Proposed Rules. Final rule

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BILLING CODE 6712-01-M FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1076; MB Docket No. 05-121; RM-11197] Radio Broadcasting Services; Knightdale and Wilson, NC AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: This document grants a petition filed by Capstar TX Limited Partnership, licensee of Station WRDU(FM), Channel 291C0, Wilson, North Carolina, requesting the reallotment of Channel 291C0 from Wilson to Knightdale, as its first local service, and modification of the Station WRDU(FM) license to reflect the change.

Channel 291C0 can be reallotted to Knightdale, using reference coordinates 35-47-50 NL and 78-22-15 WL, which requires a site restriction of 10 kilometers (6.2 miles) east of the community to avoid short-spacings to the license sites of Station WFJA(FM), Channel 288A, Sanford, North Carolina and Station WMNA-FM, Channel 292A, Gretna, Virginia. DATES: Effective July 10, 2006. ADDRESSES: Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT:

Rolanda F. Smith, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order,* MB Docket No. 05-121, adopted May 24, 2006, and released May 26, 2006. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Information Center, 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20054, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A). On April 10, 2003, Station WRDU(FM) was granted a license to specify operation on Channel 291C0 in lieu of Channel 291C at Wilson, North Carolina. *See* File No. BLH-20020607AAR. List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under North Carolina, is amended by adding Knightdale, Channel 291C0 and by removing Wilson, Channel 291C. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-9073 Filed 6-13-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1054; MB Docket No. 05-5; RM-11139] Radio Broadcasting Services; Morro Bay and Oceano, CA AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: At the request of Lazer Broadcasting Corporation, licensee of Station KLMM(FM), Morro Bay, California, this document reallots Channel 231A from Morro Bay to Oceano, California, as the community's first local transmission service, and modifies the license for Station KLMM(FM) to reflect the new community. Channel 231A is reallotted at Oceano at a site 12.4 kilometers (7.7 miles) south of the community at coordinates 34-59-20 NL and 120-37-56 WL. DATES: Effective July 3, 2006. ADDRESSES: Secretary, Federal Communications Commission, 445 12th Street, SW., Room TW-A325, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Media Bureau,

(202)418-2180. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's *Report and Order,* MB Docket No. 05-5, adopted May 17, 2006, and released May 19, 2006. The *Notice of Proposed Rule Making,* 70 FR 3667, January 26, 2005, was issued at the request of Lazer Broadcasting Corporation. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Information Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC, 20054, telephone 800-378-3160 or *http://www.BCPIWEB.com.* The Commission will send a copy of this *Report and Order* in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: PART 73—RADIO BROADCAST SERVICES 1. The authority citation for part 73 continues to read as follows: Authority: 47 U.S.C. 154, 303, 334, 336. § 73.202 [Amended] 2. Section 73.202(b), the Table of FM Allotments under California, is amended by removing Channel 231A at Morro Bay and adding Oceano, Channel 231A. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-8955 Filed 6-13-06; 8:45 am] BILLING CODE 6712-01-P 71 114 Wednesday, June 14, 2006 Proposed Rules DEPARTMENT OF HOMELAND SECURITY 8 CFR Part 274a [ICE 2377-06; Docket No. ICEB-2006-0004] RIN 1653-AA50 Safe-Harbor Procedures for Employers Who Receive a No-Match Letter AGENCY: Bureau of Immigration and Customs Enforcement, Department of Homeland Security. ACTION: Proposed rule. SUMMARY: The Bureau of Immigration and Customs Enforcement proposes to amend the regulations relating to the unlawful hiring or continued employment of unauthorized aliens. The amended regulation describes the legal obligations of an employer, under current immigration law, when the employer receives a no-match letter from the Social Security Administration or the Department of Homeland Security. It also describes “safe-harbor” procedures that the employer can follow in response to such a letter and thereby be certain that DHS will not find that the employer had constructive knowledge that the employee referred to in the letter was an alien not authorized to work in the United States. The proposed rule adds two more examples of situations that may lead to a finding that an employer had such constructive knowledge to the current regulation's definition of “knowing.” These additional examples involve an employer's failure to take reasonable steps in response to either of two events:

(1)The employer receives written notice from the Social Security Administration

(SSA)that the combination of name and social security account number submitted to SSA for an employee does not match agency records; or

(2)the employer receives written notice from the Department of Homeland Security

(DHS)that the immigration-status or employment-authorization documentation presented or referenced by the employee in completing Form I-9 was not assigned to the employee according to DHS records. (Form I-9 is retained by the employer and made available to DHS investigators on request, such as during an audit.) The proposed rule also states that whether DHS will actually find that an employer had constructive knowledge that an employee was an unauthorized alien in a situation described in any of the regulation's examples will depend on the totality of relevant circumstances. The “safe-harbor” procedures include attempting to resolve the no-match and, if it cannot be resolved within a certain period of time, verifying again the employee's identity and employment authorization through a specified process. DATES: Written comments must be submitted on or before August 14, 2006. ADDRESSES: You may submit comments, identified by DHS Docket No. ICEB-2006-0004, by one of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions for submitting comments. • E-mail: You may submit comments directly to ICE by email at *rfs.regs@dhs.gov* . Include docket number in the subject line of the message. • Mail: Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, Contact Telephone Number

(202)272-8377. To ensure proper handling, please reference DHS Docket No. ICEB-2006-0004 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions. • Hand Delivery/Courier: Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, Contact Telephone Number

(202)272-8377. FOR FURTHER INFORMATION CONTACT: Charles Wood, Regulatory Counsel, Office of the Principal Legal Advisor, Bureau of Immigration and Customs Enforcement, Department of Homeland Security, 425 I Street, NW., Washington, DC 20536. Contact Telephone Number

(202)514-2895. SUPPLEMENTARY INFORMATION: I. Public Participation Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the proposed rule. The Bureau of Immigration and Customs Enforcement

(ICE)also invites comments that relate to the potential economic, environmental, or federalism effects of this proposed rule. Comments that will provide the most assistance to ICE in developing these procedures will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change. ICE would be particularly interested in comments on the time limits described in the rule. Comments that will provide the most assistance to ICE will include specific factual support, including examples of circumstances under which it would be difficult for the commenting employer to resolve the issues raised in a no-match letter within the stated time frame. *Instructions:* All submissions received must include the agency name and DHS docket No. ICEB-2006-0004 for this rulemaking. All comments received will be posted without change to *http://www.regulations.gov* , including any personal information provided. See ADDRESSES above for information on how to submit comments. Docket: For access to the docket to read background documents or comments received, go to *http://www.regulations.gov* . Submitted comments may also be inspected at the office of the Director, Regulatory Management Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 111 Massachusetts Avenue, NW., 2nd Floor, Washington, DC 20529, Contact Telephone Number

(202)272-8377. II. Background Employers annually send the Social Security Administration

(SSA)millions of earnings reports (W-2 Forms) in which the combination of employee name and social security number

(SSN)does not match SSA records. In some of these cases, SSA sends a letter that informs the employer of this fact. The letter is commonly referred to as a “no-match letter.” There are many causes for such a no-match, including clerical error and name changes. But one of the causes is the submission of information for an alien who is not authorized to work in the United States and is using a false SSN or a SSN assigned to someone else. Such a letter may be one of the only indicators to an employer that one of its employees may be an unauthorized alien. ICE sends a similar letter after it has inspected an employer's Employment Eligibility Verification forms (Forms I-9) and after unsuccessfully attempting to confirm, in agency records, that an immigration status document or employment authorization document presented or referenced by the employee in completing the Form I-9 was assigned to that person. (After a Form I-9 is completed by an employer and employee, it is retained by the employer and made available to DHS investigators on request, such as during an audit.) This proposed regulation describes an employer's current obligations under the immigration laws, and its options for avoiding liability, after receiving a no-match letter from either SSA or DHS. The proposed regulation specifies the steps to be taken by the employer that will be considered by DHS to be a reasonable response to receiving a no-match letter—a response that will eliminate the possibility that DHS, when seeking civil money penalties against an employer, will allege, based on the totality of relevant circumstances, that an employer had constructive knowledge that it was employing an alien not authorized to work in the United States, in violation of section 274A(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. 1324a(a)(2). This provision of the Act states: It is unlawful for a person or other entity, after hiring an alien for employment in accordance with paragraph (1), to continue to employ the alien in the United States *knowing* the alien is (or has become) an unauthorized alien with respect to such employment. [Emphasis added.] Both regulation and case law support the view that an employer can be in violation of section 274A(a)(2), 8 U.S.C. 1324a(a)(2) by having constructive rather than actual knowledge that an employee is unauthorized to work. A definition of “knowing” first appeared in the regulations on June 25, 1990 at 8 CFR 274a.1(l)(1). See 55 FR 25928. That definition stated: The term “knowing” includes not only actual knowledge but also knowledge which may fairly be inferred through notice of certain facts and circumstances which would lead a person, through the exercise of reasonable care, to know about a certain condition. As noted in the preamble to the original regulation, that definition, which is essentially the same as the definition adopted in this rule, is consistent with the Ninth Circuit's holding in *Mester Mfg. Co.* v. *INS* , 879 F.2d 561, 567 (9th Cir. 1989) (an employer who received information that some employees were suspected of having presented a false document to show work authorization was held to have had constructive knowledge of their unauthorized status when he failed to make any inquiries or take appropriate corrective action). The court cited its opinion in *United States* v. *Jewell* , 532 F.2d 697 (9th Cir.) (en banc), and explained its ruling in *Jewell* as follows: “deliberate failure to investigate suspicious circumstances imputes knowledge.” 879 F.2d at 567. See also *New El Rey Sausage Co.* v. *INS* , 925 F.2d 1153, 1158 (9th Cir. 1991). The regulatory language quoted above also begins the current regulatory definition of “knowing,” which is still at 8 CFR 274a.1(l)(1). In the current definition, additional language follows this passage, describing situations that may involve constructive knowledge by the employer that an employee is an unauthorized alien. The Immigration and Naturalization Service added this language on August 23, 1991. See 56 FR 41767. The current definition contains an additional, concluding paragraph, which relates to foreign appearance or accent, and to the documents that may be requested by an employer as part of the verification system that must be used at the time of hiring, as required by INA section 274A(a)(1)(B), 8 U.S.C. 1324a(a)(1)(B). This paragraph will be described in greater detail below. The verification system referenced in this paragraph is described in INA section 274A(b), 8 U.S.C. 1324a(b). III. Proposed rule The proposed rule would amend the definition of “knowing” in 8 CFR 274a.1(l)(1), in the portion relating to “constructive knowledge.” First, it would add two more examples to the existing examples of information available to an employer indicating that an employee could be an alien who is not authorized to work in the United States. It also explicitly states the employer's obligations under current law, which is that if the employer fails to take reasonable steps after receiving such information, and if the employee is in fact an unauthorized alien, the employer may be found to have had constructive knowledge of that fact. The proposed rule would also state explicitly another implication of the employer's obligation under current law—whether an employer would be found to have constructive knowledge in particular cases of the kind described in each of the examples (the ones in the current regulation and in the proposed regulation) depends on the “totality of relevant circumstances” present in the particular case. The additional examples are:

(1)Written notice from SSA that the combination of name and SSN submitted for an employee does not match SSA records; and

(2)written notice from DHS that the immigration status document, or employment authorization document, presented or referenced by the employee in completing Form I-9 was assigned to another person, or that there is no agency record that the document was assigned to anyone. The proposed regulation also describes more specifically the steps that an employer might take after receiving a no-match letter, steps that DHS considers reasonable. By taking these steps in a timely fashion, an employer would avoid the risk that DHS may find, based on the totality of circumstance present in the particular case, that the employer had constructive knowledge that the employee was not authorized to work in the United States. The steps that a reasonable employer may take include one or more of the following:

(I)A reasonable employer would check its records promptly after receiving a no-match letter, to determine whether the discrepancy results from a typographical, transcribing, or similar clerical error in the employer's records or in its communication to the SSA or DHS. If there is such an error, the employer would correct its records, inform the relevant agencies (in accordance with the letter's instructions, if any; otherwise in any reasonable way), and verify that the name and number, as corrected, match agency records—in other words, verify with the relevant agency that the discrepancy has been resolved—and make a record of the manner, date, and time of the verification. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within 14 days of receipt of the no-match letter.

(II)If such actions do not resolve the discrepancy, the reasonable employer would promptly request the employee to confirm that the employer's records are correct. If they are not correct, the employer would take the actions needed to correct them, inform the relevant agencies (in accordance with the letter's instructions, if any; otherwise in any reasonable way), and verify the corrected records with the relevant agency. If the records are correct according to the employee, the reasonable employer would ask the employee to pursue the matter personally with the relevant agency, such as by visiting a local SSA office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, citizenship or alien status, and other relevant documents, such as proof of a name change, or by mailing these documents or certified copies to the SSA office, if permitted by SSA. ICE would consider a reasonable employer to have acted promptly if the employer took such steps within 14 days of receipt of the no-match letter. The proposed regulation provides that a discrepancy will be considered resolved only if the employer verifies with SSA or DHS, as the case may be, that the employee's name matches in SSA's records a number assigned to that name, and the number is valid for work or is valid for work with DHS authorization (and, with respect to the latter, verifies the authorization with DHS) or that DHS records indicate that the immigration status document or employment authorization document was assigned to the employee. In the case of a number from SSA, the valid number may be the number that was the subject of the no-match letter or a different number, for example a new number resulting from the employee's contacting SSA to resolve the discrepancy. Employers may verify a SSN with SSA by telephoning toll-free 1-800-772-6270, weekdays from 7 a.m. to 7 p.m. EST. See *http://www.ssa.gov/employer/ssnvadditional.htm* . For info on SSA's online verification procedure, see *http://www.ssa.gov/employer/ssnv.htm* . Employers should make a record of the manner, date, and time of any such verification, as SSA may not provide any documentation.

(III)The proposed regulation also describes a verification procedure that the employer may follow if the discrepancy is not resolved within 60 days of receipt of the no-match letter. This procedure would verify (or fail to verify) the employee's identity and work authorization. If the described procedure is completed, and the employee is verified, then even if the employee is in fact an unauthorized alien, the employer will not be considered to have constructive knowledge of that fact. Please note that, as stated in the “PUBLIC PARTICIPATION” section above, ICE is interested in receiving public comments on the time frames in this proposed regulation. That would include the 60-day period, and also possible alternatives, such as a 30-day or 90-day time frame. In determining the time frame to be included in the final rule, ICE will consider all comments received. As further stated in “PUBLIC PARTICIPATION,” the comments that will provide the most assistance to ICE on this issue will include specific factual support, including examples of circumstances under which it would be difficult for the commenting employer to resolve the issues raised in a no-match letter within 60 days of receipt of the letter. If the discrepancy referred to in the no-match letter is not resolved, and if the employee's identity and work authorization cannot be verified using a reasonable verification procedure, such as that described in the proposed rule (see below), then the employer must choose between taking action to terminate the employee or facing the risk that DHS may find that the employer had constructive knowledge that the employee was an unauthorized alien and therefore, by continuing to employ the alien, violated INA section 274A(a)(2), 8 U.S.C. 1324a(a)(2). The procedure to verify the employee's identity and work authorization described in the proposed rule would involve the employer and employee completing a new Form I-9, Employment Eligibility Verification Form, using the same procedures as if the employee were newly hired, as described in 8 CFR 274a.2, with certain restrictions. The proposed rule identifies these restrictions: ( *1* ) Under the proposed rule, both Section 1 (“Employee Information and Verification”) and Section 2 (“Employer Review and Verification”) would have to be completed within 63 days of receipt of the no-match letter. Therefore, if an employer tried to resolve the discrepancy described in the no-match letter for the full 60 days provided for in the proposed rule, it would have an additional 3 days to complete a new I-9. Under current regulations, three days are provided for the completion of the form after a new hire. 8 CFR 274a.2(b)(1)(ii). ( *2* ) No document containing the SSN or alien number that is the subject of the no-match letter, and no receipt for an application for a replacement of such a document, may be used to establish employment authorization or identity or both. ( *3* ) No document without a photograph may be used to establish identity (or both identity and employment authorization). (This is consistent with the documentary requirements of the Basic Pilot Program. *See http://uscis.gov/graphics/services/SAVE.htm.* ) Employers should apply these procedures uniformly to all of their employees having unresolved no-match indicators. If they do not do so, they may violate applicable anti-discrimination laws. In this regard, the proposed regulation also amends the last paragraph of the current definition of “knowing.” The current rule provides, in relevant part, that— Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274(b) 1 of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual. 1 Please note, this citation is inaccurate and should read “section 274A(b) of the Act.” The proposed rule makes this correction. The proposed rule clarifies that this language applies to employers who receive no-match letters, but that employers who follow the safe harbor procedures set forth in this rule will not be found to have violated the provisions of 274B(a)(6) of the INA. This clarification is accomplished by adding the following language after “individual”: “, except a document about which the employer has received a notice described in paragraph (l)(1)(iii) of this section and with respect to which the employer has received no verification as described in paragraph (l)(2)(i)(B) or (l)(2)(ii)(B) of this section.”. Alternative documents that show work authorization are specified in 8 CFR 274a.2(b)(1)(v). Examples are a U.S. passport (unexpired or expired), a U.S. birth certificate, or any of several documents issued to lawful permanent resident aliens or to nonimmigrants with work authorization. There may be other procedures a particular employer could follow in response to a no-match letter, procedures that would be considered reasonable by DHS and inconsistent with a finding that the employer had constructive knowledge that the employee was an unauthorized alien. But such a finding would depend on the totality of relevant circumstances. An employer that followed a procedure other than the “safe-harbor” procedures described in the regulation would face the risk that DHS may not agree. It is important that employers understand that the proposed regulation describes the meaning of constructive knowledge and specifies “safe-harbor” procedures that employers could follow to avoid the risk of being found to have constructive knowledge that an employee is not authorized to work in the United States. The regulation would not preclude DHS from finding that an employer had actual knowledge that an employee was an unauthorized alien. An employer with actual knowledge that one of its employees is an unauthorized alien could not avoid liability by following the procedures described in the proposed regulation. The burden of proving actual knowledge would, however, be on the government. Finally, it is important that employers understand that the resolution of discrepancies in a no-match letter, or other information that an employee's Social Security Number presented to an employer matches the records for the employee held by the Social Security Administration, does not, in and of itself, demonstrate that the employee is authorized to work in the United States. IV. Regulatory Requirements A. Regulatory Flexibility Act The Secretary of Homeland Security, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving it, certifies that this rule would not have a significant economic impact on a substantial number of small entities. This rule would not affect small entities as that term is defined in 5 U.S.C. 601(6). This rule would describe when receipt by an employer of a no-match letter from the Social Security Administration or the Department of Homeland Security may result in a finding that the employer had constructive knowledge that it was employing an alien not authorized to work in the United States. The rule would also describe steps that DHS would consider a reasonable response by an employer to receipt of a no-match letter. The rule would not mandate any new burdens on the employer and would not impose any new or additional costs on the employer, but would merely add specific examples and a description of a “safe harbor” to an existing DHS regulation for purposes of enforcing the immigration laws and providing guidance to employers. B. Unfunded Mandates Reform Act of 1995 This rule would not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more in one year, and it would not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. C. 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 Act of 1996. This rule would not result in an annual effect on the economy of $100 million 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 or foreign markets. D. Executive Order 12866 (Regulatory Planning and Review) This proposed rule is considered by the Department of Homeland Security

(DHS)to be a “significant regulatory action” under Executive Order 12866. Under Executive Order 12866, a significant regulatory action is subject to an Office of Management and Budget

(OMB)review and to the requirements of the Executive Order. The Executive Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or

(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Because this rule would describe what specific steps an employer that has received a no-match letter could take that would eliminate the possibility that DHS would find that the employer had constructive knowledge that it is employing an unauthorized alien, this rule may raise novel policy issues. E. Executive Order 13132 (Federalism) This rule would not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. F. Executive Order 12988 (Civil Justice Reform) This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. G. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Management and Budget (OMB), for review and approval, any reporting requirements inherent in a rule. This proposed rule would not impose any additional information collection burden or affect information currently collected by ICE. List of Subjects in 8 CFR Part 274a Administrative practice and procedure, Aliens, Employment, Penalties, Reporting and recordkeeping requirements. Accordingly, part 274a of chapter I of title 8 of the Code of Federal Regulations is amended as follows: PART 274a—CONTROL OF EMPLOYMENT OF ALIENS 1. The authority citation for part 274a continues to read as follows: Authority: 8 U.S.C. 1101, 1103, 1324a; 8 CFR part 2. 2. Section 274a.1(l) is revised to read as follows: § 274a.1 Definitions. (l)(1) The term *knowing* includes having actual or constructive knowledge. Constructive knowledge is knowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition. Examples of situations where the employer may, depending on the totality of relevant circumstances, have constructive knowledge that an employee is an unauthorized alien include, but are not limited to, situations where the employer:

(i)Fails to complete or improperly completes the Employment Eligibility Verification Form, I-9;

(ii)Acts with reckless and wanton disregard for the legal consequences of permitting another individual to introduce an unauthorized alien into its work force or to act on its behalf;

(iii)Fails to take reasonable steps after receiving information indicating that the employee may be an alien who is not employment authorized, such as—

(A)Labor Certification or an Application for Prospective Employer;

(B)Written notice from the Social Security Administration that the combination of name and social security account number submitted for the employee does not match Social Security Administration records; or

(C)Written notice from the Department of Homeland Security that the immigration status document or employment authorization document presented or referenced by the employee in completing Form I-9 was assigned to another person, or that there is no agency record that the document was assigned to any person. (2)(i) An employer who receives the notice from SSA described in paragraph (l)(1)(iii)(B) of this section will not be deemed to have constructive knowledge that the employee is an unauthorized alien if—

(A)The employer takes reasonable steps, within 14 days, to attempt to resolve the discrepancy; such steps may include: ( *1* ) Checking the employer's records promptly after receiving the notice, to determine whether the discrepancy results from a typographical, transcribing, or similar clerical error, and if so, correcting the error(s), informing the Social Security Administration of the correct information (in accordance with the letter's instructions, if any; otherwise in any reasonable way), verifying with the Social Security Administration that the employee's name and social security account number, as corrected, match in Social Security Administration records, and making a record of the manner, date, and time of such verification; and ( *2* ) If no such error is found, promptly requesting the employee to confirm that the name and social security account number in the employer's records are correct—and, if they are correct according to the employee, requesting the employee to resolve the discrepancy with the Social Security Administration, such as by visiting a Social Security Administration office, bringing original documents or certified copies required by SSA, which might include documents that prove age, identity, and citizenship or alien status, and other documents that may be relevant, such as those that prove a name change, or, if the employee states that the employer's records are in error, taking the actions to correct, inform, verify, and make a record described in paragraph (l)(2)(i)(A)(1) of this section; and

(B)In the event that, within 60 days of receiving the notice, the employer does not verify with the Social Security Administration that the employee's name matches in the Social Security Administration's records a number assigned to that name and that the number is valid for work or is valid for work with DHS authorization (and, with respect to the latter, verify the authorization with DHS), the employer takes reasonable steps, within an additional 3 days, to verify the employee's employment authorization and identity, such as by following the verification procedure specified in paragraph (l)(2)(iii) of this section.

(ii)An employer who receives the notice from DHS described in paragraph (l)(1)(iii)(C) of this section will not be deemed to have constructive knowledge that the employee is an unauthorized alien if—

(A)The employer takes reasonable steps, within 14 days of receiving the notice, to attempt to resolve the question raised by DHS about the immigration status document or the employment authorization document; and

(B)In the event that, within 60 days of receiving the notice, the employer does not verify with DHS that the document was assigned to the employee, the employer takes reasonable steps, within an additional 3 days, to verify the employee's employment authorization and identity, such as by following the verification procedure specified in paragraph (l)(2)(iii) of this section.

(iii)The verification procedure referenced in paragraphs (l)(2)(i)(B) and (l)(2)(ii)(B) of this section is as follows:

(A)The employer completes a new Form I-9 for the employee, using the same procedures as if the employee were newly hired, as described in § 274a.2(a) and

(b)of this part, except that— ( *1* ) Both Section 1—“Employee Information and Verification”—and Section 2—“Employer Review and Verification”—of the new Form I-9 should be completed within 63 days of receiving the notice referred to in paragraph (l)(1)(iii)(B) or

(C)of this section; ( *2* ) No document containing the social security account number or alien number that is the subject of a written notice referred to in paragraph (l)(1)(iii)(B) or

(C)of this section, and no receipt for an application for a replacement of such document, may be used to establish employment authorization or identity or both; and ( *3* ) No document without a photograph may be used to establish identity or both identity and employment authorization; and

(B)The employer retains the new Form I-9 with the prior Form(s) I-9 for the same period and in the same manner as if the employee were newly hired at the time the new Form I-9 is completed, as described in § 274a.2(b) of this part.

(3)Knowledge that an employee is unauthorized may not be inferred from an employee's foreign appearance or accent. Nothing in this definition should be interpreted as permitting an employer to request more or different documents than are required under section 274A(b) of the Act or to refuse to honor documents tendered that on their face reasonably appear to be genuine and to relate to the individual, except a document about which the employer has received a notice described in paragraph (l)(1)(iii) of this section and with respect to which the employer has received no verification as described in paragraph (l)(2)(i)(B) or (l)(2)(ii)(B) of this section. Dated: June 8, 2006. Michael Chertoff, Secretary. [FR Doc. E6-9303 Filed 6-13-06; 8:45 am] BILLING CODE 4410-10-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 35 [Docket No. PRM-35-19] William Stein III, M.D.; Receipt of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking; Notice of receipt. SUMMARY: The Nuclear Regulatory Commission

(NRC)has received and requests public comment on a petition for rulemaking filed by William Stein III, M.D. (petitioner). The petition has been docketed by the NRC and has been assigned Docket No. PRM-35-19. The petitioner is requesting that the NRC amend the regulations that govern medical use of byproduct material concerning training for parenteral administration of certain radioactive drugs used to treat cancer. The petitioner believes that these regulations do not adequately consider the training necessary for a class of physicians, namely medical oncologists and hemotologists, to qualify as an Authorized User

(AU)physician to administer these drugs. The petitioner requests that the regulations be amended to clearly codify an 80-hour training and experience requirement as appropriate and sufficient for physicians desiring to attain AU status for these unsealed byproduct materials. DATES: Submit comments by August 28, 2006. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date. ADDRESSES: You may submit comments by any one of the following methods. Please include the following number (PRM-35-19) in the subject line of your comments. Comments on petitions submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Attention: Rulemaking and Adjudications staff. E-mail comments to: *SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at

(301)415-1966. You may also submit comments via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov.* Address comments about our rulemaking website to Carol Gallagher,

(301)415-5905; (e-mail *cag@nrc.gov* ). Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* Hand deliver comments to 11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm on Federal workdays. Publicly available documents related to this petition may be viewed electronically on the public computers located at the NRC Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, may be viewed and downloaded electronically via the NRC rulemaking website at *http://ruleforum.llnl.gov.* Publically available documents created or received at the NRC after November 1, 1999 are also available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *pdr@nrc.gov.* For a copy of the petition, write to Michael T. Lesar, Chief, Rules and Directives Branch, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555. Telephone: 301-415-7163 or Toll-Free: 1-800-368-5642 or E-mail: *MTL@NRC.Gov.* SUPPLEMENTARY INFORMATION: Background The NRC has received a petition for rulemaking dated March 20, 2006, submitted by William Stein III, M.D. (petitioner). The petitioner requests that the NRC amend 10 CFR part 35, “Medical Use of Byproduct Material.” Specifically, the petitioner requests that a requirement be added to 10 CFR part 35 or that 10 CFR 35.396 be revised to define and specify the number of classroom and laboratory training hours appropriate and sufficient for physicians who seek AU status limited to parenteral administrations of Sm-153-lexidronam (Quadramet), I-131-tositumomab (Bexxar), and Y-90-ibritumomab tiuxetan (Zevalin). The petitioner believes the current regulations are burdensome and deficient. The NRC has determined that the petition meets the threshold sufficiency requirements for a petition for rulemaking under 10 CFR 2.802. The petition has been docketed as PRM-35-19. The NRC is soliciting public comment on the petition for rulemaking. Discussion of the Petition The petitioner states that the training and experience requirements for physicians who seek AU status for parenteral administration of Quadramet, Bexxar, and Zevalin to treat certain cancers should reflect current requirements in 10 CFR 35.394, “Training for the oral administration of sodium iodide I-131 requiring a written directive in quantities greater than 1.22 Gigabecquerels (33 millicuries),” and not those currently in 10 CFR 35.396, “Training for the parenteral administration of unsealed byproduct material requiring a written directive.” The petitioner believes that the requirements in 10 CFR 35.396 are too restrictive and unnecessarily burdensome because they require 700 hours of training and board-certification in radiation oncology. Quadramet is approved by the Food and Drug Administration

(FDA)for pain relief in bone cancer patients and is administered intravenously. The petitioner states that the average dosage is 70 mCi and that the main route of elimination is urinary excretion which is usually complete within the first six hours of administration. Less than one percent of the administered dosage remains in the blood five hours after administration. Any remaining activity will be retained in the skeleton for the physical half-life of Sm-153 and results in minimal risk of radiation exposure to health care workers, family members, or other individuals who have contact with the patient. The petitioner believes that the patient can be released under the provisions specified in NUREG 1556, Vol. 9. The petitioner also states that patients can be released immediately if the administered activity of Sm-153 is less than 700 mCi and that no instructions are required if the administered activity is less than 140 mCi. Bexxar has been approved by the FDA for intravenous treatment of non-Hodgkin's lymphoma. The petitioner indicates that the average dosage administered ranges from 33 to 161 mCi, averaging about 84 mCi, generally less than the dosage used for oral treatment of thyroid cancer with Na I-131. The petitioner states that a patient who receives an oral dosage of 30 mCi of I-131 for hyperthyroidism presents more of a radiation exposure hazard than a patient who is treated with an average dosage of Bexxar, for which the dose to other persons is usually less than the 500 mrem limit. The petitioner believes an oral dosage of I-131 remains in the body much longer than the typical Bexxar dosage. The petitioner also states that the I-131 present in Bexxar is firmly attached to the protein antibody and therefore, represents a much lower contamination hazard than from oral I-131 administration. Zevalin has also been approved by the FDA for intravenous treatment of non-Hodgkin's lymphoma and is administered according to the patients body weight up to a maximum dosage of 32 mCi. The petitioner states that the Y-90 radionuclide presents a minimal risk to individuals who may come in contact with the patient and that the patient can be released after treatment under the provisions specified in NUREG 1556, Vol. 9. The petitioner notes that all administrations of Quadramet, Bexxar, and Zevalin require written directives and believes that these drugs are generally less hazardous than oral dosages of I-131. The petitioner therefore believes that the training and experience requirements should not exceed the 80 hours specified for an endocrinologist who treats thyroid disorders with oral dosages of I-131. ( *See,* 10 CFR 35.392 and 35.394.) The petitioner has concluded that the training and experience requirement for parenteral administrations under 10 CFR 35.396 is unnecessarily burdensome because it requires board certification in radiation oncology. The petitioner notes that 10 CFR 35.390 requires 200 hours of classroom training and laboratory experience for oral administration of I-131 and all parenteral administrations, §§ 35.392 and 35.394 require 80 hours of training for oral administration of I-131, and § 35.396 requires 80 hours for all parenteral administrations, but only applies to board-certified radiation oncologists. The petitioner also notes that in SECY-05-0020, “Final Rule: Medical Use of Byproduct Material-Recognition of Specialty Boards” (January 19, 2005), the NRC justified the 200-hour classroom training requirement in § 35.390 by stating that these physicians are authorized to prepare radioactive drugs and administer many types of radionuclides that require written directives and that pose a greater risk of exposure to radiation. The petitioner states that § 35.396 was published in the **Federal Register** on March 30, 2005 (70 FR 16335), as part of the final rule that amended training and experience requirements for administration of radiopharmaceuticals. The petitioner believes that the NRC's rationale for the training and experience requirements in § 35.396 is not known and that an opportunity for public comment period was not provided for this provision before it appeared in the final rule. The petitioner also states that preparation of Quadramet, Bexxar, and Zevalin does not require use of generators and reagent kits. These radiopharmaceuticals are usually prepared at a commercial facility and then supplied to medical facilities as a unit dosage that the petitioner believes is much less than the dosage used for oral administration of I-131 for thyroid cancer treatment. The petitioner has concluded that because the parenteral administration of Quadramet, Bexxar, and Zevalin poses no greater potential risk than oral administration of I-131, use of these drugs should be considered a medical issue, not a radiation safety issue. The petitioner believes that physicians who seek AU status for the limited authorization of parenteral administration of Quadramet, Bexxar, and Zevalin should only be subject to an 80-hour training and experience requirement, plus supervised work experience and written attestation, similar to the current requirement for oral I-131 administrations at 10 CFR 35.394. The petitioner states that, moreover, the NRC has not considered codification of new drugs that require written directives as they become available for medical use and that there is an unmet regulatory need to address the ability of physicians to qualify for medical use authorization for certain unsealed byproduct materials that are currently commercially available and for which written directives are required. The petitioner also states that under 10 CFR 35.390(b)(1)(ii)(G)(3) and

(4)and § 35.396 (d)(2)(iv), only two generic types of parenteral administrations for which written directives have been considered: Parenteral administration of any beta emitter, or photon-emitting radionuclide with a photon energy of less than 150 keV; and parenteral administrations of any other radionuclide. The petitioner states that the current training and experience requirements governing all parenteral administrations do not adequately consider the training necessary to attain AU status for Quadramet, Bexxar, and Zevalin. The petitioner recognizes that other more hazardous parenterally-administered drugs may become commercially available that require the increased training specified in §§ 35.390 and 35.396. However, the petitioner believes that radiopharmaceuticals should be subjected to training requirements according to potential radiation risk as is the case for oral administrations of I-131, rather than being lumped into a collective group, which the petitioner characterizes as being the NRC's current practice. The petitioner believes that the current requirements are burdensome and deficient in this regard and that, without regulatory relief, physicians would be discouraged from providing these FDA-approved and commercially available treatments resulting in an adverse impact on their ability to practice medicine. Under the current requirements, the petitioner believes that physicians would be required to become board-certified radiation oncologists under § 35.396 or complete 700 hours of training (including 200 hours of classroom and laboratory training) under § 35.390 to attain AU status to parenterally administer Quadramet, Bexxar, or Zevalin. The petitioner also states that to be able to conclude that parenteral administration of Quadramet, Bexxar, and Zevalin requires more than 80 hours of training, the NRC would have to assert that each of these drugs presents more potential radiation hazard than oral administration of I-131. The petitioner believes this is more of a practice of medicine issue than a radiation safety issue. The petitioner also states that the NRC would be intruding into the practice of medicine if it did not conclude that medical oncologists/hematologists who have completed 80 hours of classroom and laboratory training, appropriate work experience, and obtained written attestation could be granted AU status for these drugs. The petitioner also believes that such a prohibition would prevent physicians from administering these radiopharmaceuticals and limit patients' access to treatments for life threatening diseases. The petitioner therefore requests that the NRC recognize as adequate and sufficient the 80-hour classroom and laboratory training requirement for physicians to attain AU status to administer Quadramet, Bexxar, and Zevalin as is required for oral Na I-131 administrations to treat thyroid cancer. The petitioner states that the additional training required under §§ 35.390 and 35.396 is justified because these physicians prepare radioactive drugs and handle unsealed source material in quantities that can involve increased radiation exposure risks. However, the petitioner notes that physicians who administer parenteral doses of Quadramet, Bexxar, and Zevalin do not need to prepare radioactive drugs. The Petitioner's Conclusion The petitioner has concluded that the current 700-hour training and experience requirement (that includes a minimum of 200 hours of classroom and laboratory training) governing parenteral administrations of radiopharmaceuticals in 10 CFR part 35 with regard to administration of Quadramet, Bexxar, and Zevalin is unnecessarily burdensome. The petitioner therefore requests that the NRC recognize that 80 hours of classroom and laboratory training, supervised work experience, and a written attestation for physicians is adequate and sufficient to attain AU status for parenteral administrations of Quadramet, Bexxar, and Zevalin, all requiring written directives. The petitioner offers the following options for addressing this issue:

(1)A specific requirement should be added to 10 CFR part 35 essentially equivalent to the language in § 35.394 that governs oral administration of I-131 particularly with regard to the alternate pathway. An important language change should be made as specified in § 35.394(c)(2)(vi) to require administering dosages to patients or human research subjects that includes at least three cases involving each of these parenteral administrations.

(2)A separate requirement should be added for Quadramet, Bexxar, and Zevalin similar to the training and experience codification for administration of I-131 to allow the NRC to evaluate each substance individually so all radioactive drugs can be handled appropriately from a radiation safety perspective.

(3)10 CFR 35.396 should be revised to specify an 80-hour classroom and laboratory training period, appropriate work experience, and a written attestation to apply to the alternate pathway for any physician, not limited to board-certified radiation oncologists. Specifically, the petitioner recommends removing the current § 35.396(c) and redesignating §§ 35.396(d)(1), (d)(2), and (d)(3) as §§ 35.396(c)(1), (c)(2), and (c)(3). However, the petitioner recognizes that the Commission may not agree with this change if other more hazardous parenterally-administered radiopharmaceuticals become available, necessitating the increased training currently specified in this requirement. Dated at Rockville, Maryland, this 8th day of June, 2006. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E6-9246 Filed 6-13-06; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE248; Notice No. 23-06-03-SC] Special Conditions: Thielert Aircraft Engines GmbH, Piper PA 28-161 Cadet, Warrior II and Warrior III Series Airplanes; Diesel Cycle Engine Using Turbine

(Jet)Fuel AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed special conditions. SUMMARY: This notice proposes special conditions for the Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes. These airplanes, as modified by Thielert Aircraft Engines GmbH, will have a novel or unusual design feature(s) associated with the installation of a diesel cycle engine utilizing turbine

(jet)fuel in Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes. The Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes, currently approved under Type Certificate No. 2A13, is a four-place, low wing, fixed tricycle landing gear, conventional planform airplane. The Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes to be modified have gross weights in the range of 2325 to 2440 pounds in the normal category. The affected series of airplanes have been equipped with various gasoline reciprocating engines of 160 horsepower. Expecting industry to reintroduce diesel engine technology into the small airplane fleet, the FAA issued Policy Statement PS-ACE100-2002-004 on May 15, 2004, which identified areas of technological concern involving introduction of new technology diesel engines into small airplanes. For a more detailed summary of the FAA's development of diesel engine requirements, refer to this policy. The general areas of concern involved the power characteristics of the diesel engines, the use of turbine fuel in an airplane class that has typically been powered by gasoline fueled engines, the vibration characteristics and failure modes of diesel engines. These concerns were identified after review of the historical record of diesel engine use in aircraft and a review of the 14 CFR part 23 regulations, which identified specific regulatory areas that needed to be evaluated for applicability to diesel engine installations. These concerns are not considered universally applicable to all types of possible diesel engines and diesel engine installations. However, after review of the Thielert installation, the Thielert engine type, and the requirements applied by the Lufthart Bundesamt, and applying the provisions of the diesel policy, the FAA proposed these fuel system and engine related special conditions. Other special conditions issued in a separate notice included special conditions for HIRF and application of § 23.1309 provisions to the Full Authority Digital Engine Control (FADEC). Type Certification Basis Under the provisions of § 21.101, Thielert Aircraft Engines GmbH must show that the Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. 2A13 or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. 2A13 are as follows: The certification basis of models Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes is: Civil Air Regulations

(CAR)3 effective May 15, 1956, including Amendments 3-1 and 3-2; paragraph 3.387(d) of Amendment 3-4; paragraphs 3.304 and 3.705 of Amendment 3-7, effective May 3, 1962; FAR 23.955 and 23.959 as amended by Amendment 23-7, effective September 14, 1969; FAR 23.1557(c)(1) as amended by Amendment 23-18, effective May 2, 1977; FAR 23.1327 and 23.1547 as amended by Amendment 23-20, effective September 1, 1977; and FAR 36, effective December 1, 1969, through Amendment 36-4. Equivalent Safety Items for: Airspeed Indicator—CAR 3.757 14 CFR part 23, at Amendment level 23-51, applicable to the areas of change: 14 CFR part 23, §§ 23.1; 23.3; 23.21; 23.23; 23.25; 23.29; 23.33; 23.45; 23.49; 23.51; 23.53; 23.63; 23.65; 23.69; 23.71; 23.73; 23.77; 23.141; 23.143; 23.145; 23.151; 23.153; 23.155; 23.171; 23.173; 23.175; 23.177; 23.201; 23.221; 23.231; 23.251; 23.301; 23.303; 23.305; 23.307; 23.321; 23.335; 23.337; 23.341; 23.343; 23.361; 23.361(b)(1); 23.361(c)(3); 23.363; 23.371; 23.572; 23.573; 23.574; 23.601; 23.603; 23.605; 23.607; 23.609; 23.611; 23.613; 23.619; 23.621; 23.623; 23.625; 23.627; CAR 3.159; 23.773; 23.777; 23.777(d); 23.779; 23.779(b); 23.781; 23.831; 23.863; 23.865; 23.867; 23.901; 23.901(d)(1); 23.903; 23.905; 23.907; 23.909; 23.925; 23.929; 23.939; 23.943; 23.951; 23.951(c); 23.954; 23.955; 23.959; 23.961; 23.963; 23.965; 23.967; 23.969; 23.971; 23.973; 23.973(f); 23.975; 23.977; 23.977(a)(2) in place of 23.977(a)(1); 23.991; 23.993; 23.994; 23.995; 23.997; 23.999; 23.1011; 23.1013; 23.1015; 23.1017; 23.1019; 23.1021; 23.1023; 23.1041; 23.1043; 23.1047; 23.1061; 23.1063; 23.1091; 23.1093; 23.1103; 23.1107; 23.1121; 23.1123; 23.1141; 23.1143; 23.1145; 23.1163; 23.1165; 23.1181; 23.1182; 23.1183; 23.1191; 23.1193; 23.1301; 23.1305; 23.1305(c)(8); 23.1309; 23.1311; 23.1321; 23.1322; 23.1327; 23.1331; 23.1337; 23.1351; 23.1353; 23.1357; 23.1359; 23.1361; 23.1365; 23.1367; 23.1381; 23.1431; 23.1461; 23.1501; 23.1519; 23.1521; 23.1521(d); 23.1527; 23.1529; 23.1541; 23.1543; 23.1549; 23.1551; 23.1555; 23.1557; 23.1557(c)(1)(ii), in place of §§ 23.1557(c)(i); 23.1567; 23.1581; 23.1583; 23.1585; 23.1587 and 23.1589. Equivalent levels of safety for: Cockpit controls—23.777(d) Motion and effect of cockpit controls—23.779(b) Liquid Cooling—Installation—23.1061 Ignition switches—23.1145 The type certification basis includes exemptions, if any; equivalent level of safety findings, if any; and the special conditions adopted by this rulemaking action. In addition, if the regulations incorporated by reference do not provide adequate standards with respect to the change, the applicant must comply with certain regulations in effect on the date of application for the change. The type certification basis for the modified airplanes is as stated previously with the following modifications. If the Administrator finds that the applicable airworthiness regulations (i.e., part 23) do not contain adequate or appropriate safety standards for the Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes must comply with the 14 CFR part 21, § 21.115 noise certification requirements of 14 CFR part 36. Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes will incorporate the following novel or unusual design features: The Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes, as modified by Thielert Aircraft Engines GmbH, will incorporate an aircraft diesel engine utilizing turbine

(jet)fuel. Applicability As discussed above, these special conditions are applicable to the Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes. Should Thielert Aircraft Engines GmbH apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. 2A13 to incorporate the same novel or unusual design feature, the special conditions would apply to that model as well under the provisions of § 21.101. Conclusion This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19. Discussion The major concerns identified in developing FAA policy deal with installing the diesel engine and its vibration levels under normal operating conditions and with one cylinder inoperative, accommodating turbine fuels in airplane systems that have generally evolved based on gasoline requirements, the anticipated use of a FADEC to control the engine, and the appropriate limitations and indications for a diesel engine powered airplane. The general concerns associated with the Thielert modification are as follows: • Installation and Vibration Requirements. • Fuel and Fuel System Related Requirements. • FADEC and Electrical System Requirements. • Limitations and Indications. *Installation and Vibration Requirements* : These special conditions include requirements similar to the requirements of § 23.901(d)(1) for turbine engines. In addition to the requirements of § 23.901 applied to reciprocating engines, the applicant will be required to construct and arrange each diesel engine installation to result in vibration characteristics that do not exceed those established during the type certification of the engine; and do not exceed vibration characteristics that a previously certificated airframe structure has been approved for, unless such vibration characteristics are shown to have no effect on safety or continued airworthiness. The engine limit torque design requirements as specified in § 23.361 are also modified. An additional requirement to consider vibration levels and/or effects of an inoperative cylinder was imposed. Also, a requirement to evaluate the engine design for the possibility of, or effect of, liberating high-energy engine fragments, if a catastrophic engine failure occurs, was added. *Fuel and Fuel System Related Requirements* : Due to the use of turbine fuel, this airplane must comply with the requirements in § 23.951(c). Section 23.961 will be complied with using the turbine fuel requirements. These requirements will substantiated by flight-testing as described in Advisory Circular AC 23-8B, Flight Test Guide for Certification of Part 23 Airplanes. This special condition specifically requires testing to show compliance to § 23.961 and adds the possibility of testing non-aviation diesel fuels. To ensure fuel system compatibility and reduce the possibility of misfueling, and discounting the first clause of § 23.973(f) referring to turbine engines, the applicant will comply with § 23.973(f). Due to the use of turbine fuel, the applicant will comply with § 23.977(a)(2), and § 23.977(a)(1) will not apply. “Turbine engines” will be interpreted to mean “aircraft diesel engine” for this requirement. An additional requirement imposed is to consider the possibility of fuel freezing. Due to the use of turbine fuel, the applicant will comply with § 23.1305(c)(8). Due to the use of turbine fuel, the applicant must comply with § 23.1557(c)(1)(ii). Section 23.1557(c)(1)(ii) will not apply. “Turbine engine” is interpreted to mean “aircraft diesel engine” for this requirement. *FADEC and Electrical System Requirements* : The electrical system must comply with the following: • In case of failure of one power supply of the electrical system, there will be no significant engine power change. The electrical power supply to the FADEC must remain stable in such a failure. • The transition from the actual engine electrical network (FADEC network) to the remaining electrical system with the consumer's, avionics, communication, etcetera, should be made by a single point only. If several transitions ( *e.g.* , for redundancy reasons) are needed, then the number of the transitions must be kept as small as possible. • There must be the ability to separate the FADEC power supply (alternator) from the battery and from the remaining electrical system. • In case of loss of alternator power, the installation must guarantee that the battery will provide the power for an appropriate time after appropriate warning to the pilot. • FADEC, alternator, and battery must be interconnected in an appropriate way, so that in case of loss of battery power, the supply to the FADEC is guaranteed by the alternator. *Limitations and Indications* : Section 23.1305, paragraphs

(a)and (b)(2), will apply, except that propeller revolutions per minute

(RPM)will be displayed. Sections 23.1305, paragraphs (b)(4) and (b)(5), are deleted. Additional critical engine parameters for this installation that will be displayed include the following:

(1)Power setting, in percentage, and

(2)Fuel temperature. Due to the use of turbine fuel, the requirements for § 23.1521(d), as applicable to fuel designation for turbine engines, will apply. The Proposed Special Conditions Accordingly, the Federal Aviation Administration

(FAA)proposes the following special conditions as part of the type certification basis for Piper PA 28-161 Cadet, Warrior II and Warrior III series airplanes modified by Thielert Aircraft Engines GmbH. 1. Engine torque (Provisions similar to § 23.361, paragraphs (b)(1) and (c)(3)):

(a)For diesel engine installations, the engine mounts and supporting structure must be designed to withstand the following:

(1)A limit engine torque load imposed by sudden engine stoppage due to malfunction or structural failure. The effects of sudden engine stoppage may alternately be mitigated to an acceptable level by utilization of isolators, dampers clutches and similar provisions, so that unacceptable load levels are not imposed on the previously certificated structure.

(b)The limit engine torque to be considered under paragraph 14 CFR part 23, § 23.361(a) must be obtained by multiplying the mean torque by a factor of four for diesel cycle engines.

(1)If a factor of less than four is utilized, it must be shown that the limit torque imposed on the engine mount is consistent with the provisions of § 23.361(c), that is, it must be shown that the utilization of the factors listed in § 23.361(c)(3) will result in limit torques being imposed on the mount that are equivalent or less than those imposed by a conventional gasoline reciprocating engine. 2. Powerplant—Installation (Provisions similar to § 23.901(d)(1) for turbine engines): Considering the vibration characteristics of diesel engines, the applicant must comply with the following:

(a)Each diesel engine installation must be constructed and arranged to result in vibration characteristics that—

(1)Do not exceed those established during the type certification of the engine; and

(2)Do not exceed vibration characteristics that a previously certificated airframe structure has been approved for—

(i)Unless such vibration characteristics are shown to have no effect on safety or continued airworthiness, or

(ii)Unless mitigated to an acceptable level by utilization of isolators, dampers clutches and similar provisions, so that unacceptable vibration levels are not imposed on the previously certificated structure. 3. Powerplant—Fuel System—Fuel system with water saturated fuel (Compliance with § 23.951 requirements): Considering the fuel types used by diesel engines, the applicant must comply with the following: Each fuel system for a diesel engine must be capable of sustained operation throughout its flow and pressure range with fuel initially saturated with water at 80 °F and having 0.75cc of free water per gallon added and cooled to the most critical condition for icing likely to be encountered in operation. Methods of compliance that are acceptable for turbine engine fuel systems requirements of § 23.951(c) are also considered acceptable for this requirement. 4. Powerplant—Fuel System—Fuel system hot weather operation (Compliance with § 23.961 requirements): In place of compliance with § 23.961, the applicant must comply with the following: Each fuel system must be free from vapor lock when using fuel at its critical temperature, with respect to vapor formation, when operating the airplane in all critical operating and environmental conditions for which approval is requested. For turbine fuel, or for aircraft equipped with diesel cycle engines that use turbine or diesel type fuels, the initial temperature must be 110 °F, -0°, +5° or the maximum outside air temperature for which approval is requested, whichever is more critical. The fuel system must be in an operational configuration that will yield the most adverse, that is, conservative results. To comply with this requirement, the applicant must use the turbine fuel requirements and must substantiate these by flight-testing, as described in Advisory Circular AC 23-8B, Flight Test Guide for Certification of Part 23 Airplanes. 5. Powerplant—Fuel system—Fuel tank filler connection (Compliance with § 23.973(f) requirements): In place of compliance with § 23.973(e) and (f), the applicant must comply with the following: For airplanes that operate on turbine or diesel type fuels, the inside diameter of the fuel filler opening must be no smaller than 2.95 inches. 6. Powerplant—Fuel system—Fuel tank outlet (Compliance with § 23.977 requirements): In place of compliance with § 23.977(a)(1) the applicant will comply with § 23.977(a)(2), except “diesel” replaces “turbine.” There must be a fuel strainer for the fuel tank outlet or for the booster pump. This strainer must, for diesel engine powered airplanes, prevent the passage of any object that could restrict fuel flow or damage any fuel system component. 7. Powerplant—Powerplant Controls and Accessories—Engine ignition systems (Compliance with § 23.1165 requirements): Considering that the FADEC provides the same function as an ignition system for this diesel engine, in place of compliance to § 23.1165, the applicant will comply with the following: The electrical system must comply with the following requirements:

(a)In case of failure of one power supply of the electrical system, there will be no significant engine power change. The electrical power supply to the FADEC must remain stable in such a failure.

(b)The transition from the actual engine electrical network (FADEC network) to the remaining electrical system should be made at a single point only. If several transitions (for example, redundancy reasons) are needed, then the number of the transitions must be kept as small as possible.

(c)There must be the ability to separate the FADEC power supply (alternator) from the battery and from the remaining electrical system.

(d)In case of loss of alternator power, the installation must guarantee that the battery will provide the power for an appropriate time after appropriate warning to the pilot. This period must be at least 120 minutes.

(e)FADEC, alternator and battery must be interconnected in an appropriate way, so that in case of loss of battery power, the supply to the FADEC is guaranteed by the alternator. 8. Equipment—General—Powerplant Instruments (Compliance with § 23.1305 requirements): In place of compliance with § 23.1305, the applicant will comply with the following: The following are required powerplant instruments:

(a)A fuel quantity indicator for each fuel tank, installed in accordance with § 23.1337(b).

(b)An oil pressure indicator.

(c)An oil temperature indicator.

(d)A tachometer indicating propeller speed.

(e)A coolant temperature indicator.

(f)An indicating means for the fuel strainer or filter required by § 23.997 to indicate the occurrence of contamination of the strainer or filter before it reaches the capacity established in accordance with § 23.997(d). Alternately, no indicator is required if the engine can operate normally for a specified period with the fuel strainer exposed to the maximum fuel contamination as specified in MIL-5007D and provisions for replacing the fuel filter at this specified period (or a shorter period) are included in the maintenance schedule for the engine installation.

(g)Power setting, in percentage.

(h)Fuel temperature.

(i)Fuel flow (engine fuel consumption). 9. Operating Limitations and Information—Powerplant limitations—Fuel grade or designation (Compliance with § 23.1521(d) requirements): Instead of compliance with § 23.1521(d), the applicant must comply with the following: The minimum fuel designation (for diesel engines) must be established so that it is not less than that required for the operation of the engines within the limitations in paragraphs

(b)and

(c)of § 23.1521. 10. Markings And Placards—Miscellaneous markings and placards—Fuel, oil, and coolant filler openings (Compliance with § 23.1557(c)(1) requirements): Instead of compliance with § 23.1557(c)(1)(i), the applicant must comply with the following: Fuel filler openings must be marked at or near the filler cover with— For diesel engine-powered airplanes—

(a)The words “Jet Fuel”; and

(b)The permissible fuel designations, or references to the Airplane Flight Manual

(AFM)for permissible fuel designations.

(1)The takeoff temperature limitation must be determined by testing or analysis to define the minimum cold-soaked temperature of the fuel that the airplane can operate on.

(2)The minimum operating temperature limitation must be determined by testing to define the minimum operating temperature acceptable after takeoff (with minimum takeoff temperature established in

(1)above). 12. Powerplant Installation—Vibration levels: Vibration levels throughout the engine operating range must be evaluated and:

(1)Vibration levels *imposed on the airframe* must be less than or equivalent to those of the gasoline engine; or

(2)Any vibration level that is higher than that imposed on the airframe by the replaced gasoline engine must be considered in the modification and the effects on the technical areas covered by the following paragraphs must be investigated: 14 CFR part 23, §§ 23.251; 23.613; 23.627; CAR 3.159; 23.572; 23.573; 23.574 and 23.901. Vibration levels imposed on the airframe can be mitigated to an acceptable level by utilization of isolators, dampers clutches and similar provisions, so that unacceptable vibration levels are not imposed on the previously certificated structure. 13. Powerplant Installation—One cylinder inoperative: It must be shown by test or analysis, or by a combination of methods, that the airframe can withstand the shaking or vibratory forces imposed by the engine if a cylinder becomes inoperative. Diesel engines of conventional design typically have extremely high levels of vibration when a cylinder becomes inoperative. Data must be provided to the airframe installer/modifier so either appropriate design considerations or operating procedures, or both, can be developed to prevent airframe and propeller damage. 14. Powerplant Installation—High Energy Engine Fragments: It may be possible for diesel engine cylinders (or portions thereof) to fail and physically separate from the engine at high velocity (due to the high internal pressures). This failure mode will be considered possible in engine designs with removable cylinders or other non-integral block designs. The following is required:

(1)It must be shown that the engine construction type (massive or integral block with non-removable cylinders) is inherently resistant to liberating high energy fragments in the event of a catastrophic engine failure; or,

(2)It must be shown by the design of the engine, that engine cylinders, other engine components or portions thereof (fragments) cannot be shed or blown off of the engine in the event of a catastrophic engine failure; or

(3)It must be shown that all possible liberated engine parts or components do not have adequate energy to penetrate engine cowlings; or

(4)Assuming infinite fragment energy, and analyzing the trajectory of the probable fragments and components, any hazard due to liberated engine parts or components will be minimized and the possibility of crew injury is eliminated. Minimization must be considered during initial design and not presented as an analysis after design completion. Issued in Kansas City, Missouri on June 7, 2006. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-9242 Filed 6-13-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. CE245; Notice No. 23-06-03-SC] Special Conditions: Aero Propulsion, Inc., Piper Model PA28-236; Diesel Cycle Engine Using Turbine

(SMA)Model SR305-230 Aircraft Diesel Engine (ADE). This airplane will have a novel or unusual design feature(s) associated with the installation of a diesel cycle engine utilizing turbine

(jet)fuel. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for installation of this new technology engine. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. DATES: Comments must be received on or before July 14, 2006. ADDRESSES: Comments on this proposal may be mailed in duplicate to: Federal Aviation Administration, Regional Counsel, ACE-7, Attention: Rules Docket, Docket No. CE245, 901 Locust, Room 506, Kansas City, Missouri 64106, or delivered in duplicate to the Regional Counsel at the above address. Comments must be marked: CE245. Comments may be inspected in the Rules Docket weekdays, except Federal holidays, between 7:30 a.m. and 4 p.m. FOR FURTHER INFORMATION CONTACT: Peter L. Rouse, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-111, 901 Locust, Kansas City, Missouri, 816-329-4135, fax 816-329-4090. SUPPLEMENTARY INFORMATION: Comments Invited Interested persons are invited to participate in the making of these proposed special conditions by submitting such written data, views, or arguments, as they may desire. Communications should identify the regulatory docket or notice number and be submitted in duplicate to the address specified above. All communications received on or before the closing date for comments will be considered by the Administrator. The proposals described in this notice may be changed in light of the comments received. All comments received will be available in the Rules Docket for examination by interested persons, both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerning this rulemaking will be filed in the docket. Persons wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must include with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to CE245.” The postcard will be date stamped and returned to the commenter. Background On August 20, 2003, Aero Propulsion, Inc., applied for a supplemental type certificate for Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230. The airplane is powered by a SMA Model SR305-230 ADE, type certificated in the United States, type certificate number E00067EN. Before the reintroduction of diesel engine technology into the small airplane fleet, the FAA issued Policy Statement PS-ACE100-2002-004 on May 15, 2004, which identified areas of technological concern involving introduction of new technology diesel engines into small airplanes. For a more detailed summary of the FAA's development of diesel engine requirements, refer to this policy. The general areas of concern involved the power characteristics of the diesel engines, the use of turbine fuel in an airplane class that has typically been powered by gasoline fueled engines, the vibration characteristics and failure modes of diesel engines. These concerns were identified after review of the historical record of diesel engine use in aircraft and a review of the 14 CFR part 23 regulations, which identified specific regulatory areas that needed to be evaluated for applicability to diesel engine installations. These concerns are not considered universally applicable to all types of possible diesel engines and diesel engine installations. However, after review of the SMA installation, and applying the provisions of the diesel policy, the FAA proposes these fuel system and engine related special conditions. Other special conditions issued in a separate notice include special conditions for HIRF and application of § 23.1309 provisions to the Full Authority Digital Engine Control (FADEC). Type Certification Basis Under the provisions of 14 CFR 21.101, Aero Propulsion, Inc., must show that the Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230 ADE meet the applicable provisions of 14 CFR part 23 and Civil Air Regulations

(CAR)3 thereto. In addition, the certification basis includes special conditions and equivalent levels of safety for the following: Special Conditions: • Engine torque (Provisions similar to § 23.361, paragraphs (b)(1) and (c)(3)). • Flutter (Compliance with § 23.629, paragraphs (e)(1) and (2)). • Powerplant—Installation (Provisions similar to § 23.901(d)(1) for turbine engines). • Powerplant—Fuel System—Fuel system with water saturated fuel (Compliance with § 23.951 requirements). • Powerplant—Fuel System—Fuel system hot weather operation (Compliance with § 23.961 requirements). • Powerplant—Fuel system—Fuel tank filler connection (Compliance with § 23.973(f) requirements). • Powerplant—Fuel system—Fuel tank outlet (Compliance with § 23.977 requirements). • Equipment—General—Powerplant Instruments (Compliance with § 23.1305 requirements). • Operating Limitations and Information—Powerplant limitations—Fuel grade or designation (Compliance with § 23.1521(d) requirements). • Markings and Placards—Miscellaneous markings and placards—Fuel, oil, and coolant filler openings (Compliance with § 23.1557(c)(1) requirements). • Powerplant—Fuel system—Fuel-Freezing. • Powerplant Installation—Vibration levels. • Powerplant Installation—One cylinder inoperative. • Powerplant Installation—High Energy Engine Fragments. *Equivalent levels of safety for:* • Cockpit controls—23.777(d). • Motion and effect of cockpit controls—23.779(b). • Ignition switches—23.1145. The type certification basis includes exemptions, if any; equivalent level of safety findings, if any; and the special conditions adopted by this rulemaking action. In addition, if the regulations incorporated by reference do not provide adequate standards with respect to the change, the applicant must comply with certain regulations in effect on the date of application for the change. The type certification basis for the modified airplanes is as stated previously with the following modifications: If the Administrator finds that the applicable airworthiness regulations (i.e., part 23) do not contain adequate or appropriate safety standards for the Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16. In addition to the applicable airworthiness regulations and special conditions, the Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230 ADE must comply with 14 CFR 21.115 noise certification requirements of 14 CFR part 36. Special conditions, as appropriate, as defined in § 11.19, are issued in accordance with § 11.38, and become part of the type certification basis in accordance with § 21.101. Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101. Novel or Unusual Design Features The Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230 ADE will incorporate the following novel or unusual design features: The Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230 ADE will require the use of turbine

(jet)fuel. Applicability As discussed above, these special conditions are applicable to the Piper Model PA28-236 airplanes with the installation of an SMA Model SR305-230 ADE. Conclusion This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability, and it affects only the applicant who applied to the FAA for approval of these features on the airplane. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. Citation The authority citation for these special conditions is as follows: Authority: 49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.101; and 14 CFR 11.38 and 11.19. Discussion The major concerns identified in the development of FAA policy deal with several things. These include the installation of the diesel engine and its vibration levels under normal operating conditions and with one cylinder inoperative, the accommodation of turbine fuels in airplane systems that have generally evolved based on gasoline requirements, the anticipated use of a FADEC to control the engine, and the appropriate limitations and indications for a diesel engine powered airplane. The general concerns associated with the aircraft diesel engine installation are as follows: Installation and Vibration Requirements. Fuel and Fuel System Related Requirements. FADEC and Electrical System Requirements. Limitations and Indications. *Installation and Vibration Requirements:* These special conditions include requirements similar to the requirements of § 23.901(d)(1) for turbine engines. In addition to the requirements of § 23.901 applied to reciprocating engines, the applicant will be required to construct and arrange each diesel engine installation according to certain restrictions. These include arranging the installation so vibration characteristics do not exceed those established during the type certification of the engine. The engine installation will also be required to not exceed vibration characteristics that a previously certificated airframe structure has been approved for, unless such vibration characteristics are shown to have no effect on safety or continued airworthiness. The engine limit torque design requirements as specified in § 23.361 are also modified. An additional requirement to consider vibration levels and/or effects of an inoperative cylinder was imposed. Also, a requirement was added to evaluate the engine design for the possibility of, or effect of, liberating high-energy engine fragments, in the event of a catastrophic engine failure. *Fuel and Fuel System Related Requirements:* Due to the use of turbine fuel, this airplane must comply with the requirements in § 23.951(c). Section 23.961 will be complied with using the turbine fuel requirements. These requirements will be substantiated by flight-tests as described in Advisory Circular AC 23-8B, Flight Test Guide for Certification of Part 23 Airplanes. This special condition specifically requires testing to show compliance to § 23.961 and adds the possibility of testing non-aviation diesel fuels. To ensure fuel system compatibility and reduce the possibility of misfueling, and discounting the first clause of § 23.973(f) referring to turbine engines, the applicant will comply with § 23.973(f). Due to the use of turbine fuel, the applicant will comply with § 23.977(a)(2), and § 23.977(a)(1) will not apply. “Turbine engines” will be interpreted to mean “aircraft diesel engine” for this requirement. An additional requirement of the possibility of fuel freezing was imposed. Due to the use of turbine fuel, the applicant will comply with § 23.1305(c)(8). Due to the use of turbine fuel, the applicant must comply with § 23.1557(c)(1)(ii). Section 23.1557(c)(1)(i) will not apply. “Turbine engine” is interpreted to mean “aircraft diesel engine” for this requirement. *Limitations and Indications:* Critical engine parameters for this installation that will be displayed include the following:

(1)Fuel temperature. Due to the use of turbine fuel, the requirements for § 23.1521(d), as applicable to fuel designation for turbine engines, will apply. The Proposed Special Conditions Accordingly, the Federal Aviation Administration

(FAA)proposes the following special conditions as part of the type certification basis for Piper Model PA28-236 airplanes with an SMA SR305-230 ADE installed. 1. Engine torque (Provisions similar to § 23.361, paragraphs (b)(1) and (c)(3)):

(a)For diesel engine installations, the engine mounts and supporting structure must be designed to withstand the following:

(b)The limit engine torque obtained in CAR 3.195(a)(1) and (a)(2) or 14 CFR 23.361(a)(1) and (a)(2) must be obtained by multiplying the mean torque by a factor of four in lieu of the factor of two required by CAR 3.195(b) and 14 CFR 23.361(c)(3). 2. Flutter—(Compliance with the requirements of § 23.629 (e)(1) and (e)(2) requirements): The flutter evaluation of the airplane done in accordance with 14 CFR 23.629 must include—

(a)Whirl mode degree of freedom which takes into account the stability of the plane of rotation of the propeller and significant elastic, inertial, and aerodynamic forces, and

(b)Propeller, engine, engine mount and airplane structure stiffness and damping variations appropriate to the particular configuration, and

(c)The flutter investigation will include showing the airplane is free from flutter with one cylinder inoperative. 3. Powerplant—Installation (Provisions similar to § 23.901(d)(1) for turbine engines): Considering the vibration characteristics of diesel engines, the applicant must comply with the following:

(a)Each diesel engine installation must be constructed and arranged to result in vibration characteristics that—

(1)Do not exceed those established during the type certification of the engine; and

(2)Do not exceed vibration characteristics that a previously certificated airframe structure has been approved for —

(i)Unless such vibration characteristics are shown to have no effect on safety or continued airworthiness, or

(ii)Unless mitigated to an acceptable level by utilization of isolators, dampers clutches and similar provisions, so that unacceptable vibration levels are not imposed on the previously certificated structure. 4. Powerplant—Fuel System—Fuel system with water saturated fuel (Compliance with § 23.951 requirements): Considering the fuel types used by diesel engines, the applicant must comply with the following: Each fuel system for a diesel engine must be capable of sustained operation throughout its flow and pressure range with fuel initially saturated with water at 80 °F and having 0.75cc of free water per gallon added and cooled to the most critical condition for icing likely to be encountered in operation. Methods of compliance that are acceptable for turbine engine fuel systems requirements of § 23.951(c) are also considered acceptable for this requirement. 5. Powerplant—Fuel System—Fuel flow (Compliance with § 23.955(c) requirements): In lieu of 14 CFR 23.955(c), engine fuel system must provide at least 100 percent of the fuel flow required by the engine, or the fuel flow required to prevent engine damage, if that flow is greater than 100 percent. The fuel flow rate must be available to the engine under each intended operating condition and maneuver. The conditions may be simulated in a suitable mockup. This flow must be shown in the most adverse fuel feed condition with respect to altitudes, attitudes, and any other condition that is expected in operation. 6. Powerplant—Fuel System—Fuel system hot weather operation (Compliance with § 23.961 requirements): In place of compliance with § 23.961, the applicant must comply with the following: Each fuel system must be free from vapor lock when using fuel at its critical temperature, with respect to vapor formation, when operating the airplane in all critical operating and environmental conditions for which approval is requested. For turbine fuel, or for aircraft equipped with diesel cycle engines that use turbine or diesel type fuels, the initial temperature must be 110 °F, −0°, +5° or the maximum outside air temperature for which approval is requested, whichever is more critical. The fuel system must be in an operational configuration that will yield the most adverse, that is, conservative results. To comply with this requirement, the applicant must use the turbine fuel requirements and must substantiate these by flight-testing, as described in Advisory Circular AC 23-8B, Flight Test Guide for Certification of Part 23 Airplanes. 7. Powerplant—Fuel system—Fuel tank filler connection (Compliance with § 23.973(f) requirements): In place of compliance with § 23.973(e) and (f), the applicant must comply with the following: For airplanes that operate on turbine or diesel type fuels, the inside diameter of the fuel filler opening must be no smaller than 2.95 inches. 8. Powerplant—Fuel system—Fuel tank outlet (Compliance with § 23.977 requirements): In place of compliance with § 23.977(a)(1) and (a)(2), the applicant will comply with the following: There must be a fuel strainer for the fuel tank outlet or for the booster pump. This strainer must, for diesel engine powered airplanes, prevent the passage of any object that could restrict fuel flow or damage any fuel system component. 9. Equipment—General—Powerplant Instruments (Compliance with § 23.1305): In addition to compliance with § 23.1305, the applicant will comply with the following: The following are required in addition to the powerplant instruments required in § 23.1305:

(a)A fuel temperature indictor.

(b)An outside air temperature

(OAT)indicator.

(c)An indicating means for the fuel strainer or filter required by § 23.997 to indicate the occurrence of contamination of the strainer or filter before it reaches the capacity established in accordance with § 23.997(d). Alternately, no indicator is required if certain requirements are met. First, the engine can operate normally for a specified period with the fuel strainer exposed to the maximum fuel contamination as specified in MIL-5007D. Second, provisions for replacing the fuel filter at this specified period (or a shorter period) are included in the maintenance schedule for the engine installation. 10. Operating Limitations and Information—Powerplant limitations—Fuel grade or designation (Compliance with § 23.1521 requirements): All engine parameters that have limits specified by the engine manufacturer for takeoff or continuous operation must be investigated to ensure they remain within those limits throughout the expected flight and ground envelopes ( *e.g.* maximum and minimum fuel temperatures, ambient temperatures, as applicable, etc.). This is in addition to the existing requirements specified by 14 CFR 23.1521

(b)and (c). If any of those limits can be exceeded, there must be continuous indication to the flight crew of the status of that parameter with appropriate limitation markings. Instead of compliance with § 23.1521(d), the applicant must comply with the following: The minimum fuel designation (for diesel engines) must be established so that it is not less than that required for the operation of the engines within the limitations in paragraphs

(b)and

(c)of § 23.1521. 11. Markings and Placards—Miscellaneous markings and placards—Fuel, oil, and coolant filler openings (Compliance with § 23.1557(c)(1) requirements): Instead of compliance with § 23.1557(c)(1), the applicant must comply with the following: Fuel filler openings must be marked at or near the filler cover with-For diesel engine-powered airplanes—

(a)The words “Jet Fuel”; and

(b)The permissible fuel designations, or references to the Airplane Flight Manual

(AFM)for permissible fuel designations.

(c)A warning placard or note that states the following or similar: “Warning—this airplane equipped with an aircraft diesel engine, service with approved fuels only.” The colors of this warning placard should be black and white. 12. Powerplant—Fuel system—Fuel-Freezing: If the fuel in the tanks cannot be shown to flow suitably under all possible temperature conditions, then fuel temperature limitations are required. These will be considered as part of the essential operating parameters for the aircraft and must be limitations. A minimum takeoff temperature limitation will be determined by testing to establish the minimum cold-soaked temperature at which the airplane can operate. The minimum operating temperature will be determined by testing to establish the minimum operating temperature acceptable after takeoff from the minimum takeoff temperature. If low temperature limits are not established by testing, then a minimum takeoff and operating fuel temperature limit of 5 °F above the gelling temperature of Jet A will be imposed along with a display in the cockpit of the fuel temperature. Fuel temperature sensors will be located in the coldest part of the tank if applicable. 13. Powerplant Installation—Vibration levels: Vibration levels throughout the engine operating range must be evaluated and:

(1)Vibration levels *imposed on the airframe* must be less than or equivalent to those of the gasoline engine; or

(2)Any vibration level that is higher than that imposed on the airframe by the replaced gasoline engine must be considered in the modification and the effects on the technical areas covered by the following paragraphs must be investigated: 14 CFR part 23, §§ 23.251; 23.613; 23.627; 23.629 (or CAR 3.159, as applicable to various models); 23.572; 23.573; 23.574 and 23.901. Vibration levels imposed on the airframe can be mitigated to an acceptable level by utilization of isolators, dampers clutches and similar provisions, so that unacceptable vibration levels are not imposed on the previously certificated structure. 14. Powerplant Installation—One cylinder inoperative: It must be shown by test or analysis, or by a combination of methods, that the airframe can withstand the shaking or vibratory forces imposed by the engine if a cylinder becomes inoperative. Diesel engines of conventional design typically have extremely high levels of vibration when a cylinder becomes inoperative. No unsafe condition will exist in the case of an inoperative cylinder before the engine can be shut down. The resistance of the airframe structure, propeller, and engine mount to shaking moment and vibration damage must be investigated. It must be shown by test or analysis, or by a combination of methods, that shaking and vibration damage from the engine with an inoperative cylinder will not cause a catastrophic airframe, propeller, or engine mount failure. 15. Powerplant Installation—High Energy Engine Fragments: It may be possible for diesel engine cylinders (or portions thereof) to fail and physically separate from the engine at high velocity (due to the high internal pressures). This failure mode will be considered possible in engine designs with removable cylinders or other non-integral block designs. The following is required:

(1)It must be shown by the design of the engine, that engine cylinders, other engine components or portions thereof (fragments) cannot be shed or blown off of the engine in the event of a catastrophic engine failure; or

(2)It must be shown that all possible liberated engine parts or components do not have adequate energy to penetrate engine cowlings; or

(3)Assuming infinite fragment energy, and analyzing the trajectory of the probable fragments and components, any hazard due to liberated engine parts or components will be minimized and the possibility of crew injury is eliminated. Minimization must be considered during initial design and not presented as an analysis after design completion. Issued in Kansas City, Missouri, on June 7, 2006. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-9227 Filed 6-13-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2006-24781; Airspace Docket No. 06-AWP-8] Proposed Modification of Class E Airspace; Half Moon Bay, CA AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This notice proposes to modify the Class E airspace area of Half Moon Bay, CA. The establishment of an Area Navigation

(RNAV)Global Positioning System

(GPS)Z Instrument Approach Procedures

(IAP)to Runway

(RWY)30 at Half Moon Bay Airport, Half Moon Bay, CA has made this proposal necessary. Additional controlled airspace extending upward from 700 feet or more above the surface of the earth is needed to contain aircraft executing the RNAV

(GPS)Z IAP to RWY 30 at Half Moon Bay Airport. The intended effect of this proposal is to provide adequate controlled airspace for Instrument Flight Rules

(IFR)operations at Half Moon Bay Airport, Half Moon Bay, CA. DATES: Comments must be received on or before July 31, 2006. ADDRESSES: Send comments on this proposal to the Docket Management System, U.S. Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify the docket number FAA-2006-24891/Airspace Docket No. 06-AWP-8 at the beginning of your comments. You may also submit comments on the Internet at *http://dms.dot.gov.* You may review the public docket containing the proposal, any comments received, and any final dispositions in person in the Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527) is on the plaza level of the Department of Transportation NASSIF Building at the above address. An informal docket may also be examined during normal business hours at the Office of the Regional Western Terminal Operations, Federal Aviation Administration, at 15000 Aviation Boulevard, Lawndale, California 90261, telephone number

(310)725-6502. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with the comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2006-24781/Airspace Docket No. 06-AWP-8.” The postcard will be date/time stamped and returned to the commenter. All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRM's An electronic copy of this document may be downloaded through the Internet at *http://dms.dot.gov.* Recently published rulemaking documents can also be accessed through the FAA's Web page at *http://www.faa.gov* or the Superintendent of Document's Web page at *http://www.access.gpo.gov/nara.* Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling

(202)267-8783. Communications must identify both document numbers for this notice. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,

(202)267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedures. The Proposal The FAA is considering an amendment to 14 CFR part 71 by modifying the Class E airspace area at Half Moon Bay Airport, Half Moon Bay, CA. The establishment of a RNAV

(GPS)ZIAP to RWY 30 at Half Moon Bay Airport has made this proposal necessary. Additional controlled airspace extending upward from 700 feet above the surface is needed to contain aircraft executing the RNAV

(GPS)ZIAP to RWY 30 at Half Moon Bay Airport has made this proposal necessary. The intended effect of this proposal is to provide adequate controlled airspace for aircraft executing the RNAV

(GPS)ZIAP to RWY 30, Half Moon Bay Airport, CA. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9N dated September 1, 2005, and effective September 15, 2005, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in this Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation—(1) Is no a “significant regulatory action” under Executive Order 12866;

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

(3)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). Adoption of the Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of the Federal Aviation Administration Order 7400.9N, Airspace Designations and Reporting Points, dated September 1, 2005, and effective, September 15, 2005, is amended as follows: Paragraph 6005 Class E airspace areas extending upward from 700 feet or more above the surface of the earth. AWP CA E5 Half Moon Bay, CA [Amended] Half Moon Bay Airport (Lat. 37°30′48″ N, long. 122°30′04″ W) That airspace extending upward from 700 feet above the surface, bounded on the north by lat. 37°35′00″ N, on the east by long. 122° 14′00″ W, on the south by lat. 37°18′00″ N, on the west by long. 122°35′04″ W. Issued in Los Angeles, California, on May 25, 2006. John Clancy, Area Director, Western Terminal Operations. [FR Doc. 06-5366 Filed 6-13-06; 8:45 am]

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