentation. Maintenance measures must be in place to ensure the availability and reliability of all IROFS. Training measures must be established to ensure that all personnel relied on for safety are appropriately trained to perform their safety functions. Periodic audits and assessments of licensee safety programs must be performed to ensure that facility operations are conducted in a manner that will adequately protect the worker, the public health and safety, and the environment. When abnormal events occur, investigations of those events must be carried out to determine the root cause and identify corrective actions to prevent their recurrence; this will better ensure that such events do not lead to more serious consequences. To demonstrate compliance with NRC regulations, records that document safety program activities must be maintained for the life of the facility.

The phrase “when needed” is used in § 40.82(d) to acknowledge that a particular safety control need not be continuously functioning. For example, such a control may not be operational during maintenance or calibration testing or may not be required when the process is not operational. But this “when needed” concept does not relieve a licensee from compliance with the performance requirements. For example, if a particular component is out for maintenance, the licensee must consider credible event sequences which may occur under the new conditions, when developing the ISA and identifying IROFS.

This new section specifies the baseline design criteria (BDC) that licensees of new UF6 facilities would be required to meet and that licensees of existing UF6 facilities would be required to meet when adding new processes to existing facilities. The BDC are based on the existing criteria in 10 CFR 70.64.

Section 40.83(a).This provision would specify nine initial safety design considerations: (1) Quality standards and records; (2) natural phenomena hazards; (3) fire protection; (4) environmental and dynamic effects; (5) chemical protection; (6) emergency capability; (7) utility services; (8) inspection, testing, and maintenance; and (9) instrumentation and controls. Each proposed BDC is discussed below.

(1) The quality standards and records BDC would need to be developed and implemented in accordance with management measures. Management measures that would be applied include the development and implementation of the design to provide adequate assurance that the IROFS are adequate and available when called upon. References to specific, definitive, and adequate commitments in other parts of the submittal, such as management measures, industry programs, or consensus standards may be sufficient. Information would need to be provided as to how appropriate records would be maintained.

(2) The natural phenomena hazards BDC would have to provide for adequate protection against natural phenomena with consideration of the most severe documented historical events for the site. The criteria would have to specifically address how natural phenomena such as earthquakes and volcanoes, stream flooding, coastal flooding, winds (including tornadoes), ice and snow loadings, and temperature extremes were considered in designing the new facility, or adding to an existing facility.

(3) The fire protection BDC would have to provide for adequate protection against fires and explosions. As appropriate, the criteria would need to address how the design considered (a) the use of fire hazards analyses in the ISA and pre-fire planning; (b) the facility design in regard to building construction, fire areas, life safety, and ventilation; (c) process fire safety including explosion protection; (d) fire protection systems including detection and suppression; and e) manual fire suppression capability.

(4) The environmental and dynamic effects BDC would have to address adequate protection from environmental conditions and dynamic effects associated with normal operations, maintenance, testing, and postulated accidents that could lead to the loss of safety functions. The design would have to ensure that IROFS will perform their safety functions under the environmental and dynamic service conditions in which they would be required to function and for the length of time their function would be required. The criteria would also have to include how the design ensures that non-IROFS will not prevent satisfactory accomplishment of safety functions of IROFS.

(5) The chemical protection BDC would have to address adequate protection against chemical risks produced from licensed material, facility conditions which affect safety of licensed material, and hazardous chemicals produced from licensed material.

(6) The emergency capability BDC would have to address how the design of the new facility or process provides for the emergency capability to maintain control of licensed material and hazardous chemicals produced from licensed material during an event. It would also have to address the evacuation of on-site personnel including the design of the facility to allow personnel to evacuate (e.g.,time, dose, ease of egress) as well as onsite emergency facilities and services that facilitate the use of available offsite services.

(7) The utility services BDC would have to address how the design of the new facility or process provides for the continued operation of essential utility services. Essential utilities are the support systems that provide for the safety function of the IROFS;e.g.,power, air supply, ventilation. The BDCwould have to address methods to ensure continued operation of essential utilities during emergency events.

(8) The inspection, testing, and maintenance BDC would have to address how the design of the new facility or process provides for adequate inspection, testing, and maintenance of IROFS to ensure their availability and reliability to perform their function when needed. The criteria would need to address the possible methods to provide adequate inspection, testing, and maintenance to ensure their availability and reliability. This would need to include the capability for periodic testing and inspection to assess the operability and performance of IROFS, the capability to test the functions of IROFS such as active engineered controls as a completed functioning system and under appropriate design conditions, and the capability to perform needed maintenance actions or to identify system or component maintenance needs to assure availability of IROFS features that are relied upon in the ISA to meet § 40.81 performance requirements.

(9) The instrumentation and controls BDC would have to address the inclusion of these systems in the implementation of IROFS. The criteria would need to include methods to monitor the behavior of IROFS such as failure detection diagnostics (e.g.,information read-out in the control room or locally for variables) and when the bypass indication for IROFS is intentionally rendered inoperable.

The BDC are generally an acceptable set of initial design safety considerations, which may not be sufficient to ensure adequate safety for all new processes and facilities. The BDC do not provide relief from compliance with the safety performance requirements of § 40.81. The ISA process is intended to identify additional safety features that may be needed. On the other hand, the NRC recognizes that there may be processes or facilities for which some of the BDC may not be necessary or appropriate, based on the results of the ISA. For these processes and facilities, any design features that are inconsistent with the BDC would need to be identified and justified.

Section 40.83(b).This new provision requires licensees to base their facility and system design and facility layout on practices. The facility and system design must incorporate, to the extent practicable: (1) Preference for the selection of engineered controls over administrative controls to increase overall system reliability, and (2) features that enhance safety by reducing challenges to IROFS. Using the BDC and defense-in-depth practices when building new facilities or adding to existing facilities should result in designs that provide successive levels of protection such that health and safety will not be wholly dependent on any single element of the design, construction, maintenance, or operation of the facility. The net effect of incorporating defense-in-depth practices is a conservatively designed facility and system that will exhibit greater tolerance for failures and external challenges. The risk insights obtained through performance of the ISA can then be used to supplement the final design by focusing attention on the prevention and mitigation of potential high-risk accidents.

In addition to the information that currently must be submitted to NRC under § 40.31, for a license application, this new section would specify additional information that must be submitted to demonstrate compliance with the proposed performance requirements. This additional information includes a description of the applicant's safety program and management measures established under § 40.82, and an ISA summary.

Section 40.84(a).This provision would require an applicant to submit, as part of the license application, a description of the applicant's safety program established under § 40.82. This is in addition to what is currently required in § 40.31, Application for specific license.

Section 40.84(b).This new provision supplements the existing requirements in § 40.31(j) to capture the additional hazards posed by operations involving 2000 kg or more of UF6. As previously discussed, accidents involving UF6 can produce HF, a highly reactive and corrosive chemical generated in gaseous form when UF6 interacts with moisture in the air. The HF presents a substantial inhalation and skin absorption hazard to both workers and the public, as clouds of HF can quickly move offsite. Thus, licensees authorized to possess 2000 kg or more of UF6 must either submit an evaluation in accordance with § 40.31(j)(1)(i) and this new provision or an emergency plan pursuant to § 40.31(j)(3). Compliance with this new provision would require the evaluation to also show that an acute chemical exposure from licensed material or hazardous chemicals produced from licensed material due to a release would not result in irreversible or mild transient health effects to a member of the public offsite. In performing such an evaluation, an applicant/licensee may use an AEGL or ERPG standard. This approach is currently being used by fuel cycle facility licensees subject to the 10 CFR part 70 ISA requirements.

Section 40.84(c).This provision would require that an ISA summary be submitted with the license or renewal application (and amendment application as necessary). The ISA summary would not be incorporated in the license.

The ISA summary would have to contain all the items specified below:

(1)Site:The site description in the ISA Summary will focus on those factors that could affect safety, such as meteorology (e.g.,high winds and flood potential) and seismology.

(2)Facility:The facility description in the ISA Summary will focus on areas that could affect safety, and will identify the controlled area boundaries.

(3)Processes, Hazards and Accident Sequences:The process description in the ISA Summary must address each process that was analyzed as part of the ISA. This description must include a list of the hazards for each process and the accident sequences that could result from such hazards.

(4)Demonstration of Compliance with § 40.81:The ISA Summary must demonstrate compliance with the performance requirements, and describe the management measures.

(5)Team Qualifications and ISA Methods:The ISA Summary must discuss the applicant's ISA team qualifications and ISA methods.

(6)List of IROFS:The ISA Summary must describe the IROFS for all intermediate- and high-consequence accidents in sufficient detail to permit an understanding of their safety function.

(7)Chemical Consequence Standards:The ISA Summary must describe the proposed quantitative standards for assessing the chemical consequence levels specified in § 40.81.

(8)List of Sole IROFS:The ISA Summary must identify those IROFS that are the sole item preventing or mitigating an accident for which the consequences could exceed the performance requirements of § 40.81.

(9)Definitions of “Unlikely”, “Highly Unlikely” and “Credible”:The ISA Summary must define the terms “unlikely,” “highly unlikely,” and “credible,” as used in the ISA.

The IROFS must be clearly and unambiguously listed in the ISA summary. This list of items is then managed and controlled by the applicant/licensee through themanagement measures required by § 40.82(d) to ensure that the IROFS continue to perform the safety function required. The NRC's review includes evaluating the ISA methodology, and the ISA summary, and may be supplemented by reviewing the ISA and other information, as needed, at the licensee's facility. This enables the NRC to better understand the potential hazards at the facility, how the applicant plans to address these hazards, and thereby have confidence in the safety basis supporting the license.

As previously indicated, the ISA summary would be required to be submitted on the docket in conjunction with the license application but would not be considered part of the license. The ISA, on which the ISA summary is based, would be maintained current at the licensee's facility and available for NRC review, but it would not be submitted and docketed. Although the ISA summary will be on the docket, it is not part of the license and can be changed without a license amendment, unless it reflects a change that cannot be made without prior approval, as specified in § 40.86(c) (discussed later in this document). However, the information used to perform the ISA, and the ISA summary, both form integral parts of the safety basis for issuance of the license and therefore must be maintained to adequately represent the current status of the facility.

This new section would focus on the factors the NRC would use to determine that requirements in §§ 40.80 through 40.85 have been met. These proposed new regulations are in addition to the existing licensing regulations being introduced into 10 CFR part 40 under the new subpart D.

Section 40.85(a).This provision would require the NRC to approve a license application from an applicant subject to the requirements of the proposed subpart H if the NRC determines that the applicant has complied with the requirements of subpart D of 10 CFR part 40 and §§ 40.80 through 40.85.

Section 40.85(b).This provision details the criteria that the NRC would use for approving ISA-related submissions by existing licensees (i.e.,such submissions will be approved if the integrated safety analysis approach and the schedule meet the specified requirements).

Section 40.85(c).This provision details the criteria the NRC would use for approving ISA summaries. These include determining if the requirements of § 40.84(b) are satisfied and based on the information in the ISA summary and if the performance requirements in § 40.81(b), (c) and (d) are satisfied.

This new section would specify the process for making changes to a UF6 facility's site, structures, systems, equipment, components, and activities of personnel after a license application has been approved. Past incidents at NRC-licensed facilities have been the result of improperly analyzed changes that were not authorized by licensee management or changes that were not adequately understood by facility personnel. Effective control of changes to a facility's site, structures, systems, equipment, components, and activities of personnel is a key element in better ensuring safe operation. Under this process, the licensee can make certain changes without NRC pre-approval. All changes made pursuant to this section must be reflected promptly in on-site documents. This approach is the one now applicable to fuel cycle facilities licensed under 10 CFR part 70.

Section 40.86(a).This provision would require the licensee to establish a configuration management system documented in written procedures to track operational changes made by the licensee. The system would have to assure that prior to implementing any change, its technical basis, impact on safety and other specified factors are evaluated.

Section 40.86(b).This provision would require the licensee, before implementing any change, to determine whether the change requires NRC pre-approval through the license amendment process.

Section 40.86(c).This provision would specify five types of changes that could not be implemented without prior NRC approval. Generally, such changes could have a significant impact on health and safety.

Section 40.86(d).For changes that are found not to require NRC pre-approval, the licensee would be required to submit to the NRC annually, within 30 days after the end of the calendar year, a brief summary of all such changes. For changes that affect the ISA summary, the licensee would be required to submit to the NRC annually, within 30 days after the end of the calendar year, revised ISA summary pages. These yearly updates would allow the NRC staff to maintain relatively current facility and safety information on the docket and to ensure that the ISA summary reflects the current configuration of the facility, thus facilitating the license renewal process (as discussed further in this document).

Section 40.86(e).Licensees who make changes under the provisions of this section would be required to promptly up-date all affected on-site documents.

Section 40.86(f).Records documenting facility changes would be maintained until termination of the license. Such records would include a written evaluation providing the bases for the determination that the changes do not require prior NRC pre-approval.

This new section would specify that license renewal applications may incorporate by reference information contained in previous applications, statements, or reports filed with the NRC, provided that these references are clear and specific. In the past, the license renewal process was burdensome to the NRC and the licensee, because all changes made to the facility since the last license renewal would be reviewed at one time. However, maintaining a “living license,” as required by proposed § 40.86, is expected to make the review of license renewal applications less burdensome since previously approved information could be incorporated with minimal re-evaluation.

This new section is based in part on existing Appendix A to 10 CFR part 70 and would establish event reporting requirements for licensees required to conduct ISAs. These requirements would become applicable after the ISA summary had been submitted. The required reports would have to be made by a knowledgeable licensee representative in a manner ensuring timely reporting of events, and licensees would have to provide reasonable assurance that a reliable communication link with the NRC Operations Center is maintained.

The reporting of events supports the NRC's need to be aware of conditions that could result in an imminent danger to the worker or to public health and safety or to the environment. In particular, the NRC needs to be aware of licensee efforts to address potential emergencies. Further, once safe conditions have been restored after an event, the NRC has an interest in disseminating information on the event to the nuclear industry and other interested parties, to reduce the likelihood that the event will occur in the future. Also, in the event of anaccident, the NRC must be able to respond accurately to requests for information by the public and the media. Event reporting helps the NRC evaluate the performance of individual licensees and the industry as a whole in order to fulfill its statutory mandate to protect the health and safety of the worker and the public.

Section 40.88(a).This provision would require licensees to report specified events to the NRC Operations Center within 1 hour of their discovery. These events would be: (1) An acute intake by an individual of 30 mg or greater of uranium in a soluble form; (2) An acute chemical exposure to an individual from licensed material or hazardous chemicals produced from licensed material that are high-consequence events under the performance requirements; and (3) An event or condition in which no IROFS remain available and reliable to perform their function. One-hour reports must be supplemented with additional information as it becomes available, and must be followed up by a written report to the NRC within 60 days.

Section 40.88(b).This provision would require licensees to report specified events to the NRC Operations Center within 24 hours of their discovery. These events are ones which result in: (1) The facility being in a state that was not analyzed, was improperly analyzed, or is different from that analyzed in the ISA, and which causes a failure to meet the performance requirements; (2) the loss or degradation of one or more IROFS that causes a failure to meet the performance requirements; and (3) an acute chemical exposure to an individual from licensed material or hazardous chemicals produced from licensed materials that is an intermediate consequence event under the performance requirements. Additional events that must be reported within 24 hours of their discovery are fires that have affected or may have affected one or more IROFS. Twenty-four hour reports must be supplemented with additional information as it becomes available, and must be followed up by a written report to the NRC within 60 days.

Section 40.88(c).This provision would pertain to situations involving a planned news release (or notification to another government agency) by the licensee, which relates to the health and safety of the public or onsite personnel. At the same time that the news release (or notification) is given, the licensee would have to also report the situation to the NRC Operations Center.

Section 40.88(d).This provision specifies information licensees would be required to include in their reports called in to the NRC Operations Center, such as: The caller's name; the date, time, and exact location of the event being reported; a description of the event; actions taken in response to the event; and whether the event is ongoing or has been terminated. The provision would further require that follow-up information be provided to the NRC Operations Center until all information required to be reported is complete.

Section 40.88(e).This provision would pertain to the written reports submitted under § 40.88(a) and (b). In addition to including the information required by § 40.88(d)(1), written reports would include: A discussion of the probable cause of the event, specific information regarding any equipment that failed or malfunctioned, any corrective actions taken to prevent future similar events, the results of any evaluations or assessments of the event, and a discussion of whether the event was previously identified and evaluated in the ISA.

This new section would establish backfit requirements similar to those in § 70.76. These requirements would apply to the subset of 10 CFR part 40 licensees authorized to possess significant quantities (2000 kilograms or more) of UF6. The backfit provision is being added in accordance with the Commission SRM dated November 30, 2010.

Section 40.89(a).This provision would make the backfit requirements applicable to licensees authorized to possess 2000 kilograms (4400 lb) or more of UF6, and its terms would become effective once such a licensee's ISA summary has been approved by the NRC. The proposed backfit requirements would not be applicable to 10 CFR part 40 licensees who are not authorized to possess 2000 kilograms or more of UF6.

Section 40.89(b).This provision would define backfitting as the modification of, or addition to: (1) Systems, structures, or components of a facility of a licensee subject to ISA requirements; or (2) the procedures or organization required to operate such a facility; any of which may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previous NRC staff position. This proposed definition is substantially similar as the one in existing § 70.76(a)(1).

Section 40.89(c).This provision contains identical backfit analysis requirements as in the existing § 70.76(a)(2) through (a)(7). Exceptions to requiring a backfit analysis would be listed in this provision and include: (1) Modifications necessary to bring a facility into compliance with subpart H, a license, the rules or orders of the Commission, or into conformance with written commitments by the licensee; (2) regulatory action necessary to ensure adequate protection to the health and safety of the public and is in accord with the common defense and security; or (3) the regulatory action involves defining or redefining what level of protection to the public health and safety or common defense and security should be regarded as adequate.

Other provisions in proposed § 40.89(c): (1) Would require the Commission to require backfitting of a facility if it is necessary to ensure adequate protection to the health and safety of the public; (2) would require the Commission to include a statement of the objectives and reasons for modifications when invoking the exception under § 40.89(a)(3); and (3) would allow, in most cases, for the licensee to choose its own way to achieve compliance with a license or the rules or orders of the Commission, or with written license commitments provided that the objective of compliance or adequate protection is met.

Section 40.89(d).This provision would require the Commission, in the determinations required by Paragraph (a)(2) of this section, to consider how the backfit would be scheduled in light of other ongoing regulatory activities at the facility, and follows the existing requirements in § 70.76(b). Additionally, this provision would require the Commission to consider specific information relevant to the backfit. These factors include: (1) The potential change in the risk to the public from the accidental release of radioactive material and hazardous chemicals produced from such material, and (2) the potential impact on facility employees from exposure to radioactive material and to hazardous chemicals produced from such material.

Section 40.89(e).This provision would prohibit withholding a license during the backfit analyses and is the same as existing § 70.76(c).

Section 40.89(f).This provision is the same as existing § 70.76(d) and would designate the Executive Director for Operations as the party responsible for its implementation. Additionally, it would require that all backfit analyses be approved by the Executive Director for Operations or his or her designee.

Existing § 40.82 would be re-designated as § 40.102. Additionally, Paragraph (b) of this section would be amended to add the applicable sections in the new subpart H and to reflect the administrative renumbering of 10 CFR part 40.

A new Paragraph (a)(10) would be added to support the NRC's determination that licensees who possess or plan to possess 2000 kg or more of UF6 would be exclusively under the NRC's jurisdiction. Since the events of September 11, 2001, major nuclear facilities with hazardous radioactive or chemical materials have received increased security oversight to address the potential heightened threat of sabotage and terrorist attacks. The complex procedural operations at these facilities involve hazardous chemicals as well as nuclear material, making it difficult to separate the additional common defense and security requirements from the program requirements designed to protect public health and safety. The NRC is the only regulatory agency, under the AEA, that is authorized to implement such a unified program.

For the purpose of Section 223 of the AEA, the Commission is proposing to amend 10 CFR part 40 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal enforcement.

This proposed rule applies only to NRC licensees and therefore contains no components that have Agreement State compatibility.

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

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies, unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this proposed rule, the NRC would add performance requirements to fuel cycle facilities regulated by 10 CFR part 40 similar to the performance requirements for fuel cycle facilities regulated by 10 CFR part 70. The NRC is not aware of any voluntary consensus standards that address the proposed subject matter of this proposed rule. The NRC will consider using a voluntary consensus standard if an appropriate standard is identified. If a voluntary consensus standard is identified for consideration, the submittal should explain why the standard should be used.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, not to prepare an environmental impact statement for this proposed rule, because the Commission has concluded on the basis of an environmental assessment that this proposed rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment.

Licensees are required to protect against the occurrence of or to mitigate the consequences of accidents that could adversely affect workers, the public, or the environment. Implementation of the proposed amendments, including the requirement to protect against events that could damage the environment, is expected to result in a significant improvement in licensees', NRC's, other governmental agencies', and the public's understanding of the risks at these facilities and licensees' ability to ensure that those risks are appropriately controlled. For existing licensees, any deficiencies identified in the ISA would need to be promptly addressed. For new licensees, operations will not begin unless licensees demonstrate an adequate level of protection against potential accidents identified in the ISA. As a result, the safety and environmental impact of the new amendments is positive. There would be less potential adverse impact on the environment from licensed operations carried out under the final rule than if those operations were carried out under the existing 10 CFR part 40 regulation.

The determination of this environmental assessment is that there will be no significant impact to the public from this action. However, the general public should note that the NRC welcomes public participation. Comments on any aspect of the Environmental Assessment may be submitted to the NRC by the following methods: (1) Mail comments to Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff; (2) e-mail comments toRulemaking.Comments@nrc.gov;(3) hand deliver comments to 11555 Rockville Pike, Rockville, MD 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (telephone 301-415-1677); or (4) fax comments to Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.

The NRC has sent a copy of the Environmental Assessment and this proposed rule to every State Liaison Officer and requested their comments on the Environmental Assessment. The Environmental Assessment may be examined at the NRC's PDR, O-1F21, 11555 Rockville Pike, Rockville, MD 20852. The environmental assessment is available electronically under ADAMS Accession Number ML102380248.

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

Type of submission, new or revision:Revision.

The title of the information collection:10 CFR part 40—Integrated Safety Analysis, Proposed Rule.

The form number if applicable:N/A.

How often the collection is required:One hour, 24 hours, 60 days and annually.

Who will be required or asked to report:Licensees Authorized to Possess 2000 Kilograms (4400 lb) or More of Uranium Hexafluoride.

An estimate of the number of annual responses:7.4.

The estimated number of annual respondents:1.

An estimate of the total number of hours needed annually to complete the requirement or request:295.

Abstract:The NRC is proposing to amend its regulations to amend 10 CFR part 40 to require current licensees and future applicants who are authorized to possess 2000 kilograms or more of uranium hexafluoride to perform an ISA. The proposed amendments would require licensees to submit several one-time reports including a plan of action and an ISA summary. Annual reportingrequirements would be reduced by this proposed rulemaking by allowing the licensees to amend aspects of their licenses through the ISA process without a formal amendment request to the NRC. Record keeping burden would be increased by the requirement to perform an ISA and document changes to it as well as records of training and other necessary actions. Event reporting under this proposed rule would require licensees to report at 1 hour, 24 hours, and 60 day intervals. The information included in the applications, reports and records required by the proposed rule would be mandatory and would be reviewed by the NRC staff to assess the adequacy of the applicant's or licensee's physical plant, equipment, organization, training, experience, procedures and plans for protection of public health and safety.

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

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

2. Is the estimate of burden accurate?

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

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

The public may examine and have copied, for a fee, publicly available documents, including the draft supporting statement, at the NRC's PDR, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, Maryland 20852. The OMB clearance package and rule are available at the NRC's Web site,http://www.nrc.gov/public-involve/doc-comment/omb/index.html,for 60 days after the signature date of this notice.

Send comments on any aspect of these proposed regulations related to information collections, including suggestions for reducing the burden and on the issues previously discussed in this section, by June 16, 2011 to the Records and FOIA/Privacy Services Branch (T-5 F53), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail toInfocollects.Resources@NRC.govand to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202 3150-0020, Office of Management and Budget, Washington, DC 20503. Comments on the proposed information collections may also be submitted via the Federal rulemaking Web site,http://www.regulations.gov,Docket ID NRC-2009-0079. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.

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

The Commission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission.

The Commission requests public comment on the draft regulatory analysis. Comments on the draft regulatory analysis may be submitted to the NRC by the following methods: (1) Mail comments to Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff; (2) e-mail comments toRulemaking.Comments@nrc.gov;(3) hand deliver comments to 11555 Rockville Pike, Rockville, MD 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (telephone 301-415-1677); or (4) fax comments to Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.

The analysis is available for inspection in the NRC's PDR, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, Maryland 20852. The draft regulatory analysis is available electronically under ADAMS Accession Number ML102380248.

In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. The majority of companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The backfit rule (which is found in the regulations at §§ 50.109, 70.76, 72.62, 76.76, and in 10 CFR part 52) does not apply to this proposed rule. Title 10 of the CFR part 40 does not contain a backfit requirement. Therefore, a backfit analysis is not required.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR parts 40 and 150.

I. Background

On July 21, 2010, President Obama signed into law the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act).1 As amended by the Dodd-Frank Act,2 the Commodity Exchange Act (CEA) provides that a United States financial institution3 for which there is a Federal regulatory agency4 shall not enter into, or offer to enter into, a transaction described in section 2(c)(2)(B)(i)(I) of the CEA with a retail customer5 except pursuant to a rule or regulation of a Federal regulatory agency allowing the transaction under such terms and conditions as the Federal regulatory agency shall prescribe6 (a “retail forex rule”). Section 2(c)(2)(B)(i)(I) includes “an agreement, contract, or transaction in foreign currency that * * * is a contract of sale of a commodity for future delivery (or an option on such a contract) or an option (other than an option executed or traded on a national securities exchange registered pursuant to section 6(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78f(a)).”7 A Federal regulatory agency's retail forex rule must treat all such futures and options and all agreements, contracts, or transactions that are functionally or economically similar to such futures and options, similarly.8

This Dodd-Frank Act amendment to the CEA takes effect 360 days from the enactment of the Act.9 After that date an institution for which the FDIC is the “appropriate Federal banking agency” pursuant to § 3(q) of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q) (FDIC-supervised IDI) may not engage in off-exchange foreign currency futures and options with a customer who does not qualify as an eligible contract participant (ECP) under the CEA (ECP) except pursuant to a retail forex rule issued by the FDIC.10 The restrictions in the Proposed Rule do not apply to (1) transactions with a customer who qualifies as an ECP, or (2) transactions that are spot contracts or forward contracts irrespective of whether the customer is or is not an ECP. The retail forex rule does, however, apply to “rolling spot” transactions in foreign currency. The discussion of the definition of “retail forex transaction” below elaborates on the distinctions between rolling spot transactions and spot and forward contracts.

Any retail forex rule must prescribe appropriate requirements with respect to disclosure, recordkeeping, capital and margin, reporting, business conduct, and documentation requirements, and may include such other standards or requirements as the Federal regulatory agency determines to be necessary.11

On September 10, 2010, the Commodity Futures Trading Commission (CFTC) adopted a retail forex rule for persons subject to its jurisdiction.12 After studying and considering the CFTC's retail forex rule, and being mindful of the desirability of issuing comparable rules, the FDIC is proposing to adopt a substantially similar rule for FDIC-supervised IDIs wishing to engage in retail forex transactions. The Dodd-Frank Act does not require that retail forex rules be issued jointly, or on a coordinated basis, with any other Federal regulatory agency. While each Federal banking agency is issuing a separate proposed rule, the Federal banking agencies are coordinating their efforts. The FDIC's notice of proposed rulemaking is substantially similar to the OCC's notice of proposed rulemaking regarding retail foreign currency transactions published on April 22, 2011.13

The requirements in this proposed rule may overlap with applicable expectations contained in the Interagency Statement on Retail Sales of Nondeposit Investment Products (NDIP Policy Statement).14 The NDIP Policy Statement describes the FDIC's expectations for an FDIC-supervised IDI that engages in the sale of nondeposit investment products to retail customers. The NDIP Policy Statement addresses issues such as disclosure, suitability, sales practices, compensation, and compliance. The FDIC preliminarily views retail forex transactions as nondeposit investment products, but the terms “retail forex customer” in this proposed rule and “retail customer” in the NDIP Policy Statement are not necessarily co-extensive. After the effective date of the final version of this proposed rule, the FDIC will expect FDIC-supervised IDIs engaging in or offering retail forex transactions to also comply with the NDIP Policy Statement to the extent such compliance does not conflict with the requirements of the FDIC's final retail forex rule.

Question I.1:Does the proposed rule create issues concerning application of the NDIP Policy Statement to retail forex transactions that the FDIC should address in this rule or through updates to the NDIP Policy Statement? Does the Agencies' proposed method for developing retail forex rules create material confusion for the marketplace?

The FDIC's proposed retail forex rule is designed to promote consistent treatment of retail forex transactions regardless of whether a retail forex customer's dealer is an FDIC-supervised IDI or a CFTC registrant. While the FDIC's proposed rule is modeled on the CFTC's retail forex rule, the FDIC has adapted the CFTC's rule to reflect differences between FDIC and CFTC supervisory regimes and differencesbetween FDIC-supervised IDIs and CFTC registrants. For example:

• The FDIC's proposed retail forex rule does not include registration requirements, because FDIC-supervised IDIs are already subject to comprehensive supervision by the FDIC. Instead of a registration requirement, the proposed rule would require an FDIC-supervised IDI to obtain the FDIC's consent prior to conducting a retail forex business.

• Because FDIC-supervised IDIs are already subject to various capital and other supervisory requirements,15 proposed § 349.8 would require institutions wishing to engage in retail forex transactions to be “well capitalized.”

• Proposed § 349.6 would require that the risk disclosure statement highlight that a retail forex transaction is not insured by the FDIC. The CFTC's regulations do not address FDIC insurance because financial intermediaries under the CFTC's jurisdiction are not insured depository institutions.

• Proposed § 349.9 would prohibit cross-collateralization or set-off against a retail customer's other property or accounts held at the financial institution. This is consistent with the heightened customer protection provided to banking customers.

This section would provide that an FDIC-supervised IDI that engages in covered retail forex transactions with retail customers would be subject to requirements contained in part 349.

The FDIC notes that some FDIC-supervised IDIs may wish to engage in retail forex transactions through a foreign branch. The CEA does not clearly define whether foreign branches of FDIC-supervised IDIs may be considered United States financial institutions that can be included in the rule.16

Question II.1.1:Should foreign branches of FDIC-supervised IDIs that wish to conduct retail forex transactions abroad, whether with U.S. or foreign customers, be permitted to engage in the activity?

This section proposes definitions of terms specific to retail forex transactions and to the regulatory requirements that apply to retail forex transactions.

The definition of “retail forex transaction” generally includes the following transactions in foreign currency between an FDIC-supervised IDI and a person that is not an ECP:17 (a) A future or option on such a future;18 (b) options not traded on a registered national securities exchange;19 and (c) certain leveraged or margined transactions.20 This definition has several important features.

First, certain transactions in foreign currency are not “retail forex transactions.” For example, a “spot” forex transaction where one currency is bought for another and the two currencies are exchanged within two days would not meet the definition of a “retail forex transaction,” since actual delivery occurs as soon as practicable.21 Similarly, a “retail forex transaction” does not include a forward contract with a commercial entity that creates an enforceable obligation to make or take delivery, provided the commercial counterparty has the ability to make delivery and accept delivery in connection with its line of business.22 In addition, the definition does not include transactions executed on an exchange or designated contract market; those transactions are subject to CFTC regulation.

Second, rolling spot forex transactions (so-calledZelener 23 contracts), including without limitation such transactions traded on the Internet, through a mobile phone, or on an electronic platform, could fall within the definition's third category. This notice of proposed rulemaking proposes that rolling spot transactions with retail customers (non-ECPs) should be regulated as retail forex transactions.24 A rolling spot forex transaction nominally requires delivery of currency within two days, like spot transactions. However, in practice, the contracts are indefinitely renewed every other day and no currency is actually delivered until one party affirmatively closes out the position.25 Therefore, the the FDIC believes that these contracts are better viewed as economically more like futures than spot contracts, although some courts have held them to be spot contracts in form.26

This section would also define several terms by reference to the CEA, the most important of which is “eligible contract participant.” Foreign currency transactions with ECPs are not considered retail forex transactions and are therefore not subject to this rule. In addition to a variety of financial entities, certain governmental entities, businesses, and individuals may be ECPs.27

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0472; Directorate Identifier 2011-NM-005-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0194, dated September 29, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e.,type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar toSFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Fokker Services B.V. has issued Service Bulletin SBF28-28-049, dated June 23, 2010, including Fokker Drawing W57273, Sheet 002, Issue C, dated June 23, 2010, Fokker Drawing W58048, Sheet 1, dated April 29, 2010, and Fokker Manual Change Notification MCNM-F28-035, dated June 23, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 4 products of U.S. registry. We also estimate that it would take about 5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $825 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $5,000, or $1,250 per product.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0473; Directorate Identifier 2011-NM-019-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0217, dated October 21, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e.,type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Fokker Services B.V. has issued Service Bulletin SBF28-28-053, Revision 1, dated September 20, 2010. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 2 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $1,020, or $510 per product.

In addition, we estimate that any necessary follow-on actions would take about 7 work-hours and require parts costing $308, for a cost of $903 per product. We have no way of determining the number of products that may need these actions.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

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

Communications should identify both docket numbers (FAA Docket No. FAA-2011-0376 and Airspace Docket No. 10-AEA-11) and be submitted in triplicate to the Docket Management Facility (seeADDRESSESsection for address and phone number). You may also submit comments through the Internet athttp://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-0376 and Airspace Docket No.10-AEA-11.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (seeADDRESSESsection for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Operations Support Group, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

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

The New York/New Jersey/Philadelphia Metropolitan Area is served by four major airports: Newark Liberty International, John F. Kennedy International, La Guardia, and Philadelphia International, as well as numerous smaller airports generating significant air traffic operations. The close proximity of the airports, combined with high air traffic volume and a complex airspace structure, contribute to less efficient system operations and air traffic delays that can affect airports across the United States. The FAA has been working on various initiatives to increase the efficiency and reliability of the airspace structure in order to maintain safety, respond to increasing aviation operations and mitigate mounting air traffic delays. Key elements of these efforts include improving user access to the NAS, expediting arrivals and departures, and providing more flexible routing options. Other benefits include reduced ATC system complexity, balanced air traffic controller workload, reduced voice communications requirements and reduced aircraft fuel consumption. This notice proposes a number of ATS route changes to help address the above issues.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend jet route J-60, area navigation (RNAV) route Q-42, and VOR Federal airways V-16, V-229 and V-449. In addition, the FAA is proposing to establish four new RNAV routes designated as Q-62, Q-406, Q-448 and Q-480.

The proposed changes would facilitate the rerouting of westbound air traffic departing the New York metropolitan area and would also better sequence this departing traffic with en route overflight traffic. The current traffic flows would be split with new routes and navigation fixes added to reduce delays within the New York terminal airspace. The proposed new and revised ATS routes would mostly be used for departures but are also designed to more efficiently accommodate aircraft landing within the Potomac Terminal Radar Approach Control (TRACON) airspace. Potomac TRACON airspace includes, but is not limited to, Washington Dulles International Airport, Ronald Reagan Washington National Airport, Baltimore/Washington International Thurgood Marshall Airport, and their satellite airports. The proposed route changes would also help segregate the Potomac TRACON arrivals from the high altitude routes extending from the Boston Air Route Traffic Control Center (ARTCC) and New York ARTCC areas of responsibility.

This action proposes to modify the following existing routes: J-60, Q-42, V-16, V-229 and V-449. J-60 would be realigned at a point northwest of the East Texas, PA, VHF Omnidirectional Range/Distance Measuring Equipment (VOR/DME), by inserting a dogleg to the north of course, then bypassing the East Texas VOR/DME, and extending through a new westgate departure fix, NEWEL, to be added in the vicinity of the ELIOT fix. J-60 would then resume course to the Sparta, NJ, VORTAC. This realignment would help reduce congestion and converging en route aircraft flows and mitigate a choke point over the existing ELIOT departure fix.

RNAV route Q-42 would be amended by deleting the current segments between the BRNAN, PA, waypoint (WP) and ELIOT, PA, WP and replacing them with segments extending from BRNAN WP to new WPs HOTEE, PA; BTRIX, PA; SPOTZ, PA, and terminating at a new waypoint ZIMMZ, NJ. This change would also help reduce converging flows and reduce congestion.

VOR Federal airways V-16 and V-229 would be amended by inserting a dogleg north of their present courses by following the Kennedy VOR/DME 052° (magnetic) radial northeast of Kennedy VOR/DME. V-16 would then turn east bound, bypassing the Deer Park VOR/DME, then proceeding to the Calverton VOR/DME and resuming its current course. V-229 would also be modified along the Kennedy VOR/DME 052° radial, then turning eastbound to re-intercept its current course toward the Bridgeport, CT, VOR/DME. The V-16 and V-229 changes are intended to free up airspace to accommodate a climb corridor for John F. Kennedy International Airport departures.

V-449 currently extends between the Lake Henry, PA, VORTAC and the Albany, NY, VORTAC. This route would be lengthened westward by adding a new segment that extends between the Selinsgrove, PA, VORTAC and the Lake Henry VORTAC via the Milton, PA, VORTAC. This change would facilitate routing for arrivals into La Guardia Airport.

Four new RNAV routes are being proposed and would be designated as Q-62, Q-406, Q-448 and Q-480. Q-62 would enhance westward flows, reduce congestion and provide flexibility for aircraft entering the Cleveland ARTCC area and routings toward Chicago.

Q-406, Q-448 and Q-480, along with the amended Q-42, would reduce current converging en route flows that result from dependency on ground-based navigation aids. The new Q-route segments would permit some alignment with the, to be established, New York departure fixes NEWEL, CANDR and ZIMMZ. These new fixes would be used for departures from the New York metropolitan area airports to transition and merge aircraft from the terminal structure into the high altitude en route structure and vice versa. In addition, the new routes would relieve congestion by providing alternate routings for aircraft landing at airports outside the New York Metropolitan area.

For the full descriptions of these proposed route changes, see The Proposed Amendment section, below. Radials in the VOR Federal airway descriptions below are stated in True degrees, except for the proposed amended airway segments, which include both True and Magnetic values. In a final rule, only True degrees would be stated.

Jet routes are published in paragraph 2004, high altitude RNAV routes are published in paragraph 2006, and VOR Federal airways are published inparagraph 6010, respectively, of FAA Order 7400.9U dated August 18, 2010, and effective September 15, 2010, which is incorporated by reference in 14 CFR 71.1. The jet routes, high altitude RNAV routes and VOR Federal airways listed in this document would be subsequently published in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as required to preserve the safe and efficient flow of air traffic in the northeast United States.

This proposed action qualifies for a categorical exclusion in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, Paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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

Communications should identify both docket numbers (FAA Docket No. FAA 2011-0184 and Airspace Docket No. 11-ANM-4) and be submitted in triplicate to the Docket Management System (seeADDRESSESsection for address and phone number). You may also submit comments through the Internet athttp://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-0184 and Airspace Docket No. 11-ANM-4”. The postcard will be date/time stamped and returned to the commenter.

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

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

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

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

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Nephi Municipal Airport, Nephi, UT. Controlled airspace is necessary to accommodate aircraft using the new RNAV (GPS) standard instrument approach procedures at the airport, and would enhance the safety and management of aircraft operations.

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

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

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

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

This notice references documents in the public docket of this rulemaking (Docket No. OSHA-2009-0044). They are available on the Internet athttp://www.regulations.gov,the Federal eRulemaking Portal. The referenced documents are identified as “Ex.” followed by the document number. The document number is the last sequence of numbers in the Document ID Number onhttp://www.regulations.gov.For example, the proposed rule, which is Document ID Number OSHA-2009-0044-0001 athttp://www.regulations.gov,is Ex. 1.

On January 29, 2010, OSHA proposed to revise its Occupational Injury and Illness Recording and Reporting (Recordkeeping) regulation to restore a column to the OSHA 300 Log that employers would have to check if a case they already are required to record under the existing Recordkeeping rule is an MSD (Ex. 1; 75 FR 4728 (1/29/2010)). The proposed rule would not change the existing Recordkeeping requirements about when and under what circumstances employers must record work-related injuries and illnesses. Under the existing Recordkeeping rule (66 FR 5916 (1/19/2001)) employers already must determine whether a case is recordable; that is, whether the case meets the definition of “injury or illness,” is a new case, is work-related, and meets at least one of the recording criteria (e.g.,involves days away from work, restricted work, or medical treatment beyond first aid). The only additional requirement the proposed rule would impose is for employers to mark the MSD column box on the OSHA 300 Log if a case they have already recorded meets the definition of an MSD. The proposed rule would define an MSD, for recordkeeping purposes only, as a disorder of the of the muscles, nerves, tendons, ligaments, joints, cartilage or spinal discs that was not caused by a slip, trip, fall, motor vehicle accident or similar accident (Proposed § 1904.12(b)(1); Ex. 1; 75 FR 4740).

OSHA's revised 2001 Recordkeeping rule included an MSD column, but that provision never became effective and was deleted in 2003 (68 FR 38601 (6/30/2003)). In proposing to restore the MSD column, OSHA explained:

In the proposed rule, OSHA estimated that 1.505 million recordable MSDs were expected to occur annually among the 1.542 million affected establishments. Therefore, the economic impact of the proposed rule on any affected establishment would be quite small (75 FR 4737). OSHA estimated the annualized costs of the proposed rule would be $1.379 million per year for all affected establishments combined ($4 per establishment the first year and 67 cents in future years). The costs represent the time that establishments would need to become familiar with the rule (5 minutes per establishment the first year) and to determine if the recordable case meets the MSD definition and check the MSD column (1 minute per MSD annually).

OSHA provided 60 days for stakeholders to submit comments on the proposed rule (75 FR 10738 (3/9/2010)), consistent with Executive Orders 12866 and 13563 (58 FR 51735; 76 FR 3821). OSHA also held a public meeting on March 9, 2010, to allow stakeholders to make oral presentations and question the Agency about the proposed rule. The transcript of the public meeting is in the public docket of this rulemaking (Ex. 56).

See the notice of proposed rulemaking (OSHA-2009-0044-0001) for additional information on the events leading to this rulemaking and the history of the 2001 Recordkeeping rulemaking as well as a detailed explanation of the proposedMSD column provision, OSHA's reasons for proposing to restore the MSD column and the estimated economic impacts (Ex. 1; 75 FR 4728).

On January 25, 2011, OSHA announced that the Agency had decided to seek additional input from small businesses on the impact of the proposal through outreach in partnership with the SBA Office of Advocacy and, therefore, was temporarily withdrawing the proposed rule from review by the Office of Management and Budget. On March 23, 2011, OSHA announced that, together with the SBA Office of Advocacy, the Agency would hold three teleconferences on April 11-12, 2011 to reach out to small businesses. The purpose of the teleconferences was to gather information from small businesses about their current recordkeeping practices, including their experiences recording work-related MSDs, and the impact they believe the proposal would have on them. OSHA also provided the following information about the teleconferences:

• OSHA and the SBA Office of Advocacy would select the small business participants for the teleconferences;

• The public would be invited to listen to the teleconferences, but only selected small businesses could participate;

• In advance of the teleconferences, OSHA would provide participants with background information on the proposed rule and a list of questions and issues for discussion;

• The teleconferences would not be electronically recorded or transcribed;

• OSHA staff would take notes during the teleconferences and prepare a summary report that would not identify the source of specific comments;

• Small business participants also could send written comments following the teleconferences; and

• After the teleconferences, OSHA would reopen the rulemaking record for the limited purpose of allowing interested persons, particularly small business, to comment on the teleconferences and the issues raised by the participants (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Ex. 0139).

Sixteen small businesses, with employment ranging from about 10 to more than 400 employees, participated in the three teleconferences (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Appendix A, Ex. 0139). In addition, dozens of interested persons listened to the teleconferences in person or by telephone.

OSHA has prepared a summary of the participants' comments during the teleconferences and has placed the summary in the public docket for this rulemaking (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Ex. 0139). The document summarizes the topics the participants discussed, including their current recordkeeping practices, how they determine the work-relatedness of MSDs, how the participants believe the proposed rule would change their recordkeeping practices, benefits of the proposed rule, and other issues the participants raised. The summary document also includes the list of teleconference participants (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements Appendix A, Ex. 0139) and the background materials and list of discussion issues that OSHA provided to the small business participants (Summary of Comments from the Small Business Teleconferences on OSHA's Proposed Rule on MSD Recordkeeping Requirements, Appendix B, Ex. 0139). The background materials contain information on the proposed and existing recordkeeping requirements, the need for the proposed rule, updated cost estimates of the proposed rule and economic impacts on small businesses, and OSHA's existing recordkeeping forms. Interested persons may read and download the summary and appendices at Docket Number OSHA-2009-0044 athttp://www.regulations.gov.The summary and appendices also are available on OSHA's Web page athttp://www.osha.gov.

OSHA invites comment, particularly from small businesses, on the small business teleconferences by the participants. Interested persons must submit comments by June 16, 2011.

You may submit comments and attachments by one of the following methods: (1) Electronically athttp://www.regulations.gov,which is the Federal eRulemaking Portal; (2) by fax; or (3) by hard copy. All submissions must identify the Agency name and the OSHA docket number (Docket No. OSHA-2009-0044) or RIN number (RIN No. 1218-AC45) for this rulemaking. You may supplement electronic comments by uploading attachments electronically. If, instead, you wish to submit a hard copy of the attachments, you must submit those materials to the OSHA Docket Office (seeADDRESSESsection). The additional materials must clearly identify your electronic comments by name, date, and docket number, so OSHA can attach them to your submission.

Because of security-related procedures, the use of regular mail may cause a significant delay in the receipt of submissions. For information about security procedures concerning the delivery of materials by hand, express delivery, messenger or courier service, please contact the OSHA Docket Office at (202) 693-2350 (TTY (877) 889-5627).

Comments in response to thisFederal Registernotice are posted without change athttp://www.regulations.gov.Therefore, OSHA cautions individuals about submitting personal information such as social security numbers and birthdates. Exhibits referenced in thisFederal Registernotice also are posted athttp://www.regulations.gov.Although all rulemaking documents are listed in thehttp://www.regulations.govindex, some information (e.g.,copyrighted material) is not publicly available to read or download through that Web page. All comments and exhibits, including copyrighted material, are available for inspection and copying at the OSHA Docket Office. Information about usinghttp://www.regulations.govto submit comments and access the rulemaking docket is available on that Web page. Contact the OSHA Docket Office for information about materials not available through that Web page and for assistance in using the Internet to locate docket documents in the rulemaking docket.

Electronic copies of thisFederal Registernotice and the proposed rule are available athttp://www.regulations.gov.This notice, the summary of the small business teleconferences, the proposed rule, news releases and other relevant information also are available at OSHA's Web page athttp://www.osha.gov.For specific information about OSHA's Recordkeeping rule, go the Recordkeeping page on OSHA's Web page.

OSHA will carefully review and evaluate the comments, information, and data received in during this limited reopening as well as all other information in the rulemaking record, to determine how to proceed.

This document was prepared under the direction of David Michaels, PhD, MPH, Assistant Secretary of Labor for Occupational Safety and Health. It is issued under Sections 8 and 24 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673), the Administrative Procedures Act (5 U.S.C. 553), and Secretary of Labor's Order No. 4-2010 (75 FR 55355 (9/10/2010)).

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-1016), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (viahttp://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online viahttp://www.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2010-1016” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2010-1016” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one on or before March 27, 2011 using one of the four methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Petty Officer Marceli Rogoza at the telephone number or e-mail address indicated under theFOR FURTHER INFORMATION CONTACTsection of this notice.

The Civic Forum is sponsoring a fireworks display on the 4th of July. Fireworks will be launched from the left descending bank on the Ohio River at mile 356. A hazardous situation could exist for vessels, mariners and spectators in the vicinity of the fireworks display. A safety zone is needed to protect those vessels, mariners and spectators from the hazards associated with this fireworks display.

The Captain of the Port Ohio Valley proposes to establish a safety zone for the waters of the Ohio River beginning at mile 355.5 and ending at mile 356.5. The term “participating vessel” includes all vessels registered with the fireworks event officials to work in the event. With the exception of participating vessels and those mariners operating participating vessels, all vessels and persons are prohibited from transiting within this safety zone unless authorized by the Captain of the Port Ohio Valley or a designated representative. The Captain of the Port Ohio Valley may be contacted on VHF-FM Channels 13 or 16, or by telephone at 800-253-7465. The proposed safety zone will be enforced on the 4th of July each year beginning in 2011. The Captain of the Port Ohio Valley will inform the public through broadcast notice to mariners of the enforcement period for the safety zone.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed 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. We expect the economic impact of this rule to be so minimal, rendering a full regulatory evaluation unnecessary. The basis of this finding is that the safety zone will only be in effect for a limited time period on one day each year and notifications to the marine community will be made through broadcast notice to mariners.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which may be small entities: The owners or operators of vessels intending to transit the Ohio River beginning at mile 355.5 and ending at mile 356.5 on the 4th of July each year. This safety zone will not have a significant economic impact on a substantial number of small entities because this rule will only be in effect for limited time period on one day each year during Civic Forum Fireworks Display.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (seeADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Petty Officer Marceli Rogoza. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed 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 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This proposed 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 proposed rule under Executive Order 13045, Protection of Children From Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated underADDRESSES. This proposed rule is categorically excluded, under figure 2-1, paragraph (34)(g.), of the Instruction. This rule involves regulations establishing, disestablishing, or changing Regulated navigation areas and security or safety zones. The rule fits this category because the Coast Guard proposes to establish a safety zone from mile 355.5 to mile 356.5 on the Ohio River. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

Mammoth Cave National Park is the core of the largest, most complex, and best known karst area in the world. Karst is a geologic term which refers to areas of irregular limestone in which erosion has produced features such as fissures, sinkholes, underground streams, sinking springs, and caverns. The many types of geologic features present within the extensive cavesystem are the product of a unique set of conditions found nowhere else. The 365 miles of passageways that have been surveyed and mapped define Mammoth Cave as the longest cave system in the world.

The mission of Mammoth Cave National Park is to protect and preserve the extensive limestone caverns and associated karst topography, scenic river-ways, original forests, other biological resources, and evidence of past and contemporary ways of life. Mammoth Cave National Park also strives to provide for public education and enrichment through scientific study and to provide for the development and sustainable use of recreation resources and opportunities.

As early as 1905, Members of the Kentucky Congressional delegation suggested Mammoth Cave as a national park.

In its April 18, 1926 report to the Secretary of the Interior, the Southern Appalachian National Park Commission recommended national park status for the Mammoth Cave region for, among other reasons, the:

The Commission also recommended lands above ground in the region of the cave for inclusion in the national park because of the:

The Congress of the United States saw the value of including surface lands as part of the park. Language in Senate, Committee on Public Lands and Surveys, Report No. 823, May 10, 1926, and the House of Representatives, Committee on the Public Lands, Report No. 1178, May 12, 1926, on the bill to authorize Mammoth Cave National Park said the park would:

On May 25, 1926, Congress authorized the establishment of Mammoth Cave National Park (44 Stat. 635), and on July 1, 1941, Mammoth Cave was declared a national park. Subsequently, the Great Onyx Cave and Crystal Cave properties were purchased and added to the park on April 7, 1961. The park now comprises 52,830 acres.

The interest in outdoor recreation for the Mammoth Cave area identified in the 1926 Southern Appalachian Report has not diminished. Through the years, park managers have responded to changing trends in recreation: The Wild Cave tour began in 1969; a system of backcountry trails was initiated in the 1970s; in the 1980s, a horse livery on the park boundary began offering guided rides on park trails, and canoe and kayak liveries began shuttle services on the Green and Nolin rivers. In 2005, the Mammoth Cave Railroad Bike & Hike Trail was completed, connecting the heart of the park with one of the gateway communities (two other gateway communities have expressed interest in constructing similar trails); and the 2007 Comprehensive Trail Management Plan calls for bicycle use on certain trails in the park.

The Park has approximately 85 miles of open trails. While all trails are open to hiking, approximately 44.5 miles of trail are open to horses, approximately 22.5 miles of trail are open to bicycles, and 5.5 miles of trail accommodate both horses and bicycles.

Over the years, trails were improved and expanded into a series of loops which compose the first 6.5 miles of the front-country trail system in the vicinity of the park's visitor center and nearby Green River. Other trails, including trails at Sloans Pond, Turnhole Bend, Sand Cave, and Cedar Sink, were developed as short hikes to park features.

In the early 1970s, the park planned a series of trails in the more than 20,000 acres of backcountry area on the north side of the Green River. In 1974, those trails were officially opened to hiking and horseback riding. The main trails of that 55-mile system followed old and pre-existing dirt roads, with the remaining trails built as connections between those dirt roads to create loops.

In 1999, a local biking club asked park management about the possibility of permitting bicycling on one or more trails in the park. After further consideration, approximately 13 miles of trails were opened to bicycling on an experimental basis, while continuing to allow hiking and horseback riding on the same trails.

In February 2005, park officials organized the first Backcountry Summit meeting between Mammoth Cave National Park, the Bowling Green League of Bicyclists, the Sierra Club, and the Mammoth Cave Equestrian Trail Riders Association. The purpose of this meeting was to provide an avenue of communication between park officials and all user groups regarding improving and maintaining backcountry trails and other backcountry issues.

To address increasing demands for trail use, the Park developed a Comprehensive Trail Management Plan and Environmental Assessment (EA) in 2007 to insure protection of park resources while providing for public use of the trails.

The purpose of the trail plan was to develop and implement objectives and strategies for the protection, management, and use of trails park-wide for a period of 10 years. The plan identifies designated trails and access points as well as the type of activity (hiking, biking, horseback riding, or a combination of those activities) for which each trail could be used.

The park staff utilized NPS Management Policies 2006 and the purposes for which the park was established by Congress to develop objectives and ensure the appropriateness of designating trails and the uses allowed for each trail within Mammoth Cave National Park.

One of the most important concepts incorporated into the trail plan was sustainability. Under the plan, the park will use sustainable material and techniques for trail maintenance and future trail design and construction projects. The park will use techniques such as maximum grade limits, water bars, and large dips in the trail called grade reversals to minimize or slow erosion from water and use. The park will build bridges and utilize materials such as gravel, landscape timbers, and geotextile to create a more durable trail surface and protect potentially vulnerable trail features.

The park trail plan proposed actions that could have environmental consequences, such as constructing trails or changing trail alignments, so NPS was required by the National Environmental Policy Act (NEPA) to evaluate the potential environmental impacts of those actions. The associated EA evaluated several alternative proposed actions or variations for a trail plan, including a “no action” alternative that would not change the way the trails were currently managed.

The draft plan and accompanying EA were prepared after a public meeting on June 29, 2006, and after a public scopingperiod from June 29 to July 14, 2006. After the draft plan and accompanying EA were prepared and published, NPS held a second public meeting on February 7, 2008 in conjunction with a 60-day comment period from January 24, 2008 to March 24, 2008.

On November 14, 2008, the park selected Alternative 4. A finding of no significant impact (FONSI) for the Comprehensive Trail Management Plan was approved on December 18, 2008. Public comment was overwhelmingly in support of Alternative 4 and opposed to the park's proposed preferred alternative, Alternative 5. The primary difference between the two alternatives is that under Alternative 4, NPS would construct a new trail primarily for bicycle use whereas Alternative 5 called for removal of horses from the existing First Creek Trail, in order to allow bicycles on that trail.

The NPS has determined bicycle use to be appropriate for certain trails in Mammoth Cave National Park, with the incorporation of sustainable design, construction, and maintenance standards and materials. Minimizing trail damage and deterioration and the accompanying environmental impacts is an essential element of Alternative 4. This alternative also separates horse and bicycle use in response to public concerns about user conflict or significant changes in or effect on visitor use due to conflict. To address these concerns, bicycle use will be eliminated on the Sal Hollow, Buffalo, and Turnhole Bend Trails, and the Big Hollow Trail will be constructed for bicycle use.

The Plan, EA and Finding of No Significant Impact, (FONSI), are available online at:http://www.nps.gov/maca/parkmgmt/planning.

Subject to the results of this rulemaking, a new connector trail will be designed and constructed for the purpose of connecting access points and areas with trails, including the Maple Springs Group Campground, Maple Springs Trailhead, Mammoth Cave International Center for Science and Learning, Big Hollow Trailhead, and the Raymer Hollow Trailhead. This connector would run from the Maple Springs Trailhead to the Raymer Hollow Trailhead, and would be a wide, hardened-gravel trail to facilitate heavy use and two-way traffic of hikers, bicyclists, and horseback riders. The section of the connector trail between Maple Springs Trailhead and the Big Hollow Trailhead would be designated as multiple-use, and the section from the Big Hollow Trailhead to the Raymer Hollow would be restricted to hikers and horses. As part of the connector trail development, a new parking area would be constructed along the Green River Ferry Road at the Big Hollow Trailhead.

The new parking area along the Green River Ferry Road would allow bicyclists, hikers, and equestrians access to the horse and hiking trails or Big Hollow Trail without using the multiple-use part of the connector. The lot adds parking capacity to the trail system, as well as allowing visitors to separate themselves from other user groups. When the connector trail is complete, the trailhead and trails at the Good Spring Baptist Church will be eliminated, as access will no longer be needed to the Raymer Hollow Trail. Further, elimination of the trails and trailhead would greatly reduce the impact on and degradation of the Good Springs Baptist Church cultural site.

Currently, the only way for equestrians, bicyclists, and hikers to access trailheads is by using the Maple Springs Loop Road and the Good Spring Church Road, which can be congested with large pickup trucks, horse trailers, and other passenger vehicles. Use of those roadways creates a potential hazard from traffic for trail users. The connector trail will provide an alternative to using the roads, and increase public safety by getting these trail users away from the roads and the potential for collision with vehicles.

The selected alternative includes a six-mile single track mountain-bike-type loop, named the Big Hollow Trail, which is being constructed east of the Green River Ferry Road-North and on the ridge west of Big Hollow. Bicycling and hiking would be allowed, but the trail would be closed to horse use. Public comment on the EA was substantially in support of construction of this trail for bicycle use.

This new trail increases opportunities for bicycle use without reducing the trails accessible to horse use, while maintaining separation of horse and bicycle users. Separation of these activities should improve the recreational experience for user groups and offer bicyclists access to backcountry scenery.

Since the trail would be new construction, the selected alternative will have more impact on park resources than other alternatives, but we concluded will still not have a significant effect on the environment. Vegetation will be removed on the trail surface, and cleared along the trail margins, but sustainable materials and construction techniques will be used to build the trail which will help control and minimize surface degradation, erosion and other adverse effects on surrounding park resources. This trail will not pass through floodplains, cross streams, or be located near wetlands, and therefore is expected to have no new impacts on water resources.

Vegetation and tree removal identified in this alternative would be completed in accordance with the “Biological Opinion for the Effects of the Hazard Tree Removal and Vegetation Management Program to the Indiana Bat at Mammoth Cave National Park, Kentucky” to ensure the activities would be considered “not likely to adversely affect” the species.

To minimize any effect on archeological resources, the park will survey areas where ground disturbance would take place and adjust trail alignment to avoid adverse impacts. This trail will not pass through or near cultural sites.

An environmental assessment for the Mammoth Cave Railroad Bike & Hike Trail was completed in 1999, and amended in 2004. Between 2004 and 2007, the National Park Service constructed a nine-mile, graveled hiking and biking trail. The Mammoth Cave Railroad Bike & Hike Trail follows the general route of a historic railroad bed leading from the visitor center to the park boundary at Park City and receives significant daily use. The trail passes close enough to the campground area to provide hiking and bicycling opportunities for those camping at the park. The trail continues past the campground, through low wetlands and higher elevations on the ridge-tops, providing the user with a varied ecological view of the park. Several wayside exhibits along the trail recount historic facts regarding the old railroad route, including past events and structures that played a significant role in the history of the area. The Bike and Hike trail was designed and constructed utilizing modern technology and sustainable design. The eight-foot wide graveled surface was designed to offer a comparatively easy, family-style bicycle trail as opposed to the single-track, mountain-bike-type Big Hollow Trail.

The Bike and Hike trail will connect to historic Bell's Tavern upon completion of Park City's bike trail. The park has recently received expressions of interest from the communities of Cave City and Brownsville to constructsimilar bike trails that could connect with the Mammoth Cave Railroad Bike and Hike Trail. These improvements would provide opportunities for the use of the park and contribute to the `Connecting People to Parks' initiative of the NPS and the President's America's Great Outdoors initiative.

The Comprehensive Trail Management Plan also identified the White Oak Trail as a multiple-use trail, and this proposed rule would designate it as a trail for bicycles in addition to hiking and horseback riding. The trail is on an old roadbed and is wide, fairly level, and currently has a relatively low level of use. The flat and wide nature of the trail provides conditions that would tend to minimize user conflicts and support the multiple-use designation. The NPS would continue to occasional use this trail for administrative vehicle access to backcountry sites for emergency response and to conduct maintenance and monitoring activities.

The purpose of this proposed rule is to authorize bicycle use on the Connector, Big Hollow, Mammoth Cave Railroad Bike and Hike, and White Oak trails. NPS regulations require a special regulation for such use, since the trails do not fall within developed areas of the park, and they are not park roads. Without such a special rule, bicycling could not be authorizes on these trails, and the full park-wide trails management plan could not be implemented.

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

1. This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities. It is anticipated that establishment of these trails will generate positive benefits and no costs to visitors, businesses, or local communities. This conclusion is based on the results of an NPS economic analysis of the effects of the rule, dated November 17, 2009, which is available onhttp://www.regulations.gov.

2. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. Actions taken under this rule will not interfere with other agencies or local government plans, policies, or controls. This is an agency specific rule.

3. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. No grants or other forms of monetary supplements are involved.

4. This rule does not raise novel legal or policy issues. The rule implements the special regulation required by NPS general regulations, to allow bicycle use on four trails designated as bicycle routes, within Mammoth Cave National Park.

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.). This conclusion is based on the results of an NPS economic analysis of the effects of the rule, dated November 17, 2009, available for review at:http://www.nps.gov/maca/parkmgmt/planning,which incorporated a regulatory flexibility threshold analysis. The rule would reasonably increase park visitation and thereby generate benefits for businesses, including small entities, through increased visitor spending. Consequently, the rule will not impose a significant economic impact on a substantial number of small entities.

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

a. Does not have an annual effect on the economy of $100 million or more. There are no businesses in the surrounding area economically dependent on continued bicycle use on these trails. The November 2009 NPS economic analysis estimated that the rule would add a benefit to local business in the form of new visitors attracted to the area to use the trails, and not have an effect of $100 million on the economy.

b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions. The rule will not impose restrictions on local businesses in the form of fees, training, record keeping, or other measures that would increase costs.

The economic analysis projected a net benefit for the Federal government and a consumer surplus of $27.02/day for new visitors and $12.01/day for current visitors.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign based enterprises. The rule is internal to National Park Service operations, and has been determined through economic analysis not to have adverse effects.

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State local or Tribal governments or the private sector. This rulemaking addresses only actions that will be taken by the National Park Service. It will not require any state, local or Tribal government to take any action that is not funded; it is an agency specific rule and imposes no requirements on small governments.

A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531et seq.) is not required.

Under the criteria in Executive Order 12630, this rule does not have significant takings implications. A taking implication assessment is not required. This rule designates park trails inside the park, and though the trails may connect with trails external to the park, the rule does not require the taking of land for trail outside the park.

Under the criteria in Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only effects use of NPS administered lands. It has no effect on other areas. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

b. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on Federally recognized Indian Tribes. The question was considered as part of the environmental assessment, and trails were configured to avoid areas identified as archeological sites, specifically any with known burials. In addition to the EA, past consultation with the Tribes has been important in the identification of concerns or issues of cultural interest.

This rule does not contain information collection requirements, and a submission under the Paperwork Reduction Act (PRA) is not required.

The NPS prepared environmental assessments to determine whether the actions taken through this rule would have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969.

A Comprehensive Trail Management Plan and Environmental Assessment for the management of trails were completed and a finding of no significant impact (FONSI) approved in December 2008. A separate plan and EA was prepared for the Mammoth Cave Railroad Bike and Hike Trail in 2004. These documents may be reviewed at:http://www.nps.gov/maca/parkmgmt/planning. The Department has determined that further compliance under this Act is not required for any of these proposed actions.

In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

a. Be logically organized;

b. Use the active voice to address readers directly;

c. Use clear language rather than jargon;

d. Be divided into short sections and sentences; and

e. Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful,etc.

The principle contributors to this proposed rulemaking are: Patrick H. Reed, Superintendent, L. W. Johnson, Natural Resources Specialist, Ken Kern, Management Assistant, Wayne Elliot, Chief Ranger, Vickie T. Carson, Public Information Officer, and Philip A. Selleck, Associate Regional Director for Operations and Education, NCR, Washington, DC.

All submissions received must include the agency name and docket number or Regulation Identifer Number (RIN) for this rulemaking. All comments received will be posted without change tohttp://www.regulations.gov.

Docket:For access to the docket to read background documents or comments received, go tohttp://www.regulations.govand enter “1024-AD80” in the “Keyword or ID” search box.

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For the reasons stated in the preamble, the National Park Service proposes to amend 36 CFR part 7 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

This supplementary information section is arranged as follows:

In accordance with section 179(c) of the CAA, 42 U.S.C. 7509(c) and 40 CFR 51.1004(c), EPA is proposing to determine that three Ohio nonattainment areas (the Cleveland-Akron, the Columbus, and the Dayton-Springfield areas) and one Ohio-West Virginia bi-state area (the Steubenville-Weirton area) have attained the 1997 annual PM2.5NAAQS. This proposed determination is based upon complete, quality-assured, and certified ambient air monitoring data for the 2007-2009 monitoring period that show these Areas have monitored attainment of the 1997 annual PM2.5NAAQS. Completepreliminary quality-assured data sets available for 2010 are consistent with continued attainment, as well as data from sites in the Cleveland-Akron area that were not considered complete, but that support attainment. EPA is also proposing to determine, in accordance with EPA's PM2.5Implementation Rule of April 25, 2007 (72 FR 20664), that these Areas have attained the 1997 annual PM2.5NAAQS by the applicable attainment date of April 5, 2010.

On July 18, 1997 (62 FR 36852), EPA established an annual PM2.5NAAQS at 15.0 micrograms per cubic meter (μg/m3) based on a three-year average of annual mean PM2.5concentrations. At that time, EPA also established a 24-hour standard of 65 μg/m3. (Today's action does not address the 24-hour standard.) See 40 CFR 50.7. On January 5, 2005 (70 FR 944), EPA published its air quality designations and classifications for the 1997 PM2.5NAAQS based upon air quality monitoring data from those monitors for calendar years 2001-2003. These designations became effective on April 5, 2005. The three areas in Ohio and the one bi-state area in Ohio and West Virginia were designated nonattainment for the 1997 PM2.5NAAQS. See 40 CFR 81.336 (Ohio) and 40 CFR 81.349 (West Virginia).

On October 17, 2006 (71 FR 61144), EPA retained the 1997 annual PM2.5NAAQS at 15.0 μg/m3based on a three-year average of annual mean PM2.5concentrations, and promulgated a 24-hour standard of 35 μg/m3based on a three-year average of the 98th percentile of 24-hour concentrations.

In response to legal challenges to the annual standards promulgated in 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) remanded these standards to EPA for further consideration.See American Farm Bureau Federation and National Pork Producers Council, et al.v.EPA,559 F.3d 512 (DC Cir. 2009). However, given that the 1997 and 2006 annual standards are essentially identical, attainment of the 1997 annual standards would also indicate attainment of the remanded 2006 annual standards.

On April 25, 2007 (72 FR 20664), EPA promulgated its PM2.5implementation rule, codified at 40 CFR part 51, subpart Z, in which the Agency provided guidance for state and Tribal plans to implement the 1997 PM2.5standards. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory consequences of attaining the standards, as discussed later.

Today's rulemaking assesses whether (1) the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton areas have attained the 1997 annual PM2.5standard, based on the most recent three years of quality-assured data, and (2) whether the Areas attained the 1997 annual PM2.5NAAQS by the applicable attainment date of April 5, 2010.

Under EPA's regulations at 40 CFR 50.7, the annual primary and secondary PM2.5standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR Part 50, appendix N, is less than or equal to 15.0 µg/m3at all relevant monitoring sites in the area.

EPA has reviewed the ambient air quality monitoring data in the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton areas for PM2.5, consistent with the requirements contained at 40 CFR part 50. EPA's review focused on data recorded in the EPA Air Quality System (AQS) database for the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton areas PM2.5nonattainment area from 2007 to 2009, and considered supplemental data sets that were incomplete due to the low capture rates as well as complete, quality assured but not certified data for 2010.

The Cleveland-Akron area had eleven monitors located in Cuyahoga, Lorain, Medina, Summit, and Portage Counties that reported design values from 2007-2009 for PM2.5that ranged from 11.4 to 14.4 μg/m3.

The Columbus area had three monitors all located in Franklin County that reported a design value range of 11.7 to 13.0 μg/m3for the 2007-2009 time period.

The Dayton-Springfield area has three monitors, with one monitor in each of Clark, Greene, and Montgomery Counties. These monitors measured a range of 2007-2009 design values from 12.1 to 13.7 μg/m3with Montgomery reporting the highest PM2.5design value.

The Steubenville-Weirton area, in Ohio and West Virginia, has five monitoring stations, including two in Jefferson County, OH, two in Brooke County, West Virginia, and one in Hancock County, West Virginia. The range of design values for the Steubenville-Weirton area for 2007-2009 was 13.6 to 14.4 μg/m3, below the current annual PM2.5standard. We have examined data from the entire area, including monitored data from both Ohio and West Virginia.

Table 1 shows the 2007 to 2009 design values (i.e., the three-year average of annual mean PM2.5concentrations) for the 1997 annual PM2.5NAAQS for the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton areas for monitors with complete data for that period. Additionally, design values for the 2008-2010 period, using complete and quality-assured but not certified data for 2010, are also shown in Table 1, as supplementary information solely for the purposes of showing that all four areas are maintaining the current standard. All data values are expressed in micrograms per meter cubed.

As Table 1 shows, across the four areas, there were twenty-one monitoring sites with complete data for 2007 to 2009. Data are considered to be sufficient for comparison to the NAAQS if three consecutive complete years of data exist. A complete year of air quality data comprises four calendar quarters, with each quarter containing data from at least 75% capture of the scheduled sampling days. Data that does not meet the 75% capture has been analyzed by EPA with substitution of conservative values to determine that some sites not meeting capture rates are still sufficient to show attainment. Ohio has also submitted similar data substitutions to demonstrate that sites with less than 75% capture rates are still attaining even with the highest concentration from that specific monitor substituted for missing data. See 40 CFR Part 58, appendix D for network design criteria. EPA has approved the monitoring networks for these four areas as adequate to evaluate the air quality of these areas, and so these twenty-one monitoring sites with complete data provide an adequate basis for EPA to determine whether the areas have attained the NAAQS. EPA concludes that the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton areas have attained the 1997 annual PM2.5NAAQS based on its evaluation of complete quality-assured data from the relevant monitoring sites for the 2007-2009 monitoring period.

Incomplete data from additional monitoring sites in the Cleveland-Akron area also support EPA's determination that the area attains the 1997 annual PM2.5NAAQS. Two monitors located in Lake County did not record complete data for the three-year 2007-2009 monitoring period. Pertinent data from these sites are shown in Table 2. One monitor (39-085-3002) was closed at the end of 2008 due to demolition at the site, and the other monitor (39-085-0007) then began operation at the beginning of 2009. Since both monitors were not capturing data for the entire span of 2007-2009, their data sets were considered incomplete. As shown in this table, although site 39-085-3002 did not have complete data for 2007 to 2009, the site's design value calculated from 2006-2008 was attaining, and the average concentration from 2007 to 2008 support the conclusion that this location is attaining. Table 2 also includes site 39-085-0007 that started operation only recently; this site did not measure concentrations before 2009, but the average concentration for 2009 was 10.4 μg/m3, and the average concentration for 2010 was 10.5 μg/m3.

Data handling conventions and computations necessary for determining whether areas have met the PM2.5NAAQS, including requirements for data completeness, are specified in appendix N of 40 CFR part 50. The useof less than complete data is subject to the approval of EPA, which may consider factors such as monitoring site closures/moves, monitoring diligence and nearby concentrations in determining whether to use such data as set forth at 40 CFR part 50, appendix N § 4.1(c). The monitors listed in Table 2 do not have complete data for the 2007-2009 monitoring period. However, the historical certified data recorded at the monitors that were discontinued during this period and recent certified data recorded at monitors that started operation during the period provide additional support for EPA's proposed determination that the Cleveland-Akron area has attained the 1997 annual PM2.5NAAQS. EPA is also approving the use of these data for consideration in this determination because it finds that Ohio has exercised diligence in monitoring in the Cleveland-Akron area, and has worked cooperatively with EPA in evaluating and seeking approval for monitor closures and moves, and because these data provide useful additional evidence as to whether this area is attaining the standard.

EPA's review of monitoring data from the 2007-2009 monitoring period supports EPA's determinations that the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas have: (1) Monitored attainment of the PM2.5NAAQS for such period; and (2) attained the PM2.5NAAQS by the attainment date of April 5, 2010. Additionally, the preliminary 2008-2010 monitoring data supports a finding that these Areas continue to meet the 1997 annual PM2.5NAAQS.

If EPA's proposed determination of attainment, based on the most recent three years of quality-assured data, is made final, under the provisions of the PM2.5Implementation Rule (40 CFR 51.1004(c)) the requirements for the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas to submit attainment demonstration, RACM (including RACT), an RFP plan, contingency measures, and other planning SIP revisions related to attainment of the 1997 annual PM2.5NAAQS shall be suspended for so long as the Areas continue to attain the 1997 annual PM2.5NAAQS.

As discussed further, the proposed determination of attainment for the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas would, if finalized, (1) suspend the states' obligation for Ohio and West Virginia to submit the requirements listed above; (2) continue such suspension until such time, if any, that EPA subsequently determines that any monitor in the area has violated the 1997 annual PM2.5NAAQS; and (3) be separate from any future designation determination or requirements for the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas based on the 2006 PM2.5NAAQS or future PM2.5NAAQ revision.

If this rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in theFederal Register, that any of the Areas have violated the 1997 annual PM2.5NAAQS, the basis for the suspension of the specific requirements, set forth at 40 CFR section 51.1004(c), would no longer exist, and the States of Ohio and West Virginia (if applicable) would thereafter have to address the pertinent requirements.

This proposed action is limited to the determinations that the air quality data show that the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas have monitored attainment of the 1997 annual PM2.5NAAQS, and have attained the PM2.5NAAQS by the attainment date of April 5, 2010; neither determination would result in a redesignation of the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas to the status of attainment of the 1997 annual PM2.5NAAQS.

This proposed action, if finalized, would not constitute a redesignation to attainment under CAA section 107(d)(3) of the CAA because EPA is not proposing to take action pursuant to CAA section 107(d)(3) and the statutory prerequisites set forth in CAA section 107(d)(3) have not yet been met. For example, EPA has not yet approved a maintenance plan for the areas as required under CAA section 175A, nor proposed a determination that the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas have met the other requirements for redesignation under the CAA.

The designation status of the portions of the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton PM2.5nonattainment areas will remain nonattainment for the 1997 annual PM2.5NAAQS until such time as EPA takes final rulemaking action to determine that such portions meet the CAA requirements for redesignation to attainment.

In addition, if EPA's separate and independent proposed determination that these Areas have attained the 1997 annual PM2.5standard by the applicable attainment date (April 5, 2010), is finalized, EPA will have met its requirement pursuant to section 179(c)(1) of the CAA to make a determination based on the Areas' air quality data as of the attainment date whether the Areas attained the standard by that date.

These two actions described above are proposed determinations regarding the Cleveland-Akron, Columbus, Dayton-Springfield, and Steubenville-Weirton areas' attainment only with respect to the 1997 annual PM2.5NAAQS. Today's actions do not address the 24-hour PM2.5NAAQS.

EPA is soliciting comment on the issues discussed in this document. These comments will be considered before EPA takes final action. Please note that if EPA receives adverse comment on either of the proposed determinations described above and if that determination may be severed from the remainder of the final agency action, EPA may adopt as final those provisions of the final agency action that are not the subject of an adverse comment.

This action proposes to make attainment determinations based on air quality data and would, if finalized, result in the suspension of certain Federal requirements and would not impose any additional requirements. For that reason, this proposed action:

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

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

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

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

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

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

In addition, these proposed PM2.5NAAQS attainment determinations do not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.

Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments on or before July 18, 2011 and reply comments on or before August 30, 2011. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies.See Electronic Filing of Documents in Rulemaking Proceedings,63 FR 24121 (1998).

•Electronic Filers:Comments may be filed electronically using the Internet by accessing the ECFS:http://fjallfoss.fcc.gov/ecfs2/or the Federal eRulemaking Portal:http://www.regulations.gov.

•Paper Filers:Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington, DC 20554.

People with Disabilities:To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail tofcc504@fcc.govor call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

Filings and comments are also available for public inspection and copying during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. They may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300, fax: (202) 488-5563, or via e-mailhttp://www.bcpiweb.com.

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,see44 U.S.C. 3506(c)(4).

Below is a synopsis of the Commission's Notice of Inquiry in WC Docket No. 11-59, adopted and released April 7, 2011.

1. This Notice of Inquiry (Notice) concerns key challenges and best practices in expanding the reach and reducing the cost of broadband deployment by improving government policies for access to rights of way and wireless facilities siting. In this proceeding we seek to work with stakeholders including state and local governments, other Federal agencies, Tribal governments, consumer advocates, and the private sector to identify means of improving rights of way policies and wireless facilities siting requirements. By working together on these issues, we can reduce the costs and time required for broadband deployment, both fixed and mobile, which will help unleash private investment in infrastructure, increase efficient use of scarce public resources (including spectrum), and increase broadband adoption.

2. Providing broadband service requires the deployment and use of varied and physically dispersed communications infrastructure that is placed in public and private rights of way and on towers and building roof tops. Access to public rights of way, tower sites, and buildings is governed by Federal, state, local, or Tribal requirements depending on the location. Obtaining access to rights of way on fair and reasonable terms, and through a predictable process, is critical for all infrastructure providers.

3. This Notice is intended to update our understanding of current rights of way and wireless facilities siting policies, assess the extent and impact of challenges related to these matters, and develop a record on potential solutions to these challenges. This inquiry is a necessary step towards determining whether there is a need for coordinated national action to improve rights of way and wireless facilities siting policies, and, if so, what role the Commission should play in conjunction with other stakeholders. We seek a detailed record of the nature and scope of broadband deployment issues, including both best practices that have promoted deployment and matters that have resulted in delays.

4. The Commission is most interested in systemic practices rather than individual or anecdotal situations, which are less suited for Federal policies. So that we might have a factual basis upon which to determine the nature and extent of any problems, we ask commenters to provide us with information on their experiences, both positive and negative, related to broadband deployment. In the case of comments that name any state or local government or Tribal or Federal entity as an example of barriers to broadband deployment, we strongly encourage the party submitting the comments to name the specific government entity it is referring to, and describe the actions that are specifically cited as an example of a barrier to broadband deployment, as this is the best way to ensure that all affected parties—the relevant governmental entity, citizens and consumer groups, and other private parties that have sought access in the area—are able to respond to specific examples or criticisms. Identifying with specificity particular examples or concerns will ensure that the Commission has a complete understanding of the practices and can obtain additional background if appropriate. In turn, we ask government entities to explain the policy goals underlying their current practices and charges regarding rights of way and wireless facilities siting. We seek to identify best practices, systemic challenges and fully consider possible steps the Commission can take, in partnership with Federal, state, local, and Tribal governments—with input from consumer groups and industry—to foster improvements in these areas.

5. The Commission may move forward in other contexts to act on individual issues raised here, as appropriate, without awaiting completion of this proceeding.

6. In this section, we describe the various types of possible issues regarding rights of way governance and wireless facilities siting requirements, and we seek input in order to obtain a more complete understanding of these areas. We seek to develop a complete record of how rights of way and wireless facilities siting decisions influence build out and adoption of broadband and other communications services. We believe that rights of way and wireless facilities siting issues can generally be broken into several broad categories: (1) Timeliness and ease of the permitting process; (2) the reasonableness of charges; (3) the extent to which ordinances or statutes have been updated to reflect current communications technologies or innovative deployment practices; (4) consistent or discriminatory/differential treatment; (5) presence or absence of uniformity due to inconsistent or varying practices and rates in different jurisdictions or areas; (6) other rights of way concerns including “third tier” regulation or requirements that cover matters not directly related to rights of way use or wireless facilities siting. We ask commenters to describe the specific kinds of public rights of way and wireless facilities siting issues that exist in each of these areas. Do some of these issues particularly affect various categories of rights of way owners, wireless facilities siting authorities, network users, or network functions? We also ask interested parties to describe best practices in each of these areas.

7. The Commission recently addressed the timeliness of state and local permitting processes for tower siting in theShot Clock Ruling,74 FR 67871 Dec. 21, 2009, which set a timeline for action on collocation and other tower siting applications. We seek comment on the application of theShot Clock Ruling,and its efficacy in reducing delays in the local zoning process. In particular, has theShot Clock Rulingreduced the number of collocations pending before state and local government authorities for periods of longer than 90 days, and the number of applications other than collocations pending for longer than 150 days? Has this approached proved satisfactory from the perspective of the communities in resolving actions for collocation? Have individual cases been taken to district courts for zoning authorities' failure to act, and if so, how did the courts apply theShot Clock Ruling? Do parties believe that adoption of theShot Clock Rulinghas resulted in faster rulings from state and local government authorities? In answering these questions, parties should provide as much specificity as possible.

8. We also seek updated information on the timeliness and ease of permit processing for rights of way and siting of wireless facilities. Are application processes defined with sufficient clarity? Is information on all necessary application procedures, forms, substantive requirements, and charges readily accessible? How do rights of way holders and wireless facilities siting authorities handle new or novel requests for access to rights of way or tower and antenna sites? Are there processes in place for addressing situations in which it is difficult to identify the rights of way holder? How could the application process be streamlined in certain situations, such as where an infrastructure provider seeks to collocate new facilities on an existing tower? Is the process for obtaining permits for accessing rights ofway or siting wireless facilities timely? To the extent applications are not processed in a timely fashion, what factors are responsible for delays? Are there types of errors, omissions, or substantive requirements in applications that frequently lead to rejection, dismissal, or return of the applications? What application processing timeframes are reasonable? Are there particular practices that can improve processing time frames?

9. We also ask commenters to provide data about their experiences and situations. We ask commenters to submit data related to processing intervals for permit approval, both targeted and actual, for all relevant providers (data submitted by rights holders) and communities (data submitted by infrastructure providers). We ask that any submitted data be broken out in as disaggregated a fashion as possible. For example, we encourage commenters to include for each application the name of the provider; name of the location or community; type of project, including whether a project is wholly new or an augmentation of an existing facility (e.g.,wireless collocation on existing structure); whether the community is subject to comprehensive state franchising or rights of way laws; and total time to process applications. To the extent that certain activities during a particular approval took an unusual length of time, we encourage participants to provide any relevant details, such as pre-processing time devoted to obtaining a complete-as-filed application, time spent negotiating, or time spent waiting for events external to the application process. Commenters also should include any other relevant categories of data or explanations that will make their submissions more informative.

10. To what extent and in what circumstances are rights of way or wireless facilities siting charges reasonable? Is it possible to identify rights of way or wireless facilities siting charges that all stakeholders agree are reasonable? If not, are there rate levels that most infrastructure providers agree are reasonable, and different rate levels that most government entities agree are reasonable? Are there instances and circumstances in which rights of way or facilities siting charges are unreasonable? What are appropriate criteria for determining the reasonableness of such charges? For example, are permitting or application fees unreasonable to the extent they exceed amounts that would recover administrative and other specifically identifiable costs? Are “market based” rates for use of public rights of way or publicly-owned wireless facilities sites reasonable? In particular, how are market-based rates or other non-cost based rates for public rights of way determined when, in many situations, there does not appear to be a competitive market for public rights of way? Are market-based rates substantially higher than cost-based rates?

11. We ask commenters to provide factual data to help the Commission understand existing charges and practices. We seek data on current permitting charges, including all recurring and non-recurring charges, as well as any application, administrative, or processing fees. In presenting these data, we ask commenters to identify such information as the type of facilities for which such charges are assessed; how such charges are structured (e.g.,per foot or percent of revenue in the case of rights of way fees); whether the community is subject to comprehensive state franchising or rights of way laws; whether the charges are published in advance or individually negotiated, designed to approximate market rates or merely recover costs (direct and/or indirect), and accompanied by comprehensive terms, and conditions; and the value of any in-kind contributions required for access or permit approval. We also request commenters to include information that enables us to determine the extent to which such charges are related to impacts on the local community, such as pavement restoration costs for projects that involve trenching in roadways. We recognize that certain information may disclose competitively sensitive information and we understand the need to aggregate such data across multiple communities or providers, or otherwise present it in a way that does not disclose any competitively sensitive data.

12. We also seek information on how a market-based charge is calculated in the context of various types of fees. For example, do per-foot fees and other usage fees vary depending on the number of providers that need access to the rights of way and the amount of fiber or other facilities each such provider places in the rights of way (a measure of demand)? To what extent do entities vary such fees based on other market factors, for example, the available supply, such as the remaining usable space within a conduit system in the rights of way, or the amount of land available to accommodate a new system? We also are interested in understanding how the levels of percent-of-revenue fees are set in order to achieve a market-based rate.

13. We also invite comment on whether there are specific circumstances in which rights of way or wireless facilities siting charges are more likely to be unreasonable. For example, once an infrastructure provider has placed facilities in a public right of way, incurring sunk costs, is the public rights of way holder frequently in a position to exercise market power in establishing subsequent charges, such as on renewals of long-term contracts or requests to make changes to a vitally important network facility? Are there specific situations where such market power has been exercised? How can instances of the exercise of market power be identified? What situations are most likely to cause wireless facilities siting charges to be unreasonable? Do rights of way or wireless facilities site administrative and/or usage fees vary by the demographics of the customer base? For example, do holders of public rights of way, government owners of tower or antenna sites, and/or government entities regulating wireless facilities sites located in dense, urban, and/or suburban high-income areas tend to impose higher fees than government entities in other areas, and are such differences reasonable?

14. We also request comment on the ways in which rights of way or wireless facilities site processing or usage charges affect broadband subscribers. Are such charges imposed on a broadband provider ultimately passed on to that provider's customers? What fraction of a broadband provider's costs do public rights of way and governmental wireless facilities site or administrative fees typically represent? Insofar as broadband providers charge geographically averaged rates, high rights of way and wireless facilities siting charges will be recovered by providers in part from consumers in other jurisdictions rather than recovered directly from consumers within the jurisdiction imposing the high charges. To what extent should this affect the analysis of rights of way and wireless facilities siting charges? For example, should we be concerned about excessive charges if they are transparent and recovered solely from residents of the jurisdiction imposing the charge?

15. We also seek qualitative information that describes how the prices for rights of way and wireless facilities siting and the target timeframe for approval of infrastructure providers' applications are set, and that describethe process of receiving approval to access rights of way or site wireless facilities, particularly for broadband. How are we to distinguish and evaluate different policies and practices? To help create a record of existing and best practices, we ask infrastructure providers, localities, and other interested parties to submit examples of model, typical, and problematic franchising or access agreements.

16. Certain qualitative information we seek is best provided by states and localities. For instance, we request information on the policy goals and other objectives underlying practices and charges related to access to rights of way and approval of wireless facilities. To what extent are local requirements designed to achieve public interest goals, such as ensuring public safety, avoiding disruption of traffic, or maintaining roadways? What role do other civic goals play in guiding local rights of way and wireless governance decisions? For example, how do localities weigh such issues as preventing the public disruption and damage to roads that accompanies street cuts, or satisfying aesthetic, environmental, or historic preservation concerns, with goals of greater fixed and mobile broadband deployment and adoption through timely processing of permits, nondiscrimination, transparency, and reasonable charges?

17. Certain other information we seek may be best provided by infrastructure providers. For example, we seek information about how rights of way issues influence the deployment decisions of infrastructure providers. In this regard, we request information on both specific instances in which a provider chose not to build out broadband facilities due to rights of way concerns and comprehensive data or analysis that might demonstrate the extent to which rights of way concerns are impeding broadband infrastructure investment and broadband adoption. As providers prioritize capital investments, to what extent do rights of way and wireless siting governance issues have an effect? How do providers take into account any uncertainty with regard to cost or timing? In areas where processes have been standardized, we ask providers to provide evidence of how this has affected their deployment decisions and quantify any benefits. Are there situations in which localities believe that infrastructure providers have unreasonably refused to build out broadband facilities despite best efforts on the part of the locality to encourage deployment through rights of way or wireless facility siting policies?

18. We ask interested parties whether state statutes or local ordinances have been updated to reflect current developments in the communications industry or recent changes in communications technologies that require access to public rights of way. Where such updates have not occurred, do providers experience problems or issues with application processing or delays? For example, do existing ordinances or other requirements successfully address the placement of small antennas on existing facilities in rights of way? In particular, we seek comment on any challenges that may apply to the deployment of microcells, picocells, femtocells, and Distributed Antenna Systems (DAS). What, if anything, do states and localities require in order to permit the attachment of microcells, picocells, femtocells, and DAS antennas to existing infrastructure that is different from attaching any other antenna to a given structure? Do any states or localities allow all of the proposed DAS antennas within a DAS network to be combined in a single permit application, and is this or would this be helpful for DAS deployment? Are there any other ways in which microcells, picocells, femtocells, and DAS antennas are treated uniquely, and are there any ways in which states, localities, or wireless service providers think they should be treated differently? To what extent are these facilities treated as public utilities? To what extent are they subject to local zoning processes? To what extent should existing ordinances or statutes be revised to reflect changes in the communications industry and technology?

19. We also seek comment on how different jurisdictions treat the use of existing infrastructure for wireless services, both in and out of rights of way. Is there disparate treatment between a pole attachment,i.e.,the attachment of a wireless antenna to an existing public utility pole, and a collocation, where a wireless antenna is attached to some other existing structure? Are different or additional considerations required for some types of rights of way, such as those used for transportation, as compared to other types? Are there instances in which conflicting laws may apply to the attachment of a wireless antenna to an existing structure? What is the overall effect of these considerations on the ability and the likelihood that existing infrastructure can be effectively used to deploy wireless services? Do some regulations and policies encourage resource sharing, while others discourage it? Do states and localities show any preference for collocated antennas or for the placement of wireless facilities on public property? Are there particular approaches that facilitate wireless deployment, including DAS? Why do they work well?

20. How have ordinances addressed differences in rights of way users and wireless facilities siting applicants, the different uses they make of rights of way and sites, and the different equipment they seek to deploy? Are differing rights of way or wireless facilities siting practices or charges reasonable? Do they involve unreasonable or discriminatory differential treatment of various types of rights of way users or facilities siting applicants? What are appropriate methods to determine whether a practice or charge is unreasonable or discriminatory? For example, do publicly available fee schedules for various categories of rights of way use tend to be nondiscriminatory? Are zoning requirements for wireless facilities siting nondiscriminatory? Are there other criteria that can and should be used to determine whether charges or practices are discriminatory without fact-intensive and burdensome administrative or court proceedings?

21. In a given metropolitan area, the main city and various surrounding towns, villages, and counties may have differing practices and charges for rights of way usage and wireless facilities siting. To what extent do these practices and charges differ within a particular state? Does inconsistent treatment of infrastructure providers among states and localities make the deployment of broadband more difficult or time-consuming, or is inconsistency among states and/or localities not problematic as long as infrastructure providers have a clear path to follow within each jurisdiction? To what extent does the need to file multiple applications cause problems for infrastructure providers, regardless of the similarity or differences in the practices and charges involved?

22. To what extent do rights of way governance and wireless facilities siting requirements vary between differentFederal government agencies? Do different agencies require varying types of information or do different agencies require similar information to be presented in different formats? To what extent do any differences among agencies make it more difficult to obtain permits and build out broadband networks on Federally controlled properties? Have there been efforts to increase uniformity? How successful have they been?

23.Other Rights of Way or Wireless Facilities Siting Issues:We ask interested persons to identify and describe any other rights of way or wireless facilities siting issues that have an impact on broadband deployment and adoption. We also ask interested parties to identify any other practices or approaches that have been particularly beneficial to facilitating broadband deployment. Do government rights of way owners or wireless facilities siting authorities impose requirements that are not directly relevant to intended use? For example, in some cases in the past, localities owning rights of way have required that infrastructure providers supply information of the type usually required for a certificate of operating authority from the state. Is this an ongoing requirement for applicants seeking rights of way or siting permits? Are there other examples of such requirements? What are the policy reasons for such requirements? Are there adjustments that could be made to ensure that localities obtain necessary information and address legitimate concerns?

24.Private Rights of Way and Tower Sites:We ask interested persons to provide information on issues that arise in the context of private rights of way or tower sites to the extent such information might be helpful to the Commission in achieving a complete understanding of potential public rights of way issues or issues concerning tower siting on public lands.

25.General Scope of Concerns:We seek comment on whether specific rights of way and wireless facilities siting concerns are widespread or generally limited to particular Federal agencies, states, Tribes, and localities. Are rights of way and wireless facilities siting concerns generally less widespread in states that have adopted comprehensive rights of way laws than in other states? Are rights of way and wireless facilities siting concerns more common in certain types of areas, such as cities and surrounding suburbs, and less common in rural areas? We also ask interested persons to comment on the extent to which rights of way and wireless facilities siting concerns are likely to increase or decrease in the near future. For example in other contexts, it appears that many long-term rights of way contracts will expire in the next few years. Is this likely to cause a spike in rights of way disputes? Will the need for new facilities to provide next generation wireless services increase concerns regarding facilities siting?

26.Additional Data Gathering:We seek input on whether the Commission should take any additional steps to gather information on issues relevant to this proceeding, including workshops, surveys, and/or mandatory data collections. Are there any existing sources of relevant data the Commission could rely on for purposes of this proceeding?

27. We seek input on the costs and benefits of each of these approaches and whether any of these approaches should be pursued in this proceeding. Are there any other approaches that would yield better results with similar or smaller investments of time and effort?

28. We seek information on what interested parties have already done to address rights of way and wireless facilities siting concerns. Have the Federal government, states, localities, Tribes, and/or the organizations representing them developed best practices for rights of way and wireless facilities siting governance? We also seek comment on best practices proposed by private sector entities. Are there existing compendia of rights of way and wireless facilities siting best practices? Aside from state statutes, have there been efforts to develop consolidated rights of way application processes that cover multiple jurisdictions and reduce or eliminate the need to file multiple applications? Have other approaches to improving rights of way and wireless facilities siting governance been attempted? We request comment on the effects of previous efforts to address rights of way and wireless facilities siting governance. Have state statutes governing rights of way helped increase uniformity and reduce costs? We encourage states that have adopted such legislation to describe the approach adopted as well as the benefits and drawbacks. In addition, we ask interested persons to submit information on instances in which government entities and industry have worked together in a positive manner to foster broadband deployment, and describe the factors or circumstances that led to such constructive collaboration.

29. In this section, we ask interested persons to comment on a number of actions the Commission might take to foster broadband deployment by addressing rights of way and wireless facilities siting concerns. For analytical purposes we have broken the options into two groups: One focused primarily on possible voluntary programs and educational activities coordinated or facilitated by the Commission, and the other involving the exercise of Commission rulemaking or adjudicatory authority. These sets of options are not mutually exclusive. We ask interested parties to comment on the benefits and costs of each of these potential actions, and to quantify those benefits and costs to the extent possible. We also ask interested parties to comment on the extent of the Commission's authority to take the various actions discussed below, particularly the Commission's authority to engage in rulemaking and/or adjudication. We also ask whether there are other effective options to foster broadband deployment through improvements in rights of way or wireless facilities siting governance.

30.Commission Educational Efforts and Voluntary Activities:Should the Commission address rights of way and wireless facilities siting concerns through educational efforts and voluntary activities? We ask interested parties to focus on the substantive scope of such educational voluntary activities described below.

31.Best/Worst Practices:Should the Commission compile a set of best practices for public rights of way and wireless facilities siting policies that are consistent with facilitating broadband deployment? If so, how should this be done? Should this effort focus on a limited set of problematic issues, or should we instead try to develop a comprehensive set of best practices?

32.Increased Uniformity:Closely related to the issue of best practices, although emphasized somewhat differently, is the issue of increased uniformity. Should the Commission work to increase uniformity in rights of way and wireless facilities siting governance among localities and/or within the Federal government? Could the Commission, in partnership with affected stakeholders, develop a model application processes or other procedures or practices, to lower costsand streamline processes across multiple jurisdictions?

33. With respect to uniformity in practices and procedures within the Federal government, what if any steps should the Commission take to help streamline the process of siting facilities on Federal lands? Should the Commission, for example, recommend convening or participating in an inter-agency task force to inventory current procedures and identify benchmarks for best practices?

34.Competitions and Awards:We also ask interested parties to comment on whether the Commission should encourage best practices and increased uniformity by initiating a “race to the top” type of competition. The Commission could promote streamlined processes that provide timely access to rights of way and wireless facilities siting by recognizing individual localities for their outstanding efforts on these issues. By doing so, the Commission would be encouraging more localities and states to implement rights of way or wireless facilities siting best practices and/or increase uniformity in these areas. What kinds of incentives would encourage participation by localities and states?

35.Commission Sponsored Mediation:Should the Commission establish a process for voluntary mediation of rights of way and wireless facilities siting disputes by selected state or local representatives working in conjunction with industry? How should such a process be structured, and how could participation be encouraged?

36.Improved Facilities Deployment Practices in Rights of Way:Should the Commission work to raise awareness about facilities deployment techniques that could reduce costs and speed deployment? For example, should the Commission promote micro trenching and deployment of Distributed Antenna System facilities on street light and traffic light poles where appropriate? We invite comment on other innovative rights of way or wireless facilities deployment practices that should be considered in this regard.

37.Recommendations to Congress or the Administration:The National Broadband Plan recommended that Congress consider allowing agencies to set fees for access to rights of way for broadband services based on direct cost recovery, especially in markets currently underserved or unserved by broadband. The Plan also recommended that the Executive Branch develop master contracts for all Federal property and buildings covering the placement of wireless towers. Are there additional specific actions that the Commission should recommend to the Administration or to Congress that would remove roadblocks and encourage further broadband build out on Federal properties? For example, should the Commission recommend that the Executive Branch formally permit wireless facility sites on Federal property, including postal service property? Should the Commission make recommendations to Congress or the Administration concerning rights of way or wireless facilities siting concerns? For example, is legislation needed to address certain concerns? Would Congressional action promote uniformity? Should the Commission make recommendations to the Administration? We invite suggestions for specific legislative language recommended for Congress.

38. In this section we discuss possible rulemaking and adjudication options. We note that these options may work well as backstops to voluntary action and Commission educational efforts or in combination with such options.

39.Adopt Policy Guidelines:Should the Commission adopt policy guidelines addressing rights of way or wireless facilities siting issues? Such guidelines could set out the Commission's views on various issues, such as application processing time frames, but would not be enforceable as rules. We invite comment on the policy benefits and drawbacks of this option.

40.Adopt Rules:Should the Commission adopt rules designed to foster broadband deployment by addressing rights of way or wireless facilities siting problems?

41.Substantive Scope of Policy Guidelines or Rules:What subjects should be addressed by any policy guidelines or rules adopted by the Commission? For example, should the Commission address the issues described below? Are there other substantive issues in this proceeding that the Commission should address through policy guidelines or rules?

42.Safe Harbors/Triggers:Should the Commission adopt policy guidelines or rules establishing safe harbors for rights of way and wireless facilities siting procedures, practices, and charges; or triggers that would subject such procedures, practices, and charges to heightened scrutiny by the Commission or a court in particular circumstances? If so, what procedures, practices, and rates should be included in this approach?

43.Billing Practices:Should the Commission adopt guidelines or rules allowing or requiring infrastructure providers to impose separate line item fees to recover rights of way or wireless facilities siting charges directly from subscribers in the jurisdiction imposing such charges in order to increase transparency and accountability and minimize cross-subsidies?

44.Interpretation of Sections 253 and 332:Should the Commission adopt guidelines or rules interpreting the terms of these statutory provisions with respect to rights of way and wireless facilities siting requirements? If so, what provisions of each section should the Commission address and how should those provisions be interpreted?

45.Adjudication:Should the Commission address certain rights of way problems through adjudication under section 253? Would this approach be well suited to addressing problems that are not widespread, but may represent significant obstacles to broadband deployment in a particular locality or a small number of localities?

46. We also invite interested parties to suggest other specific actions the Commission could take to improve policies regarding public rights of way and wireless facilities siting. In each case, we ask them to describe the problem or subject matter addressed and its effect on broadband deployment. We then ask them to explain their proposal. We also ask interested persons to describe the benefits of such proposals and to address potential drawbacks. In addition, we ask interested persons to identify proposals that can be implemented relatively quickly and those that would take longer to implement, along with suggested timelines.

47. We believe the Commission has authority to engage in educational activities to foster broadband deployment through improved policies regarding public rights of way and wireless facilities siting and to coordinate and participate in voluntary activities designed to achieve this goal. We also believe the Commission has authority to adopt policy guidelines and rules concerning these issues. We ask for comment on these views and on whether the Commission has authority to adjudicate rights of way cases under section 253. An analysis of these legal issues is set forth below. In this regard, we emphasize that the views described here do not represent final determinations on these issues and that our ultimate legal conclusions will reflect a careful consideration of the comments addressing these issues.

48. We begin by reviewing the terms of the statutory provisions most relevant to this proceeding—section 706 of the 1996 Telecommunications Act and sections 253 and 332(c)(7) of the Communications Act. We also address a number of additional statutory provisions in this section.

49. Section 706(a) provides that the Commission is to encourage the deployment of advanced telecommunications capability to all Americans (including, in particular, elementary and secondary schools and classrooms) on a reasonable and timely basis. In granting the Commission authority to fulfill this mandate, Congress specifically directed the Commission to use various regulatory methods, including those that remove barriers to infrastructure investment. In the2010 Sixth Broadband Deployment Report,the Commission concluded that broadband was not being deployed to all Americans in a reasonable and timely manner. When the Commission makes such a negative determination, section 706(b) requires that the agency take immediate action to accelerate broadband deployment of by removing barriers to infrastructure investment and promoting competition.

50. Section 253(a) bars state or local statutes, regulations, or other legal requirements that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. Section 253(b) contains a safe harbor preserving competitively neutral state requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers. Section 253(c) also preserves the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis. Section 253(d) expressly requires the Commission to preempt state or local government action in certain situations.

51. Section 332(c)(7) of the Act applies to rights of way issues concerning wireless services, It preserves state and local authority over decisions regarding the placement, construction, and modification of personal wireless service facilities subject to certain limitations. However, under section 332(c)(7), the regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government must not prohibit or have the effect of prohibiting the provision of personal wireless services. The statute also requires the State or local government to act on any request to place, construct, or modify personal wireless service facilities within a reasonable period of time.

52. We believe the Commission has ample authority to engage in educational efforts to foster broadband deployment by encouraging improvements in policies regarding public rights of way and wireless facilities siting. We also think the Commission has ample authority to participate in or facilitate voluntary endeavors to achieve this goal. Section 706(a) specifically charges the Commission with encouraging the deployment of broadband through the use of methods that remove barriers to infrastructure investment. Section 1 of the Act also states that the Commission was created to ensure rapid, efficient communication services. In addition, section 4(i) gives the Commission broad authority to take whatever actions are necessary to the execution of its functions as long as they are not otherwise inconsistent with the Act. Education and involvement in voluntary programs would advance the goals of section 706 and section 1 and come within the broad flexibility accorded the Commission under section 4(i). We believe that such activities also further the goals of sections 253 and 332 by reducing the likelihood of state or local actions that have the effect of prohibiting the provision of a telecommunications service or personal wireless service in violation of those sections. We seek comment on these issues.

53. We also believe that the Commission has authority to engage in rulemaking to improve rights of way and wireless facilities siting governance. Section 201(b) states that the Commission may prescribe rules and regulations necessary to carry out the provisions of the Act. Section 303(r) contains a similar grant of rulemaking authority, and section 4(i) authorizes the Commission to make rules and regulations, and issue orders necessary in the execution of its functions. Thus, we believe the Commission has broad general rulemaking authority that would allow it to issue rules interpreting sections 253 and 332. We seek comment on this view. Could the Commission, for example, adopt rules further defining when a state or local legal requirement constitutes an effective barrier to the provision of a telecommunications service under section 253(a) or defining what constitutes fair and reasonable compensation under section 253(c)? We also seek comment on our authority to adopt rules concerning matters in this proceeding pursuant to section 706.

54. We also invite comment on whether the Commission has authority to adjudicate rights of way disputes under section 253. The Commission has not taken action to resolve this issue and courts have taken differing approaches. Moreover, to the extent that the statutory language is ambiguous, the Commission is not bound by those courts' statutory interpretations.

Public Participation and Request for Comments:We encourage you to submit comments and related material on the draft guidance for the core curriculum specifications. All comments received will be posted, without change, tohttp://www.regulations.govand will include any personal information you have provided.

Submitting comments:If you submit a comment, please include the docket number for this notice (FMCSA-2008-0363) and provide a reason for each suggestion or recommendation. You may submit your comments and material online by fax, mail, or hand delivery but please use only one of these means. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Notices” and insert “FMCSA-20008-0363” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit them by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period.

Viewing the comments:To view the comments, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “FMCSA-2008-0363” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Privacy Act:Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the U.S. Department of Transportation's (DOT) Privacy Act system of records notice for DOT Federal Docket Management System (FDMS) in theFederal Registerpublished on January 17, 2008 (73 FR 3316) athttp://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

On December 1, 2008, FMCSA published a Notice of Proposed Rulemaking (NPRM) for the establishment of a National Registry of Certified Medical Examiners (National Registry), 73 FR 73129. The National Registry and requirements for medical examiner training are required by section 4116 of SAFETEA-LU, as codified in 49 U.S.C. 31136(a)(3), and 49 U.S.C. 31149(c) and (d).

One of the components proposed in the NPRM was a provision that medical examiners would be required to successfully complete certain training and testing prior to being listed on the National Registry. The training would be based on “core curriculum specifications” developed by FMCSA. In the NPRM, FMCSA stated that the core curriculum specifications would be based on the current physical qualifications regulations and advisory criteria for conducting commercial motor vehicle (CMV) driver medical examinations and that they would be periodically reviewed and updated by FMCSA. The Agency also said it would provide to private-sector training organizations guidance about the core curriculum specifications for use in delivering effective training to medical examiners about FMCSA's physical qualification standards. See 73 FR 73132-33. However, the Agency did not include for public comment the guidance about the core curriculum specifications that would be made available to assist training providers in developing courses and training materials.

Several comments submitted in response to the NPRM expressed concern that the Agency did not provide more information about the core curriculum in the proposed rule for public review and comment and questioned how guidance for training providers would be established and implemented. FMCSA acknowledges the commenters' concerns about the need for providing the public with an opportunity to review any draft guidance that would be provided for training providers about the core curriculum specifications. Therefore, FMCSA has completed draft guidance for the medical examiner training core curriculum specifications and posted the guidance on the National Registry Web site (http://nrcme.fmcsa.dot.gov) and in the public docket for the National Registry rulemaking and this notice (FMCSA-2008-0363).

FMCSA requests public comment on the draft guidance for the medical examiner proposed core curriculum specifications. Because the guidance is intended to be used as information to assist training providers in developing effective, up-to-date courses for medical examiners, it would be subject to periodic review and change based on any future amendments or revisions to the physical qualifications standards under 49 CFR part 391 issued by FMCSA, and changes in medical procedures and treatments incorporated into the Agency's advisory criteria. For that reason, the Agency does not intend to incorporate the core curriculum specifications into the regulatory text of the NRCME final rule that is expected to be issued later in 2011.

The Agency will consider including in the notice-and-comment rulemaking procedures that would be used to propose amendments or revisions to the actual physical qualifications standards any changes to the guidance for the core curriculum specifications. The Agency requests public comment on its preliminary decision.

Please follow the above instructions for submitting comments to the docket (FMCSA-2008-0363) commenting on the medical examiner draft training specifications. While FMCSA will consider all comments, FMCSA specifically requests that commenters focus on improving the clarity, and accuracy of the draft guidance to the proposed core curriculum specifications.

In addition to the draft guidance for the core curriculum specifications, FMCSA has posted a sample training module on the National Registry Web site (http://nrcme.fmcsa.dot.gov) to assist training providers in developing a curriculum that meets the training specifications.

We intend that any final action resulting from this proposal will be as accurate and as effective as possible. Therefore, we request comments or suggestions from governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties. We seek information on the following:

1. What is the best way for us to share information about critical habitat designation boundaries with the public?

2. Could we improve the usefulness of the maps in theFederal Registerand Code of Federal Regulations (CFR)? If so how?

3. Does publication of the textual descriptions of boundaries of critical habitat in theFederal Registerand CFR provide any practical value?

4. What is the usefulness of the critical-habitat-boundary descriptions in latitude-longitude, Public Land Survey descriptions, or Universal Transverse Mercator (UTM) coordinates?

5. Besides the Internet, what other methods should we use to convey information regarding critical habitat boundaries?

6. Will the changes proposed make our critical habitat designations easier to understand? Are there other changes that are needed?

You may submit your information concerning this proposal by one of the methods listed in theADDRESSESsection. If you submit information viahttp://www.regulations.gov,your entire submission—including any personal identifying information—will be posted on the Web site. If you submit a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this personal identifying information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments onhttp://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection onhttp://www.regulations.govor by appointment during normal businesshours at the U.S. Fish and Wildlife Service, Endangered Species Program, 4401 N. Fairfax Drive, Room 420, Arlington, VA 22203; telephone 703-358-2171 or National Marine Fisheries Service, Office of Protected Resources, 1315 East-West Highway, Silver Spring, MD 20910; telephone 301-713-1401 (seeFOR FURTHER INFORMATION CONTACT).

Before a plant or animal species can receive the protection provided by the Endangered Species Act of 1973, as amended (16 U.S.C. 1531et seq.) (Act), it must first be added to the Federal lists of threatened and endangered wildlife and plants. The List of Endangered and Threatened Wildlife (found in title 50 of the Code of Federal Regulations (CFR) in § 17.11) and the List of Endangered and Threatened Plants (found in 50 CFR 17.12) contain the names of all organisms that have been determined by the FWS and NMFS (jointly referred to as the Services) to qualify as “endangered species” or “threatened species.” When a species is listed as endangered or threatened under the Act, the Services designate specific areas as “critical habitat.”

Under section 4(b)(5)(A) of the Act, as amended (16 U.S.C. 1531et seq.), and the implementing regulations contained within 50 CFR sections 17.94(b), 226.101, 424.12(c), 424. 16(b) and (c)(1)(ii), and 424.18(a), the Services are required, when designating or revising critical habitat for species listed under the Act, to publish the complete text of the regulation, maps, and descriptions of such habitat in the Regulation Promulgation section of a rulemaking published in theFederal Register.We have found over time that textual descriptions of critical habitat boundaries are often difficult to interpret and understand, and do not provide clarity regarding the areas being designated. Publishing these textual descriptions is also inefficient and costly. Below we discuss our current requirements and their limitations, and proposed regulation changes to address these issues.

NMFS' current practice is to publish maps in theFederal Registeralong with a textual description of the boundaries of the areas being designated as critical habitat in both their proposed and final rules. FWS publishes only the maps in the proposed critical habitat rule and then publishes the maps along with a textual description of the boundaries in the final critical habitat rule. We previously described the boundaries following a variety of methods including Public Land Survey System designations (which specify township, range, and section; sometimes referred to as the “rectangular survey system”) and metes-and-bounds (a system of describing a parcel of land using the physical features of local geography, along with directions and distances, to define the boundaries). However, as GIS and specific geographic-based data have become more available, we have been using predominantly Universal Transverse Mercator (UTM) coordinate system (a grid-based system employing a series of 60 zones to specify locations on the surface of the Earth) and latitude-longitude. We adopted these practices because our current regulations at 50 CFR 424.12(c) state “Each critical habitat will be defined by specific limits using reference points and lines as found on standard topographic maps of the area.” Unfortunately, these descriptions are often difficult to interpret and understand, and do not provide clarity regarding which areas are being designated as critical habitat. Therefore, in addition to the maps and textual descriptions published in theFederal Register, over the last several years we have provided the public with interactive maps and additional descriptions, on the Services' Internet sites, Regulations.gov, and at local field offices. References to these Internet sites are cited throughout the proposed (NMFS only) and final (NMFS and FWS) rules and in our outreach materials for the specific action. In addition, we have provided maps and GIS coverages (data layers) to affected Federal agencies, States, counties, jurisdictions, and interested parties for use in their computer databases and to make available to their constituencies. The public's reliance on these latter materials in lieu of the textual descriptions published in theFederal Registerand codified in the Code of Federal Regulations reinforces our view that the textual descriptions are of limited utility in informing the public as to which areas are designated critical habitat.

Given that the textual descriptions are of limited utility, we are proposing to revise the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in theFederal Registerand reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. Each Critical Habitat area will be shown on a map, with more detailed information discussed in the preamble of the rulemaking documents published in theFederal Register. The maps and brief textual descriptions that we plan to publish in theFederal Registerafter we finalize this proposed rule will be sufficient to inform the public as to where a particular critical habitat designation is located, and thus sufficient to provide notice to the public and give them an opportunity to comment. We will provide further information online on our web sites, but we do not think it is necessary for the public to have UTM or latitude-longitude coordinates in order to know where critical habitat is located. We believe these changes will be for the public good and make the process more user-friendly, without compromising the public involvement or the overall process.

Eliminating the need to publish detailed textual descriptions in theFederal Registerand annually in the CFR will also result in significant financial savings, thereby saving Federal resources. In FWS's final designations, UTM coordinate pairs or other textual descriptions of the boundaries of areas often account for more than half of the document, resulting in significantFederal Registerpublication costs. For example, FWS spent approximately $764,523 in fiscal year 2008, $539,639 in fiscal year 2009, and $662,952 in fiscal year 2010 to publish critical habitat designations in theFederal Register, for a total of approximately $1,967,114 for the three fiscal years combined. If we estimate that 50 percent of those costs are spent on the publication of the textual descriptions of the boundaries, then publication of those descriptions will cost $983,557 for the three fiscal years, or approximately $327,852 per fiscal year.

In addition, the regulation portion of the rule, including the maps and textual descriptions of the boundaries, is reprinted annually in the CFR, resulting in a further expenditure of taxpayer resources. FWS has spent approximately $80,000 in fiscal year 2008, $92,400 in fiscal year 2009, and $83,160 in fiscal year 2010 to reprint critical habitat designations in the CFR. Based on a review of the current volume (i.e.,number of pages) of critical habitat designations represented in the CFR, we estimate that the textual descriptions account for approximately 75 percent of the volume and therefore 75 percent of the printing costs. Using the estimated 75 percent as the cost of reprinting the textual descriptions of the boundaries, publication of those descriptions willcost $191,670 for the three fiscal years, or approximately $63,890 per fiscal year. Adding this to theFederal Registercosts discussed above, we estimate that the annual cost for publishing textual descriptions of boundaries in theFederal Registerand then reprinting them in the CFR will be nearly $391,742 for FWS alone. Thus, eliminating the need to publish latitude-longitude coordinates, UTM coordinate pairs or other detailed textual descriptions in theFederal Registerand CFR would result in a significant cost savings to the Services and the public as a whole.

Finally, relying on maps and brief textual descriptions to identify areas designated as critical habitat is consistent with the ESA. Section 4(a)(3)(A) of the Act only requires that critical habitat be designated “by regulation.” Moreover, section 4(b)(5)(A) of the Act indicates that the Secretary shall “not less than 90 days before the effective date of the regulation—(i) publish a general notice and the complete text of the proposed regulation in theFederal Register, and (ii) give actual notice of the proposed regulation (including the complete text of the regulation).” In the context of critical habitat designation, we interpret the mandate to publish the “complete text” of the proposed regulation as requiring that the regulation provide a sufficiently detailed description of the area included within the proposed designation, in the form of maps and any accompanying text, so as to provide all interested persons with a meaningful opportunity to comment. Due to the technical limitations on what can be published in theFederal Register(i.e.,map size and detail), we anticipate that information we make available to the public through our outreach efforts, Internet sites, and at local Services offices will also assist the Services in addressing day-to-day questions about the designation. To the extent that questions arise from the public as to the precise coverage of a proposed or final designation (e.g.,due to the scale at which the published maps are drawn), additional materials will be available on the Web site or at Service offices to provide the needed clarity.

In this regard, we note that the Services never maintained that requiring detailed textual descriptions was legally necessary. Instead, the first critical habitat regulations required only that critical habitat designations be “accompanied by maps and/or geographical descriptions.” 43 FR 870, 876 (Jan. 4, 1978). Although the Services subsequently added the requirement that critical habitat designations include textual descriptions describing the specific boundary limits of the critical habitat, there is nothing in the preamble to that rule indicating that the Services did so because the ESA required it. Rather, it was in response to several commenters, who had opined that the proposed rule was not sufficiently clear in setting out the method by which critical habitat boundaries would be described. 45 FR 13009, 13015 (Feb. 27, 1980). With this change, the regulations would continue to be explicit as to the method by which critical habitat boundaries would be described; it would just do so by means that did not require detailed textual descriptions.

The following table shows the current and proposed CFR text. After Table 1, we provide explanations of why we are proposing to revise the text as indicated.

The existing regulation states that the map provided by the Director does not, unless otherwise indicated, constitute the definition of the boundaries of a critical habitat. In order to provide more clarity regarding the areas being designated, as well as be more efficient and cost-effective, we are proposing to change the wording of the first sentence to state “For critical habitat designations published and effective after [EFFECTIVE DATE OF FINAL RULE], the map(s) provided by the Secretary of DOI constitutes the definition of the boundaries of a critical habitat designation.” We are replacing “the Director” with “the Secretary of DOI” since the authority to designate critical habitat under the Act lies with the Secretary due to the Secretarial discretion under section 4(b)(2) of the Act to exclude specific areas from final critical habitat, and this authority has not been delegated to the Director. For existing critical habitat designations, we also intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR, without changing the boundaries of those designations, in separate rulemakings in order to save the annual reprinting cost.

The second sentence of the existing regulation states “Such maps are provided for reference purposes to guide Federal agencies and other interested parties in locating the general boundaries of the Critical Habitat.” We are proposing to revise this sentence to read “Each Critical Habitat area will be shown on a map, with more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office of the Service responsible for such designation.” We believe this will provide greater clarity regarding the areas being designated, as well as be a more efficient and cost effective way to provide information to the public concerning areas designated as critical habitat. We acknowledge that what is printed in theFederal Registerand subsequently in the CFR will be the legally binding delineation of critical habitat. However, should there be ambiguity with the scale of the map, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office responsible for such designation habitat.

We are proposing also to replace the third existing sentence “Critical habitats are described by reference to surveyable landmarks found on standard topographic maps of the area and to the States and county(ies) within which all or part of the Critical Habitat is located.” The new wording would be “Each area will be referenced to the State(s), county(ies), or other local government units within which all or part of the Critical Habitat is located. General descriptions of the location and boundaries of each area may be provided for clarification purposes or to explain the exclusion of sites (e.g.,paved roads, buildings) within the mapped area.” This change will relieve us of the regulatory and financial burden of publishing the textual descriptions of the boundaries of critical habitat in the regulations, which have shown to be of limited use to the general public.

This section addresses critical habitat designations made by the Secretary of Commerce. We are proposing to replace the “Maps and charts identifying designated critical habitat * * *” phrase in the beginning of the last sentence with “Additional information regarding designated critical habitat * * *.” This new language will provide the flexibility needed to provide useful information to the public concerning areas designated as critical habitat.

We are proposing to remove the references to defining critical habitat by specific limits using reference points and lines as found on standard topographic maps of the area. The proposed revision would read “Each Critical Habitat area will be shown on a map, with more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office of the Service responsible for such designation.” This proposed revision would provide more clarity regarding the areas being designated, as well as relieve the regulatory and financial burden of both Services being required to print these reference points in theFederal Registerand reprint them annually in the CFR. We acknowledge that what is printed in theFederal Registerand subsequently in the CFR will be the legally binding delineation of critical habitat. However, should there be ambiguity with the scale of the map, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office responsible for such designation habitat. We also intend to remove the textual descriptions of final critical habitat boundaries set forth in the CFR for existing critical habitat designations in separate rulemakings in order to save the annual reprinting cost.

We are proposing to add the following sentence to this regulation: “General descriptions of the location and boundaries of each area may be provided for clarification purposes or to explain the exclusion of sites (e.g.,paved roads, buildings) within the mapped area.”

The proposed change to this section is in the first sentence where it currently states “A notice of a proposed rule to carry out one of the actions described in § 424.10 shall contain the complete text of the proposed rule.” We are proposing to change the wording “shall contain the complete text of the proposed rule” to “will contain a detailed description of the proposed action.” Although we will in fact publish “the complete text of the proposed regulation,” as required by 16 U.S.C 1533(b)(5)(A)(i), this change in wording, along with the other changes in this notice, will clarify how we interpret this mandate in the context of critical habitat designation. As discussed above, should there be ambiguity with the scale of the map, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office responsible for such designation habitat.

Because the regulation will be the legally binding description of the designation, we included the language “will contain a detailed description of the proposed action” to clarify that the regulation (in the form of maps and any accompanying text) must itself provide a sufficiently detailed description.

The proposed change to this section is removing the parenthetical phrase that states “(including the complete text of the regulation).” As stated above, this change in wording, along with the other changes proposed in this notice, will clarify how we interpret this mandate in the context of critical habitat designation. As discussed above, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office responsible for such designation habitat.

Because the regulation will be the legally binding description of the designation, we included the language “will contain a detailed description of the proposed action” to clarify that the regulation (in the form of maps and any accompanying text) must itself provide a sufficiently detailed description.

This section addresses the final rule requirements. In the second sentence of the existing regulation, we are proposing to replace “the complete text of the rule” with “a detailed description of the action being finalized.” As with the sections above that deal with the requirements for a proposed rule, changing the wording here, along with the other changes proposed in this notice, will clarify how we interpret this mandate in the context of critical habitat designation. As discussed above, our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office responsible for such designation habitat. Because the regulation will be the legally binding description of the designation, we included the language “will contain a detailed description of the proposed action” to clarify that the regulation (in the form of maps and any accompanying text) must itself provide a sufficiently detailed description.

In the fourth sentence of the existing regulation, we are proposing to remove the references to the final rule containing a description of the boundaries of the critical habitat being designated. We are modifying this section and expanding the discussion on the requirement for a map. The new proposed section would read: “A rule designating or revising critical habitat will also include a map of the critical habitat area. The map itself constitutes the official boundary of the designation. The official boundary may also be delineated by rule text or by the map as modified by rule text. The Services may also create additional explanatory text, information, or maps and include them in the preamble of the rulemaking document or make them available from the lead Service office responsible for the designation.” This change will provide more clarity regarding the areas being designated, as well as allow us to reduce our printing costs in both theFederal Registerand for the annual reproductions of the CFR. Our interpretation of what is included within the designation will be provided with the more detailed information discussed in the preamble of the rulemaking documents published in theFederal Registerand made available from the lead office responsible for such designation habitat. We believe this change will not increase the burden on the public.

The Office of Management and Budget (OMB) has determined that this rule is not significant under Executive Order 12866 (E.O. 12866). OMB bases its determination upon the following four criteria:

a. Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

b. Whether the rule will create inconsistencies with other Federal agencies' actions.

c. Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

d. Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601et seq.,whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e.,small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted, would not have a significant economic effect on a substantial number of small entities as defined under the RFA.

This proposed rule would revise the implementing regulations contained within 50 CFR 17.94(b), 226.101, 424.12(c), 424.16(b) and (c)(1)(ii), and 424.18(a), to eliminate the requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in theFederal Registerand reprinting in the CFR, and instead provide that the map(s), as clarified or refined by any textual language within the rule, constitutes the definition of the boundaries of a Critical Habitat. A full description of the action, why it is being considered, and the legal basis for this action are contained in the preamble to this proposed rule. The proposed rule does not duplicate, overlap, or conflict with other Federal rules.

This rulemaking amends the procedural requirements for NMFS and FWS when designating critical habitat. NMFS and FWS are the only entities that are directly impacted by this rule, and they are not considered to be small entities under SBA's size standards. No other entities are directly impacted by this rule.

The revisions to the implementing regulations proposed herein are not expected to impose any direct costs on regulated entities. The elimination of the procedural requirement to publish textual descriptions of proposed (NMFS only) and final (NMFS and FWS) critical habitat boundaries in theFederal Registerand reprinting in the CFR is an administrative action, and it is intended to facilitate public understanding of the critical habitat designation process and make it easier for the public to determine if specific areas are within the critical habitat designation. In fact, this regulation would make the process more cost-effective for the agencies and the public as a whole and would potentially save the FWS alone an estimated $391,742 annually. Therefore, for the reasons above, this proposed rule would not have a significant economic impact on a substantial number of small entities.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501et seq.), the Services make the following findings:

a. This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding,” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance or (ii) a duty arising from participation in a voluntary Federal program.”

b. We do not believe this rule will significantly or uniquely affect small governments, because the revisions to the implementing regulations proposed herein will facilitate public understanding of the critical habitat designation process, and the areas included within the critical habitat, and make the process more cost-effective for the agencies and the public as a whole by potentially saving the FWS alone an estimated $391,742 annually. As such, we do not believe that a Small Government Agency Plan is required.

In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have evaluated the proposal to revise the implementing regulations for designating critical habitat and have determined that this proposed rule does not pose significant takings implications. The proposed revisions to the implementing regulations are intended to facilitate the public understanding of the rulemaking process for critical habitat.

In accordance with Executive Order 13132 (Federalism), the rule does not have significant Federalism effects. A Federalism assessment is not required. The revisions to the regulations addressed in this proposed rule are intended to facilitate the public understanding of the rulemaking process for critical habitat, and thus should not significantly affect or burden the authority of the States to govern themselves.

In accordance with Executive Order 12988 (Civil Justice Reform), the Office of the Solicitor has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order. The revisions to the regulations addressed in this proposed rule are intended to facilitate the public understanding of the rulemaking process for critical habitat, and thus should not significantly affect or burden the judicial system.

This rule does not contain any new collections of information that require approval by OMB under the Paperwork Reduction Act. (44 U.S.C. 3501et seq.).This rule will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969, need not be prepared in connection with regulations adopted under section 4(a) of the Act. We published a notice outlining our reasons for this determination in theFederal Register.

Also, it is our position that, outside the jurisdiction of the United States Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in theFederal Registeron October 25, 1983 (48 FR 49244). This assertion was upheld by the Circuit Court of the United States for the Ninth Circuit (Douglas Countyv.Babbitt,48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

However, we have analyzed this proposed rule in accordance with the criteria of the National Environmental Policy Act. Since this proposal is administrative in nature (i.e.,we are making optional the inclusion of any textual description of the boundaries of the designation in theFederal Register), there is no effect to the quality of the human environment. This proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment. An environmental assessment is not required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), Executive Order 13175 “Consultation and Coordination with Indian Tribal Governments,” and the Department of the Interior Manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Native American Tribes on a government-to-government basis. We have evaluated the potential effects on federally recognized Tribes from these proposed revisions to our implementing regulations for critical habitat. We have determined that there are no potential effects to federally recognized Tribes since the revisions to the implementing regulations are intended to facilitate the public understanding of critical habitat designations and save taxpayer monies. We will, however, continue to coordinate with Tribes as we promulgate critical habitat designations.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed rule to revise the implementing regulations for designating critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

a. Be logically organized;

b. Use the active voice to address readers directly;

c. Use clear language rather than jargon;

d. Be divided into short sections and sentences; and

e. Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in theADDRESSESsection. To better help us revise this rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

The primary authors of this package are staff members from the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

Accordingly, we propose to amend parts 17, 226, and 424, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below: