Proposed Rules. Notice of proposed rulemaking (NPRM)
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/register/2006/05/25/06-4877A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24864; Directorate Identifier 2006-NM-072-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-30, DC-10-30F (KDC-10), DC-10-40, and DC-10-40F 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 McDonnell Douglas airplanes, identified above. This proposed AD would require reducing the length of the sump drain collar and replacing the fuel tank sump drain lockring for fuel tanks 1, 2, and 3; and reducing the length of the drain outlet barrel for the auxiliary fuel tank, if applicable. For airplanes with an auxiliary fuel tank, this proposed AD also would require relocating the sump drain outlet to allow draining the sumps without opening the doors of the main landing gear wheel well. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to reduce the potential of ignition sources inside fuel tanks in the event of a lightning strike, which, in combination with flammable fuel vapors, could result in arcing in the fuel tank, fuel tank explosions, and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by July 10, 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, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024), for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Samuel Lee, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5262; fax
(562)627-5210. 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-2006-24864; Directorate Identifier 2006-NM-072-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 The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Review of the lightning protection for the valve installation for the sump drain of the fuel tanks showed that the drain valves must be insulated. If the fuel level is below the drain valve body, and there is a lightning strike, electrical current could travel from the airplane skin up the sump drain collar into the valve housing. This condition, in combination with a lightning strike and flammable fuel vapors, could result in arcing in the fuel tank, fuel tank explosions, and consequent loss of the airplane. Relevant Service Information We have reviewed McDonnell Douglas DC-10 Service Bulletin 28-61, dated January 17, 1978. The service bulletin describes procedures for reducing the length of the sump drain collar and replacing the fuel tank sump drain lockring for fuel tanks 1, 2, and 3 with an improved lockring; and reducing the length of the drain outlet barrel for the auxiliary fuel tank, if applicable. McDonnell Douglas DC-10 Service Bulletin 28-61 specifies that for certain airplanes, before or concurrently with the modification of the sump drain outlets described above, the sump drain outlet for the auxiliary tank must be relocated to allow draining the sumps without opening the doors of the main landing gear wheel well. The procedures for doing this action are described in McDonnell Douglas DC-10 Bulletin 28-19, Revision 1, dated October 15, 1973. This action applies only to those airplanes identified as Group II in McDonnell Douglas DC-10 Service Bulletin 28-61, that are also contained in the effectivity of McDonnell Douglas DC-10 Bulletin 28-19, Revision 1. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. 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 “Difference Between the Proposed AD and Service Bulletin 28-61.” Difference Between the Proposed AD and Service Bulletin 28-61 McDonnell Douglas DC-10 Service Bulletin 28-61 recommends doing the modification at the operator's convenience, which would not ensure an adequate level of safety for the affected fleet. In developing an appropriate compliance time for this AD, we considered the manufacturer's recommendation, the degree of urgency associated with the subject unsafe condition, and the average utilization of the affected fleet. In light of all of these factors, we find that a compliance time of 60 months after the effective date of this AD represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This difference has been coordinated with Boeing, and Boeing concurred. Costs of Compliance There are about 135 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The labor rate is $80 per work hour. Estimated Costs Action Work hours Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost For all airplanes: Reduce the length of the sump drain collar and replace the fuel tank sump drain for fuel tanks 1, 2, and 3 3 to 15 $720 to $4,858 $960 to $6,058 109 $104,640 to $660,322. For airplanes with an auxiliary fuel tank: Reduce the length of the drain outlet barrel for the auxiliary fuel tank 6 to 15 $0 to $720 $480 to $1,920 Up to 109 $52,320 to $209,280. Prior requirement for certain airplanes 1 to 6 The manufacturer states that it will supply required parts to the operators at no cost $80 to $480 Up to 109 $8,720 to $52,320. 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): **McDonnell Douglas:** Docket No. FAA-2006-24864; Directorate Identifier 2006-NM-072-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by July 10, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-30, DC-10-30F (KDC-10), DC-10-40, and DC-10-40F airplanes, certificated in any category; as identified in McDonnell Douglas DC-10 Service Bulletin 28-61, dated January 17, 1978. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to reduce the potential of ignition sources inside fuel tanks in the event of a lightning strike, which, in combination with flammable fuel vapors, could result in arcing in the fuel tank, fuel tank explosions, and consequent loss of the airplane. 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. Corrective Actions
(f)Within 60 months after the effective date of this AD: Reduce the length of the sump drain collar and replace the fuel tank sump drain lockring for fuel tanks 1, 2, and 3; and reduce the length of the drain outlet barrel for the auxiliary fuel tank, as applicable; by doing all the applicable actions in accordance with the Accomplishment Instructions of McDonnell Douglas DC-10 Service Bulletin 28-61, dated January 17, 1978. Prior Requirement
(g)For airplanes identified as Group II airplanes in McDonnell Douglas DC-10 Service Bulletin 28-61, dated January 17, 1978, that are also contained in the effectivity of McDonnell Douglas DC-10 Bulletin 28-19, Revision 1, dated October 15, 1973: Before the actions in paragraph
(f)of this AD, relocate the sump drain outlet for the auxiliary tank in accordance with the Accomplishment Instructions of McDonnell Douglas DC-10 Bulletin 28-19, Revision 1, dated October 15, 1973. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Los Angeles 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 May 17, 2006. Kevin M. Mullin, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-8010 Filed 5-24-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24866; Directorate Identifier 2006-NM-105-AD] RIN 2120-AA64 Airworthiness Directives; McDonnell Douglas Model MD-90-30 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 all McDonnell Douglas Model MD-90-30 airplanes. This proposed AD would require installing a clamp, bonding jumper assembly, and attaching hardware to the refueling manifold in the right wing refueling station area. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to prevent arcing on the in-tank side of the fueling valve during a lightning strike, which could result in an ignition source that could ignite fuel vapor and cause a fuel tank explosion. DATES: We must receive comments on this proposed AD by July 10, 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, Long Beach Division, 3855 Lakewood Boulevard, Long Beach, California 90846, Attention: Data and Service Management, Dept. C1-L5A (D800-0024), for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: William Bond, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562)627-5253; fax
(562)627-5210. 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-2006-24866; Directorate Identifier 2006-NM-105-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 The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. We have received a report indicating that an SFAR 88 review of the fuel system on McDonnell Douglas Model MD-80 airplanes revealed a potential for arcing on the in-tank side of the fueling valve during a lightning strike. The non-conductive coating, which keeps the rigid pipes and valves electrically isolated, may wear off or be scratched. Any wear or scratch in the coating could allow lightning-induced current to flow from the refueling manifold to the airplane structure through the fueling valve and could cause arcing. Arcing on the in-tank side of the fueling valve, could result in an ignition source that could ignite fuel vapor and cause a fuel tank explosion. The subject area on McDonnell Douglas Model MD-90-30 airplanes is identical to that on the affected McDonnell Douglas Model MD-80 airplanes. Therefore, all of these models may be subject to the same unsafe condition. Related Rulemaking We are considering additional rulemaking to address the same unsafe condition on McDonnell Douglas Model MD-80 airplanes. Relevant Service Information We have reviewed Boeing Service Bulletin MD90-28-011, dated May 16, 2005. The service bulletin describes procedures for installing a clamp, bonding jumper assembly, and attaching hardware to the refueling manifold in the right wing refueling station area. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. 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. Costs of Compliance There are about 116 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 21 airplanes of U.S. registry. The proposed actions would take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Required parts would cost about $8 per airplane. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $3,528, or $168 per airplane. 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): **McDonnell Douglas:** Docket No. FAA-2006-24866; Directorate Identifier 2006-NM-105-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by July 10, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to all McDonnell Douglas Model MD-90-30 airplanes, certificated in any category. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent arcing on the in-tank side of the fueling valve during a lightning strike, which could result in an ignition source that could ignite fuel vapor and cause a fuel tank explosion. 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. Installation
(f)Within 60 months after the effective date of this AD: Install a clamp, bonding jumper assembly, and attaching hardware to the refueling manifold in the right wing refueling station area, by doing all of the actions specified in the Accomplishment Instructions of Boeing Service Bulletin MD90-28-011, dated May 16, 2005. Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Los Angeles 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 May 17, 2006. Kevin M. Mullin, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-8011 Filed 5-24-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24865; Directorate Identifier 2005-NM-194-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to supersede an existing airworthiness directive
(AD)that applies to certain Boeing Model 747 airplanes. The existing AD currently requires inspections to detect disbonding, corrosion, and cracking at the longitudinal rows of fasteners in the bonded skin panels in section 41 of the fuselage, and repair, if necessary. This proposed AD would add airplanes to the applicability, and require new inspections of airplanes that may have Alodine-coated rivets installed. This proposed AD results from a report of cracking discovered in a skin lap joint that was previously inspected using the eddy current method. We are proposing this AD to prevent rapid decompression of the airplane due to disbonding and subsequent cracking of the skin panels. DATES: We must receive comments on this proposed AD by July 10, 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 service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Nicholas Kusz, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone
(425)917-6432; 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 “Docket No. FAA-2006-24865; Directorate Identifier 2005-NM-194-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 the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or may can 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 On October 28, 1996, we issued AD 96-23-02, amendment 39-9807 (61 FR 57994, November 12, 1996), for certain Boeing Model 747 airplanes. That AD requires inspections to detect disbonding, corrosion, and cracking at the longitudinal rows of fasteners in the bonded skin panels in section 41 of the fuselage, and repair, if necessary. That AD resulted from a report of skin cracking due to disbonding of the internal doubler of the cracked skin panels. We issued that AD to prevent rapid decompression of the airplane due to disbonding and subsequent cracking of the skin panels. Actions Since Existing AD Was Issued Since 1985 Boeing has incorporated rivets coated with Alodine into production fuselage aluminum skins and post-production skin modification kits. Alodine coating on rivets provides a protective chemical conversion coating, but also increases electrical conductivity. Certain non-destructive inspection
(NDI)methods rely on disruptions in the electromagnetic field around cracks in metallic structures to detect cracking. One such NDI method is the sliding probe eddy current inspection, which was one inspection method required by AD 96-23-02. Conductivity of the Alodine-coated rivet could be strong enough to mask cracking in the fastener hole during eddy current inspections. Since we issued AD 96-23-02, cracking was discovered in a skin lap joint that was previously inspected using the eddy current method. Further investigation showed that the crack was not detected due to masking from Alodine rivets. The crack was discovered during a full-scale fatigue test on a Model 737 fuselage. The manufacturer has accomplished a comprehensive study of the effect of Alodine-coated rivets on all Boeing Airplane models. Based on the critical nature of the sliding probe eddy current inspection method, this study indicates that two existing ADs, AD 96-23-02 and AD 90-26-10, require further rulemaking. We are proposing this NPRM to supersede AD 96-23-02, and Docket No. FAA-2006-24877 to supersede AD 90-26-10. In addition, based on this study, the FAA does not propose to issue other ADs related to Alodine-coated rivets. Since we issued AD 96-23-02, we have also received reports of new crack findings on Model 747 airplanes that were not originally included in the applicability of AD 96-23-02. Other Relevant Rulemaking On December 3, 1990, we issued AD 90-26-10, amendment 39-6836 (55 FR 51401, December 14, 1990). That AD requires repetitive inspections to detect cracks at certain stringer fastener locations; and repair, if necessary. For certain airplanes, AD 90-26-10 requires a modification in certain areas where reports indicate that cracking was prevalent. This modification terminates the repetitive inspections only for those areas, and is also an option for other airplanes. Skin panels replaced in accordance with AD 90-26-10 are not susceptible to the disbonding and cracking that is the unsafe condition addressed by this proposed AD. That AD resulted from reports of multiple longitudinal skin cracks. We issued that AD to prevent rapid decompression of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005 (the original issue of Boeing Alert Service Bulletin 747-53A2409, dated September 26, 1996, was referenced as the appropriate source of service information for accomplishing the required actions in AD 96-23-02). Operators should note Revision 5 of the alert service bulletin revises the airplane group numbers that were referenced in AD 96-23-02. Boeing Alert Service Bulletin 747-53A2409, Revision 5, describes procedures for initial inspections to detect disbonding, corrosion, and cracking of the longitudinal rows of fasteners in the bonded skin panels in section 41 of the fuselage, and repair if necessary. The alert service bulletin also describes procedures for related investigative actions if any discrepancy is found. These actions depend on the inspected area and the discrepancy and can include additional inspections using one of the methods described below. The alert service bulletin identifies four affected skin areas: • *Area 1:* The flat skin panel aft of the cockpit windows from body station
(BS)340 to BS 520 between S-6 and S-14. • *Area 2:* The flat skin panels below the cockpit windows. • *Area 3:* The large-radius skin panels in the main deck area (excluding Area 4). • *Area 4:* The section of the large-radius skin panel aft of door 1 from BS 488 to BS 500 between S-16 and S-26. The alert service bulletin also specifies four methods of inspection, with related corrective actions: • *Method 1:* One-time external ultrasonic inspections of the skin for disbonded doublers; and an external inspection of the skin for cracks, and repair, if necessary; • *Method 2:* One-time internal detailed inspections of the skin for disbonded doublers, corrosion, or cracks; and repair, or an external inspection of the skin for cracks, if necessary; • *Method 3:* Repetitive external detailed inspections of the skin for cracks, and repair, if necessary; and • *Method 4:* Repetitive external high frequency eddy current
(HFEC)inspections of the skin for cracks, and repair, if necessary. Figures 1, 2, 3, 17, 18, 19, 20, 21, and 22 of the alert service bulletin provide the compliance times for all inspections. The compliance times for doing the initial and repetitive inspections depend on previous installation of rivets coated with Alodine, and on previous inspections, modifications, and repairs. The thresholds for initial inspections are the latest of 150 flight cycles after the date of the service bulletin or 3,000 flight cycles after a previous inspection. The repetitive intervals also depend on certain previous repairs and range from 150 flight cycles to 3,000 flight cycles. The compliance time for all applicable repairs is before further flight. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to develop on airplanes of the same type design. For this reason, we are proposing this AD, which would supersede AD 96-23-02 and would retain the requirements of the existing AD. This proposed AD would also require accomplishing the actions specified in the alert service bulletin described previously, except as discussed under “Differences Between the Proposed AD and the Alert Service Bulletin.” Differences Between the Proposed AD and the Alert Service Bulletin Operators should note that, although the referenced alert service bulletin describes procedures for submitting an inspection report to the manufacturer, this proposed AD would not require that action. The alert service bulletin specifies compliance times relative to the date of issuance or receipt of the service bulletin; however, this proposed AD would require compliance before the specified compliance time after the effective date of this AD or another applicable AD, as specified. While the alert service bulletin describes procedures for inspections of four particular areas of the airplane, this proposed AD would require inspections of only two of those areas. The service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions or do certain actions, but this proposed AD would require repairing those conditions or doing those actions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. The service bulletin specifies that it is not necessary to count flight cycles at 2.0 psi or less cabin differential pressure. We find that insufficient data exist to support this adjustment to flight cycles. Consequently, this AD does not allow for this adjustment factor. These differences have been coordinated with Boeing. Clarification of Alternative Method of Compliance
(AMOC)Paragraph We have revised this action to clarify the appropriate procedure for notifying the principal inspector before using any approved AMOC on any airplane to which the AMOC applies. Explanation of Change in Applicability We have revised the applicability of the AD to identify the model designations as published in the most recent type certificate data sheet for the affected model. Costs of Compliance There are about 623 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour. Estimated Costs Action Work hours Cost per airplane, per inspection cycle U.S.-registered airplanes Fleet cost, per inspection cycle Inspections (required by AD 96-23-02, and continued in this proposed AD) 308 $24,640 79 $1,946,460. New inspections (for airplanes with alodine-coated rivets) 42 3,360 96 Up to $322,560. 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 removing amendment 39-9807 (61 FR 57994, November 12, 1996) and adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2006-24865; Directorate Identifier 2005-NM-194-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by July 10, 2006. Affected ADs
(b)This AD supersedes AD 96-23-02. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005. Unsafe Condition
(d)This AD results from a report of cracking discovered in a skin lap joint that was previously inspected using the eddy current method. We are issuing this AD to prevent rapid decompression of the airplane due to disbonding and subsequent cracking of the skin panels. 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. Requirements of AD 96-23-02 Actions for Groups 1 Through 10, and 17 Through 36, as Specified in Boeing Alert Service Bulletin 747-53A2409, Revision 5
(f)For airplanes identified as Groups 1 through 10 inclusive, and 17 through 36 inclusive, in Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005: Do the inspections in paragraphs (f)(1); and do the corrective action in paragraph (f)(2) of this AD as applicable. Except as provided by paragraph
(i)of this AD, do all actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2409, dated September 26, 1996; or Revision 5, dated August 18, 2005. After the effective date of this AD, only Revision 5 may be used.
(1)At the applicable time in Figures 1, 2, 18, and 20 of Revision 5 of the service bulletin, do initial and repetitive inspections of Areas 1 and 4, as applicable, to detect disbonding, corrosion, and cracking of the skin; except any inspection using Method 1 or 2 must not be accomplished before the latest of the following, as applicable: Before the accumulation of 2,000 total flight cycles; 2,000 flight cycles since modification to the stretched upper deck
(SUD)configuration; or 2,000 flight cycles since skin panel replacement in accordance with AD 90-26-10, amendment 6836 (55 FR 51401, December 14, 1990). If inspection Method 1 or 2 is used and no disbonded doubler is found, no further action is required by this AD.
(2)If any corrosion or cracking is found during any inspection required by paragraph (f)(1) of this AD: Before further flight, except as provided by paragraph
(i)of this AD, repair and do any applicable related investigative actions in accordance with the Accomplishment Instructions of the service bulletin. New Requirements of This AD Actions for Groups 11 Through 16 as Specified in Boeing Alert Service Bulletin 747-53A2409, Revision 5 (Airplanes Added To the Applicability of This AD)
(g)For airplanes identified as Groups 11 through 16 inclusive in Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005: Do the inspections in paragraph (g)(1); and do the corrective action in paragraph (g)(2) of this AD as applicable. Except as provided by paragraph
(i)of this AD, do all actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005.
(1)At the applicable time in Figures 18 and 20 of the service bulletin, do initial inspections of Area 4 and repetitive inspections, as applicable, to detect disbonding, corrosion, and cracking of the skin; except any inspection using Method 1 or 2 must not be accomplished before the latest of the following, as applicable: Before the accumulation of 2,000 total flight cycles; 2,000 flight cycles since modification to the SUD configuration; or 2,000 flight cycles since skin panel replacement in accordance with AD 90-26-10, amendment 6836 (55 FR 51401, December 14, 1990). If inspection Method 1 or 2 is used and no disbonded doubler is found, no further action is required by this AD.
(2)If any corrosion, disbonding, or cracking is found during any inspection required by paragraph (g)(1) of this AD, before further flight: Repair and do any applicable related investigative actions in accordance with the Accomplishment Instructions of the service bulletin. Actions for Airplanes With Alodine-Coated Rivets for Groups 1 Through 10, and 17 Through 36 as Specified in Boeing Alert Service Bulletin 747-53A2409, Revision 5
(h)For airplanes identified as Groups 1 through 10 inclusive, and 17 through 36 inclusive, in Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005: Do the inspections in paragraph (h)(1); and do the corrective action in paragraph (h)(2) of this AD if necessary. Except as provided by paragraph
(i)of this AD, do all actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005.
(1)At the applicable time in Figures 21 and 22 of the service bulletin: Do initial and repetitive inspections of Areas 1 and 4, as applicable, to detect cracking of the skin.
(2)If any cracking is found during any inspection required by paragraph (h)(1) of this AD, before further flight: Repair in accordance with the Accomplishment Instructions of the service bulletin. Exceptions
(i)Do all actions in accordance with the applicable service bulletin except as provided by paragraphs (i)(1), (i)(2), (i)(3), (i)(4), and (i)(5) of this AD.
(1)For the action in paragraph (f)(1) of this AD: Where Boeing Alert Service Bulletin 747-53A2409, dated September 26, 1996; and Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005; specify a compliance time after the issuance of any revision of the service bulletin, this paragraph requires compliance before the specified compliance time after November 27, 1996, the effective date of AD 96-23-02.
(2)For the actions in paragraphs (g)(1) and (h)(1) of this AD: Where Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005, specifies a compliance time after the issuance or receipt of any revision of the service bulletin, this paragraph requires a compliance time after the effective date of this AD.
(3)For any repair or any inspection where Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005, specifies to contact the manufacturer for further instructions: Before further flight, repair or inspect using a method approved in accordance with the procedures specified in paragraph
(k)of this AD.
(4)If corrosion is found during any inspection required by this AD, before further flight: Repair in accordance with an FAA-approved method.
(5)Where Boeing Alert Service Bulletin 747-53A2409, Revision 5, dated August 18, 2005, specifies that it is not necessary to count flight cycles at 2.0 psi or less cabin differential pressure, this AD does not allow for that adjustment factor. Credit for Actions Accomplished Previously
(j)Actions done before the effective date of this AD in accordance with the service bulletins specified in Table 1 of this AD are acceptable for compliance with the corresponding requirements of paragraphs
(f)and
(g)of this AD. Table 1.—Credit Service Bulletins Service bulletin Revision level Date Boeing Alert Service Bulletin 747-53A2409 1 May 29, 1997. Boeing Alert Service Bulletin 747-53A2409 2 August 6, 1998. Boeing Alert Service Bulletin 747-53A2409 3 October 22, 1998. Boeing Alert Service Bulletin 747-53A2409 4 February 17, 2000. Alternative Methods of Compliance (AMOCs) (k)(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.
(3)AMOCs approved previously in accordance with AD 96-23-02, amendment 39-9807, are approved as AMOCs for the corresponding provisions of paragraph
(f)of this AD, except AMOCs for terminating action based upon inspection results using a sliding probe low frequency eddy current (LFEC), sliding probe high frequency eddy current (HFEC), or mid frequency surface eddy current
(MFEC)inspection methods; and provided that any alternative method for future inspections did not incorporate a sliding probe LFEC, sliding probe HFEC, or MFEC inspection methods.
(4)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane and the approval must specifically refer to this AD. Issued in Renton, Washington, on May 16, 2006. Kevin M. Mullin, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-8006 Filed 5-24-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 193 [Docket No. FAA-2006-24855] Voluntary Disclosure Reporting Program AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of Proposed Order Designating Information as Protected from Disclosure. SUMMARY: The FAA is proposing that information provided to the agency from a Voluntary Disclosure Reporting Program
(VDRP)be designated by an FAA order as protected from public disclosure in accordance with the provisions of 14 CFR part 193. Under 49 U.S.C. 40123, the FAA is required to protect the information from disclosure to the public, including disclosure under the Freedom of Information Act (5 U.S.C. 552) or other laws, following issuance of such order. The designation is intended to encourage participation in the VDRP. DATES: Comments must be received on or before June 26, 2006. ADDRESSES: You may send comments [identified by Docket Number [Insert docket number, for example, FAA-200X-24855]] using any of the following methods: • 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 20590-0001. • Fax: 1-202-493-2251. • 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. For more information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. *Privacy:* We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. For more information, see the Privacy Act discussion in the SUPPLEMENTARY INFORMATION section of this document. *Docket:* To read background documents or comments received, go to *http://dms.dot.gov* at any time or to 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. FOR FURTHER INFORMATION CONTACT: Dr. Thomas Longridge, Flight Standards Service, AFS-230, Federal Aviation Administration, 800 Independence Ave., SW., Washington DC 20591, telephone
(703)661-0275. SUPPLEMENTARY INFORMATION: Comments Invited The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments. We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also review the docket using the Internet at the Web address in the ADDRESSES section. *Privacy Act:* Using the search function of our docket Web site, anyone can find and read the comments received into any of our dockets, including the name of the individual sending the comment (or signing 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* . Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive. If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you. Availability of This Proposed Designation You can get an electronic copy using the Internet by:
(1)Searching the Department of Transportation's electronic Docket Management System
(DMS)Web page ( *http://dms.dot.gov/search* );
(2)Visiting the FAA's Regulations and Policies Web page at *http://www.faa.gov/regulations_policies/* ; or
(3)Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html.* Background Under 49 U.S.C. 40123, certain voluntarily provided safety and security information is protected from disclosure to encourage persons to provide the information to the FAA. The FAA must issue an order making certain findings before the information is protected from disclosure. The FAA's rules implementing that section are in 14 CFR part 193. If the Administrator issues an order designating information as protected under 49 U.S.C. 40123, that information will not be disclosed under the Freedom of Information Act (5 U.S.C. 552) or other laws except as provided in 49 U.S.C. 40123, 14 CFR part 193, and the order designating the information as protected. This proposed order is issued under 14 CFR 193.11, which sets out the notice procedure for designating information as protected. Description of the Proposed Information Sharing Program. Civil penalties under the FAA's enforcement program have always been considered a means to promote compliance with the FAA's regulations, not an end in themselves. In addition to the deterrence achieved by the appropriate use of civil penalties, the public interest is also served by positive incentives to promote and achieve compliance. The FAA believes that aviation safety is well served by incentives for regulated entities to identify and correct their own instances of noncompliance and to invest more resources in efforts to preclude their recurrence. Under the VDRP, it is FAA policy generally to forgo civil penalty action when an entity detects violations, promptly discloses the violations to the FAA, and takes prompt corrective action to ensure that the same or similar violations do not recur. The VDRP is designed to develop long-term comprehensive fixes and encourage compliance with the FAA's regulations, foster safe operating practices, and promote the development of internal evaluation programs. A disclosure under the VDRP is accomplished by initial notification of an apparent violation to the FAA by a certificate holder, indirect air carrier, design approval holder, production approval holder, or other regulated entity immediately after an apparent violation has been discovered by that regulated entity, and before the FAA learns of the apparent violation by some other means, unless otherwise permitted by written FAA policy for a related voluntary program. For example, under the Aviation Safety Action Program
(ASAP)as described in AC 120-66, as amended, a voluntary disclosure may be accepted even if the FAA has already learned of an apparent violation from an employee submitted ASAP report. In any case, the initial notification to the FAA must comply with Advisory Circular 00-58, as amended. The form of initial notification may be oral, a written hard copy, or a written electronic copy. The VDRP disclosure and follow-on corrective action must be accomplished in accordance with the criteria and procedures specified in Advisory Circular
(AC)00-58, as amended. The FAA responds by opening an enforcement investigative report
(EIR)and sending a written acknowledgement of the regulated entity's initial VDRP notification. This acknowledgement includes a request for a written report, and is sent in place of a letter of investigation (LOI), provided the written report is completed in accordance with the procedures set forth in AC 00-58, as amended. The report must include a detailed description of the proposed comprehensive fix, outlining the planned corrective steps, the responsibilities for implementing those corrective steps, and the planned dates for both initial implementation and completion of the fix. The FAA advises the regulated entity by written acknowledgement when it determines that the report is or is not acceptable. Following initial implementation of the comprehensive fix, verification of it by the FAA, and an initial assessment by the FAA of the apparent effectiveness of the comprehensive fix, the EIR is closed by issuing a letter of correction
(LOC)to the regulated entity that includes the date on which the comprehensive fix was initially implemented, and the expected date for final completion. Following issuance of the LOC, the case is closed, but remains subject to reopening if the agreed-upon corrective actions are not completed to the satisfaction of the FAA. The LOC remains on file at the FAA for a period of two years. [Comment: Administrative actions are expunged after two years only for individuals.] If the FAA determines that the corrective action taken is not satisfactorily completed, the LOC may be rescinded, the EIR re-opened, and appropriate legal enforcement action may be initiated. Summary of the VDRP Voluntary Information Sharing Program A. *Who may participate:* Regulated entities as provided in Advisory Circular 00-58, as amended and Advisory Circular 121-37. B. *What voluntarily provided information would be protected from disclosure under this proposed designation:* The content of all submissions by a regulated entity that are accepted under the VDRP, including, but not limited to, all of the items listed under Proposed Findings, Paragraph
(2)below. C. *How persons would participate:* Regulated entities participate by notification of an apparent violation to the FAA by the regulated entity in accordance with the VDRP reporting procedures, and completion of corrective actions in accordance with AC 00-58, as amended. D. *Duration of this information sharing program:* This information sharing program would continue in effect indefinitely, unless the FAA terminates the VDRP, or until the order of designation under 14 CFR part 193 for the VDRP is withdrawn by the FAA. Proposed Findings The FAA proposes to designate information received under the VDRP as protected under 49 U.S.C. 40123 and 14 CFR 193.7 based on the following findings:
(1)*Summary of why the FAA finds that the information will be provided voluntarily.* The FAA finds that the information will be provided voluntarily. No certificate holder is required to participate in the VDRP. Initiation of submissions under the VDRP are indicative of the willingness of regulated entities to identify and correct their own instances of regulatory noncompliance, develop long term comprehensive fixes, and foster safe operating practices.
(2)*Description of the type of information that may be voluntarily provided under the program and a summary of why the FAA finds that the information is safety or security related.* The information that would be voluntarily submitted under a VDRP is described in AC 00-58, as amended. Because the Federal Aviation Regulations specify the minimum requirements for safety, and VDRP submissions entail violations of those regulations, the information is inherently safety related. It would include the following:
(a)Information contained in an initial notification to the FAA: —A brief description of the apparent violation, including an estimate of the duration of time that it remained undetected, as well as how and when it was discovered; —Verification that noncompliance ceased after it was identified; —A brief description of the immediate action taken after the apparent violation was identified, the immediate action taken to terminate the conduct that resulted in the apparent violation, and the person responsible for taking the immediate action; —Verification that an evaluation is underway to determine if there are any systemic problems; —Identification of the person responsible for preparing the comprehensive fix; and —Acknowledgment that a detailed written report will be provided to the designated FAA official within 10 working days.
(b)Information contained in a detailed written report: —A list of the specific FAA regulations that may have been violated; —A description of the apparent violation, including the duration of time it remained undetected, as well as how and when it was detected; —A description of the immediate action taken to terminate the conduct that resulted in the apparent violation, including when it was taken, and who was responsible for taking the action; —An explanation that shows the apparent violation was inadvertent; —Evidence that demonstrates the seriousness of the apparent violation and the regulated entity's analysis of that evidence; —A detailed description of the proposed comprehensive fix, outlining the planned corrective steps, the responsibilities for implementing those corrective steps, and a time schedule for completion of the fix; and —Identification of the company official responsible for monitoring the implementation and completion of the comprehensive fix.
(3)*Summary of why the FAA finds that the disclosure of the information would inhibit persons from voluntarily providing that type of information.* The FAA finds that disclosure of the information would inhibit the voluntary provision of that type of information. Regulated entities are reluctant to voluntarily disclose instances of regulatory noncompliance if such submissions might be subject to public disclosure. A significant impediment to participation in the VDRP is concern over public disclosure of the information, and, if disclosed, the potential for it to be used for other than the system safety enhancement purposes for which the VDRP was created. Withholding such information from disclosure is consistent with the FAA's safety and security responsibilities because, unless the FAA can provide assurance that it will not be disclosed, regulated entities will be reluctant to participate in the program. Although regulated entities have voluntarily disclosed information under the VDRP for several years, they did so after the FAA promised that such information would be deidentified in the Enforcement Information System (EIS), which is the FAA's central and national database of enforcement action information. The entities were reluctant to participate in the VDRP without this promise for fear that information they disclosed would be readily available to the public through a FOIA request for records in the EIS. So that entities continue to use the VDRP, the FAA has not kept the identity of persons reporting, or detailed information about disclosures, under that program in the EIS or any other central database. Once information provided under the VDRP is designated as protected under 14 CFR part 193, more regulated entities may be willing to submit disclosures under the program that were previously reluctant to. In addition, FAA will be able to retain more information about the disclosures, including the identity of the reporters, in an FAA database, without chilling participation in the VDRP. Disclosures under the VDRP enable the FAA to become aware of many more instances of regulatory noncompliance than it otherwise would, and moreover, the VDRP permits the FAA to assure that appropriate corrective action is taken. If regulated entities do not participate, the FAA and the public will be deprived of the opportunity to make the system safety improvements that receipt of the information otherwise enables.
(4)*Summary of why the receipt of that type of information aids in fulfilling the FAA's safety and security responsibilities.* The FAA finds that receipt of VDRP information aids in fulfilling the FAA's safety and security responsibilities. A primary purpose of FAA regulations is to assure public safety. Because the VDRP identifies and corrects instances of regulatory noncompliance of which the FAA may be otherwise unaware, the program offers significant potential for enhancement of public safety. Receipt of this otherwise unavailable information would also provide the FAA with an improved basis for modifying procedures, policies, and regulations to improve safety and efficiency.
(5)* Summary of why withholding such information from disclosure would be consistent with the FAA's safety and security responsibilities, including a statement as to the circumstances under which, and a summary of why, withholding such information from disclosure would not be consistent with the FAA's safety and security responsibilities, as described in 14 CFR 193.9. * The FAA finds that withholding VDRP information provided to the FAA is consistent with the FAA's safety responsibilities. The VDRP specifically provides that appropriate corrective action must be taken by the regulated entity for all instances of regulatory noncompliance accepted under the program. To be accepted by the FAA, apparent violations disclosed under the program must be inadvertent, and, where applicable, must not indicate a lack, or reasonable question of a lack, of qualification of the regulated entity. Corrective action under the VDRP can be accomplished by the regulated entity and verified by the FAA without disclosure of the protected information. If the FAA determines that the steps taken by the entity are not those documented in the written report, the submission may be excluded from the VDRP, and appropriate legal enforcement action may be initiated. The FAA will release information submitted under a VDRP as specified in part 193 and this proposed order. To explain the need for changes in FAA policies, procedures, and regulations, the FAA may disclose de-identified ( *i.e.* , the identity of the source of the information and the names of the certificate holder, employees, and other persons, as well as any other information that could be used to ascertain the identity of the submitter, redacted) summary information that has been extracted from submissions accepted under the VDRP. The FAA may disclose de-identified, summarized VDRP information that identifies a systemic problem in the aviation system, when other persons need to be advised of the problem so that they can take corrective action. The FAA may disclose de-identified aggregate statistical information concerning VDRP submissions. The FAA may disclose independently obtained information relating to any event disclosed in a VDRP report. The FAA also may disclose any information about a disclosure initially submitted under the VDRP that is not accepted, or accepted, but later excluded because of the regulated entity's failure to comply with the criteria of the VDRP.
(6)*Summary of how the FAA will distinguish information protected under part 193 from information the FAA receives from other sources.* In accordance with AC 00-58, all VRDP submissions must be clearly identified as such by the regulated entity making the submission. Any other information received by the FAA from the regulated entity concerning the content of a VDRP submission must be clearly labeled as follows to be eligible for protection under this designation: “WARNING: The Information in this Document is Protected from Disclosure under 49 U.S.C. 40123 and 14 CFR part 193.” If the information is submitted electronically, the warning notice must be appropriately embedded in the electronic submission in a fashion that assures the visibility of the warning to any viewer. Proposed Designation Accordingly, the Federal Aviation Administration proposes to designate the above-described information submitted under a VDRP to be protected under 49 U.S.C. 40123 and 14 CFR part 193. Issued in Washington, DC, on May 17, 2006. John M. Allen, Acting Director, Flight Standards Service. [FR Doc. E6-8078 Filed 5-24-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1300 [Docket No. DEA-260P] RIN 1117-AA94 Definition of “Positional Isomer” as It Pertains to the Control of Schedule I Controlled Substances AGENCY: Drug Enforcement Administration (DEA), U.S. Department of Justice. ACTION: Notice of proposed rulemaking. SUMMARY: The Controlled Substances Act
(CSA)and its implementing regulations specify which hallucinogenic substances are considered Schedule I controlled substances. The CSA states that all salts, isomers and salts of isomers of these substances are also Schedule I controlled substances. In non-technical terms, an isomer of a substance is a different compound, but a compound which has the same number and kind of atoms. The terms “optical isomer” and “geometric isomer” are specific scientific terms and it is easy to determine whether one substance is an optical or geometric isomer of another. The term “positional isomer,” however, is subject to scientific interpretation. This Notice of Proposed Rulemaking proposes the addition of a specific definition for the term “positional isomer” to allow for the systematic determination of which isomers of Schedule I substances would be considered to be “positional” and, therefore subject to Schedule I control. The addition of a definition for the term “positional isomer” will assist legitimate research and industry in determining the control status of materials that are “positional isomers” of Schedule I hallucinogens. While the DEA will remain the authority for ultimately determining the control status of a given material, providing a specific definition for “positional isomer” will ensure consistent criteria are utilized in making these determinations. This rule is relevant only to specialized forensic or research chemists. Most of these individuals are existing DEA registrants who are authorized by the DEA to handle Schedule I hallucinogenic substances. DATES: Written comments must be postmarked, and electronic comments must be sent, on or before July 24, 2006. ADDRESSES: To ensure proper handling of comments, please reference “Docket No. DEA-260P” on all written and electronic correspondence. Written comments being sent via regular mail should be sent to the Deputy Administrator, Drug Enforcement Administration, Washington, DC 20537, Attention: DEA Federal Register Representative/ODL. Written comments sent via express mail should be sent to the DEA Headquarters, Attention: DEA Federal Register Representative/ODL, 2401 Jefferson-Davis Highway, Alexandria, VA 22301. Comments may be directly sent to the DEA electronically by sending an electronic message to *dea.diversion.policy@usdoj.gov.* An electronic copy of this document is also available at the *http://www.regulations.gov* Web site. The DEA will accept attachments to electronic comments in Microsoft Word, WordPerfect, Adobe PDF, or Excel file formats only. The DEA will not accept any file format other than those specifically listed here. FOR FURTHER INFORMATION CONTACT: Christine A. Sannerud, Ph.D., Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, Washington, DC 20537 at
(202)307-7183. SUPPLEMENTARY INFORMATION: Background In many instances, the control of a substance under the CSA often includes the specific substance listed under the CSA, as well as the substance's salts, isomers and/or salts of isomers. In most instances, the term isomer includes only optical isomers. In other instances, however, the term isomer includes positional and/or geometric isomers. In non-technical terms, isomers are different compounds that have the same molecular formula (the same number and types of atoms). The terms “optical isomer” and “geometric isomer” are specifically defined and well understood scientific terms, and it is easy to determine whether one substance is an optical or geometric isomer of another. The term “positional isomer,” however, is not universally defined and, therefore, is subject to scientific interpretation. In order to ensure that consistent criteria are utilized in determining whether one substance is considered a “positional isomer” of another, the DEA is proposing that a specific definition for “positional isomer” be added to 21 CFR 1300.01(b)(21). Existing CSA and CFR References to “Positional Isomers” The CSA and its implementing regulations (21 CFR 1308.11(d)) specify which hallucinogenic substances are considered Schedule I controlled substances. Under the CSA and its implementing regulations, there are only three references to the term “positional isomer”:
(1)Pursuant to 21 U.S.C. 802(14), “the term ‘isomer’ means the optical isomer, except as used in Schedule I(c) and Schedule II(a)(4). As used in Schedule I(c), the term “isomer” means any optical, positional, or geometric isomer. As used in Schedule II(a)(4), the term “isomer” means any optical or geometric isomer.”
(2)Under 21 CFR 1300.01(b)(21), “The term “isomer” means the optical isomer, except as used in §§ 1308.11(d) and 1308.12(b)(4) of this chapter. As used in § 1308.11(d) of this chapter, the term “isomer” means the optical, positional, or geometric isomer. As used in § 1308.12(b)(4) of this chapter, the term “isomer” means the optical or geometric isomer.”
(3)21 CFR 1308.11(d) states, “ *Hallucinogenic substances.* Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the following hallucinogenic substances, or which contains any of its salts, isomers, and salts of isomers whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation (for purposes of this paragraph only, the term “isomer” includes the optical, positional and geometric isomers).” Why Proposed Definition Is Needed The CSA (21 U.S.C. 802(14) and 21 U.S.C. 812(c)(I)(c)) and its implementing regulations (21 CFR 1308.11(d)) specify which hallucinogenic substances are considered Schedule I controlled substances. The CSA further states that all salts, isomers and salts of isomers of these substances are also Schedule I controlled substances. Under the definition of “isomer” found in 21 CFR 1300.01(b)(21), “The term “isomer” means the optical isomer, except as used in §§ 1308.11(d) and 1308.12(b)(4) of this chapter. As used in § 1308.11(d) of this chapter, the term “isomer” means the optical, positional, or geometric isomer. As used in § 1308.12(b)(4) of this chapter, the term “isomer” means the optical or geometric isomer.” Therefore, according to this definition as it specifically applies to hallucinogens, the term “isomer” includes all optical, positional, or geometric isomers. As such, all salts, isomers (including optical, positional, or geometric isomers) and salts of isomers (including optical, positional, or geometric isomers) of the hallucinogenic substances listed in 21 U.S.C. 812(c)(I)(c) and 21 CFR 1308.11(d) are considered Schedule I controlled substances. Because the determination as to whether a substance is considered a “positional isomer” can be subject to scientific interpretation, the DEA believes it is necessary to specifically define the term “positional isomer”. This definition will only pertain to those substances that are “positional isomers” of Schedule I controlled substances pursuant to 21 U.S.C. 812(c)(I)(c) and 21 CFR 1308.11(d). The DEA is not proposing the addition of definitions for either optical or geometric isomers. The DEA believes that these terms are highly specific and are not subject to differing scientific interpretation. Proposed Criteria That Will Apply to Positional Isomers Pursuant to 21 U.S.C. 802(14), 21 U.S.C. 812(c)(I)(c) and 21 CFR 1308.11(d) positional isomers of Schedule I hallucinogens are any and all substances which:
(1)Are not already controlled in a different Schedule I category, or are listed in another Schedule, or are specifically exempted from control by law; and
(2)Have the same molecular formula and core structure as a Schedule I hallucinogen; and
(3)Have the same functional group(s) and/or substituent(s) as those found in the respective Schedule I hallucinogen, attached at any position(s) on the core structure, but in such manner that no new chemical functionalities are created and no existing chemical functionalities are destroyed relative to the respective Schedule I hallucinogen; except that
(4)Rearrangements of alkyl moieties within or between functional group(s) or substituent(s), or divisions or combinations of alkyl moieties, that do not create new chemical functionalities or destroy existing chemical functionalities, would be within the definition of positional isomer (and therefore be controlled). As clarification, note that the “core structure” is the parent molecule that is the common basis for the class; for example, tryptamine, phenethylamine, or ergoline. The following are examples of rearrangements resulting in creation and/or destruction of chemical functionalities. These rearrangements result in compounds which are not positional isomers: ethoxy to *alpha* -hydroxyethyl, hydroxy and methyl to methoxy, or the repositioning of a phenolic or alcoholic hydroxy group to create a hydroxyamine. Examples of rearrangements resulting in compounds which would be positional isomers include, but are not limited to: *tert* -butyl to *sec* -butyl, methoxy and ethyl to isopropoxy, N,N-diethyl to N-methyl-N-propyl, or *alpha* -methylamino to N-methylamino. Impact of Rule Limited to Specialized Forensic or Research Chemists The addition of a definition for the term “positional isomer” as it applies to 21 CFR 1308.11(d) will assist legitimate research and industry in determining the control status of substances that are isomers of Schedule I hallucinogens. While the DEA will remain the authority on ultimately determining the control status of a given substance, providing a specific definition for “positional isomer” will greatly reduce any potential confusion or inconsistencies in making these determinations. This definition will enable researchers and industry to determine definitively whether a substance is a “positional isomer” of a Schedule I hallucinogen. As such, they will be able to know the control status of a particular substance when considering new research. This rule is relevant only to specialized forensic or research chemists. Most of these individuals are existing DEA registrants who are authorized by the DEA to handle Schedule I hallucinogenic substances. Specific Changes and Proposed Definition As currently defined in 21 CFR 1300.01(b)(21), the term “isomer” means the optical isomer, except as used in § 1308.11(d) and § 1308.12(b)(4) of this chapter. As used in § 1308.11(d) of this chapter, the term “isomer” means any optical, positional, or geometric isomer. As used in § 1308.12(b)(4) of this chapter, the term “isomer” means any optical or geometric isomer. Title 21 CFR 1300.01(b)(21) is proposed to be revised to include a specific definition for the term “positional isomer”. The proposed modification will specify that, as used in § 1308.11(d), the term “positional isomer” means any substance possessing the same molecular formula and core structure and has the same functional group(s) and/or substituent(s) as those found in the respective Schedule I hallucinogen, attached at any position(s) on the core structure, but in such manner that no new chemical functionalities are created and no existing chemical functionalities are destroyed relative to the respective Schedule I hallucinogen. Rearrangements of alkyl moieties within or between functional group(s) or substituent(s), or divisions or combinations of alkyl moieties, that do not create new chemical functionalities or destroy existing chemical functionalities, would be within the definition of positional isomer. For purposes of this definition, the “core structure” is the parent molecule that is the common basis for the class. Some examples would include tryptamine, phenethylamine, or ergoline. Examples of non-permissible rearrangements resulting in creation and/or destruction of chemical functionalities (and therefore would not be considered positional isomers) include, but are not limited to: ethoxy to *alpha* -hydroxyethyl, hydroxy and methyl to methoxy, or the repositioning of a phenolic or alcoholic hydroxy group to create a hydroxyamine. Examples of permissible rearrangements (that are within the definition of positional isomers) include: *tert* -butyl to *sec* -butyl, methoxy and ethyl to isopropoxy, N,N-diethyl to N-methyl-N-propyl, or *alpha* -methylamino to N-methylamino. Scientific/Technical Nature of Proposed Definition The DEA understands that the proposed definition is highly technical and laden with scientific terms. However, the DEA believes that such a highly technical definition is necessary to ensure that consistent criteria are utilized in determining whether one substance is a “positional isomer” of another. Request for Comments The proposed definition of “positional isomer” will be used in the determination of the control status of substances as Schedule I controlled substances pursuant to 21 CFR 1308.11(d). This definition is highly technical in nature and the DEA has sought to provide specific criteria for determination as to whether a substance is a “positional isomer” of Schedule I hallucinogens. The DEA welcomes input from all interested parties regarding the proposed definition of “positional isomer.” Prior to publication of a Final Rule, the DEA will consider all comments received. Comments must be submitted on or before July 24, 2006. Regulatory Certifications Regulatory Flexibility Act The Deputy Administrator hereby certifies that this rulemaking has been drafted 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 on a substantial number of small entities. The inclusion of the definition of positional isomer set forth herein is unlikely to subject any new substances to CSA control. Also, this rule does not require the obtaining of new DEA registrations. Most persons affected by this rule are already DEA registrants (or would have to become registrants even absent this rule in order to handle Schedule I hallucinogens.) Further, this rule does not impose any additional regulatory burden on the regulated community. The proposed change simply will ensure that consistent criteria are utilized in making scheduling determinations. Executive Order 12866 The Deputy Administrator further certifies that this rulemaking has been drafted in accordance with the principles in Executive Order 12866 section 1(b). The DEA has determined that this is not a significant regulatory action. Therefore, this action has not been reviewed by the Office of Management and Budget. Executive Order 12988 This regulation meets the applicable standards set forth in §§ 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform. Executive Order 13132 This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132. 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 $117,000,000 or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $114,000,000 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 21 CFR Part 1300 Controlled substances, Definitions, Drug traffic control. For the reasons set out above, 21 CFR part 1300 is proposed to be amended as follows: PART 1300—DEFINITIONS [AMENDED] 1. The authority citation for part 1300 continues to read as follows: Authority: 21 U.S.C. 802, 871(b), 951, 958(f). 2. § 1300.01 is proposed to be amended by revising paragraph (b)(21) to read as follows: § 1300.01 Definitions relating to controlled substances.
(b)* * * (21)(i) The term *isomer* means the optical isomer, except as used in § 1308.11(d) and § 1308.12(b)(4) of this chapter. As used in § 1308.11(d) of this chapter, the term “isomer” means any optical, positional, or geometric isomer. As used in § 1308.12(b)(4) of this chapter, the term “isomer” means any optical or geometric isomer.
(ii)As used in § 1308.11(d) of this chapter, the term “positional isomer” means any substance possessing the same molecular formula and core structure and having the same functional group(s) and/or substituent(s) as those found in the respective Schedule I hallucinogen, attached at any position(s) on the core structure, but in such manner that no new chemical functionalities are created and no existing chemical functionalities are destroyed relative to the respective Schedule I hallucinogen. Rearrangements of alkyl moieties within or between functional group(s) or substituent(s), or divisions or combinations of alkyl moieties, that do not create new chemical functionalities or destroy existing chemical functionalities, are allowed i.e., result in compounds which are positional isomers. For purposes of this definition, the “core structure” is the parent molecule that is the common basis for the class; for example, tryptamine, phenethylamine, or ergoline. Examples of rearrangements resulting in creation and/or destruction of chemical functionalities (and therefore resulting in compounds which are not positional isomers) include, but are not limited to: ethoxy to *alpha* -hydroxyethyl, hydroxy and methyl to methoxy, or the repositioning of a phenolic or alcoholic hydroxy group to create a hydroxyamine. Examples of rearrangements resulting in compounds which would be positional isomers include: *tert* -butyl to *sec* -butyl, methoxy and ethyl to isopropoxy, N,N-diethyl to N-methyl-N-propyl, or *alpha* -methylamino to N-methylamino. Dated: May 17, 2006. Michele M. Leonhart, Deputy Administrator. [FR Doc. E6-7979 Filed 5-24-06; 8:45 am] BILLING CODE 4410-09-P DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 630, 635 and 636 [FHWA Docket No. FHWA-2005-22477] RIN 2125-AF12 Design-Build Contracting AGENCY: Federal Highway Administration (FHWA), DOT. ACTION: Notice of proposed rulemaking (NPRM); request for comments. SUMMARY: The FHWA proposes to revise its regulations for design-build contracting as mandated by section 1503 of the “Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users” (SAFETEA-LU). The primary revision would involve a statutory requirement that FHWA not preclude State transportation departments or local transportation agencies from issuing request-for-proposal documents, awarding contracts, and issuing notices-to-proceed for preliminary design work prior to the conclusion of the National Environmental Policy Act
(NEPA)process. The FHWA also proposes to revise certain provisions in 23 CFR part 636 to facilitate the use of public-private partnerships. DATES: Comments must be received on or before July 24, 2006. ADDRESSES: Mail or hand deliver comments to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001, or submit electronically at *http://dmses.dot.gov/submit* or fax comments to
(202)493-2251. Alternatively, comments may be submitted via the eRulemaking Portal at *http://www.regulations.gov.* All comments should include the docket number that appears in the heading of this document. All comments received will be available for examination and copying at the above address from 9 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. Those desiring notification of receipt of comments must include a self-addressed, stamped postcard or you may print the acknowledgment page that appears after submitting comments electronically. Anyone is able to search the electronic form on all documents received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70, Pages 19477-78) or you may visit http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: Mr. Gerald Yakowenko, Office of Program Administration,
(202)366-1562, or Mr. Michael Harkins, Office of the Chief Counsel,
(202)366-4928, Federal Highway Administration, 400 Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: Electronic Access You may submit or retrieve comments online through the Document Management System
(DMS)at: *http://dmses.dot.gov/submit.* The DMS is available 24 hours each day, 365 days each year. Electronic submission and retrieval help and guidelines are available under the help section of the Web site. An electronic copy of this document may also be downloaded by using the internet to reach the Office of the Federal Register's home page at: *http://www.archives.gov* or the Government Printing Office's Web page at: *http://www.access.gpo.gov/nara.* Background Section 1503 of the SAFETEA-LU (Pub. L. 109-59; August 10, 2005, 119 Stat. 1144) revises the definition of a design-build “qualified project” in 23 U.S.C. 112(b)(3). Formerly, “qualified projects” included design-build projects approved by FHWA with total costs estimated to exceed $50,000,000 or intelligent transportation system projects exceeding $5,000,000. This statutory definition limited Federal-aid participation to design-build projects that met this monetary threshold. The revision required by Section 1503 removes the monetary threshold and defines a qualified project as “* * * a project under this chapter (including intermodal projects) for which the Secretary has approved the use of design-build contracting under criteria specified in regulations issued by the Secretary.” These regulations are found in 23 CFR part 636. Thus, it is no longer necessary for the FHWA to approve design-build projects exceeding certain dollar thresholds under Special Experimental Project No. 14 (SEP-14). 1 When appropriate, the FHWA will continue to make SEP-14 available for projects that do not conform to the requirements of 23 CFR part 636. 1 Information concerning Special Experimental Project No. 14 (SEP-14), “Innovative Contracting Practices,” is available on FHWA's home page: *http://www.fhwa.dot.gov.* Additional information may be obtained from the FHWA Division Administrator in each State. Section 1503 also requires the Secretary of Transportation (hereinafter the Federal Highway Administrator for the purpose of this rule) to issue revised design-build regulations 90 days after the enactment of SAFETEA-LU. This NPRM proposes to make changes required by SAFETEA-LU. Section 1503 specifically states that the revised regulations must not preclude a State transportation department (or local transportation agency) from:
(a)Issuing requests for proposals;
(b)proceeding with awards of design-build contracts; or
(c)issuing notices to proceed with preliminary design work under design-build contracts prior to the completion of section 102 of NEPA. 2 However, the State or local transportation agency must receive concurrence from the FHWA before carrying out any of the activities outlined in (a)-(c) above. Moreover, the design-build contractor must not proceed with final design activities or construction activities prior to completion of the NEPA process. 2 Section 102 of the NEPA established a mandate for Federal agencies to consider the potential environmental consequences of their proposals, document the analysis, and make this information available to the public for comment prior to implementation. The FHWA also proposes to revise certain sections of 23 CFR part 636 to clarify its policies concerning the FHWA's approval of projects developed under public-private partnerships. In December 2002 when the FHWA issued the final rule for design-build contracting, 3 there was little experience with public-private partnerships. Since that time, several State DOTs have initiated public-private partnership programs. In addition, on October 6, 2004, the FHWA established a new Special Experimental Project (SEP-15) to encourage tests and experimentation with the use of public-private partnerships in developing transportation projects. 4 SEP-15 was initiated to evaluate the issues associated with increased project management flexibility, innovation, improved efficiency, timely project implementation, and new revenue streams. 3 The FHWA published the final rule on design-build contracting in the **Federal Register** on December 10, 2002, at 67 FR 75902. 4 The notice announcing this new SEP-15 program was published in the **Federal Register** on October 6, 2004, at 69 FR 59983. For more information on SEP-15, go to *http://www.fhwa.dot.gov/ppp/sep15.htm.* Proposed Changes The FHWA proposes to revise its regulation for design-build contracting in 23 CFR 636 as well as related regulations in 23 CFR 630.106(a) and 23 CFR 635.112(i). For 23 CFR 630.106(a), we propose to include a provision for design-build projects such that the execution of the project agreement and the authorization to proceed will not occur until after the completion of the NEPA process. For 23 CFR 635.112(i), we propose to revise our policy for advertising for bids and proposals to indicate that where the request for proposals document is issued prior to the completion of the NEPA process, the FHWA's approval will only constitute the FHWA's approval of the contracting agency's request to release the document. For 23 CFR 636.103, we propose to revise the definition of a qualified project to be consistent with section 1503 and define several new terms to clearly indicate how the FHWA will implement the section 1503 requirements concerning the Request for Proposals
(RFP)release, contract award and notice-to-proceed with preliminary design. We propose to define the term “preliminary design” as “all design activities necessary to complete the NEPA alternatives analysis and review process as outlined in 23 CFR 771.105, 771.111, and 771.113.” We specifically request comment on this proposed definition. We propose to define the term “final design” as “any design activities following preliminary design as outlined in 23 CFR part 771.” Final design activities are not necessary to complete the NEPA process. We also propose to add new definitions for the terms “developer” and “public-private agreement” to clarify the eligibility of projects developed under a public-private partnership as described in 23 CFR 636.119. In 23 CFR 636.106, we propose to add a sentence to indicate that there is no longer a monetary threshold that invokes Special Experimental Project No. 14—“Innovative Contracting,” however, SEP-14 is still available for the experimental evaluation of contracting techniques that do not meet the requirement of part 636. When appropriate, the FHWA will consider submittals for approval under SEP-14. In 23 CFR 636.107, we propose to amend this section as it is no longer necessary as a result of the statutory revision of the definition of a “qualified project.” We propose to substitute a new section to clarify the FHWA policy of not allowing local or geographic preferences on design-build projects. This is consistent with the FHWA's traditional policy for construction contracts administered under 23 CFR part 635. 5 We propose to prohibit geographic preferences (including contractual provisions, preferences or incentives for hiring, contracting, proposing or bidding) except where mandated by Federal statutes. 5 See 23 CFR 635.117(b) and the FHWA's Chief Counsel's April 20, 1994, memorandum titled: “Local Hiring Preferences,” which is available on the FHWA's home page: *http://www.fhwa.dot.gov/programadmin/contracts/042094.htm.* In 23 CFR 636.108, we propose to revise and reserve this section as it is no longer necessary as a result of the statutory revision of the definition of a “qualified project.” In 23 CFR 636.109(a), we propose to implement the section 1503 requirements that allow contracting agencies to issue request-for-proposal documents, award design-build contracts, and issue notices-to-proceed for preliminary design work prior to the conclusion of the NEPA process. Contracting agencies would be required to receive the FHWA's concurrence prior to proceeding with any of the above activities. Consistent with the requirements of section 1503, final design activities or construction activities are prohibited prior to the completion of the NEPA process. In 23 CFR 636.109(b), we propose to state the Federal-aid requirements associated with a decision by the contracting agency to award a design-build contract prior to the conclusion of the NEPA process. If a contracting agency elects to do this, it would be required to implement project development procedures and incorporate design-build contract provisions that:
(a)Prevent the design-builder (or developer) from proceeding with final design activities and physical construction prior to the completion of the NEPA process;
(b)ensure that no commitment is made to any alternative under evaluation in the NEPA process;
(c)ensure that the comparative merits of all alternatives presented in the NEPA document, including the no-build alternative, will be evaluated;
(d)ensure that all environmental and mitigation measures identified in the NEPA decision document will be implemented; and
(e)include contract termination provisions in the event that the no-build alternative is selected. It is noted that the provisions of revised 23 U.S.C. 112 (b)(3)(D)(iii) preclude the design-builder from proceeding with final design or construction prior to the conclusion of the NEPA process. Thus, it is unacceptable to allow the design-builder to proceed with final design activities for a specific alternative, even on an “at-risk/non-participating basis.” In this section, we also propose to prohibit the design-builder from preparing the NEPA document or from having any decisionmaking responsibility with respect to the NEPA process. However, preliminary design work performed by the design-builder may be used in the NEPA analysis. This is consistent with the Council on Environmental Quality's conflict of interest policies found at 40 CFR 1506.5(c). This regulation requires the contactor preparing the NEPA document to execute a disclosure statement specifying that it has no financial or other interest in the outcome of the project. However, as explained below, a proposer is not precluded from submitting a proposal for a design-build contract when NEPA has been completed before the issuance of the RFP, even though that proposer may have prepared or assisted in the preparation of the NEPA document. In 23 CFR 636.109(c), we propose to implement the section 1503 requirement that contracting agencies receive the FHWA's concurrence prior to issuing the RFP, proceeding with preliminary design, and awarding a design-build contract. In 23 CFR 636.109(d), we propose to clarify that the FHWA's authorization and obligation of preliminary engineering funds prior to the conclusion of the NEPA process is limited to preliminary design activities. This includes the preliminary design work performed by the contracting agency in preparing the NEPA document or the work necessary to prepare the Request for Qualifications
(RFQ)and RFP solicitations. In 23 CFR 636.116 we propose to add 116(c) to clarify that in those situations where the NEPA document has been completed prior to the issuance of the RFP, the contracting agency may allow a consultant and/or subconsultant who assisted them in the preparation of the NEPA document to participate as an offeror or join a team submitting a proposal in response to the RFP. This is consistent with guidance issued by the Council on Environmental Quality (CEQ). 6 We propose to revise 23 CFR 636.119 in its entirety. Over the past three years, several State DOTs and the FHWA have gained experience with public-private partnerships. The FHWA has approved several waivers of our contracting requirements under SEP-15 for each of the public-private partnership projects that we have reviewed. At this point in time, we propose to revise our current contracting policies to reflect the experiences learned under the SEP-15. 6 See CEQ's “NEPA's 40 Most Asked Questions”, specifically question #17 available at the following URL: *http://ceq.eh.doe.gov/nepa/regs/40/40p3.htm.* For all of the SEP-15 projects approved to date, the contracting agency and the FHWA have determined that it is appropriate to initiate the procurement of the developer for a public-private partnership prior to the conclusion of the NEPA process. The developer is available to assist with the definition of the project scope and to provide preliminary design information. The benefits associated with having a developer on-board during the early stages of project development also include: value engineering assistance, constructability expertise and price information concerning various project alternatives. Based on our recent experience with SEP-15, it is apparent that many of the Part 636 requirements are not appropriate for the procurement of the developer under a public-private partnership. In most cases, the developer acts as an “agent-of-the-owner.” In such cases, it is more appropriate to allow contracting agencies to use State-approved procurement procedures (or State-approved local procedures) for the selection of the developer than to continue to approve waivers of part 636 requirements under SEP-15. In 23 CFR 636.119(a), we propose to allow contracting agencies to use State-approved procurement procedures to procure the services of the developer under a public private agreement ( *i.e.* , the requirements of 23 CFR 636.201 through 23 CFR 636.514 would not apply). However, the use of State-approved procedures will be subject to the FHWA's review and approval of procurement procedures including the RFQ and RFP documents and the public-private agreement. All solicitation and procurement procedures must be fair and transparent to all proposers. In 23 CFR 636.119(b) we propose to implement a procedure that provides for a determination of price reasonableness for any Federal-aid project that the developer proposes to accomplish with its own forces. If the contracting agency and the FHWA cannot concur in a determination of price reasonableness, the contracting agency must comply with the procurement procedures of 23 CFR Part 172, 635 or 636. In 23 CFR 636.202(a)(1) we propose to revise the evaluation and award criteria that may be used for design-build contracts that are awarded prior to the conclusion of the NEPA process. The scope of work for such projects is usually in a very preliminary stage of development, and therefore, it would not be appropriate to use total contract price as a proposal evaluation factor. The evaluation and award criteria for such contracts may be based on qualitative considerations. The subsequent approval of final design and construction activities will be contingent upon a determination of price reasonableness by the contracting agency and the FHWA. Conclusion In conclusion, the FHWA is proposing to revise its regulations for design-build contracting as mandated by section 1503 of the SAFETEA-LU. The primary revision would allow contracting agencies to issue request-for-proposal documents, award design-build contracts, and issue notices-to-proceed for preliminary design work prior to the conclusion of NEPA. The FHWA also proposes to revise certain provisions in 23 CFR part 636 to facilitate the use of public-private partnerships. Rulemaking Analyses and Notices All comments received before the close of business on the comment closing date indicated above will be considered and will be available for examination in the docket at the above address. Comments received after the comment closing date will be filed in the docket and will be considered to the extent practicable, but the FHWA may issue a final rule at any time after the close of the comment period. In addition to the late comments, the FHWA will also continue to file in the docket relevant information that becomes available after the comment closing date, and interested persons should continue to examine the docket for new material. Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FHWA has determined preliminarily that this action would be a significant regulatory action within the meaning of Executive Order 12866, and within the meaning of the U.S. Department of Transportation's regulatory policies and procedures. The Office of Management and Budget has reviewed this document under E.O. 12866. The FHWA anticipates that the economic impact of this rulemaking would be minimal. However, this rule is considered to be significant because of the substantial State, environmental and industry interest in the design-build contracting technique. The FHWA anticipates that the proposed rule would not adversely affect, in a material way, any sector of the economy. This rulemaking merely revises the FHWA's policies concerning the design-build contracting technique. The proposed rule would not affect the total Federal funding available to the State DOTs under the Federal-aid highway program. Therefore, it is anticipated that an increased use of design-build delivery method will not yield significant economic impacts to the Federal-aid highway program. Consequently, a full regulatory evaluation is not required. The increased usage of the design-build contracting method may result in certain efficiencies in the cost and/or time it normally takes to deliver a transportation project. However, the FHWA does not have sufficient data to make a conclusive statement regarding the economic impacts. Interested parties are invited to comment on the anticipated economic impact. In addition, these proposed changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), we have evaluated the effects of this action on small entities and have determined that the action would not have a significant economic impact on a substantial number of small entities. The proposed amendment addresses the obligation of Federal funds to States for Federal-aid highway projects. As such, it affects only States and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, and the FHWA certifies that the proposed action will not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48, March 22, 1995) as it will not result in the expenditure by State, local, tribal governments, or by the private sector, of $100 million or more in any one year (2 U.S.C. 1532 *et seq.* ). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the FHWA will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the affects on State, local, and tribal governments and the private sector. Additionally, the definition of “Federal Mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility. Executive Order 13132 (Federalism) This proposed action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 dated August 4, 1999, and the FHWA has determined that this proposed action would not have a substantial direct effect or sufficient federalism implications on the States. The FHWA has also determined that this proposed action would not preempt any State law or regulation or affect the States' ability to discharge traditional State governmental functions. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Accordingly, the FHWA solicits comments on this issue. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995
(PRA)(44 U.S.C. 3501, *et seq.* ), the FHWA must obtain approval from the Office of Management and Budget
(OMB)for each collection of information we conduct, sponsor, or require through regulations. The FHWA has determined that this proposal does not contain a collection of information requirement for purposes of the PRA. National Environmental Policy Act The FHWA has analyzed this proposed action for the purpose of the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 *et seq.* ), and has determined that this proposed action would not have any effect on the quality of the environment. Executive Order 12630 (Taking of Private Property) The FHWA has analyzed this proposed rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. The FHWA does not anticipate that this proposed action would affect a taking of private property or otherwise have taking implications under Executive Order 12630. Executive Order 12988 (Civil Justice Reform) This action 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. Executive Order 13045 (Protection of Children) We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this proposed action would not cause an environmental risk to health or safety that might disproportionately affect children. Executive Order 13175 (Tribal Consultation) The FHWA has analyzed this proposed action under Executive Order 13175, dated November 6, 2000, and believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. The proposed rulemaking addresses obligations of Federal funds to States for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required. Executive Order 13211 (Energy Effects) We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use dated May 18, 2001. We have determined that it is not a significant energy action under that order because, although it is a significant regulatory action under Executive Order 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required. Regulation Identification Number A regulation identification number
(RIN)is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda. List of Subjects 23 CFR Part 630 Bonds, Government contracts, Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements. 23 CFR Part 635 Construction and maintenance, Grant programs—transportation, Highways and roads, Reporting and recordkeeping requirements. 23 CFR Part 636 Design—build, Grant programs-transportation, Highways and roads. Issued on: May 19, 2006. J. Richard Capka, Acting Federal Highway Administrator. In consideration of the foregoing, the FHWA proposes to amend parts 630, 635, and 636 of title 23, Code of Federal Regulations, as follows: PART 630—PRECONSTRUCTION PROCEDURES 1. Revise the authority citation for part 630 to read as follows: Authority: Sec. 1503 of Public Law 109-59, 119 Stat. 1144; 23 U.S.C. 106, 109, 115, 315, 320, and 402(a); 23 CFR 1.32 and 49 CFR 1.48(b). 2. Amend 23 CFR 630.106 by adding paragraph (a)(7) to read as follows: § 630.106 Authorization to proceed.
(a)* * *
(7)For design-build projects, the execution of the project agreement and authorization to proceed shall not occur until after the completion of the NEPA process. However, preliminary engineering activities may be authorized in accordance with this section. PART 635—CONSTRUCTION AND MAINTENANCE 3. Revise the authority citation for part 635 to read as follows: Authority: Sec. 1503 of Public Law 109-59, 119 Stat. 1144; 23 U.S.C. 101 (note), 109, 112, 113, 114, 116, 119, 128, and 315; 31 U.S.C. 6505; 42 U.S.C. 3334, 4601 *et seq.* ; Sec. 1041(a), Public Law 102-240, 105 Stat. 1914; 23 CFR 1.32; 49 CFR 1.48(b). 4. Amend 23 CFR 635.112(i) by revising paragraph (i)(1); by redesignating paragraphs (i)(2) and (i)(3) as (i)(3) and (i)(4), respectively; and by adding a new paragraph (i)(2) to read as follows: § 635.112 Advertising for bids and proposals.
(i)* * *
(1)When a Request for Proposals document is issued after the NEPA process is complete, the FHWA Division Administrator's approval of the Request for Proposals document will constitute the FHWA's project authorization and the FHWA's approval of the STD's request to release the document. This approval will carry the same significance as plan, specification and estimate approval on a design-bid-build Federal-aid project.
(2)Where a Request for Proposals document is issued prior to the completion of the NEPA process, the FHWA's approval of the document will only constitute the FHWA's approval of the STD's request to release the document. 5. Revise § 635.413(e)(1)(i) to read as follows: § 635.413 Guaranty and warranty clauses.
(e)* * *
(1)* * *
(i)The term of the warranty is short (generally one to two years); however, projects developed under a public-private agreement may include warranties that are appropriate for the term of the contract or agreement. PART 636—DESIGN-BUILD CONTRACTING 6. Revise the authority citation for part 636 to read as follows: Authority: Sec. 1503 of Public Law 109-59, 119 Stat. 1144; Sec. 1307 of Public Law 105-178, 112 Stat. 107; 23 U.S.C. 101, 109, 112, 113, 114, 115, 119, 128, and 315; 49 CFR 1.48(b). Subpart A—General 7. Amend § 636.103 by placing all definitions in alphabetical order, by adding the definitions of “developer,” “final design,” “preliminary design,” “price reasonableness,” and “public-private agreement,” and by revising the definition of “qualified project” as follows: § 636.103 What are the definitions of terms used in this part? *Developer* means each entity with whom the contracting agency has executed a public-private agreement for the development, design, construction, financing, operation, and maintenance of one or more projects under a public-private partnership. Depending on the context of the public-private agreement, the term “developer” may include affiliated entities of the developer. *Final design* means any design activities following preliminary design. Final design activities are not necessary to complete the NEPA process as outlined in 23 CFR 771. *Preliminary design* means all design activities necessary to complete the NEPA alternatives analysis and review process as outlined in 23 CFR 771.105, 771.111, and 771.113. *Price reasonableness* means the determination that the price of the work for any project or series of projects is not excessive and is a fair and reasonable price for the services to be performed. *Public-private agreement* means an agreement between a public agency and a private party under which the private party shares in the responsibilities, risks and benefits of constructing a project. Such agreement may involve an at-risk equity investment by the private party in the project. *Qualified project* means any design-build project (including intermodal projects) funded under Title 23 U.S.C. which meets the requirements of this Part and for which the contracting agency deems to be appropriate on the basis of project delivery time, cost, construction schedule and/or quality. 8. Revise § 636.106 to read as follows: § 636.106 Is the FHWA's Special Experimental Project No. 14—“Innovative Contracting” (SEP-14) approval necessary for a design-build project? No, if a design-build project meets the requirements of this part, SEP-14 approval is not required. However, when the FHWA believes it is appropriate, SEP-14 is available for the experimental evaluation of techniques that do not meet the requirement of this part. 9. Revise § 636.107 to read as follows: § 636.107 May contracting agencies use geographic preference in Federal-aid design-build or public-private partnership projects? No. Contracting agencies must not use geographic preferences (including contractual provisions, preferences or incentives for hiring, contracting, proposing or bidding) on Federal-aid highway projects. Contracting agencies shall conduct procurements in a manner that prohibits the use of statutorily or administratively imposed in-State or local geographical preferences in the evaluation and award of projects. § 636.108 [Removed and Reserved] 10. Remove and reserve § 636.108. 11. Revise § 636.109 to read as follows: § 636.109 How does the NEPA process relate to the design-build procurement process? The purpose of this section is to ensure that there is an objective NEPA process, that public officials and citizens have the necessary environmental impact information for federally funded actions before actions are taken, and that design-build proposers do not assume an unnecessary amount of risk in the event the NEPA process results in a significant change in the proposal. Therefore, with respect to the design-build procurement process:
(a)The contracting agency may:
(1)Issue an RFQ solicitation prior to the conclusion of the NEPA process as long as the RFQ solicitation informs proposers of the general status of NEPA review;
(2)Issue an RFP after the conclusion of the NEPA process;
(3)Issue an RFP prior to the conclusion of the NEPA process as long as the RFP informs proposers of the general status of the NEPA process and that no commitment will be made as to any alternative under evaluation in the NEPA process, including the no-build alternative;
(4)Proceed with the award of a design-build contract prior to the conclusion of the NEPA process; and
(5)Issue notice to proceed with preliminary design pursuant to a design-build contract that has been awarded prior to the completion of the NEPA process.
(b)If the contracting agency proceeds to award a design-build contract prior to the conclusion of the NEPA process, then:
(1)The design-build contract must include appropriate provisions preventing the design-builder (or developer) from proceeding with final design activities and physical construction prior to the completion of the NEPA process (contract hold points or another method of issuing multi-step approvals must be used);
(2)The design-build contract must include appropriate provisions ensuring that no commitment is made to any alternative being evaluated in the NEPA process and that the comparative merits of all alternatives presented in the NEPA document, including the no-build alternative, will be evaluated;
(3)The design-build contract must include appropriate provisions ensuring that all environmental and mitigation measures identified in the NEPA decision document will be implemented;
(4)The design-builder (or developer) must not prepare the NEPA decision document or have any decisionmaking responsibility with respect to the NEPA process;
(5)Any consultant who prepares the NEPA decision document must be selected by and subject to the exclusive direction and control of the contracting agency;
(6)Preliminary design work performed by the design-builder (or developer) may be used in the NEPA analysis; and
(7)The design-build contract must include termination provisions in the event that the no-build alternative is selected.
(c)The contracting agency must receive prior FHWA concurrence before issuing the RFP, awarding a design-build contract and proceeding with preliminary design work under the design-build contract. Should the contracting agency proceed with any of the activities specified in this section before the completion of the NEPA process (with the exception of preliminary design, as provided in paragraph
(d)of this section), the FHWA's concurrence merely constitutes the FHWA acquiescence that any such activities complies with Federal requirements and does not constitute project authorization or obligate Federal funds.
(d)The FHWA's authorization and obligation of preliminary engineering funds prior to the completion of the NEPA process is limited to preliminary design activities. After the completion of the NEPA process, the FHWA may issue an authorization to proceed with final design and construction and obligate Federal funds for such purposes. 12. Amend § 636.116 by adding paragraph
(c)to read as follows: § 636.116 What organizational conflict of interest requirements apply to design-build projects?
(c)If the NEPA process has been completed prior to issuing the RFP, the contracting agency may allow a consultant and/or subconsultant who prepared the NEPA document to submit a proposal in response to the RFP. 13. Revise § 636.119 to read as follows: § 636.119 How does this Part apply to public-private agreements? (a)(1) For public-private agreements, the contracting agency may use State-approved procurement procedures to procure the services of the developer and the requirements of 23 CFR 636.201 through 23 CFR 636.514 are optional. The use of State-approved procedures for the procurement of the developer is contingent upon the following:
(i)The State's procedures are approved by the FHWA,
(ii)The RFQ or RFP solicitations must be submitted to the FHWA for review and approval,
(iii)The procedures must be fair and transparent to all proposers,
(iv)If an unsolicited proposal is received, the contracting agency must offer adequate public notice and advertisement for competing proposals before considering an individual proposal for award,
(v)The appropriate RFQ or RFP document must clearly describe the contracting agency's conditions and procedures for sharing any proposer's ideas with other proposers during any phase of the negotiation process and whether a proposer's ideas may be incorporated into the project, even though that proposer was unsuccessful in obtaining the contract;
(vi)The selection of a developer is made on the basis of a best value selection, except that price does not have to be a consideration. Evaluation and selection criteria may include, but are not limited to, the degree and scope of work to be performed, services to be provided, ability to perform such work or services, responsibilities or risks that are to be shared, and the equity or total investment that may be contributed; and
(vii)The contracting agency submits the public-private agreement to FHWA for concurrence along with a timetable showing the major steps in the procurement process, a summary of the rationale for the selection, and a description of any major changes made during any negotiations.
(2)No procedure or requirement shall be approved under paragraph (a)(1) of this section which, in the judgment of the FHWA, may operate to unnecessarily restrict competition, is unfair, or may result in a process that is not transparent.
(b)For any public-private agreement that provides for the possibility of the physical construction of one or more projects by the developer, the public-private agreement must include a provision requiring the contracting agency to review the price reasonableness of the estimate provided by the developer to provide final design services and/or physically construct any project involving Federal funds.
(1)The price reasonableness determination shall be made pursuant to a process provided for in the public-private agreement that includes a comparison of the developer's estimate to an estimate prepared by the contracting agency. Both parties may meet to discuss the differences in the estimates and make appropriate revisions. The estimates prepared under this paragraph shall be prepared on an open-book basis with respect to both the contracting agency and the developer.
(2)The contracting agency's determination of price reasonableness shall be submitted to the FHWA for concurrence.
(3)If the contracting agency cannot reach an agreement on price reasonableness with the developer, or if the FHWA does not concur, then the contracting agency shall proceed to procure the work with another firm pursuant to parts 172, 635, and 636 of this title, as appropriate.
(c)The contracting agency must ensure Federal-aid projects developed under a public-private partnership comply with all non-procurement requirements of 23 U.S. Code, regardless of the form of the FHWA funding (traditional Federal-aid funding or credit assistance). This includes compliance with all FHWA policies and requirements, such as environmental and right-of-way requirements and compliance with all applicable construction contracting requirements such as Buy America, Davis-Bacon prevailing wage rate requirements, etc. 12. Revise § 636.302(a)(1) to read as follows: § 636.302 Are there any limitations on the selection and use of proposal evaluation factors?
(a)* * *
(1)You must evaluate price in every source selection where construction is a significant component of the scope of work. However, where the contracting agency elects to release the final RFP and award the design-build contract before the conclusion of the NEPA process (see § 636.109), then the following requirements apply:
(i)It is not necessary to evaluate total contract price;
(ii)The evaluation of proposals and award of the contract may be based on qualitative considerations;
(iii)The subsequent approval of final design and construction activities will be contingent upon a finding of price reasonableness by the contracting agency;
(iv)In determining price reasonableness, the contracting agency and design-builder may negotiate the price, which shall be done on an open-book basis by both the design-builder and contracting agency; and
(v)The contracting agency's finding of price reasonableness is subject to FHWA concurrence. [FR Doc. E6-8002 Filed 5-24-06; 8:45 am] BILLING CODE 4910-22-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD08-06-002] RIN 1625-AA09 Drawbridge Operation Regulations; Missouri River, Iowa, Kansas, Missouri AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to make revisions in Missouri River drawbridge regulations covering Iowa, Kansas, and Missouri. Under the proposed revisions, the bridges will open on signal, except during the winter season when 24 hours advance notice will be required. These proposed revisions to the regulations will reduce delays to the vessels transiting through these States on the Missouri River. DATES: Comments and related material must reach the Coast Guard on or before July 24, 2006. ADDRESSES: You may mail comments and related material to Commander, Eighth Coast Guard District, Bridge Branch, 1222 Spruce Street, St. Louis, MO 63103-2832. Commander (dwb), Eighth Coast Guard District, 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 and will be available for inspection or copying at room 2.107f in the Robert A. Young Federal Building, Eighth Coast Guard District, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. Roger K. Wiebusch, Bridge Administrator,
(314)539-3900, extension 2378. 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 [CGD08-06-002], indicate the specific section of this document to which each comment applies, and give the reason for each comment. 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 the Eighth Coast Guard District, Bridge Branch, at the address under ADDRESSES explaining why one would be beneficial. If we determine that a meeting 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 The Coast Guard reviewed the history of civil penalty actions for failure of the Missouri River drawbridges to open for navigation. Meetings were held with the bridge owner and vessel operators to determine the cause for not opening the bridge draw on signal. A procedure was incorporated in the regulations to help reduce the number of vessel delays caused by failure to open the bridge on signal. Experience has shown the procedure was never implemented and vessel delays were not reduced. Thus, the Coast Guard is proposing these revisions to these regulations so vessels may pass the bridge without delay. Discussion of Proposed Rule The Coast Guard determined that changes were needed to correct inaccuracies in State-related drawbridge operation regulations for § 117.407 (Iowa), § 117.411 (Kansas), and § 117.687 (Missouri). In addition, § 117.411(b) and § 117.687(b), which describe the procedure for the operation of A-S-B Highway and Railroad Bridge at Mile 365.6, are to be eliminated. This drawbridge was never operated in the manner described. It will open on signal as described in § 117.411 and § 117.687. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security. The Coast Guard expects that these changes will have a minimal economic impact on commercial traffic operating on the Missouri River. The procedure is already in practice at the bridges, and the change to the CFR documents the procedure. 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 rule would not have a significant economic impact on a substantial number of small entities. This proposed rule is neutral to all business entities since it affects only how the vessel operators request bridge openings. 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 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they could 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 Mr. Roger K. Wiebusch, Bridge Administrator, Eighth Coast Guard District, Bridge Branch, at
(314)539-3900, extension 2378. 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 may 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 rule under Commandant Instruction M16475.1D, 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 rule is categorically excluded under figure 2-1, paragraph 32(e) of the Instruction from further environmental documentation. Paragraph 32(e) excludes the promulgation of operating regulations or procedures for drawbridges from the environmental documentation requirements of the National Environmental Policy Act (NEPA). Since this proposed regulation would alter the normal operating conditions of the drawbridge, it falls within this exclusion. A “Categorical Exclusion Determination” is available in the docket for inspection or copying where indicated under ADDRESSES. 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. Revise § 117.407 to read as follows: § 117.407 Missouri River. See § 117.691, Missouri River listed under Nebraska. 3. Revise § 117.411 to read as follows: § 117.411 Missouri River. The draws of the bridges across the Missouri River shall open on signal; except during the winter season between the date of closure and the date of opening of the commercial navigation season as published by the Army Corps of Engineers, the draws need not open unless at least 24 hours advance notice is given. 4. Revise § 117.687 to read as follows: § 117.687 Missouri River. The draws of the bridges across the Missouri River shall open on signal; except during the winter season between the date of closure and date of opening of the commercial navigation season as published by the Army Corps of Engineers, the draws need not open unless at least 24 hours advance notice is given. Dated: April 25, 2006. R.F. Duncan, Rear Admiral, U.S. Coast Guard, Commander, Eighth Coast Guard District. [FR Doc. 06-4877 Filed 5-24-06; 8:45 am]
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Traces to 43 documents
register
U.S. Code
- Federal Aviation Administration§ 106
- Protection of voluntarily submitted information§ 40123
- Public information; agency rules, opinions, orders, records, and proceedings§ 552
- Definitions§ 802
- Schedules of controlled substances§ 812
- Avoidance of duplicative or unnecessary analyses§ 605
- Letting of contracts§ 112
- Definitions§ 601
- Statements to accompany significant regulatory actions§ 1532
- Purposes§ 3501
- Congressional declaration of purpose§ 4321
- Project approval and oversight§ 106
- Definitions and declaration of policy§ 101
- Authority to provide specialized or technical services§ 6505
- Coordination of Federal aids with local governments§ 3334
- Establishment, functions, and activities§ 272
- Regulations for drawbridges§ 499
CFR
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- What is the notice procedure?§ 193.11
- What does it mean for the FAA to designate information as protected?§ 193.7
- Will the FAA ever disclose information that is designated as protected under this part?§ 193.9
- Definitions relating to controlled substances.§ 1300.01
- Schedule I.§ 1308.11
- Authorization to proceed.§ 630.106
- Advertising for bids and proposals.§ 635.112
- What are the definitions of terms used in this part?§ 636.103
- Policy.§ 771.105
- How does this part apply to a project developed under a public-private partnership?§ 636.119
- May contracting agencies use geographic preference in Federal-aid design-build or public-private partnership projects?§ 636.107
- Labor and employment.§ 635.117
- How does the NEPA process relate to the design-build procurement process?§ 636.109
- What organizational conflict of interest requirements apply to design-build projects?§ 636.116
- What selection procedures and award criteria may be used?§ 636.201
- How may I provide notifications and debriefings?§ 636.514
- When are two-phase design-build selection procedures appropriate?§ 636.202
- Issuance of directives.§ 1.32
- Delegation of rulemaking authority.§ 1.05-1
28 references not yet in our index
- 14 CFR 39
- 14 CFR 193
- 21 CFR 1300
- 23 CFR 636
- Pub. L. 109-59
- 119 Stat. 1144
- 23 CFR 771
- 23 CFR 636.106
- 23 CFR 635
- 23 CFR 636.108
- 40 CFR 1506.5(c)
- 23 CFR 172
- 5 USC 601-612
- Pub. L. 104-4
- 109 Stat. 48
- 23 CFR 630
- 49 CFR 1.48(b)
- Pub. L. 102-240
- 105 Stat. 1914
- Pub. L. 105-178
- 112 Stat. 107
- 33 CFR 117
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- Pub. L. 102-587
- 106 Stat. 5039
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Notice of proposed rulemaking (NPRM)
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