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Code · REGISTER · 2006-01-31 · Nuclear Regulatory Commission · Notices

Notices. Proposed rule

26,811 words·~122 min read·/register/2006/01/31/06-868

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-22-S 71 20 Tuesday, January 31, 2006 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Parts 30, 40, 50, 60, 61, 63, 70, 71, 72, and 76 RIN 3150-AH59 Clarification of NRC Civil Penalty Authority Over Contractors and Subcontractors Who Discriminate Against Employees for Engaging in Protected Activities AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule. SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is proposing to amend its employee protection regulations to clarify the Commission's authority to impose a civil penalty upon a non-licensee contractor or subcontractor of a Commission licensee, or applicant for a Commission license who violates the NRC's regulations by discriminating against employees for engaging in protected activity.
The NRC is also proposing to amend its employee protection regulations related to the operation of Gaseous Diffusion Plants to conform with the NRC's other employee protection regulations and to allow the NRC to impose a civil penalty on the United States Enrichment Corporation (USEC or Corporation), as well as a contractor or subcontractor of USEC. DATES: The comment period expires April 17, 2006. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
ADDRESSES: You may submit comments by any one of the following methods. Please include the following number RIN 3150-AH59 in the subject line of your comments. Comments on rulemakings submitted in writing or electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission.
Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. E-mail comments to: *SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at
(301)415-1966. You may also submit comments via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov.* Address questions about our rulemaking Web site to Carol Gallagher
(301)415-5905; e-mail *cag@nrc.gov.* Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m., Federal workdays. (Telephone
(301)415-1966). Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at
(301)415-1101. Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking Web site at *http://ruleforum.llnl.gov.* Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (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 Public Document Room
(PDR)Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Doug Starkey, Office of Enforcement, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; Telephone
(301)415-3456; e-mail *drs@nrc.gov.* SUPPLEMENTARY INFORMATION: Background The Commission's employee protection regulations in 10 CFR 30.7, 40.7, 50.7, 60.9, 61.9, 63.9, 70.7, 71.9, 72.10, and 76.7, prohibit discrimination by a Commission licensee, applicant for a Commission license, a holder of or applicant for a certificate of compliance
(CoC)or the Corporation, or contractor or subcontractor of these entities, against employees for engaging in certain protected activities. These regulations identify certain enforcement actions for violations of the requirements. The enforcement actions are denial, revocation, or suspension of the license or certificate; imposition of a civil penalty on the licensee or applicant; or other enforcement action. While the employee protection regulations prohibit discrimination by a contractor or subcontractor, they do not explicitly provide for imposition of a civil penalty on a contractor or subcontractor. On January 16, 1998, the NRC issued an enforcement action against Five Star Products, Inc., and Construction Products Research, Inc., contractors to the nuclear industry, for discriminating against one of its employees. Following this enforcement action, the NRC considered modifications to the NRC's employee protection regulations that would clearly allow the NRC, within the limits of its jurisdiction, to impose civil penalties on non-licensees for discriminating against employees who have engaged in protected activities. At the time that NRC took the enforcement action against Five Star Products, Inc., and Construction Products Research, Inc., the NRC was engaged in litigation with another non-licensee, Thermal Science, Inc., that included an issue concerning the scope of the Commission's civil penalty authority over non-licensees. Consequently, the NRC deferred modifying the NRC's employee protection regulations pending resolution of action in Thermal Science, Inc., v. NRC (Case No. 4:96CV02281-CAS). That case was subsequently settled. On April 14, 2000, the NRC Executive Director for Operations approved the establishment of a Discrimination Task Group
(DTG)to, among other things, evaluate the NRC's handling of matters covered by its employee protection regulations. During this review, the DTG held 12 public meetings and provided the public with an opportunity to comment on its draft report. Among other recommendations, the DTG recommended in its report, “Policy Options and Recommendations for Revising the NRC's Process for Handling Discrimination Issues,” dated April 2002, that rulemaking be initiated to allow the NRC to impose civil penalties on contractors working for NRC licensees. The DTG received public comments both in favor of, and opposed to, the recommendation that NRC conduct a rulemaking to allow the imposition of civil penalties against contractors for violating the NRC's employee protection requirements. The DTG's report was forwarded to the Commission as an attachment to SECY-02-0166, “Policy Options and Recommendations for Revising the NRC's Process for Handling Discrimination Issues,” dated September 12, 2002. On March 26, 2003, the Commission issued a Staff Requirements Memorandum
(SRM)on SECY-02-0166, approving the recommendations of the DTG as revised by the Senior Management Review Team, subject to certain comments. The Senior Management Review Team was appointed by the Executive Director of Operations to review the final recommendations of the DTG and provide any additional perspectives that could enhance the potential options. The Commission approved, without comment, the DTG rulemaking recommendation regarding civil penalties against contractors. Discussion The proposed amendments would allow the Commission to impose civil penalties on contractors or subcontractors for violations of Commission employee protection requirements. The proposed rule represents a significant change in Commission policy in that, currently, a licensee can receive a civil penalty for the discriminatory activities of its contractor or subcontractor, while the contractor or subcontractor is not subject to civil penalty enforcement action. The proposed amendments would clarify the NRC's authority to impose a civil penalty directly on contractors or subcontractors who violate the NRC's employee protection regulations. This authority derives from section 234 of the Atomic Energy Act, which provides that the Commission may impose civil penalties on any person who violates any rule, regulation, or order issued under any of the enumerated provisions of the Act, or any term, condition, or limitation of any license or certification issued thereunder, or who commits a violation for which a license may be revoked. Section 11s of the Atomic Energy Act broadly defines the term “person” to include any individual, corporation, partnership, firm, association, trust, estate, public or private institution group, Government agency other than the Commission, any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and any legal successor, representative, agent, or agency of the foregoing. In 1991, the Commission amended its regulations to allow it to take enforcement action against unlicensed persons for deliberate misconduct (56 FR 40664; August 15, 1991). In so doing, the Commission emphasized that “any person” as defined in the Atomic Energy Act necessarily encompasses non-licensees, in order to effectuate the purposes of the Act as it applies to licensees. In that rulemaking, the Commission also noted that it may be able to exercise its section 234 authority to impose civil penalties on unlicensed persons who deliberately cause a licensee to be in violation of requirements. In 1998, the NRC issued a Severity Level I Notice of Violation without a civil penalty to Five Star Products, Inc., and Construction Products Research, Inc., in response to their discrimination against a former employee who raised safety concerns. Five Star Products, Inc., and Construction Products Research, Inc., were not licensees, but supplied safety-related basic components and services associated with those basic components to the nuclear industry at the time of the discrimination. 1 1 In an earlier case, CLI-93-23, 38 NRC 169, 178-84 (1993)), the Commission held that Five Star Products is a “subcontractor” within the meaning of Section 211 of the ERA and 10 CFR 50.7. The activities of contractors and subcontractors can clearly affect the safe operation of a licensee's facility so that it is important that contractors and subcontractors abide by the Commission's employee protection regulations to effectuate the purposes of the Act. These amendments would allow the Commission to impose civil penalties on any non-licensee employer that discriminates against an employee for engaging in protected activity, if that employer is a contractor or subcontractor of a licensee, or the Corporation at the time that the employee engaged in the protected activity that resulted in discrimination. These amendments will serve the dual objectives of deterring contractors and subcontractors from violating NRC's employee protection regulations and allowing employees to raise regulatory and safety concerns without fear of retaliation. Both of these objectives are critical to the nuclear industry's ability to carry out licensed activities safely. However, the Commission emphasizes that the proposed amendments do not affect its ability to impose civil penalties against licensees or applicants for discrimination, nor do they diminish the focus on licensee responsibility in the investigative and enforcement process. The Commission has long held licensees to be responsible for maintaining control and oversight of contractor and subcontractor activities. The proposed modifications to the employee protection regulations do not indicate a change in Commission policy in this regard, nor do they diminish the ability of the NRC to impose civil penalties against licensees. There may be instances in which the Commission may wish to issue civil penalties to the responsible contractor or subcontractor, or both, and the licensee. The Commission is maintaining its policy of emphasizing licensee responsibilities for the actions of their contractors and subcontractors. The Commission believes that these amendments are necessary and will offer additional enhancements to the regulatory process by allowing the Commission to exercise its authority to impose a significant enforcement action ( *i.e.* , civil penalty) directly on contractors or subcontractors who violate the NRC's employee protection regulations. The NRC is not proposing to amend 71.9 and 72.10 to provide imposing a civil penalty against a holder or applicant for a CoC, or contractor or subcontractor of a holder or applicant for a CoC. However, if a CoC is also a contractor or subcontractor of a licensee, then a civil penalty could be imposed on a contractor or subcontractor in that capacity. In addition, in drafting this proposed rule, the NRC identified that 10 CFR 76.7 does not specify the availability of civil penalties as an enforcement action. The Supplementary Information that accompanied the promulgation of 10 CFR 76.7 does not indicate that this omission was intentional. 2 Therefore, the NRC is proposing to amend 10 CFR 76.7 to bring it into conformance with the provisions of the other NRC's employee protection regulations by providing that the Commission may impose a civil penalty on the Corporation or a contractor or subcontractor of the Corporation. 2 The Supplementary Information states that part 76 is based upon comparable requirements; in particular, 10 CFR part 70, as modified for the certification process. There is no indication that the omission of civil penalties was intended as such a modification (59 FR 48944; September 23, 1994). The NRC has also revised the authority citations to correctly reflect current statutory authority. Proposed Changes to the NRC's Regulations Sections 30.7, 40.7, 50.7, 60.9, 61.9, 63.9, and 70.7, would be amended to provide that, in addition to imposing a civil penalty against a Commission licensee or applicant for a Commission license, the Commission may impose a civil penalty against a contractor or subcontractor of either of these entities for discriminating against an employee for engaging in protected activity. Section 71.9 would be amended to provide that, in addition to imposing a civil penalty against a Commission licensee, or applicant, the Commission may impose a civil penalty against a contractor or subcontractor of these entities for discriminating against an employee for engaging in protected activity. Section 72.10 would be amended to provide that, in addition to imposing a civil penalty against a Commission licensee or applicant, the Commission may impose a civil penalty against a contractor or subcontractor of the licensee, or applicant. Section 76.7 would be amended to provide that the Commission may impose a civil penalty on the Corporation or contractor or subcontractor of the Corporation. Agreement States' Comments on Proposed Rulemaking Plan On June 18, 2004, the NRC provided the proposed Rulemaking Plan to the Agreement States for a 45 day comment period, which closed on August 2, 2004. One comment was received. The comment stated: The addition of civil penalties, for contractors and subcontractors who discriminate against employees as referenced, appears appropriate. The final wording of this amendment should clearly express that the licensee is still responsible for maintaining control and oversight of contractor and subcontractor activities, and the licensee has a responsibility to investigate and, if necessary, institute enforcement actions against contractors and subcontractors when claims are brought by their employees. The wording must be expanded to ensure that licensees follow through on their responsibility to maintain control and oversight of contractor and subcontractor activities. The NRC position is that it is beyond the scope of the proposed amendments to include wording in the amendments to address the licensee's responsibility for oversight of contractors and subcontractors. However, as previously stated in this document, the proposed amendments do not diminish the focus on licensee responsibility for the conduct of its contractors and subcontractors in the area of employee protection. Availability of Documents The NRC is making the documents identified below available to interested persons through one or more of the following methods as indicated. Public Document Room (PDR). The NRC Public Document Room is located at 11555 Rockville Pike, Rockville, Maryland. Rulemaking Web site (Web). The NRC's interactive rulemaking Web site is located at *http://ruleforum.llnl.gov.* These documents may be viewed and downloaded electronically via this Web site. NRC's Agency-wide Document Access and Management System (ADAMS). The NRC's PARS Library is located at *http://www.nrc.gov/readingrm/adams.html.* Document PDR Web ADAMS Proposed Rule—Draft Regulatory Analysis X X ML051950431 Proposed Rule—Draft Environmental Analysis X X ML051950438 SECY-02-0166 X X ML022120479 SRM in SECY-02-0166 X X ML030850783 SECY-04-0195, Rulemaking Plan X X ML042740294 Voluntary Consensus Standards 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 using such a standard is inconsistent with applicable law or is otherwise impractical. The proposed rule would enable the Commission to impose civil penalties upon non-licensee contractors and subcontractors who discriminate against employees for engaging in certain protected activities. This action does not constitute the establishment of a standard that contains generally applicable requirements. Agreement State Compatibility Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” which became effective on September 3, 1997 (62 FR 46517), NRC program elements (including regulations) are placed into compatibility categories A, B, C, D, NRC or category Health and Safety (H&S). Category A includes program elements that are basic radiation protection standards or related definitions, signs, labels or terms necessary for a common understanding of radiation protection principles and should be essentially identical to those of the NRC. Category B includes program elements that have significant direct transboundary implications and should be essentially identical to those of the NRC. Compatibility Category C are those program elements that do not meet the criteria of Category A or B, but the essential objectives of which an Agreement State should adopt to avoid conflict, duplication, gaps, or other conditions that would jeopardize an orderly pattern in the regulation of agreement material on a nationwide basis. Compatibility Category D are those program elements that do not meet any of the criteria of Category A, B, or C, and do not need to be adopted by Agreement States. Compatibility Category NRC are those program elements that address areas of regulation that cannot be relinquished to Agreement States pursuant to the Atomic Energy Act, as amended, or provisions of Title 10 of the Code of Federal Regulations and cannot be adopted by Agreement States. Category H&S are program elements that are not required for compatibility, but have a particular health and safety role in the regulation of agreement material and the State and should contain the essential objectives of the NRC program elements. The revisions to 10 CFR 50.7, 60.9, 63.9, 72.10, and 76.7 are not relevant to Agreement State programs because these NRC regulations address areas of exclusive NRC authority and are designated a Compatibility Category NRC. The revisions to 10 CFR 30.7, 40.7, 61.9, 70.7, and 71.9 are categorized as Compatibility Category D, and therefore do not need to be adopted by Agreement States. However, the NRC is seeking comment on the Category D designation of these regulations. In this regard, the NRC specifically invites comment regarding the following:
(1)The effect potential inconsistencies in individual state employee protection regulations would have on a national regulatory approach that seeks to foster an environment in which safety issues can be openly identified without fear of retribution, and
(2)evidence of any situations in which employees in Agreement States have been adversely affected by a lack of consistency in employee protection regulations. Comments on this topic should be submitted to the NRC as indicated under the ADDRESSES heading. Plain Language The Presidential memorandum dated June 1, 1998, entitled “Plain Language in Government Writing” directed that the Government's writing be in plain language. This memorandum was published on June 10, 1998 (63 FR 31883). The NRC requests comments on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the ADDRESSES caption of the preamble. Finding of No Significant Environmental Impact: Availability The Commission has determined under the National Environmental Policy Act of 1969, Public Law 97-190 (42 U.S.C. 4321 *et seq.* ), as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment; and, therefore, an environmental impact statement is not required. The basis for this determination is that this rulemaking would not significantly increase the probability or consequences of accidents, no changes would be made in the types of effluents that may be released offsite, there would be no significant increase in public radiation exposure, nor would there be a direct nor reasonably foreseeable indirect effect on the water, land, or air. The determination of this environmental assessment is that there will be no significant offsite impact to the public from this action. However, the general public should note that the NRC is seeking public participation. Comments on any aspect of the environmental assessment may be submitted to the NRC as indicated under the ADDRESSES heading. The environmental assessment is available for inspection in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD 20852. Single copies of the analysis may be obtained from the Office of Enforcement, U.S. Nuclear Regulatory Commission, at 301-415-3456 or by e-mail at *drs@nrc.gov* . Paperwork Reduction Act Statement This proposed rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0017, 3150-0020, 3150-0011, 3150-0127, 3150-0135, 3150-0199, 3150-0009, 3150-0008 and 3150-0132. Public Protection Notification 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. Regulatory Analysis 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 regulatory analysis is available for inspection in the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD 20852. Single copies of the analysis may be obtained from the Office of Enforcement, U.S. Nuclear Regulatory Commission, at 301-415-3456 or by e-mail at *drs@nrc.gov.* The Commission requests public comment on the regulatory analysis. Comments on the analysis may be submitted to the NRC as indicated under the ADDRESSES heading. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this proposed rule will not, if promulgated, have a significant economic impact on a substantial number of small entities based on the definition of “small entities” set forth in the Regulatory Flexibility Act or the Size Standards established by the Nuclear Regulatory Commission (10 CFR 2.810). The proposed provisions would only impact contractors or subcontractors who violate the NRC's regulations by discriminating against employees who engage in protected activities. Backfit Analysis The Commission has determined that the backfit rule does not apply to this proposed rule because these amendments would not involve any provision that would impose backfits as defined in 10 CFR Chapter I. Therefore, a backfit analysis is not required for this proposed rule. List of Subjects 10 CFR Part 30 Byproduct material, Criminal penalties, Government contracts, Intergovernmental relations, Isotopes, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements. 10 CFR Part 40 Criminal penalties, Government contracts, Hazardous materials transportation, Nuclear materials, Reporting and recordkeeping requirements, Source material, Uranium. 10 CFR Part 50 Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements. 10 CFR Part 60 Criminal penalties, High-level waste, Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Waste treatment and disposal. 10 CFR Part 61 Criminal penalties, Low-level waste, Nuclear materials, Reporting and recordkeeping requirements, Waste treatment and disposal. 10 CFR Part 63 Criminal penalties, High-level waste, Nuclear power plants and reactors, Reporting and recordkeeping requirements, Waste treatment and disposal. 10 CFR Part 70 Criminal penalties, Hazardous materials transportation, Material control and accounting, Nuclear materials, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Scientific equipment, Security measures, Special nuclear material. 10 CFR Part 71 Criminal penalties, Hazardous materials transportation, Nuclear materials, Packaging and containers, Reporting and recordkeeping requirements. 10 CFR Part 72 Administrative practice and procedure, Criminal penalties, Manpower training programs, Nuclear materials, Occupational safety and health, Penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Spent fuel, Whistleblowing. 10 CFR Part 76 Certification, Criminal penalties, Radiation protection, Reporting and recordkeeping requirements, Security measures, Special nuclear material, Uranium enrichment by gaseous diffusion. 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 30, 40, 50, 60, 61, 63, 70, 71, 72, and 76. PART 30—RULES OF GENERAL APPLICABILITY TO DOMESTIC LICENSING OF BYPRODUCT MATERIAL 1. The authority citation for part 30 continues to read as follows: Authority: Secs. 81, 82, 161, 182, 183, 186, 68 Stat. 935, 948, 953, 954, 955, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2111, 2112, 2201, 2232, 2233, 2236, 2282); secs. 201 as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 30.7 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 30.34(b) also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 30.61 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 2. In § 30.7, paragraph (c)(2) is revised to read as follows: § 30.7 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 40—DOMESTIC LICENSING OF SOURCE MATERIAL 3. The authority citation for part 40 is amended to read as follows: Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 40.7 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 4. In § 40.7, paragraph (c)(2) is revised to read as follows: § 40.7 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 5. The authority citation for part 50 is amended to read as follows: Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 50.7 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 6. In § 50.7, paragraph (c)(2) is revised to read as follows: § 50.7 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 60—DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN GEOLOGIC REPOSITORIES 7. The authority citation for part 60 is amended to read as follows: Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-425, 96 Stat. 2213g, 2228, as amended (42 U.S.C. 10134, 10141), and Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 60.9 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). 8. In § 60.9, paragraph (c)(2) is revised to read as follows: § 60.9 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 61—LICENSING REQUIREMENTS FOR LAND DISPOSAL OF RADIOACTIVE WASTE 9. The authority citation for part 61 is amended to as follows: Authority: Secs. 53, 57, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2073, 2077, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246, (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851) and Pub. L. 102-486, sec. 2902, 106 Stat. 3123, (42 U.S.C. 5851); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 61.9 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). 10. In § 61.9, paragraph (c)(2) is revised to read as follows: § 61.9 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 63—DISPOSAL OF HIGH-LEVEL RADIOACTIVE WASTES IN A GEOLOGIC REPOSITORY AT YUCCA MOUNTAIN, NEVADA 11. The authority citation for part 63 continues to read as follows: Authority: Secs. 51, 53, 62, 63, 65, 81, 161, 182, 183, 68 Stat. 929, 930, 932, 933, 935, 948, 953, 954, as amended (42 U.S.C. 2071, 2073, 2092, 2093, 2095, 2111, 2201, 2232, 2233); secs. 202, 206, 88 Stat. 1244, 1246 (42 U.S.C. 5842, 5846); secs. 10 and 14, Pub. L. 95-601, 92 Stat. 2951 (42 U.S.C. 2021a and 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 114, 121, Pub. L. 97-425, 96 Stat. 2213g, 2238, as amended (42 U.S.C. 10134, 10141), and Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). 12. In § 63.9, paragraph (c)(2) is revised to read as follows: § 63.9 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 70—DOMESTIC LICENSING OF SPECIAL NUCLEAR MATERIAL 13. The authority citation for part 70 is amended to read as follows: Authority: Secs. 51, 53, 161, 182, 183, 68 Stat. 929, 930, 948, 953, 954, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2201, 2232, 2233, 2282, 2297f); secs. 201, as amended, 202, 204, 206, 88 Stat. 1242, as amended, 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846). Sec. 193, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Sections 70.1(c) and 70.20a(b) also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 70.7 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 70.21(g) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 70.31 also issued under sec. 57d, Pub. L. 93-377, 88 Stat. 475 (42 U.S.C. 2077). Sections 70.36 and 70.44 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section 70.81 also issued under secs. 186, 187, 68 Stat. 955 (42 U.S.C. 2236, 2237). Section 70.82 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). 14. In § 70.7, paragraph (c)(2) is revised to read as follows: § 70.7 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 71—PACKAGING AND TRANSPORTATION OF RADIOACTIVE MATERIAL 15. The authority citation for part 71 is amended to read as follows: Authority: Secs. 53, 57, 62, 63, 81, 161, 182, 183, 68 Stat. 930, 932, 933, 935, 948, 953, 954, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2077, 2092, 2093, 2111, 2201, 2232, 2233, 2297f); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 71.9 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 71.97 also issued under sec. 301, Pub. L. 96-295, 94 Stat. 789-790. 16. In § 71.9, paragraph (c)(2) is revised to read as follows: § 71.9 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 72—LICENSING REQUIREMENTS FOR THE INDEPENDENT STORAGE OF SPENT NUCLEAR FUEL, HIGH-LEVEL RADIOACTIVE WASTE, AND REACTOR-RELATED GREATER THAN CLASS C WASTE 17. The authority citation for part 72 continues to read as follows: Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 929, 930, 932, 933, 934, 935, 948, 953, 954, 955, as amended; sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2071, 2073, 2077, 2092, 2093, 2095, 2099, 2111, 2201, 2232, 2233, 2234, 2236, 2237, 2238, 2282); sec. 274, Pub. L. 86-373, 73 Stat. 688, as amended (42 U.S.C. 2021); sec. 201, as amended; 202, 206, 88 Stat. 1242, as amended; 1244, 1246 (42 U.S.C. 5841, 5842, 5846); Pub. L. 95-601, sec. 10, 92 Stat. 2951, as amended by Pub. L. 102-485, sec. 7902, 106 Stat. 3123 (42 U.S.C. 5851); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332); secs. 131, 132, 133, 135, 137, 141, Pub. L. 97-425, 96 Stat. 2229, 2230, 2232, 2241; sec. 148, Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10151, 10152, 10153, 10155, 10157, 10161, 10168); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 72.44(g) also issued under secs. 142(b) and 148(c), (d), Pub. L. 100-203, 101 Stat. 1330-232, 1330-236 (42 U.S.C. 10162(b), 10168(c), (d)). Section 72.46 also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Section 72.96(d) also issued under sec. 145(g), Pub. L. 100-203, 101 Stat. 1330-235 (42 U.S.C. 10165(g)). Subpart J also issued under secs. 2(2), 2(15), 2(19), 117(a), 141(h), Pub. L. 97-425, 96 Stat. 2202, 2203, 2204, 2222, 2224 (42 U.S.C. 10101, 10137(a), 10161(h)). Subparts K and L are also issued under sec. 133, 98 Stat. 2230 (42 U.S.C. 10153) and sec. 218(a), 96 Stat. 2252 (42 U.S.C. 10198). 18. In § 72.10, paragraph (c)(2) is revised to read as follows: § 72.10 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the licensee, applicant, or a contractor or subcontractor of the licensee or applicant. PART 76—CERTIFICATION OF GASEOUS DIFFUSION PLANTS 19. The authority citation for part 76 is amended to read as follows: Authority: Sec. 161, 68 Stat. 948, as amended, secs. 1312, 1701, as amended, 106 Stat. 2932, 2951, 2952, 2953, 110 Stat. 1321-349 (42 U.S.C. 2201, 2297b-11, 2297f); secs. 201, as amended, 204, 206, 88 Stat. 1244, 1245, 1246 (42 U.S.C. 5841, 5842, 5845, 5846). Sec. 234(a), 83 Stat. 444, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(a)); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 76.7 is also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 U.S.C. 5851). Section 76.22 is also issued under sec.193(f), as amended, 104 Stat. 2835, as amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 2243(f)). Section 76.35(j) also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). 20. Section 76.7 is amended by revising paragraph (c)(2) and adding a new paragraph (c)(3) to read as follows: § 76.7 Employee protection.
(c)* * *
(2)Imposition of a civil penalty on the Corporation or a contractor or subcontractor of the Corporation.
(3)Other enforcement action. Dated at Rockville, Maryland, this 25th day of January, 2006. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E6-1211 Filed 1-30-06; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-23734; Directorate Identifier 2005-NM-174-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 757 airplanes. This proposed AD would require installing a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41; doing a functional test and adjustment of the new installation; and doing related investigative/corrective actions if necessary. For certain airplanes, this proposed AD would require doing an additional adjustment test of the re-located control wheel position sensor, and an operational test of the flight data recorder and the digital flight data acquisition unit. This proposed AD also would require installing vortex generators (vortilons) on the leading edge of the outboard main flap on certain airplanes. This proposed AD results from several reports that flightcrews experienced unintended roll oscillations during final approach, just before landing. We are proposing this AD to prevent unintended roll oscillations near touchdown, which could result in loss of directional control of the airplane, and consequent airplane damage and/or injury to flightcrew and passengers. DATES: We must receive comments on this proposed AD by March 17, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, Room PL-401, Washington, DC 20590. • Fax:
(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: John Neff, Aerospace Engineer, Flight Test Branch, ANM-160S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone
(425)917-6521; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2006-23734; Directorate Identifier 2005-NM-174-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received eleven confirmed reports that flightcrews on Boeing Model 757 airplanes experienced unintended roll oscillations during final approach, just before landing. One event resulted in a nose gear collapse after a hard landing; another event resulted in a tail strike during a landing that was aborted because of the oscillations. Of the eleven events that have been confirmed, three occurred with Flight Test personnel aboard, during flight-testing activities. These roll oscillations occur when the pilot makes large, rapid movements of the control wheel, and the airplane does not respond as expected. Boeing has developed a damper for the control wheel that reduces the likelihood of these roll oscillations by providing resistive force to large, rapid control wheel movements that exceed a set value. We have also received flight test data indicating that one potential cause of these unintended roll oscillations occurs when airflow over the outboard trailing edge flap separates due to the movement of the spoilers resulting from large control wheel inputs. Abrupt control wheel inputs to counteract the resulting roll can lead to roll oscillations of increasing magnitude. Boeing has developed vortex generators (vortilons) that create vortices over the flap surface and help to mitigate a sudden and premature airflow separation when the flaps are set in landing configuration and the spoilers forward of the flaps are deployed. Unintended roll oscillations near touchdown, if not corrected, could result in loss of directional control of the airplane, and consequent airplane damage and/or injury to flightcrew and passengers. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 757-27A0146, dated October 14, 2004 (for Model 757-200, -200PF, and -200CB series airplanes); and Boeing Alert Service Bulletin 757-27A0147, dated October 14, 2004 (for Model 757-300 series airplanes). These service bulletins describe procedures for installing a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41. This installation involves adding a new damper, bracket, crank arm, and control rod. The new damper bracket is installed at four existing holes on the drum bracket assembly. The service bulletins also describe procedures for doing a functional test and adjustment of the new installation, including doing any necessary related investigative and corrective actions and repeating the test and adjustment until all discrepancies are corrected. These service bulletins also describe procedures for sending a report when the applicable service bulletin is complete for each airplane. We have also reviewed Boeing Alert Service Bulletin 757-57A0058, Revision 1, dated January 10, 2002 (for Model 757-200, -200PF and -200CB series airplanes). This service bulletin describes procedures for installing vortex generators (vortilons) on the leading edge of the outboard main flap. The service bulletin specifies that the vortex generators should be installed on both the left and right flaps at the same time. Installation of vortex generators on only one flap of an airplane may adversely affect the airplane's flight characteristics. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Bulletins.” Differences Between the Proposed AD and the Service Bulletins Boeing Alert Service Bulletin 757-27A0146 and Boeing Alert Service Bulletin 757-27A0147 specify a compliance time of 36 months for installing a control wheel damper assembly. Boeing Alert Service Bulletin 757-57A0058, Revision 1, recommends installing the vortex generators at the next “heavy maintenance check.” This proposed AD would require doing all the actions within 24 months after the effective date of the proposed AD. In developing an appropriate compliance time for this proposed AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition, the probability of future occurrences, and the average utilization of the affected fleet. In light of all these factors we find that a 24-month compliance time represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. Although the Accomplishment Instructions of Boeing Alert Service Bulletin 757-27A0146 and Boeing Alert Service Bulletin 757-27A0147 describe procedures for submitting a sheet recording accomplishment of the service bulletin, this proposed AD would not require that action. Although Boeing Alert Service Bulletin 757-27A0146 and Boeing Alert Service Bulletin 757-27A0147 specify that operators may contact the manufacturer if a just-installed
(new)wheel damper does not function properly, this proposed AD would require operators to correct that condition according to a method approved by the FAA. These differences have been coordinated with Boeing. Interim Action We consider this proposed AD interim action. The manufacturer is currently investigating an additional modification that may further reduce or eliminate the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking. Costs of Compliance There are about 1,036 airplanes of the affected design in the worldwide fleet and about 629 U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Not all of the required actions must be done on all U.S.-registered airplanes. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Install control wheel damper assembly, and do functional test (Model 757-200, -200PF, and -200CB series airplanes) 9 to 11 $65 $7,650 to $10,550 $8,235 to $11,265 578 $4,759,830 to $6,511,170. Install control wheel damper assembly, and do functional test (Model 757-300 series airplanes) 15 65 $10,550 $11,525 51 $587,775. Install vortex generators (Model 757-200, -200PF, and -200CB series airplanes) 10 65 $3,336 $3,986 527 $2,100,622. Authority for This Rulemaking 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. Regulatory Findings We have 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 that the 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. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2006-23734; Directorate Identifier 2005-NM-174-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by March 17, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category; as identified in the applicable service bulletin or bulletins in Table 1 of this AD. Table 1.—Boeing Service Bulletins Boeing Alert Service Bulletin Revision Date Model 757-27A0146 Original October 14, 2004 757-200, -200PF, and -200CB. 757-27A0147 Original October 14, 2004 757-300 series airplanes. 757-57A0058 1 January 10, 2002 757-200, -200PF, and -200CB. Unsafe Condition
(d)This AD results from several reports that flightcrews experienced unintended roll oscillations during final approach, just before landing. We are issuing this AD to prevent unintended roll oscillations near touchdown, which could result in loss of directional control of the airplane, and consequent airplane damage and/or injury to flightcrew and passengers. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Installations
(f)Within 24 months after the effective date of this AD, do the actions in paragraphs (f)(1) and (f)(2) of this AD, as applicable.
(1)For all airplanes: Install a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41; and do all applicable functional and operational tests and adjustments of the new installation, and all applicable related investigative/corrective actions before further flight after the installation. Do all actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-27A0146, dated October 14, 2004 (for Model 757-200, -200PF, and -200CB series airplanes); and Boeing Alert Service Bulletin 757-27A0147, dated October 14, 2004 (for Model 757-300 series airplanes).
(2)For Model 757-200, -200PF, and -200CB series airplanes: Install vortex generators (vortilons) on the leading edge of the outboard main flap in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-57A0058, Revision 1, dated January 10, 2002. Parts Installation
(g)As of the effective date of this AD, no person may install a damper bracket assembly part number (P/N) 251N1432-2, a bracket-sensor P/N 251N1430-2, or a crank arm P/N 251N1431-2, on any airplane. Actions Accomplished in Accordance With Previous Revision of Service Bulletin
(h)Actions done before the effective date of this AD in accordance with Boeing Special Attention Service Bulletin 757-57-0058, dated March 9, 2000, are acceptable for compliance with the actions in paragraph (f)(2) of this AD. No Reporting Required
(i)Although the Accomplishment Instructions of Boeing Alert Service Bulletin 757-27A0146 and Boeing Alert Service Bulletin 757-27A0147 describe procedures for submitting a sheet recording accomplishment of the service bulletin, this AD does not require that action. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on January 11, 2006. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-1188 Filed 1-30-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2005-22686; Airspace Docket No. 05-AAL-42] Proposed Revision of Class E Airspace; Valdez, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to modify the Class E airspace at Valdez, AK. Two new Standard Instrument Approach Procedures (SIAPs) and one revised SIAP are being published for the Valdez Airport. Adoption of this proposal would result in modification of Class E airspace upward from 1,200 feet (ft.) above the surface at Valdez, AK. DATES: Comments must be received on or before March 17, 2006. ADDRESSES: Send comments on the proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2005-22686/Airspace Docket No. 05-AAL-42, at the beginning of your comments. You may also submit comments on the Internet at *http://dms.dot.gov* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527) is on the plaza level of the Department of Transportation NASSIF Building at the above address. An informal docket may also be examined during normal business hours at the office of the Manager, Safety, Alaska Flight Service Operations, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587. FOR FURTHER INFORMATION CONTACT: Gary Rolf, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number
(907)271-5898; fax:
(907)271-2850; e-mail: *gary.ctr.rolf@faa.gov* . Internet address: *http://www.alaska.faa.gov/at* . SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-22686/Airspace Docket No. 05-AAL-42.” 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 notice 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. Availability of Notice of Proposed Rulemaking's (NPRM's) An electronic copy of this document may be downloaded through the Internet at *http://dms.dot.gov* . Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the Superintendent of Document's Web page at *http://www.access.gpo.gov/nara* . Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591 or by calling
(202)267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is considering an amendment to the Code of Federal Regulations (14 CFR part 71), which would modify Class E airspace at Valdez, AK. The intended effect of this proposal is to modify the Class E airspace upward from 1,200 ft. above the surface to contain Instrument Flight Rules
(IFR)operations at Valdez Airport, in Valdez, AK. The FAA Instrument Flight Procedures Production and Maintenance Branch has drafted two new SIAPs and revised one SIAP for the Valdez Airport. The approaches are;
(1)Very High Frequency Omnidirectional Range (VOR)/Distance Measuring Equipment (DME)—A, Amendment 3,
(2)VOR/DME—B, Original,
(3)VOR/DME—C, Original. Revised Class E controlled airspace extending upward from 1,200 ft. above the surface within the Valdez Airport area would be established by this action. The 700 ft. airspace will be unchanged. The proposed airspace is sufficient to contain aircraft executing the revised instrument procedures at the Valdez Airport. The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9N, *Airspace Designations and Reporting Points* , dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document would be published subsequently 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. It, therefore—(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 that this 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 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it proposes to create Class E airspace sufficient in size to contain aircraft executing instrument procedures at Valdez Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N, *Airspace Designations and Reporting Points* , dated September 1, 2005, and effective September 15, 2005, is to be amended as follows: Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the earth. AAL AK E5 Valdez, AK Valdez, Airport, AK (Lat. 61°08′02″ N, long. 146°14′54″ W) Valdez Localizer (Lat. 61°08′05″ N, long. 146°13′35″ W) Johnstone Point VORTAC (Lat. 60°28′51″ N, long. 146°35′58″ W) That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of the Valdez Airport and within 3.1 miles each side of the Valdez Localizer front course extending from the 6.6-mile radius to 21.6 miles southwest of the airport; and that airspace extending upward from 1,200 feet above the surface within 50 miles of the Johnstone Point VORTAC extending clockwise from the Johnstone Point VORTAC 200° radial to the 076° radial. Issued in Anchorage, AK, on January 24, 2006. Michael A. Tarr, Manager, Operations Support. [FR Doc. E6-1160 Filed 1-30-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2005-22687; Airspace Docket No. 05-AAL-23] Proposed Revision of Class E Airspace; Saint Paul Island, AK AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to modify Class E airspace at St. Paul Island, AK. A new Standard Instrument Approach Procedure
(SIAP)is being published for the St. Paul Island Airport along with five SIAP revisions. Adoption of this proposal would result in modification of Class E airspace upward from 700 feet (ft.) and 1,200 ft. above the surface at St. Paul Island, AK. DATES: Comments must be received on or before March 17, 2006. ADDRESSES: Send comments on the proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2005-22687/Airspace Docket No. 05-AAL-23, at the beginning of your comments. You may also submit comments on the Internet at *http://dms.dot.gov* . You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527) is on the plaza level of the Department of Transportation NASSIF Building at the above address. An informal docket may also be examined during normal business hours at the office of the Manager, Safety, Alaska Flight Service Operations, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587. FOR FURTHER INFORMATION CONTACT: Gary Rolf, Federal Aviation Administration, 222 West 7th Avenue, Box 14, Anchorage, AK 99513-7587; telephone number
(907)271-5898; fax:
(907)271-2850; e-mail: *gary.ctr.rolf@faa.gov* . Internet address: *http://www.alaska.faa.gov/at* . SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2005-22687/Airspace Docket No. 05-AAL-23.” 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 notice 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. Availability of Notice of Proposed Rulemaking's (NPRM's) An electronic copy of this document may be downloaded through the Internet at *http://dms.dot.gov* . Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the Superintendent of Document's Web page at *http://www.access.gpo.gov/nara* . Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591 or by calling
(202)267-8783. Communications must identify both docket numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is considering an amendment to the Code of Federal Regulations (14 CFR part 71), which would modify existing Class E airspace at St. Paul Island, AK. The intended effect of this proposal is to create Class E airspace upward from 700 ft. and 1,200 ft. above the surface to contain Instrument Flight Rules
(IFR)operations at St. Paul Island, AK. The FAA Instrument Flight Procedures Production and Maintenance Branch has developed one new SIAP and revised five SIAPs for the St. Paul Island Airport. The new approach is the Area Navigation (Global Positioning System (RNAV (GPS)) Runway
(RWY)36, original. The five revised SIAPs are;
(1)RNAV
(GPS)RWY 18, Amendment
(Amdt)1,
(2)Non-directional Beacon (NDB)-A, Amdt 1,
(3)NDB/Distance Measuring Equipment
(DME)RWY 18, Amdt 3,
(4)Localizer (LOC)/DME Back Course RWY 18, Amdt 3,
(5)Instrument Landing System
(ILS)or LOC/DME RWY 36, Amdt 2. Class E controlled airspace extending upward from 700 ft. and 1,200 ft. above the surface within the St. Paul Island Airport area would be revised by this action. The proposed airspace is sufficient in size to contain aircraft executing these instrument procedures at the St. Paul Island Airport. A corresponding airspace change to Offshore Airspace Area 1234L will be coordinated with the FAA's Airspace and Rules, Office of System Operations Airspace, in accordance with FAA Order 7400.2. The area would be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class E airspace areas designated as 700/1200 foot transition areas are published in paragraph 6005 in FAA Order 7400.9N, *Airspace Designations and Reporting Points* , dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document would be published subsequently 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. It, therefore—(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 that this 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 1, 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 1, section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it proposes to create Class E airspace sufficient in size to contain aircraft executing new and revised instrument procedures at the St. Paul Island Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9N, *Airspace Designations and Reporting Points* , dated September 1, 2005, and effective September 15, 2005, is to be amended as follows: Paragraph 6005 Class E airspace extending upward from 700 feet or more above the surface of the earth. AAL AK E5 St. Paul Island, AK [Revised] St. Paul Island, AK (Lat. 57°10′02″ N., long. 170°13′14″ W.) That airspace extending upward from 700 feet above the surface within a 8-mile radius of the St. Paul Island Airport, and within 8 miles west and 6 miles east of the 360° bearing from the St. Paul Airport from the 8-mile radius to 14 miles north of the St. Paul Airport, and within 6 miles west and 8 miles east of the 172° bearing from the St. Paul Airport from the 8-mile radius to 15 miles south of the St. Paul Airport, and that airspace extending upward from 1,200 feet above the surface within a 73-mile radius of the St. Paul Island Airport. Issued in Anchorage, AK, on January 24, 2006. Michael A. Tarr, Manager, Operations Support. [FR Doc. E6-1158 Filed 1-30-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF JUSTICE Bureau of Prisons 28 CFR Part 511 [BOP-1128] RIN 1120-AB26 Searching and Detaining or Arresting Non-Inmates AGENCY: Bureau of Prisons, Justice. ACTION: Proposed rule. SUMMARY: In this document, the Bureau of Prisons (Bureau) proposes to amend its regulations on searching and detaining or arresting non-inmates. This revision reorganizes current rules and makes changes that would subject non-inmates to pat searches, either as random searches or based upon reasonable suspicion, as a condition of entry to a Bureau facility. DATES: Comments due by April 3, 2006. ADDRESSES: Our e-mail address is *boprules@bop.gov.* Submit comments to the Rules Unit, Office of General Counsel, Bureau of Prisons, 320 First Street, NW., Washington, DC 20534. You may view this rule at *http://www.regulations.gov.* You may also comment via the Internet to BOP at *boprules@bop.gov* or via the comment form at *http://www.regulations.gov.* When submitting comments electronically you must include the BOP Docket No. in the subject box. FOR FURTHER INFORMATION CONTACT: Sarah Qureshi, Office of General Counsel, Bureau of Prisons, phone
(202)307-2105. SUPPLEMENTARY INFORMATION: In this document, the Bureau proposes to amend its regulations on searching and detaining or arresting non-inmates. Current regulations on this subject in 28 CFR part 511 were published on November 1, 1984 (49 FR 44057), February 8, 1994 (59 FR 5924), and March 10, 1998 (63 FR 11818). A further proposed rule relating to both searches of inmates and non-inmates was published on February 25, 1999, (64 FR 9431). The Bureau is working to finalize the portion of that rule relating to inmates, but the portion relating to non-inmates was withdrawn and is encompassed in this proposed rulemaking. This revision reorganizes current rules and makes other changes for clarity, including excising guidance to staff. Such guidance to staff will remain part of the relevant Bureau policy, enabling the Bureau to more quickly respond to staff correctional needs without altering Federal regulations that pertain to inmates or the public. We also make changes that would subject non-inmates to pat searches, either as random searches or based upon reasonable suspicion, as a condition of entry to a Bureau facility. *Section-by-Section Analysis.* Below is an analysis of each new rule. We refer to each proposed rule by its new (proposed) designation. Section 511.10 Purpose & Scope This subpart will cover searching persons and their belongings to prevent prohibited objects from entering Bureau facilities; authorizing, denying, and/or terminating a person's presence inside a Bureau facility; and authorizing Bureau staff to remove, and possibly arrest and detain, persons suspected of engaging in prohibited activity. These rules will apply to all persons who wish to enter, or are present in, Bureau facilities, other than inmates in Bureau custody, at all Bureau facilities, including administrative offices. Additionally, the purpose of these rules is to help us ensure the safety, security, and orderly operation of Bureau facilities, and protect the public. These goals are furthered by carefully managing persons, the objects they bring, and their activities, inside Bureau facilities. Section 511.11 Prohibited Activities In this rule, we define “prohibited activities” as those which could jeopardize the Bureau's ability to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public, whether or not such activities are criminal in nature; and we give examples of such activities. The current rule, § 511.10, contains detailed lists of offenses, including any “described in title 18 or 21 of the United States Code,” that are prohibited, but does not characterize them as “prohibited activities.” In this revised rule, we characterize such offenses as “prohibited activities,” and expand this definition to include non-criminal activities which threaten the safety, security, and orderly operation of Bureau facilities. We use the term “prohibited activities” to encompass both criminal and non-criminal violations which nonetheless compromise the Bureau's ability to fulfill its mission. Section 511.12 Prohibited Objects In this rule, we define “prohibited objects” as those which could jeopardize the Bureau's ability to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public, whether or not such objects are criminal in nature; and we give examples of such objects. The current rule, § 511.11(c), defines “prohibited objects.” In our revision, we clarify that the term is defined as in 18 U.S.C. 1791(d)(1) and conform it with our mission to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public. As in the current rule, we give examples of “prohibited objects,” including, but not limited to, the following items and their related paraphernalia: Weapons, explosives, drugs, intoxicants, currency, cameras of any type, recording equipment, telephones, radios, pagers, and any other objects which violate criminal laws or are prohibited by Federal regulations or Bureau policies. Section 511.13 Searches Before Entering, or While Inside, a Bureau Facility In this rule, we indicate that Bureau staff may search non-inmates and their belongings before entering, or while inside, any of our facilities, to keep out prohibited objects. This rule simply restates our initial statement in the current rule § 511.10(a). Section 511.14 Notification of Possible Searches In this rule, we indicate that we display conspicuous notices at the entrance to our facilities, informing all persons that they, and their belongings, are subject to search before entering, or while inside, Bureau facilities. Furthermore, we intend these rules and Bureau national and local policies to provide additional notice that non-inmates and their belongings may be searched before entering our facilities. We also indicate that by entering a Bureau facility, non-inmates consent to being searched in accordance with these rules and Bureau policy. This rule clarifies language in current § 511.12(a) regarding notices posted outside a facility advising non-inmates that they and their belongings may be subject to search. Section 511.15 When Searches Will Be Conducted In this rule, we state that non-inmates and their belongings may be searched either randomly or based on reasonable suspicion before entering, or while inside, a Bureau facility, as follows: *Random Searches.* The proposed rule indicates that non-inmates wishing to enter Bureau facilities will be subject to searches occurring randomly, and not based on any particular suspicion that a person is attempting to bring a prohibited object into a Bureau facility. Random searches must always be done impartially, and in a nondiscriminatory fashion. The possibility of being pat-searched (and the obvious notices so stating) acts as a deterrent to non-inmates seeking to introduce contraband without unnecessarily or extremely burdening staff resources. Random searches would allow for local staff and institutions to maintain their flexibility, particularly with regard to institution resources, staffing changes, numbers of visitors, and time management. Non-inmate visitors are a significant source of contraband introduction into Bureau facilities. 18 U.S.C. 1791 prohibits providing an inmate a prohibited object in violation of a statute or rule issued under statute. Although other search methods, such as visual searches of the person and electronic detection devices, enable us to search non-inmates before they enter Bureau facilities, a 2003 report by the Office of Inspector General found that non-inmates often found unique ways of introducing contraband that may have easily been detected or prevented by random pat searches of non-inmates entering Bureau facilities. We therefore must tighten security measures by instituting a system of random pat searching of non-inmates entering Bureau facilities. This will serve the dual purpose of preventing the introduction of contraband by its detection, and deterring visitors who may attempt to introduce contraband. The Bureau's overriding need to prevent introduction of contraband and/or confiscate contraband necessitates random pat searches. Random searches, (without reasonable suspicion) are permissible, especially if the non-inmate is given prior notice of the search, which therefore lowers the non-inmate's reasonable expectation of privacy when seeking entry to the prison facility, and consents to the search. *See Spear* v. *Sowders,* 71 F.3d 626 (6th Cir. 1995); *U.S.* v. *Johnson,* 27 F.3d 564 (unpublished) (4th Cir. 1994); *El* v. *Williams,* 1990 WL 65717 (unpublished) (E.D.Pa. 1990). As previously discussed, non-inmates will be aware that they may be subject to such searches both through notices displayed prominently at entry points to Bureau facilities and through these rules. Furthermore, non-inmates will be given the option of either consenting to such searches as a condition of entry or refusing such searches and leaving Bureau property. However, if a non-inmate refuses to submit to a random search and expresses an intent to leave Bureau property, he or she may still be required to be searched if “reasonable suspicion” exists as described in the following paragraph. It is necessary to provide the possibility of a “reasonable suspicion” search of non-inmates who decline a random search to discover and prevent the attempt to commit the crime of smuggling contraband or prohibited items into a Bureau facility. The mere fact that a non-inmate refuses to be searched does not give rise to reasonable suspicion, absent some other ground. *Reasonable Suspicion Searches.* Notwithstanding random searches, staff may conduct pat searches of a non-inmate based on reasonable suspicion to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public. “Reasonable suspicion” exists if a staff member knows of facts and circumstances which warrant rational inferences by a person with correctional experience that a person may be engaged in, attempting, or about to engage in, criminal or other prohibited activity. This rule merely restates the definition of “reasonable suspicion” currently found in § 511.11(a). Section 511.16 How Searches Will Be Conducted This proposed rule restates and further details the types of searches listed in current § 511.12. In the current rule, we state that electronic searches, pat searches, visual searches of the person, and drug testing are done with reasonable suspicion. The only substantive change we now propose is to allow electronic searches and pat searches of all non-inmates entering Bureau facilities. Non-inmate visitors are the primary source of contraband introduction into Bureau facilities. Although we have other search methods, such as visual searches, which enable us to search non-inmates before they enter Bureau facilities, contraband is still introduced. We therefore must tighten security measures by instituting a system of random pat searches of non-inmates. As we state in proposed rule § 511.15, random searches will not be based on any particular suspicion that a person is attempting to bring a prohibited object into a Bureau facility. Selecting persons for random searches of their persons and belongings will be done according to impartially and in a non-discriminatory fashion. Section 511.17 When a Non-Inmate Will Be Denied Entry to, or Required to Leave, a Bureau Facility In this rule, we clarify that the Warden or designee, in his/her discretion, may deny entry to, or require a non-inmate to leave a Bureau facility if the non-inmate refuses to be searched under these rules or if reasonable suspicion otherwise exists indicating that a non-inmate may be engaged in, attempting, or about to engage in, prohibited activity which jeopardizes the Bureau's ability to ensure the safety, security, and orderly operation of its facilities, or protect the public. This rule merely restates and consolidates current §§ 511.13(b) and
(c)and 511.14. Section 511.18 When Bureau Staff Can Arrest and Detain a Non-Inmate This rule clarifies the Bureau's authority to arrest and detain non-inmates if there is probable cause indicating a violation or attempted violation of applicable criminal law while at a Bureau facility, under 18 U.S.C. 3050. This language is currently found in § 511.10(b). The proposed rule also consolidates and streamlines language found in current §§ 511.15 and 511.16. The proposed rule also explains that “probable cause” exists when specific facts and circumstances lead a reasonably cautious person (not necessarily a law enforcement officer) to believe a violation of criminal law has occurred, and warrants consideration for prosecution. This merely restates the current definition of “probable cause” stated in § 511.11(b). Finally, the proposed rule indicates that persons arrested by Bureau staff under this rule will be physically secured, using minimally necessary force and restraints, in a private area of the facility away from others. Appropriate law enforcement will be immediately summoned to investigate the incident, secure evidence, take custody or remove from Bureau property, and consider criminal prosecution. This provision merely restates language found in current § 511.15. Executive Order 12866 This rule falls within a category of actions that the Office of Management and Budget
(OMB)has determined to constitute “significant regulatory actions” under section 3(f) of Executive Order 12866 and, accordingly, it was reviewed by OMB. Executive Order 13132 This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Regulatory Flexibility Act The Director of the Bureau of Prisons, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact upon a substantial number of small entities for the following reasons: This rule pertains to the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. List of Subjects in 28 CFR Part 511 Prisoners. Harley G. Lappin, Director, Bureau of Prisons. Under rulemaking authority vested in the Attorney General in 5 U.S.C. 301; 28 U.S.C. 509, 510 and delegated to the Director, Bureau of Prisons in 28 CFR 0.96, we propose to revise 28 CFR part 511 as follows. Subchapter A—General Management and Administration PART 511—GENERAL MANAGEMENT POLICY 1. Revise the authority citation for 28 CFR part 511 to read as follows: Authority: 5 U.S.C. 301; 18 U.S.C. 751, 752, 1791, 1792, 1793, 3050, 3621, 3622, 3624, 4001, 4012, 4042, 4081, 4082 (Repealed as to offenses committed on or after November 1, 1987), 5006-5024 (Repealed October 12, 1984 as to offenses committed after that date), 5039; 28 U.S.C. 509, 510. 2. Subpart B is revised as follows: Subpart B—Searching and Detaining or Arresting Non-Inmates Sec. 511.10 Purpose and Scope. 511.11 Prohibited activities. 511.12 Prohibited objects. 511.13 Searches before entering, or while inside, a Bureau facility. 511.14 Notification of possible search. 511.15 When searches will be conducted. 511.16 How searches will be conducted. 511.17 When a non-inmate will be denied entry to or required to leave a Bureau facility. 511.18 When Bureau staff can arrest and detain a non-inmate. § 511.10 Purpose and Scope.
(a)These rules facilitate our legal obligations to ensure the safety, security, and orderly operation of Bureau of Prisons (Bureau) facilities, and protect the public. These goals are furthered by carefully managing persons, the objects they bring, and their activities, while inside Bureau facilities.
(b)*Purpose.* These rules cover:
(1)Searching persons and their belongings to prevent prohibited objects from entering Bureau facilities;
(2)Authorizing, denying, and/or terminating a person's presence inside a Bureau facility; and
(3)Authorizing Bureau staff to remove from Bureau facilities, and possibly arrest and detain, persons suspected of engaging in prohibited activity.
(c)*Scope/Application.* These rules apply to all persons who wish to enter, or are present inside, Bureau facilities, other than inmates in Bureau custody. This subpart applies at all Bureau facilities, including administrative offices. § 511.11 Prohibited activities.
(a)“Prohibited activities” include any activities which could jeopardize the Bureau's ability to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public, whether or not such activities are criminal in nature.
(b)Examples of “prohibited activities” include, but are not limited to: introducing, or attempting to introduce, prohibited objects into Bureau facilities; assisting an escape; and any other conduct which violates criminal laws or is prohibited by Federal regulations or Bureau policies. § 511.12 Prohibited objects.
(a)“Prohibited objects,” as defined in 18 U.S.C. 1791(d)(1), include any objects which could jeopardize the Bureau's ability to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public.
(b)Examples of “prohibited objects” include, but are not limited to, the following items and their related paraphernalia: weapons; explosives; drugs; intoxicants; currency; cameras of any type; recording equipment; telephones; radios; pagers; and any other objects which violate criminal laws or are prohibited by Federal regulations or Bureau policies. § 511.13 Searches before entering, or while inside, a Bureau facility. Bureau staff may search you and your belongings before entering, or while inside, any of our facilities, to keep out prohibited objects. § 511.14 Notification of possible search. We display conspicuous notices at the entrance to all Bureau facilities, informing all persons that they, and their belongings, are subject to search before entering, or while inside, Bureau facilities. Furthermore, these rules and Bureau national and local policies provide additional notice that you and your belongings may be searched before entering, or while inside, our facilities. By entering or attempting to enter a Bureau facility, non-inmates consent to being searched in accordance with these rules and Bureau policy. § 511.15 When searches will be conducted. You and your belongings may be searched, either randomly or based on reasonable suspicion, before entering, or while inside, a Bureau facility, as follows:
(a)*Random Searches* . This type of search may occur at any time, and is not based on any particular suspicion that a person is attempting to bring a prohibited object into a Bureau facility.
(1)Random searches must be impartial and not discriminate among non-inmates on the basis of age, race, religion, national origin, or sex.
(2)Non-inmates will be given the option of either consenting to random searches as a condition of entry, or refusing such searches and leaving Bureau property. However, if a non-inmate refuses to submit to a random search and expresses an intent to leave Bureau property, he or she may still be required to be searched if “reasonable suspicion” exists as described in paragraph
(b)of this section.
(b)*Reasonable Suspicion Searches* . Notwithstanding staff authority to conduct random searches, staff may also conduct *reasonable suspicion* searches to ensure the safety, security, and orderly operation of Bureau facilities, and protect the public. “Reasonable suspicion” exists if a staff member knows of facts and circumstances which warrant rational inferences by a person with correctional experience that a person may be engaged in, attempting, or about to engage in, criminal or other prohibited activity. § 511.16 How searches will be conducted. You may be searched by any of the following methods before entering, or while inside, a Bureau facility:
(a)*Electronically* .
(1)You and your belongings may be electronically searched for the presence of contraband, either randomly or upon reasonable suspicion.
(2)Examples of electronic searches include, but are not limited to metal detectors, and ion spectrometry devices.
(b)*Pat Search* .
(1)You and your belongings may be pat searched either randomly or upon reasonable suspicion.
(2)A pat search of your person or belongings involves a staff member pressing his/her hands on your outer clothing, or the outer surface of your belongings, to determine whether prohibited objects are present.
(3)Pat searches of your person will always be performed by staff members of the same sex.
(c)*Visual Search* . You and your belongings may be visually searched as follows:
(1)*Person* .
(A)A visual search of your person involves removing all articles of clothing, including religious headwear, to allow a visual (non-tactile) inspection of your body surfaces and cavities.
(B)Visual searches of your person must always be authorized by the Warden or his/her designee and based on reasonable suspicion; random visual searches are prohibited.
(C)When authorized, visual searches will always be performed discreetly, in a private area away from others, and by staff members of the same sex as the non-inmate being searched.
(D)Body cavity (tactile) searches of persons entering Bureau facilities, other than inmates, are prohibited.
(2)*Belongings* . A visual search of your belongings involves opening and exposing all contents for visual and manual inspection, and may be done either as part of a random search or with reasonable suspicion.
(d)*Drug Testing* .
(1)You may be tested for use of intoxicating substances by any currently reliable testing method, including, but not limited to, breathalyzers and urinalysis.
(2)Drug testing must always be authorized by the Warden or his/her designee and must be based on reasonable suspicion that you are under the influence of an intoxicating substance upon entering, or while inside, a Bureau facility. (Bureau staff are subject to drug-testing as mandated in separate Bureau policy.)
(3)Searches of this type will always be performed discreetly, in a private area away from others, and by staff members adequately trained to perform the test. § 511.17 When a non-inmate will be denied entry to or required to leave a Bureau facility. At the Warden's, or his/her designee's, discretion, and based on these rules, you may be denied entry to, or required to leave, a Bureau facility if:
(a)You refuse to be searched under these rules; or
(b)There is reasonable suspicion that you may be engaged in, attempting, or about to engage in, prohibited activity which jeopardizes the Bureau's ability to ensure the safety, security, and orderly operation of its facilities, or protect the public. “Reasonable suspicion,” for this purpose, may be based on the results of a search conducted under these rules, or any other reliable information. § 511.18 When Bureau staff can arrest and detain a non-inmate.
(a)You may be arrested and detained by Bureau staff anytime there is probable cause indicating that you have violated or attempted to violate applicable criminal laws while at a Bureau facility, as authorized by 18 U.S.C. 3050.
(b)“Probable cause” exists when specific facts and circumstances lead a reasonably cautious person (not necessarily a law enforcement officer) to believe a violation of criminal law has occurred, and warrants consideration for prosecution.
(c)Persons arrested by Bureau staff under this rule will be physically secured, using minimally necessary force and restraints, in a private area of the facility away from others. Appropriate law enforcement will be immediately summoned to investigate the incident, secure evidence, and commence criminal prosecution. [FR Doc. E6-1159 Filed 1-30-06; 8:45 am] BILLING CODE 4410-05-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD07-04-136] RIN 1625-AA09 Drawbridge Operation Regulations; Atlantic Intracoastal Waterway, Broward County, FL AGENCY: Coast Guard, DHS. ACTION: Supplemental Notice of proposed rulemaking. SUMMARY: On August 16, 2005, the Coast Guard proposed to change the regulations governing the operation of 10 drawbridges, and establish operating regulations for 2 drawbridges, all of which cross the Atlantic Intracoastal Waterway in Broward County, FL. The proposed rule would require all of these drawbridges to open twice an hour. The proposed schedule is based on a request from Broward County officials, a test the Coast Guard conducted from December, 2004, until February, 2005, and comments received from the public based on the test. The proposed schedule meets the reasonable needs of navigation while accommodating increased vehicular traffic throughout the county. Due to the active hurricane season and lack of public comments to the previous Notice of Proposed Rulemaking we are reissuing the previous Notice of Proposed Rulemaking. DATES: Comments and related material must reach the Coast Guard on or before March 15, 2006. ADDRESSES: You may mail comments and related material to Commander (dpb), Seventh Coast Guard District, 909 SE 1st Avenue, Room 432, Miami, Florida 33131-3050. Commander
(dpb)maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket, (CGD07-04-136) and will be available for inspection or copying at Commander (dpb), Seventh Coast Guard District, 909 SE 1st Avenue, Room 432, Miami, Florida 33131-3050 between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Gwin Tate, Seventh Coast Guard District, Bridge Branch, telephone number 305-415-6747. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD07-04-136), indicate the specific section of this document to which each comment applies, and give the reason for each comment. We are maintaining the comments that were previously submitted as a result of the prior temporary deviation and it is unnecessary to resubmit the same comments. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Bridge Branch, Seventh Coast Guard District, at the address under ADDRESSES explaining why one 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 the **Federal Register** . Background and Purpose At the request of Broward County, the Coast Guard published a temporary deviation, effective from December 1, 2004 to February 28, 2005, as a test regulation for 11 Broward County drawbridges(69 FR 67055). The following bridges were covered by the temporary deviation: NE 14th Street, mile 1055.0, Atlantic Boulevard (SR 814), mile 1056.0, Commercial Boulevard (SR 870), mile 1059.0, Oakland Park Boulevard, mile 1060.5, East Sunrise Boulevard (SR 838), mile 1062.6, East Las Olas Boulevard, mile 1064.0, SE 17th Street Causeway, mile 1065.9, Dania Beach Boulevard, mile 1069.4, Sheridan Street, mile 1070.5, Hollywood Beach Boulevard (SR 820), mile 1072.2, and Hallandale Beach Boulevard (SR 824), mile 1074.0. The Dania Beach Boulevard and Sheridan Street bridges currently do not have codified operating regulations. The Hillsboro Boulevard Bridge was not covered by the temporary deviation. The test was conducted for approximately 90 days to collect data to determine the feasibility of changing the regulations on all drawbridges in Broward County crossing the Atlantic Intracoastal Waterway, to meet the increased demands of vehicular traffic and still provide for the reasonable needs of navigation. The test results indicated that the proposed schedule allowed both vehicular and vessel traffic the opportunity to predict, on a scheduled basis, when the bridges might be in the open position. We received 205 comments, 182 were in favor of the test schedules, 13 were in favor of keeping the existing schedules, 8 comments provided other recommended opening schedules, and 2 were general in nature. Those comments are being maintained in the docket and will be incorporated in the final rulemaking. Public officials in Broward County requested the change in operating regulations to reduce burdens on county roadways and to standardize drawbridge openings throughout the county. The proposed rule would allow all drawbridges crossing the Atlantic Intracoastal Waterway in Broward County to operate on a standardized schedule that would meet the reasonable needs of navigation and address vehicular traffic congestion. Discussion of Proposed Rule The Coast Guard proposes to change the operating regulations of 10 drawbridges, and establish operating regulations for the Dania Beach Boulevard and Sheridan Street drawbridges, all of which cross the Atlantic Intracoastal Waterway in Broward County. The existing regulations that govern the operation of the Broward County drawbridges are published in 33 CFR § 117.5 and 33 CFR § 117.261. The proposed rule would stagger the bridge openings from north to south and allow a vessel traveling south at five knots to significantly reduce wait times to pass through open drawbridges. Drawbridges will either open on the hour and half hour or on the quarter and three-quarter hour. The results are that the following bridges will operate on the schedules below: Open on the hour and half hour— Hillsboro Boulevard (SR 810), mile 1050.0 Atlantic Boulevard (SR 814), mile 1056.0 Commercial Boulevard (SR 870), mile 1059.0 East Sunrise Boulevard (SR 838), mile 1062.6 SE 17th Street Causeway, mile 1065.9 Dania Beach Boulevard, mile 1069.4 Hollywood Beach Boulevard (SR 820), mile 1072.2 Open on the quarter hour and three-quarter hour— NE 14th Street, mile 1055.0 Oakland Park Boulevard, mile 1060.5 East Las Olas Boulevard, mile 1064.0 Sheridan Street, mile 1070.5 Hallandale Beach Boulevard (SR 824), mile 1074.0 Regulatory Evaluation 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. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The proposed rule would provide timed openings for vehicular traffic and sequenced openings for vessel traffic and should have little economic impact. Small Entities 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 proposed rule would affect the following entities, some of which may be small entities: the owners or operators of vessels needing to transit the Intracoastal Waterway in the vicinity of the Broward County bridges. 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 (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 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 the person listed under FOR FURTHER INFORMATION CONTACT . The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). Federalism 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. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform 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. Protection of Children 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. Indian Tribal Governments 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. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. 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. Technical Standards 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. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. In § 117.261, remove and reserve paragraphs (cc), (dd), (ee), (ff), (gg), (hh), (jj), and
(kk)and revise paragraph
(bb)to read as follows: § 117.261 Atlantic Intracoastal Waterway from St. Marys River to Key Largo.
(bb)Broward County
(1)Hillsboro Boulevard bridge (SR 810), mile 1050.0 at Deerfield Beach. The draw shall open on the hour and half-hour.
(2)NE 14th Street bridge, mile 1055.0 at Pompano. The draw shall open on the quarter-hour and three-quarter hour.
(3)Atlantic Boulevard (SR 814) bridge, mile 1056.0 at Pompano. The draw shall open on the hour and half-hour.
(4)Commercial Boulevard (SR 870) bridge, mile 1059.0, at Lauderdale-by-the-Sea. The draw shall open on the hour and half-hour.
(5)Oakland Park Boulevard bridge, mile 1060.5 at Fort Lauderdale. The draw shall open on the quarter-hour and three-quarter hour.
(6)East Sunrise Boulevard (SR 838) bridge, mile 1062.6, at Fort Lauderdale. The draw shall open on the hour and half-hour.
(7)East Las Olas bridge, mile 1064 at Fort Lauderdale. The draw shall open on the quarter-hour and three-quarter hour.
(8)SE 17th Street (Brooks Memorial) bridge, mile 1065.9 at Fort Lauderdale. The draw shall open on the hour and half-hour.
(9)Dania Beach Boulevard bridge, mile 1069.4 at Dania Beach. The draw shall open on the hour and half-hour.
(10)Sheridan Street bridge, mile 1070.5, at Fort Lauderdale. The draw shall open on the quarter-hour and three-quarter hour.
(11)Hollywood Beach Boulevard (SR 820) bridge, mile 1072.2 at Hollywood. The draw shall open on the hour and half-hour.
(12)Hallandale Beach Boulevard (SR 824) bridge, mile 1074.0 at Hallandale. The draw shall open on the quarter-hour and three-quarter hour. Dated: January 20, 2006. D.B. Peterman, Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District. [FR Doc. E6-1150 Filed 1-30-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD07-06-012] RIN 1625-AA09 Announcement of Public Meeting Regarding the Proposed Drawbridge Schedule Change for the Anna Maria and Cortez Drawbridges, Anna Maria, FL AGENCY: Coast Guard, DHS. ACTION: Notice of public meeting. SUMMARY: The Coast Guard will hold a public meeting at the Holmes Beach City Hall, 5801 Marina Drive, Holmes Beach, Florida 34217 to allow interested parties the opportunity to provide comments regarding whether the Anna Maria and Cortez Drawbridge schedules should be changed. DATES: The meeting will be held on March 29, 2006 from 5 p.m. to 7 p.m. ADDRESSES: The meeting will be held at Holmes Beach City Hall, 5801 Marina Drive, Holmes Beach, Florida 34217. Written comments may be submitted to Commander (dpb), Seventh Coast Guard District, 909 S.E. 1st Avenue, Room 432, Miami, Florida 33131-3050. Commander
(dpb)maintains the public docket, and comments and material received from the public will become part of docket [CGD07-05-097] and will be available for inspection or copying at the above address between 8 a.m. and 4:30 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Michael Lieberum, Seventh Coast Guard District, Bridge Branch, telephone number 305-415-6743. SUPPLEMENTARY INFORMATION: On August 16, 2005, the Coast Guard published a Notice of Proposed Rulemaking
(NPRM)in the **Federal Register** that proposed to change the operating regulations governing the Anna Maria (SR 64) and Cortez (SR 684) drawbridges. [70 FR 48091] The Coast Guard has received several comments from the public stating that the proposed regulation change should not be approved until a public meeting is held. In response to those comments, a public meeting will be held so that all interested parties will have an opportunity to comment as to whether the current drawbridge regulations should be changed. Written statements and exhibits may be submitted in place of or in addition to oral statements and will be made part of the meeting record. Such written statements and exhibits may be delivered at the meeting or mailed to Chief, Bridge Operations Section, Seventh Coast Guard District, Bridge Branch, 909 SE. 1st Avenue, Room 432, Miami, Florida 33131-3050. Dated: January 20, 2006. D.B. Peterman, RADM, U.S. Coast Guard, Commander, Seventh Coast Guard District. [FR Doc. E6-1149 Filed 1-30-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2005-MD-0013; FRL-8026-6] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Amendments to the Control of Incinerators AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan
(SIP)revision submitted by Maryland Department of the Environment (MDE). This revision pertains to amendments to the regulations for the control of incinerators. This action is being taken under the Clean Air Act (CAA or the Act). DATES: Written comments must be received on or before March 2, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2005-MD-0013 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: morris.makeba@epa.gov.* C. *Mail:* EPA-R03-OAR-2005-MD-0013, Makeba Morris, Chief, Air Quality and Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2005-MD-0013. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230. FOR FURTHER INFORMATION CONTACT: LaKeshia N. Robertson
(215)814-2113, or by e-mail at *robertson.lakeshia@epa.gov.* SUPPLEMENTARY INFORMATION: On October 31, 2005, Maryland submitted a revision to its SIP. The revision (#05-06) pertains to amendments to regulations .01 and .05 under COMAR 26.11.08 Control of Incinerators. I. Background COMAR 26.11.08 sets forth emission standards and requirements for incinerators that burn “infectious” or special medical waste generated by health care and research facilities. These incinerators, which are used by health care and research facilities, must meet particulate matter and toxic air pollutants emission limits and other requirements. Two years ago, following federal guidelines MDE adopted more stringent federal requirements for certain hospital/ medical waste incinerators. Those requirements applied to various sizes of hospital incinerators but did not apply to units burning pathological waste or crematories. Special medical waste incinerators that were not subject to the more restrictive federal requirements are subject to the MDE's particulate matter and toxic air pollutant requirements. The special medical waste incinerators subject to Maryland's regulations are required to meet a particulate matter standard of 0.1 grains per standard cubic foot dry (SCFD). Other incinerators and hazardous waste incinerators are subject to a more restrictive 0.03 grain loading requirement. Although the MDE's intent was to treat crematories as special medical waste incinerators and subject them to the 0.1 grain loading requirement, the current regulations are not clear as to which particulate matter requirement applies to crematories. The October 31, 2005 revision clarifies this discrepancy. II. Summary of SIP Revision The revision defines the term “crematory” and clarifies the particulate matter requirements to indicate that crematories are subject to the 0.1 grain loading requirement. Special medical waste incinerators that are not subject to the more restrictive federal requirements are subject to the 0.1 grain loading requirement and crematories are treated as special medical waste incinerators. The amendments address COMAR 26.11.08, sections .01 and .05. The referenced changes are listed below. *Revision 1.* Section .01B(9-1): The term “crematory” is defined as a furnace where a human or animal corpse is burned with:
(a)The container or bag in which the human or animal corpse is placed or transported; and
(b)The animal bedding, if applicable. *Revision 2.* Particulate Matter Section .05A(3) Requirements for Areas I, II, V, and VI: Crematories have been incorporated into the rule with stipulations on the particulate matter emissions into the atmosphere. The rule states that a person may not cause or permit the discharge of particulate matter into the outdoor atmosphere that exceed 0.10 grains per standard cubic foot dry 0.10 gr/SCFD (229 mg/dscm). Section .05B(2)(a) Requirements for Areas III and IV: Crematories have been incorporated into the rule with stipulations on the particulate matter emissions into the atmosphere. The rule clearly states that a person may not cause or permit the discharge of particulate matter into the outdoor atmosphere to exceed 0.10 grains per standard cubic foot dry 0.10gr/SCFD (229mg/dscm). III. Proposed Action EPA is approving Maryland's SIP revisions submitted on October 31, 2005 to incorporate crematory provisions into rule COMAR 26.11.08, which amends sections .01 and .05. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 Fed. Reg. 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule, to amend Maryland's incinerator regulation, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Particulate matter. Authority: 42 U.S.C. 7401 *et seq.* Dated: January 24, 2006. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E6-1205 Filed 1-30-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2005-VA-0017; FRL-8026-7] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Emission Standards for Consumer Products in the Northern Virginia Volatile Organic Compound Emissions Control Area AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a State Implementation Plan
(SIP)revision submitted by the Commonwealth of Virginia. This revision pertains to the emission standards for consumer products sold and used in the Northern Virginia volatile organic compound
(VOC)emissions control area. This action is being taken under the Clean Air Act (CAA or the Act). DATES: Written comments must be received on or before March 2, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2005-VA-0017 by one of the following methods: A. *www.regulations.gov.* Follow the on-line instructions for submitting comments. B. E-mail: *morris.makeba@epa.gov.* C. Mail: EPA-R03-OAR-2005-VA-0017, Makeba Morris, Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2005-VA-0017. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *i.e.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219. FOR FURTHER INFORMATION CONTACT: Rose Quinto,
(215)814-2182, or by e-mail at *quinto.rose@epa.gov.* SUPPLEMENTARY INFORMATION: On October 25, 2005, the Virginia Department of Environmental Quality (VADEQ) submitted a formal revision to its State Implementation Plan (SIP). This SIP revision consists of
(1)amendments to 9 VAC 5 Chapter 20, Part I, Administrative, 9 VAC 5-20-21, Documents Incorporated by Reference; and
(2)new regulation 9 VAC 5 Chapter 40, Part II, Emission Standards, Article 50—Consumer Products, 9VAC 5-40-7240 through 9 VAC 5-40-7360. I. Background The standards and requirements contained in Virginia's consumers products rule are based on the Ozone Transport Commission
(OTC)model rule. The OTC consumer products model rule is based on the existing rules developed by the California Air Resources Board, which were analyzed and modified by the OTC workgroup to address VOC reduction needs in the Ozone Transport Region (OTR). The OTR consists of Delaware, Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, the District of Columbia, and Virginia. II. Summary of SIP Revision Amendments to 9 VAC 5-20-21 incorporate by reference additional test methods and procedures needed for 9 VAC 5 Chapter 40, Consumer Products:
(1)40 CFR 59 Subpart C, National Volatile Organic Compound Emission Standards for Consumer Products;
(2)American Society for Testing and Materials
(ASTM)D86-01, Standard Test Method for Distillation of Petroleum Products at Atmospheric Pressure, 2001;
(3)ASTM D4359-90, Standard Test Method for Determining Whether a Material Is a Liquid or a Solid, 2000;
(4)ASTM E260-96, Standard Practice for Packed Column Gas Chromatography, 2001;
(5)South Coast Air Quality Management District Rule 1174, Ignition Method Compliance Certification Protocol, February 28, 1991;
(6)California Air Resources Board
(CARB)Test Method 310 (including Appendices A and B), Determination of VOCs in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products, July 18, 2001;
(7)California Code of Regulations, Title 17, Division 3, Chapter 1, Subchapter 8.5, Article 1, section 94503.5, Article 2, sections 94509 and 94511, Article 4, sections 94540-94555, 2003; and
(8)American Furniture Manufacturer Association Joint Industry Fabrics Standards Committee, Woven and Knit Residential Upholstery Fabric Standards and Guidelines, January 2001. Virginia's consumer products rule (9 VAC 5 Chapter 40) applies only to sources in the Northern Virginia VOC emissions control area designated in 9 VAC 5-20-206. This rule limits VOC emissions from consumer products such as adhesives, adhesive removers, aerosol products (like cooking and dusting sprays), air freshener, antiperspirants and deodorants, facial toners and astringents, waxes and polishes (for cars and floors, etc.), tile cleaners, tar removers, bug sprays, rug cleaners, charcoal lighter fluid, disinfectants, cosmetics and soaps. The compliance date for this rule is July 1, 2005. Rule 9 VAC 5 Chapter 40 applies to any person who sells, supplies, offers for sale, or manufactures consumer products that contain VOC. Exempted from the rule is any consumer product manufactured in the Northern Virginia VOC emissions control area for shipment and use outside of this area. The rule does not apply to a manufacturer or distributor who sells, supplies, or offers for sale a consumer product that does not comply with the VOC standards as long as the manufacturer or distributor can demonstrate both that the consumer product is intended for shipment and use outside of the Northern Virginia VOC emissions control area, and that the manufacturer or distributor has taken reasonable prudent precautions to assure that the consumer product is not distributed to the Northern Virginia VOC emissions control area. The rule sets specific VOC content limits in percent VOCs by weight for consumer products with a compliance date of July 1, 2005. Exemptions from the VOC content limits are listed in the rule. The rule also contains requirements for the following consumer products:
(1)Products requiring dilution,
(2)ozone depleting compounds,
(3)aerosol adhesives,
(4)antiperspirants or deodorants,
(5)charcoal lighter materials, and
(6)floor wax strippers. Alternative control plans
(ACP)are also provided by allowing responsible parties the option to voluntarily enter into separate ACP agreements for the consumer products mentioned above. Criteria for innovative products exemption and requirements for waiver requests are listed in the rule. In addition, the rule contains administrative requirements for labeling and reporting as well as test methods for demonstrating compliance. The test methods used to test coatings must be the most current approved method at the time testing is performed. III. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information
(1)that are generated or developed before the commencement of a voluntary environmental assessment;
(2)that are prepared independently of the assessment process;
(3)that demonstrate a clear, imminent and substantial danger to the public health or environment; or
(4)that are required by law. On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.” Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the Clean Air Act, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the Clean Air Act is likewise unaffected by this, or any, state audit privilege or immunity law. IV. Proposed Action EPA's review of this material indicates that the standards and requirements contained in the Virginia's consumer products rule, 9 VAC 5 Chapter 40, are consistent with the OTC model rule. EPA is proposing to approve the Virginia SIP revision submitted on October 25, 2005 for the new regulation, 9 VAC 5 Chapter 40, and the amendments to 9 VAC 5-20-21 that incorporates by reference test methods and procedures needed for 9 VAC 5 Chapter 40. The implementation of this rule will result in the reduction of VOC emissions from consumer products in the Northern Virginia VOC emissions control area. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. V. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule pertaining to the emission standards for consumer products in the Northern Virginia VOC emissions control area, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: January 23, 2006. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E6-1210 Filed 1-30-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 604 [Docket No. FTA-2005-22657] RIN 2132-AA85 Charter Service AGENCY: Federal Transit Administration (FTA), DOT. ACTION: Notice of intent to form a negotiated rulemaking advisory committee. SUMMARY: Pursuant to the direction contained in the Joint Explanatory Statement of the Committee of Conference, for section 3023(d), Condition on Charter Bus Transportation Service of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) of 2005, FTA is establishing a committee to develop, through negotiated rulemaking procedures, recommendations for improving the regulation regarding prohibition of FTA grant recipients from providing charter bus service. The committee will consist of persons who represent the interests affected by the proposed rule, i.e., charter bus companies, public transportation operators, and other interested parties. The purpose of this document is to invite interested parties to submit comments on the issues to be discussed and the interests and organizations to be considered for representation on the committee. DATES: You should submit your comments or applications for membership or nominations for membership on the negotiated rulemaking committee early enough to ensure that the Department of Transportation's Docket Management System
(DMS)receives them not later than March 2, 2006. Late-filed comments will be considered to the extent practicable. ADDRESSES: You should mention the docket number of FTA-2005-22657 in your comments or application/nomination for membership and submit them in writing to: Docket Management System (DMS), Room PL-401, 400 Seventh Street, SW., Washington, DC 20590. Commenters may also submit their comments electronically. Instructions for electronic submission may be found at the following Web address: *http://dms.dot.gov/submit/.* You may call the Docket at 202-366-9324, and visit it from 10 a.m. to 5 p.m., Monday through Friday. You may read the comments received by DMS at *http://dms.dot.gov.* Interested persons may view docketed materials on the internet at any time. To read docket materials on the internet, take the following steps: 1. Go to the DMS Web page of the Department of Transportation ( *http://dms.dot.gov/* ). 2. On that page, click on “simple search.” 3. On the next page ( *http://dms.dot.gov/search/* ), type in the FTA-2005-22657, which is shown on the first page of this document. 4. On the next page, which contains docket summary information for the docket you selected, click on the desired comments. You may download the comments and the comments are word searchable. Please note that even after the comment closing date, we will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. FOR FURTHER INFORMATION CONTACT: Elizabeth S. Martineau, Attorney-Advisor, Office of the Chief Counsel, Federal Transit Administration, 202-366-1936 ( *elizabeth.martineau@fta.dot.gov* ). Her mailing address at the Federal Transit Administration is 400 Seventh Street, SW., Room 9316, Washington, DC 20590. SUPPLEMENTARY INFORMATION: I. Background Applicants for FTA assistance must formally agree that they will not provide charter service using equipment or facilities funded by FTA, unless there are no private charter operators willing and able to provide the charter service or another exception applies. This requirement is in law under 49 U.S.C. 5323(d) and regulations implementing the requirement are found in 49 CFR 604. The purpose is to ensure that Federally subsidized assets, such as buses owned by public transportation agencies, do not adversely compete with services provided by private purveyors, such as charter transportation services. On August 10, 2005, the President signed into law the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The bill reauthorizes the Department of Transportation's federal transit programs through fiscal year 2009. SAFETEA-LU amends 49 U.S.C. 5323(d) Condition on Charter Bus Transportation Service. Before SAFETEA-LU, the law stated that if a pattern of violations of the charter agreement was found, the Secretary of Transportation could bar the recipient from receiving further federal assistance. As House committee report language explains, this overly broad authority to bar all future assistance was never used, whereas “a more flexible authority to penalize charter violators will encourage a more realistic and responsive approach to charter enforcement by FTA.” The new law adds this flexibility by allowing the Secretary to “bar a recipient from receiving federal transit assistance in an amount the Secretary considers appropriate.” II. Statutory Mandate Section 3023 of SAFETEA-LU amends 49 U.S.C. 5323(d) to state that “the Secretary shall bar a recipient or an operator from receiving federal transit assistance in an amount the Secretary considers appropriate if the Secretary finds a pattern of violations of the [charter bus] agreement.” Congressional conference report language on Section 3023 requests that FTA to “initiate a negotiated rulemaking seeking public comment on the regulations implementing section 5323(d) and to consider the issues listed below: 1. Are there potential limited conditions under which public transit agencies can provide community-based charter services directly to local governments and private non-profit agencies that would not otherwise be served in a cost-effective manner by private operators? 2. How can the administration and enforcement of charter bus provisions be better communicated to the public, including use of internet technology? 3. How can the enforcement of violations of the charter bus regulations be improved? 4. How can the charter complaint and administrative appeals process be improved? III. Negotiated Rulemaking As requested by conference report language on Section 3023 of SAFETEA-LU, FTA will conduct the negotiated rulemaking. The Negotiated Rulemaking Act of 1990, *Pub. L. 101-648* ( *5 U.S.C. 561, et seq.* )
(NRA)establishes a framework for the conduct of a negotiated rulemaking and encourages agencies to use negotiated rulemaking to enhance the rulemaking process. FTA will form an advisory committee consisting of representatives of the affected interests for the purpose of reaching consensus, if possible, on the proposed rule. A. The Concept of Negotiated Rulemaking Usually FTA develops a rulemaking proposal using its own staff and consultant resources. The concerns of affected parties are made known through means such as various informal contacts and advance notices of proposed rulemaking published in the **Federal Register** . After the notice of proposed rulemaking is published for comment, affected parties may submit arguments and data defining and supporting their positions with regard to the issues in the proposed rule. All comments from affected parties are directed to the Department's docket ( *http://dms.dot.gov* ) for the rulemaking. In general, there is limited communication among parties representing different interests. As Congress noted in the NRA, such regulatory development procedures may “discourage the affected parties from meeting and communicating with each other, and may cause parties with different interests to assume conflicting and antagonistic positions * * *” (Sec. 2(2) of *Pub. L. 101-648* ). Congress also stated “adversarial rulemaking deprives the affected parties and the public of the benefits of face-to-face negotiations and cooperation in developing and reaching agreement on a rule. It also deprives them of the benefits of shared information, knowledge, expertise, and technical abilities possessed by the affected parties.” (Sec. 2(3) of *Pub. L. 101-648* ). Using negotiated rulemaking to develop the proposed rule is fundamentally different. Negotiated rulemaking is a process by which a proposed rule is developed by a committee composed of representatives of those interests that will be significantly affected by the rule. Decisions are made by some form of consensus, which generally requires a measure of concurrence among the interests represented. 1 An agency desiring to initiate the process does so by carefully identifying all interests potentially affected by the rulemaking under consideration. To help in this identification process, the agency publishes a notice, such as this one, which identifies a preliminary list of interests and requests public comment on that list. Following receipt of the comments, the agency establishes an advisory committee representing these various interests to negotiate a consensus on the terms of a proposed rule. The committee is chartered under the Federal Advisory Committee Act (5 U.S.C. App. 2) (FACA). Representation on the committee may be “direct,” that is, each member represents a specific interest, or may be “indirect,” that is, through coalitions of parties formed for this purpose. The establishing agency has a member of the committee representing the Federal Government's own set of interests. A facilitator or mediator can assist the negotiated rulemaking advisory committee by facilitating the negotiation process. The role of this mediator, or facilitator, is to apply proven consensus building techniques to the advisory committee setting. 1 The Negotiated Rulemaking Act defines “consensus” as “unanimous concurrence among the interests represented on a negotiated rulemaking committee * * * unless such committee
(A)agrees to define such term to mean a general but not unanimous concurrence; or
(B)agrees upon another specified definition.” 5 U.S.C. 562(2). Once a regulatory negotiation advisory committee reaches consensus on the provisions of a proposed rule, the agency, consistent with its legal obligations, uses this consensus as the basis of its proposed rule and publishes it in the **Federal Register** . This provides the required public notice under the Administrative Procedure Act (APA; 5 U.S.C. 551 *et seq.* ) and allows for a public comment period. Under the APA, the public retains the right to comment. FTA anticipates, however, that the pre-proposal consensus agreed upon by this committee will effectively address virtually all major issues prior to publication of a proposed rulemaking. B. The Federal Transit Administration's Commitment In initiating this regulatory negotiation process, FTA plans to provide adequate resources to ensure timely and successful completion of the process. This includes making the process a priority activity for all representatives, components, officials, and personnel of FTA who need to be involved in the rulemaking, from the time of initiation until such time as a final rule is issued or the process is expressly terminated. FTA will provide administrative support for the process and will take steps to ensure that the negotiated rulemaking committee has adequate resources to complete its work in a timely fashion in each case as reasonably determined by FTA. These may include the provision or procurement of such support services as properly equipped space adequate for public meetings and caucuses; logistical support; word processing and distribution of background information; the services of a facilitator; and additional research and other technical assistance. FTA hired RESOLVE, a private company specializing in dispute resolution, to prepare a Convening Report & Recommendations. That report is available in the docket for this Notice. Please see the ADDRESSES section of this Notice for information on how to access the docket. To the extent possible, consistent with its legal obligations, FAT currently plans to use any consensus arising from the regulatory negotiation committee as the basis for the notice of proposed rulemaking to be published for public notice and comment. C. Negotiating Consensus As discussed above, the negotiated rulemaking process is fundamentally different from the usual process for developing a proposed rule. Negotiation allows interested and affected parties to discuss possible approaches to various issues rather than simply being asked in a regular notice and comment rulemaking proceeding to respond to details on a proposal developed and issued by an agency. The negotiation process involves the mutual education of the parties by each other on the practical concerns about the impact of various approaches. Each committee member participates in resolving the interests and concerns of other members, rather than leaving it exclusively to the agency to bridge different points of view. A key principle of negotiated rulemaking is that agreement is by consensus, as defined by the committee. Thus, no one interest or group of interests shall control the process. Under the NRA as noted above, “consensus” usually means the unanimous concurrence among interests represented on a negotiated rulemaking committee, though a different definition may be employed in some cases. In addition, experience has demonstrated that using a professional mediator to facilitate this process will assist all potential parties, including helping to identify their interests in the rule and enabling them to reevaluate previously stated positions on issues involved in the rulemaking effort. D. Key Issues for Negotiation; Invitation To Comment on Issues To Be Addressed The Conference Committee report on SAFETEA-LU requested that FTA and the negotiated rulemaking committee to consider the issues listed below: 1. Are there potential limited conditions under which public transit agencies can provide community-based charter services directly to local governments and private non-profit agencies that would not otherwise be served in a cost-effective manner by private operators? 2. How can the administration and enforcement of charter bus provisions be better communicated to the public, including use of Internet technology? 3. How can the enforcement of violations of the charter bus regulations be improved? 4. How can the charter complaint and administrative appeals process be improved? In addition, FTA proposes the following issues for consideration: 1. A potential new exception for emergency services such as evacuation and training for emergencies, including homeland security, natural disasters, and other emergencies. 2. A new process for determining if there are private charter bus companies willing and able to provide service that would utilize electronic notification and response within 72 hours. 3. A new exception for transportation of government employees, elected officials, and members of the transit industry to examine local transit operations, facilities, and public works. 4. Clarify the definitions of regulatory terms. FTA invites comment on the issues the negotiating committee should address in developing its recommendations or report. IV. Procedures and Guidelines for This Regulatory Negotiation The following proposed procedures and guidelines will apply to the regulatory negotiation process, subject to appropriate changes made as a result of comments on this Notice or as determined by FTA to be necessary or appropriate during the negotiating process. A. Notice of Intent To Establish Advisory Committee and Request for Comment In accordance with the requirements of FACA, an agency of the Federal Government cannot establish or utilize a group of people in the interest of obtaining consensus advice or recommendations unless that group is chartered as a Federal advisory committee. It is the purpose of this Notice to indicate FTA's intent to create a Federal advisory committee, to identify the issues involved in the rulemaking, to identify the interests affected by the rulemaking, to identify potential participants who will adequately represent those interests, and to ask for comment on the identification of the issues, interests, procedures, and participants. B. Facilitator Pursuant to the NRA, a facilitator will be selected to serve as an impartial chair of the meetings; assist committee members to conduct discussions and negotiations; and manage the keeping of minutes and records as required by FACA. The facilitator will chair the negotiations, may offer alternative suggestions to committee members to help achieve the desired consensus, will help participants define and reach consensus, and will determine the feasibility of negotiating particular issues. C. Membership The NRA provides that the agency establishing the regulatory negotiation advisory committee “shall limit membership to 25 members, unless the agency head determines that a greater number of members is necessary for the functioning of the committee or to achieve balanced membership.” The purpose of the limit on membership is to promote committee efficiency in deliberating and reaching decisions on recommendations. FTA intends to observe that limit. D. Interests Likely To Be Affected; Representation of Those Interests The committee will include a representative from FTA and from the interests and organizations listed below. Each representative may also name an alternate, who will be encouraged to attend all committee meetings and will serve in place of the representative if necessary. The FTA representative is the Designated Federal Official
(DFO)and will participate in the deliberations and activities of the committee will the same rights and responsibilities as other committee members. The DFO will be authorized to fully represent FTA in the discussions and negotiations of the committee. FTA has tentatively identified the following interests to participate in negotiated rulemaking:
(1)Federal Government
(2)State government
(3)Municipal and city government associations
(4)Large private charter operators
(5)Small private charter operators
(6)Trade associations
(7)Large public transit operators
(8)Medium public transit operators
(9)Small public transit operators
(10)Rural public transit operators
(11)Consumers with disabilities
(12)Elderly consumers
(13)Non-profit consumers
(14)For profit consumers
(15)Convention bureaus
(16)Representatives of large sporting events FTA seeks comment on whether there are additional interests that should be represented on the committee. FTA also seeks comment on particular organizations and individuals who would appropriately represent interests on the committee. Please identify such organizations and interests if they exist and explain why they should have separate representation on the committee. FTA, through its convener and Convening Report and Recommendations, has identified specific individuals and entities that it proposes be included in the Federal advisory committee, as follows: Shelly Brown, Consultant; John D. Corr, Chestnut Ridge Transportation, Inc., Sandra Draggoo, Capital Area Transportation Authority; Daniel Duff, American Public Transportation Association; Gladys Gillis, Northwest Motorcoach Association; Mark Huffer, Kansas City Area Transit Authority; Pat Jordan, Coalition for Community Based Transit; Carol Ketchserside, Southwest Transit Authority; Alfred LaGasse, Taxicab, Limousine & Paratransit Association; Susan Lent, Akin Gump Strauss Hauer & Feld LLP; Norm Little, United Motorcoach Association; Dale Marsico, Community Transportation Association of America; Richard Ruddell, Fort Worth Transportation Authority; Richard P. Schweitzer, Counsel for American Bus Association; Carl Sedoryk, Monterey Salinas Transit; Steve Tobis, September Winds Motor Coach, Inc.; Michael Waters, Gray Line; Becky Weber, BKSH & Associates, and a representative from both FTA and the Small Business Association. The list of individuals and interests above is not presented as a complete or exclusive list from which committee members will be selected. Nor does inclusion on the list mean that a party on the list has agreed to participate as a member of the committee or as a member of a coalition, or will necessarily be invited to serve on the committee. In fact, the above list of individuals does not include all of the interests that we have identified as being affected by this process. Rather, the above lists merely indicates individuals and interests that FTA has tentatively identified as representing significantly affected interests in the outcome of the proposed rule. We strongly encourage individuals and interests to apply for membership as provided below in paragraph III.E. Those listed above are required to submit an application for membership on the committee. FTA is aware that the number of potential participants may exceed the number of permissible representatives on the committee. We do not believe, nor does the NRA contemplate, that each potentially affected group participate directly in the negotiations. What is important is that each affected interest be adequately represented. Given the limits on the number of representatives who may serve on the advisory committee, it is advisable for interested parties to identify and form coalitions to represent their interests. These coalitions, to provide adequate representation, must agree to support, both financially and technically, a member of the committee whom they will choose to represent their “interest.” Those selected to represent a coalition of interests represent the interest of that coalition. It is very important to recognize that interested parties who are not selected for membership on the committee can make valuable contributions to this negotiated rulemaking effort in several ways: • The person or organization could request to be placed on the committee mailing list, submitting written comments, as appropriate; • Any member of the public could attend the committee meetings, caucus with his or her interest's member on the committee, and, as provided in FACA, speak to the committee. Time will be set aside during each meeting for this purpose, consistent with the committee's need for sufficient time to complete its deliberations; or • The person or organization could assist in the work of a workgroup that might be established by the committee. Informal workgroups are usually established by an advisory committee to assist the committee in “staffing” various technical matters ( *e.g.* , researching or preparing summaries of the technical literature or comments on particular matters such as economic issues) before the committee so as to facilitate committee deliberations. They also might assist in estimating costs and drafting regulatory text on issues associated with the analysis of the costs and benefits addressed, and formulating drafts of the various provisions and their justification previously developed by the committee. Given their staffing function, workgroups usually consist of participants who have expertise or particular interest in the technical matter(s) being studied. E. Applications for Membership Each application for membership or nomination to the committee should include:
(1)The name of the applicant or nominee and the interest(s) such person would represent;
(2)Evidence that the applicant or nominee is authorized to represent parties related to the interest(s) the person proposes to represent; and
(3)A written commitment that the applicant or nominee would participate in good faith. Please be aware that each individual or organization affected by a final rule need not have its own representative on the committee. Rather, each interest must be adequately represented, and the committee should be fairly balances. F. Good Faith Negotiation Committee members should be willing to negotiate in good faith and have the authority from his or her constituency to do so. The first step is to ensure that each member has good communications with his or her constituencies. An intra-interest network of communication should be established to bring information from the support organization to the member at the table, and to take information from the table back to the support organization. Second, each organization or coalition should, therefore, designate as its representative an official with credibility and authority to insure that needed information is provided and decisions are made in a timely fashion. Negotiated rulemaking efforts can require a very significant contribution of time by the appointed members for the duration of the negotiation process. Other qualities that are very helpful are negotiating experience and skills, and sufficient technical knowledge to participate in substantive negotiations. Certain concepts are central to negotiating in good faith. One is the willingness to bring all issues to the bargaining table in an attempt to reach a consensus, instead of keeping key issues in reserve. The second is a willingness to promote and protect the ability of the committee to conduct its negotiations. Finally, good faith includes a willingness to move away from the type of positions usually taken in a more traditional rulemaking process, and instead explore openly with other parties all ideas that may emerge from the discussions of the committee. G. Notice of Establishment After evaluating comments received as a result of this Notice, FTA will issue a notice announcing the establishment and composition of the committee. After the committee is chartered, the negotiations will begin. H. Administrative Support and Meetings Staff support will be provided by FTA. Meetings are currently expected to take place in Washington, DC. I. Notice of Proposed Rulemaking The committee's objective will be to prepare a report, consisting of its consensus recommendations for the regulatory text of a draft notice of proposed rulemaking (NPRM). This report may also include suggestions for the NPRM preamble, regulatory evaluation, or other supplemental documents. If the committee cannot achieve consensus on some aspects of the proposed regulatory text, it will, pursuant to the “ground rules” the committee has established, identify in its report those areas of disagreement, and provide explanations for any disagreement. FTA will use the information and recommendations from the committee report to draft a notice of proposed rulemaking and, as appropriate, supporting documents. Committee recommendations and other documents produced by the committee will be placed in the rulemaking docket. In the event that FTA's NPRM differs from the committee's consensus recommendations, the preamble to an NPRM addressing the issues that were the subject of the negotiations will explain the reasons for the decisions to depart from the committee's recommendations. Following the issuance of NPRM and comment period, FTA will prepare and provide to the committee a comment summary. The committee will then be asked to determine whether the committee should reconvene to discuss changes to the NPRM based on the comments. J. Committee Procedures Under the general guidance of the facilitator, and subject to legal requirements, the committee will establish detailed procedures for the meetings. The meetings of the committee will be open to the public. Any person attending the committee meetings may address the committee if time permits or file statements with the committee. K. Record of Meetings In accordance with FACA requirements, the facilitator will prepare summaries of all committee meetings. These summaries will be placed in the public docket for this rulemaking. L. Tentative Schedule FTA is seeking to convene the first of the committee's meetings starting in April, 2006. The exact date and location of that meeting will be announced in our notice of establishment of the advisory committee. Meetings are expected to last approximately two days each. The negotiation process will proceed according to a schedule of specific dates for subsequent meetings that the committee devises at its first meeting. We will publish a single notice of the schedule of all future meetings in the **Federal Register** , but will amend the notice through subsequent **Federal Register** notices if it becomes necessary to do so. The interval between meetings will be approximately one month. The first meeting will commence with an overview of the regulatory negotiation process conducted by the facilitator. Issued this 24th day of January, 2006, at Washington, DC. Sandra K. Bushue, Deputy Administrator, Federal Transit Administration. [FR Doc. 06-868 Filed 1-30-06; 8:45 am]
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Traces to 69 documents
U.S. Code
77 references not yet in our index
  • 10 CFR 70
  • Pub. L. 104-113
  • Pub. L. 97-190
  • 10 CFR 51
  • 10 CFR 30
  • 10 CFR 40
  • 10 CFR 50
  • 10 CFR 60
  • 10 CFR 61
  • 10 CFR 63
  • 10 CFR 71
  • 10 CFR 72
  • 10 CFR 76
  • 68 Stat. 935
  • 83 Stat. 444
  • 88 Stat. 1242
  • 112 Stat. 2750
  • Pub. L. 95-601
  • 92 Stat. 2951
  • Pub. L. 102-486
  • 106 Stat. 3123
  • 68 Stat. 954
  • 68 Stat. 955
  • 68 Stat. 932
  • Pub. L. 95-604
  • 92 Stat. 3033
  • Pub. L. 86-373
  • 73 Stat. 688
  • 92 Stat. 3021
  • Pub. L. 97-415
  • 96 Stat. 2067
  • 104 Stat. 2835
  • Pub. L. 104-134
  • 68 Stat. 939
  • 68 Stat. 936
  • Pub. L. 91-190
  • 83 Stat. 853
  • 88 Stat. 1245
  • 96 Stat. 2073
  • 68 Stat. 929
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C.F.R.§ 30.7
C.F.R.§ 50.7
C.F.R.§ 76.7
U.S.C.§ 4321
U.S.C.§ 3501
U.S.C.§ 605
C.F.R.§ 2.810
U.S.C.§ 553
U.S.C.§ 2111
F. App'x71 F.3d 626
F. App'x27 F.3d 564
Cite10 CFR 70
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