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Code · REGISTER · 2006-08-09 · Federal Communications Commission · Proposed Rules

Proposed Rules. Final rule; denial of petition for reconsideration

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BILLING CODE 6712-01-M FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1465] Radio Broadcasting Services; Hemet, California AGENCY: Federal Communications Commission. ACTION: Final rule; denial of petition for reconsideration. SUMMARY: This document denies two Petitions for Reconsideration filed by Southern California Public Radio and Maranatha Ministries of Hemet directed to the staff letters dated March 18, 2004, returning their Petitions for Rule Making requesting the reservation of vacant FM Channel 273A at Hemet, California for noncommercial educational use. With this action, the proceeding is terminated. FOR FURTHER INFORMATION CONTACT: Rolanda F. Smith, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Memorandum Opinion and Order,* adopted July 26, 2006, and released July 28, 2006. The full text of this decision is available for inspection and copying during normal business hours in the FCC Reference Information Center at Portals ll, CY-A257, 445 12th Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *http://www.BCPIWEB.com.* The Commission will not send a copy of this *Memorandum Opinion and Order* pursuant to the Congressional Review Act, *see* 5 U.S.C. 801(a)(1)(A), because the aforementioned petition for reconsideration was denied. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-12995 Filed 8-8-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1484; MB Docket No. 05-184] Radio Broadcasting Services; Aspen and Leadville, CO AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: The Audio Division, on its on motion, deletes Channel 228A at Leadville, Colorado to resolve existing distance spacing conflicts. It is Commission policy to refrain from maintaining an allotment in instances were there are no *bona fide* expressions of interest. DATES: Effective September 5, 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. 05-184, adopted July 19, 2006, and released July 21, 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, 20554, 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). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. Part 73 of the Code of Federal Regulations is amended 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 Colorado, is amended by removing Leadville, Channel 228A. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-12855 Filed 8-8-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 06-1487; MB Docket No. 05-305; RM-11137; RM-11248] Radio Broadcasting Services; Lometa and Richland Springs, TX AGENCY: Federal Communications Commission. ACTION: Final rule. SUMMARY: At the request of Charles Crawford, the Audio Division allots Channel 253A at Lometa, Texas, as that community's second local FM transmission service. To accommodate the Lometa allotment, Channel 235A is substituted for vacant Channel 252A at Richland Springs, Texas. Channel 253A is allotted at Lometa with a site restriction of 11.7 kilometers (7.3 miles) northwest of the community at coordinates 31-18-45 NL and 98-26-45 WL. Channel 235A is substituted for vacant Channel 252A at Richland Springs, at Petitioner's requested site 9.4 kilometers (5.8 miles) southwest of the community at coordinates 31-12-30 NL and 99-00-45 WL. A filing window period for Channel 253A at Lometa will not be opened at this time. Instead, the issue of opening this allotment for auction will be addressed by the Commission in a subsequent Order. DATES: Effective September 5, 2006. ADDRESSES: Secretary, Federal Communications Commission, 445 Twelfth Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Victoria M. McCauley, Media Bureau,
(202)418-2180. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's *Report and Order* , MB Docket No. 05-305, adopted July 19, 2006, and released July 21, 2006. At the request of Charles Crawford, the Audio Division allots Channel 253A at Lometa, Texas, as that community's second local FM transmission service. To accommodate the Lometa allotment, Channel 235A is substituted for vacant Channel 252A at Richland Springs, Texas. 70 FR 70777 (November 23, 2005). The full text of this Commission decision is available for inspection and copying during regular business hours at the FCC's Reference Information Center, Portals II, 445 Twelfth Street, SW., Room CY-A257, 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). List of Subjects in 47 CFR Part 73 Radio, Radio broadcasting. As stated 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 Texas, is amended by adding Channel 253A at Lometa and by removing Channel 252A and by adding Channel 235A at Richland Springs. Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E6-12853 Filed 8-8-06; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 572 [Docket Number NHTSA-2006-25258] Denial of Petition Regarding 49 CFR Part 572, Subpart O, Hybrid III Fifth Percentile Small Adult Female Crash Test Dummy AGENCY: National Highway Traffic Safety Administration (NHTSA), DOT. ACTION: Denial of petition for rulemaking. SUMMARY: This document denies a petition submitted by First Technology Safety Systems
(FTSS)on December 30, 2002. The petition asked the agency to revise drawing dimensions for the Hybrid III 5th Female (HIII-5F) chest jacket to reflect the physical part manufactured by FTSS. FTSS did not provide any data showing that these slight dimensional differences would affect the dummy's performance, nor did FTSS provide any justification for changing NHTSA's drawing specifications in CFR Section 49, Part 572 Subpart O drawings to FTSS's suggested specifications. Revising the Agency's drawing specifications to FTSS's suggested specifications appears to provide little to no benefit. Furthermore, FTSS did not claim they are unable to meet NHTSA's current drawing specifications. Accordingly, the agency finds no basis to revise the drawings as requested by FTSS. FOR FURTHER INFORMATION CONTACT: For technical issues: Mr. Sean Doyle, NHTSA Office of Crashworthiness Standards. Telephone:
(202)366-1740. Facsimile:
(202)493-2739 For legal issues: Mr. J. Edward Glancy, NHTSA Office of the Chief Counsel. Telephone:
(202)366-2992. Facsimile:
(202)366-3820. Both officials can be reached by mail at the National Highway Traffic Safety Administration, 400 Seventh Street, SW., Washington, DC 20590. Issues Raised in the Petition FTSS, a manufacturer of crash test dummies, petitioned NHTSA to amend the specifications of CFR Section 49, Part 572, Subpart O, “Hybrid III Fifth Percentile Small Adult Female Crash Test Dummy,” to correct claimed specification errors on two chest jacket drawings in the NHTSA drawing package. The drawings were published in support of the amended CFR Section 49 Part 572 on March 1, 2000 (65 FR 10968), which added the Hybrid III fifth percentile (HIII-5F) dummy to Part 572. Specifically, FTSS petitioned for “dimensional corrections to drawing number 880105-355-E, Sheets 1 and 2” in order to accurately reflect the physical part. FTSS states that “during the development phase of the HIII-5F dummy (about 1990), there was some dissatisfaction with the routing of the shoulder belt over the chest flesh and particularly the relationship of the belt and the breast representations.” FTSS made a manufacturing decision at that time to “lower the breasts for improved belt routing, and the molds were modified accordingly.” However, FTSS did not inform NHTSA of their decision to modify the breast location, and therefore NHTSA did not reflect this change during the Part 572 rulemaking. Dummies manufactured by FTSS since that time are inconsistent with the drawings in the CFR Section 49, Part 572 Subpart O for the HIII-5F dummy. According to FTSS, they have manufactured and delivered over 387 HIII-5F chest flesh assemblies as part of a whole dummy or as replacement parts since the HIII-5F dummy's introduction. FTSS has used the same molds for the manufacture of all the chest flesh assemblies since the dummy's introduction, and they claim that all manufactured chest flesh assemblies are geometrically identical. Analysis of Petition FTSS did not provide any data in their petition showing that these slight height differences in the breast location would affect the dummy's impact performance, but rather stated that the performance *may* change. Nevertheless, NHTSA performed a number of comparative tests between the FTSS's chest flesh assembly and Denton's chest flesh assembly, which follows the specified drawing dimensions. This testing was done to better evaluate FTSS's claim that the dimensional differences between NHTSA's drawings and FTSS's chest flesh assembly “could result in a change in the performance of the dummy.” NHTSA also thoroughly reviewed prior agency testing done with both FTSS's and Denton's chest flesh assemblies. The agency records did not find any instances where the petitioned dimensional differences in the breast height location had any significant effects on the HIII-5F dummy's performance as long as the belt restraints were properly positioned as per FMVSS No. 208 (the shoulder belt is allowed to self-position on the torso). Similar conclusions were reached by Transport Canada, which found that when the shoulder belt is allowed to lie diagonally across the chest without human guidance, as required by FMVSS No. 208, the FTSS and Denton chest flesh assemblies perform statistically the same. It is debatable whether or not FTSS's dummy improves belt routing, but either way, the Agency considers this information insufficient justification for changing NHTSA's drawing specifications. The Agency must also consider the entire dummy industry and recognizing that there are multiple dummy manufacturers that have been producing the HIII-5F for a significant period of time and continue to produce them, the agency must weigh the benefit of changing a drawing against the adverse impact the change would have on other manufacturers. In this case, revising the Agency's drawing specifications to FTSS's suggested dimensions appears to provide little to no benefit while the adverse impact on other manufacturers could be significant. Consequently, the agency finds no basis to revise the drawings as requested by FTSS. Conclusion For the reasons discussed above, NHTSA is denying FTSS's petition for dimensional changes to drawing number 880105-355-E, sheets 1 and 2 of CFR Section 49, Part 572, Subpart O. Authority: 49 U.S.C. 30162; delegations of authority at 49 CFR 1.50 and 49 CFR 501.8. Issued on: August 3, 2006. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E6-12975 Filed 8-8-06; 8:45 am] BILLING CODE 4910-59-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 622 and 635 [Docket No. 060425111-6205-02; I.D. 041906B] RIN 0648-AN09 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 18A AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to implement Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Amendment 18A) prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule prohibits vessels from retaining reef fish caught under the recreational size and bag/possession limits when commercial quantities of Gulf reef fish are on board; adjusts the number of persons allowed on board when a vessel with both commercial and charter vessel/headboat reef fish permits and a U.S. Coast Guard
(USCG)Certificate of Inspection
(COI)is fishing commercially; prohibits use of Gulf reef fish, except sand perch or dwarf sand perch, as bait in any commercial or recreational fishery in the exclusive economic zone
(EEZ)of the Gulf of Mexico, with a limited exception for crustacean trap fisheries; requires a NMFS-approved vessel monitoring system
(VMS)on board vessels with Federal commercial permits for Gulf reef fish, including charter vessels/headboats with such commercial permits; and requires owners and operators of vessels with Federal commercial or charter vessel/headboat permits for Gulf reef fish to comply with sea turtle and smalltooth sawfish release protocols, possess on board specific gear to ensure proper release of such species, and comply with guidelines for proper care and release of incidentally caught sawfish and sea turtles. This final rule also requires annual permit application rather than application every 2 years (biennial). In addition, Amendment 18A revises the total allowable catch
(TAC)framework procedure to reflect current practices and terminology. The intended effects of this final rule are to improve enforceability and monitoring in the reef fish fishery in the Gulf of Mexico and to reduce mortality of incidentally caught sea turtles and smalltooth sawfish. Finally, NMFS informs the public of approval by the Office of Management and Budget
(OMB)of the collection-of-information requirements contained in this final rule and publishes the OMB control numbers for those collections. DATES: This final rule is effective September 8, 2006, except for the amendments to §§ 622.4 (m)(1) and 622.9, which are effective December 7, 2006, and §§ 622.4(h)(1) and 635.4(m)(1), which are effective September 1, 2006. ADDRESSES: Copies of the final regulatory flexibility analysis
(FRFA)may be obtained from Peter Hood, NMFS, Southeast Regional Office, 263 13 th Avenue South, St. Petersburg, FL 33701; telephone 727-824-5305; fax 727-824-5308; email *Peter.Hood@noaa.gov* . Comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this final rule may be submitted in writing to Jason Rueter at the Southeast Regional Office address (above) and to David Rostker, Office of Management and Budget (OMB), by e-mail at *David_Rostker@omb.eop.gov* , or by fax to 202-395-7285. FOR FURTHER INFORMATION CONTACT: Peter Hood, telephone 727-824-5305; fax 727-824-5308; e-mail *Peter.Hood@noaa.gov* . SUPPLEMENTARY INFORMATION: The reef fish fishery is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico
(FMP)that was prepared by the Council. The FMP was approved by NMFS and implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. On April 26, 2006, NMFS published a notice of availability of Amendment 18A and requested public comment (71 FR 24635). On May 18, 2006, NMFS published the proposed rule to implement Amendment 18A and requested public comment on the proposed rule (71 FR 28842). NMFS approved Amendment 18A on July 24, 2006. The rationale for the measures in Amendment 18A is provided in the amendment and in the preamble to the proposed rule and is not repeated here. Comments and Responses Following is a summary of comments received on Amendment 18A and the associated proposed rule along with NMFS' responses. A total of 15 comments were received from individuals and organizations. *Comment 1:* Not allowing a commercial vessel to retain reef fish species caught under recreational size and bag limits when the vessel has commercial harvests of any reef fish species aboard will do little to help stocks recover. *Response:* The primary purpose of this management measure is to improve enforceability of the prohibition on sale of reef fish caught under recreational bag limits. Prohibiting bag limits of reef fish on commercial vessels makes it more difficult for fish caught under a bag limit from entering the market through commercial vessel landings. In addition, this measure resolves confusion that occurs when a commercial season for a species is closed while the recreational season is still open. For example, during the February 15 to March 15 commercial closed season on red grouper, black grouper, and gag, vessels with a commercial reef fish permit are prohibited from possessing the recreational bag limits of those species (unless the vessel also has a charter permit and is operating as a charter vessel). However, in other instances, commercial reef fish vessels can retain a recreational bag limit of grouper after the commercial grouper quota is met and the commercial fishery is closed. Thus, it can be difficult for a commercial fisherman to determine when a bag limit can be retained. *Comment 2:* To reduce confusion, rather than prohibiting commercial fishermen from retaining reef fish bag limits, allow commercial fishermen to retain one bag limit for each crew member regardless of reef fish species so long as the recreational fishery is open. *Response:* While the measure proposed by the commenter would reduce confusion with respect to bag limits, it would not fulfill the primary purpose of this measure, which is to improve the enforceability of the provision to prohibit the sale of reef fish caught under the recreational bag limit. It should be noted that the proposed measure does not prohibit commercial fishermen from retaining fish from their commercial catch for personal use. Under current regulations, a commercial reef fish permit allows a vessel to exceed the bag limit for managed reef fish species within certain area, season, trip, and size limits. There is no obligation to sell what is harvested. *Comment 3:* Not allowing a commercial vessel to retain reef fish species caught under recreational size and bag limits when the vessel has commercial harvests of any reef fish species aboard limits the ability of a commercial vessel to be profitable, while charter reef fish vessels can reduce the rate for charters if, after filling bag limits, they continue to fish using their commercial reef fish permit. *Response:* Current regulations do not allow a vessel having both a charter vessel/headboat reef fish permit and a commercial reef fish permit to act as a for-hire vessel and commercial vessel on the same trip. A for-hire vessel with paying customers aboard is limited to recreational harvest restrictions. *Comment 4:* It would be fair and reasonable to allow a maximum crew size of four persons to fish commercially on a vessel having both commercial and for-hire reef fish permits. *Response:* The initial regulations limiting the maximum crew size to three on vessels with both commercial and for-hire permits was implemented through Amendment 1 to the Reef Fish FMP to provide consistent regulations with those of the Coastal Migratory Pelagic FMP. This initial three-person crew limit was selected because available data indicated most vessels with both permits did not typically exceed three persons when fishing commercially. In addition, NMFS and the Council were concerned that higher maximum crew sizes might encourage boats under charter to harvest excess amounts of reef fish by claiming to be fishing commercially. The purpose of limiting the maximum crew size on a dual-permitted vessel with a COI to the minimum crew size allowed under the COI when the vessel is underway for more than 12 hours is to create consistency between fishing and USCG regulations, as described above. *Comment 5:* Any legally landed fish should be allowed to be used for bait, including sand perch, grunts, porgies, and squirrelfish. *Response:* It is illegal to cut-up reef fish at sea for use as bait. However, it is not illegal to use as bait cut-up reef fish purchased on shore, or whole reef fish provided the fish complies with applicable size and bag limits. This creates enforcement difficulties at sea because the origin of a reef fish carcass used for bait could be obtained through legal means (purchased onshore) or illegal means (a fish caught on the fishing trip). Prohibiting the use of reef fish as bait resolves this enforcement problem. The measure does allow for sand perch and dwarf sand perch, traditional bait species in the reef fish management unit, to be used as bait. It also allows other reef fish species not in the management unit, such as grunts, porgies, and squirrelfish, to be used as bait, consistent with the bait definition found in 50 CFR 622.38. To assist the efficiency of the reef fish fishery, the rule will allow reef fish parts purchased on shore to be used as bait in the blue crab, stone crab, deep-water crab, and spiny lobster trap fisheries. *Comment 6:* VMS should only be placed on larger vessels or vessels fishing with longlines, and commercial reef fish fishermen below a certain income level should be exempt from VMS requirements. *Response:* The Reef Fish FMP contains several area-specific regulations where fishing is restricted or prohibited to protect habitat, protect spawning aggregations, or reduce fishing pressure. Unlike size, bag, and trip limits, where the catch can be monitored when a vessel returns to port, area restrictions require at-sea enforcement. Because of the sizes of these areas and the distances from shore, the effectiveness of enforcement through overflights and at-sea interception is limited. VMS allows a more effective means to monitor vessels for intrusions into restricted areas and could be an important component of a possible future electronic logbook system. The Council considered placing VMS on just commercial reef fish vessels using longlines. However, they determined requiring VMS on all commercial reef fish vessels rather than just longline vessels was preferred because most of the area restrictions in the Gulf of Mexico, with the exception of the longline/buoy gear boundary and the stressed area boundary, apply to all gear types. An exception was made for vessels fishing exclusively with fish traps. Fish traps are under a closed entry system (no new fish trap endorsements are allowed and transfers are allowed only under limited conditions) and will be prohibited as an allowable gear in the Gulf of Mexico after February 7, 2007. Because these vessels are unlikely to be able to recover the costs of installing a VMS before the phase-out is complete, and because they are fishing under an alternative trip initiation/termination reporting requirement, exempting these vessels for the short period of time until fish traps are prohibited was considered acceptable. This exemption applies only if a fish trap vessel fishes exclusively with traps and no other gear. If any other gear is used, the vessel would be required to have VMS. *Comment 7:* The cost of VMS is excessive and will put commercial fishermen out of business. Fishermen are already stressed from the increasing costs of fuel, early closures of the grouper fishery, and damage from storms and red tide. *Response:* As stated above, the Council determined, and NMFS agrees, that VMS is necessary to enforce area-specific regulations for the commercial fishery. The Council also considered whether the cost of VMS equipment should be paid by reef fish vessel owners or by NMFS. The Council determined if NMFS were to purchase the equipment, there could be a delay in implementation of the VMS requirement until funding for the VMS units was made available from Congress or other sources. Were such funding not to become available, implementation of a VMS requirement could be delayed indefinitely. Therefore, the Council selected an alternative placing the burden of purchasing a VMS with the vessel owner. However, it should be noted that NMFS has been provided funds by Congress to purchase VMS units in other fisheries. If such monies were to become available for the reef fish fishery, costs could be defrayed for reef fish vessel owners. The cost of the installation, maintenance, and month-to-month communications would still be paid or arranged for by vessel owners as appropriate. *Comment 8:* Requiring VMS only on commercially permitted reef fish vessels and not on other vessels is discriminatory.Response: Commercial fishing vessels have greater fishing power than recreational fishing vessels, which are limited by bag limits. Therefore, commercial fishing vessels fishing within a restricted area are likely to do more harm to protected areas or stocks. In addition, because there are no federal permits for recreational fishermen, it is difficult to discern which recreational vessels would need to have VMS on board. Thus, recreational vessels were not considered for this measure. *Comment 9:* Fisherman should not have to pay for VMS if they are charter fishing or operating outside the Gulf of Mexico EEZ waters. *Response:* In some circumstances, a vessel owner can apply for a power-down exemption for VMS from NMFS. These circumstances include a vessel that is continuously out of the water for more than 72 consecutive hours, or a vessel fishing with both a valid commercial and a valid for-hire reef fish permit. Under these circumstances, the owner has the ability to sign out of the VMS program for a minimum period of 1 calendar month. The vessel would not be allowed to conduct commercial fishing operations until the VMS unit is reactivated and NMFS personnel verify consistent position reports. Regarding fishing in state waters or outside the Gulf of Mexico EEZ, VMS must be active for a vessel to participate in the commercial reef fish fishery because a vessel can easily transit between jurisdictional boundaries. *Comment 10:* With requirements for emergency position indicating radio beacons (EPIRBs) on commercial fishing vessels, VMS will provide little additional protection for commercial reef fish fishermen. *Response:* As indicated above, the primary purpose of VMS is to improve the enforcement of restricted fishing areas. A secondary purpose of VMS is to improve safety at sea. Some VMS models provide an optional safety mechanism with a “panic button” that can be activated during a vessel emergency so that USCG assets can be directed to the vessel's last known position. Additionally, should a vessel stop sending a signal or not arrive as scheduled, its cruise track can be monitored by NMFS personnel to determine whether the vessel may need assistance. *Comment 11:* With the requirement for VMS, position information can be compromised and sold to the public. *Response:* VMS location data for vessels are confidential and will not be shared with anyone without written authorization for their release from the vessel owner, except to those responsible for federal fisheries management and/or enforcement, or when required by a court order. Individuals can request location data only for their permitted vessel(s). Computers and monitors showing vessel location data are kept in secured rooms with restricted access to authorized personnel. *Comment 12:* Given the cost of VMS and the rare occurrence of turtle interactions with reef fish gear, the additional cost of turtle release gear will create an untenable burden on commercial reef fish fishermen. *Response:* A NMFS-issued biological opinion dated February 15, 2005, determined a reasonable and prudent measure to minimize the impacts of the incidental take of sea turtles and smalltooth sawfish during reef fish fishing was to “ensure that any caught sea turtle or smalltooth sawfish is handled in such a way as to minimize stress to the animal to increase its survival.” One of the terms and conditions of the opinion to address this reasonable and prudent measure states that “use of the sea turtle handling and release protocols recently implemented for highly migratory species
(HMS)pelagic longline vessels must be considered (50 CFR 635.21(c)(5)(i) and (ii))” and “at a minimum, regulations similar to those currently in place for Atlantic HMS bottom longline vessels must be implemented (50 CFR 635.21(a)(3) and 635.21(d)(3)).” In addition, “implementation of these requirements and guidelines must occur as soon as operationally feasible and no later than 2007.” NMFS worked with the Council to develop requirements appropriate for the reef fish fishery. Although the biological opinion estimates that anticipated interactions in the Gulf of Mexico fishery are much less common than in the HMS fisheries, particularly in the HMS pelagic longline fishery, the same techniques for handling and removing gear from any hooked endangered sea turtle or smalltooth sawfish are pertinent. The total cost for release gear per vessel is estimated to be between $267 and $459. Vessel sizes were taken into consideration, with fewer gear requirements required for vessels having a freeboard height less than 4 feet (1.23 m). For some vessels, the gear costs may be less because they already have some of the required equipment aboard. For example, life rings and life vests are already required items. Additionally, a list of NMFS-approved release gear, including descriptions of turtle release gear, can be found in the final rule implementing sea turtle bycatch and bycatch mortality mitigation measures for Atlantic pelagic longline vessels (69 FR 40734, July 6, 2004). Some of these gears can be constructed rather than purchased, allowing further savings. *Comment 13:* The handles on short-handled dehookers are not long enough to release turtles from a vessel with a four foot freeboard or less, and by requiring either an internal or external dehooker, fishermen could damage sea turtles by using the wrong dehooking device to remove a hook. *Response:* The requirements specified for vessels with a freeboard height of less than four feet incorporate the best available scientific information, while accounting for differences between HMS commercial longline vessels (for which the release gear was developed) and reef fish vessels. Freeboard height (i.e., the working distance between the top rail of the gunwale to the water's surface) and available deck space, if a turtle were to be boated to remove the hook, were the two main factors believed to affect the way a captured turtle might be handled and what types of measures would be practical. Exempting vessels with a lower freeboard height from the requirement of the long-handled line cutters or long-handled dehooking devices reduces some of the burden to fishermen in terms of the amount of release gear that must be on board, while still increasing the likelihood of successfully releasing sea turtles, provided that the fishermen are proficient in the selection and use of the appropriate gear. In selecting dehooking devices, internal or external dehookers are allowed because both can remove external hooks. This gives fishermen the option of selecting a dehooker that can remove external hooks, or having a dual-purpose dehooker. Allowing fishermen to use one dehooker reduces some of the burden to fishermen in terms of the amount of release gear that must be carried. *Comment 14:* Changing the permit renewal system from biannual to annual will create more paperwork and cost for fishermen. *Response:* NMFS believes requiring annual permit renewal provides better permit accountability. Fees for annual renewal would be half of the current biennial fee; therefore, there would be no increased cost to applicants. The annual renewal requirement will apply to all permits, including those for highly migratory species. The changes will also simplify the income qualification documentation requirements for fisheries having income criteria, thus reducing paperwork requirements. Classification The Regional Administrator, Southeast Region, NMFS, determined that Amendment 18A is necessary for the conservation and management of the Gulf reef fish fishery and is consistent with the Magnuson-Stevens Act and other applicable laws. This final rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared a final regulatory flexibility analysis
(FRFA)for this final rule, based on the regulatory impact review (RIR), initial regulatory flexibility analysis
(IRFA)and public comments. NMFS received several public comments on the proposed rule during the comment period. These comments and NMFS' responses are included in the final rule. None of the comments are specific to the IRFA, but some relate to economic and other issues affecting small entities. An outline of these issues and NMFS' responses are included below as part of the FRFA summary. A major economic issue raised in the comments pertains to the cost of VMS. One comment considered the VMS cost as excessive and could put commercial fishermen out of business. A second comment indicated VMS should be required only on larger vessels or vessels fishing with longlines and should not be required for commercial fishermen below a certain income level. Another comment stated that fishermen should not have to pay for VMS if they are charter fishing or operating outside the Gulf EEZ. NMFS is aware of the cost of VMS and stated in the RIR and IRFA for the proposed rule that the VMS requirement would adversely affect many small entities, particularly the smaller and marginal operations. NMFS, however, concurs with the Council when it considered the necessity of VMS on all commercial reef fish vessels, including dually permitted charter/commercial vessels, in order to enforce area-specific regulations. There are many such areas in the Gulf where fishing is restricted or prohibited to protect habitat, protect spawning aggregations, or reduce fishing pressure. Most of these areas apply to all gear types. Also, if NMFS did not require VMS on charter fishing or fishing outside the Gulf EEZ, it would complicate enforcement as vessels can easily shift from charter to commercial fishing or transit from one jurisdictional area to another. One mitigating factor on these issues is that if funds become available, as in other fisheries requiring VMS, NMFS will pay for part of the VMS cost. Another mitigating factor is the power-down exemption certain vessels may be eligible to obtain from NMFS. In particular, vessels that are continuously out of the water for more than 72 consecutive hours or dually permitted charter/commercial vessels can sign out of the VMS program for 1 calendar month. But these vessels would not be allowed to fish commercially until the VMS unit is verified to be properly functioning. Another comment stated that given the cost of VMS, the additional cost of turtle release gear will create an untenable burden on commercial reef fish fishermen. As discussed above, the cost of VMS would adversely affect many commercial reef fish vessels. The additional cost of turtle release gear (between $267 and $459 per vessel) is not as large, but nevertheless, would impinge on the profitability of vessels, as discussed in the RIR and IRFA. NMFS worked with the Council to develop requirements appropriate for the reef fish fishery. It should be noted, though, that less gear is required for vessels having a freeboard height of less than 4 feet (1.23 m). In addition, some vessels are already equipped with some of the required gear, such as life rings and life vests, so the additional cost to them would be less than estimated in the RIR and IRFA. One other comment contended the change in permit renewal from biannual to annual will create more paperwork and cost for fishermen. To an extent, the change from biannual to annual permit renewal would increase paperwork, but not the permit renewal fee since the annual fee is just half of the biannual fee currently charged by NMFS. One should note that accompanying the annual permit requirement is the simplification of income documentation for renewing permits subject to certain qualifying income criteria. These and other comments have not resulted in changes to final rule, so the economic analysis conducted for the final rule has also not changed. The following completes the FRFA. The Magnuson-Stevens Act provides the statutory basis for the final rule. The final rule will:
(1)Continue allowing vessels to possess both commercial and for-hire vessel (charter vessel/headboat) permits, but disallow retention of reef fish species caught under recreational size and possession limits when the vessel has commercial harvests of any reef fish species aboard;
(2)allow a for-hire vessel with a U.S. Coast Guard
(USCG)Certificate of Inspection
(COI)to increase its crew size but not in excess of its minimum manning requirements outlined in its COI when fishing for reef fish under its commercial fishing license;
(3)prohibit the use as bait any species in the reef fish management unit or parts thereof, with certain exceptions;
(4)require the use of VMS systems Gulf-wide for all gear types of commercially permitted reef fish vessels, including charter vessels with commercial reef fish permits;
(5)modify the TAC framework procedure to incorporate the Southeast Data, Assessment and Review (SEDAR) process; and
(6)require vessels with commercial and/or for-hire reef fish permits to comply with sea turtle and smalltooth sawfish release protocols, possess a set of release gear required by the NMFS Office of Protected Resources, and adopt specific guidelines for the proper care of incidentally caught sawfish. The main objectives of the final rule are to resolve certain issues related to monitoring and enforcement of existing regulations, update the framework procedure for setting TAC to reflect current terminology and stock assessment procedures, and reduce bycatch mortality of incidentally caught endangered sea turtles and smalltooth sawfish. The final rule would impact three types of businesses in the Gulf reef fish fishery, namely, commercial fishing vessels, recreational for-hire vessels, and fish dealers. At present, the commercial reef fish permits are under a license limitation program and for-hire reef fish permits are under a moratorium, which is proposed to be converted into a license limitation under a separate amendment. Hence, no new commercial or for-hire reef fish permits will be issued when Amendment 18A is implemented. Currently, there are 1,145 commercial and 1,574 for-hire active vessel permits for the Gulf reef fish fishery. Of these permittees, 237 vessels have both commercial and for-hire vessel permits. Reef fish dealers in the Gulf are required to obtain permits to handle reef fish caught in the Gulf. There are currently 227 dealers permitted to buy and sell reef fish caught in the Gulf. The final rule is expected to affect these commercial vessels, for-hire vessels, and fish dealers. Average annual gross receipts of commercial reef fish vessels in the Gulf range from $24,095 for low-volume vertical line vessels to $116,989 for high-volume longline vessels. The corresponding annual net incomes range from $4,479 for low-volume vertical line vessels to $28,466 for high-volume vertical line vessels. Permit records indicate that the maximum number of commercial reef fish permits owned by any single entity is six, so at the maximum this entity would generate a total of $701,934 in gross receipts. For the for-hire vessels, gross annual receipts range from $76,960 for charter vessels to $404,172 for headboats. The corresponding annual operating profits range from $36,758 for charter vessels to $338,209 for headboats. Permit records indicate a maximum of 12 permits held by any single entity. At a maximum, this entity would generate a total of $4,850,064 in gross receipts. A fishing business is considered a small entity if it is independently owned and operated and not dominant in its field of operation, and if it has annual receipts not in excess of $4.0 million in the case of commercial harvesting entities or $6.5 million in the case of for-hire entities. Relative to these thresholds, both the commercial vessel and for-hire vessel entities affected by the final rule may be considered small entities. Employment (both part and full time) by all reef fish processors in the Southeast totaled 700 individuals. There is no information regarding employment by fish dealers, although it is safe to assume that dealers employ fewer individuals than processors. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons on a full-time, part-time, temporary, or other basis. A fish dealer is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 100 or fewer persons on a full-time, part-time, temporary, or other basis. Given the employment information, it is very unlikely for any processor that holds a reef fish dealer permit to employ 500 or more persons. Although there are no actual data on employment by fish dealers, between 1997 and 2000, on average, in excess of 100 reef fish dealers operated in the Gulf. It is assumed that all processors must be dealers, yet a dealer need not be a processor. Total dealer employment, therefore, is expected to be slightly more than 700 individuals. Given the number of reef fish dealers and estimates of dealer employment, it is unlikely that any dealer employs more than 100 persons. Therefore, each dealer may be considered a small entity. Allowing vessels to be dually permitted (commercial and for-hire) would enable some 227 vessels to continue their usual operations. Disallowing these vessels to possess recreationally caught fish when commercial quantities of reef fish are aboard would improve enforcement without significantly impacting the operations of these dually permitted vessels. Allowing a for-hire vessel to increase its crew size, however, not in excess of its minimum manning requirements outlined in its COI, affords flexibility in operation and helps to ensure safety at sea of the crew, particularly for vessels using spearfish gear. This would also eliminate the discrepancy between current fishing rules and USCG requirements with respect to crew size of for-hire vessels. The prohibition on the use of reef fish, except sand perch and dwarf sand perch, as bait reinforces the current ban on cutting up reef fish at sea and regulations on bait. The economic impact of this provision on commercial and for-hire vessels cannot be quantified but is expected to be relatively small. The VMS requirement is expected to improve the efficacy of enforcement efforts and the effectiveness and timeliness of at-sea rescue efforts. All commercial reef fish vessels, including for-hire vessels with commercial permits, would incur one-time and recurring costs. First-year compliance costs range from $2,032 to $3,651 per vessel. These costs could be substantial, particularly relative to the profits of small-time vessel operations. The changes to the framework procedures are administrative in nature and are not expected to have substantial effects on fishing operations of reef fish vessels. The various requirements addressing the bycatch issue relative to sea turtles and smalltooth sawfish would affect all commercial and for-hire vessels in the reef fish fishery. Out-of-pocket expenses are estimated to be between $267 and $459 per vessel. These are mainly costs for equipping vessels with the required gear. Because some of the gear would last for some time, costs would in effect be spread over a number of years. The final rule would alter some of the reporting, record-keeping, and other compliance requirements in the reef fish fishery. In particular, the VMS requirement would affect all vessels with commercial and/or for-hire reef fish permits. Including installation by a qualified marine electrician, equipment costs range from $1,600 to $2,900 per vessel. In addition, yearly communication costs range from $432 to $751 per vessel. Compliance with sea turtle and smalltooth sawfish release protocols would also affect all vessels with commercial and/or for-hire reef fish permits. Costs range from $267 to $459 per vessel. In addition, changing the permit renewal from biannual to annual would create additional paperwork from filling and submitting applications but would simplify the documentation of income requirement for permits that have income qualifying criteria. Other than the provision on vessel manning requirements that removes the conflict between NMFS and USCG regulations, no other Federal rules have been uncovered that would duplicate, overlap, or conflict with the final rule. The final rule is expected to affect a substantial number of small entities. A total of 908 solely permitted commercial vessels, 1,337 solely permitted for-hire vessels, and 237 dually permitted commercial/for-hire vessels would be affected. Because all entities affected by the final rule are small entities, the issue of disproportional effects on small versus large entities does not arise. Mainly because of the VMS requirement, for which compliance costs range from $1,600 to $2,900 per vessel, and the sea turtle and smalltooth sawfish release protocols, for which compliance costs range from $267 to $459 per vessel, the final rule would have substantial adverse impacts on the profitability of affected vessels, particularly the smaller and marginal operations. This amendment considered several alternatives to the final rule. Regarding dually permitted vessels (vessels with both commercial and for-hire permits), two other alternatives have been considered. Alternative 1 (status quo) continues to allow vessels to be dually permitted, but it does not resolve the problem of identifying whether caught fish are saleable (commercial trip) or not saleable (charter trip). Alternative 3, which disallows a vessel to be dually permitted, would adversely affect the fishing operations of dually permitted vessels by forcing them to divest of either the commercial or for-hire permit. Regarding crew size of for-hire vessels fishing under their commercial permits, four other alternatives have been considered. Alternative 1 (status quo), which limits for-hire vessel crew size to three persons, would not be compatible with minimum USCG manning requirements. Alternative 3, which is similar to the final rule except for spearfishing vessels, would benefit the spearfishing vessels. However, the crew size for these vessels would be incompatible with USCG manning requirements. Alternative 4, which allows a maximum crew size of four persons, would also be incompatible with Coast Guard manning requirements. Alternative 5, which removes the maximum crew size requirements for dually permitted vessels, creates the same enforcement problem as the status quo and at the same time affords a potential increase in fishing effort. Regarding use of reef fish as bait, two other alternatives (with various sub-alternatives) have been considered. Alternative 1 (status quo), which allows the use of whole reef fish that meet the specified requirements for bait or cut-up reef fish purchased at shore for bait, complicates the enforcement of the ban on cutting up reef fish at sea as well as potentially increases the mortality of certain reef fish species. Alternative 3, which requires enforcement officials to identify reef fish species used as bait before assessing any potential violation, could potentially complicate enforcement. On the VMS requirement, two other alternatives have been considered. Alternative 1 (status quo), which does not require VMS, is the least costly to small entities but does not address vital enforcement and at-sea rescue issues. Similar to the final rule, Alternative 3 requires VMS; however, this alternative would only require vessel owners to pay for yearly communication costs. If government resources are available, this alternative would be more favorable to the industry than the final rule. Regarding changes to the framework procedure, the only other alternative is the no action alternative, which could potentially create some confusion in the way a TAC is established by the Council. Regarding sea turtle and smalltooth sawfish bycatch, five other alternatives have been considered. Alternative 1 (status quo) is the least costly of all alternatives to small entities, but it would not address the bycatch of sea turtles and smalltooth sawfish in commercial and for-hire reef fish vessels. Alternative 2, which requires commercial vessels to abide by the release protocols in effect in the HMS longline fishery, would impose a compliance cost ranging from $202 to $380. Alternative 3, which requires the commercial reef fish fleet to comply with the more stringent requirement in place in the HMS pelagic longline fishery, would carry a compliance cost of $712 to $1,282 per vessel. Alternative 4 requires for-hire reef fish vessels to comply with either the less stringent release protocol as in Alternative 2 or the more stringent release protocol as in Alternative 3. The corresponding compliance costs per vessel would be similar to those in Alternative 2 or 3. Alternative 5, which requires commercial and for-hire reef fish vessels to comply with the sea turtle release protocols in place for the Atlantic HMS bottom longline vessels, would impose a compliance cost of $202 to $380 per vessel. Copies of the FRFA are available from NMFS (see ADDRESSES ). Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” As part of the rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. The fishery bulletin will be sent to all vessel permit holders for the Gulf reef fish fishery. This final rule contains collection-of-information requirements subject to the Paperwork Reduction Act
(PRA)and which have been approved by OMB under control number 0648-0544. Following are estimated average public reporting burdens, per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collections of information:
(1)VMS installation—4 hours;
(2)completion and submission of certification of VMS installation and activation—15 minutes;
(3)transmission of position reports—24 seconds;
(4)fishing activity reports—1 minute;
(5)annual maintenance of VMS—2 hours;
(6)submission of requests for power down exemptions—10 minutes; and
(7)annual renewal of all permits—15 minutes. Send comments regarding these burden estimates or any other aspect of the collection-of-information requirements, including suggestions for reducing burden hours, to NMFS (see ADDRESSES ) and by email to *David_Rostker@omb.eop.gov* , or fax to 202-395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. List of Subjects 50 CFR Part 622 Fisheries, Fishing, Puerto Rico, Reporting and recordkeeping requirements, Virgin Islands. 50 CFR Part 635 Endangered and threatened species, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Statistics, Treaties. Dated: August 3, 2006. William T. Hogarth, Assistant Administrator for Fisheries, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 622 and 635 are amended as follows: PART 622—FISHERIES OF THE CARIBBEAN, GULF, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. In § 622.2, the definitions of “Charter vessel” and “Headboat” are revised in alphabetical order to read as follows: § 622.2 Definitions and acronyms. *Charter vessel* means a vessel less than 100 gross tons (90.8 mt) that is subject to the requirements of the USCG to carry six or fewer passengers for hire and that engages in charter fishing at any time during the calendar year. A charter vessel with a commercial permit, as required under § 622.4(a)(2), is considered to be operating as a charter vessel when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew. However, a charter vessel that has a charter vessel permit for Gulf reef fish, a commercial vessel permit for Gulf reef fish, and a valid Certificate of Inspection
(COI)issued by the USCG to carry passengers for hire will not be considered to be operating as a charter vessel provided—
(1)It is not carrying a passenger who pays a fee; and
(2)When underway for more than 12 hours, that vessel meets, but does not exceed the minimum manning requirements outlined in its COI for vessels underway over 12 hours; or when underway for not more than 12 hours, that vessel meets the minimum manning requirements outlined in its COI for vessels underway for not more than 12-hours (if any), and does not exceed the minimum manning requirements outlined in its COI for vessels that are underway for more than 12 hours. *Headboat* means a vessel that holds a valid Certificate of Inspection
(COI)issued by the USCG to carry more than six passengers for hire.
(1)A headboat with a commercial vessel permit, as required under § 622.4(a)(2), is considered to be operating as a headboat when it carries a passenger who pays a fee or—
(i)In the case of persons aboard fishing for or possessing South Atlantic snapper-grouper, when there are more persons aboard than the number of crew specified in the vessel's COI; or
(ii)In the case of persons aboard fishing for or possessing coastal migratory pelagic fish, when there are more than three persons aboard, including operator and crew.
(2)However a vessel that has a headboat permit for Gulf reef fish, a commercial vessel permit for Gulf reef fish, and a valid COI issued by the USCG to carry passengers for hire will not be considered to be operating as a headboat provided—
(i)It is not carrying a passenger who pays a fee; and
(ii)When underway for more than 12 hours, that vessel meets, but does not exceed the minimum manning requirements outlined in its COI for vessels underway over 12 hours; or when underway for not more than 12 hours, that vessel meets the minimum manning requirements outlined in its COI for vessels underway for not more than 12-hours (if any), and does not exceed the minimum manning requirements outlined in its COI for vessels that are underway for more than 12 hours. 3. In § 622.4, paragraph (h)(1) is revised, and a sentence is added at the end of paragraph (m)(1) to read as follows: § 622.4 Permits and fees.
(h)* * *
(1)*Vessel permits, licenses, and endorsements and dealer permits.* A vessel owner or dealer who has been issued a permit, license, or endorsement under this section must renew such permit, license, or endorsement on an annual basis. The RA will mail a vessel owner or dealer whose permit, license, or endorsement is expiring an application for renewal approximately 2 months prior to the expiration date. A vessel owner or dealer who does not receive a renewal application from the RA by 45 days prior to the expiration date of the permit, license, or endorsement must contact the RA and request a renewal application. The applicant must submit a completed renewal application form and all required supporting documents to the RA prior to the applicable deadline for renewal of the permit, license, or endorsement and at least 30 days prior to the date on which the applicant desires to have the permit made effective. If the RA receives an incomplete application, the RA will notify the applicant of the deficiency. If the applicant fails to correct the deficiency within 30 days of the date of the RA's letter of notification, the application will be considered abandoned. A permit, license, or endorsement that is not renewed within the applicable deadline will not be reissued.
(m)* * *
(1)* * * An application for renewal or transfer of a commercial vessel permit for Gulf reef fish will not be considered complete until proof of purchase, installation, activation, and operational status of an approved VMS for the vessel receiving the permit has been verified by NMFS VMS personnel. 4. In § 622.7, paragraph
(ff)is added to read as follows: § 622.7 Prohibitions.
(ff)Fail to comply with the protected species conservation measures as specified in § 622.10. 5. Section 622.9 is revised to read as follows: § 622.9 Vessel monitoring systems (VMSs).
(a)*Requirements for use of a VMS* —(1) *South Atlantic rock shrimp.* An owner or operator of a vessel that has been issued a limited access endorsement for South Atlantic rock shrimp must ensure that such vessel has an operating VMS approved by NMFS for use in the South Atlantic rock shrimp fishery on board when on a trip in the South Atlantic. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider.
(2)*Gulf reef fish.* An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish, including a charter vessel/headboat issued such a permit even when under charter, must ensure that such vessel has an operating VMS approved by NMFS for use in the Gulf reef fish fishery on board at all times whether or not the vessel is underway, unless exempted by NMFS under the power down exemption of the NOAA Enforcement Draft Vessel Monitoring System Requirements as included in Appendix E to Final Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico. The NOAA Enforcement Draft Vessel Monitoring System Requirements document is available from NMFS, Office of Enforcement, Southeast Region, 263 13 th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833. An operating VMS includes an operating mobile transmitting unit on the vessel and a functioning communication link between the unit and NMFS as provided by a NMFS-approved communication service provider. Unless exempted under the power down exemption, a VMS must transmit a signal indicating the vessel's accurate position at least once an hour, 24 hours a day every day. Prior to departure for each trip, a vessel owner or operator must report to NMFS any fishery the vessel will participate in on that trip and the specific type(s) of fishing gear, using NMFS-defined gear codes, that will be on board the vessel. This information may be reported to NMFS using the toll-free number, 888-219-9228, or via an attached VMS terminal. The VMS requirements of this paragraph apply throughout the Gulf of Mexico. An owner or operator of a vessel that has been issued a commercial vessel permit for Gulf reef fish with a fish trap endorsement and that fishes exclusively with fish traps is exempt from the VMS requirements of this paragraph through February 7, 2007.
(b)*Installation and activation of a VMS.* Only a VMS that has been approved by NMFS for the applicable fishery may be used, and the VMS must be installed by a qualified marine electrician. When installing and activating the NMFS-approved VMS, or when reinstalling and reactivating such VMS, the vessel owner or operator must—
(1)Follow procedures indicated on a NMFS-approved installation and activation checklist for the applicable fishery, which is available from NMFS, Office of Enforcement, Southeast Region, 263 13 th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833; and
(2)Submit to NMFS, Office of Enforcement, Southeast Region, 263 13 th Avenue South, St. Petersburg, FL 33701, a statement certifying compliance with the checklist, as prescribed on the checklist.
(3)Submit to NMFS, Office of Enforcement, Southeast Region, 263 13 th Avenue South, St. Petersburg, FL 33701, a vendor-completed installation certification checklist, which is available from NMFS, Office of Enforcement, Southeast Region, 263 13 th Avenue South, St. Petersburg, FL 33701; phone: 800-758-4833.
(c)*Interference with the VMS.* No person may interfere with, tamper with, alter, damage, disable, or impede the operation of the VMS, or attempt any of the same.
(d)*Interruption of operation of the VMS.* When a vessel's VMS is not operating properly, the owner or operator must immediately contact NMFS, Office of Enforcement, Southeast Region, 263 13 th Avenue South, St. Petersburg, FL 33701, phone: 800-758-4833, and follow instructions from that office. If notified by NMFS that a vessel's VMS is not operating properly, the owner and operator must follow instructions from that office. In either event, such instructions may include, but are not limited to, manually communicating to a location designated by NMFS the vessel's positions or returning to port until the VMS is operable.
(e)*Access to position data.* As a condition of authorized fishing for or possession of fish in a fishery subject to VMS requirements in this section, a vessel owner or operator subject to the requirements for a VMS in this section must allow NMFS, the USCG, and their authorized officers and designees access to the vessel's position data obtained from the VMS. 6. In subpart A, § 622.10 is added to read as follows: § 622.10 Conservation measures for protected resources.
(a)*Atlantic dolphin and wahoo pelagic longliners.* The owner or operator of a vessel for which a commercial permit for Atlantic dolphin and wahoo has been issued, as required under § 622.4(a)(2)(xii), and that has on board a pelagic longline must post inside the wheelhouse the sea turtle handling and release guidelines provided by NMFS. Such owner or operator must also comply with the sea turtle bycatch mitigation measures, including gear requirements and sea turtle handling requirements, as specified in § 635.21(c)(5)(i) and
(ii)of this chapter, respectively. For the purpose of this paragraph, a vessel is considered to have pelagic longline gear on board when a power-operated longline hauler, a mainline, floats capable of supporting the mainline, and leaders (gangions) with hooks are on board. Removal of any one of these elements constitutes removal of pelagic longline gear.
(b)*Gulf reef fish commercial vessels and charter vessels/headboats* —(1) *Sea turtle conservation measures.* The owner or operator of a vessel for which a commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued, as required under §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), respectively, must post inside the wheelhouse, or within a waterproof case if no wheelhouse, a copy of the document provided by NMFS titled, “Careful Release Protocols for Sea Turtle Release With Minimal Injury,” and must post inside the wheelhouse, or in an easily viewable area if no wheelhouse, the sea turtle handling and release guidelines provided by NMFS. Those permitted vessels with a freeboard height of 4 ft (1.2 m) or less must have on board a dipnet, short-handled dehooker, long-nose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in 50 CFR 635.21(c)(5)(i)(E) through
(L)with the following modifications: the dipnet handle can be of variable length, only one NMFS approved short-handled dehooker is required (i.e., CFR 635.21(c)(5)(i)(G) or (H)); and life rings, seat cushions, life jackets, and life vests may be used as alternatives to tires for cushioned surfaces as specified in 50 CFR 635.21(c)(5)(i)(F). Those permitted vessels with a freeboard height of greater than 4 ft (1.2 m) must have on board a dipnet, long-handled line clipper, a short-handled and a long-handled dehooker, long-nose or needle-nose pliers, bolt cutters, monofilament line cutters, and at least two types of mouth openers/mouth gags. This equipment must meet the specifications described in 50 CFR 635.21(c)(5)(i)(A) through
(L)with the following modifications: only one NMFS approved long-handled dehooker (50 CFR 635.21(c)(5)(i)(B) or (C)) and one NMFS-approved short-handled dehooker (50 CFR 635.21(c)(5)(i)(G) or (H)) are required; and life rings, seat cushions, life jackets, and life vests may be used as alternatives to tires for cushioned surfaces as specified in 50 CFR 635.21(c)(5)(i)(F).
(2)*Smalltooth sawfish conservation measures.* The owner or operator of a vessel for which a commercial vessel permit for Gulf reef fish or a charter vessel/headboat permit for Gulf reef fish has been issued, as required under §§ 622.4(a)(2)(v) and 622.4(a)(1)(i), respectively, that incidentally catches a smalltooth sawfish must—
(i)Keep the sawfish in the water at all times;
(ii)If it can be done safely, untangle the line if it is wrapped around the saw;
(iii)Cut the line as close to the hook as possible; and
(iv)Not handle the animal or attempt to remove any hooks on the saw, except for with a long-handled dehooker. 7. In § 622.31, paragraph
(n)is added to read as follows: § 622.31 Prohibited gear and methods.
(n)Gulf reef fish other than sand perch or dwarf sand perch may not be used as bait in any fishery, except that, when purchased from a fish processor, the filleted carcasses and offal of Gulf reef fish may be used as bait in trap fisheries for blue crab, stone crab, deep-water crab, and spiny lobster. 8. In § 622.34, a sentence is added at the end of paragraph
(l)to read as follows: § 622.34 Gulf EEZ seasonal and/or area closures.
(l)* * * Also note that if commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board the vessel, no bag limit of Gulf reef fish may be possessed, as specified in § 622.39(a)(5). 9. In § 622.36, a sentence is added at the end of paragraph
(a)to read as follows: § 622.36 Seasonal harvest limitations.
(a)* * * Also note that if commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board the vessel, no bag limit of Gulf reef fish may be possessed, as specified in § 622.39(a)(5). 10. In § 622.37, paragraph (d)(4) is added to read as follows: § 622.37 Size limits.
(d)* * *
(4)A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, may not possess any Gulf reef fish that do not comply with the applicable commercial minimum size limit. 11. In § 622.38, a sentence is added at the end of paragraph (d)(1) introductory text to read as follows: § 622.38 Landing fish intact.
(d)* * *
(1)* * * See § 622.31(m) regarding a prohibition on the use of Gulf reef fish as bait. 12. In § 622.39, paragraph (a)(2)(iii) is revised, and paragraph (a)(5) is added to read as follows: § 622.39 Bag and possession limits.
(a)* * *
(2)* * *
(iii)For a species/species group when its quota has been reached and closure has been effected, provided that no commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, are on board as specified in paragraph (a)(5) of this section.
(5)A person aboard a vessel that has a Federal commercial vessel permit for Gulf reef fish and commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, may not possess Gulf reef fish caught under a bag limit. § 622.41 [Amended] 13. In § 622.41, paragraph (l)(2) is removed and reserved. 14. In § 622.43, paragraph (a)(1)(i) is revised to read as follows: § 622.43 Closures.
(a)* * *
(1)* * *
(i)*Commercial quotas.* The application of bag limits described in this paragraph (a)(1)(i) notwithstanding, bag limits of Gulf reef fish may not be possessed on board a vessel with commercial quantities of Gulf reef fish, i.e., Gulf reef fish in excess of applicable bag/possession limits, on board, as specified in § 622.39(a)(5).
(A)If the recreational fishery for the indicated species is open, the bag and possession limits specified in § 622.39(b) apply to all harvest or possession in or from the Gulf EEZ of the indicated species, and the sale or purchase of the indicated species taken from the Gulf EEZ is prohibited. In addition, the bag and possession limits for red snapper, when applicable, apply on board a vessel for which a commercial permit for Gulf reef fish has been issued, as required under § 622.4(a)(2)(v), without regard to where such red snapper were harvested.
(B)If the recreational fishery for the indicated species is closed, all harvest or possession in or from the Gulf EEZ of the indicated species is prohibited. PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 15. The authority citation for part 635 continues to read as follows: Authority: 16 U.S.C. 971 *et seq.* ; 16 U.S.C. 1801 *et seq.* 16. In § 635.4, the second sentence of paragraph (m)(1) is revised to read as follows: § 635.4 Permits and fees.
(m)* * *
(1)* * * A renewal application must be submitted to NMFS, at an address designated by NMFS, at least 30 days before a permit's expiration to avoid a lapse of permitted status. * * * [FR Doc. E6-12984 Filed 8-8-06; 8:45 am] BILLING CODE 3510-22-S 71 153 Wednesday, August 9, 2006 Proposed Rules FEDERAL RETIREMENT THRIFT INVESTMENT BOARD 5 CFR Part 1653 Court Orders and Legal Processes Affecting Thrift Savings Plan Accounts AGENCY: Federal Retirement Thrift Investment Board. ACTION: Proposed rule with request for comments. SUMMARY: The Executive Director of the Federal Retirement Thrift Investment Board (Agency) proposes to amend the Thrift Savings Plan's (TSP's) regulations to improve processing of court orders that seek to divide a TSP account pursuant to a divorce. The proposed change would limit the types of court orders the Agency would accept to either one that requires payment of a specific dollar amount or that requires payment of a stated percentage or fraction of the account. The change would no longer allow formula court orders. DATES: Comments must be received on or before September 8, 2006. ADDRESSES: Comments may be sent to Thomas K. Emswiler, General Counsel, Federal Retirement Thrift Investment Board, 1250 H Street, NW., Washington, DC 20005. The Agency's fax number is
(202)942-1676. FOR FURTHER INFORMATION CONTACT: Megan Graziano on
(202)942-1659. SUPPLEMENTARY INFORMATION: The Agency administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)). The Executive Director proposes to amend the Agency's regulations to limit acceptable court orders that divide a TSP account to those that either require payment of a specific dollar amount or that require payment of a stated percentage or fraction of the account. Currently, the Agency will also accept a court order that requires payment of an amount determined by a formula that yields a mathematically possible result. All variables in the formula must have values that are readily ascertainable. Formula-based court order are overly complex and often are not acceptable by the Agency or, if acceptable, would result in payments that were not anticipated by either party to the order. As a consequence, the parties must return to court and obtain an amended order. Additionally, the formula court order requires the Agency to interpret the order and results in considerable administrative expense. These expenses are borne by all TSP participants. The proposed regulation will make it easier for the parties in a divorce to ensure that the Agency will divide a TSP account in accordance with their wishes. The proposed regulation simplifies the types of court orders the Agency will accept. The proposed regulation contains model paragraphs that attorneys can use to ensure that, in drafting orders, the language they select will both produce the intended result and meet the Agency's processing requirements. Consequently, in order to ensure accuracy of court order payments and to ensure that the administrative expenses of the court order program are reasonable for a retirement savings plan, the Executive Director proposes to amend Agency regulations to limit the types of court orders the Agency will accept to those that either require payment of a specific dollar amount or that require payment of a stated percentage or fraction of the account. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government. Paperwork Reduction Act I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act. Unfunded Mandates Reform Act of 1995 Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required. Submission to Congress and the Government Accountability Office Pursuant to 5 U.S.C. 801(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the **Federal Register** . This rule is not a major rule as defined at 5 U.S.C. section 804(2). List of Subjects in 5 CFR Part 1653 Court Orders and Legal Processes Affecting Thrift Savings Plan Accounts. Gary A. Amelio, Executive Director, Federal Retirement Thrift Investment Board. For the reasons set forth in the preamble, the Agency proposes to amend 5 CFR chapter VI as follows: PART 1653—COURT ORDERS AND LEGAL PROCESSES AFFECTING THRIFT SAVINGS PLAN ACCOUNTS 1. The authority citation for part 1653 continues to read as follows: Authority: 5 U.S.C. 8435, 8436(d), 8437(e), 8439(a)(3), 8474(b)(5), and 8474(c)(1). 2. Amend § 1653.2 by revising paragraphs (a)(3)(iii) and (a)(3)(iv) to read as follows: § 1653.2 Qualifying retirement benefits court order.
(a)* * *
(3)* * *
(i)* * *
(ii)* * *
(iii)A survivor annuity as provided in 5 U.S.C. 8435(d).
(iv)The following examples would qualify to require payment from the TSP, although ambiguous or conflicting language used elsewhere could cause the order to be rejected. Example (1). ORDERED: [payee's name, Social Security number (SSN), and address] is awarded $___ from the [civilian or uniformed services] Thrift Savings Plan account of [participant's name, SSN, and address]. Example (2). ORDERED: [payee's name, SSN, and address] is awarded ___% of the [civilian and/or uniformed services] Thrift Savings Plan account[s] of [participant's name, SSN, and address] as of [date]. Example (3). ORDERED: [payee's name, SSN, and address] is awarded [fraction] of the [civilian and/or uniformed services] Thrift Savings Plan account[s] of [participant's name, SSN, and address] as of [date]. Note: The following optional language can be used in conjunction with any of the above examples. FURTHER ORDERED: Earnings will be paid on the amount of the entitlement under this ORDER until payment is made. [FR Doc. E6-12895 Filed 8-8-06; 8:45 am] BILLING CODE 6760-01-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 3 [Docket No. APHIS-2006-0044] Animal Welfare; Elephants AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Notice of petition and request for comments. SUMMARY: We are notifying the public that the Animal and Plant Health Inspection Service has received a petition from In Defense of Animals requesting that we issue an interpretive rule or policy to clarify the space and living conditions required for captive elephants, and that we enforce the Animal Welfare Act and its implementing regulations by requiring that exhibitors fully comply with the regulations. We are soliciting comments from the public regarding the petition, and whether we should continue to regulate the handling, care, treatment, and transport of elephants covered by the Animal Welfare Act under the general standards in the regulations or promulgate specific standards for elephants. We are also requesting comments regarding what should be included in any such standards. DATES: We will consider all comments that we receive on or before October 10, 2006. ADDRESSES: You may submit comments by either of the following methods: • Federal eRulemaking Portal: Go to *http://www.regulations.gov* and, in the lower “Search Regulations and Federal Actions” box, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select APHIS-2006-0044 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • Postal Mail/Commercial Delivery: Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2006-0044, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2006-0044. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: Dr. Barbara Kohn, Senior Staff Veterinarian, Animal Care, APHIS, 4700 River Road Unit 84, Riverdale, MD 20737-1234;
(301)734-7833. SUPPLEMENTARY INFORMATION: Background The Animal Welfare Act
(AWA)(7 U.S.C. 2131 *et seq.* ) authorizes the Secretary of Agriculture to promulgate standards and other requirements governing the humane handling, care, treatment, and transportation of certain animals by dealers, research facilities, exhibitors, carriers, and other regulated entities. The Secretary of Agriculture has delegated the responsibility for enforcing the AWA to the Administrator of the Animal and Plant Health Inspection Service (APHIS). Regulations established under the AWA are contained in 9 CFR parts 1, 2, and 3. Currently, part 3 consists of subparts A through E, which contain specific standards for dogs and cats, guinea pigs and hamsters, rabbits, nonhuman primates, and marine mammals, respectively, and subpart F, which sets forth the general standards for warmblooded animals not otherwise specified in that part, including elephants. In a petition 1 dated February 2, 2006, In Defense of Animals (the petitioner) stated that exhibited elephants have chronic foot and joint problems due to inadequate space (indoor and outdoor enclosures) and inadequate living conditions (including amount of time confined, type of substrate, and cleanliness of floors). The petitioner requested that APHIS issue an interpretive rule or policy that clarifies the space and living conditions required for captive elephants, and that APHIS enforce the AWA and its implementing regulations by requiring that exhibitors fully comply with the regulations. 1 The petition is available on the Regulations.gov Web site. Go to *http://www.regulations.gov,* and, in the lower “Search Regulations and Federal Actions” box, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select APHIS-2006-0044. The petition will appear in the resulting list of documents. A copy of the petition may also be obtained from the person listed under FOR FURTHER INFORMATION CONTACT . We are requesting comments from the public on the petition. We are also requesting comments on whether specific standards should be promulgated for elephants and what should be included in such standards. In particular, we invite responses to the following questions: 1. What are the causes of arthritis in elephants? 2. What, if any, foot care practices have been used on captive elephants to maintain healthy feet? 3. What substrates are best for captive elephants? Are there any substrate conditions that promote foot problems? 4. Do captive elephants require a certain amount of exercise ( *i.e.* , walking) to maintain healthy feet? 5. What industry/professional standards are available for elephant care and husbandry? 6. Are there any other health or care issues related to elephants that should be specifically addressed in the AWA standards? We welcome all comments on the issues outlined above and encourage the submission of scientific data, studies, or research to support your comments and position, including scientific data or research that supports any industry or professional standards that pertain to elephant care. We also invite data on the costs and benefits associated with any recommendations. We will consider all comments and recommendations we receive. Authority: 7 U.S.C. 2131-2159; 7 CFR 2.22, 2.80, and 371.7. Done in Washington, DC, this 3rd day of August 2006. W. Ron DeHaven, Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-12935 Filed 8-8-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 93, 94, and 95 [Docket No. APHIS-2006-0026] Bovine Spongiform Encephalopathy; Minimal-Risk Regions, Identification of Ruminants and Processing and Importation of Commodities AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: In a final rule published in the **Federal Register** on January 4, 2005, we amended the regulations regarding the importation of animals and animal products to establish a category of regions that present a minimal risk of introducing bovine spongiform encephalopathy
(BSE)into the United States via live ruminants and ruminant products and byproducts, and we added Canada to this category. We also established conditions for the importation of certain live ruminants and ruminant products and byproducts from such regions. In this document, we are proposing to remove several restrictions regarding the identification of animals and the processing of ruminant materials from BSE minimal-risk regions, as well as BSE-based restrictions on gelatin derived from bovine hides. We do not believe these restrictions are necessary to prevent the introduction of BSE into the United States. DATES: We will consider all comments that we receive on or before October 10, 2006. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and, in the lower “Search Regulations and Federal Actions” box, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select APHIS-2006-0026 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2006-0026, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2006-0026. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov.* FOR FURTHER INFORMATION CONTACT: For information regarding ruminant products, contact Dr. Karen James-Preston, Director, Technical Trade Services, Animal Products, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231;
(301)734-4356. For information concerning live ruminants, contact Lee Ann Thomas, Director, Technical Trade Services, Animals, Organisms and Vectors, and Select Agents, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 38, Riverdale, MD 20737-1231;
(301)734-4356. SUPPLEMENTARY INFORMATION: Background In a final rule published in the **Federal Register** on January 4, 2005 (70 FR 460-553, Docket No. 03-080-3), we amended the regulations regarding the importation of animals and animal products to establish a category of regions that present a minimal risk of introducing bovine spongiform encephalopathy
(BSE)into the United States via live ruminants and ruminant products and byproducts, and added Canada to this category. We also established conditions for the importation of certain live ruminants and ruminant products and byproducts from such regions. These regulations are in 9 CFR parts 93, 94, 95, and 96. On November 28, 2005, we published in the **Federal Register** an interim rule (70 FR 71213-71218, Docket No. 03-080-8) that
(1)broadened who is authorized to break the seals on a means of conveyance carrying certain ruminants from Canada and
(2)amended the regulations regarding the transiting through the United States of certain ruminant products from Canada to allow for limited direct transloading of the products from one means of conveyance to another in the United States. On March 14, 2006, we published in the **Federal Register** a technical amendment (71 FR 12994-12998, Docket No. 03-080-9) that clarified our intent with regard to certain provisions in the January 2005 final rule and corrected several inconsistencies within the rule. In this proposed rule, we are proposing to further amend the BSE regulations to remove several restrictions related to the provisions of the January 2005 final rule that we believe are unnecessary to prevent the introduction of BSE from minimal-risk regions into the United States. We discuss those proposed changes below. Means of Identification of Bovines, Sheep, and Goats Imported From BSE Minimal-Risk Regions In our March 2006 technical amendment, we clarified that it was the intent of our January 2005 final rule that all live bovines, sheep, and goats imported from a BSE minimal-risk region be accompanied by a health certificate in accordance with § 93.405 and be individually identified in the region of export before being shipped to the United States. Because Canada was the only country categorized as a BSE minimal-risk region in our final rule, and because the standard means of individual livestock identification in Canada is an eartag, we specified in § 93.436 of the final rule that live bovines imported from a BSE minimal-risk region—in this case, Canada—must be individually identified by means of an official eartag of the country of origin. The eartag must be determined by the Administrator to meet standards equivalent to those for official eartags in the United States, as defined in 9 CFR part 71, and to be traceable to the premises of origin of the animal. We included a similar requirement in § 93.419(d)(2) for sheep and goats, but because, even before our January 2005 final rule, § 93.419 referred only to sheep and goats from Canada, we specified that the sheep and goats must be individually identified by an official Canadian Food Inspection Agency eartag. We recognize that there are effective means of individual identification other than eartags. However, as stated above, we provided in our January 2005 final rule that the means of individual identification must be an eartag because eartags are the required means of identification under Canada's national livestock identification program and Canada was the only country we were categorizing as a BSE minimal-risk region in the final rule. We now consider it advisable to amend the regulations in a way that allows for means of individual identification other than eartags. This change would make it clear to any other regions requesting BSE minimal-risk status what we consider acceptable with regard to individual identification and would give exporters the option of individually identifying bovines, sheep, and goats being exported to the United States by means other than eartags. Therefore, instead of requiring in § 93.436 that live bovines imported into the United States from a BSE minimal-risk region must be individually identified by means of an official eartag of the country of origin, and instead of requiring in § 93.419 that sheep and goats imported into the United States from Canada must be individually identified by an official Canadian Food Inspection Agency eartag, we are proposing to provide instead in §§ 93.419(c) and 93.436(a)(3) and (b)(4) that the animals must be officially identified with individual identification before the animals' arrival at the port of entry into the United States. We are also proposing to amend § 93.405(a)(4), which currently requires that the health certificate accompanying cattle, sheep, or goats imported from a BSE minimal-risk region record the eartag required under § 93.419 or § 93.436. We are proposing to require instead that the health certificate record the required official identification. We are proposing to define *officially identified* in § 93.400 of the regulations to mean “individually identified by means of an official identification device or method.” In § 93.400, *official identification device or method* is currently defined as a means of officially identifying an animal or group of animals using devices or methods approved by the Administrator, including, but not limited to, official tags, tattoos, and registered brands when accompanied by a certificate of inspection from a recognized brand inspection authority. We are not proposing to change that wording. However, we are proposing to add a sentence at the end of the definition to make it clear that, for animals intended for importation into the United States, the particular device or method of identification must have been approved by the Administrator for that type of import before the animal is exported to the United States. We are proposing to add that wording in order to clarify that, although a particular kind of identification may have been approved by the Administrator for use in particular situations or for particular types of animals, that doesn't necessarily mean it can be used for all types of animals and in all situations. For instance, due to an animal's anatomy, it might not be possible to affix certain types of tags to the animal in a way that ensures the tags will not fall off. As another example, although the current definition of *official identification device or method* includes “registered brands” as an example of such identification, a brand in itself might not provide adequate identification with regard to BSE. Although a registered brand would enable traceback of an animal to its herd of origin, in the case of BSE form of identification that provides more detailed information about an individual cow, such as an eartag, would be necessary. In the event that an importer or importing country seeks and is granted approval to use a device or method of identification other than one specifically provided for in the regulations, the record of that approval and the requirements, if any, for that device or method will be included in the protocol for imports from the exporting region, which will be made available on the APHIS Web site at *http://www.aphis.usda.gov/vs/ncie* . Hide-Derived Gelatin The regulations at § 94.18(c) address the importation of gelatin derived from ruminants from regions listed in § 94.18(a) as regions in which BSE exists (§ 94.18(a)(1)), regions that present an undue risk of introducing BSE into the United States (§ 94.18(a)(2)), and BSE minimal-risk regions (§ 94.18(a)(3)). With certain specified exceptions, § 94.18(c) prohibits the importation of gelatin derived from ruminants that have been in any region listed in § 94.18(a). One of the exceptions is for gelatin derived from the bones of bovines subject to a ruminant feed ban equivalent to the requirements established by the U.S. Food and Drug Administration at 21 CFR 589.2000 and from which specified risk materials
(SRMs)and small intestine were removed. We set forth the conditions for that exception in § 94.19(f) of the January 2005 final rule. As currently written, the exception in § 94.19(f) applies exclusively to gelatin derived from the bones of bovines and not to gelatin derived from bovine hides, even the hides of the same bovines whose bones are used for gelatin that is allowed importation into the United States. However, we believe there is no scientific reason to prohibit the importation of gelatin derived from the hides of bovines. Bovine hides have not demonstrated BSE infectivity, even in infected animals. The safety of bovine hides with regard to BSE is recognized internationally. The World Organization for Animal Health (commonly referred to as the OIE) recommends in Article 2.3.13.1 of the OIE Terrestrial Animal Health Code, 2005, that gelatin derived exclusively from the hides of bovines not be subject to import restrictions. The European Commission Scientific Steering Committee's *Updated Opinion on the Safety with Regard to TSE Risk of Gelatine Derived from Ruminant Bones or Hides* (adopted by the Scientific Steering Committee at its December 5-6, 2002, meeting) states in section B(c) of that document: “When ruminant hides are used for the production of gelatine, they are usually obtained from bovines. On the basis of current knowledge, it can be considered that the parts of the bovine hides used for the production of gelatine do not present a risk with regard to TSE's [transmissible spongiform encephalopathies, which include BSE], provided contamination with potentially infected materials is avoided.” Although APHIS considers gelatin derived from bovine hides a commodity that does not present a risk of transmitting the BSE agent, by oversight we did not include in our January 2005 final rule such gelatin as an exception to the general prohibition on the importation of gelatin derived from ruminants from BSE minimal-risk regions. Because there appears to be no scientific reason to prohibit the importation of such gelatin from BSE minimal-risk regions, we are proposing to amend § 94.19(f) to add that gelatin derived from the hides of bovines that have been in any region listed in § 94.18(a)(3) may be imported into the United States. In order to help ensure that such gelatin is not contaminated with the BSE agent, we are also proposing as a condition for such importation that the gelatin was not commingled with materials ineligible for entry into the United States. We would also apply the non-commingling requirement to gelatin derived from bones from bovines from BSE minimal-risk regions. Such gelatin is already allowed importation, with specified conditions, under § 94.19(f). Nonruminant Material The regulations in § 95.4 prohibit the importation of certain materials derived from nonruminants, as well as materials derived from ruminants. Specifically, the following nonruminant materials may not be imported into the United States from regions listed in § 94.18(a)—or be derived from nonruminant animals that have been in a region listed in § 94.18(a)—unless certain conditions are met: • Processed animal protein, tankage, and offal; • Tallow other than tallow derivatives, unless, in the opinion of the Administrator, the tallow cannot be used in feed; and • Processed fats and oils, and derivatives of processed animal protein, tankage, and offal. Among the conditions for the importation of these nonruminant materials is that all steps of processing and storing the material must have been carried out in a foreign facility that has not been used for the processing and storage of materials from ruminants that have been in any region listed in § 94.18(a). The purpose of this requirement is to eliminate the possibility that the nonruminant material could become commingled with or contaminated by ruminant material containing the BSE agent and therefore itself become contaminated with the BSE agent. We continue to consider this restriction necessary with regard to nonruminant materials that are processed in regions listed in § 94.18(a)(1) or
(2)(regions in which BSE exists and regions that present an undue risk of introducing BSE into the United States). However, requiring that nonruminant materials be processed in separate facilities from ruminant materials in BSE minimal-risk regions is inconsistent with other provisions in our January 2005 final rule. Therefore, we are proposing to eliminate that inconsistency, for the reasons explained below. Our January 2005 final rule allowed the importation of certain ruminant meat, products, and byproducts from Canada (at this time Canada is the only region recognized by APHIS as a BSE minimal-risk region). APHIS determined that such commodities present a low risk of introducing BSE into the United States, based on a number of factors. These factors include the measures Canada has in place to detect and prevent BSE within Canadian cattle and the commodity-specific mitigation measures in the final rule. For meat (including whole or half carcasses), meat byproducts, and meat food products derived from bovines, the regulations require that the bovines be subject to a ruminant feed ban, prohibit the use of an air-injected stunning process at slaughter, and require that SRMs and the small intestine of the bovines be removed at slaughter. Research has shown that BSE infectivity in infected bovines is localized in specific tissues, and removal of SRMs is an effective risk mitigation measure for bovines. Therefore, the regulations do not require that bovine meat eligible for entry into the United States from a BSE minimal-risk region be processed in a facility that processes only bovine commodities eligible for entry into the United States. 1 1 Pursuant to an announcement by the Secretary of Agriculture on February 9, 2005, APHIS published in the **Federal Register** on March 11, 2005, a document (70 FR 12112-12113, Docket No. 03-080-6) delaying until further notice the applicability of the provisions of the final rule as they apply to the importation from Canada of certain commodities derived from bovines 30 months of age or older. While the delay in applicability is in effect, commodities from Canada derived from bovines less than 30 months of age when slaughtered will be required to be processed in an establishment that operates in compliance with an approved Canadian Food Inspection Agency program to prevent commingling of ruminant products eligible for export to the United States with ruminant products ineligible for export to the United States. This is to ensure that only products from bovines less than 30 months of age are exported to the United States, however; not to prevent contamination. In sheep and goats, research has not identified SRMs that could be removed to eliminate any potential infectivity from infected animals. Infectivity has not been demonstrated in most tissues in sheep and goats until at least 16-months post-exposure to the BSE agent. Therefore, for meat (including whole or half carcasses), meat byproducts, and meat food products from sheep or goats or other ovines or caprines, the regulations require that the animals, among other things, be less than 12 months of age when slaughtered and be slaughtered at a facility that either slaughters only sheep and/or goats or other ovines and caprines less than 12 months of age or complies with a segregation process approved by the national veterinary authority of the region of origin and the Administrator as adequate to prevent contamination or commingling of the meat with products not eligible for importation into the United States. In both cases, however—for products derived from bovines and for products derived from sheep or goats—the regulations do not require that the animals necessarily be slaughtered in a facility dedicated only to ruminant products eligible for entry into the United States. Because products derived from nonruminants pose even less of a BSE risk than those derived from ruminants, it is inconsistent with the January 2005 final rule to require in § 95.4 that, in a region listed in § 94.18(a)(3) (i.e., a BSE minimal-risk region), all steps of processing nonruminant protein, tankage, offal, and tallow other than tallow derivatives, as well as processed fats and oils, and derivatives of processed animal protein, tankage, and offal derived from nonruminants, be carried out in a facility that has not been used for the processing and storage of materials from ruminants that have been in any region listed in § 94.18(a)(3) (a BSE minimal-risk region). Therefore, we are proposing to amend § 95.4 by adding a new paragraph (c)(3) to require that, for facilities in regions listed in § 94.18(a)(3), steps of processing and storing the nonruminant material are carried out in a facility that has not been used for the processing and storage of materials derived from ruminants that have been in any region listed in § 94.18(a)(1) or (a)(2). Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. The Regulatory Flexibility Act requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. We have prepared an initial regulatory flexibility analysis, which is set forth below. In a final rule published in January 2005, we established a category of regions that present a minimal risk of introducing BSE into the United States via live ruminants and ruminant products and byproducts, and added Canada to this category. We also established conditions for the importation of certain live ruminants and ruminant products and byproducts from such regions. In this proposed rule, we are proposing to remove certain restrictions on imports from BSE minimal-risk regions that concern animal identification, the derivation of bovine gelatin, and the processing of ruminant and nonruminant materials. We do not believe these restrictions are necessary to prevent the introduction of BSE into the United States. Instead of limiting the type of allowable individual identification on bovines, sheep, and goats imported from a BSE minimal-risk region to an official eartag of the country of origin, we are proposing to allow individual identification of animals by means other than eartags, provided the APHIS Administrator has approved the manner of identification for the type of animal intended for importation. Instead of limiting the importation of bovine-derived gelatin from BSE minimal-risk regions to gelatin derived from bones, we are proposing to also allow the importation of hide-derived gelatin, provided certain conditions are met. We are also proposing to allow nonruminant material that is processed in BSE minimal-risk regions—such as processed animal protein, tankage, offal, certain tallow, processed fats and oils, and derivatives of processed animal protein, tankage, and offal—to be processed in facilities that also process material derived from ruminants from the minimal-risk region. We address below the potential economic effect of each of these changes. Animal Identification Giving owners of bovines, sheep, and goats in BSE minimal-risk regions the option of individually identifying animals being exported to the United States by means other than eartags is not expected to affect U.S. small entities. This amendment simply acknowledges that there are effective means of individual identification other than eartags. However, APHIS welcomes information that the public may offer on ways this amendment may impact small entities, and the type and number of small entities that would be affected. Hide-Derived Gelatin This amendment, by allowing the importation of gelatin derived from bovine hides, in addition to gelatin derived from bovine bones, could affect U.S. entities by providing for an additional source of gelatin imported from Canada. Gelatin is derived from collagen, an insoluble fibrous protein that is the principal constituent of connective tissues and bones. The main raw materials used in gelatin production are cattle bones, cattle hides, and porkskins. Gelatin recovered from bone is used primarily in photographic applications. Porkskin is currently the most significant raw material source for production of edible gelatin in North America. Cattle hides are the least used raw material for gelatin in North America today. Cattle hides sourced by member companies of the Gelatin Manufacturers Institute of America for the production of gelatin for food use are purchased from a small number of tanneries in the United States. We do not have information about the quantity of hide-derived gelatin that would be imported from Canada because of this proposed rule, nor do we have an estimate of the number of U.S. small entities that would be affected. Production of animal hides is classified by the North American Industry Classification System (NAICS) under “Animal (except Poultry) Slaughtering” (NAICS 311611), for which the small entity definition is businesses with not more than 500 employees. We welcome information that would allow us to better understand the number and size of entities that could be affected by allowing the importation of hide-derived bovine gelatin from Canada, and the extent of the possible impact. Nonruminant Material This amendment would remove the requirement that nonruminant material that is processed in BSE minimal-risk regions be processed in a facility that does not also process material derived from ruminants from the minimal-risk region. If this amendment were to result in changes in the amounts of nonruminant material imported by the United States, then U.S. entities could be affected. Affected nonruminant material may include processed animal protein, tankage, offal, certain tallow, processed fats and oils, and derivatives of processed animal protein, tankage, and offal. Facilities that produce these commodities are classified under “Rendering and Meat By-product Processing” (NAICS 311613), for which the small entity definition is businesses with not more than 500 employees. We do not have a basis for estimating the change in imports of Canadian nonruminant materials that may result from the proposed rule, nor do we know the number or size of U.S. entities that would be affected. APHIS welcomes information that the public may provide regarding the number of small entities that could be affected and the likely magnitude of the effect. APHIS has not identified any Federal rules that may duplicate, overlap, or conflict with this proposed rule, and believes there are no significant alternatives to this proposed rule that would accomplish the stated objectives. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted:
(1)All State and local laws and regulations that are inconsistent with this rule will be preempted;
(2)no retroactive effect will be given to this rule; and
(3)administrative proceedings will not be required before parties may file suit in court challenging this rule. Paperwork Reduction Act This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 9 CFR Part 93 Animal diseases, Imports, Livestock, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements. 9 CFR Part 94 Animal diseases, Imports, Livestock, Meat and meat products, Milk, Poultry and poultry products, Reporting and recordkeeping requirements. 9 CFR Part 95 Animal feeds, Hay, Imports, Livestock, Reporting and recordkeeping requirements, Straw, Transportation. Accordingly, we are proposing to amend 9 CFR parts 93, 94, and 95 as follows: PART 93—IMPORTATION OF CERTAIN ANIMALS, BIRDS, AND POULTRY, AND CERTAIN ANIMAL, BIRD, AND POULTRY PRODUCTS; REQUIREMENTS FOR MEANS OF CONVEYANCE AND SHIPPING CONTAINERS 1. The authority citation for part 93 would continue to read as follows: Authority: 7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4. 2. Section 93.400 would be amended by revising the definition of *official identification device or method* and adding a definition of *officially identified* , in alphabetical order, to read as follows: § 93.400 Definitions. *Official identification device or method.* A means of officially identifying an animal or group of animals using devices or methods approved by the Administrator, including, but not limited to, official tags, tattoos, and registered brands when accompanied by a certificate of inspection from a recognized brand inspection authority. For animals intended for importation into the United States, the device or method of identification used must have been approved by the Administrator for that type of import before the animal is exported to the United States. *Officially identified.* Individually identified by means of an official identification device or method. 3. In § 93.405, paragraph (a)(4) would be amended by removing the word “eartag” and adding in its place the words “official identification.” 4. Section 93.419 would be amended by revising paragraph (c), introductory text, and paragraphs (d)(2), (d)(5), (d)(7)(i), and (d)(7)(iii) to read as follows: § 93.419 Sheep and goats from Canada.
(c)Any sheep or goats imported from Canada must not be pregnant, must be less than 12 months of age when imported into the United States and when slaughtered, must be from a flock or herd subject to a ruminant feed ban equivalent to the requirements established by the U.S. Food and Drug Administration at 21 CFR 589.2000, and must be officially identified with individual identification before the animal's arrival at the port of entry into the United States. No person may alter, deface, remove, or otherwise tamper with the official identification while the animal is in the United States or moving into or through the United States, except that the identification may be removed at the time of slaughter. The animals must be accompanied by the certification issued in accordance with § 93.405 that states, in addition to the statements required by § 93.405, that the conditions of this paragraph have been met. Additionally, for sheep and goats imported for other than immediate slaughter, the certificate must state that the conditions of paragraph (d)(1) of this section have been met. For sheep and goats imported for immediate slaughter, the certificate must also state that:
(d)* * *
(2)The animals may be moved from the port of entry only to a feedlot designated in accordance with paragraph (d)(7) of this section and must be accompanied from the port of entry to the designated feedlot by APHIS Form VS 17-130 or other movement documentation deemed acceptable by the Administrator, which must identify the physical location of the feedlot, the individual responsible for the movement of the animals, and the individual identification of each animal, which includes the official identification required under paragraph
(c)of this section and any other identification present on the animal, including registration number, if any:
(5)The animals must be accompanied to the recognized slaughtering establishment by APHIS Form VS 1-27 or other documentation deemed acceptable by the Administrator, which must identify the physical location of the recognized slaughtering establishment, the individual responsible for the movement of the animals, and the individual identification of each animal, which includes the official identification required under paragraph
(c)of this section and any other identification present on the animal, including registration number, if any;
(7)* * *
(i)Will not remove official identification from animals unless medically necessary, in which case new official identification will be applied and cross referenced in the records;
(iii)Will maintain records of the acquisition and disposition of all imported sheep and goats entering the feed lot, including the official identification number and all other identifying information, the age of each animal, the date each animal was acquired and the date each animal was shipped to slaughter, and the name and location of the plant where each animal was slaughtered. For Canadian animals that die in the feedlot, the feedlot will remove the official identification device if affixed to the animal, or will record any other official identification on the animal and place the official identification device or record of official identification in a file with a record of the disposition of the carcass; 5. Section 93.436 would be amended as follows: a. Paragraphs (a)(3) and (b)(4) would be revised to read as set forth below. b. In paragraphs (b)(8) and (b)(11), the word “eartag” would be removed and the words “official identification” would be added in its place. § 93.436 Ruminants from regions of minimal risk for BSE.
(a)* * *
(3)Each bovine must be officially identified with individual identification before the animal's arrival at the port of entry into the United States. No person may alter, deface, remove, or otherwise tamper with the official identification while the animal is in the United States or moving into or through the United States, except that the identification may be removed at slaughter;
(b)* * *
(4)Each bovine must be officially identified with individual identification before the animal's arrival at the port of entry into the United States. No person may alter, deface, remove, or otherwise tamper with the official identification while the animal is in the United States or moving into or through the United States, except that the identification may be removed at slaughter; PART 94—RINDERPEST, FOOT-AND-MOUTH DISEASE, FOWL PEST (FOWL PLAGUE), EXOTIC NEWCASTLE DISEASE, AFRICAN SWINE FEVER, CLASSICAL SWINE FEVER, AND BOVINE SPONGIFORM ENCEPHALOPATHY: PROHIBITED AND RESTRICTED IMPORTATIONS 6. The authority citation for part 94 would continue to read as follows: Authority: 7 U.S.C. 450, 7701-7772, 7781-7786, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4. 7. In § 94.19, paragraph
(f)would be revised to read as follows: § 94.19 Restrictions on importation from BSE minimal-risk regions of meat and edible products from ruminants.
(f)*Gelatin other than that allowed importation under § 94.18(c).* The gelatin is derived from:
(1)The bones of bovines subject to a ruminant feed ban equivalent to the requirements established by the U.S. Food and Drug Administration at 21 CFR 589.2000 and from which SRMs and small intestine were removed, and the gelatin has not been commingled with materials ineligible for entry into the United States; or
(2)The hides of bovines, and the gelatin has not been commingled with materials ineligible for entry into the United States. PART 95—SANITARY CONTROL OF ANIMAL BYPRODUCTS (EXCEPT CASINGS), AND HAY AND STRAW, OFFERED FOR ENTRY INTO THE UNITED STATES 8. The authority citation for part 95 would continue to read as follows: Authority: 7 U.S.C. 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4. 9. Section 95.4 would be amended as follows: a. Paragraph (c)(2) would be revised to read as set forth below. b. Paragraphs (c)(3) through (c)(7) would be redesignated as paragraphs (c)(4) through (c)(8), respectively. c. A new paragraph (c)(3) would be added to read as set forth below. d. Newly designated paragraph (c)(7) would be revised to read as set forth below. § 95.4 Restrictions on the importation of processed animal protein, offal, tankage, fat, glands, certain tallow other than tallow derivatives, and serum due to bovine spongiform encephalopathy.
(c)* * *
(2)Except for material processed or stored in regions listed in § 94.18(a)(3) of this subchapter, all steps of processing and storing the material are carried out in a facility that has not been used for the processing and storage of materials derived from ruminants that have been in any region listed in § 94.18(a) of this subchapter.
(3)For material processed or stored in regions listed in § 94.18(a)(3) of this subchapter, all steps of processing and storing the material are carried out in a facility that has not been used for the processing and storage of materials derived from ruminants that have been in any region listed in § 94.18(a)(1) or (a)(2) of this subchapter.
(7)Each shipment to the United States is accompanied by an original certificate signed by a full-time, salaried veterinarian of the government agency responsible for animal health in the region of export certifying that the conditions of paragraphs (c)(1) through (c)(4) of this section have been met; *except that,* for shipments of animal feed from a region listed in § 94.18(a)(3) of this subchapter, the certificate may be signed by a person authorized to issue such certificates by the veterinary services of the national government of the region of origin. Done in Washington, DC, this 3rd day of August 2006. Elizabeth E. Gaston, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-12944 Filed 8-8-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Part 98 [Docket No. APHIS-2006-0120] Importation of Sheep and Goat Semen AGENCY: Animal and Plant Health Inspection Service, USDA. ACTION: Proposed rule. SUMMARY: We are proposing to amend the regulations regarding the importation of animal germplasm by removing specific restrictions on sheep semen from regions where scrapie exists and requiring the inclusion of additional information on the international health certificate accompanying sheep and goat semen. Experience and research have convinced us that sheep and goat semen pose a minimal risk of transmitting scrapie. This action would relieve restrictions on imported sheep semen while continuing to provide safeguards against the introduction and dissemination of scrapie. DATES: We will consider all comments that we receive on or before October 10, 2006. ADDRESSES: You may submit comments by either of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and, in the lower “Search Regulations and Federal Actions” box, select “Animal and Plant Health Inspection Service” from the agency drop-down menu, then click on “Submit.” In the Docket ID column, select APHIS-2006-0120 to submit or view public comments and to view supporting and related materials available electronically. Information on using Regulations.gov, including instructions for accessing documents, submitting comments, and viewing the docket after the close of the comment period, is available through the site's “User Tips” link. • *Postal Mail/Commercial Delivery:* Please send four copies of your comment (an original and three copies) to Docket No. APHIS-2006-0120, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road Unit 118, Riverdale, MD 20737-1238. Please state that your comment refers to Docket No. APHIS-2006-0120. *Reading Room:* You may read any comments that we receive on this docket in our reading room. The reading room is located in room 1141 of the USDA South Building, 14th Street and Independence Avenue, SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call
(202)690-2817 before coming. *Other Information:* Additional information about APHIS and its programs is available on the Internet at *http://www.aphis.usda.gov* . FOR FURTHER INFORMATION CONTACT: Dr. Arnaldo Vaquer, Senior Staff Veterinarian, Technical Trade Services, National Center for Import and Export, VS, APHIS, 4700 River Road Unit 39, Riverdale, MD 20737-1231;
(301)734-8074. SUPPLEMENTARY INFORMATION: Background The regulations in 9 CFR part 98 govern the importation of animal germplasm to prevent the introduction of contagious diseases of livestock and poultry into the United States. Subparts A and B of part 98 apply to animal embryos, and subpart C (§§ 98.30 through 98.38, referred to below as the regulations) applies to animal semen. Currently, the regulations in § 98.37 restrict, due to scrapie concerns, the importation of sheep semen into the United States from any region of the world other than Australia, Canada, and New Zealand. These restrictions include provisions that the semen must be transferred only to females in a U.S. flock that is participating in the voluntary Scrapie Flock Certification Program (SFCP), that the semen must originate from a donor animal participating in a program equivalent to the SFCP or the SFCP flock status must be lowered, and that the semen must be accompanied by a certificate attesting to the above conditions. The importer is also required to provide the Animal and Plant Health Inspection Service (APHIS) with information concerning control programs, surveillance, and disease incidence in the exporting region, as well as information concerning the health status of other ruminants in the region. The regulations in § 98.35 deal with declarations, health certificates, and other documents required for the importation of all animal semen into the United States. All animal semen intended for importation to the United States must be accompanied by a health certificate that provides certain specific information about the origin and handling of the semen. Paragraph
(e)lists additional requirements for the health certificate accompanying sheep and goat semen, which must include an attestation that the semen donor has not been in any flock or herd nor had contact with sheep or goats which have been in any flock or herd where scrapie has been diagnosed or suspected during the 5 years prior to the date of collection of the semen, that the semen donor showed no evidence of scrapie at the time of collection, and that the parents of the semen donor are not, nor were not, affected with scrapie. These requirements are more restrictive than those recommended by the World Organization for Animal Health
(OIE)in Chapter 2.4.8, Article 2.4.8.8 of the Terrestrial Animal Health Code. The OIE standards for importing sheep and goat semen from a region not free from scrapie state that importing countries should require an international veterinary certificate attesting that in the region of origin, scrapie is compulsorily notifiable, a surveillance and monitoring system is in place, affected sheep and goats are slaughtered and completely destroyed, and the feeding of sheep and goats with meat-and-bone meal or greaves potentially contaminated with an animal transmissible spongiform encephalopathy
(TSE)has been banned and the ban effectively enforced in the whole region. The certificate should also attest that donor animals are permanently identified to enable traceback to their establishment of origin, have been kept since birth in establishments in which no case of scrapie has been confirmed during their residency, and showed no clinical sign of scrapie at the time of semen collection. Experience and research have convinced APHIS that sheep semen poses a minimal risk of transmitting and disseminating scrapie in the United States. Through the SFCP, flocks using imported semen from scrapie-affected regions have been monitored and no first generation
(F1)progeny resulting from the imported semen have been implicated in scrapie outbreaks. Furthermore, research studies, though limited in scope, have not revealed transmission through semen or detected the infective agent in semen, testes, or seminal vesicles of affected rams. 1 1 *See* L.A. Detwiler and M. Baylis, “The Epidemiology of Scrapie,” *Rev. sci. tech. Off. int. Epiz.* 2003, 22 (1), 131. Therefore, we are proposing to ease the restrictions on the importation of sheep semen by removing the provisions of § 98.37 from our regulations. In lieu of these regulations, we would amend § 98.35(e) to require that imported sheep or goat semen be accompanied by an international veterinary certificate consistent with the OIE standards describe above. In § 98.35, paragraph
(e)already contains some certificate requirements for imported sheep and goat semen; the changes we are proposing would bring them further into alignment with international standards. Specifically, we would amend § 98.35(e) to require imported sheep and goat semen to be accompanied by an international veterinary certificate attesting that in the region where the semen originates certain conditions are met. These conditions would include that scrapie is a compulsorily notifiable disease and that there is an effective surveillance and monitoring system for scrapie in the region where the semen originates. In addition, the region where the semen originates would have to require that affected sheep and goats are slaughtered and completely destroyed. The region where the semen originates must also enforce a ruminant-to-ruminant feed ban; that is, the feeding of sheep and goats with meat-and-bone meal or greaves derived from ruminants must also be banned and the ban effectively enforced in the whole region. The certificate would have to attest that the donor animals are permanently identified to enable traceback to their premises of origin, have been kept since birth on premises in which no case of scrapie had been confirmed during their residency, showed no clinical sign of scrapie at the time of semen collection, and did not subsequently develop scrapie between the time of collection and the time the semen was exported to the United States. The certificate would also have to attest that donor animals were not the offspring of scrapie-affected dams. This certificate would be required for all sheep and goat semen imported into the United States. In addition, the distribution of imported semen within the United States could be limited, depending on the status of the region of origin of the semen. Semen from regions free of scrapie could be distributed throughout the United States, but semen from regions not scrapie free could only be distributed to a flock that is listed as a flock/herd premises in the Scrapie National Database as part of either the regulatory or voluntary flock certification scrapie programs described in 9 CFR part 79 and 9 CFR part 54 subpart B, respectively. Flock owners would also be required to sign a written agreement that all first generation
(F1)progeny resulting from imported semen from a region that is not free of scrapie would be identified with a permanent official identification consistent with the provisions in § 79.2, and records of any sale of F1 progeny, including the name and address of the buyer, would be kept for a period of 5 years. This would ease some restrictions on where imported semen may be used while still enabling traceback of the progeny resulting from the imported semen. While the risk of scrapie transmission from sheep semen is believed to be minimal, no studies have been done regarding the transmissibility through semen of other animal TSEs and certain other diseases in small ruminants. For this reason, traceback of progeny is essential. Under the proposed rule, we would recognize Australia and New Zealand as regions free of scrapie. The regulations in § 98.37 currently allow imported sheep semen from Australia, Canada, and New Zealand to be distributed to any flock in the United States. When these regulations were established in 1996, Canada was included in the list of regions from which semen could be imported without additional restrictions even though Canada is not scrapie free. At that time, Canada had a scrapie control program equivalent to the one in the United States, and it was determined to be unlikely that new strains of scrapie would be spread into the United States from Canada. In 2001, the United States went from a control program to an eradication program, which is now in full implementation. However, Canada's scrapie program has not advanced at the same speed as the one in the United States. For these reasons, under the proposed rule semen imported from Canada would be subject to the same restrictions as semen from all other regions except Australia and New Zealand, *i.e,* it could be distributed only to females in a flock that is listed as a flock/herd premises in the Scrapie National Database, as described above. Executive Order 12866 and Regulatory Flexibility Act This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. The regulations in § 98.37 restrict the importation of sheep semen from regions other than Australia, Canada, and New Zealand due to scrapie concerns. These restrictions include provisions requiring the semen to be transferred only to females in a United States flock that participates in the SFCP, the semen originates from a donor animal participating in a program equivalent to the United States SFCP, and that the semen is accompanied by a certificate attesting to the above conditions. Additionally, the regulations require the importer to provide APHIS with information regarding control programs, surveillance, and disease incidence in the exporting region, as well as information on the health status of other ruminants in the region in order to export sheep semen to the United States. All of these restrictions on imports of sheep and goat semen were put in place due to scrapie concerns and with the goal of preventing the spread of scrapie in domestic animals. However, further scientific research, as well as experience, has demonstrated to APHIS that sheep and goat semen pose a minimal risk of transmitting scrapie. Therefore, this proposed rule would eliminate restrictions on sheep semen being imported from regions other than Australia, Canada, and New Zealand by removing the provisions of § 98.37 from our regulations. In their place, we would require that sheep or goat semen from scrapie-affected regions be accompanied by an international veterinary certificate as recommended in OIE's Terrestrial Animal Health Code. Consequently, this proposed rule would bring the United States' import standards for sheep semen in harmony with recognized international standards, while still protecting against scrapie introduction to the United States. These proposed changes in the regulations would have a direct effect on importers of sheep semen and those businesses involved in support activities for animal production, which includes, among other activities, establishments providing breeding services. The number of establishments engaged in support activities for animal production is tracked by the U.S. Census Bureau. In 2001, the latest available year, there were 3,999 establishments in the North American Industry Classification System (NAICS) subsector 1152, which comprises establishments primarily engaged in performing support activities related to raising livestock. 2 The annual payroll for these 3,999 establishments was $452.3 million, which translates into an average annual payroll per establishment of $113,106. The U.S. Small Business Administration's
(SBA)size standard for this particular sector is $6 million or less in annual receipts. 3 Unfortunately, the Census data do not include annual receipts for these establishments; however, based on the average annual payroll per establishment, it is reasonable to conclude that the majority of these businesses would be considered small by SBA definitions. 2 *Statistics of U.S. Businesses: 2001: Support Activities for Animal Production—United States* . Washington, DC: U.S. Census Bureau. 3 Table of Size Standards based on NAICS 2002. Washington, DC: U.S. Small Business Administration, 2004. A variety of animal production support activities other than artificial insemination for sheep are included in NAICS subsector 1152. APHIS does not have specific information on the number or size of businesses providing artificial insemination services. Based on the data for all NAICS 1152 businesses, we believe they are primarily small entities with annual receipts of not more than $6 million. APHIS welcomes public comment that would support or contradict this understanding. Additionally, it is possible the proposed rule may indirectly affect domestic sheep and goat producers. The Census of Agriculture for 2002, the most recent year for which we have data, estimated that there were 43,891 farms engaged in sheep and goat farming. 4 The SBA size standard for sheep and goat farming (NAICS subsector 1124) is $750,000 or less in annual receipts. The 2002 Census estimates the total market value of all agricultural products sold by domestic sheep and goat farmers to be over $445 million, which translates into an average of $10,147 per farm. When combined with government payments, the average per farm market value of agricultural products sold is $10,815. 5 Only 114 farms are classified as having $500,000 or more in market value of agricultural products sold and government payments. So, at least 43,777, or 99 percent, of farms engaged in sheep and goat farming would be considered small by SBA standards. 4 USDA, *2002 Census of Agriculture-United States Data* , Table 50. Washington, DC: National Agricultural Statistics Service. 5 USDA, *2002 Census of Agriculture* , Table 59, under column heading “Sheep and Goat Farming (1124).” Foreign exporters of sheep semen from countries other than Australia, Canada, and New Zealand might also benefit from the removal of import restrictions on sheep semen. However, as non-U.S. entities, they lie outside the scope of the Regulatory Flexibility Act and are not considered in this economic analysis. As this proposed rule would lift some of the import restrictions on imported semen from regions that are not considered scrapie-free, there would be a reduction in compliance requirements. In place of current requirements, imported sheep or goat semen would have to be accompanied by an international veterinary certificate consistent with OIE standards. This certificate would have to be completed by a veterinary officer prior to being exported to the United States, and as such would not pose any compliance requirements for domestic entities. Benefits Importers of sheep semen, as well as firms engaged in agricultural support activities, specifically those providing artificial insemination services, could possibly benefit from the proposed changes. Imports of sheep semen are not tracked as a separate line item by USDA's Foreign Agricultural Service. However, Veterinary Services of APHIS tracks raw data and estimates there were 2,491 straws of sheep semen imported in 2004 and only 1 straw in 2003, with Australia being the primary exporter. 6 It is possible that the proposed changes would encourage exports of sheep and goat semen to the United States in response to reduced import restrictions. Laws of supply and demand dictate that increased supply will result in lower prices. However, if this happens, it would be over the long run because currently there is not a large demand for sheep semen in the United States, as is evidenced by the number of imports. In fact, domestic sheep and goat producers rarely rely on artificial insemination as a means for breeding animals, as it is too expensive. Artificial insemination technology is primarily practiced by the seedstock industry. Thus, the market for imported sheep semen is small, consisting primarily of producers that raise less common breeds and desire imported semen to improve and diversify their genetics. 7 6 Elizabeth McKenna, Data Manager (APHIS). 7 Susan Schoenian, Area Agent, Sheep & Goats Western Maryland Research & Education Center, University of Maryland Cooperative Extension; via e-mail communication and article “An Update on Sheep A.I.” Maryland Small Ruminant page. *http://www.sheepandgoat.com/articles/ai.html* , Maryland Sheep News, 1999. Costs It is possible the proposed changes could have an indirect effect on domestic sheep and goat breeders over the long run. However, a variety of conditions would have to be met for this situation to materialize. These conditions include, but are not limited to, artificial insemination technology becoming a more cost-effective approach to sheep and goat production versus using breeding animals. Essentially, the only way sheep and goat breeders would be affected over the long run is if the process of artificial insemination becomes cheaper than purchasing or maintaining replacement breeding animals. As of January 1, 2005, there were inventories of 4.53 million head of breeding sheep and 2.1 million head of breeding goats in the United States. Thus, it is possible that, as the process of artificial insemination becomes more cost-effective and as imported sheep semen becomes more readily available and technologies improve, sheep and goat producers will substitute away from buying replacement breeding animals and use artificial insemination instead. However, as stated previously, this situation is long-term in nature and highly conditional. Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities. Executive Order 12988 This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted:
(1)All State and local laws and regulations that are inconsistent with this rule will be preempted;
(2)no retroactive effect will be given to this rule; and
(3)administrative proceedings will not be required before parties may file suit in court challenging this rule. Paperwork Reduction Act This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 9 CFR Part 98 Animal diseases, Imports. Accordingly, we propose to amend 9 CFR part 98 as follows: PART 98—IMPORTATION OF CERTAIN ANIMAL EMBRYOS AND ANIMAL SEMEN 1. The authority citation for part 98 would continue to read as follows: Authority: 7 U.S.C. 1622 and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4. 2. In § 98.35, paragraphs (e)(1), (e)(2), and (e)(3) would be revised to read as follows: § 98.35 Declaration, health certificate, and other documents for animal semen.
(e)* * *
(1)The donor animals:
(i)Are permanently identified, to enable trace back to their establishment of origin; and
(ii)Have been kept since birth in establishments in which no case of scrapie had been confirmed during their residency; and
(iii)Neither showed clinical signs of scrapie at the time of semen collection nor developed scrapie between the time of semen collection and export of the semen to the United States; and
(iv)The dam of the semen donor is not, nor was not, affected with scrapie.
(2)In the region where the semen originates:
(i)Scrapie is a compulsorily notifiable disease; and
(ii)An effective surveillance and monitoring system for scrapie is in place; and
(iii)Affected sheep and goats are slaughtered and completely destroyed; and
(iv)The feeding of sheep and goats with meat-and-bone meal or greaves derived from ruminants has been banned and the ban effectively enforced in the whole region; and
(3)Semen originating in regions other than Australia and New Zealand is to be transferred to females in a flock that is listed as a flock/herd premises in the Scrapie National Database as part of the Scrapie Program in the United States, and the flock owner has agreed, in writing, that:
(i)All first generation
(F1)progeny resulting from imported semen will be identified with a permanent official identification consistent with the provisions in § 79.2 of this chapter; and
(ii)Records of any sale of F1 progeny, including the name and address of the buyer, will be kept for a period of 5 years. § 98.37 [Removed and reserved] 3. Section 98.37 would be removed and reserved. Done in Washington, DC, this 3rd day of August 2006. Elizabeth E. Gaston, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-12934 Filed 8-8-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25554; Directorate Identifier 2006-NM-123-AD] RIN 2120-AA64 Airworthiness Directives; Lockheed Model L-1011 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Lockheed Model L-1011 series airplanes. This proposed AD would require a one-time detailed inspection of the C112 harness clamp assembly for proper installation, a one-time detailed inspection of the C112 and C162 harness assemblies for damage, and corrective actions if necessary. This proposed AD results from a report of electrical arcing of the essential bus feeder cables behind hinged circuit breaker panel CB3 P-K. We are proposing this AD to prevent arcing of essential bus feeder cables due to improper installation of the harness C112 clamp assembly, which could result in loss of electrical systems and smoke and/or fire behind the CB3 P-K hinged circuit breaker panel in the flight compartment. DATES: We must receive comments on this proposed AD by September 25, 2006. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street SW., Nassif Building, room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Lockheed Martin Aircraft & Logistics Center, 120 Orion Street, Greenville, South Carolina 29605, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Robert Chupka, Aerospace Engineer, Systems and Equipment Branch, ACE-119A, FAA, Atlanta Aircraft Certification Office, One Crown Center, 1895 Phoenix Boulevard, Suite 450, Atlanta, Georgia 30349; telephone
(770)703-6070; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2006-25554; Directorate Identifier 2006-NM-123-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received a report of electrical arcing of the essential bus feeder cables behind hinged circuit breaker panel CB3 P-K that occurred during maintenance, causing extensive damage to the surrounding area, on a Lockheed Model L-1011 series airplane. Investigation of the arcing revealed that the cushion clamp securing wire harness assembly C112 was installed incorrectly, with the clamp loop on the forward side instead of the aft side of the clamp screw. The improper installation of the cushion clamp allowed the clamp to chafe against the C162 wire harness. We have also received a report indicating that two additional airplanes have been found with improperly installed cushion clamps at this location. This condition, if not corrected, could result in loss of electrical systems and smoke and/or fire behind the CB3 P-K hinged circuit breaker panel in the flight compartment. Relevant Service Information We have reviewed Lockheed L-1011 Service Bulletin 093-24-142, dated November 16, 2005. The service bulletin describes procedures for a one-time detailed inspection of the circuit breaker panel clamp assembly for harness C112 just outboard of terminal block 2400 TB17 in the hinged circuit breaker panel CB3 P-K to verify the position of the clamp assembly. It also describes procedures for a one-time detailed inspection of the C112 and C162 harness assemblies for damage (e.g., evidence of chafing, arcing, or deterioration), and corrective actions if necessary. The corrective actions include repositioning the clamp assembly to the correct position and correcting damage found in the C112 and C162 harness assemblies. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.” Difference Between the Proposed AD and the Service Bulletin Although the service bulletin recommends accomplishing the inspection of the circuit breaker panel clamp assembly for harness C112 “at the next scheduled maintenance visit,” we have determined that this imprecise compliance time would not address the identified unsafe condition in a timely manner. In developing an appropriate compliance time for this proposed AD, we considered not only the manufacturer's recommendation, but also the degree of urgency associated with addressing the subject unsafe condition, the average utilization of the affected fleet, and the time necessary to perform the inspection. In light of all of these factors, we find a compliance time of 90 days for completing the required actions to be warranted, in that it represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety. This difference has been coordinated with Lockheed. Costs of Compliance There are about 126 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspection of clamp assembly 2 $80 $0 $160 53 $8,480 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Lockheed** : Docket No. FAA-2006-25554; Directorate Identifier 2006-NM-123-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by September 25, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to Lockheed Model L-1011-385-1, L-1011-385-1-14, L-1011-385-1-15, and L-1011-385-3 series airplanes, certificated in any category; having serial numbers (S/N) 193A through 193Y inclusive and 293A through 293F inclusive: -1002 through -1250 inclusive. Unsafe Condition
(d)This AD results from a report of electrical arcing of the essential bus feeder cables behind hinged circuit breaker panel CB3 P-K. We are issuing this AD to prevent arcing of essential bus feeder cables due to improper installation of the harness C112 clamp assembly, which could result in loss of electrical systems and smoke and/or fire behind the CB3 P-K hinged circuit breaker panel in the flight compartment. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Detailed Inspection of the C112 Harness Clamp Assembly
(f)Within 90 days after the effective date of this AD: Do the actions in paragraphs (f)(1) and (f)(2) of this AD by accomplishing all the actions specified in the Accomplishment Instructions of Lockheed L-1011 Service Bulletin 093-24-142, dated November 16, 2005. Do all applicable corrective actions before further flight.
(1)Perform a one-time detailed inspection of the C112 harness clamp assembly to find incorrectly installed harness clamps, and do all applicable corrective actions.
(2)Perform a one-time detailed inspection of the C112 and C162 harness assemblies to find evidence of chafing, arcing, or deterioration, and do all applicable corrective actions. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” Alternative Methods of Compliance (AMOCs) (g)(1) The Manager, Atlanta Aircraft Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Issued in Renton, Washington, on August 2, 2006. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12948 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25259; Directorate Identifier 2006-CE-36-AD] RIN 2120-AA64 Airworthiness Directives; Fuji Heavy Industries, Ltd. FA-200 Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by an airworthiness authority of another country to identify and correct an unsafe condition on an aviation product. The proposed AD would require actions that are intended to address an unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 8, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in the proposed AD, contact Fuji Heavy Industries, Ltd., AEROSPACE COMPANY, 1-11 YOUNAN 1 CHOME UTSUNOMIYA TOCHIGI, JAPAN 320- 8564; telephone: +81-28-684-7253; facsimile: +81-28-684-7260. FOR FURTHER INFORMATION CONTACT: Doug Rudolph, Aerospace Engineer, Small Airplane Directorate, FAA, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; facsimile:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. We are prototyping this process and specifically request your comments on its use. You can find more information in FAA draft Order 8040.2, “Airworthiness Directive Process for Mandatory Continuing Airworthiness Information” which is currently open for comments at *http://www.faa.gov/aircraft/draft_docs.* This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all existing AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to follow our technical decision-making processes in all aspects to meet our responsibilities to determine and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. The comment period for this proposed AD is open for 30 days to allow time for comment on both the process and the AD content. In the future, ADs using this process will have a 15-day comment period. The comment period is reduced because the airworthiness authority and manufacturer have already published the documents on which we based our decision, making a longer comment period unnecessary. Comments Invited We invite you to send any written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2006-25259; Directorate Identifier 2006-CE-36-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We are also inviting comments, views, or arguments on the new MCAI process. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion The Japan Civil Aviation Bureau, which is the airworthiness authority for Japan, has issued AD No. TCD-6832-2006, Date of Issue: April 10, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states that that the aircraft manufacturer has identified field reports indicating corrosion of the flanges of the main wing spars. If not corrected, the corrosion could cause deterioration of wing strength. The MCAI requires creation of inspection holes, corrosion inspection of the flange of wing spar, repair of corrosion if necessary and removal of the sealing compound. You may obtain further information by examining the MCAI in the docket. Relevant Service Information Fuji Heavy Industries, Ltd. has issued Service Bulletin No. 200-015, dated February 28, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product is manufactured outside the United States and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral agreement. Pursuant to this bilateral airworthiness agreement, the State of Design's airworthiness authority has notified us of the unsafe condition described in the MCAI and service information referenced above. We have examined the airworthiness authority's findings, evaluated all pertinent information, and determined an unsafe condition exists and is likely to exist or develop on all products of this type design. We are issuing this proposed AD to correct the unsafe condition. Differences Between the Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable in a U.S. court of law. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the proposed AD. These proposed requirements, if ultimately adopted, will take precedence over the actions copied from the MCAI. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 3 products of U.S. registry. We also estimate that it would take about 128 work-hours per product to do the action and that the average labor rate is $80 per work-hour. Required parts would cost about $100 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $31,020, or $10,340 per product. Authority for This Rulemaking Title 49 of the United States Code specifies FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Fuji Heavy Industries, Ltd.:** FAA-2006-25259; Directorate Identifier 2006-CE-36-AD. Comments Due Date
(a)We must receive comments on this proposed airworthiness directive
(AD)by September 8, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to all FA-200 series airplanes, certificated in any U.S. category. Reason
(d)The mandatory continuing airworthiness information
(MCAI)states that the aircraft manufacturer has identified field reports indicating corrosion of the flanges of the main wing spars. If not corrected, the corrosion could cause deterioration of wing strength. The MCAI requires creation of inspection holes, corrosion inspection of the flange of wing spar, repair of corrosion if necessary and removal of the sealing compound. You may obtain further information by examining the MCAI in the docket. Actions and Compliance
(e)Unless already done, do the following except as stated in paragraph
(f)below.
(1)Within 1 year after the effective date of this AD, carry out creation of inspection holes, corrosion inspection of the flange of wing spar, repair of corrosion if necessary and removal of the sealing compound in accordance with Fuji Heavy Industries, Ltd.
(FHI)Service Bulletin No. 200-015, dated February 28, 2006 (SB).
(2)Within intervals not to exceed 5 years from the previous inspection of paragraph (e)(1) of this AD, carry out repetitive corrosion inspection of the flange of wing spar and repair of corrosion if necessary in accordance with the SB. FAA AD Differences
(f)The SB calls out contacting Fuji Heavy Industries Ltd. for a structural integrity evaluation if measured thickness exceeds minimum allowable limits or if corrosion is found on main spar flange in areas other than fuel tank bay. Per paragraph (g)(2) of this AD, any corrective action in this aspect or any other aspect per this AD must be FAA-approved before returning the airplane to service. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, ATTN: Doug Rudolph, Aerospace Engineer, Small Airplane Directorate, FAA, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; facsimile:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Return to Airworthiness:* When complying with this AD, perform FAA-approved corrective actions before returning the product to an airworthy condition.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)This AD is related to Japan Civil Aviation Bureau AD TCD-6832-2006, Date of Issue: April 10, 2006, which references Fuji Heavy Industries Ltd Service Bulletin No. 200-015, dated February 28, 2006. Issued in Kansas City, Missouri, on August 3, 2006. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12953 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25260; Directorate Identifier 2006-CE-37-AD] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Models AT-502, AT-502A, AT-502B, AT-602, AT-802, and AT-802A Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Air Tractor, Inc. (Air Tractor) Models AT-502, AT-502A, AT-502B, AT-602, AT-802, and AT-802A airplanes. This proposed AD would require you to repetitively visually inspect the rudder and vertical fin hinge attaching structure for loose fasteners, any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion. The AD would also require you to replace any damaged parts found as a result of the inspection and install an external doubler at the upper rudder hinge. Installation of the external doubler at the upper rudder hinge is terminating action for the repetitive inspection requirements. This proposed AD results from two reports (one Model AT-602 airplane and one Model AT-802A airplane) of in-flight rudder separation from the vertical fin at the upper attach hinge area, and other reports of Models AT-502B, AT-602, and AT-802/802A airplanes with loose hinges, skin cracks, or signs of repairs to the affected area. We are proposing this AD to detect and correct loose fasteners; any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion of the rudder and vertical fin hinge attaching structure. Hinge failure adversely affects ability to control yaw and has led to the rudder folding over in flight. This condition could allow the rudder to contact the elevator and affect ability to control pitch with consequent loss of control of the airplane. DATES: We must receive comments on this proposed AD by October 10, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Air Tractor, Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; facsimile:
(940)564-5612. FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2006-25260; Directorate Identifier 2006-CE-37-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We have received two reports (one Air Tractor Model AT-602 airplane and one Model AT-802A airplane) of in-flight rudder separation at the upper attach hinge area and other reports of Models AT-502B, AT-602, and AT-802/802A airplanes with loose hinges, skin cracks, or signs of repairs to the affected area. Hinge failure adversely affects ability to control yaw and has led to the rudder folding over in flight. This condition could allow the rudder to contact the elevator and affect ability to control pitch with consequent loss of control of the airplane. Relevant Service Information We have reviewed Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006, and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991. The service information describes procedures for: • Inspecting (visually) the rudder and fin hinge attaching structure for loose fasteners, any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion; • Replacing any damaged parts found as a result of the inspection; • Installing an external doubler at the upper rudder hinge; and • Balancing of the rudder. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to repetitively visually inspect the rudder and vertical fin hinge attaching structure for loose fasteners, any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion. This AD would also require you to replace any damaged parts found as a result of the inspection and install an external doubler at the upper rudder hinge. Installation of the external doubler at the upper rudder hinge is terminating action for the repetitive inspection requirements. Costs of Compliance We estimate that this proposed AD would affect 945 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1 work-hour × $80 per hour = $80 Not Applicable $80 $75,600 We have no way of determining the number of airplanes that may need any replacements that would be required based on the results of the proposed inspection. We estimate the following costs to do the installation of the external doubler at the upper rudder hinge: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 5 work-hours × $80 per hour = $400 $217 $617 $583,065 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority : 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Air Tractor, Inc.** : Docket No. FAA-2006-25260; Directorate Identifier 2006-CE-37-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by October 10, 2006. Affected ADs
(b)None. Applicability
(c)This AD affects the following airplane models and serial numbers that are certificated in any category: Model Serial Nos.
(1)AT-502 and AT-502B 502/502B-0003 through 502/502B-2600.
(2)AT-502A 502A-0003 through 502A-2582.
(3)AT-602 602-0337 through 602-1138.
(4)AT-802 and AT-802A 802/802A-0001 through 802/802A-0215. Unsafe Condition
(d)This AD results from two reports (one Model AT-602 airplane and one Model AT-802A airplane) of in-flight rudder separations at the upper attach hinge area and other reports of Models AT-502B, AT-602, and AT-802/802A airplanes with loose hinges, skin cracks, or signs of repairs to the affected area. We are issuing this AD to detect and correct loose fasteners; any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion of the rudder and vertical fin hinge attaching structure. Hinge failure adversely affects ability to control yaw and has led to the rudder folding over in flight. This condition could allow the rudder to contact the elevator and affect ability to control pitch with consequent loss of control of the airplane. Compliance
(e)To address this problem, you must do the following: Actions Compliance Procedures
(1)Inspect visually the rudder and vertical hinge attachment for loose fasteners; any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion Initially inspect upon reaching 3,500 hours time-in-service (TIS), or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, unless already done. Thereafter, repetitively inspect every 100 hours TIS. Installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD is terminating action for the repetitive inspections required by this AD Follow Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006.
(2)If you find any damage as a result of any inspection required by paragraph (e)(1) of this AD, you must:
(i)Replace any damaged parts with new parts; and
(ii)Do the installation of the external doubler at the upper rudder hinge. Before further flight after any inspection required by paragraph (e)(1) of this AD where you find any damaged parts. The installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD is the terminating action for the repetitive inspections required by this AD Follow Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006, and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991.
(3)Do the installation of the external doubler at the upper rudder hinge Upon accumulating 5,000 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, unless already done. The installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD is the terminating action for the repetitive inspections required by this AD Follow Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006, and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991.
(4)Do not install any rudder without the external doubler at the upper rudder hinge required by paragraph (e)(3) of this AD As of the effective date of this AD Not Applicable. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Fort Worth Aircraft Certification Office, FAA, ATTN: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(g)To get copies of the service information referenced in this AD, contact Air Tractor, Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; facsimile:
(940)564-5612. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov.* The docket number is Docket No. FAA-2006-25260; Directorate Identifier 2006-CE-37-AD. Issued in Kansas City, Missouri, on August 3, 2006. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12940 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD] RIN 2120-AA64 Airworthiness Directives; Cessna Aircraft Company Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Cessna Aircraft Company (Cessna) Models 172R, 172S, 182S, 182T, T182T, 206H, and T206H airplanes. This proposed AD would require you to install Modification Kit MN172-25-10B or a steel lock rod/bar on both crew seat back cylinder lock assemblies. If a steel lock rod/bar has already been installed on the crew seat back cylinder lock assembly, no further action is required. If Modification Kit MK172-25-10A has previously been installed, this proposed AD would require you to do an installation inspection and correct any discrepancies found. This proposed AD results from reports of the crew seat back cylinder lock assembly failing at the aft end and other cylinder lock assemblies found cracked. We are proposing this AD to prevent the crew seat cylinder lock assembly from bending, cracking, or failing. This failure could cause uncontrolled movement of the seat back, resulting in possible backward collapse during flight. Backward collapse of either crew seat back could result in an abrupt pitch-up if the affected crew member continues to hold on to the control yoke during this failure and could cause difficulty in exiting the airplane from an aft passenger seat after landing. DATES: We must receive comments on this proposed AD by October 10, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • Fax:
(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, KS 67277; telephone:
(316)517-5800; fax:
(316)942-9006. FOR FURTHER INFORMATION CONTACT: Gary Park, Aerospace Engineer, FAA, Wichita Aircraft Certification Office, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone:
(316)946-4123; facsimile:
(316)946-4107. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2006-25261; Directorate Identifier 2006-CE-38-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We have received reports of the crew seat back cylinder lock bending at the aft end and failing. We have also received reports of cracks found in the cylinder lock assembly. This condition, if not corrected, could result in failure of the crew seat back cylinder lock assembly. This failure could cause uncontrolled movement of the seat back, resulting in possible backward collapse during flight. Backward collapse of either crew seat back could result in an abrupt pitch-up if the affected crew member continues to hold on to the control yoke during this failure and could cause difficulty in exiting the airplane from an aft passenger seat after landing. Relevant Service Information We have reviewed Cessna Single Engine Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006. This service bulletin describes procedures for installing Modification Kit MK172-25-10B on both crew seat back cylinder lock assemblies to replace the cylinder lock with a new model cylinder lock. This service bulletin also described procedures for doing an installation inspection on airplanes that have Modification Kit MK172-25-10A installed following Cessna Single Engine Service Bulletin SB04-25-01, Revision 2, dated June 5, 2006. We have also reviewed Cessna Single Engine Service Bulletin SB04-25-02 Revision 1, dated October 17, 2005, and Revision 2, dated June 5, 2006. These service bulletins describe procedures for installing a steel lock rod/bar on the crew seat to replace the crew seat back cylinder lock assembly. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to install a modification kit on both crew seat back cylinder lock assemblies, which replaces the cylinder lock with a new model cylinder lock, or install a steel lock rod/bar on both crew seat back cylinder lock assemblies. Costs of Compliance We estimate that this proposed AD would affect 4,039 airplanes in the U.S. registry. We provide below total fleet costs for both the proposed modification and the proposed steel lock rod/bar installation; however, only one of these proposed actions would be required. We estimate the following costs to do the proposed installation of the modification kit: Labor cost Parts cost for both seats Total cost per airplane for both seats Total cost on U.S. operators 3.5 work-hours × $80 an hour = $280 for each modification kit $590 for each modification kit. One modification kit required for each airplane. Total parts cost for both seats would be $590 $280 + $590 = $870. $870 × 4,039 = $3,513,930. We estimate the following costs to do the proposed fabrication and installation of a steel lock rod/bar: Labor cost Parts cost for both seats Total cost per airplane for both seats Total cost on U.S. operators 1.5 work-hours × $80 an hour = $120 for each crew seat. Total labor cost for both seats would be $240 Not applicable $240 $240 × 4,039 = $969,360 We estimate the following costs to do the proposed installation inspection on airplanes that have Modification Kit MK172-25-10A installed: Labor cost Parts cost for both seats Total cost per airplane for both seats 1 work-hour × $80 an hour = $80 for both crew seats Not applicable $80 We have no method of determining the number of airplanes that may have the previously installed Modification Kit MK172-25-10A. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Cessna Aircraft Company** : Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by October 10, 2006. Affected ADs
(b)None. Applicability
(c)This AD affects the following airplane models and serial numbers that are certificated in any category: Model Serial Nos. 172R 17280001 through 17281262. 172S 172S8001 through 172S9994. 182S 18280001 through 18280944. 182T 18280945 through 18281701. T182T T18208001 through T18208453. 206H 20608001 through 20608250. T206H T20608001 through T20608570. Unsafe Condition
(d)This AD results from reports of the crew seat back cylinder lock assembly failing at the aft end area and other cylinder lock assemblies found cracked. We are issuing this AD to prevent the crew seat cylinder lock assembly from bending, cracking, or failing. This failure could cause uncontrolled movement of the seat back, resulting in possible backward collapse during flight. Backward collapse of either crew seat back could result in an abrupt pitch-up if the affected crew member continues to hold on to the control yoke during this failure and could cause difficulty in exiting the airplane from an aft passenger seat after landing. Compliance
(e)To address this problem, you must do the following, unless already done:
(1)*Airplanes that do not have Modification Kit MK172-25-10A installed:* Action Compliance Procedures For each crew seat (pilot and copilot), install Modification Kit MK172-25-10B or fabricate and install a steel lock rod/bar *For airplanes that have over 1,000 hours time-in-service
(TIS)on the effective date of this AD* , do the action within the next 4 months after the effective date of this AD *For airplanes that have from 501 to 1,000 hours TIS on the effective date of this AD* , do the action within the next 8 months after the effective date of this AD *For airplanes that have from 0 to 500 hours TIS on the effective date of this AD* , do the action within the next 12 months after the effective date of this AD Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006, for installing Modification Kit MK172-25-10B. Follow Cessna Single Engine Service Bulletin SB04-25-02 Revision 1, dated October 17, 2005, or Revision 2, dated June 5, 2006, for fabricating and installing a steel lock rod/bar.
(2)*Airplanes that have Modification Kit MK172-25-10A installed:* Action Compliance Procedures
(i)For each crew seat (pilot and copilot), do an installation inspection Within the next 30 days after the effective date of this AD Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006.
(ii)If you do not find any discrepancies during the inspection required in paragraph (e)(2)(i) of this AD, make a log book entry showing compliance with this AD and no further action is required Before further flight after the inspection required in paragraph (e)(2)(i) of this AD Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006.
(iii)If you find discrepancies during the inspection required in paragraph (e)(2)(i) of this AD, make all necessary corrective actions Before further flight after the inspection required in paragraph (e)(2)(i) of this AD Follow Cessna Single Engine Service Bulletin SB04-25-01, Revision 3, dated July 24, 2006. Note: Although not required by this AD, you may replace the steel lock rod/bar with Modification Kit MK172-25-10B. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Wichita Aircraft Certification Office, FAA, ATTN: Gary Park, Aerospace Engineer, 1801 Airport Road, Mid-Continent Airport, Wichita, Kansas 67209; telephone:
(316)946-4123; facsimile:
(316)946-4107, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(g)To get copies of the service information referenced in this AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, KS 67277; telephone:
(316)517-5800; fax:
(316)942-9006. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov.* The docket number is Docket No. FAA-2006-25261; Directorate Identifier 2006-CE-38-AD. Issued in Kansas City, Missouri, on August 3, 2006. John Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12946 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2004-19961; Directorate Identifier 2004-CE-48-AD] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Models AT-501, AT-502, AT-502A, AT-502B, and AT-503A Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of the comment period. SUMMARY: The FAA proposes to revise an earlier proposed airworthiness directive
(AD)that applies to certain Air Tractor, Inc. (Air Tractor) Models AT-502, AT-502A, AT-502B, and AT-503A airplanes, which proposes to supersede AD 2002-26-05. AD 2002-26-05 lowers the safe life for the wing lower spar caps for Models AT-502, AT-502A, AT-502B, and AT-503A airplanes and those that incorporate or have incorporated Marburger Enterprises, Inc. (Marburger) winglets. AD 2002-26-05 also requires you to eddy-current inspect the wing lower spar caps immediately before modifying to correct any crack in a bolt hole before it extends to the modified center section of the wing and report the results of the inspection to the FAA if cracks are found. AD 2002-11-05 R1 currently requires similar action on Model AT-501 airplanes. Since issuing the earlier NPRM, we determined that Model AT-501 airplanes should be added to the Applicability section of this proposed AD and that this proposed AD should also supersede AD 2002-11-05 R1. We have revised the alternative method of compliance
(AMOC)to include inspection procedures for airplanes that have or have had Marburger winglets installed. We have also updated the safe life of the replacement and new production spar cap based on additional data we have received from the manufacturer. Since these actions impose an additional burden over that proposed in the earlier NPRM, we are reopening the comment period to allow the public the chance to comment on these additional actions. DATES: We must receive any comments on this proposed AD by October 10, 2006. ADDRESSES: Use one of the following addresses to comments on this proposed AD: • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • Fax:
(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Air Tractor, Incorporated, P.O. Box 485, Olney, Texas 76374; or Marburger Enterprises, Inc., 1227 Hillcourt, Williston, North Dakota 58801; telephone:
(800)893-1420 or
(701)774-0230; facsimile:
(701)572-2602. FOR FURTHER INFORMATION CONTACT: Direct all questions to: • For the airplanes that do not incorporate and never have incorporated Marburger Enterprises, Inc. winglets: Rob Romero, Aerospace Engineer, FAA, Fort Worth Airplane Certification Office, 2601 Meacham Boulevard, Fort Worth, Texas 76193-0150; telephone:
(817)222-5102; facsimile:
(817)222-5960; e-mail: *robert.a.romero@faa.gov;* and • For airplanes that incorporate or have incorporated Marburger Enterprises, Inc. winglets: John Cecil, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, 3960 Paramount Boulevard, Lakewood, California 90712; telephone:
(562)627-5228; facsimile:
(562)627-5210. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2004-19961; Directorate Identifier 2004-CE-48-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion Prior to issuing this supplemental notice of proposed rulemaking (NPRM), we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Air Tractor Models AT-502, AT-502A, AT-502B, and AT-503A airplanes. That proposal was published in the **Federal Register** as an NPRM on February 9, 2005 (70 FR 6786). The NPRM proposed to supersede AD 2002-26-05 with a new AD that would retain the actions required in AD 2002-26-05, add additional airplanes to the applicability, and incorporate an AMOC to the actions retained from AD 2002-26-05. AD 2002-26-05, Amendment 39-12991 (68 FR 18, January 2, 2003), currently applies to certain Air Tractor Models AT-502, AT-502A, AT-502B, and AT-503A airplanes. AD 2002-26-05 supersedes AD 2002-11-03 and requires the following: • Maintaining the original requirements from AD 2002-11-03 for a lowered safe life, inspection, replacement/modification, and if cracks are found, reporting the results to the FAA; • Further lowering the safe life for the wing lower spar cap established in AD 2002-11-03 for Models AT-502, AT-502B, and AT-503A airplanes; and • Expanding the applicability of Models AT-502A and AT-502B airplanes to account for future manufactured airplanes. With this supplemental NPRM we are also proposing to supersede AD 2002-11-05 R1, Amendment 39-14564 (71 FR 19629, April 17, 2006), which currently applies to certain Air Tractor Model AT-501 airplanes. We issued AD 2002-11-05 R1 to revise AD 2002-11-05 to remove AT-400 series and Models AT-802 and AT-802A airplanes from the applicability because separate AD actions were issued for those airplanes. AD 2002-11-05 R1 retains the actions required in AD 2002-11-05 for Model AT-501 airplanes. The following is a list of ADs that have been issued to date that are related to the wing spar inspection and safe life on Air Tractor airplanes: AD No. Affected air tractor model airplanes Status 2000-14-51 AT-501, AT-502, and AT-502A Superseded by AD 2001-10-04. 2001-10-04 AT-400, AT-500, and AT-800 Series Revised by AD 2001-10-04 R1. 2001-10-04 R1 AT-400, AT-500, and AT-800 Series Superseded by AD 2002-11-05. 2002-11-05 AT-400, AT-401, AT-401B, AT-402, AT-402A, AT-402B, AT-501, AT-802, and AT-802A Revised by AD 2002-11-05 R1. 2002-13-02 AT-300, AT-301, AT-302, AT-400, and AT-400A Airplanes Superseded by AD 2003-06-01. 2002-11-03 AT-502, AT-502A, AT-502B, and AT-503A Superseded by AD 2002-26-05. 2002-26-05 AT-502, AT-502A, AT-502B, and AT-503A Current. 2003-06-01 AT-300, AT-301, AT-302, AT-400, and AT-400A Current. 2002-11-05 R1 AT-501 Current. 2006-08-08 AT-400, AT-401, AT-401B, AT-402, AT-402A, and AT-402B Current. 2006-08-09 AT-802 and AT-802A Current. You may view these ADs at the following Internet Web site addresses: *http://www.airweb.faa.gov/Regulatory_and_Guidance_Library/rgAD.nsf/MainFrame?OpenFrameSet* or *http://www.gpoaccess.gov/fr/index.html.* Comments We provided the public the opportunity to participate in developing the proposed AD on Air Tractor Models AT-502, AT-502A, AT-502B, and AT-503A airplanes. The following presents the comments received on this earlier proposed AD and FAA's response to each comment: Comment Issue No. 1: Allow Repetitive Inspection and an Upper Life Limit on the New Cap Lewis Air Service states there is a need to incorporate an alternative solution that includes repetitive inspections and an upper life limit on the new cap. Based on the way the NPRM is currently written, the commenter believes the low cap replacement time is too burdensome and not cost effective. Although we agree that repetitive inspections may reduce the economic impact and minimize the risk of reduced agricultural production, this will not meet the safety intent of this proposed AD. We determined that reliance on critical repetitive inspections carries an unnecessary safety risk when parts replacement or modifications exist. In determining what inspections are critical, the FAA considers
(1)the safety consequences of the airplane if the known problem is not detected by the inspection;
(2)the reliability of the inspection, such as the probability of not detecting the known problem;
(3)whether the inspection area is difficult to access; and
(4)the possibility of damage to an adjacent structure as a result of the problem. Since the initial publication of the earlier proposed AD, Air Tractor has completed fatigue testing on the replacement spar cap. The life of the cap has been updated in this proposed AD to reflect the results of this testing and subsequent analysis. We are not changing this proposed AD based on this comment but are changing it based on new data from the manufacturer. Comment Issue No. 2: Proposed AD Is Not Necessary M&M Air Service states that they operate eight different Air Tractor airplanes and to date have not found any cracks. The commenter indicates that the proposed rulemaking is confusing, not cost beneficial, and excessive. Based on these comments, we infer that the commenter wants the NPRM withdrawn. We do not agree with the commenter. Fatigue analysis/testing/fleet history shows that the wing spar will crack and fail over time. The commenter's airplanes not cracking to date does not prevent the unsafe condition from developing on the commenter's airplanes or other airplanes of the same type design in the future. To date, we have received over 50 reports of cracked spar caps on AT-502 series airplanes and one report of complete wing separation. We realize that there are many different wing configurations in-service on these airplanes and each has different requirements. However, analysis shows that the airplane could fail in the affected area based on the design and normal utilization of the type design airplanes. We are not changing this proposed AD based on this comment. Comment Issue No. 3: Compliance Time To Accommodate Flying Schedules The National Agricultural Aviation Association requests the FAA consider the flying schedules of the airplanes and accommodate a program that can be done during the off-season. The commenter suggests the FAA allow repetitive inspections until an ultimate solution is reached, assuming no cracks are found. We have considered the importance of the financial and operational impact this proposed rulemaking may have on owners and operators and, in this specific case, aerial application businesses. This proposed AD uses inspections to manage the safety of the wing centerline joint instead of reducing the compliance times for replacing parts. However, this approach cannot be used indefinitely. Extending the service life of fatigue-critical, primary structure areas requires not only ensuring the safety of the area being inspected or modified, but also ensuring the safety of the complete structure when extending the service life. Fatigue analysis shows that the safe life is the solution to the unsafe condition, not repetitive inspections over the life of the airplane. For eligible airplanes, we are providing an AMOC that provides an aggressive repetitive inspection program until 8,000 hours time-in-service (TIS), provided no cracks are found. The FAA has shown a history of accommodating flying schedules through AMOCs on previous ADs for this subject. We will continue to consider AMOCs provided they maintain a level of safety acceptable to the FAA. For the replacement spar cap, we have received new data that justifies a much higher safe life than was previously published in the NPRM. We are not changing this proposed AD based on this comment. Comment Issue No. 4: Lack of Wing Life-Limit Information Julie Broussard of Lewis Flying and Maintenance Service, Inc., states that she was never informed in writing of a 1,600 hour safe life or replacement life of 8,000 hours TIS for the AT-502 wing. The commenter also urges the FAA to make the manufacturer “fix the wing.” We issued AD 2002-26-05, Amendment 39-12991 (68 FR 18, January 2, 2003), which applies to Air Tractor Models AT-502, AT-502A, AT-502B, and AT-503A airplanes. That AD lowers the safe life for the wing lower spar caps to 1,650 hours TIS. AD 2002-26-05 supersedes AD 2002-11-03, Amendment 39-12764 (67 FR 38371, June 4, 2002). We also issued Special Airworthiness Information Bulletin
(SAIB)CE-05-28, dated January 21, 2005, announcing an AMOC to AD 2002-26-05. The AMOC allows an inspection program instead of the safe life replacement program required by AD 2002-26-05, which allows operation of a modified wing up to 8,000 hours TIS, provided no cracks are found during required inspections. We are legally bound to notify the public of an AD through publication in the **Federal Register** . AD 2002-26-05 was published in the **Federal Register** on January 2, 2003. In the past, we have sent copies of ADs and SAIBs to registered owners of the affected airplanes, which could be a bank or holding company. This may be the reason the commenter did not receive notification of the change in the safe life limit and replacement schedule. This supplemental NPRM is still only a proposal at this time. The previous NPRM on this subject was published in the **Federal Register** on February 9, 2005 (70 FR 6786). We will always encourage modifications that incorporate design changes that make critical parts stronger and safer. However, our responsibility is to address the continued operational safety of the airplane fleet, ensure that current design regulations are met, and correct any unsafe conditions. Establishing a safe life and an option of an aggressive repetitive inspection schedule until 8,000 hours TIS (provided no cracks are found) meets the FAA's responsibility. Further, the replacement spar cap has been substantiated to a much higher safe life than previously published. We are not changing this proposed AD based on this comment. Comment Issue No. 5: New Production Airplanes Have a 27 Percent Increase in Safe Life The National Transportation Safety Board
(NTSB)questions the rationale for new production AT-502B airplanes having a 27 percent increase in the safe life limit on the wing from 1,650 hours TIS to 2,100 hours TIS. The commenter also states a concern for the conservatism in the initial and repetitive inspection program. Other items of concern to the commenter are: • The wording proposed in section (e)(2) of the earlier proposed AD may allow for inspections to continue indefinitely. The commenter states that airplanes using the AMOC who find cracks should report them to the FAA. • Airplanes that have been modified with a replacement cap should follow the inspection program for later serial number airplanes. • There has been nothing done to address the use of winglets as it applies to inspection intervals. The safe life for new production AT-502B airplanes was determined as a result of fatigue testing performed by the manufacturer. The initial and repetitive inspection program was based on a thorough damage tolerance analysis using a validated load spectrum and coupon testing. It should be noted that since publication of the earlier NPRM, the manufacturer has completed more extensive testing, and we are now proposing a safe life for new production AT-502B airplanes that represents much more than the 27 percent increase the commenter states. We do not agree that paragraph (e)(2) of the previously proposed AD allowed for indefinite inspections. Paragraph (e)(2) of the proposed AD refers to Appendix 2, which has clearly defined upper limits on inspection times (8,000 hours TIS for eligible airplanes). We agree that any cracks detected should be reported to the FAA. We are retaining the reporting requirement from the earlier NPRM in this proposed AD. Airplanes with replacement spar caps, as well as new production airplanes, are no longer required to follow an inspection program. We agree that we did not address an inspection program for airplanes with winglets installed. We are revising this proposed AD to include an AMOC inspection program for airplanes that have or have had winglets installed. Further, this proposed AD states that airplanes with the new or replacement spar caps are not eligible to have the winglet STC installed without proper fatigue substantiation. Comment Issue No. 6: Include Model AT-501 Airplanes in the Applicability Leland Snow, President of Air Tractor, Inc., states that Model AT-501 airplanes should be included in the Applicability section and that new airplanes should not have a safe life limit of 3,100 hours TIS. The commenter states the costs for doing the inspection is too low. The inspection typically costs from $450 to $550. Parts cost for the replacement spar cap is approximately $16,500 plus approximately $16,500 for labor (a total of $33,000). The commenter also states that winglets should be removed before allowing the AMOC. We agree with the commenter that Model AT-501 airplanes should be included in the Applicability section. We also agree to update the Cost Impact section. We are revising this proposed AD to include those changes. We do not agree that airplanes with winglets installed should be excluded from the AMOC. We are adding an AMOC inspection program in this proposed AD to cover airplanes that have winglets installed following Supplemental Type Certificate
(STC)SA00490LA. Comment Issue No. 7: Torsion Loads John R. Janssen states that torsion loads need to be accounted for to properly address the wing safe life limit for the affected airplanes. We agree with the commenter that the torsion load is a contributing factor to the fatigue life of the wings, as are all the other loads (ground, gust, maneuver, etc.). These loads have been accounted for in the load spectrum that was used in developing the inspection program and the life of the new/replacement spar cap. We are not changing this proposed AD based on this comment. Comment Issue No. 8: Marburger Winglets Lewis Broussard, Owner, Lewis Flying and Maintenance Service, Inc., states that installing Marburger Enterprise, Inc. winglets increases the safe life of the wing. We do not agree with the commenter. We have data that shows adding winglets increases the operating stresses at the wing root and consequently leads to a reduced safe life. We are not changing this proposed AD based on this comment. Comment Issue No. 9: AMOC Should Apply to Airplanes With Winglets Rick Marburger of Marburger Enterprises, Inc., states that airplanes with winglets installed should be included in the AMOC repetitive inspection program. We agree with the commenter. We included procedures in the AMOC repetitive inspection program to address airplanes that have or have had winglets installed. We are revising this proposed AD to incorporate this change. Comment Issue No. 10: Unfair Safe Life Limit for the New Spar Cap Tom Miller of Ingalls Aerial Sprayers, Inc., states the safe life limit of 3,100 hours TIS for the new/replacement spar cap is unfair. Numerous other commenters have similar concerns. The commenters state the new design should be given a safe life limit that is equivalent to the old design, which is 8,000 hours TIS. We agree with the commenters. The 3,100-hour TIS safe life limit was based on data submitted by Air Tractor and approved by the FAA. However, since the earlier proposed AD was published, Air Tractor began a new test program using a recently validated load spectrum to determine a new safe life for this design configuration. That testing has been completed and the new safe life limit is being published in this proposed AD. We are revising this proposed AD to incorporate this change. Relevant Service Information The following service information from AD 2002-11-05 R1 and the previous NPRM are still valid for this supplemental NPRM: • Snow Engineering Drawing Number 21050; • Snow Engineering Service Letters #197 or #205, both revised March 26, 2001; and • Snow Engineering Service Letter #244, dated April 25, 2005. Snow Engineering Co. has a licensing agreement with Air Tractor that allows them to produce technical data for use on Air Tractor products. FAA's Determination and Requirements of This Proposed AD Since issuing the earlier NPRM, we determined that Model AT-501 airplanes should be added to the Applicability section. We also developed an AMOC to the requirements of AD 2002-26-05 for airplanes that have or have had winglets installed. We are extending the safe life for new production airplanes and replacement spar caps. After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that: • The unsafe condition referenced in this document exists or could develop on other Air Tractor Models AT-501, AT-502, AT-502A, AT-502B, and AT-503A airplanes of the same type design that are on the U.S. registry; • We should change this proposed AD to include Model AT-501 airplanes in the Applicability section and revise the AMOC. • We should take AD action to correct this unsafe condition. The Supplemental NPRM Adding additional models to the Applicability section goes beyond the scope of what was originally proposed in the earlier NPRM. Therefore, we are reopening the comment period and allowing the public the chance to comment. This proposed AD would supersede AD 2002-26-05 and AD 2002-11-05 R1 with a new AD that would: • Retain the actions required in AD 2002-26-05 and AD 2002-11-05 R1; • Add additional airplanes to the Applicability section; • Incorporate a revised AMOC to include inspection procedures for airplanes that have or have had winglets installed following STC SA00490LA; and • Extend the safe life for new production airplanes and replacement spar caps. The following table summarizes the effects this proposed AD would have on the airplane models affected by this proposed AD: Model Proposed action AT-501 • Supersede AD 2002-11-05 R1. • Retain the safe lives from AD 2002-11-05 R1. • Provide an AMOC that allows extension of the safe life through an inspection and modification program. AT-502 • Supersede AD 2002-26-05. • Retain the safe lives from AD 2002-26-05 and add S/Ns to applicability. AD 2002-26-05 provided safe lives for S/Ns 0003 through 0236. Proposed action applies the same safe life to all S/Ns beginning with 0003. • Provide an AMOC that allows extension of the safe life through an inspection and modification program. AT-502A • Supersede AD 2002-26-05. • Retain the safe lives from AD 2002-26-05. • Provide an AMOC that allows extension of the safe life through an inspection and modification program. AT-502B • Supersede AD 2002-26-05. • Retain the safe lives from AD 2002-26-05 for S/Ns 0187 through 0654, except 0643. • Increase the safe lives beyond those listed in AD 2002-26-05 for S/Ns 0655 and greater, as well as S/N 0643. • Add requirement to cold work outboard wing center splice block bolt holes in the lower spar cap on S/Ns 0643 and 0655 through 0692. • Provide an AMOC that allows extension of the safe life through an inspection and modification program for S/Ns 187 through 654, except 643. AT-503A • Supersede AD 2002-26-05. • Retain the safe lives from AD 2002-26-05. • Provide an AMOC that allows extension of the safe life through an inspection and modification program. Costs of Compliance We estimate that this proposed AD affects approximately 500 airplanes in the U.S. registry. We estimate the following costs to do each proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 8 work-hours × $80 per hour = $640 No parts required for inspection $640 $640 × 500 = $320,000. We estimate the following costs to do the proposed modification: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 120 work-hours × $80 per hour = $9,600 Approximately $3,700 $9,600 + $3,700 = $13,300 $13,300 × 500 = $6,650,000.00. We estimate the following costs to do the proposed replacement: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 254 work-hours × $80 per hour = $20,320 Approximately $16,500 $20,320 + $16,500 = $36,820 $36,820 × 500 = $18,410,000.00. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining This Proposed AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by removing Airworthiness Directive
(AD)2002-26-05, Amendment 39-12991 (68 FR 18, January 2, 2003) and AD 2002-11-05 R1, Amendment 39-14564 (71 FR 19628, April 17, 2006), and by adding a new AD to read as follows: **Air Tractor, Inc.** : Docket No. FAA-2004-19961; Directorate Identifier 2004-CE-48-AD. Comment Due Date
(a)We must receive comments on this proposed airworthiness directive
(AD)by October 10, 2006. Affected AD
(b)This AD supersedes AD 2002-26-05, Amendment 39-12991, and AD 2002-11-05 R1, Amendment 39-14564. Applicability
(c)This AD applies to certain Models AT-501, AT-502, AT-502A, AT-502B, and AT-503A airplanes. Use Table 1 in paragraph (c)(1) of this AD for airplanes that do not incorporate and never have incorporated Marburger Enterprises, Inc. (Marburger) winglets. Use Table 2 in paragraph (c)(4) of this AD for certain AT-500 series airplanes that incorporate or have incorporated Marburger winglets.
(1)The following table applies to airplanes (certificated in any category) that do not incorporate and never have incorporated Marburger winglets along with the safe life (presented in hours time-in-service (TIS)) of the wing lower spar cap for all affected airplane models and serial numbers: Table 1.—Safe Life for Airplanes That Do Not Incorporate and Never Have Incorporated Marburger Winglets Model Serial Nos. Wing lower spar cap safe life AT-501 0002 through 0061 4,531 hours TIS. AT-501 All serial numbers beginning with 0062 7,693 hours TIS. AT-502 All serial numbers beginning with 0003 1,650 hours TIS. AT-502A All serial numbers beginning with 0158 1,650 hours TIS. AT-502B 0187 through 0654, except 0643 1,650 hours TIS. AT-502B 0643, and 0655 through 0692 9,000 hours TIS. AT-502B 0693 through 0701 9,500 hours TIS. AT-502B All serial numbers beginning with 0702 9,800 hours TIS. AT-503A All serial numbers beginning with 0067 1,650 hours TIS.
(2)If piston-powered airplanes have been converted to turbine power, you must use the limits for the corresponding serial number (S/N) turbine-powered airplanes.
(3)Airplanes that have been modified to install lower spar caps, part numbers (P/N) 21058-1 and 21058-2, should use a safe life of 9,800 hours TIS.
(4)The following table applies to airplanes (certificated in any category) that incorporate or have incorporated Marburger winglets. These winglets are installed following Supplemental Type Certificate
(STC)SA00490LA. Use the winglet usage factor in Table 2 of this paragraph, the safe life specified in Table 1 in paragraph (c)(1) of this AD, and the instructions included in Appendix 1 to this AD to determine the new safe life of airplanes that incorporate or have incorporated Marburger winglets: Table 2.—Winglet Usage Factor To Determine the Safe Life for Airplanes That Incorporate or Have Incorporated Marburger Winglets Installed Following STC SA00490LA Model Serial Nos. Winglet usage factor AT-501 0002 through 0061 1.6 AT-501 All serial numbers beginning with 0062 1.6 AT-502 0003 through 0236 1.6 AT-502A 0158 through 0238 1.6 AT-502A All serial numbers beginning with 0239 1.2 AT-502B All serial numbers beginning with 0187 1.2
(5)Model AT-502B airplanes, S/N 0643, all S/Ns beginning with 0655, and all other airplanes that have been modified with replacement spar caps, P/N 21058-1 and P/N 21058-2, are not eligible to have STC SA00490LA installed without additional fatigue data being provided to the FAA at the address in paragraph
(f)of this AD. Unsafe Condition
(d)This AD is the result of service reports and analysis done on wing lower spar caps of Air Tractor, Inc. airplanes. The actions specified by this AD are intended to prevent fatigue cracks from occurring in the wing lower spar cap before the established safe life is reached. Fatigue cracks in the wing lower spar cap, if not detected and corrected, could result in failure of the spar cap and lead to wing separation and loss of control of the airplane. Compliance
(e)To address this problem, you must do the following: Actions Compliance Procedures
(1)For all affected airplanes: Modify the applicable airplane records (logbook) as follows to show the reduced safe life for the wing lower spar cap (use the information from Table 1 in paragraph (c)(1), Table 2 in paragraph (c)(4), and Appendix 1 of this AD, as applicable):
(i)Incorporate the following into the airplane logbook “In accordance with AD **-**-** (AD 2002-26-05 or AD 2002-11-05, as applicable) the wing lower spar cap is life limited to __.” Insert the applicable safe life number from the applicable tables in paragraphs (c)(1) and (c)(4) of this AD and Appendix 1 of this AD
(ii)If, as of the time of the logbook entry requirement of paragraph (e)(1)(i) of this AD, your airplane is over or within 50 hours of the safe life, an additional 50 hours TIS after the effective date of this AD is allowed to do the replacement *For airplanes previously affected by AD 2002-26-05:* Do the logbook entry within the next 10 hours TIS after January 15, 2003 (the effective date of AD 2002-26-05). *For airplanes not previously affected by AD 2002-26-05:* Do the logbook entry within the next 10 hours TIS after the effective date of this AD, unless already done. The logbook language for AT-501 airplanes is referenced as AD 2002-11-05 instead of AD 2002-11-05 R1 to maintain continuity and assures no further action is necessary *Airplane Records Modification:* The owner/operator holding at least a private pilot certificate as authorized by section 43.7 of the Federal Aviation Regulations (14 CFR 43.7) may modify the airplane records as specified in paragraph (e)(1) of this AD. Make an entry into the airplane records showing compliance with this portion of the AD in accordance with section 43.9 of the Federal Aviation Regulations (14 CFR 43.9). *Spar Cap Replacement:* Do the replacement when the safe life is reached following Snow Engineering Drawing Number 21050, Snow Engineering Service Letters #197 or #205, both revised March 26, 2001, as applicable. The owner/operator may not do the spar cap modification/replacement, unless he/she holds the proper mechanic authorization.
(2)For all affected airplanes: To extend the safe life of the wing lower spar cap, you may eddy-current inspect and modify the wing lower spar cap. The inspection schedule and modification procedures are included in Appendix 2 to this AD Inspection schedule included as part of the alternative method of compliance
(AMOC)in Appendix 2 to this AD Procedures included as part of the AMOC in Appendix 2 to this AD.
(3)For all affected airplanes: Report to the FAA any cracks detected as the result of each inspection required by paragraph (e)(2) of this AD on the form in Figure 1 of this AD. The Office of Management and Budget
(OMB)approved the information collection requirements contained in this regulation under the provisions of the Paperwork Reduction Act and assigned OMB Control Number 2120-0056 Only if cracks are found, send the report within 10 days after the inspection required in paragraph (e)(2) of this AD Send the form (Figure 1 of this AD) to FAA, Fort Worth Airplane Certification Office, Attn: Rob Romero, 2601 Meacham Boulevard, Fort Worth, Texas 76193-0150; telephone:
(817)222-5102; facsimile:
(817)222-5960.
(4)For Model AT-502B airplanes, S/Ns 502B-0643, and 502B-0655 through 502B-0692: Cold work the left-hand and right-hand two outboard wing center splice block bolt holes (4 total) in the lower spar cap Before accumulating 2,000 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later Following Snow Engineering Service Letter #244, dated April 25, 2005.
(5)For all affected airplanes: Airplanes that have the two-part modification done following the applicable service bulletins (Snow Engineering Service Letters #197 or #205, both revised March 26, 2001; or Snow Engineering Service Letter #244, dated April 25, 2005), but have over-sized outboard bolt holes at the splice block, must obtain an AMOC from FAA as specified in paragraph
(f)of this AD to determine applicable inspection intervals Not applicable. Not applicable. BILLING CODE 4910-13-P EP09AU06.007 BILLING CODE 4910-13-C Alternative Methods of Compliance
(f)The Manager, Fort Worth or Los Angeles Airplane Certification Office (ACO), as applicable (see paragraphs (f)(1)(i) and (f)(2)(ii) of this AD below for specific contacts), has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(1)For information on any already approved AMOCs, contact:
(i)For the airplanes that do not incorporate and never have incorporated Marburger Enterprises, Inc. winglets: Rob Romero, Aerospace Engineer, FAA, Fort Worth Airplane Certification Office, 2601 Meacham Boulevard, Fort Worth, Texas 76193-0150; telephone:
(817)222-5102; facsimile:
(817)222-5960; e-mail: *robert.a.romero@faa.gov.*
(ii)For airplanes that incorporate or have incorporated Marburger Enterprises, Inc. winglets: John Cecil, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, 3960 Paramount Boulevard, Lakewood, California 90712; telephone:
(562)627-5228; facsimile:
(562)627-5210.
(2)AMOCs approved for AD 2001-10-04 and/or AD 2000-14-51 are not considered approved for this AD.
(3)AMOCs approved for AD 2001-10-04 R1, AD 2002-11-03, AD 2002-11-05, AD 2002-11-05 R1, or AD 2002-26-05 are considered approved for this AD. Special Flight Permit
(g)Under 14 CFR part 39.23, we are limiting the special flight permits for this AD by the following conditions:
(1)Operate only in day visual flight rules (VFR).
(2)Ensure that the hopper is empty.
(3)Limit airspeed to 135 miles per hour
(mph)indicated airspeed (IAS).
(4)Avoid any unnecessary g-forces.
(5)Avoid areas of turbulence.
(6)Plan the flight to follow the most direct route. Related Information
(h)To get copies of the documents referenced in this AD, contact Air Tractor, Incorporated, P.O. Box 485, Olney, Texas 76374; or Marburger Enterprises, Inc., 1227 Hillcourt, Williston, North Dakota 58801. To view the AD docket, go to the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov.* The docket number is FAA-2004-19961. Appendix 1 to Docket No. FAA-2004-19961 The following provides procedures for determining the safe life for those Models AT-501, AT-502, AT-502A, and AT-502B airplanes that incorporate or have incorporated Marburger Enterprises, Inc. (Marburger) winglets. These winglets are installed in accordance with Supplemental Type Certificate
(STC)No. SA00490LA. *If you have removed the Marburger winglets before further flight after the effective date of this AD or before the effective date of this AD, do the following:* 1. Review your airplane's logbook to determine your airplane's time-in-service
(TIS)with winglets installed per Marburger STC No. SA00490LA. This includes all time spent with the winglets currently installed and any previous installations where the winglet was installed and later removed. Example: A review of your airplane's logbook shows that you have accumulated 350 hours TIS since incorporating the Marburger STC. Further review of the airplane's logbook shows that a previous owner had installed the STC and later removed the winglets after accumulating 150 hours TIS. Therefore, your airplane's TIS with the winglets installed is 500 hours. If you determine that the winglet STC has never been incorporated on your airplane, then your safe life is presented in Table 1 in paragraph (c)(1) of this AD. Any future winglet installation will be subject to a reduced safe life per these instructions. 2. Determine your airplane's unmodified safe life from Table 1 in paragraph (c)(1) of this AD. Example: Your airplane is a Model AT-502B, serial number (S/N) 0292. From Table 1 in paragraph (c)(1) of this AD, the unmodified safe-life of your airplane is 1,650 hours TIS. All examples from hereon will be based on the Model AT-502B, S/N 0292 airplane. 3. Determine the winglet usage factor from Table 2 in paragraph (c)(4) of this AD. Example: Again, your airplane is a Model AT-502B, S/N 0292. From Table 2 in paragraph (c)(4) of this AD, your winglet usage factor is 1.2. 4. Adjust the winglet TIS to account for the winglet usage factor. Multiply the winglet TIS (result of Step 1 above) by the winglet usage factor (result of Step 3 above). Example: Winglet TIS is 500 hours × a winglet usage factor of 1.2. The adjusted winglet TIS is 600 hours. 5. Calculate the winglet usage penalty. Subtract the winglet TIS (result of Step 1 above) from the adjusted winglet TIS (result of Step 4 above). Example: Adjusted winglet TIS − the winglet TIS = Winglet usage penalty. (600 hours TIS) − (500 hours TIS) = (100 hours TIS). 6. Adjust the safe life of your airplane to account for winglet usage. Subtract the winglet usage penalty (result of Step 5 above) result from the unmodified safe life from Table 1 in paragraph (c)(1) of this AD (the result of Step 2 above). Example: Unmodified safe life − winglet usage penalty = Adjusted safe life. (1,650 hours TIS) − (100 hours TIS) = (1,550 hours TIS). 7. If you remove the winglets from your airplane before further flight or no longer have the winglets installed on your airplane, the safe life of your airplane is the adjusted safe life (result of Step 6 above). Enter this number in paragraph (e)(1)(i) of this AD and the airplane logbook. *If you have the Marburger winglets installed as of the effective date of this AD and plan to operate your airplane without removing the winglets, do the following:* 1. Review your airplane's logbook to determine your airplane's TIS without the winglets installed. Example: A review of your airplane's logbook shows that you have accumulated 1,500 hours TIS, including 500 hours with the Marburger winglets installed. Therefore, your airplane's TIS without the winglets installed is 1,000 hours. 2. Determine your airplane's unmodified safe life from Table 1 in paragraph (c)(1) of this AD. Example: Your airplane is a Model AT-502B, S/N 0292. From Table 1 in paragraph (c)(1) of this AD, the unmodified safe life of your airplane is 1,650 hours TIS. All examples from hereon will be based on the Model AT-502B, S/N 0292 airplane. 3. Determine the winglet usage factor from Table 2 in paragraph (c)(4) of this AD. Example: Again, your airplane is a Model AT-502B, S/N 0292. From Table 2 in paragraph (c)(4) of this AD, your winglet usage factor is 1.2. 4. Determine the potential winglet TIS. Subtract the TIS without the winglets installed (result of Step 1 above) from the unmodified safe life (result of Step 2 above). Example: Unmodified safe life − TIS without winglets = Potential winglet TIS. (1,650 hours TIS) − (1,000 hours TIS) = (650 hours TIS). 5. Adjust the potential winglet TIS to account for the winglet usage factor. Divide the potential winglet TIS (result of Step 4 above) by the winglet usage factor (result of Step 3 above). Example: Potential winglet TIS ÷ winglet usage factor = Adjusted potential winglet TIS. (650 hours TIS) ÷ (1.2) = (541 hours TIS). 6. Calculate the winglet usage penalty. Subtract the adjusted potential winglet TIS (result of Step 5 above) from the potential winglet TIS (result of Step 4 above). Example: Potential winglet TIS − adjusted potential winglet TIS = Winglet usage penalty. (650 hours TIS) − (541 hours TIS) = (109 hours TIS). 7. Adjust the safe life of your airplane to account for the winglet installation. Subtract the winglet usage penalty (result of Step 6 above) from the unmodified safe life from Table 1 in paragraph (c)(1) of this AD (the result of Step 2 above). Example: Unmodified safe life − winglet usage penalty = Adjusted safe life. (1,650 hours TIS) − (109 hours TIS) = (1,541 hours TIS). 8. Enter the adjusted safe life (result of Step 7 above) in paragraph (e)(1)(i) of this AD and the airplane logbook. *If you install or remove the Marburger winglets from your airplane in the future, do the following:* If, at anytime in the future, you install or remove the Marburger winglets STC from your airplane, you must repeat the procedures in this Appendix to determine the airplane's safe life. APPENDIX 2—ALTERNATIVE METHOD OF COMPLIANCE
(AMOC)TO DOCKET NO. FAA-2004-19961 Optional Inspection Program For all airplanes listed in this AD; except for Model AT-502B airplanes, serial number (S/N) 0643 and all S/Ns beginning with 0655, and those airplanes that have been modified with the replacement spar caps, part number (P/N) 21058-1 and P/N 21058-2; you may begin a repetitive inspection interval program as an alternative to the safe life requirement of this AD with the following provisions: For the Model AT-501 airplanes affected by this AD, you may elect to follow this AMOC program and continue to operate your airplane up to 8,000 hours TIS, provided you comply with this AMOC in its entirety. If at the time of the effective date of this AD, you are over 1,600 hours TIS (the time required for the first inspection), you must inspect within 50 hours TIS. If at the time of the effective date of this AD, you are over 4,000 hours TIS (the time required for 2-part modification), you must have the modification done within 50 hours TIS. If you choose not to follow this inspection program, then you must replace your lower spar caps and associated hardware at the applicable safe life listed in this AD following the procedures in paragraph (e). *For airplanes that do not and never have had Marburger Enterprise, Inc. winglets installed following Supplemental Type Certificate
(STC)SA00490LA:* 1. Upon accumulating 1,600 hours time-in-service
(TIS)or within the next 50 hours TIS after [effective date] (the effective date of AD **-**-**), whichever occurs later, eddy-current inspect the outboard two lower spar cap bolt holes following Snow Engineering Process Specification #197, page 1, revised June 4, 2002; pages 2 through 5, revised May 3, 2002. The inspection must be done by one of the following: a. A Level 2 or Level 3 inspector that is certified for eddy-current inspection using the guidelines established by the American Society for Nondestructive Testing or MIL-STD-410; or b. A person authorized to do AD work and has completed and passed the Air Tractor, Inc. training course on Eddy Current Inspection on wing lower spar caps. 2. Repeat these inspections at intervals of (as applicable): a. 800 hours TIS (all S/Ns except as noted in b); or b. 600 hours TIS (S/Ns 502B-0187 through 502B-0618 that do not have P/N 20998-1/2 web plate installed). c. If the outboard two lower spar cap bolt holes have been cold worked following Snow Engineering Service Letter #233, dated May 18, 2004, then you may double (1,600 hours TIS or 1,200 hours TIS, as applicable) the inspection interval (See Step 8—re: mid cycle cold work). d. Your logbook entry must include the work done and the inspection intervals that are upcoming, as follows: Following AD **-**-**, at XXXX {insert hours TIS of the initial pre-modification inspection} hours TIS an eddy-current inspection has been performed. As of now, the safe life listed in the AD no longer applies to this airplane. This airplane must be eddy-current inspected at intervals not to exceed {800/600/1,600/1,200, as applicable} hours TIS. The first of these inspections is due at {insert the total number of hours TIS the first of these inspections is due} hours TIS.” 3. If at any time a crack is found, and: a. The crack indication goes away by doing the modification following the applicable sheet of Snow Engineering Modification—Wing Centersplice—502, Drawing Number 20989, then you may modify your center splice following Snow Engineering Drawing 20989. After modification, proceed to Step 5. b. The crack indication does not go away by doing the modification following the applicable sheet of Snow Engineering Modification—Wing Centersplice—502, Drawing Number 20989, you must replace all parts and hardware listed in Step 7. c. Report to the FAA any cracks found using the form in Figure 1 of this AD. 4. For all S/Ns, upon accumulating 4,000 hours TIS, you must: a. Modify your center splice connection following the applicable sheet of Snow Engineering Modification—Wing Centersplice—502, Drawing Number 20989, unless already done following Snow Engineering Service Letter #197 or #205, both revised March 26, 2001, as applicable. The owners/operator may not do the spar cap modification unless that person holds the proper mechanic authorization. If, as of [effective date] (the effective date of AD **-**-**), your airplane is over or within 50 hours of reaching the 4,000 hour TIS modification requirement, do the modification within the next 50 hours TIS. b. Before doing the modification, do an eddy-current inspection following Snow Engineering Process Specification #197, page 1, revised June 4, 2002; pages 2 through 5, revised May 3, 2002, unless already done following the applicable Snow Engineering Service Letter #197 or #205, both revised March 26, 2001. c. Your logbook entry must include the work done and the inspection intervals that are upcoming, as follows: *“Following AD **-**-**, at XXXX {insert hours TIS of the modification} hours TIS an eddy-current inspection has been done. As of now, the safe life listed in the AD no longer applies to this airplane. This airplane must be eddy-current inspected at {insert the number of hours TIS at modification plus 1,600 hours TIS} hours TIS.* 5. For all S/Ns, upon accumulating 1,600 hours TIS after modification, inspect the left-hand and right-hand outboard two lower spar cap bolt holes following Snow Engineering Process Specification #197, page 1, revised June 4, 2002; pages 2 through 5, revised May 3, 2002. 6. Repeat the inspection at intervals of: a. 800 hours TIS; or b. 1,600 hours TIS if the outboard two lower spar cap bolt holes have been cold worked following Snow Engineering Service Letter #234, dated May 18, 2004 (See Step 8). c. Your logbook entry must include the work done and the post-modification inspection intervals that are upcoming, as follows: *“This airplane must be eddy-current inspected at intervals not to exceed {800/1,600, as applicable} hours TIS. The first of these inspections is due at {insert the total number of hours TIS the first of these inspections is due} hours TIS.”* d. If a crack is found at any time, before further flight you must replace the lower spar caps, splice blocks, and wing attach angles and hardware. You must also notify the FAA using the form in Figure 1 of this AD. 7. Upon accumulating 8,000 hours TIS, before further flight you must replace the lower spar caps, splice blocks, and wing attach angles (P/N 20693-1), and associated hardware. No additional time will be authorized for airplanes that are at or over 8,000 hours TIS (see Step 9). 8. (OPTIONAL): If you decide to cold work your bolt holes following Snow Engineering Service Letter #233 or #234, both dated May 18, 2002, at a TIS that does not coincide with a scheduled inspection following this AD, then eddy-current inspect at the time of cold working and then begin the 1,600/1,200 hour TIS inspection intervals (2 times the intervals listed in Steps 2.a., 2.b., and 6.a. listed above). 9. (OPTIONAL): If you have modified your airplane in accordance with Step 4 above before accumulating 4,000 hours TIS, then you may continue to fly your airplane past (modification + 4,000 hours TIS) provided you cut your inspection intervals in half. Make a logbook entry following Step 6.c. above to reflect these reduced inspection intervals. Upon accumulating 8,000 hours TIS, you must comply with Step 7 above. EXAMPLE: An AT-502B airplane had the two-part modification installed at 3,000 hours TIS and the bolt holes have not been cold worked. The first inspection would occur at 4,600 hours TIS. From Step 5, this is modification plus 1,600 hours TIS. Inspections would follow at 5,400 hours TIS, 6,200 hours TIS, and 7,000 hours TIS. From Step 6.a. above, this is 800-hour TIS inspection intervals. Regarding the inspection at 7,000 hours TIS (modification plus 4,000 hours TIS), this relates to the 8,000-hour TIS inspection from Step 7 above, which is modification plus 4,000 hours TIS, except in this example the modification took place at 3,000 hours TIS instead of 4,000 hours TIS as specified in Step 4 above. This airplane may continue to fly if inspected again at 7,400 hours TIS and 7,800 hours TIS, which is 400-hour TIS inspection intervals. This 400-hour TIS inspection interval corresponds to Step 9 where you cut your inspection interval from Step 6.a. in half. Upon accumulating 8,000 hours TIS (this is the same as Step 7 above), you must replace the parts listed in Step 7. *For airplanes that have or have had Marburger Enterprise, Inc. winglets installed following Supplemental Type Certificate
(STC)SA00490LA:* If you *have* removed the winglets, calculate new, reduced hours for Steps 1, 4, 5, and 7, as applicable, based on the winglet usage factor listed in Table 2 of paragraph (c)(4) and Appendix 2 of this AD. You may repetitively inspect at the same intervals listed in Step 2 above provided that you do not re-install the winglets. EXAMPLE: An AT-502 airplane, S/N 502-0200, had winglets installed at 200 hours TIS and removed at 800 hours TIS. The winglet usage factor is: 1.6 Calculate equivalent hours: 600 hours TIS with winglets X 1.6 = 960 hours TIS Winglet usage penalty = 960 - 600 = 360 New Step 1 Pre-Modification Initial Inspection Time = 1,600 - 360 = 1,240 hours TIS Retained Step 2 Pre-Modification Inspection Interval: Since the winglets are removed, the Pre-Modification Inspection Interval remains 800 hours TIS. New Step 4 Modification time = 4,000 - 360 = 3,640 hours TIS New Step 5 Post-Modification Initial Inspection time = 3,640 + 1,600 = 5,240 hours TIS. Retained Step 6 Post-Modification Inspection interval: Since the winglets are removed the Post-Modification Inspection interval remains at 800/1,600 hours TIS. New Step 7 replacement time = 8,000 - 360= 7,640 hours TIS Use the Retained Step 2 interval, the New Step 5 time, and the Retained Step 6 interval to make appropriate logbook entries for the pre- and post-modification intervals, using the format presented in Steps 2.d., 4.c., and 6.c. If you *have not* removed the winglets, then calculate new, reduced hours for Step 1, 2, 4, 5, 6, and 7 above, as applicable, based on the winglet usage factor listed in Table 2 of paragraph (c)(4) of this AD and Appendix 2 of this AD. Repetitively inspect at the appropriate interval listed in the step above divided by the winglet usage factor. EXAMPLE: An AT-502B, S/N 502B-0550, that has not had P/N 20998-1/-2 web plate installed and has had winglets on since new. The winglet usage factor is: 1.2 New Step 1 Pre-modification initial inspection time: 1,600 ÷ ( 1.2 = 1,333 hours TIS. New Step 2 Pre-modification inspection interval: 600 ÷ ( 1.2 = 500 hours TIS. New Step 4 Modification time: 4,000 ÷ ( 1.2 = 3,333 hours TIS. New Step 5 Post-modification initial inspection time: 3,333 + 1,333 (1,600 ÷ (1.2) = 4,666 hours TIS. New Step 6 Post-modification inspection interval: 800 ÷ (1.2 = 667 hours TIS. New Step 7 Replacement time: 8,000 ÷ ( 1.2 = 6,667 hours TIS Use the reduced hours you calculate in New Step 2, New Step 5, and New Step 6 to make appropriate logbook entries for the pre- and post-modification inspection intervals, using the format presented in Steps 2.d., 4.c., and 6.c above. Issued in Kansas City, Missouri, on August 3, 2006. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12945 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2004-20007; Directorate Identifier 2004-CE-50-AD] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Model AT-602 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of the comment period. SUMMARY: The FAA proposes to revise an earlier proposed airworthiness directive
(AD)that applies to all Air Tractor, Inc. (Air Tractor) Model AT-602 airplanes. The earlier NPRM would have required you to repetitively inspect (using the eddy current method) the wing center splice joint two outboard fastener holes on both of the wing main spar lower caps for fatigue cracking; repair or replace any wing main spar lower cap where fatigue cracking is found; and report any fatigue cracking found. The NPRM resulted from fatigue cracking at the wing center splice joint outboard fastener hole in one of the wing main spar lower caps. Since issuing the NPRM, the FAA has received and evaluated new information that decreases the compliance time to initially inspect certain serial numbers. This proposed AD includes the new compliance times in the table located in paragraph (e)(2) of this AD. Since these actions impose an additional burden over that proposed in the earlier NPRM, we are reopening the comment period to allow the public the chance to comment on these additional actions. DATES: We must receive any comments on this proposed AD by October 10, 2006. ADDRESSES: Use one of the following to submit comments on this proposed AD: • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-0001. • *Fax:* 1-202-493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To get service information identified in this AD, contact Air Tractor, Inc. at P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; or facsimile:
(940)564-5612. You may examine the comments on this proposed AD in the AD docket on the Internet at *http://dms.dot.gov.* FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include the docket number, “FAA-2004-20007; Directorate Identifier 2004-CE-50-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed rulemaking. Discussion The FAA received a report of fatigue cracking of the wing main spar lower cap at the wing center splice joint outboard fastener hole on one Air Tractor Model AT-602 airplane. The airplane had 2,895 hours time-in-service
(TIS)at the time the cracking was discovered. The fatigue cracking is similar to that found on other Air Tractor airplane model wings. Cracks in the wing main spar lower cap could result in failure of the spar cap and lead to wing separation and loss of control of the airplane. The following table contains AD actions that address the wing spar safe life of the Air Tractor airplane fleet: Related AD Actions AD No. Affected Air Tractor model airplanes Status 2000-14-51 AT-501, AT-502, and AT-502A Superseded by AD 2001-10-04. 2001-10-04 AT-400, AT-500, and AT-800 Series Revised by AD 2001-10-04 R1. 2001-10-04 R1 AT-400, AT-500, and AT-800 Series Superseded by AD 2002-11-05. 2002-11-05 AT-400, AT-401, AT-401B, AT-402, AT-402A, AT-402B, AT-501, AT-802, and AT-802A Revised by AD 2002-11-05 R1. 2002-13-02 AT-300, AT-301, AT-302, AT-400, and AT-400A Airplanes Superseded by AD 2003-06-01. 2002-11-03 AT-502, AT-502A, AT-502B, and AT-503A Superseded by AD 2002-26-05. 2002-26-05 AT-502, AT-502A, AT-502B, and AT-503A Current. 2003-06-01 AT-300, AT-301, AT-302, AT-400, and AT-400A Current. 2002-11-05 R1 AT-501 Current. 2006-08-08 AT-400, AT-401, AT-401B, AT-402, AT-402A, and AT-402B Current. 2006-08-09 AT-802 and AT-802A Current. You may view these ADs at the following Internet Web site addresses: *http://www.airweb.faa.gov/Regulatory_and_Guidance_Library/rgAD.nsf/MainFrame?OpenFrameSet* or *http://www.gpoaccess.gov/fr/index.html.* We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to all Air Tractor Model AT-602 airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking
(NPRM)on February 22, 2005 (70 FR 8549). The NPRM proposed to require you to repetitively inspect (using the eddy current method) the wing center splice joint two outboard fastener holes on both of the wing main spar lower caps for fatigue cracking; repair or replace any wing main spar lower cap where fatigue cracking is found; and report any fatigue cracking found. The FAA encouraged interested persons to participate in developing this amendment. The following presents the comments received on the proposal and FAA's response to each comment: Comment Issue No. 1: Maintenance Required During the Peak Spraying Season The National Agricultural Aviation Association (NAAA), while recognizing immediate concerns to safety occur, requests the FAA consider the unique operating season of aerial application businesses and attempt to write ADs so compliance can be made during off-season maintenance. Deferring maintenance to the off-season minimizes the financial impact and loss of airplane availability to operators during the peak spraying season. The operators perceive that constant revisions of potential solutions to the wing spar cracking problems prevent them from prorating their potential expenses or planning the timing of required maintenance. The FAA agrees with the NAAA. We should consider the importance of the financial and operational impact any rulemaking will have on owners and operators and, in this specific case, aerial application businesses. This proposed rule uses inspections to manage the safety of the wing centerline joint instead of reducing the compliance times for replacing parts. However, this approach can not be used indefinitely. Extending the service life of fatigue-critical, primary structure areas requires not only ensuring the safety of the area being inspected or modified, but also ensuring the safety of the complete structure when extending the service life. We are not changing the proposed AD based on this comment. Comment Issue No. 2: Incorrect Costs of Inspection and Modification Leland Snow, President of Air Tractor, and Lewis Broussard, owner of Lewis's Flying Service, state that the costs associated with the inspection and modification in the NPRM are not correct. The FAA partially agrees. We have revised the costs for the inspection and repairs or terminating actions. The proposed rulemaking does not reduce the current safe-life of the lower spar caps. Since the replacement time is not changed from the current safe-life approved at certification, the replacement costs are not applicable to this NPRM. Comment Issue No. 3: Reference to Aluminum Spar Caps Should be Steel Spar Caps Leland Snow, President of Air Tractor, states that there are references made to aluminum spar caps, and the Air Tractor Model AT-602 only uses steel spar caps. Also change “lower wing spars caps” to “lower wing spar caps.” The commenter believes this is a typographical error. The FAA agrees. All references to aluminum spar caps have been removed. The typographical error has also been corrected. Comment Issue No. 4: Incorrect Telephone Numbers Leland Snow, President of Air Tractor, requests we change the contact telephone numbers for Air Tractor, Inc. They are incorrect. The FAA agrees. Contact Air Tractor at telephone number
(940)564-5616 and facsimile number
(940)564-5612. The supplemental NPRM reflects this change. Comment Issue No. 5: Snow Engineering Co. Process Specification #205 Leland Snow, President of Air Tractor, recommends deleting the reference to Snow Engineering Co. Process Specification #205, dated April 26, 2004, and using serial numbers (S/Ns) 602-0695 and subsequent to identify the factory cold-worked spar caps. Process Specification #205 contains the procedures for cold-working production airplanes and requires a CNC Mill. Airplanes starting with S/N 602-0695 are cold-worked in production using Process Specification #205. The FAA partially agrees. Snow Engineering Co. Drawing 20776, sheet 2, Revision A, dated August 30, 2004, Note 19 refers to Process Specification #205 to cold work and line-ream the lower spar caps and attach blocks. The drawing applies to S/N 602-0695 and subsequent S/Ns that were cold worked in production, but according to Drawing Note 23, airplanes with S/Ns back to 602-0337 can also be retrofitted with cold worked parts. Therefore, it is possible that an early S/N airplane may receive replacement spar caps cold-worked and line-reamed by Process Specification #205 according to Drawing 20776. Airplane S/Ns before 602-0695 may also receive cold working by Snow Engineering Co. Service Letter #244, dated April 25, 2005; or by Service Letter #240, dated September 30, 2004, if modified by Snow Engineering Drawing 20998, Revision B, dated September 28, 2004. To simplify, we will revise the proposed AD as follows: For inspection, we will refer to airplane S/Ns where possible in the AD, refer to the Service Letter #244 for in-service cold working; Drawing Number 20998 and Service Letter #240 as terminating action for inspection and for repair; and Snow Engineering Co. Drawing 20776 for spar cap replacement. Comment Issue No. 6: Unclear Drill Size and Intent of Repair For paragraph (f)(1) of the previous proposed AD, Leland Snow, President of Air Tractor, believes the next larger drill size is unclear and the intent of the repair is unclear. The FAA agrees. We have revised the wording to clarify the intent of the repair of cracks. Comment Issue No. 7: Dates of Service Information Leland Snow, President of Air Tractor, wants the AD to call out the date on all drawings and service letters and add the text “or later FAA-approved revision.” The FAA partially agrees. The AD will include dates with the reference materials. The FAA can not include the text “or later FAA-approved revision” since we can not approve data that does not already exist. Air Tractor may work with the FAA to include a statement in future revisions that considers that service information as an alternative method of compliance. Comment Issue No. 8: Modifying the wing versus replacing the lower spar caps Leland Snow, President of Air Tractor, Inc., asks that we add installation of a steel plate at the wing splice joint, drilling the lower spar caps and installing extended splice blocks, and cold working critical fastener holes in lieu of lower spar cap replacement as a method to extend operating the wing past the current safe-life. The cost of modifying the wing is cheaper than replacing the lower spar caps and associated components and hardware. The manufacturer's resources to supply parts and change spar caps are limited, and the timeliness of spar cap replacement during the spray season when airplanes are operating makes doing this even more difficult. The FAA disagrees. Extending the safe-life of primary structure requires not only substantiating the safety of the area being inspected or modified, but also ensuring the complete structure remains safe when extending the life. A full-scale fatigue test of the airplane's structure is the preferred method of extending the original safe-life, especially when the original design was substantiated by analysis, as in the case of the Model AT-602 airplane wing. Based on the data that is currently available, the FAA is unable to extend the safe-life. We are not changing the proposed AD based on this comment. Comment Issue No. 9: Compliance Times The National Transportation Safety Board
(NTSB)requests we lower the initial inspection time for unmodified wing spars from 2,500 hours TIS to 2,000 hours TIS; and lower the recurring inspection intervals to a time unspecified by the commenter. The FAA partially agrees. The manufacturer has provided new data since we published the original NPRM that confirms a fatigue life of 2,000 hours TIS for Model AT-602 airplanes, S/N 602-0337 through S/N 602-0584. This fatigue life is based on a recent FAA-approved usage spectrum and applies to airplanes not having a steel spar web plate installed. The same data show all other Model AT-602 airplanes are exempt from inspection. The FAA also did a Weibull analysis for the Model AT-602 fleet based on known service history that supports the 2,000-hour TIS fatigue life. We will establish the initial inspection time at 2,000 hours TIS for airplanes without the steel web plate based on this new information. The recurring inspection intervals specified in the NPRM are based on FAA-approved damage tolerance testing and analysis. The specified intervals allow for performing at least two inspections before a detectable crack would grow to critical length. For further conservatism, the crack growth testing and analysis and resultant intervals are based on a usage spectrum that the FAA believes represents usage more severe than would be expected in routine service. Relevant Service Information We have reviewed the following Snow Engineering Co. service information: • Process Specification #197, revised June 4, 2002, Drawing 20776, Sheet 2, Revision A, dated August 30, 2004; • Service Letter #204, revised March 26, 2001; • Service Letter #240, dated September 30, 2004; • Drawing 20998, Revision B, dated September 28, 2004; and • Service Letter #244, dated April 25, 2005. The service information includes procedures for: • Preparing the airplane and the eddy current machine for inspection of the lower wing spar caps; • Inspecting the lower wing spar caps for cracks; • Verifying suspected cracks for steel lower wing spar caps; • Repairing the cracks by installing a web plate and 8-bolt splice block; and • Replacing the spar caps and associated hardware. Snow Engineering Co. has a licensing agreement with Air Tractor that allows them to produce technical data for use on Air Tractor products. FAA's Determination and Requirements of This Proposed AD Since issuing the earlier NPRM, the FAA has received and evaluated new information that decreases the compliance time to initially inspect on certain S/Ns. This proposed AD includes the new compliance times in the table located in paragraph (e)(2) of this proposed AD. After examining the circumstances and reviewing all available information related to the incidents described above, we have determined that: • The unsafe condition referenced in this document exists or could develop on other Air Tractor Model AT-602 airplanes of the same type design that are on the U.S. registry; • We should change the NPRM to eliminate the inspection requirements for all S/Ns beginning with 602-0585, to shorten the compliance times for the initial inspection on S/Ns 602-0337 through S/N 602-0584, and to provide terminating action for repetitive inspections on S/Ns 602-0337 through S/N 602-0584; and • We should take AD action to correct this unsafe condition. The Supplemental NPRM Proposing a shorter compliance time for the initial inspection for certain airplanes goes beyond the scope of what was originally proposed in the NPRM. Therefore, we are reopening the comment period and allowing the public the chance to comment on these additional actions. The proposed AD would require you to repetitively inspect (using the eddy current method) the wing center splice joint two outboard fastener holes in the wing main spar lower caps for cracks and repair or replace any cracked spar cap. Costs of Compliance We estimate that this proposed AD affects 107 airplanes in the U.S. registry. We estimate the following costs to do this proposed inspection: Labor cost Parts cost Eddy current inspection Total cost per airplane Total cost on U.S. operators Initial inspection and installation of access panels −24 work-hours × $80 = $1,920 $645 *$500 $3,065 $327,955 Repetitive Inspection
(each)$60 *$800 $860 $92,020 * Eddy current inspections are an estimated flat cost that includes labor and use of equipment. We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this repair: Labor cost Parts cost Total cost per airplane Install web plate, 8-bolt splice blocks, and cold work fastener holes: Air Tractor estimated a labor cost of $12,100. When broken down into work-hours, we estimated 151 work-hours to complete the task. 151 work-hours × $80 = $12,080 $6,900 $18,980 Cold work fastener holes following Snow Engineering Co. Service Letter #244, dated April 25, 2005: 19 work-hours × $80 = $1,520 $1,350 $2,870 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil airplanes in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this proposed AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this proposed AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “AD Docket FAA-2004-20007; Directorate Identifier 2004-CE-50-AD” in your request. Examining the Dockets You may examine the docket that contains the proposal, any comments received, and any final disposition on the Internet at *http://dms.dot.gov* , or in person at the DOT Docket Offices between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5227) is located on the plaza level of the Department of Transportation NASSIF Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the Docket Management Facility receives them. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): **Air Tractor, Inc.:** Docket No. FAA-2004-20007; Directorate Identifier 2004-CE-50-AD. Comments Due Date
(a)We must receive comments on this proposed airworthiness directive
(AD)by October 10, 2006. Affected ADs
(b)None. Applicability
(c)This AD affects Model AT-602 airplanes, all serial numbers beginning with 602-0337, that are certificated in any category. Unsafe Condition
(d)This AD is the result of fatigue cracking of the wing main spar lower cap at the centerline splice joint outboard fastener hole. The actions specified in this AD are intended to detect and correct cracks in the wing main spar lower cap, which could result in failure of the spar cap and lead to wing separation and loss of control of the airplane. Compliance
(e)To address the problem, do the following:
(1)Before doing the initial eddy current inspection required in paragraph (e)(2) of this AD, gain access for the inspection by cutting inspection holes, modifying the vent tube, and installing cover plates; unless already done. Follow Snow Engineering Co. Service Letter #204, dated October 25, 2000, Drawing titled “602 Spar Inspection Holes and Vent Tube Mod.,” dated November 13, 2003.
(2)Eddy current inspect the wing center splice joint outboard two fastener holes in both the right and left wing main spar lower caps for cracks. Follow Snow Engineering Co. Process Specification #197, Revised June 4, 2002. For the following airplanes, use the wing spar lower cap hours time-in-service
(TIS)schedule below in Table 1.—Compliance Times for Inspection to do the initial and repetitive inspections: Table 1.—Compliance Times for Inspection Serial Nos. Condition Initially inspect Repetitively inspect thereafter at the following intervals
(i)602-0337 through 602-0584 As manufactured Upon accumulating 2,000 hours TIS or within 50 hours TIS after the effective date of this AD, whichever occurs later, unless already done 1,000 hours TIS.
(ii)602-0337 through 602-0584 Modified with cold-worked fastener holes following Snow Engineering Co. Service Letter #244, dated April 25, 2005 If performing the cold-working procedure in Service Letter #244, it includes the eddy current inspection 2,000 hours TIS.
(3)Do an eddy current inspection as part of the cold working procedure in Service Letter #244, dated April 25, 2005, even if the wing spar was previously inspected.
(4)One of the following must do the inspection:
(i)A level 2 or 3 inspector certified in eddy current inspection using the guidelines established by the American Society for Nondestructive Testing or NAS 410; or
(ii)A person authorized to perform AD maintenance work and who has completed and passed the Air Tractor, Inc. training course on Eddy Current Inspection on wing lower spar caps.
(f)For the airplanes listed in paragraph (e)(2) of this AD, as terminating action for the inspection requirements, you may modify your wing by installing part number (P/N) 20996-2 steel web plate and P/N 20985-1/2 8-bolt splice blocks following Snow Engineering Co. Drawing 20998, Revision B, dated September 28, 2004, and cold work the lower spar cap two outboard fastener holes at the wing center section splice connection following Snow Engineering Co. Service Letter #240, dated September 30, 2004.
(g)For all affected airplanes listed in paragraph (e)(2) of this AD, repair or replace any cracked spar cap before further flight. For repair or replacement, do one of the following:
(1)For cracks that can be removed by performing the terminating action listed in paragraph
(f)of this AD above, perform the actions in paragraph
(f)of this AD.
(2)For cracks that can not be removed by performing the terminating action in paragraph
(f)of this AD, you must replace the lower spar caps and associated parts listed in paragraph
(h)of this AD before continued flight.
(h)For all Model AT-602 airplanes, upon accumulating 6,500 hours TIS on the wing spar lower caps or within the next 50 hours TIS after the effective date of this AD, whichever occurs later, replace the wing lower spar caps, splice blocks and hardware, wing attach angles and hardware, and install the steel web plate, P/N 20996-2, if not already installed, following Snow Engineering Co. Drawing 20776, Sheet 2, Revision A, dated August 30, 2004. Compliance with this paragraph terminates the inspection requirements of paragraph (e)(2) of this AD.
(i)Report any cracks you find within 10 days after the cracks are found or within 10 days after the effective date of this AD, whichever occurs later. Include in your report the airplane serial number, airplane TIS, wing spar cap TIS, crack location and size, corrective action taken, and a point of contact name and phone number. Send your report to Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370. The Office of Management and Budget
(OMB)approved the information collection requirements contained in this regulation under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 and those following sections) and assigned OMB Control Number 2120-0056. Alternative Methods of Compliance (AMOCs)
(j)The Manager, Fort Worth Airplane Certification Office, FAA, ATTN: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; facsimile:
(210)308-3370, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(k)To get copies of the documents referenced in this AD contact Air Tractor, Inc. at address P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; or facsimile:
(940)564-5612. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC, or on the Internet at *http://dms.dot.gov* . The docket number is FAA-2004-20007. Issued in Kansas City, Missouri, on August 3, 2006. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12949 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24956; Directorate Identifier 2006-CE-32-AD] RIN 2120-AA64 Airworthiness Directives; Stemme GmbH & Co. AG Model STEMME S10-VT Sailplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)issued by an airworthiness authority of another country to identify and correct an unsafe condition on an aviation product. The proposed AD would require actions that are intended to address an unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by September 8, 2006. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • DOT Docket Web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking Web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • Fax:
(202)493-2251. • Hand delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in the proposed AD, contact Stemme GmbH & Co. AG (Stemme), Flugplatzstra(e F 2, Nr. 7, D-15344 Strausberg, Germany; telephone: + 49 33 41 36 12 0; facsimile: + 49 33 41 36 12 30. FOR FURTHER INFORMATION CONTACT: Gregory A. Davison, Aerospace Engineer, ACE-112, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4130; facsimile:
(816)329-4090. SUPPLEMENTARY INFORMATION: Streamlined Issuance of AD The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. We are prototyping this process and specifically request your comments on its use. You can find more information in FAA draft Order 8040.2, “Airworthiness Directive Process for Mandatory Continuing Airworthiness Information” which is currently open for comments at *http://www.faa.gov/aircraft/draft_docs* . This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all existing AD issuance processes to meet legal, economic, Administrative Procedure Act, and **Federal Register** requirements. We also continue to follow our technical decision-making processes in all aspects to meet our responsibilities to determine and correct unsafe conditions on U.S.-certificated products. This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles. The comment period for this proposed AD is open for 30 days to allow time for comment on both the process and the AD content. In the future, ADs using this process will have a 15-day comment period. The comment period is reduced because the airworthiness authority and manufacturer have already published the documents on which we based our decision, making a longer comment period unnecessary. Comments Invited We invite you to send any written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2006-24956; Directorate Identifier 2006-CE-32-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We are also inviting comments, views, or arguments on the new MCAI process. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, has issued German AD D-2005-228, dated June 24, 2005 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The mandatory continuing airworthiness information
(MCAI)states that Stemme has identified ripped pressure lines for the airbox, carburetor, and differential fuel pressure sensor. The unsafe condition was found during a requested maintenance check after in-flight engine trouble in the range between maximum continuous power and take off power. The material used in these pressure lines may not meet the required temperature specifications. This type of pressure line was installed between July 27, 2004 and June 22, 2005, inclusive. It was used for serial production and for spare parts. If not corrected, the cracks could result in a loss of engine power during critical phases of flight. The MCAI requires that you inspect and replace the pressure lines. You may obtain further information by examining the MCAI in the docket. Relevant Service Information Stemme has issued STEMME F&D Design Org. Service Bulletin A31-10-073, Am. Index 01.a, dated June 22, 2005. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product is manufactured outside the United States and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral agreement. Pursuant to this bilateral airworthiness agreement, the State of Design's airworthiness authority has notified us of the unsafe condition described in the MCAI and service information referenced above. We have examined the airworthiness authority's findings, evaluated all pertinent information, and determined an unsafe condition exists and is likely to exist or develop on all products of this type design. We are issuing this proposed AD to correct the unsafe condition. Differences Between the Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable in a U.S. court of law. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are described in a separate paragraph of the proposed AD. These proposed requirements, if ultimately adopted, will take precedence over the actions copied from the MCAI. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 43 products of U.S. registry. We also estimate that it would take about 4 work-hours per product to do the action and that the average labor rate is $80 per work-hour. Required parts would cost about $10 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $14,190 or $330 per product. Authority for This Rulemaking Title 49 of the United States Code specifies FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://dms.dot.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Stemme GmbH & Co. AG:** FAA-2006-24956; Directorate Identifier 2006-CE-32-AD. Comments Due Date
(a)We must receive comments on this proposed airworthiness directive
(AD)by September 8, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to STEMME Model S10-VT sailplanes; certificated in any U.S. category:
(1)Serial numbers (S/Ns) 11-089 through 11-096; and
(2)All S/Ns where pressure lines were replaced between July 27, 2004 and June 22, 2005, inclusive, and the parts were provided by Stemme Gmbh & Co. AG (Stemme). Reason
(d)The mandatory continuing airworthiness information
(MCAI)states that Stemme has identified ripped pressure lines for the airbox, carburetor, and differential fuel pressure sensor. The unsafe condition was found during a requested maintenance check after in-flight engine trouble in the range between maximum continuous power and take off power. The material used in these pressure lines may not meet the required temperature specifications. This type of pressure line was installed between July 27, 2004 and June 22, 2005, inclusive, and was used for serial production and spare parts. If not corrected, the cracks could result in a loss of engine power during critical phases of flight. The MCAI requires an inspection of the pressure lines for cracks or leaks, and if any leaks or cracks are found, replacement of all pressure lines. Actions and Compliance
(e)Unless already done, do the following except as stated in paragraph
(f)below.
(1)Within 30 days after the effective date of this AD, inspect all 0.15 × 0.27 inch (4 × 7 mm) pressure lines for porousness or cracks in particular areas of T-split parts, clamps, or connections. The free areas between the white plastic covers must also be checked. If cracks or porosity are found, before further flight, replace all pressure lines with ROTAX part number (P/N) 860 660 or Stemme P/N HZ-KLS041 (or FAA-approved equivalent P/Ns) pressure lines following STEMME F&D Design Org. Service Bulletin A31-10-073, Am. Index 01.a, dated June 22, 2005.
(2)Within 60 days after the effective date of this AD, unless already done, replace all installed 0.15 × 0.27 inch (4 × 7 mm) pressure lines with ROTAX P/N 860 660 or Stemme P/N HZ-KLS041 (or FAA-approved equivalent P/Ns) pressure lines following STEMME F&D Design Org. Service Bulletin A31-10-073, Am. Index 01.a, dated June 22, 2005. FAA AD Differences
(f)None. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Staff, FAA, ATTN: Gregory A. Davison, Aerospace Safety Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4130; facsimile:
(816)329-4090, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)*Return to Airworthiness:* When complying with this AD, do the FAA-approved corrective actions before returning the product to an airworthy condition.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056.
(4)*Parts Manufacturer Approval (PMA):* 14 CFR 21.303 allows for replacement parts through parts manufacturer approval (PMA). The phrase “ or FAA-approved equivalent part number” in this AD is intended to allow for PMA parts approved through identicality to the design of the replacement parts identified in this AD. Equivalent replacement parts to correct the unsafe condition under PMA (other than identicality) may also be installed provided they meet current airworthiness standards, which include those actions cited in this AD. Related Information
(h)This AD is related to German AD D-2005-228, dated June 24, 2005, which references STEMME F&D Design Org. Service Bulletin A31-10-073, Am. Index 01.a, dated June 22, 2005. Issued in Kansas City, Missouri, on August 3, 2006. John R. Colomy, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-12943 Filed 8-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-118775-06] RIN 1545-BF64 Revisions to Regulations Relating to Repeal of Tax on Interest of Nonresident Alien Individuals and Foreign Corporations Received From Certain Portfolio Debt Investments; Hearing AGENCY: Internal Revenue Service, Treasury. ACTION: Changes of date and location for public hearing. SUMMARY: This document provides changes of date and location for a public hearing on proposed regulations under sections 871 and 881 of the Internal Revenue Code
(Code)relating to the exclusion from gross income of portfolio interest paid to a nonresident alien individual or foreign corporation. DATES: The public hearing originally scheduled for Thursday, September 7, 2006, at 10 a.m. is rescheduled for Friday, October 6, 2006, at 10 a.m. Outlines of topics to be discussed at the public hearing will be due by August 24, 2006. ADDRESSES: The public hearing was originally being held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington DC. The hearing location has changed. The public hearing will be held in the IRS Auditorium, New Carrollton Federal Building, 5000 Ellin Road, Lanham, Maryland 20706. FOR FURTHER INFORMATION CONTACT: Guy R. Traynor,
(301)922-0539 (not a toll free number) or Richard Hurst at *Richard.A.Hurst@irscounsel.treas.gov.* SUPPLEMENTARY INFORMATION: A notice of proposed rulemaking and notice of public hearing (REG-118775-06) appearing in the **Federal Register** on Tuesday, June 13, 2006 (71 FR 34047), announced that a public hearing on proposed regulations relating to the exclusion from gross income of portfolio interest paid to a nonresident alien individual or foreign corporation would be held on Thursday, September 7, 2006, beginning at 10 a.m. in the IRS Auditorium, 1111 Constitution Avenue, NW., Washington, DC. The date and location of the hearing have changed. The hearing is rescheduled for Friday, October 6, 2006, beginning at 10 a.m. in the IRS Auditorium, New Carrollton Federal Building, 5000 Ellin Road, Lanham, Maryland 20706. A period of 10 minutes is allotted to each person for presenting oral comments. The IRS will prepare an agenda containing the schedule of speakers. Copies of the agenda will be made available, free of charge, at the hearing. Guy R. Traynor, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration). [FR Doc. E6-12887 Filed 8-8-06; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 [REG-118788-06] RIN 1545-BF63 Definition of Essential Governmental Function Under Section 7871 and Limitation to Activities Customarily Performed by States and Local Governments AGENCY: Internal Revenue Service (IRS), Treasury. ACTION: Advance notice of proposed rulemaking. SUMMARY: This document applies to Indian tribal governments and to State and local governments that issue bonds for the benefit of Indian tribal governments. This document describes rules that the IRS and the Treasury Department anticipate proposing, in a notice of proposed rulemaking, regarding the definition of an essential governmental function under section 7871(c) of the Internal Revenue Code and the limitation of that term to activities customarily performed by State and local governments for purposes of section 7871(e) of the Internal Revenue Code. This document also invites comments from the public regarding this proposed standard. DATES: Written or electronic comments must be submitted by November 7, 2006. ADDRESSES: Send submissions to: CC:PA:LPD:PR (REG-118788-06), Room 5203, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be sent electronically, via the IRS Internet site at *http://www.irs.gov/regs* or via the Federal eRulemaking Portal at *http://www.regulations.gov* (indicate IRS and REG-118788-06). FOR FURTHER INFORMATION CONTACT: Concerning submissions, Kelly Banks,
(202)927-1443; concerning the proposed rules, Timothy L. Jones or Aviva M. Roth,
(202)622-3980 (not toll-free numbers). SUPPLEMENTARY INFORMATION: Background Section 7871(a)(4) of the Internal Revenue Code of 1986 provides that an Indian tribal government is to be treated as a State “subject to subsection (c), for purposes of section 103 (relating to State and local bonds)”. Section 7871(c)(1) provides that “section 103(a) shall apply to any obligation (not described in paragraph (2)) issued by an Indian tribal government (or subdivision thereof) only if such obligation is part of an issue substantially all of the proceeds of which are to be used in the exercise of any essential governmental function”. Section 7871(e) provides that “[f]or purposes of this section, the term ‘essential governmental function' shall not include any function which is not customarily performed by State and local governments with general taxing powers”. Section 7871 was originally enacted in 1982 by The Indian Tribal Government Tax Status Act, Public Law 97-473, 96 Stat. 2605 § 202 (1983). In the legislative history to that Act, the Senate Finance Committee indicated that tax-exempt bond financing was not intended to be available to Indian tribal governments for “commercial or industrial activities (or other activities other than essential governmental functions).” S. Rep. No. 97-646, at 13-14 (1982). Section 7871(e) was added to the statute by The Omnibus Budget Reconciliation Act of 1987, Public Law 100-203, 101 Stat. 1330, § 10632(a) (1987). In the legislative history to this provision, the House Ways and Means Committee criticized 1984 Temporary Treasury Regulations interpreting the term essential governmental function in section 7871(c) for including certain activities eligible for Federal funding in that definition. The House Ways and Means Committee stated that the reason for this amendment was that the Committee was concerned about reports that Indian tribal governments were issuing tax-exempt bonds for interests in “commercial and industrial enterprises”. The Committee further included the following statement about section 7871(e): The bill clarifies that, with respect to bonds issued by Indian tribal governments, the term ‘essential governmental function' does not include any governmental function that is not customarily performed (and financed with governmental tax-exempt bonds) by State and local governments with general taxing powers. For example, issuance of bonds to finance commercial or industrial facilities (e.g., private rental housing, cement factories, or mirror factories) which bonds technically may not be private activity bonds is not included within the scope of the essential governmental function exception. Additionally, the committee wishes to stress that only those activities that are customarily financed with governmental bonds (e.g., schools, roads, governmental buildings, etc.) are intended to be within the scope of this exception, notwithstanding that isolated instances of a State or local government issuing bonds for another activity may occur. H.R. Rep. No. 100-391, at 1139 (1987). The 1987 Conference Committee adding the limited manufacturing facility provision of section 7871(c)(3)(A), noted that: A facility which does not qualify as a manufacturing facility for purposes of this provision may nonetheless be financed with tax-exempt bonds issued by a tribal government provided that the facility satisfies the ‘essential governmental function' standard (i.e., the facility is comparable to facilities that are customarily acquired or constructed and operated by States and local governments). For example, a building used for offices for a tribal government itself would be comparable to State or local government office buildings, and therefore, could be financed with tax-exempt bonds. As another example, a lodge owned and operated by a tribal government may be eligible for tax-exempt financing if it is comparable to lodges customarily owned and operated by State park or recreation agencies. H.R. Rep. No. 100-495, at 1012 n.5
(1987)(Conf. Rep.). The IRS has become aware of an increasing number of instances in which taxpayers have raised questions about the application of section 7871(e). Accordingly, the Treasury Department and the IRS have determined to seek public comment in advance of issuing proposed regulations in this area. Explanation of Provisions The Treasury Department and the IRS anticipate that the proposed regulations will provide that for purposes of section 7871(c) and section 7871(e), an activity will be considered an essential governmental function that is customarily performed by State and local governments if:
(1)There are numerous State and local governments with general taxing powers that have been conducting the activity and financing it with tax-exempt governmental bonds,
(2)State and local governments with general taxing powers have been conducting the activity and financing it with tax-exempt governmental bonds for many years, and
(3)the activity is not a commercial or industrial activity. The proposed regulations will further provide that examples of activities customarily performed by State and local governments include, but are not limited to, public works projects such as roads, schools, and government buildings. Request for Comments Before the notice of proposed rulemaking is issued, consideration will be given to any written comments that are submitted timely (preferably a signed original and eight
(8)copies) to the IRS. All comments will be available for public inspection and copying. Drafting Information The principal authors of this advance notice of proposed rulemaking are Aviva M. Roth and Timothy L. Jones, Office of the Chief Counsel (Tax-exempt and Government Entities), however, other personnel from the IRS and Treasury Department participated in its development. Mark E. Matthews, Deputy Commissioner for Services and Enforcement. [FR Doc. E6-12884 Filed 8-8-06; 8:45 am] BILLING CODE 4830-01-P DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 537 RIN 0702-AA55 [Docket No. USA-2006-0023] Claims on Behalf of the United States AGENCY: Department of the Army, DOD. ACTION: Proposed rule; request for comments. SUMMARY: The Department of the Army proposes to amend its regulation to reflect a substantial revision of AR 27-20, an Army publication which governs the processing of claims worldwide. The purpose of this revision is to make AR 27-20 clearer and easier to use, after years of piecemeal amendments. This rewrite also ensures that AR 27-20 is in keeping with current statutes, legal opinions and Department of Justice guidance pertaining to claims processing. This updated rule will expedite payment of meritorious claims throughout the world. AR 27-20 includes rules for processing affirmative claims, i.e., recovery actions on behalf of the United States. DATES: Comments submitted on or before October 10, 2006 will be considered. ADDRESSES: You may submit comments, identified by “32 CFR Part 537, Docket No. USA-2006-0023 and or RIN 0702-AA55” in the subject line, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number
(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://www.regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: George Westerbeke
(301)677-7009, x220. SUPPLEMENTARY INFORMATION: A. Background This rule was previously published. The Administrative Procedure Act, as amended by the Freedom of Information Act requires that certain policies and procedures and other information concerning the Department of the Army be published in the **Federal Register** . The policies and procedures covered by this regulation fall into that category. Rules for processing affirmative claims are found mostly in Chapter 14 of AR 27-20; however, rules for processing maritime affirmative claims are contained in Chapter 8. For purposes of this **Federal Register** publication and its corresponding codification in the Code of Federal Regulations, all rules for affirmative claims processing have been incorporated into 32 CFR part 537. AR 27-20 and its companion DA Pam 27-162 will be available on the Web site of the U.S. Army Publications Directorate, *http://www.apd.army.mil* , within a few months of the date of this **Federal Register** publication of 32 CFR part 537. Users are encouraged to consult the online versions, whose structure and paragraph numbering are comparable. B. Regulatory Flexibility Act The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the proposed rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612. C. Unfunded Mandates Reform Act The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the proposed rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more. D. National Environmental Policy Act The Department of the Army has determined that the National Environmental Policy Act does not apply because the proposed rule does not have an adverse impact on the environment. E. Paperwork Reduction Act The Department of the Army has determined that the Paperwork Reduction Act does not apply because the proposed rule does not involve collection of information from the public. F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights) The Department of the Army has determined that Executive Order 12630 does not apply because the proposed rule does not impair private property rights. G. Executive Order 12866 (Regulatory Planning and Review) The Department of the Army has determined that according to the criteria defined in Executive Order 12866 this proposed rule is not a significant regulatory action. As such, the proposed rule is not subject to Office of Management and Budget review under section 6(a)(3) of the Executive Order. H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks) The Department of the Army has determined that according to the criteria defined in Executive Order 13045 this proposed rule does not apply. I. Executive Order 13132 (Federalism) The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this proposed rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Dale Woodling, Commander, United States Army Claims Service. List of Subjects in 32 CFR Part 537 Claims, Government employees, Health care, Military personnel. For the reasons stated in the preamble the Department of the Army proposes to revise 32 CFR part 537 to read as follows: PART 537—CLAIMS ON BEHALF OF THE UNITED STATES Sec. 537.1 Statutory authority for non-maritime claims. 537.2 Scope of non-maritime affirmative claims statutes. 537.3 Claims collectible. 537.4 Claims not collectible. 537.5 Applicable law. 537.6 Identification of recovery incidents. 537.7 Notice to USARCS. 537.8 Investigation. 537.9 Assertion. 537.10 Recovery procedures. 537.11 Litigation. 537.12 Settlement authority. 537.13 Enforcement of assertions. 537.14 Depositing of collections. 537.15 Statutory authority for maritime claims and claims involving civil works of a maritime nature. 537.16 Scope for maritime claims. 537.17 Scope for civil works claims of maritime nature. 537.18 Settlement authority for maritime claims. 537.19 Demands arising from maritime claims. 537.20 Certification to Congress. Authority: 31 U.S.C. 3711-3720E; 42 U.S.C. 2651-2653; 10 U.S.C. 1095; 10 U.S.C. 4803-4804; 33 U.S.C. 408. § 537.1 Statutory authority for non-maritime claims.
(a)*The Federal Claims Collection Act.* The Federal Claims Collection Act (FCCA), is set forth at 31 U.S.C. 3711-3720E, as amended by the Debt Collection Act of 1982, Public Law 97-365, 96 Stat. 1749 (October 1982), Public Law 101-552, 104 Stat. 2746 (November 1990).
(b)*Federal Medical Care Recovery Act.* The Federal Medical Care Recovery Act (FMCRA) is set forth at 42 U.S.C. 2651-53, as amended by the National Defense Authorization Act for Fiscal Year 1997, Public Law 104-202, section 1075, 110 Stat. 2422.
(c)*Title 10 United States Code Section 1095.* 10 U.S.C. 1095, Public Law 101-510, section 713, 107 Stat. 1547, 1689 (1993), as amended by Public Law 103-160, 104 Stat. 1485 (November 1990). Note to § 537.1: All of these statutes may be viewed on the USARCS Web site, *https://www.jagcnet.army.mil/85256F33005C2B92/(JAGCNETDocID)/HOME?OPENDOCUMENT. Select the link “Claims Resources.”* § 537.2 Scope of non-maritime affirmative claims statutes.
(a)*Recovery for government property loss or damage.* The FCCA, originally passed in 1966, gives federal agencies the authority to collect a claim of the United States government for money or property arising out of the activities of the agency in question. However, the broad authority is limited for purposes of this regulation to claims for loss of or damage to property, as the FMCRA takes precedence for medical care recoveries.
(b)*Recovery for medical expenses and lost military pay.*
(1)The FMCRA, passed in 1962, authorizes recovery from a third person of the expenses for medical care the United States furnishes to a person who is injured or suffers a disease when such care is authorized or required by law. Likewise the United States is authorized to recover the cost of pay for members of the uniformed services unable to perform duties. Recovery normally arises out of a third-party tort under local law as to which the United States has an independent cause of action.
(2)Under 10 U.S.C. 1095 the United States is also deemed a third-party beneficiary or subrogee under an alternative system of computations such as workers' compensation; hospital lien laws; contract rights under the terms of insurance policies including medical payment coverage; uninsured, underinsured and no-fault coverage; and no-fault laws.
(c)*Recovery of health insurance.* 10 U.S.C. 1095 permits recovery of health insurance for medical care furnished at military medical treatment facilities (MTFs), including supplemental policies. This third-party collection program has been delegated to the Surgeon General of the Army by the Judge Advocate General (TJAG).
(d)*Worldwide applicability.* The foregoing authorities are worldwide in application, except for intergovernmental claims waived by treaty, for example, North Atlantic Treaty Association Status of Forces Agreement (NATO SOFA), Article VIII, paragraph 1. § 537.3 Claims collectible.
(a)*Claims for medical expenses.* Claims for the value of medical care furnished to active or retired members of the uniformed services, family members of either category, employees of the Department of the Army
(DA)or Department of Defense (DOD), or other persons to whom care was furnished because authorized or required by law and resulting in injury, death or disease, including those:
(1)Arising out of a tort under local law,
(2)Arising out of an on-the-job injury compensable under workers' compensation law except for Federal Employees Compensation Act
(FECA)recoveries,
(3)Based on the United States being a third-party beneficiary of the insurance contract of the injured party to include medical payment coverage, lost wages, as well as uninsured, underinsured, and no-fault coverage.
(b)*Claims for lost military pay.* Claims for the value of lost pay of active members of the uniformed services arising out of a tort under local law resulting in injury, death or disease.
(c)*Claims for property loss.* Claims arising out of a tort under local law for the value of lost or missing DA or DOD property, including non-appropriated fund instrumentality
(NAFI)property, or for the cost of repairs of such property, including damage to assigned quarters, are not collectable under 10 U.S.C. 2775. (See § 537.4). § 537.4 Claims not collectible.
(a)Where the tortfeasor is a department, agency or instrumentality of the United States. (See § 536.27(g) of this chapter).
(b)Where the tortfeasor is a member of the uniformed services or an employee of the DA or DOD, acting within the scope of employment, who damages or loses property. See AR 735-5, chapter 13.
(c)Where the damage or loss of property falls under a contractor bill of lading and recovery is pursued by the contracting agency, e.g., Surface Deployment and Distribution Command (SDDC), formerly the Military Traffic Management Command (MTMC), for lost or destroyed shipments.
(d)Where damage to assigned quarters, or equipment or furnishings therein, is collectible from a member of the uniformed services under 10 U.S.C. 2775.
(e)Where the medical care is furnished by a Department of Veterans Affairs facility to other than active duty members of the uniformed services for service-connected disabilities. § 537.5 Applicable law.
(a)*Basis for recovery.*
(1)Most recovery assertions are based on the negligence or wrongful acts or omissions of the person or entity that caused the loss. These actions or omissions must constitute a tort as determined by the law of place of occurrence, except in no-fault jurisdictions where the no-fault law permits recovery. Where the tort is not complete within the jurisdiction where it originally occurred, the law of the original jurisdiction is nevertheless applicable. For example, if a plane crashes in Virginia due to the negligence of a Federal Aviation Administration controller in Maryland, Maryland law determines the extent and nature of the tort. However, as to what law of damages is applicable, Maryland or Virginia depecage (choice of law) theory may apply. For example, if the flight originated in Indiana and the destination was Virginia, the conflict law of both Maryland and Virginia must be applied. See DA Pam 27-162, paragraph 2-35.
(2)Recovery assertions based on the United States being a third-party beneficiary or subrogee are not based on tort, but on the right to recover under local law, For example, the right of a third party to recover workers' compensation benefits is based on local law. However, the right of a third-party beneficiary to recover under an insurance contract may turn on whether an exclusionary clause is valid under the law of the jurisdiction where the contract was made.
(b)*Statute of limitations.*
(1)Federal law determines when a recovery assertion must be made. Assertions for the value of medical expenses, lost military pay or property loss or damage based on a tort must be made not later than three years from the date of accrual, 28 U.S.C. 2415(b). The date of accrual is usually the date of the occurrence giving rise to the recovery, for example, the date of injury or death for medical expenses and lost military pay or the date of damage or loss for a government property assertion. There are exceptions. For example, the loss of property in rightful possession of another accrues when that person claims ownership or converts the property to his own use.
(2)Recovery assertions based on an implied-in-law contract against a no-fault or personal-injury-protection insured must be brought no later than six years from the date of accrual, 28 U.S.C. 2415(a), *United States* v. *Limbs* , 524 F.2d 799 (9th Cir. 1975). The date of accrual is usually the date of occurrence.
(3)Actions asserted on a third-party beneficiary basis against an insurer or workers compensation fund must comply with the state notice requirement, which varies from one to six years, or the insurer's notice requirement set forth in the policy. *United States* v. *Hartford Acci. & Indem. Co.* , 460 F.2d 17 (9th Cir. 1972), cert. den. 409 U.S. 979 (1972).
(4)The statute of limitations is tolled or does not start running until the responsible federal official is notified of the existence of a recoverable loss, *Jankowitz* v. *United States* , 533 F.2d 538 (D.C. Cir. 1976), *United States* v. *Golden Acres, Inc.* , 684 F. Supp. 96 (D. Del. 1986). The responsible federal official can be the area claims office (ACO), the claims processing office (CPO), a command claims service or USARCS, depending on who receives the notice under this regulation. However, because of the responsibility to notify the MTF or TRICARE fiscal intermediary, and by regulation the notice must be expeditious, delayed notification could start the statute of limitations running. Additionally, when an ACO or CPO discovers the existence of an assertion, the statute of limitations will begin to run regardless of when the MTF or the TRICARE intermediary sends a notice. The date of receipt of a notice must be entered into the affirmative claims management program/database
(ACMP)and the notice must be date-stamped and initialed. § 537.6 Identification of recovery incidents.
(a)*Responsibilities.* Each command claims service and ACO will develop means to identify recovery incidents arising in its geographic area of responsibility. See §§ 536.10 and 536.11 of this chapter and paragraph 2-2 of DA Pam 27-162. This requires publication of a claims directive to all DOD and Army installations, units and activities in its area, emphasizing the importance of reporting serious incidents to recovery judge advocates
(RJAs)or civilian recovery attorneys.
(b)*Screening procedures.*
(1)Establish a point of contact in each unit and activity in the area of responsibility and screen their sources periodically, including motor pools, family housing, departments of public works, safety offices, provost marshals, and criminal investigation divisions. Review civilian news and police reports, military police blotters and reports, court proceedings, line of duty and AR 15-6 investigations and similar sources to identify potential medical care recovery claims.
(2)The MTF commander will ensure that the claims office is notified of instances in which the MTF provides, or is billed by a civilian facility for, inpatient or outpatient care resulting from injuries (such as broken bones or burns arising from automobile accidents, gas explosions, falls, civilian malpractice, and similar incidents) that do not involve collections from a health benefits or Medicare supplemental insurer. Claims personnel will coordinate with MTF personnel to ensure that inpatient and outpatient records and emergency room and clinic logs are properly screened to identify potential cases. The RJA or recovery attorney will screen the MTF comptroller records database and division records as well as ambulance logs to identify potential medical care recovery cases. The RJA or recovery attorney will also coordinate with Navy and Air Force claims offices and MTFs to ensure they identify potential claims involving treatment provided to Army personnel.
(3)The MTF commander will also ensure that the MTF does not release billings or medical records, or respond to requests for assistance with workers' compensation forms, without coordinating with the RJA or recovery attorney.
(4)The TRICARE fiscal intermediary is required to identify and mail certain information promptly to the claims office designated as the state point of contact. The fiscal intermediary must mail the TRICARE Explanation of Benefits, showing the amount TRICARE paid on the claim along with what diagnostic codes were used, and DD Form 2527, Statement of Personal Injury. A sample Statement of Personal Injury (DD Form 2527) is posted on the USARCS Web site; for the address, see the Note to § 537.1.
(5)The RJA or recovery attorney will also coordinate with Navy and Air Force claims offices and MTFs to ensure they identify potential claims involving treatment provided to Army personnel, AR 40-400, paragraph 13-5.
(c)*When to open a recovery file.*
(1)Upon identification of a potential recovery incident or upon receipt of a billing from a TRICARE Fiscal Intermediary or an MTF, a file will be opened and entered into the ACMP by the first ACO or CPO that learns of the event even if liability has not been established. Incidents under Navy, Air Force or Coast Guard jurisdiction will not be so entered but referred to the responsible service. Complete listings of claims/recovery offices worldwide are posted on the USARCS Web site; for the address, see the Note to § 537.1. At the site, select the link “Claims Resources.” At the next screen, click on “Tables Listing Claims Offices Worldwide.”).
(2)Army responsibility for affirmative claims is as follows:
(i)Damage to or loss of real or personal property of the DOD or the Army even if located at installations or activities under the jurisdiction of other uniformed services.
(ii)Personal injury to persons whose primary care for an accident-related injury is furnished at an Army MTF, regardless of the uniformed services affiliation of the person or sponsor, but not to those treated at another uniformed service's MTF even if the person is an active duty Army member.
(iii)Personal injury to an active duty or retired Army member or a family member of either category treated under TRICARE.
(iv)A lead agency will be established whenever:
(A)Property damaged or lost belonging to more than one service is involved in the same incident.
(B)Personal injury victims are treated at MTFs of more than one service.
(C)Personal injury victims with affiliations to more than one service are treated under TRICARE.
(D)Lead agencies may be established locally for claims valued at $50,000 or less. For claims greater than $50,000 USARCS will be notified and will deal with the other service at headquarters level. (See § 536.32 of this chapter.) § 537.7 Notice to USARCS. Upon receipt of notice of a claim involving either actual or potential amounts within USARCS' monetary jurisdiction, that is, where final action will be taken by USARCS or the Department of Justice, immediate notice will be given to USARCS. Forwarding a copy of the serious incident report, discussed in § 536.22(c) of this chapter, to USARCS, will meet this requirement. Thereafter, mirror file copies will be furnished to USARCS in accordance with AR 27-20, paragraph 2-12. This allows for continuous monitoring and discussion between the ACO and the USARCS area action officer (AAO). § 537.8 Investigation.
(a)*Claims over $50,000.* Hands-on investigation will be conducted by claims personnel as set forth in DA Pam 27-162, Chapter 2, Section IV, regardless of the amount of insurance coverage immediately available, with a view to discovery of other sources of recovery, for example, vehicle defects or improper maintenance, road design and absence of warning signs, products liability, medical malpractice in civilian treatment facilities. Where the employment of experts is indicated follow the procedures in § 536.39 of this chapter. No attorney representation agreement will be sent to the injured party's representative without USARCS approval.
(b)*Claims of $50,000 or less* . The amount of hands-on investigative effort is directly related to the amount of insurance coverage that the tortfeasor possesses and the amount of coverage that the injured party has. Where the injured party is represented, request information from his lawyer or insurer, in addition to the documents obtained in initial screening. The ACO should be able to form an independent opinion as to liability based on the investigation of the government and not solely on that of the injured party's attorney.
(c)*Claims of $5,000 or less* . Small claims procedures are applicable to the extent feasible. See § 536.33 of this chapter. Investigation, assertion and settlement by e-mail, phone or fax is encouraged. The investigation and action should be recorded. DA Form 1668, Small Claims Certificate, may be used as a model, modifying it as needed. A sample completed Small Claims Certificate is posted at USARCS Web site for the address, see the Note to § 537.1.
(d)*Relations with injured party.*
(1)When the injured party becomes known and an interview can be conducted locally, all relevant facts will be obtained unless the injured party is represented by a lawyer. In this latter event, basic information as set forth on DD Form 2527, Statement of Personal Injury (a completed sample is posted at the USARCS Web site; for the address, see the Note to § 537.1) can be obtained without violating lawyer-client privilege. If the injured party is not immediately available, the information can be obtained by requesting assistance from another ACO, a unit claims officer, a reservist or Army National Guard
(ANG)member, another federal agency, or another means.
(2)When the injured party is represented, a Health Insurance Portability and Accountability Act (HIPAA) medical release form (sample posted at the USARCS Web site; see § 537 (b)(4)) permitting USARCS to send out the medical records of the injured party for claims purposes, will be sent to the injured party's lawyer for completion and return.
(3)When the injured party or his or her lawyer refuses to furnish necessary information, it can usually be obtained by other means, for example, from an accident report or investigation. A notice will be furnished to all parties that the government has been assigned the right to bring a claim for the value of medical care furnished, lost pay or value of property lost or destroyed, and that the United States has the right to bring an independent cause of action. In absence of timely and appropriate response, discuss with the AAO to determine what action should be taken. § 537.9 Assertion.
(a)*Asserting demands* . If a prima facie claim exists under state law, a written demand will be made against all the tortfeasors and insurers. This includes demands against the injured party's own insurance coverage, no-fault coverage and workers' compensation carrier. The earlier the demand the better. A demand will not be delayed until the exact amount of medical expenses or lost pay is determined. The demand letter will state that the amount will be furnished when known. A copy of the demand will be furnished to the injured party or, if represented, his lawyer. Two sample demand (or assertion) letters are posted at the USARCS Web site (for the address, see the Note to § 537.1). Demand letters are for initial contact with insurance companies. One of the posted samples is for a medical assertion for a soldier (that includes wages). The other is for a medical assertion for a civilian (that does not include wages). Remember the following points when asserting demands:
(1)The fact that the medical expenses have been assigned to the United States and as a result the United States has a cause of action in federal or state court. All parties will be notified that if the insurer pays the amount to another party, the United States has the right to collect from the insurer.
(2)Demands for third-party torts are under the authority of the FMCRA; demands where there is no tortfeasor are under the authority of 10 U.S.C. 1095; demands for property loss or damage are under the authority of the FCCA.
(b)*Documentation of damages.* MTFs are required by AR 40-400, Patient Administration, chapter 13 to furnish complete billing documents to RJAs.
(1)TRICARE bills are obtained from the fiscal intermediary servicing the ACO. The amounts are based on the amount TRICARE pays and not the amount the patient is billed by the provider. TRICARE bills must be screened to insure that the care is incident or accident related as the demand is limited to that amount.
(2)MTF bills, both outpatient and inpatient, are obtained from either the MTF co-located with the ACO or if another MTF is involved, from that MTF, regardless of uniformed service affiliation. Outpatient bills include not only the cost of the visit but also the cost of each procedure, such as x-rays or laboratory tests. Inpatient billing is not based on services rendered but on a diagnostic group. Charges for professional inpatient services will be itemized the same as outpatient care. Charges for prescription services will be included. Screening to ensure that only incident or accident related care is claimed is essential. The cost of ambulance services, ground or air, will be calculated with MTF assistance and demanded. Burial expenses are obtained from the local mortuary affairs office on DD Form 2063, but will be demanded only when the insurance coverage includes such expenses.
(3)Lost pay will be obtained from the leave or earnings statement or the active duty pay chart for the year or years in question and will include special and incentive pay unless the injured service member did not receive either due to the length of time off assigned duty. The time off duty will be based on the time service members are unable to perform duties for which they have been trained (their military occupational specialty). It will not be limited to inpatient time. Time in a medical holding or convalescent leave will be lost time.
(4)The amount recoverable for personal property losses is limited to its value at the time of loss. Depreciation charts may be used to determine the reduction from the value at purchase. Replacement value will not be used. Both real and personal property damage will be on the value of labor and cost of material including the use of heavy equipment. When the cost of repairs is greater than $50,000, 10% overhead will be added. This can be substantiated using case law and by seeking documentation from the repair facility.
(c)*Double collections prohibited.* When the cost of medical care is recoverable by the MTF from medical care insurance, both primary and supplemental under 10 U.S.C. 1095, an assertion under FMCRA will be made, including a demand for lost pay not recoverable out of health insurance. While the United States is entitled to recover costs of medical care from both the injured parties' medical insurance and from the third-party tortfeasor, USARCS policy is not to collect twice. RJAs will carefully coordinate with the MTF to insure that double collection does not occur. Demand for lost pay should be enforced as it is not recoverable from medical care insurance. § 537.10 Recovery procedures.
(a)Recovery personnel have three means of enforcing recovery following initial assertion.
(1)Referral to litigation pursuant to § 537.11;
(2)The head of an ACO should request Chief, Litigation Division, OTJAG to have the RJA appointed as a Special Assistant United States Attorney when the following criteria are met:
(i)Filing suit is a frequent necessity, e.g., insurance companies are refusing payment on small claims either by raising issues well settled or by regularly reducing the amount of medical care as not fair and reasonable;
(ii)The local U.S. Attorney's office is in favor of such appointment due to his previous experience with the RJA and the additional burden of affirmative claims litigation on his staff;
(iii)The RJA has at least two years experience and is likely to continue in the RJA assignment for at least one year; and
(iv)Commander USARCS concurs in the appointment and is willing to furnish support.
(3)The RJA may request that the attorney representing the injured party include the amount asserted by the United States as part of special damages. The injured party's attorney may not represent the United States nor may the United States pay attorney fees as this would be in violation of 5 U.S.C. 3106. Where indicated, this arrangement should be reduced to writing. Be mindful that the attorney's duty to the injured party is in conflict with the interests of the United States where the amount potentially recoverable is small in comparison to the amount asserted by the United States. In this event the RJA should pursue recovery independently.
(b)Careful monitoring of all assertions is required to insure timely follow-up resulting in collection or suit where indicated. Installation of a suspense system to avoid the expiration of the statute of limitations is essential. Recommendations to file suit should be forwarded by the RJA well prior to the expiration of the statute of limitations. Within six months prior to the running of the statute of limitations, USARCS must be notified of the status of the claim or potential claim. Follow-up demands should precede filing suit to create a written record of efforts to avoid suit. Personal contact with all parties is encouraged. When represented, contact the representative.
(c)Sources other than vehicle liability coverage should be exhausted in cases where the amount of the potential recovery exceeds $50,000 and the coverage is small. Coordination with USARCS is required. USARCS can obtain expert witnesses for medical malpractice cases, products liability cases, or other cases in which another tortfeasor may be involved. § 537.11 Litigation.
(a)If a tortfeasor or insurer refuses to settle, or if an injured party's attorney improperly withholds funds, the RJA or recovery attorney must consider litigation to protect the interests of the United States. Litigation is particularly appropriate if a particular insurer consistently refuses to settle claims, or if the government's interests are not adequately represented on a claim over $25,000.
(b)RJAs or recovery attorneys must maintain close contact with local U.S. Attorney's Offices to ensure these offices are willing to initiate litigation on cases.
(c)In order to directly initiate or intervene in litigation, an RJA or recovery attorney must prepare a litigation report and formally refer the case through the Affirmative Claims Branch, USARCS, and the Litigation Division, OTJAG (as required by AR 27-40, chapter 5), to the U.S. Attorney. While the RJA or recovery attorney, in conjunction with the Litigation Division Torts Branch, should attempt to have the U.S. Attorney's Office initiate litigation at least six months before the expiration of the statute of limitations (SOL), the RJA or recovery attorney may contact USARCS telephonically if SOL problems necessitate quick action on a case. The RJA or recovery attorney should also contact USARCS if a U.S. Attorney is reluctant to pursue an important case. An injured party's attorney may represent the government's interest in litigation without any special coordination. § 537.12 Settlement authority.
(a)*Assertions for $50,000 or less.*
(1)*Approval authority.* An RJA or civilian recovery attorney, if delegated authority by his or her ACO or CPO, may compromise a collection on a claim asserted for $50,000 or less, unless recovery action is reserved by a command claims service.
(2)*Final action authority.*
(i)An ACO, or CPO if delegated authority by its ACO, may terminate collection action on a claim asserted for $50,000 or less, unless action is reserved by a command claims service.
(ii)The foregoing authorities may waive a claim asserted for $50,000 or less where undue hardship exists.
(iii)Determination of amount. The amount of $50,000 is determined totaling the amounts for medical care, lost military wages, lost earnings or government property damage arising form the same claims incident.
(b)*Assertions over $50,000.* USARCS retains final authority over assertions over $50,000. By use of the mirror file system and through a dialogue between USARCS and the field during the course of the assertion, USARCS will decide whether it or the RJA or civilian recovery attorney will conduct the negotiations. To help it decide, the RJA or civilian recovery attorney will forward a memorandum for either medical or property recovery approval, in the format of the samples posted at the USARCS Web site (for the address see the Note to § 537.1). USARCS may waive the requirement to submit a memorandum.
(c)*Appeals.*
(1)*Assertion for $50,000 or less.* Where the assertion is made by an RJA or civilian recovery attorney, the appeal will be determined by the SJA, the medical center judge advocate, or head of the ACO or CPO. Otherwise, the appeal will be determined by the Commander USARCS.
(2)*Assertion over $50,000.* Where the assertion is made by a Claims Judge Advocate or claims attorney, the appeal will be determined by the Commander USARCS.
(d)*Compromise or waiver.* Any assertion may be compromised, waived or terminated in whole or in part, if for example:
(1)The cost to collect does not justify the cost of enforcement.
(2)There is evidence of fraud or misrepresentation.
(3)The U.S. cannot locate the tortfeasor.
(4)Legal merit has not been substantiated.
(5)The statute of limitations has run and the debtor refuses to pay.
(6)Collection of all or part of the amount of funds demanded would create inequity. The following criteria apply:
(i)Detailed information on what funds are available for recovery.
(ii)Reasonable value of the injured party's claim for permanent injury, pain and suffering, decreased earning power, and any other special damages.
(iii)Military, Department of Veterans Affairs, Social Security disability, and any other government benefits accruing to the injured party.
(iv)Probability and amount of future medical expenses of the government and the injured party.
(v)Present and prospective assets, income, and obligations of the injured party and those dependent on him or her.
(vi)The financial condition of the debtor.
(vii)The degree and nature of contributory negligence on the part of the injured party in causing his injury or death.
(viii)The percentage of attorney's fees that his attorney is willing to reduce.
(ix)The willingness of the tortfeasor to enter into an installment agreement.
(e)*Releases.* The RJA or recovery attorney may execute a release for affirmative claims in the pre-litigation stage acknowledging that the government has received payment in full of the amount asserted or the compromised amount agreed upon, or the final installment payment. The format of the release should be similar to the sample posted at the USARCS Web site (for the address see the Note to § 537.1). However, the RJA or recovery attorney may not execute either an indemnity agreement or a release which prejudices the government's right to recover on other claims arising out of the same incident without the approval of USARCS. In addition, the RJA or recovery attorney may not execute a release that purports to release any claim that the injured party may have other than for medical care furnished or to be furnished by the United States. The RJA or recovery attorney will not execute a release if the government's claim is waived or terminated. § 537.13 Enforcement of assertions. Meritorious assertions that do not result in collections should be enforced as follows:
(a)Where the debtor is a business or corporation otherwise financially capable the RJA or equivalent should forward a recommendation to bring suit or intervene in an existing suit regardless of the amount of the debt. As authorized by 28 U.S.C. 3011, the demand amount in the complaint shall include an additional 10% of the original claimed amount, to cover the administrative costs of processing and handling the enforcement of the debt.
(b)Where the debtor is an individual rather than a business, an asset determination should be made both as to existing assets or prospective earnings. If the injured party's attorney has made an assets search which is reliable, review the search before requesting a new one. Such a search can be paid for out of existing collections.
(1)If the debtor has assets refer to USARCS for transfer to a debt collection contractor or an agency debt collection center as determined by USARCS.
(2)If the debtor has no assets, but prospective future earnings, RJA may seek a confession of judgment and maintain contact with the debtor for future collection where authorized by state law and filing of suit is not required. If the amount is less then $5,000, enter into an installment payment arrangement. § 537.14 Depositing of collections
(a)*Depositing property damage recovery.*
(1)*Machines, supplies, watercraft, aircraft, vehicles other than General Services Administration-owned.* Recovered money must be deposited into the General Treasury Account 21R3019. This account remains the same every fiscal year. It was established in accordance with 31 U.S.C. 3302(b) and by Comptroller General decision B-205508, 64 Comp. Gen. 431.
(2)*Real property.* Collection for damage to real property must be deposited into an escrow account on behalf of the installation or activity at which the loss occurred. This escrow account must be set up at the request of the command claims service, ACO or CPO with the local finance office or resource management office with responsibility for department of engineering and housing or department of public works funds. The escrow account must be set up and managed by the department of engineering and housing or the department of public works to
(1)temporarily hold deposits, and
(2)to “roll over” deposits each fiscal year in order to avoid reversion of these deposits to the General Treasury at the end of each fiscal year. If the escrow account is not set up and managed in this manner it is operating in violation of 10 U.S.C. 2782.
(3)*NAFI property.* The Risk Management Program
(RIMP)often reimburses local NAFIs for property loss or damage to facilitate return of equipment to daily use. When money is recovered from tortfeasors and their insurance carriers contact the NAFI involved for instructions on the current procedures as to where the recovered money is to be forwarded and deposited.
(4)*Army Stock Fund or Defense Business Operations Fund property.* Monies recovered for damage to property belonging to one of these funds will be returned to that fund unless the fund has charged the cost of repair or replacement to an appropriated fund account. The Defense Business Operations Fund replaced the Army Industrial Fund.
(5)*Government housing in cases of abuse or neglect by soldiers or families.* Monies recovered for damage to government housing caused by a soldier's abuse or negligence (or by a soldier's family member or guest of the soldier) will be deposited into that installation's family housing operations and maintenance (O&M) account.
(6)*Government housing in cases of negligence by nonresidents.* Government housing caused by the negligence of a nonresident must be asserted against the nonresident directly or through his/her insurer. Settlement checks must be deposited into the real property escrow account in accordance with 10 U.S.C. 2782.
(b)*Depositing recovery of pay provided to a soldier while incapacitated.* Monies recovered for the costs of pay provided to a soldier injured by the tortious acts of another shall be credited to the local O&M account that supports the command, activity, or other unit to which the soldier was assigned at the time of the injury.
(c)*Depositing medical care recovery.*
(1)*To a medical treatment facility account.* Continental U.S. (CONUS) and outside the continental U.S. (OCONUS) claims offices, and command claims services, will deposit money recovered from an automobile insurer for medical care provided, paid for by, in or through an MTF to the O&M account of the Army, Navy, or Air Force MTF that provided the care. CONUS and OCONUS claims offices, and command claims services, will deposit money recovered from any payor, under any provision of law, for medical care provided or paid for by, in or through an MTF into the MTF's O&M account.
(2)*Deposits when TRICARE paid directly for treatment.* The account in which to deposit affirmative claims recoveries when TRICARE has paid directly for the medical treatment is a Defense Health Program
(DHP)account for reallocation to the services. This replaces the general treasury miscellaneous receipts account published in AR 37-100 (obsolete). Deposit to TRICARE using this new account for recoveries pending deposit, and recoveries for any claim settled on or after October 1, 2002. Retroactive claims depositing is not necessary.
(3)*Apportionment of medical care recovery between accounts.* Claims offices will often have to apportion recovered money among different accounts.
(i)*Apportioning money between accounts.* If care was provided by an MTF and paid for by or through the MTF and/or directly by TRICARE and/or a unit account for military lost wages if any, and the amount recovered is less than the amount asserted, deposit a prorated amount of money into each TRICARE account.
(ii)*Apportioning money between two or more medical treatment facility accounts.* If care was provided by two or more MTFs and the claims office recovers less than the amount asserted, the claims office should give each MTF a pro rata share of the money recovered. For example, if MTF one provided $2,000 worth of care and MTF two provided $1,000 worth of care, the claims office will deposit $800 of a $1,200 recovery to MTF one's account and the remaining $400 to MTF two's account. Similarly, if the claims office recovers an amount less than that asserted for medical care expenses and costs of pay provided, the claims office should give a pro rata share of the money recovered to both the MTF and the appropriation account that supports the injured soldier's unit.
(d)*Fiscal Integrity.* Field claims offices must reconcile the property damage and medical care recovery accounts with their servicing defense accounting office. Field claims offices must ensure that their deposits have been credited to the proper accounts and that these accounts have not been improperly charged. All accounts must be reconciled at the end of the fiscal year. § 537.15 Statutory authority for maritime claims and claims involving civil works of a maritime nature.
(a)The Army Maritime Claims Settlement Act. The sections pertinent to maritime affirmative claims are set out at 10 U.S.C. 4803-4804.
(b)The Rivers and Harbors Act. The section of the Act pertinent to affirmative claims involving civil works of a maritime nature is set out at 33 U.S.C. 408. § 537.16 Scope for maritime claims. The Army Maritime Claims Settlement Act (10 U.S.C. 4803-4804) applies worldwide and includes claims that arise on high seas or within the territorial waters of a foreign country.
(a)10 U.S.C. 4803 provides for agency settlement or compromise of claims for damage to:
(1)DA-accountable properties of a kind that are within the Federal maritime jurisdiction.
(2)Property under the DA's jurisdiction or DA property damaged by a vessel or floating object.
(b)10 U.S.C. 4804 provides for the settlement or compromise of claims in any amount for salvage services (including contract salvage and towage) performed by the DA. Claims for salvage services are based upon labor cost, per diem rates for the use of salvage vessels and other equipment, and repair or replacement costs for materials and equipment damaged or lost during the salvage operation. The sum claimed is usually intended to compensate the United States for operational costs only, reserving, however, the government's right to assert a claim on a salvage bonus basis in accordance with commercial practice.
(c)The United States has three years from the date a maritime claim accrues under this section to file suit against the responsible party or parties. § 537.17 Scope for civil works claims of maritime nature. Under the River and Harbors Act (33 U.S.C. 408), the United States has the right to recover fines, penalties, forfeitures and other special remedies in addition to compensation for damage to civil works structures such as a lock or dam. However, claims arising under 10 U.S.C. 4804 are limited to recovery of actual damage to Corps of Engineers
(COE)civil works structures. § 537.18 Settlement authority for maritime claims.
(a)The Secretary of the Army, the Army General Counsel as designee of the Secretary, or other designee of the Secretary may compromise an affirmative claim brought by the United States in any amount. A claim settled or compromised in a net amount exceeding $500,000 will be investigated and processed and, if approved by the Secretary of the Army or his or her designee, certified to Congress for final approval.
(b)TJAG, TAJAG, the Commander USARCS, the Chief Counsel COE, or Division or District Counsel Offices may settle or compromise and receive payment on a claim by the United States under this part if the amount to be received does not exceed $100,000. These authorities may also terminate collection of claims for the convenience of the government in accordance with the standards specified by the DOJ.
(c)An SJA or a chief of a command claims service and heads of ACOs may receive payment for the full amount of a claim not exceeding $100,000, or compromise any claim in which the amount to be recovered does not exceed $50,000 and the amount claimed does not exceed $100,000.
(d)Any money collected under this authority shall be deposited into the U.S. General Treasury, except that money collected on civil works claims in favor of the United States pursuant to 33 U.S.C. 408 “shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred * * *” (33 U.S.C. 412; 33 U.S.C. 571). § 537.19 Demands arising from maritime claims.
(a)It is essential that Army claims personnel demand payment, or notify the party involved of the Army's intention to make such demands, as soon as possible following receipt of information of damage to Army property where the party's legal liability to respond exists or might exist. Except as provided below pertaining to admiralty claims and claims for damage to civil works in favor of the United States pursuant to 33 U.S.C. 408, copies of the initial demand or written notice of intention to issue a demand letter, as well as copies of subsequent correspondence, will be provided promptly to the Commander USARCS, who will monitor the progress of such claims.
(b)Subject to limitation of settlement authority, demands for admiralty claims and civil works damages in favor of the United States pursuant to 33 U.S.C. 408 may be asserted, regardless of amount, by the Chief Counsel COE, or his designees in COE Division or District Counsel offices.
(c)Where, in response to any demand, a respondent denies liability, fails to respond within a reasonable period, or offers a compromise settlement, the file will be promptly forwarded to the Commander USARCS, except in those cases in which a proposed compromise settlement is deemed acceptable and the claim is otherwise within the authority delegated in § 537.18 of this part. Files for admiralty claims and civil works claims in favor of the United States pursuant to 33 U.S.C. 408 will be promptly forwarded to the United States Department of Justice. § 537.20 Certification to Congress. Admiralty claims, including claims for damage to civil works in favor of the United States pursuant to 33 U.S.C. 408, proposed for settlement or compromise in a net amount exceeding $100,000 will be submitted through the Commander USARCS to the Secretary of the Army for approval and if in excess of $500,000 for certification to Congress for final approval. [FR Doc. E6-12974 Filed 8-8-06; 8:45 am] BILLING CODE 3710-08-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0528; FRL-8206-8] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Amendments to Nonattainment New Source Review
(NSR)Air Quality Permit Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the West Virginia State Implementation Plan (SIP). The revision consists of amendments to West Virginia's existing Nonattainment New Source Review
(NSR)preconstruction air quality permit program. This action is being taken under the Clean Air Act (CAA or the Act). In a separate action, EPA will address changes made by West Virginia to its prevention of significant deterioration
(PSD)air quality permit program, also submitted on December 1, 2005. DATES: Written comments must be received on or before September 8, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0528 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail:* *campbell.dave@epa.gov.* C. *Mail:* EPA-R03-OAR-2006-0528, David Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2006-0528. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov index.* Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street, SE., Charleston, WV 25304. FOR FURTHER INFORMATION CONTACT: Rosemarie Nino,
(215)814-3377, or by e-mail at *nino.rose@epa.gov.* SUPPLEMENTARY INFORMATION: The supplementary information is arranged as follows: I. Background II. Program Review A. What is being address in this document? B. What are the program changes that EPA is approving? III. Proposed Action IV. Statutory and Executive Order Reviews. I. Background On December 31, 2002, the U.S. Environmental Protection Agency
(EPA)published revisions to the Federal prevention of significant deterioration
(PSD)and nonattainment new source review
(NSR)regulations (67 FR 80186). These revisions are commonly referred to as EPA's “NSR Reform” regulations and became effective on March 3, 2003. These regulatory revisions included provisions for baseline emissions determinations, actual-to-future actual methodology, Plantwide Applicability Limits (PALs), Clean Units, and Pollution Control Projects (PCPs). The December 2002 rulemaking action required State and local permitting authorities to include the NSR Reform measures as minimum program elements in their State implementation plans
(SIP)and to submit these revisions to EPA by January 2, 2006. The United States Court of Appeals for the District of Columbia Circuit ruled in *New York* v. *EPA,* 45 F.3d 3 (D.C. Cir. June 24, 2005) that EPA lacked the authority to promulgate the Clean Unit provisions, and the Court requested that EPA vacate that portion of the 2002 Federal regulation, codified at 40 CFR 52.21(x), as contrary to the statute. Also, the Court determined EPA lacked the authority to create PCP exceptions from NSR and vacated those parts of the 1991 and 2002 rules, codified at 40 CFR 52.21(b)(32) and 52.21(z), as contrary to the statute. On December 1, 2005, EPA Region III received a revision to the West Virginia State Implementation Plan
(SIP)from the West Virginia Department of Environmental Protection (WVDEP). This SIP revision consists of Legislative Rule 45 CSR 19—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment adopted by the State of West Virginia on April 8, 2005 and effective June 1, 2005. The State adopted the regulation in order to meet the relevant plan requirements of 40 CFR 51.165. On December 22, 2005, WVDEP provided supplemental materials consisting of a letter and an attached one-page table requesting that EPA exclude from its December 1, 2005 request for SIP approval the provisions of 45 CSR 19, as set forth in the attached table, that pertain to “Clean Units” and “Pollution Control Project” in order to ensure that their federally-approved regulations are consistent with the United States Court of Appeals for the District of Columbia Circuit's June 24, 2005 ruling. The WVDEP is seeking approval of amendments in 45 CSR 19 in order to meet the minimum requirements of 40 CFR 51.165 and the Clean Air Act. It should be noted that West Virginia also submitted amendments to its prevention of significant deterioration
(PSD)regulations on December 1, 2005. The EPA will address those amendments in a separate rulemaking action. II. Program Review A. What is being addressed in this document? 1. As stated in the December 31, 2002 “NSR Reform” rulemaking, State and local permitting agencies were required to adopt and submit revisions to their part 51 permitting programs, implementing the minimum program elements of that rulemaking no later then January 2, 2006 (67 FR 80240). With this submittal, West Virginia requests approval of program revisions to satisfy this requirement. 2. On December 1, 2005, WVDEP submitted regulatory revisions to EPA for approval. The submitted West Virginia Rule was entitled, “45 CSR 19—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment” and was adopted April 8, 2005 and effective June 1, 2005. 3. By letter dated December 22, 2005, WVDEP requested that EPA exclude from its December 1, 2005 request for approval into the SIP those provisions of 45 CSR 19 that pertain to the Clean Unit and Pollution Control Project
(PCP)provisions of 40 CFR 51.165. The specific provisions to be excluded were set forth in a table attached to the letter. The WVDEP made this request in order for its SIP to be consistent with the United States Court of Appeals for the District of Columbia Circuit June 24, 2005 ruling which vacated those provisions of the Federal rules. West Virginia also asked that EPA not act upon the provisions of 45 CSR 19.17.4 pertaining to the recordkeeping and reporting requirements for sources that elect to use the actual-to-projected actual emission test and where there is a “reasonable possibility” that a project may result in a significant net emissions increase. The “reasonable possibility” clause of the corresponding provisions of the Federal rules (51.165(a)(6)) was remanded to EPA in the June 24, 2005 ruling mentioned above. West Virginia has instructed EPA to not consider this clause as part of this SIP revision request. In its December 22, 2005 letter, WVDEP stated its intent to make any revisions to 45 CSR 19 necessary to incorporate and implement Federal program revisions once EPA takes further action on the remand of 40 CFR 51.165(a)(6). B. What are the program changes that EPA is approving? In its December 2002 regulatory action, EPA dramatically changed many aspects of the regulations governing the PSD and nonattainment NSR programs (together, as “NSR”). These changes affected the NSR applicability requirements to allow sources more flexibility to pursue modifications of their facilities in order to respond to changes in the marketplace and to plan for plant improvements. The goals of the changes were to provide greater regulatory certainty, administrative flexibility, and permit streamlining, while ensuring the current level of environmental protection, or more, from the existing program. West Virginia has fully embraced EPA's NSR reform regulatory revisions and sought to develop a regulatory program that closely reflects the Federal NSR regulations and conforms to the minimum requirements of 40 CFR 51.165. As such, West Virginia has translated the Federal NSR requirements into the regulatory text of 45 CSR 19 in a manner that is consistent with State regulatory development procedures. Since West Virginia has sought to incorporate the majority of the Federal regulatory language into its regulations, the following is an examination of only those few areas in which the State altered the Federal regulatory text or approach. A more detailed comparison of 45 CSR 19 to the Federal requirements of 40 CFR 51.165 can be found in the technical support document
(TSD)prepared for this rulemaking. Notable Differences in 45 CSR 19—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution Which Cause or Contribute to Nonattainment: 1. In the provisions for setting the PAL level at 45 CSR 19-23.6, the reference to the “baseline actual emissions” erroneously cites to Section 2.52 of the rules for purposes of defining the term “baseline actual emissions.” The appropriate citation for this term is Section 2.9. This typographical error will not adversely affect implementation of the regulations since the text of 45 CSR 19-23.6 directly identifies “baseline actual emissions” and that term is only defined at Section 2.9 and the incorrect citation to Section 2.52 does not confuse or otherwise alter the meaning of 45 CSR 19-23.6. 2. In a change unrelated to the Federal NSR Reform efforts, West Virginia changed the definition for “Offset” at 45 CSR 19-2.41 to read “* * * provided that the amount of reduction in emissions at the existing source (or an emission unit with such sources), is greater on tons per year basis.” The previous definition defined offsets in terms of pounds per hours and/or tons per year basis. The regulation is now consistent with the existing Federal requirement because the determination of necessary offsets must be based on tons per year reductions. EPA approves this change. 3. In another change unrelated to the Federal NSR Reform efforts, West Virginia changed Table 19A to include “Subpart I” ozone nonattainment areas along with marginal and moderate nonattainment areas for purposes of defining significant net emissions increase levels for purposes of NSR applicability. This change is acceptable. III. Proposed Action Based on the above analysis, EPA has determined that the amendments to West Virginia's nonattainment new source review
(NSR)permit programs at 45 CSR 19, as submitted on December 1, 2005 and supplemented on December 22, 2005, meet the minimum requirements of 40 CFR 51.166 and the Clean Air Act. This amendment is approvable as a revision to the West Virginia SIP. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule, approving amendments to West Virginia's Nonattainment New Source Review
(NSR)Permit Program, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 24, 2006. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E6-12969 Filed 8-8-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2006-0527; FRL-8206-9] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; Amendments to Prevention of Significant Deterioration
(PSD)Air Quality Permit Program AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a revision to the West Virginia State Implementation Plan (SIP). The revision consists of amendments to West Virginia's existing prevention of significant deterioration
(PSD)preconstruction air quality permit program. This action is being taken under the Clean Air Act (CAA or the Act). In a separate action, EPA will address changes made by West Virginia to its nonattainment new source review
(NSR)permit program, also submitted on December 1, 2005. DATES: Written comments must be received on or before September 8, 2006. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2006-0527 by one of the following methods: A. *http://www.regulations.gov* . Follow the on-line instructions for submitting comments. B. *E-mail: campbell.dave@epa.gov* . C. *Mail:* EPA-R03-OAR-2006-0527, David Campbell, Chief, Permits and Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2006-0527. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the West Virginia Department of Environmental Protection, Division of Air Quality, 601 57th Street SE., Charleston, West Virginia 25304. FOR FURTHER INFORMATION CONTACT: Rosemarie Nino,
(215)814-3377, or by e-mail at *nino.rose@epa.gov* . SUPPLEMENTARY INFORMATION: The supplementary information is arranged as follows: I. Background II. Program Review A. What is being addressed in this document? B. What are the program changes that EPA is approving? III. Proposed Action IV. Statutory and Executive Order Reviews I. Background On December 31, 2002, the U.S. Environmental Protection Agency
(EPA)published revisions to the Federal prevention of significant deterioration
(PSD)and nonattainment new source review
(NSR)regulations (67 FR 80186). These revisions are commonly referred to as EPA's “NSR Reform” regulations and became effective on March 3, 2003. These regulatory revisions included provisions for baseline emissions determinations, actual-to-future actual methodology, Plantwide Applicability Limits (PALs), Clean Units, and Pollution Control Projects (PCPs). The December 2002 rulemaking action required State and local permitting authorities to include the NSR Reform measures as minimum program elements in their State implementation plans
(SIP)and to submit these revisions to EPA by January 2, 2006. The United States Court of Appeals for the District of Columbia Circuit ruled in *New York* v. *EPA* , 413 F.3d 3 (D.C. Cir. June 24, 2005) that EPA lacked the authority to promulgate the Clean Unit provisions, and the Court requested that EPA vacate that portion of the 2002 Federal regulation, codified at 40 CFR 52.21(x), as contrary to the statute. Also, the Court determined EPA lacked the authority to create PCP exceptions from NSR and vacated those parts of the 1991 and 2002 rules, codified at 40 CFR 52.21(b)(32) and 52.21(z), as contrary to the statute. On December 1, 2005, EPA Region III received a revision to the West Virginia State Implementation Plan
(SIP)from the West Virginia Department of Environmental Protection (WVDEP). This SIP revision consists of Legislative Rule 45 CSR 14—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration adopted by the State of West Virginia on April 8, 2005 and effective June 1, 2005. The State adopted the regulation in order to meet the relevant plan requirements of 40 CFR 51.166. On December 22, 2005, WVDEP provided supplemental materials consisting of a letter and an attached one-page table requesting that EPA exclude from its December 1, 2005 request for SIP approval the provisions of 45 CSR 14, as set forth in the attached table, that pertain to “Clean Units” and “Pollution Control Project” in order to ensure that their federally-approved regulations are consistent with the United States Court of Appeals for the District of Columbia Circuit's June 24, 2005 ruling. The WVDEP is seeking approval of amendments to 45 CSR 14 in order to meet the minimum requirements of 40 CFR 51.166 and the Clean Air Act. It should be noted that West Virginia also submitted amendments to its nonattainment new source review
(NSR)regulations on December 1, 2005. The EPA will address those amendments in a separate rulemaking action. II Program Review A. What Is Being Addressed in This Document? 1. As stated in the December 31, 2002 “NSR Reform” rulemaking, State and local permitting agencies were required to adopt and submit revisions to their part 51 permitting programs, implementing the minimum program elements of that rulemaking no later then January 2, 2006 (67 FR 80240). With this submittal, West Virginia requests approval of program revisions to satisfy this requirement. 2. On December 1, 2005, WVDEP submitted regulatory revisions to EPA for approval. The submitted West Virginia Rule was entitled, “45 CSR 14—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration (PSD)” and was adopted April 8, 2005 and effective June 1, 2005. 3. By letter dated December 22, 2005, WVDEP requested that EPA exclude from its December 1, 2005 request for approval into the SIP those provisions of 45 CSR 14 that pertain to the Clean Unit and Pollution Control Project
(PCP)provisions of 40 CFR 51.166. The specific provisions to be excluded were set forth in a table attached to the letter. The WVDEP made this request in order for its SIP to be consistent with the United States Court of Appeals for the District of Columbia Circuit June 24, 2005 ruling which vacated those provisions of the Federal rules. West Virginia also asked that EPA not act upon the provisions of 45 CSR 14.19.8 pertaining to the recordkeeping and reporting requirements for sources that elect to use the actual-to-projected actual emission test and where there is a “reasonable possibility” that a project may result in a significant net emissions increase. The “reasonable possibility” clause of the corresponding provisions of the Federal rules (51.166(r)(6)) were remanded to EPA in the June 24, 2005 ruling mentioned above. West Virginia has instructed EPA to not consider this clause as part of this SIP revision request. In its December 22, 2005 letter, WVDEP stated its intent to make any revisions to 45 CSR 14 necessary to incorporate and implement Federal program revisions once EPA takes further action on the remand of 40 CFR 51.166(r)(6). B. What Are the Program Changes That EPA Is Approving? In its December 2002 regulatory action, EPA dramatically changed many aspects of the regulations governing the PSD and nonattainment NSR programs (together, as “NSR”). These changes affected the NSR applicability requirements to allow sources more flexibility to pursue modifications of their facilities in order to respond to changes in the marketplace and to plan for plant improvements. The goals of the changes were to provide greater regulatory certainty, administrative flexibility, and permit streamlining, while ensuring the current level of environmental protection, or more, from the existing program. West Virginia has fully embraced EPA's NSR reform regulatory revisions and sought to develop a regulatory program that closely reflects the Federal NSR regulations and conforms to the minimum requirements of 40 CFR 51.166. As such, West Virginia has translated the Federal NSR requirements into the regulatory text of 45 CSR 14 in a manner that is consistent with State regulatory development procedures. Since West Virginia has sought to incorporate the majority of the Federal regulatory language into its regulations, the following is an examination of only those few areas in which the State altered the Federal regulatory text or approach. A more detailed comparison of 45 CSR 14 to the Federal requirements of 40 CFR 51.166 can be found in the technical support document
(TSD)prepared for this rulemaking. Notable Differences in 45 CSR 14—Permits for Construction and Major Modification of Major Stationary Sources of Air Pollution for the Prevention of Significant Deterioration
(PSD)1. West Virginia's definition for “Actual Emissions” at 45 CSR 14-2.1 does not identify all of the defined NSR pollutants. However, West Virginia did incorporate a definition for “Regulated NSR Pollutants,” which, when read together with the definition for “Actual Emissions”, makes the regulation consistent with 40 CFR 51.166(b)(21). Therefore, EPA finds the definition acceptable. 2. The provisions for the general requirements for establishing PALs at 45 CSR 14-25.4(a)(2) indicates that all PAL permits shall meet the general public review procedures established at 45 CSR 14-17. Section 25 also identifies public participation procedures expressly for PALs at 45 CSR 25.5. While the identification of two public participation procedures for PALs may be confusing, the two procedures are not in conflict and satisfaction of either of the procedures meets the minimum requirements of 40 CFR 51.166(w)(5). 3. In a change unrelated to the Federal NSR Reform efforts and to be consistent with 40 CFR 51.166(s)(2)(v), West Virginia added language to 45 CSR 14-14.d.3 that requires all modifications seeking to rely upon innovative technology as best available control technology to meet minimum public participation requirements. This change was necessary because public participation is a condition for using innovative technology, therefore, EPA finds the provision acceptable. III. Proposed Action Based on the above analysis, EPA has determined that the amendments to West Virginia's prevention of significant deterioration
(PSD)permit program at 45 CSR 14, as submitted on December 1, 2005 and supplemented on December 22, 2005, meet the minimum requirements of 40 CFR 51.166 and the Clean Air Act. This amendment is approvable as a revision to the West Virginia SIP. IV. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). This proposed rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule, approving amendment to West Virginia's Prevention of Significant Deterioration
(PSD)Construction Permit Program, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects in 40 CFR Part 52 Environmental protection, Air pollution control, Carbon monoxide, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds. Authority: 42 U.S.C. 7401 *et seq.* Dated: July 24, 2006. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E6-12970 Filed 8-8-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [EPA-HQ-OAR-2006-0085; FRL-8207-1] Revisions to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and National Emission Standards for Hazardous Air Pollutants for Source Categories AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing to revise the General Provisions for Standards of Performance for New Stationary Sources, for National Emission Standards for Hazardous Air Pollutants, and for National Emission Standards for Hazardous Air Pollutants for Source Categories to allow extensions to the deadline imposed for source owners and operators to conduct initial or other required performance tests in certain specified circumstances. The General Provisions do not currently provide for extensions of the deadlines for conducting performance tests. DATES: Comments must be received on or before November 7, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0085, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-docket@epa.gov.* • *Fax:*
(202)566-1741. • *Mail:* Revisions to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and National Emission Standards for Hazardous Air Pollutants for Source Categories, Docket ID No. EPA-HQ-OAR-2006-0085, Environmental Protection Agency, Mailcode 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. In addition, please mail a copy of your comments on the information collection provisions to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 20503. • *Hand Delivery:* EPA Docket Center, 1301 Constitution Avenue, NW., Room B102, Washington, DC 20460. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2006-0085. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the Revisions to Standards of Performance for New Stationary Sources, National Emission Standards for Hazardous Air Pollutants, and National Emission Standards for Hazardous Air Pollutants for Source Categories Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: For questions concerning today's proposed rule, please contact Ms. Lula Melton, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Assessment Division (C304-02), Research Triangle Park, North Carolina 27711; telephone number:
(919)541-2910; fax number:
(919)541-4511; e-mail address: *melton.lula@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? This action applies to any source whose owner or operator is required to conduct performance testing to demonstrate compliance with applicable standards under the General Provisions for Standards of Performance for New Stationary Sources, for National Emission Standards for Hazardous Air Pollutants, and for National Emission Standards for Hazardous Air Pollutants for Source Categories. B. What should I consider as I prepare my comments for EPA? Do not submit information containing Confidential Business Information
(CBI)to EPA through *www.regulations.gov* or e-mail. Send or deliver information identified as CBI only to the following address: Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2006-0085. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. C. Where can I get a copy of this document and other related information? In addition to being available in the docket, an electronic copy of today's proposed rule is also available on the Worldwide Web
(WWW)through the Technology Transfer Network (TTN). Following the Administrator's signature, a copy of the proposed amendments will be placed on the TTN's policy and guidance page for newly proposed or promulgated rules at *http://www.epa.gov/ttn/oarpg.* The TTN provides information and technology exchange in various areas of air pollution control. D. How is this document organized? The information presented in this preamble is organized as follows: I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for EPA? C. Where can I get a copy of this document and other related information? D. How is this document organized? II. Summary of Proposed Amendments and Rationale A. What are the proposed requirements? B. Why are we amending the requirements for performance tests in the General Provisions? III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks H. Executive Order 13211: Action that Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act II. Summary of Proposed Amendments and Rationale A. What are the proposed requirements? The proposed rule would allow source owners or operators, in the event of a force majeure, to petition the Administrator for an extension of the deadlines by which they are required to conduct initial and subsequent performance tests required by applicable regulations. Performance tests required as a result of enforcement orders or enforcement actions are not covered by this rule because enforcement agreements contain their own force majeure provisions. A force majeure would be defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure, the owner or operator must notify the Administrator, in writing, as soon as practicable following the date the owner or operator first knew, or through due diligence should have known, that the event may cause or caused a delay in testing beyond the regulatory deadline. The owner or operator must provide a written description of the event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The test must be conducted as soon as practicable after the force majeure occurs. B. Why are we amending the requirements for performance tests in the General Provisions? We recognize that there may be circumstances beyond a source owner's or operator's control constituting a force majeure event that could cause an owner or operator to be unable to conduct performance tests before the regulatory deadline. We are proposing this rule to provide a mechanism for consideration of these force majeure events and granting of extensions where warranted. Under current rules, a source owner or operator who is unable to comply with performance testing requirements within the allotted timeframe due to a force majeure is regarded as being in violation and subject to enforcement action. As a matter of policy, EPA has exercised enforcement discretion when addressing such violations. However, where circumstances beyond the control of the source owner or operator constituting a force majeure prevent the performance of timely performance tests, we believe that it is appropriate to provide an opportunity to such owners and operators to make good faith demonstrations and obtain extensions of the performance testing deadline where approved by the Administrator in appropriate circumstances. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Reviews Under Executive Order 12866 (58 FR 51735 October 4, 1993), the Agency must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget
(OMB)review and the requirements of the Executive Order. The 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 and obligations of recipients thereof; or
(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review. We have determined that this regulation would result in none of the economic effects set forth in Section 1 of the Order because it does not impose emission measurement requirements beyond those specified in the current regulations, nor does it change any emission standard. B. Paperwork Reduction Act The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget
(OMB)under the *Paperwork Reduction Act* , 44 U.S.C. 3501 *et seq.* The Information Collection Request
(ICR)document prepared by EPA has been assigned EPA ICR No. 2226.01. The proposed rule would require a written notification only if a plant owner or operator needs an extension of a performance test deadline due to certain rare events, such as acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. Since EPA believes such events will be rare, the projected cost and hour burden will be minimal. The increased annual average reporting burden for this collection (averaged over the first 3 years of the ICR) is estimated to total 6 labor hours per year at a cost of $377.52. This includes one response per year from six respondents for an average of 1 hour per response. No capital/startup costs or operation and maintenance costs are associated with the proposed reporting requirements. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OAR-2006-0085. Submit any comments related to the ICR for this proposed rule to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after August 9, 2006, a comment to OMB is best assured of having its full effect if OMB receives it by September 8, 2006. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal. C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as:
(1)A small business as defined by the Small Business Administration's
(SBA)regulations at 13 CFR 121.201;
(2)a governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and
(3)a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. Extensions to deadlines for conducting performance tests will provide flexibility to small entities and reduce the burden on them by providing them an opportunity for additional time to comply with performance test deadlines during force majeure events. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, Local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that the proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. The maximum total annual cost of this proposed rule for any year has been estimated to be less than $435.00. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. EPA has determined that the proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, the proposed rule is not subject to the requirements of section 203 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. None of the affected facilities are owned or operated by State governments, and the proposed rule requirements will not supercede State regulations that are more stringent. Thus, Executive Order 13132 does not apply to this rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have tribal implications as specified in Executive Order 13175. This proposed rule will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that:
(1)Is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it is technology based and not based on health or safety risks. No children's risk was performed because no alternative technologies exist that would provide greater stringency at a reasonable cost. Further, this proposed rule has been determined not to be economically significant as defined under Executive Order 12866. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use The proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply distribution, or use of energy. Further, we have concluded that this rule is not likely to have any adverse energy effects. I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. New test methods are not being proposed in this rulemaking, but EPA is allowing for extensions of the regulatory deadlines by which owners or operators are required to conduct performance tests when a force majeure is about to occur, occurs, or has occurred which prevents owners or operators from testing within the regulatory deadline. Therefore, NTTAA does not apply. List of Subjects in 40 CFR Parts 60, 61, and 63 Air pollution control, Environmental protection, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: August 3, 2006. Stephen L. Johnson, Administrator. For the reasons stated in the preamble, title 40, chapter I, parts 60, 61, and 63 of the Code of Federal Regulations are proposed to be amended as follows: PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 2. Section 60.2 is amended by adding, in alphabetical order, a definition of the term “Force majeure” to read as follows: § 60.2 Definitions. *Force majeure* means, for purposes of § 60.8, an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. 3. Section 60.8 is amended by revising paragraph
(a)to read as follows: § 60.8 Performance tests.
(a)Except as specified in paragraphs (a)(1), (a)(2), (a)(3), and (a)(4) of this section, within 60 days after achieving the maximum production rate at which the affected facility will be operated, but not later than 180 days after initial startup of such facility, or at such other times specified by this part, and at such other times as may be required by the Administrator under section 114 of the Act, the owner or operator of such facility shall conduct performance test(s) and furnish the Administrator a written report of the results of such performance test(s).
(1)If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure, the owner or operator shall notify the Administrator, in writing, as soon as practicable following the date the owner or operator first knew, or through due diligence should have known, that the event may cause or caused a delay in testing beyond the regulatory deadline.
(2)The owner or operator shall provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.
(3)If in the Administrator's judgment, an owner's or operator's request for an extension of the performance test deadline is warranted, the Administrator will approve the extension. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.
(4)Until an extension of the performance test deadline has been approved by the Administrator under paragraphs (a)(1), (2), and
(3)of this section, the owner or operator of the affected facility remains strictly subject to the requirements of this part. PART 61—[AMENDED] 4. The authority citation for part 61 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 5. Section 61.02 is amended by adding, in alphabetical order, a definition of the term “Force majeure” to read as follows: § 61.02 Definitions. *Force majeure* means, for purposes of § 61.13, an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. 6. Section 61.13 is amended by revising paragraph
(a)introductory text, and adding paragraphs (a)(3), (a)(4), (a)(5), and (a)(6) to read as follows: § 61.13 Emission tests and waiver of emission tests.
(a)Except as provided in paragraphs (a)(3), (a)(4), (a)(5), and (a)(6) of this section, if required to do emission testing by an applicable subpart and unless a waiver of emission testing is obtained under this section, the owner or operator shall test emissions from the source:
(3)If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure, the owner or operator shall notify the delegated agency, in writing, as soon as practicable following the date the owner or operator first knew, or through due diligence should have known, that the event may cause or caused a delay in testing beyond the regulatory deadline specified in paragraphs (a)(1) or (a)(2) of this section or beyond a deadline established pursuant to the requirements under paragraph
(b)of this section.
(4)The owner or operator shall provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.
(5)If in the Administrator's judgment, an owner's or operator's request for an extension of the performance test deadline is warranted, the Administrator will approve the extension. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.
(6)Until an extension of the performance test deadline has been approved by the Administrator under paragraphs (a)(3), (a)(4), and (a)(5) of this section, the owner or operator of the affected facility remains strictly subject to the requirements of this part. PART 63—[AMENDED] 7. The authority citation for part 63 continues to read as follows: Authority: 42 U.S.C. 7401 *et seq.* Subpart A—[Amended] 8. Section 63.2 is amended by adding, in alphabetical order, a definition of the term “Force majeure” to read as follows: § 63.2 Definitions. *Force majeure* means, for purposes of § 63.7, an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents the owner or operator from complying with the regulatory requirement to conduct performance tests within the specified timeframe despite the affected facility's best efforts to fulfill the obligation. Examples of such events are acts of nature, acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility. 9. Section 63.7 is amended by revising paragraph (a)(2) introductory text and paragraph (a)(2)(ix) and by adding paragraph (a)(4) to read as follows: § 63.7 Performance testing requirements.
(a)* * *
(2)Except as provided in paragraph (a)(4) of this section, if required to do performance testing by a relevant standard, and unless a waiver of performance testing is obtained under this section or the conditions of paragraph (c)(3)(ii)(B) of this section apply, the owner or operator of the affected source must perform such tests within 180 days of the compliance date for such source.
(ix)Except as provided in paragraph (a)(4) of this section, when an emission standard promulgated under this part is more stringent than the standard proposed (see § 63.6(b)(3)), the owner or operator of a new or reconstructed source subject to that standard for which construction or reconstruction is commenced between the proposal and promulgation dates of the standard shall comply with performance testing requirements within 180 days after the standard's effective date, or within 180 days after startup of the source, whichever is later. If the promulgated standard is more stringent than the proposed standard, the owner or operator may choose to demonstrate compliance with either the proposed or the promulgated standard. If the owner or operator chooses to comply with the proposed standard initially, the owner or operator shall conduct a second performance test within 3 years and 180 days after the effective date of the standard, or after startup of the source, whichever is later, to demonstrate compliance with the promulgated standard.
(4)If a force majeure is about to occur, occurs, or has occurred for which the affected owner or operator intends to assert a claim of force majeure:
(i)The owner or operator shall notify the delegated agency, in writing, as soon as practicable following the date the owner or operator first knew, or through due diligence should have known, that the event may cause or caused a delay in testing beyond the regulatory deadline specified in paragraphs (a)(2), (a)(3) of this section, or elsewhere in this part.
(ii)The owner or operator shall provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in testing beyond the regulatory deadline to the force majeure; describe the measures taken or to be taken to minimize the delay; and identify a date by which the owner or operator proposes to conduct the performance test. The performance test shall be conducted as soon as practicable after the force majeure occurs.
(iii)If in the Administrator's judgment, an owner's or operator's request for an extension of the performance test deadline is warranted, the Administrator will approve the extension. The Administrator will notify the owner or operator in writing of approval or disapproval of the request for an extension as soon as practicable.
(iv)Until an extension of the performance test deadline has been approved by the Administrator under paragraphs (a)(4)(i), (a)(4)(ii), and (a)(4)(iii) of this section, the owner or operator of the affected facility remains strictly subject to the requirements of this part. 10. Section 63.91 is amended by adding paragraph (g)(1)(i)(O) to read as follows: § 63.91 Criteria for straight delegation and criteria common to all approval options.
(g)* * *
(1)* * *
(i)* * *
(O)Section 63.7(a)(4), Extension of Performance Test Deadline [FR Doc. E6-12966 Filed 8-8-06; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-HQ-OAR-2003-0090; FRL-8206-7] Final Extension of the Deferred Effective Date for 8-Hour Ozone National Ambient Air Quality Standards for Early Action Compact Areas AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The EPA is proposing a final extension of the deferred effective date of air quality designations for certain areas of the country that have entered into Early Action Compacts. Early Action Compact areas have agreed to reduce ground-level ozone pollution earlier than the Clean Air Act
(CAA)requires. On April 30, 2004, EPA published a notice designating all areas of the country for the 8-hour ozone National Ambient Air Quality Standards (NAAQS). In the designation rule, EPA deferred the effective date of the nonattainment designation for 14 areas that had entered into Early Action Compacts. The current effective date of the nonattainment designation for these areas is December 31, 2006. The EPA is now proposing to extend the deferral of the effective date for all 14 Early Action compact areas until April 15, 2008. DATES: Comments must be received on or before September 8, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2003-0090, by one of the following methods: • *http://www.regulations.gov:* Follow the on-line instructions for submitting comments. • E-mail: *A-and-R-Docket@epa.gov,* Attention Docket ID No. EPA-HQ-OAR-2003-0090. • Fax: Fax your comments to
(202)566-1741, Attention Docket ID. No. EPA-HQ-OAR-2003-0090. • Mail: Docket EPA-HQ-OAR-2003-0090, Environmental Protection Agency, Mailcode: 6102T, 1200 Pennsylvania Avenue, Northwest, Washington, DC 20460. Please include two copies. • Hand Delivery: Deliver your comments to: Air Docket, Environmental Protection Agency, 1301 Constitution Avenue, NW., Room B102, Washington, DC 20004, Attention Docket ID No. EPA-HQ-OAR-2003-0090. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2003-0090. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For further information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm.* *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy at the EPA Docket Center, EPA/DC, EPA West, Room B102, 1301 Constitution Avenue, NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air Docket is
(202)566-1742. Note: The EPA Docket Center suffered damage due to flooding during the last week of June 2006. The Docket Center is continuing to operate. However, during the cleanup, there will be temporary changes to Docket Center telephone numbers, addresses, and hours of operation for people who wish to make hand deliveries or visit the Public Reading Room to view documents. Consult EPA's **Federal Register** notice at 71 FR 38147 (July 5, 2006) or the EPA Web site at *http://www.epa.gov/epahome/dockets.htm* for current information on docket operations, locations and telephone numbers. The Docket Center's mailing address for U.S. mail and the procedure for submitting comments to *www.regulations.gov* are not affected by the flooding and will remain the same. FOR FURTHER INFORMATION CONTACT: Ms. Barbara Driscoll, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Mail Code C539-04, Research Triangle Park, NC 27711, phone number
(919)541-1051 or by e-mail at: *driscoll.barbara@epa.gov* or Mr. David Cole, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Mail Code C304-05, Research Triangle Park, NC 27711, phone number
(919)541-5565 or by e-mail at: *cole.david@epa.gov.* SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? This action applies only to the 14 areas that entered into Early Action compacts and for which the effective date of the nonattainment designation was deferred. A list of these areas is included in Table 1 below. B. What Should I Consider as I Prepare My Comments for EPA? 1. *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. Clearly mark the part of all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that include information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. 2. *Tips for Preparing Your Comments.* When submitting comments, remember to: • Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). • Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations
(CFR)part or section number. • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. • Describe any assumptions and provide any technical information and/or data that you used. • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. • Provide specific examples to illustrate your concerns, and suggest alternatives. • Explain your views as clearly as possible, avoiding the use of profanity or personal threats. • Make sure to submit your comments by the comment period deadline identified. C. Where Should I Send an Additional Copy of My Comments? In addition, please send a copy of your comments to: Barbara Driscoll, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards by one of the means listed: • E-mail: *driscoll.barbara@epa.gov.* • Fax:
(919)541-5489, Attention: Barbara Driscoll. • Mail: Barbara Driscoll, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Mail Code: C539-04, Research Triangle Park, NC 27711. • Hand Delivery: Barbara Driscoll, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Room: C541C, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709. The information presented in this preamble is organized as follows. Outline The following is an outline of the preamble. I. General Information A. Does this Action Apply to Me? B. What Should I Consider as I Prepare My Comments for EPA? C. Where Should I Send an Additional Copy of My Comments? II. What is the Purpose of this Document? III. What Action has EPA Taken to Date for Early Action Compact Areas? A. What progress are compact areas making toward completing their milestones? B. What is this proposed action for compact areas? C. What is EPA's schedule for taking further action to continue to defer the effective date of nonattainment designation for compact areas? IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer Advancement Act J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations II. What Is the Purpose of This Document? The purpose of this document is to propose to extend the deferral of the effective date of the 8-hour ozone nonattainment designations for 14 participants in Early Action Compacts. Currently, the effective designation date is December 31, 2006, and this proposal would extend that date to April 15, 2008. III. What Action Has EPA Taken to Date for Early Action Compact Areas? This section discusses EPA's actions to date with respect to certain areas of the country that are participating in the Early Action Compact program. On December 31, 2002, we entered into compacts with 33 communities. To receive the first deferral, these Early Action Compact areas agreed to reduce ground-level ozone pollution earlier than the CAA would require. The final designation rule published April 30, 2004, (69 FR 23864), included the following actions for compact areas: Deferred the effective date of nonattainment designation for 14 compact areas until September 30, 2005; detailed the progress compact areas had made toward completing their milestones; described the final action required for compact areas; detailed EPA's schedule for taking further action to extend the deferral of the effective date of nonattainment designations, if appropriate; and described the consequences for compact areas that do not meet a milestone. In the April 2004, action, we also discussed three compact areas which did not meet the March 31, 2004, milestone; Knoxville, Memphis, and Chattanooga, Tennessee. Knoxville and Memphis were designated nonattainment effective June 15, 2004. Chattanooga was later determined to have met the March 31, 2004, milestone, and we deferred the designation date until September 30, 2005,(69 FR 34080). This brought the number of participating compact areas to 31. Since then 2 additional areas, Haywood and Putnam Counties, Tennessee have withdrawn from the program. On August 29, 2005, we published a final rule extending the deferred effective date of designation from September 30, 2005, to December 31, 2006, for the same 14 compact areas. In order to receive the second deferral, Early Action Compact areas needed to submit a State Implementation Plan with locally adopted measures by December 31, 2004. The EPA approved the SIP revisions as meeting the EAC Protocol and EPA's EAC regulations at 40 CFR 81.300, and these approvals were the basis for extending the deferred effective date until December 31, 2006. Information on local measures, SIP submittals and background on the Early Action Compact program may be found on EPA's Web site at *http://www.epa.gov/ttn/naaqs/ozone/eac/.* A. What progress are compact areas making toward completing their milestones? In general, the remaining 29 compact areas have made satisfactory progress toward timely completion of their milestones. All compact areas were required to submit two progress reports, one by December 30, 2005, and the other by June 30, 2006. In these progress reports, the States provided information on progress towards implementing local control measures that were incorporated in their SIPs. Each of the EAC areas submitted these reports, and after review by EPA, all were determined to be in compliance with the requirements of the EAC Protocol and the individual State Implementation Plans. Progress reports for each area are posted at *http://www.epa.gov/ttn/naaqs/ozone/eac/.* The EAC areas have one remaining milestone which is to demonstrate attainment with the 8-hour ozone NAAQS by December 31, 2007. B. What is this proposed action for compact areas? Today, we are proposing to extend the deferred effective date of the nonattainment designation for the 14 compact areas. These 14 areas have met all compact milestones through the June 30, 2006, submission. We are proposing to extend until April 15, 2008, the deferral of the effective date of the 8-hour ozone nonattainment designation for the compact area counties listed in Table 1. If this extension is finalized, we will revise 40 CFR part 81 in the final rule to reflect this extension. Table 1.—Compact Areas Which Qualify for a Deferred Effective Date of April 15, 2008 [Name of designated 8-hour ozone nonattainment area is in parentheses] State Compact area (Designated area) Counties with designation deferred to April 15, 2008 Counties which are part of compacts and are designated unclassifiable/ attainment EPA—Region 3 VA Northern Shenandoah Valley Region, (Frederick County, VA), adjacent to Washington, DC-MD-VA Winchester City, Frederick County VA Roanoke Area, (Roanoke, VA) Roanoke County, Botetourt County, Roanoke City, Salem City MD Washington County, (Washington County (Hagerstown, MD), adjacent to Washington, DC-MD-VA Washington County WV The Eastern Pan Handle Region, (Berkeley & Jefferson Counties, WV), Martinsburg area Berkeley County, Jefferson County EPA—Region 4 NC Unifour (Hickory-Morganton-Lenoir, NC) Catawba County, Alexander County, Burke County (part), Caldwell County
(part)NC Triad, (Greensboro-Winston-Salem-High Point, NC) Randolph County, Forsyth County, Davie County, Alamance County, Caswell County, Davidson County, Guilford County, Rockingham County Surry County, Yadkin County, Stokes County. NC Cumberland County, (Fayetteville, NC) Cumberland County SC Appalachian—A, (Greenville-Spartanburg-Anderson, SC) Spartanburg County, Greenville County, Anderson County Cherokee County, Pickens County, Oconee County. SC Central Midlands—I, Columbia area Richland County (part), Lexington County
(part)Newberry County, Fairfield County. TN/GA Chattanooga, (Chattanooga, TN-GA) Hamilton County, TN, Meigs County, TN, Catoosa County, GA Marion County, TN, Walker County, GA. TN Nashville, (Nashville, TN) Davidson County, Rutherford County, Williamson County, Wilson County, Sumner County Robertson County, Cheatham County, Dickson County. TN Johnson City-Kingsport-Bristol Area, (TN portion only) Sullivan Co, TN, Hawkins County, TN Washington Co, TN, Unicoi County, TN, Carter County, TN, Johnson County, TN. EPA—Region 6 TX San Antonio Bexar County, Comal County, Guadalupe County Wilson County. EPA—Region 8 CO Denver, (Denver-Boulder-Greeley-Ft. Collins-Love, CO) Denver County, Boulder County, (includes part of Rocky Mtn. Nat. Park), Jefferson County, Douglas County, Broomfield, Adams County, Arapahoe County, Larimer County (part), Weld County
(part)C. What is EPA's schedule for taking further action to continue to defer the effective date of nonattainment designation for compact areas? With this action, we are proposing to extend the deferred effective date of the nonattainment designation for compact areas which have met their obligations through April 15, 2008. No later than December 31, 2007, each area must attain the 8-hour ozone NAAQS. If the area has attained the standard by December 31, 2007, EPA will withdraw the deferred nonattainment designation and designate the area as attainment. If the area fails to attain by this date, the nonattainment designation will become effective on April 15, 2008. For any area for which the nonattainment designation becomes effective, pursuant to the terms of the compact, the State must submit a revised attainment demonstration SIP for the nonattainment area by December 31, 2008. IV. Statutory and Executive Order Reviews This action proposes to extend the deferral of the effective date of the nonattainment designation for 14 compact areas until April 15, 2008. A. Executive Order 12866: Regulatory Planning and Review This action is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the EO. B. Paperwork Reduction Act This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 *et seq.* This proposal does not require the collection of any information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: 1. A small business that is a small industrial entity as defined in the Small Business Administration's
(SBA)regulations at 13 CFR 121.201; 2. A small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and 3. A small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of today's proposed rule on small entities, I certify that this rule will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. Rather, this rule would extend the deferral of the effective date of the nonattainment designation for areas that implement control measures and achieve emissions reductions earlier than otherwise required by the CAA in order to attain the 8-hour ozone NAAQS. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts. D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, or tribal governments or the private sector. The EPA has determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Today's rule defers to a later date requirements associated with nonattainment area status for areas that have voluntarily entered into Early Action Compacts with EPA. The rule imposes no enforceable duty on any State, local or tribal governments or the private sector. Thus, today's proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA. E. Executive Order 13132: Federalism Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.” This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. The CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This proposed rule would not modify the relationship of the States and EPA for purposes of developing programs to implement the NAAQS. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed rule from State and local officials. F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This proposed rule does not have “Tribal implications” as specified in Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8-hour ozone NAAQS at this time or has participated in a compact. The EPA specifically solicits additional comment on this proposed rule from Tribal officials. G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks Executive Order 13045: “Protection of Children From Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that
(1)is determined to be “economically significant” as defined under Executive Order 12866, and
(2)concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This proposal is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This proposed rule is not a “significant energy action” as defined in Executive Order 13211, “Actions That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355; May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. I. National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer Advancement Act of 1995 (NTTAA), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards
(VCS)in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS. This proposed rulemaking does not involve technical standards. Therefore, EPA is not considering the use of any VCS. The EPA will encourage States that have compact areas to consider the use of such standards, where appropriate, in the development of their SIPs. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The EPA believes that this proposed rule should not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8-hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin of safety. List of Subjects in 40 CFR Part 81 Environmental protection, Air pollution control. Authority: 42 U.S.C. 7408; 42 U.S.C. 7410; 42 U.S.C. 7501-7511f; 42 U.S.C. 7601(a)(1). Dated: August 3, 2006. Stephen L. Johnson, Administrator. 40 CFR part 81 is proposed to be amended as follows: PART 81—[AMENDED] 1. The authority citation for part 81 continues to read as follows: Authority: 42 U.S.C. 7401, *et seq.* Subpart C—Section 107 Attainment Status Designations 2. Section 81.300 is amended by revising paragraphs (e)(3)(i) and (e)(3)(ii)(B) to read as follows: § 81.300 Scope.
(e)* * *
(3)* * *
(i)*General.* Notwithstanding clauses
(i)through
(iv)of section 107(d)(1)(B) of the Clean Air Act (42 U.S.C. 7407(d)(1)(B)), the Administrator shall defer until April 15, 2008, the effective date of a nonattainment designation of any area subject to a compact that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the 8-hour ozone national ambient air quality standard if the Administrator determines that the area subject to a compact has met the requirements in paragraphs (e)(2)(i) through
(v)of this section.
(ii)* * *
(B)Prior to expiration of the deferred effective date on April 15, 2008, if the Administrator determines that an area or the State subject to a compact has not met the requirement in paragraph (e)(2)(vi) of this section, the nonattainment designation shall become effective as of the deferred effective date, unless EPA takes affirmative rulemaking action to further extend the deadline. [FR Doc. E6-12960 Filed 8-8-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-P-7921] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., CFM, Acting Section Chief, Engineering Management Section, Mitigation Division, 500 C Street, SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: FEMA proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR Part 10, Environmental Consideration. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* The Mitigation Division Director certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. As a result, a regulatory flexibility analysis has not been prepared. *Regulatory Classification.* This proposed rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, Flood insurance, Reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: Flooding source(s) Location of referenced elevation *Elevation in feet
(NGVD)Effective Modified Communities affected Buffalo Creek Just upstream of Elmhurst Road *654 *653 Village of Wheeling. Just downstream of Aptakisic Road *668 *667 Wheeling Drainage Ditch Just downstream of Wolf Road *642 *641 Cook County(Unincorporated Areas),Village of Wheeling. Approximately 400 feet downstream of Elmhurst Road *653 *652 William Rogers Memorial Diversion Channel Approximately 300 feet upstream of the confluence with Des Plaines River *None *644 At divergence from Wheeling Drainage Ditch *650 *646 ADDRESSES Cook County, Illinois (Unincorporated Areas) Maps are available for inspection at Cook County Building and Zoning Department, 69 West Washington, Suite 2830, Chicago, Illinois. Send comments to: Mr. John H. Stroger, Jr., President, Cook County Board of Commissioners, 118 North Clark Street, Room 537, Chicago, Illinois 60602. Village of Wheeling, Cook County, Illinois Maps are available for inspection at Wheeling Village Hall, Engineer's Office, 255 West Dundee Road, Wheeling, Illinois. Send comments to: Mr. Greg Klatecki, Village President, 225 West Dundee Road, Wheeling, Illinois 60090. * National Geodetic Vertical Datum. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: July 24, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-12908 Filed 8-8-06; 8:45 am] BILLING CODE 9110-12-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 67 [Docket No. FEMA-B-7464] Proposed Flood Elevation Determinations AGENCY: Federal Emergency Management Agency (FEMA), Department of Homeland Security, Mitigation Division. ACTION: Proposed rule. SUMMARY: Technical information or comments are requested on the proposed Base (1% annual chance) Flood Elevations
(BFEs)and proposed BFEs modifications for the communities listed below. The BFEs are the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). DATES: The comment period is ninety
(90)days following the second publication of this proposed rule in a newspaper of local circulation in each community. ADDRESSES: The proposed BFEs for each community are available for inspection at the office of the Chief Executive Officer of each community. The respective addresses are listed in the table below. FOR FURTHER INFORMATION CONTACT: William R. Blanton, Jr., CFM, Acting Section Chief, Engineering Management Section, Mitigation Division, 500 C Street SW., Washington, DC 20472,
(202)646-3151. SUPPLEMENTARY INFORMATION: FEMA proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with Section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a). These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings. *National Environmental Policy Act.* This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* The Mitigation Division Director certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and are required to establish and maintain community eligibility in the NFIP. As a result, a regulatory flexibility analysis has not been prepared. *Regulatory Classification.* This proposed rule is not a significant regulatory action under the criteria of Section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Executive Order 13132, Federalism.* This proposed rule involves no policies that have federalism implications under Executive Order 13132. *Executive Order 12988, Civil Justice Reform.* This proposed rule meets the applicable standards of Executive Order 12988. List of Subjects in 44 CFR Part 67 Administrative practice and procedure, flood insurance, reporting and recordkeeping requirements. Accordingly, 44 CFR part 67 is proposed to be amended as follows: PART 67—[AMENDED] 1. The authority citation for part 67 continues to read as follows: Authority: 42 U.S.C. 4001 *et seq.* ; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 67.4 [Amended] 2. The tables published under the authority of § 67.4 are proposed to be amended as follows: State City/town/county Source of flooding Location +Elevation in feet
(NAVD)Existing Modified Town of Brockton, Montana Montana Town of Brockton Missouri River Approximately 12.7 miles downstream of County Road Bridge None +1,930 Approximately 13.0 miles downstream of County Road Bridge None +1,931 Maps available for inspection at: City Office, 716 B Avenue, Brockton, Montana. Send Comments to: The Honorable Ben Johnson, Mayor, Town of Brockton, 716 B Avenue, Brockton, Montana 59213. Town of Culbertson, Montana Montana Town of Culbertson Missouri River Approximately 7.76 miles downstream of confluence of Big Muddy Creek None +1,910 Approximately 7.0 miles downstream of confluence of Big Muddy Creek None +1,910 Maps available for inspection at: Town Hall, 210 Broadway, Culbertson, Montana. Send Comments to: The Honorable Gordon Oelkers, Mayor, Town of Culbertson, P.O. Box 351, Culbertson, Montana 59218. McCone County and Unincorporated Areas, Montana Montana McCone County (Unincorporated Areas) Missouri River Approximately 20 miles downstream of State Route 13 None +1,956 Approximately 26.9 miles upstream of confluence of Little Porcupine Creek None +2,038 Maps available for inspection at: County Courthouse, 1004 C Avenue, Circle, Montana. Send Comments to: Mrs. Connie Eissinger, Chairman, McCone County Commissioners, County Courthouse, 1004 C Avenue, Circle, Montana 59215. Town of Medicine Lake, Montana Montana Town of Medicine Lake Big Muddy Creek Approximately 1,000 feet south of West Lake Road None +1,944 Approximately 2,500 feet north of West Lake Road None +1,948 Maps are available for inspection at 103 E. Hamilton St., Sheridan, Montana 59749. Send comments to The Honorable Tim Hutslar, Mayor, Town of Medicine Lake, Box 147, Medicine Lake, Montana 59247. City of Nashua, Montana Montana City of Nashua Porcupine Creek Approximately 0.41 miles downstream of U.S. Highway 2 None +2,058 Approximately 0.78 miles upstream of U.S. Highway 2 None +2,068 Maps available for inspection at: Civic Center, 805 Front Street, Nashua, Montana. Send Comments to: The Honorable Alan Bunk, Mayor, City of Nashua, P.O. Box 47, Nashua, Montana 59428. City of Poplar, Montana Montana City of Poplar Poplar River Approximately 0.23 miles upstream of U.S. Highway 2 None +1,966 Approximately 0.27 miles upstream of U.S. Highway 2 None +1,966 Maps available for inspection at: City Hall, 406 2nd Avenue West, Poplar, Montana. Send Comments to: The Honorable Theresa Murray, Mayor, City of Poplar, 406 2nd Avenue West Poplar, Montana 59255. City of Wolf Point, Montana Montana City of Wolf Point Missouri River Static flooding along 6th Avenue S. from Helena Street south to Idaho Street None +1,985 Maps available for inspection at: City Office, 201 4th Avenue South, Wolf Point, Montana. Send Comments to: The Honorable Matt Golik, Mayor, City of Wolf Point, 201 4th Avenue South Wolf Point, Montana 59201. Town of Atkinson, North Carolina North Carolina Atkinson (Town), Pender County Mill Branch (of Moores Creek) Approximately 0.7 mile downstream of NC Highway 53 None +43 At Church Street (NC Highway 53) None +64 Maps available for inspection at the Atkinson Town Hall, 200 North Town Hall Avenue, Atkinson, North Carolina. Send comments to: The Honorable George Stalker, Mayor of the Town of Atkinson, 200 North Town Hall Avenue, Atkinson, North Carolina 28421. Burnet County, Texas Texas Burnet County (Unincorporated Areas) Colorado River (Lake Travis) Approximately 2000 feet upstream from Shaw Drive (Burnet/Travis County Line) *716 *722 Eastern face of Max Starcke Dam *716 *724 Maps are available for inspection at 220 South Pierce Street, Room 17, Burnet, TX 78611 Send comments to: The Honorable David Kithil, Judge, Burnet County, 220 South Pierce Street, Burnet, TX 78611. + North American Vertical Datum. * National Geodetic Vertical Datum. Flooding source(s) Location of referenced elevation +Elevation in feet
(NAVD)*Elevation in feet
(NGVD)Effective Modified Communities affected Eagle County, Colorado and Incorporated Areas Colorado River At Garfield County and Eagle County corporate limit None +6131 Eagle County (Unincorporated Areas). Approximately 200 feet downstream of Interstate 70 None +6145 Missouri River Approximately 8.14 miles downstream of confluence with Big Muddy Creek None +1,910 Richland County (Unincorporated Areas). Approximately 11 miles upstream of confluence with Wolf Creek None +1,995 ADDRESSES Richland County, Montana Maps available for inspection at: The County Courthouse, 201 West Main, Sidney, Montana. Send Comments to: Mr. Don Steppler, Chairman, Richland County Commissioners, 201 West Main Street, Sidney, Montana 59270. City of Sidney Maps are available for inspection at: City Hall, 115 2nd Street SE, Sidney Montana. Send comments to: The Honorable Bret Smelser, Mayor, Town of Sidney, 115 2nd Street SE, Sidney, Montana 59270. Fremont County, Colorado and Incorporated Areas Arkansas River Approximately 0.19 miles downstream of State Rt. 115 *5,092 +5,096 City of Florence, Fremont County (Unincorporated Area), City of Canon City. Approximately 0.53 miles upstream of confluence of Sand Creek *5,361 +5,364 Chandler Creek Confluence with Arkansas River *5,171 +5,174 Fremont County (Unincorporated Area), Town of Williamsburg. Approximately 0.30 miles upstream of County Rd. 11A *5,384 +5,387 Coal Creek Approximately 0.22 miles upstream of Confluence with Arkansas River None +5,153 City of Florence, Fremont County (Unincorporated Area). Approximately 1.19 miles upstream of Railroad Street None +5,231 Coal Creek East Overflow Approximately 0.44 miles above confluence with Arkansas River None +5,134 City of Florence, Fremont County (Unincorporated Area). Approximately 600 feet upstream of Robinson Avenue at divergence from Coal Creek Main Channel None +5,180 Coal Creek West Overflow Approximately 0.34 miles above confluence with Arkansas River None +5,153 City of Florence, (Fremont County Unincorporated Area). Divergence from Coal Creek Main Channel None +5,188 Forked Gulch At confluence with Arkansas River *5,333 +5,336 City of Canon City. Confluence with West Forked Gulch *5,448 +5,451 Minnequa Canal Approximately 760 feet above Lock Avenue *5,196 +5,199 City of Florence, Fremont County (Unincorporated Area). Confluence of Oak Creek *5,206 +5,209 Northeast Canon Drainage East Branch At Confluence with Arkansas River None +5,301 City of Canon City, Fremont County (Unincorporated Area). Approximately 0.85 miles upstream of Tennessee Avenue None +5,548 Northeast Canon Drainage West Branch Confluence with East Branch *5,316 +5,320 City of Canon City, Fremont County (Unincorporated Area). Approximately 0.62 miles upstream of Washington Street *5,499 +5,501 Oak Creek Approximately 325 feet above confluence with Arkansas River None +5,156 City of Florence, Fremont County (Unincorporated Area), Town of Williamsburg, City of Canon City. Approximately 550 feet upstream of Quincy Street None +5,341 Oak Creek Right Over Bank Approximately 600 feet downstream of West Seventh Street *5,151 +5,154 City of Florence. Approximately 150 feet upstream of Second Street *5,188 +5,190 Sand Creek At confluence with Arkansas River *5,352 +5,356 City of Canon City. Approximately 0.92 miles upstream of confluence with Arkansas River *5,428 +5,431 Southeast Canon Drainage At confluence with Arkansas River *5,308 +5,312 City of Canon City. Approximately 0.60 miles upstream of confluence with Arkansas River *5,364 +5,368 West Forked Gulch Confluence with Forked Gulch *5,448 +5,452 City of Canon City. Approximately 500 Feet upstream of confluence with Forked Gulch *5,471 +5,474 West Forked Gulch Approximately 0.59 miles upstream of the confluence with Forked Gulch *5,526 +5,529 City of Canon City. Approximately 0.973 miles upstream of confluence with Forked Gulch *5,570 +5,573 ADDRESSES Unincorporated Areas of Fremont County Maps are available for inspection at: The Administration Building, 615 Macon Avenue, Room 105, Canon City, Colorado. Send comments to: Mr. Larry Lasha, Chairman, Fremont County Commissioners, 615 Macon Avenue, Room 105, Canon City, Colorado 81212. City of Canon City Maps are available for inspection at: City Hall, 128 Main Street, Canon City, Colorado. Send comments to: The Honorable William F. Jackson, Mayor, City of Canon City, 128 Main Street, Canon City, Colorado 81215. City of Florence Maps are available for inspection at: The Municipal Building, 300 West Main St, Florence, Colorado. Send comments to: Mr. Tom Piltingsrud, City Manager, City of Florence, 300 West Main St, Florence, Colorado 81226-1426. City of Williamsburg Maps are available for inspection at: City Hall, 1 John Street, Williamsburg, Colorado. Send comments to: The Honorable Oscar Turley, Mayor, Town of Williamsburg, 1 John Street, Williamsburg, Colorado 81226. Richland County, Montana and Incorporated Areas Lone Tree Creek Approximately 0.47 miles downstream of Country Road 351 None +1,908 Richland County (Unincorporated Areas), City of Sidney. At 22nd Avenue Northwest None +1,969 Missouri River Approximately 8.14 miles downstream of confluence with Big Muddy Creek None +1,910 Richland County (Unincorporated Areas). Approximately 11 miles upstream of confluence with Wolf Creek None +1,995 ADDRESSES Richland County, Montana Maps available for inspection at: The County Courthouse, 201 West Main, Sidney, Montana. Send Comments to: Mr. Don Steppler, Chairman, Richland County Commissioners, 201 West Main Street, Sidney, Montana 59270. City of Sidney Maps are available for inspection at: City Hall, 115 2nd Street SE, Sidney Montana. Send comments to: The Honorable Bret Smelser, Mayor, Town of Sidney, 115 2nd Street SE, Sidney, Montana 59270. Wayne County, Nebraska and Incorporated Areas Deer Creek At confluence with South Logan Creek *1453 +1450 City of Wayne At 574th Avenue None +1460 Dog Creek Approximately 2000 feet upstream of confluence with South Logan Creek *1424 +1420 City of Wayne. At 858th Road *1440 +1439 South Logan Creek Approximately 350 feet downstream of confluence with Dog Creek *1421 +1416 City of Wayne. Approximately 75 feet upstream of Highway 15 *1451 +1444 Approximately 200 feet upstream of 854th Road None +1465 ADDRESSES City of Wayne Maps are available for inspection at the City Office, 306 Pearl Street, Wayne, NE 68787. Send comments to The Honorable Lois Shelton, Mayor, City of Wayne, 306 Pearl Street, Wayne, NE 68787. Wilson County, Tennessee and Incorporated Areas Anthony Branch Confluence with North Fork Suggs Creek None +536 Wilson County (Unincorporated Areas). Approximately 1.3 miles upstream of Logue Road None +579 Bartons Creek Just downstream of Interstate 40 None +556 Wilson County (Unincorporated Areas), City of Lebanon. Approximately 1030 feet upstream of Franklin Road None +570 Bartons Creek Tributary 3 Just upstream of Alhambra Drive None +508 Wilson County (Unincorporated Areas), City of Lebanon. Approximately 1.0 mile upstream of Blair Lane None +674 Beech Log Creek Confluence with Round Lick Creek None +655 Wilson County (Unincorporated Areas), City of Watertown. Approximately 1.9 miles upstream of Sparta Pike None +754 Black Branch Approximately 1490 feet upstream of confluence with Spring Creek *577 +578 Wilson County (Unincorporated Areas), City of Lebanon. Approximately 3150 feet upstream of Sparta Pike None +616 Cave Creek Confluence with Hurricane Creek None +597 Wilson County (Unincorporated Areas). Approximately 3780 feet upstream of Hurricane Creek Road None +610 Cedar Creek Approximately 1100 feet downstream of Beasleys Bend *460 +461 Wilson County (Unincorporated Areas). Approximately 2050 feet upstream of Carthage Highway None +555 Fall Creek Approximately 180 feet downstream of Old Murfreesboro Road None +554 Wilson County (Unincorporated Areas). Approximately 1.3 miles upstream of Puckett Road None +731 Hurricane Creek Approximately 3590 feet downstream of Mt Creary Road None +510 Wilson County (Unincorporated Areas). Approximately 360 feet upstream of E Richmond Shop Road None +628 Jennings Fork Creek Approximately 200 feet downstream of Flat Rock Road None +513 Wilson County (Unincorporated Areas). Approximately 1 mile upstream of Blue Bird Road None +632 Martha Branch Approximately 220 feet upstream of confluence with Spencer Creek None +509 Wilson County (Unincorporated Areas), City of Lebanon. Approximately 560 feet upstream of Martha-Leeville Road None +557 North Fork Suggs Creek Approximately 810 feet upstream of confluence with Suggs Creek None +536 Wilson County (Unincorporated Areas). Approximately 1.3 miles upstream of Logue Road None +579 North Fork Suggs Creek Tributary 1 Confluence with North Fork Suggs Creek None +545 Wilson County (Unincorporated Areas). Approximately 1.4 miles upstream of North Fork Suggs Creek None +617 Rocky Branch Confluence with Smith Fork None +723 Wilson County (Unincorporated Areas). Approximately 1.3 miles upstream of Clever Creek Road None +756 Round Lick Creek Approximately 2130 feet downstream of Interstate 40 None +557 Wilson County (Unincorporated Areas). Approximately 1900 upstream of Statesville Road None +668 Shop Springs Branch Approximately 2900 feet upstream of confluence with Spring Creek *600 +601 Wilson County (Unincorporated Areas). Approximately 3170 feet upstream of Young Road None +660 Shop Springs Branch Tributary 1 Confluence with Shop Springs Branch None +613 Wilson County (Unincorporated Areas). Approximately 70 feet upstream of Shop Springs Road None +653 Sinking Creek Tributary 1 Approximately 430 feet downstream of Hill Street None +527 City of Lebanon. Approximately 115 feet upstream of Leeville Pike None +557 Sinking Creek Tributary 3 Approximately 450 feet upstream of confluence with Sinking Creek None +594 Wilson County (Unincorporated Areas). Approximately 770 feet upstream of confluence with Sinking Creek None +594 Sinking Creek Tributary 3.2 Confluence with Sinking Creek Tributary 3 None +594 Wilson County (Unincorporated Areas). Approximately 60 feet upstream Murfreesboro Road None +631 Smith Fork Approximately 5190 feet downstream of State Highway 96 None +627 Wilson County (Unincorporated Areas). Approximately 5030 feet upstream of Greenvale Road None +741 Snarl Creek Approximately 1.7 miles downstream Central Pike None +503 Wilson County (Unincorporated Areas), City of Mt. Juliet. Approximately 2400 feet upstream of South Mt. Juliet Road None +607 South Fork Cedar Creek Just downstream of Interstate 40 None +577 City of Lebanon. Approximately 180 feet upstream of State Highway 109 None +602 Spring Creek Tributary 4 Approximately 500 feet upstream of confluence with Spring Creek None +572 Wilson County (Unincorporated Areas). Approximately 100 feet upstream of Locust Grove Road None +643 Spring Creek Tributary 5 Approximately 450 feet upstream of confluence with Spring Creek None +589 Wilson County (Unincorporated Areas). Approximately 3560 feet upstream of confluence with Spring Creek None +620 Spring Creek Tributary 6 Approximately 900 feet upstream of confluence with Spring Creek *600 +601 Wilson County (Unincorporated Areas). Approximately 1620 feet upstream of confluence with Spring Creek None +604 Suggs Creek Just upstream of Underwood Road None +565 Wilson County (Unincorporated Areas). Approximately 2650 feet upstream of Stewarts Ferry Road None +619 Suggs Creek Tributary 1 Confluence with Suggs Creek None +568 Wilson County (Unincorporated Areas). Approximately 1.5 miles upstream of Stewarts Ferry Pike None +624 Walker Branch Approximately 370 feet downstream of Coles Ferry Pike *492 +493 Wilson County (Unincorporated Areas), City of Lebanon. Approximately 3340 feet upstream of Hunters Point Pike None +546 ADDRESSES City of Lebanon Maps are available for inspection at 200 Castle Heights Avenue, Lebanon, TN 37087. Send comments to the Honorable Don Fox, Mayor, City of Lebanon, 200 Castle Heights Avenue, Lebanon, TN 37087. City of Mt. Juliet Maps are available for inspection at 2425 North Mt. Juliet Road, Mt. Juliet, TN 37122. Send comments to the Honorable Linda Elam, Mayor, City of Mt. Juliet, 2425 North Mt. Juliet Road, Mt. Juliet, TN 37122. City of Watertown Maps are available for inspection at 228 East Main Street, Courthouse Room 5, Lebanon, TN 37087 Send comments to the Honorable Michael Jennings, Mayor, City of Watertown, 8630 Sparta Pike, Watertown, TN 37184. Unincorporated Areas of Wilson County Maps are available for inspection at 228 East Main Street, Courthouse Room 5, Lebanon, TN 37087. Send comments to the Honorable Robert Dedman, Mayor, Wilson County, 228 East Main Street, Courthouse Room 5, Lebanon, TN 37087. Travis County, Texas and Incorporated Areas Blunn Creek Confluence with Colorado River *442 +440 City of Austin. Approximately 1570 feet upstream from the intersection with Alpine Drive None +648 Boggy Creek North Confluence with Colorado River *431 +432 City of Austin. Intersection with Airport Blvd *597 +590 Boggy Creek Tributary 1 Confluence with Boggy Creek North *442 +446 City of Austin. Intersection with Airport Blvd *452 +458 Carson Creek Confluence with Colorado River *432 +423 City of Austin, Travis County (Unincorporated Areas). Approximately 4100 feet upstream from the intersection with Metro Center Drive *560 +570 Carson Creek Tributary 2 Confluence with Carson Creek None +440 City of Austin. Approximately 1500 feet upstream from the intersection with State Hwy 71 None +458 Carson Creek Tributary 3 Confluence with Carson Creek None +432 City of Austin. Intersection with Thornberry Road None +478 Carson Creek Tributary 4 Confluence with Carson Creek None +432 City of Austin. Approximately 1000 feet downstream from the intersection with Dalton Lane None +440 Clarkson Branch Confluence with Boggy Creek North None +548 City of Austin. Intersection with 38th 1/2 Street None +576 Colorado River Confluence with unnamed tributary *394 +391 City of Austin, City of Jonestown, City of Lago Vista, City of Lakeway, City of Rollingwood, City of Round Rock, City of Webberville, City of West Lake Hills, Travis County (Unincorporated Areas), Village of Briarcliff, Village of Point Venture. Downstream face of Mansfield Dam *716 +722 Country Club Creek East (Old Country Club Creek) Confluence with Colorado River *436 +437 City of Austin. Approximately 3100 feet upstream from the intersection with Riverside Drive *567 +565 Country Club Creek East Tributary 1 Confluence with Country Club Creek East None +449 City of Austin. Intersection with Fairway Street None +493 Country Club Creek East Tributary 2 (Old Country Club Creek) Confluence with Country Club Creek East *449 +453 City of Austin. Approximately 220 feet downstream from the intersection with Crossing Place *458 +457 Country Club Creek East Tributary 3 Confluence with Country Club Creek East None +466 City of Austin. Approximately 380 feet upstream from the intersection with Riverside Drive None +502 Country Club Creek East Tributary 4 Confluence with Country Club Creek East *496 +497 City of Austin. Approximately 430 feet downstream from the intersection with Grove Blvd None +536 Country Club Creek West (New Country Club Creek) Confluence with Colorado River *437 +438 City of Austin. Approximately 2340 feet upstream from the intersection with Metcalfe Road *610 +612 Country Club Creek West Tributary 1 Confluence with Country Club Creek West *464 +465 City of Austin. Approximately 750 feet upstream from the intersection with Riverside Drive *541 +542 Country Club Creek West Tributary 2 Confluence with Country Club Creek West *482 +485 City of Austin. Approximately 1290 feet upstream from the intersection with Oltorf Street None +599 Country Club Creek West Tributary 3 Confluence with Country Club Creek West *503 +501 City of Austin. Intersection with State Hwy 71/Ben White Blvd *602 +612 Country Club Creek West Tributary 3A Confluence with Country Club Creek West Tributary 3 None +550 City of Austin. Approximately 1460 feet upstream from the confluence with Country Club Creek West Tributary 3 None +610 Country Club Creek West Tributary 4 Confluence with Country Club Creek West *526 +523 City of Austin. Intersection with Burleson Road *570 +575 Country Club Creek West Tributary 5 Confluence with Country Club Creek West None +553 City of Austin. Approximately 680 feet upstream from the intersection with Granada Drive None +608 Danz Creek Confluence with Slaughter Creek None +746 City of Austin. Intersection with FM 1826 None +989 Danz Creek Split Confluence with Danz Creek None +783 City of Austin. Divergence from Danz Creek None +844 Danz Creek Tributary 1 Confluence with Danz Creek None +766 City of Austin. Approximately 1 mile upstream from the confluence with Danz Creek None +787 Danz Creek Tributary 2 Confluence with Danz Creek None +860 City of Austin. Approximately 1 mile upstream from the confluence with Danz Creek None +894 Dry Creek North Confluence with Colorado River None +494 City of Austin. Approximately 1050 feet upstream from the intersection with Laurel Valley Drive None +761 Dry Creek North Tributary 1 Confluence with Dry Creek North None +556 City of Austin. Approximately 940 feet upstream from the intersection with FM 2222 None +613 Dry Creek North Tributary 2 Confluence with Dry Creek North None +573 City of Austin. Intersection with Berry Hill Drive None +623 Dry Creek North Tributary 3 Confluence with Dry Creek North None +582 City of Austin. Approximately 870 feet upstream from the confluence with Dry Creek North None +602 Dry Creek North Tributary 4 Confluence with Dry Creek North None +602 City of Austin. Approximately 640 feet upstream from the intersection with Dry Creek Drive None +641 East Bouldin Creek Confluence with Colorado River *443 +440 City of Austin. Intersection with Ben White Blvd *650 +655 East Branch of Fort Branch Creek Tributary 1 Confluence with Fort Branch Creek Tributary 1 None +557 City of Austin. Approximately 400 feet upstream from the intersection with Rogge Lane None +575 Fort Branch Creek Confluence with Boggy Creek North *442 +440 City of Austin. Approximately 160 feet upstream from the intersection with Glencrest Drive None +640 Fort Branch Creek Tributary 1 Confluence with Fort Branch None +532 City of Austin. Approximately 400 feet upstream from the intersection with Rogge Lane None +591 Fort Branch Creek Tributary 2 Confluence with Fort Branch None +584 City of Austin. Approximately 900 feet upstream from the intersection with Gaston Place None +605 Grayson Branch Confluence with Boggy Creek North None +547 City of Austin. Intersection with 39th Street None +557 Harris Branch Approximately 3000 feet upstream of the confluence with Gilleland Creek *539 +537 City of Austin, Travis County (Unincorporated Areas). Approximately 300 feet upstream from the intersection with Park Crossing *741 +743 Harris Branch Tributary 4 Confluence with Harris Branch *603 +602 City of Austin, Travis County (Unincorporated Areas). Intersection with Harris Ridge Blvd None +723 Harris Branch Tributary 6 Confluence with Harris Branch None +597 City of Austin, Travis County (Unincorporated Areas). Approximately 1 mile upstream from the confluence with Harris Branch None +628 Kincheon Creek Confluence with Williamson Creek None +679 City of Austin. Approximately 750 feet upstream from the intersection with Abilene Trail None +838 Little Walnut Creek Confluence with Walnut Creek *471 +470 City of Austin. Intersection with Metric Blvd None +731 Little Walnut Creek Tributary 1 Confluence with Little Walnut Creek *538 +537 City of Austin. Intersection with Chevy Chase Drive None +684 Little Walnut Creek Tributary 3 Confluence with Little Walnut Creek *670 +669 City of Austin. Approximately 740 feet upstream from the intersection with Northgate Blvd *713 +716 Montopolis Tributary Confluence with Carson Creek None +450 City of Austin. Approximately 1 mile upstream from the intersection with Dalton Lane None +472 North Fork West Bouldin Creek Confluence with West Bouldin Creek *566 +564 City of Austin. Approximately 300 feet upstream from the instersection with Manchaca Road None +641 Onion Creek Confluence with the Colorado River *414 +408 City of Austin, Travis County (Unincorporated Areas). Approximately 5,500 feet upstream from the confluence of Garlic Creek and Onion Creek (Travis and Hays County Line) *644 +646 Pleasant Hill Tributary Confluence with Williamson Creek None +575 City of Austin. Intersection with South Congress Road None +654 Poquito Branch Confluence with Boggy Creek North None +489 City of Austin. Intersection with Poquito Street None +494 Possum Trot Branch Intersection of 11th Street and Possum Trot Branch *481 +480 City of Austin. Approximately 350 feet upstream from the intersection with Woodmont Avenue None +560 Shoal Creek Confluence with the Colorado River (Town Lake) *445 +440 City of Austin. Approximately 1,650 feet upstream from the intersection with the Union Pacific Railroad *758 +776 Slaughter Creek Intersection of the Union Pacific Railroad and Slaughter Creek *654 +664 City of Austin, City of San Leanna, Travis County (Unincorporated Areas). Approximately 730 feet upstream from the intersection with Hwy 290 None +1074 Slaughter Creek Tributary 1 Approximately 800 feet upstream from the confluence with Slaughter Creek *591 +592 City of Austin. Approximately 1000 feet upstream from the intersection with Manchaca Road *688 +689 Slaughter Creek Tributary 2 Confluence with Slaughter Creek None +673 City of Austin. Intersection with Brodie Lane None +752 Slaughter Creek Tributary 3 Confluence with Slaughter Creek None +743 Travis County (Unincorporated Areas). Approximately 1050 feet upstream from the intersection with Lost Oasis Hollow None +781 Slaughter Creek Tributary 4 Confluence with Slaughter Creek None +776 City of Austin. Approximately 100 feet downstream from the intersection with Mo-Pac Expressway None +815 Slaughter Creek Tributary 5 Confluence with Slaughter Creek None +847 City of Austin. Approximately 2550 feet upstream from the intersection with LaCrosse Avenue None +897 South Boggy Creek Intersection of Bluff Springs Road and South Boggy Creek *558 +559 City of Austin, Travis County (Unincorporated Areas). Approximately 650 feet upstream from the intersection with Westgate Blvd *779 +771 Sunset Valley Tributary Approximately 600 feet downstream from the intersection with Jones Road *653 +652 City of Austin, City of Sunset Valley. Approximately 2050 feet upstream from the intersection with Monterey Oaks Drive None +760 Tar Branch Confluence with Walnut Creek None +630 City of Austin. Approximately 1200 feet upstream from the intersection with Metric Blvd None +718 Walnut Creek Confluence with Colorado River *430 +431 City of Austin, Travis County (Unincorporated Areas). Approximately 50 feet downstream from the intersection with McNeil Drive None +893 Walnut Creek Tributary 1 Confluence with Walnut Creek *431 +432 City of Austin. Approximately 2200 feet upstream from the intersection with Loyola Avenue None +506 Walnut Creek Tributary 10 Approximately 1200 feet upstream from the confluence with Walnut Creek *763 +764 City of Austin, Travis County (Unincorporated Areas). Intersection with Howard Lane None +809 Walnut Creek Tributary 2 Intersection with railroad bed *443 +445 City of Austin. Interesection with Martin Luther King Blvd *485 +482 Walnut Creek Tributary 3 Approximately 1200 feet upstream from the confluence with Walnut Creek *493 +494 City of Austin, Travis County (Unincorporated Areas). Intersection with Cameron Road *575 +576 Walnut Creek Tributary 4 Confluence with Walnut Creek *500 +498 City of Austin. Approximately 80 feet upstream from the intersection with Springdale Road *545 +543 Walnut Creek Tributary 5 Confluence with Walnut Creek *512 +514 City of Austin. Approximately 2200 feet upstream from the intersection with Sansom Road *555 +556 Walnut Creek Tributary 6 Confluence with Walnut Creek *610 +611 City of Austin. Approximately 1030 feet upstream from the intersection with Canyon Ridge Drive None +707 Walnut Creek Tributary 7 Confluence with Walnut Creek *692 +694 City of Austin. Intersection with Research Blvd None +844 Walnut Creek Tributary 7A Approximately 650 feet upstream from the confluence with Walnut Creek Tributary 7 *754 +757 City of Austin. Approximately 3500 feet upstream from the intersection with the railroad None +821 Walnut Creek Tributary 8 Confluence with Walnut Creek *700 +701 City of Austin. Intersection with Railroad *805 +796 Walnut Creek Tributary 9 Confluence with Walnut Creek *710 +709 City of Austin. Approximately 730 feet upstream from the intersection with Howard Lane None +786 Wells Branch Confluence with Walnut Creek *627 +629 City of Austin. Approximately 710 feet upstream from the intersection with Wells Branch Pkwy *775 +772 West Bouldin Creek Confluence with Colorado River *445 +442 City of Austin. Approximately 240 feet upstream from the intersection with Clawson None +641 Williamson Creek Confluence with Onion Creek *525 +522 City of Austin, City of Sunset Valley. Approximately 200 feet upstream from the intersection with Mowinkle Drive None +968 Williamson Creek Tributary 1 Confluence with Williamson Creek *526 +522 City of Austin. Approximately 50 feet upstream from the intersection with Nuckols Crossing Road *571 +562 Williamson Creek Tributary 2 Confluence with Williamson Creek *526 +523 City of Austin. Approximately 250 feet upstream from the intersection with Nuckols Crossing None +592 Williamson Creek Tributary 3 Intersection of Nuckols Crossing and Williamson Creek Tributary 3 *544 +541 City of Austin. Approximately 670 feet upstream from the intersection with Pino Street *568 +567 Williamson Creek Tributary 4 Confluence with Williamson Creek *589 +596 City of Austin. Approximately 210 feet upstream from the intersection with South First Street None +643 Williamson Creek Tributary 5 Confluence with Williamson Creek *847 +848 City of Austin. Approximately 500 feet upstream from the intersection with South Brook Drive *913 +920 Williamson Creek Tributary 6 Approximately 5000 feet upstream from the intersection with William Cannon Drive None +864 City of Austin. Approximately 5900 feet upstream from the intersection with William Cannon Drive None +899 ADDRESSES City of Austin Maps are available for inspection at 505 Barton Springs Road, 12th Floor, Austin, TX 78704. Send comments to the Honorable Will Mynn, Mayor, City of Austin, P.O. Box 1088, Austin, TX 78767. City of Jonestown Maps are available for inspection at 18649 FM 1431, Suite 4-A, Jonestown, TX 78645. Send comments to the Honorable James Brown, Mayor, City of Jonestown, 18649 FM 1431, Jonestown, TX 78645. City of Lago Vista Maps are available for inspection at 5803 Thunderbird, Lago Vista, TX 78645. Send comments to the Honorable Dennis Jones, Mayor, City of Lago Vista, P.O. Box 4727, Lago Vista, TX 78645. City of Lakeway Maps are available for inspection at 1102 Lohmans Crossing, Lakeway, TX 78734. Send comments to the Honorable Steve Swan, Mayor, City of Lakeway, 1102 Lohmans Crossing, Lakeway, TX 78734. City of Rollingwood Maps are available for inspection at 403 Nixon Drive, Austin, TX 78746. Send comments to the Honorable Hollis Jeffries, Mayor, City of Rollingwood, 403 Nixon Drive, Austin, TX 78746. City of Round Rock Maps are available for inspection at 2008 Enterprise, Round Rock, TX 78664. Send comments to the Honorable Nyle Maxwell, Mayor, City of Round Rock, 221 East Main Street, Round Rock, TX 78664. City of San Leanna Maps are available for inspection at 11906 Sleepy Hollow, Manchaca, TX 78652. Send comments to the Honorable James Payne, Mayor, City of San Leanna, P.O. Box 1107, Manchaca, TX 78652. City of Sunset Valley Maps are available for inspection at 3205 Jones Road, Sunset Valley, TX 78745. Send comments to the Honorable Terry Cowan, Mayor, City of Sunset Valley, 3205 Jones Road, Sunset Valley, TX 78745. City of Webberville Maps are available for inspection at Webberville City Hall, 1701 Webberwood, Elgin, TX 78621. Send comments to the Honorable Hector Gonzales, Mayor, City of Webberville, P.O. Box 367, Webberville, TX 78653. City of West Lake Hills Maps are available for inspection at 911 Westlake Drive, West Lake Hills, TX 78746. Send comments to the Honorable Dwight Thompson, Mayor, City of West Lake Hills, 911 Westlake Drive, West Lake Hills, TX 78746. Unincorporated Areas of Travis County Maps are available for inspection at 411 13th Street, 8th Floor, Austin, TX 78767. Send comments to the Honorable Samual Biscoe, Judge, Travis County, 511W. 13th Street, Austin, TX 78767. Village of Briarcliff Maps are available for inspection at 402 Sleat Drive, Briarcliff, TX 78669. Send comments to the Honorable James Hamnett, Mayor, Village of Briarcliff, 402 Sleat Drive, Briarcliff, TX 78669. Village of Point Venture Maps are available for inspection at 549 Venture Blvd South, Point Venture, TX 78645. Send comments to the Honorable Kevin Sheffer, Mayor, Village of Point Venture, 549 Venture Blvd South, Point Venture, TX 78645. Village of Volente Maps are available for inspection at 15403 Hill Street, Volente, TX 78641. Send comments to the Honorable Jen Yenawine, Mayor, Village of Volente, 15403 Hill Street, Volente, TX 78641. Davis County, Utah and Incorporated Areas Great Salt Lake Approximately 1000 feet West of intersection of N 800 W and W Jim Bridger None +4217 City of Centerville. At intersection of 900 W and Parish Lane None +4218 Great Salt Lake Approximately 400 feet Northwest of intersection of N Ranch and W Prairie View None +4218 City of Farmington. Approximately 1400 feet West of intersection of N Ranch and W Prairie View None +4219 Great Salt Lake Approximately 1800 feet South-Southeast of intersection of S View Crest and W Thomas None +4218 City of Kaysville. Great Salt Lake Approximately 400 feet West of intersection of N 5000 W and W 300 North None +4217 City of West Point. Great Salt Lake Approximately 0.9 miles West of intersection of W 2425 S and N Redwood None +4218 City of Woods Cross. Great Salt Lake Approximately 1600 feet West of intersection of W York and N Skipton None +4218 City of North Salt Lake City. Great Salt Lake Approximately 1500 feet West of intersection of County Road 127 and County Road 110 None +4217 Davis County (Unincorporated Areas). Approximately 0.6 miles Northwest of intersection of W Porter and N 1100 W None +4219 Great Salt Lake Approximately 200 feet West of Intersection of N Willowbrook and N 880 W None +4218 City of West Bountiful. Jordan River Approximately 1600 feet South of intersection of W Interchange and S Enterprise None +4217 City of North Salt Lake City. Approximately 600 feet west of intersection of W Interchange and S Enterprise None +4218 ADDRESSES City of Centerville Maps are available for inspection at 655 North 1250 West, Centerville, UT 84014. Send comments to the Honorable Michael Deamer, Mayor, City of Centerville, 732 South 650 East, Centerville, UT 84014. City of Farmington Maps are available for inspection at 130 North Main, Farmington, UT 84025. Send comments to the Honorable Gregory Bell, Mayor, City of Farmington, P.O. Box 160, Farmington, UT 84025. City of Kaysville Maps are available for inspection at 23 East Center Street, Kaysville, UT 84037. Send comments to the Honorable Brian Cook, Mayor, City of Kaysville, 23 East Center Street, Kaysville, UT 84037. City of North Salt Lake City Maps are available for inspection at 20 South Highway 89, North Salt Lake City, UT 84054. Send comments to the Honorable Duke Dixon, Mayor, City of North Salt Lake, P.O. Box 540208, North Salt Lake City, UT 84054. City of West Bountiful Maps are available for inspection at 550 North 800 West, West Bountiful, UT 84087. Send comments to the Honorable Carl Martin, Mayor, City of West Bountiful, 550 North 800 West, West Bountiful, UT 84087. City of West Point Maps are available for inspection at 3200 West 300 North, West Point, UT 84015. Send comments to the Honorable John Petroff Jr. Mayor, City of West Point, 3200 West 300 North, West Point, UT 84015. City of Woods Cross Maps are available for inspection at 1555 South 800 West, Woods Cross, UT 84087. Send comments to the Honorable Jerry Larrabee, Mayor, City of Woods Cross, 1555 South 800 West, Woods Cross, UT 84087. Unincorporated Areas of Davis County Maps are available for inspection at 28 East State Street, Farmington, UT 84025. Send comments to the Honorable Dannie McConkie, Chairman, Davis County, Davis County Memorial Courthouse, Farmington, UT 84025. # Depth in feet above ground. +North American Vertical Datum. * National Geodetic Vertical Datum. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: July 24, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. E6-12909 Filed 8-8-06; 8:45 am] BILLING CODE 9110-12-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [CC Docket No. 01-92, DA 06-1510] Missoula Intercarrier Compensation Reform Plan AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: This document seeks comment on an intercarrier compensation reform plan, the “Missoula Plan,” filed by the National Association of Regulatory Utility Commissioners' Task Force on Intercarrier Compensation (the NARUC Task Force). According to its supporters, the Missoula Plan would unify intercarrier charges for the majority of lines and move intercarrier rates charged for all traffic closer together. DATES: Submit comments on or before September 25, 2006. Submit reply comments on or before November 9, 2006. ADDRESSES: You may submit comments, identified by CC Docket No. 01-92, by any of the following methods: • *Federal eRulemaking Portal:* *http://www.regulations.gov* . Follow the instructions for submitting comments. • *Agency Web Site:* *http://www.fcc.gov* . Follow the instructions for submitting comments on the Electronic Comment Filing System
(ECFS)*http://www.fcc.gov/cgb/ecfs/* . • *E-mail:* To *victoria.goldberg@fcc.gov* . Include CC Docket 01-92 in the subject line of the message. • *Fax:* To the attention of Victoria Goldberg at 202-418-1587. Include CC Docket 01-92 on the cover page. • *Mail:* All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send a copy of their filings to Victoria Goldberg, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC 20554. • *Hand Delivery/Courier:* The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. —The filing hours at this location are 8 a.m. to 7 p.m. —All hand deliveries must be held together with rubber bands or fasteners. —Any envelopes must be disposed of before entering the building. —Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. *Instructions:* All submissions received must include the agency name and docket number. All comments received will be posted without change to *http://www.fcc.gov/cgb/ecfs/* , including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Comment Filing Procedures” heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Jennifer McKee, Wireline Competition Bureau, Pricing Policy Division,
(202)418-1530, or Victoria Goldberg, Wireline Competition Bureau, Pricing Policy Division,
(202)418-7353. SUPPLEMENTARY INFORMATION: By this Public Notice, the Commission seeks comment on the Missoula Plan, an intercarrier compensation reform plan filed July 24, 2006 by the NARUC Task Force. The Missoula Plan is the product of a 3-year process of industry negotiations led by NARUC. Supporters of the plan include AT&T, BellSouth Corp., Cingular Wireless, Global Crossing, Level 3 Communications, and 336 members of the Rural Alliance, among others. According to its supporters, the Missoula Plan “unifies intercarrier charges for the majority of lines, and moves all intercarrier rates charged for all traffic closer together.” Its supporters maintain that adoption of the Missoula Plan would represent a major step forward in intercarrier compensation reform. Interested parties may file comments on or before September 25, 2006, and reply comments on or before November 9, 2006. Comments may be filed using the Commission's Electronic Comment Filing System
(ECFS)or by filing paper copies. Comments filed through the ECFS can be sent as an electronic file via the Internet to *http://www.fcc.gov/cgb/ecfs/* . Generally, only one copy of an electronic submission must be filed. If multiple docket or rulemaking numbers appear in the caption of the proceeding, commenters must transmit one electronic copy of the comments to each docket or rulemaking number referenced in the caption. In completing the transmittal screen, commenters should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number, in this case, CC Docket No. 01-92. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions for e-mail comments, commenters should send an e-mail to *ecfs@fcc.gov* , and should include the following words in the body of the message, “get form.” A sample form and directions will be sent in reply. Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, commenters must submit two additional copies for each additional docket or rulemaking number. Paper filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). Parties are strongly encouraged to file comments electronically using the Commission's ECFS. The Commission's contractor, Natek, Inc., will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. —The filing hours at this location are 8 a.m. to 7 p.m. —All hand deliveries must be held together with rubber bands or fasteners. —Any envelopes must be disposed of before entering the building. —Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. —U.S. Postal Service first-class mail, Express Mail, and Priority Mail should be addressed to 445 12th Street, SW., Washington, DC 20554. All filings must be addressed to the Commission's Secretary, Marlene H. Dortch, Office of the Secretary, Federal Communications Commission, 445 12th Street, SW., Washington, DC 20554. Parties should also send a copy of their filings to Victoria Goldberg, Pricing Policy Division, Wireline Competition Bureau, Federal Communications Commission, Room 5-A266, 445 12th Street, SW., Washington, DC 20554, or by e-mail to *Victoria.Goldberg@fcc.gov* . Parties shall also serve one copy with the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI), Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554,
(202)488-5300, or via e-mail to *fcc@bcpiweb.com* . Documents in CC Docket No. 01-92 will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, 445 12th St. SW., Room CY-A257, Washington, DC 20554. The documents may also be purchased from BCPI, telephone
(202)488-5300, facsimile
(202)488-5563, TTY
(202)488-5562, e-mail *fcc@bcpiweb.com* . To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). This matter shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's *ex parte* rules. 47 CFR 1.1200 *et seq.* Persons making oral *ex parte* presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented generally is required. 47 CFR 1.1206(b)(2). Other requirements pertaining to oral and written presentations are set forth in section 1.1206(b) of the Commission's rules. 47 CFR 1.1206(b). Authority: 47 U.S.C. 152, 153, 154, 155. Federal Communications Commission. Julie A. Veach, Acting Chief, Wireline Competition Bureau. [FR Doc. E6-12854 Filed 8-8-06; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No 06-121; MB Docket No 02-277; FCC 06-93] 2006 Quadrennial Regulatory Review; 2002 Biennial Regulatory Review—Review of the Commission's Broadcast Ownership Rules AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document the Commission seeks comment on how to address issues raised by the U.S. Court of Appeals for the Third Circuit with respect to rules, as adopted or revised in the 2002 Biennial Review of the Commission's broadcast ownership rules. Concurrently, the next quadrennial review of the broadcast ownership rules is initiated as required by section 202(h) of the Telecommunications Act of 1996. DATES: The Commission must receive comments on or before September 22, 2006, and reply comments on or before November 21, 2006. ADDRESSES: You may submit comments, identified by MB Docket No 06-121 and/or MB Docket No 06-277, by any of the following methods: • Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. • Federal Communications Commission's Web Site: * http:// www.fcc.gov/cgb/ecfs/. * Follow the instructions for submitting comments. • E-mail: *ecfs@fcc.gov.* Include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • Mail: Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554. • People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Mania Baghdadi, Industry Analysis Division, Media Bureau, Federal Communications Commission,
(202)418-2330. Press inquiries should be directed to Rebecca Fisher,
(202)418-2359, TTY:
(202)418-7365 or
(888)835-5322. SUPPLEMENTARY INFORMATION: Pursuant to Sec. 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. All filings related to this Further Notice of Proposed Rule Making should refer to MB Docket No. 06-121 and/or MB Docket No. 02-277. Comments may be filed using:
(1)The Commission's Electronic Comment Filing System (ECFS),
(2)the Federal Government's eRulemaking Portal, or
(3)by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). The public may view a full copy of this document at *http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-93A1.doc.* *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov.* Filers should follow the instructions provided on the website for submitting comments. For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). *Initial Paperwork Reduction Act Analysis.* This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any proposed new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). However, depending on the rules adopted as a result of this Further Notice of Proposed Rule Making, the Report and Order (R&O) ultimately adopted in this proceeding may contain information collections. The Commission will provide a period for public comment on any PRA burdens contained in the R&O and will submit such burdens to the Office of Management and Budget for approval when the R&O is adopted and released. I. Introduction 1. With this Further Notice of Proposed Rule Making (“FNPRM”), MB Docket No. 06-121, MB Docket No. 02-277, FCC 06-93, released July 24, 2006, the Commission seeks comment on how to address issues raised by the U.S. Court of Appeals for the Third Circuit with respect to the rules as adopted or revised in the 2002 Biennial Review of the Commission's broadcast ownership rules. Section 202(h) of the Telecommunications Act of 1996 (“1996 Act”) requires the Commission to periodically review its media ownership rules to determine “whether any of such rules are necessary in the public interest as the result of competition” and to “repeal or modify any regulation it determines to be no longer in the public interest.” On June 2, 2003, the Commission adopted a Report and Order in its third biennial review of its broadcast ownership rules (“2002 Biennial Review Order”) 68 FR 46286 (August 5, 2003). The 2002 Biennial Review Order addressed all six of the Commission's broadcast ownership rules: the national television multiple ownership rule; the local television multiple ownership rule; the radio-television cross-ownership rule; the dual network rule; the local radio ownership rule; and the newspaper/broadcast cross-ownership rule. In the 2002 Biennial Review Order, the Commission concluded that neither the newspaper/broadcast cross-ownership rule nor the radio/television cross-ownership rule remained necessary in the public interest. Accordingly, it replaced those rules with new cross-ownership regulations called the Cross Media Limits (“CML”). The Commission also revised its market definition and the way it counts stations for purposes of the local radio ownership rule, revised the local television multiple ownership rule, modified the national television ownership cap, and retained the dual network rule. Several parties sought appellate review of various aspects of the 2002 Biennial Review Order; others filed petitions for reconsideration. The court challenges were consolidated into a single proceeding, and on June 23, 2004, the U.S. Court of Appeals for the Third Circuit issued its decision on review of the 2002 Biennial Review Order, affirming some Commission decisions and remanding others for further Commission justification or modification. (the “ *Prometheus* decision”). 2. In this FNPRM, we discuss each rule that was remanded individually and invite comment on how we should address the issues remanded by the U.S. Court of Appeals for the Third Circuit. We encourage commenters to buttress their arguments with current empirical evidence and sound economic theory. Concurrently, this FNPRM initiates the next review of the media ownership rules as required by section 202(h). II. Discussion 3. In the 2002 Biennial Review Order, the Commission determined that its longstanding goals of competition, diversity, and localism would continue to guide its actions in regulating media ownership. These policy objectives also will guide our actions on remand. In addition to the other requests for comment discussed below, we ask that commenters address whether our goals would be better addressed by employing an alternative regulatory scheme or set of rules. 4. The *Prometheus* court noted that the Commission deferred consideration of certain proposals for advancing ownership by minorities. We therefore seek comment on the proposals to foster minority ownership advanced by Minority Media and Telecommunications Council in its filings in the 2002 biennial review proceeding, including those that were listed in the 2002 Biennial Review Order and referenced by the court. Are any of these proposals effective and practical ways to increase minority ownership? If so, how could they best be implemented? Do we have the statutory authority to adopt them? Are there any constitutional impediments to adoption? Are there any other alternatives that we should consider that would be more effective and/or would avoid any statutory or constitutional impediments? 5. More generally, we urge commenters to explain the effects, if any, that their ownership rule proposals will have on ownership of broadcast outlets by minorities, women and small businesses. We also urge commenters to discuss the potential effects, if any, of the broadcast ownership rules currently in effect, and any changes proposed in this proceeding on advertising markets, the ability of independent stations to compete, the availability of family-friendly and children's programming, the amount of indecent and/or violent content broadcast over-the-air, and the availability of independent programming. 6. The Commission has a long-standing policy to foster broadcast “localism,” which it has defined as the airing of “programming that is responsive to the needs and interests of their communities of license.” In its 2002 Biennial Review, the Commission invited comment on the extent to which its broadcast ownership rules were necessary to foster localism. Subsequently, the Commission established its Localism Task Force (“Task Force”) to study the issue of localism and advise the Commission on whether any new rules or policies were required to promote it. In addition, the Commission issued a Notice of Inquiry, 19 FCC Rcd 12425 (not published in the Federal Registrar) seeking comment from the public on how broadcasters are serving the interests and needs of their communities, whether the Commission needs to adopt new policies, practices, or rules designed to promote localism in broadcast television and radio; and what those policies, practices, or rules should be. The record compiled in the localism docket, MB Docket No. 04-233, is extensive. The Media Bureau will compile a summary of the comments in the localism proceeding and submit it into this docket. The Commission will consider the evidence received in MB Docket No. 04-233 as it moves forward with this rulemaking. 7. Finally, we note that the media marketplace continues to evolve. We seek comment on the impact of new technologies and providers such as digital video recorders, video-on-demand, and the availability of television programming and music on the Internet on media consumption and ownership issues. A. Local TV Ownership Rule 8. The Commission's local TV ownership rule, as currently in effect, provides that an entity may own two television stations in the same designated market area (“DMA”) if:
(1)The Grade B contours of the stations do not overlap; or
(2)at least one of the stations in the combination is not ranked among the top four stations in terms of audience share, and at least eight independently owned and operating commercial or non-commercial full-power broadcast television stations would remain in the DMA after the combination. 9. In the 2002 Biennial Review, the Commission revised the local TV ownership rule to permit an entity to own up to two television stations in markets with 17 or fewer television stations, and up to three television stations in markets with 18 or more television stations. The Commission retained the prohibition on combinations involving more than one station ranked among the top four in the market, thus prohibiting combinations in markets with four or fewer television stations. The Commission also eliminated consideration of overlapping Grade B contours, and decided to look instead only at whether a station is assigned by Nielsen to a DMA. All full-power commercial and non-commercial television stations within the DMA would be counted for purposes of applying the rule. The 2002 Biennial Review Order also modified the Commission's criteria for waiver of the local TV ownership rule. 10. On review, the *Prometheus* court, remanded the numerical limits of the new rule for further justification. The court upheld the Commission's decision to retain the top four-ranked station restriction. The court also remanded for further consideration the Commission's elimination of the requirement to demonstrate that no out-of-market buyer is reasonably available when seeking a failed, failing, or unbuilt television station waiver. 11. We invite comment on all of the issues remanded by the *Prometheus* court regarding the local TV ownership rule. Should the limits on the number of stations that can be commonly owned adopted in the 2002 Biennial Review Order be revised, or is there additional evidence or analysis upon which the Commission can rely to further justify the limits it adopted? How should we address the court's concern that the revised numerical limits allow concentration to exceed the 1800 HHI benchmark relied upon by the Commission in setting the limits? Is there additional evidence to support the Commission's decision to treat capacity as an important factor in measuring the competitive structure of television markets? Is there evidence to support fluidity of television station market shares? Should the limits vary depending on the size of the market? How would any changes impact the need for the top four-ranked restriction? 12. We also invite comment on the court's remand of the elimination of the requirement that waiver applicants demonstrate that there is no reasonably available out-of-market buyer. Should we reinstate this requirement? Is it unduly burdensome? Are there less burdensome means of ensuring that unnecessary concentration of ownership does not occur? Has the requirement had an effect on minority and/or female ownership of broadcast stations? B. Local Radio Ownership Rule 13. In the 2002 Biennial Review Order, the Commission retained the local radio numerical limits and the AM/FM service caps that Congress adopted in the 1996 Act. The Commission modified the definition of a local radio market by replacing the contour-overlap approach with an Arbitron Metro market definition, where Arbitron markets exist. The Commission initiated a rulemaking proceeding, (MB Docket No. 03-130), to seek comment on how to define local radio markets in geographic areas that are not defined by Arbitron. In addition, the Commission decided to include non-commercial stations when determining the number of radio stations in a market for purposes of the ownership rules. 14. The *Prometheus* court concluded that the Commission's decision “to replace contour-overlap methodology with Arbitron radio metro markets was ‘in the public interest’ within the meaning of 202(h)” and that the decision was “a rational exercise of rulemaking authority.” The court also upheld the Commission's attribution of JSAs. The court further held that the Commission had justified its decisions to count noncommercial stations in defining the size of a market and to restrict the transfer of grandfathered combinations except to certain eligible entities. The court remanded the Commission's decision to retain the existing specific local radio ownership limits. The court held that the limits were unsupported by the Commission's rationale that they ensure five equal-sized competitors in most markets. The court further faulted the Commission for not explaining why it could not take actual market share into account when deriving the numerical limits. Finally, the court held that the Commission did not support its decision to retain the AM subcaps. 15. We invite comment on the issues remanded by the *Prometheus* court with respect to the local radio ownership limits. In order to address the court's concerns, should the numerical limits be revised, or is there additional evidence that could be used to further justify the limits? If the Commission should revise the limits, what revisions are appropriate? Should we create additional tiers? How should the Commission address the court's concern that the limits adopted do not account for actual market share? Should the rule still seek to ensure a specific number of competitors in a market, and, if so, what is the appropriate benchmark for that number? Finally, should we retain the AM/FM subcaps? Lastly, we seek comment on whether the local radio ownership rule currently in effect is necessary in the public interest as a result of competition. C. Cross-Media Limits 16. In the 2002 Biennial Review Order, the Commission concluded that neither the newspaper/broadcast cross-ownership rule nor the radio/television cross-ownership rule was necessary in the public interest as the result of competition. The Commission replaced these rules with a single set of cross-media limits. To determine the availability of media outlets in markets of various sizes, the Commission developed a Diversity Index (the “DI”), which it used to analyze and measure the availability of outlets that contribute to viewpoint diversity in local media markets. 17. The *Prometheus* court affirmed the Commission's decision to eliminate the newspaper/broadcast cross-ownership rule. The court concluded, however, that the specific limits selected by the Commission were not supported by reasoned analysis, and remanded the CML to the Commission for further justification or modification. The court also remanded for further consideration the Commission's decision to assign all outlets within the same media type equal market shares in constructing the DI. 18. We invite comment on all of the issues remanded by the *Prometheus* court regarding cross-ownership. Many of these issues relate to the DI. In light of the court's extensive and detailed criticism of the DI, we tentatively conclude that the DI is an inaccurate tool for measuring diversity. Moreover, we recognize that some aspects of diversity may be difficult to quantify. To the extent that we will not use the DI to justify changes to the existing cross-ownership rules, we seek comment on how we should approach cross-ownership limits. Should limits vary depending upon the characteristics of local markets? If so, what characteristics should be considered, and how should they be factored into any limits? We seek comment on the newspaper/broadcast cross-ownership rule and the radio/television cross-ownership rule. Are there aspects of television and radio broadcast operations that make cross-ownership with a newspaper different for each of these media? If so, should limits on newspaper/radio combinations be different from limits on newspaper/television combinations? Lastly, are the newspaper/broadcast cross-ownership rule and the radio/television cross-ownership rule necessary in the public interest as a result of competition? D. Dual Network Rule 19. The Commission's dual network rule provides “A television broadcast station may affiliate with a person or entity that maintains two or more networks of television broadcast stations unless such dual or multiple networks are composed of two or more persons or entities that, on February 8, 1996, were ‘networks’ as defined in Section 73.3613(a)(1) of the Commission's regulations” (that is, ABC, CBS, Fox, and NBC). In the 2002 Biennial Review Order, the Commission determined that the dual network rule was necessary in the public interest to promote competition and localism and retained the rule. The Petitioners in *Prometheus* did not appeal the Commission's retention of the rule. We seek comment on whether the dual network rule remains necessary in the public interest as a result of competition. E. UHF Discount 20. In *Prometheus* , the Third Circuit held that challenges to the Commission's national television ownership rule were moot following Congressional action that set the national cap at 39 percent. In so doing, the court also addressed the Commission's UHF discount rule, which we have used in calculating a UHF station's audience reach under the national TV cap. The court stated that the UHF discount rule “is insulated from this and future periodic review requirements” and yet also noted that the “Commission is now considering its authority going forward to modify or eliminate the discount and recently took public comment on the issue.” The court then concluded that that Commission may decide the scope of our authority to modify or eliminate the UHF discount outside of the mandate of section 202(h) of the 1996 Act. 21. We seek comment on whether the court's holding on the UHF discount rule was ambiguous. We seek comment on whether the Commission should retain, modify, or eliminate the UHF discount. Commenters who urge us to modify or eliminate the UHF discount rule should discuss the basis for our authority to take such action. III. Petitions for Reconsideration 22. A number of parties filed petitions for reconsideration of the 2002 Biennial Review Order. These petitions, opposing pleadings, and replies are listed in Appendix A. The petitions have already been the subject of public notice and comment during their own pleading cycle. Parties who wish to refresh the record concerning the petitions may do so in their comments filed in response to this FNPRM. IV. Procedural Matters A. *Initial Regulatory Flexibility Analysis* . As required by the Regulatory Flexibility Act, 5 U.S.C. 603, the Commission prepared an Initial Regulatory Flexibility Analysis
(IRFA)in the initial Notice of Proposed Rulemaking, 67 FR 65751 (October 28, 2002), in this proceeding. For the FNPRM, a Supplemental IRFA has been prepared and set forth in Appendix B. Written public comments are requested on the Supplemental IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the FNPRM and should have a separate and distinct heading designating them as responses to the Supplemental IRFA. B. *Ex Parte Rules* . This is a permit-but-disclose notice and comment rulemaking proceeding. Ex parte presentations are permitted, except during the Sunshine Agenda period, provided that they are disclosed as provided in the Commission's Rules. See generally 47 CFR 1.1202, 1.1203, 1.1206(a). V. Ordering Clauses 33. Accordingly, *it is ordered* , that pursuant to authority contained in sections 1, 2(a), 4(i), 303, 307, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, and 310, and section 202(h) of the Telecommunications Act of 1996, this Further Notice of Proposed Rulemaking *is adopted* . 34. *It is further ordered* that, pursuant to the authority contained in sections 1, 2(a), 4(i), 303, 307, 309, and 310 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), 303, 307, 309, and 310, and section 202(h) of the Telecommunications Act of 1996, *notice is hereby given* of the proposals described in this Further Notice of Proposed Rulemaking. 35. *It is furthered order* that MB Docket 03-130 SHALL BE severed from this proceeding. 36. *It is further ordered* that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, *shall send* a copy of this Further Notice of Proposed Rulemaking, including the Supplemental Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E6-12856 Filed 8-8-06; 8:45 am] BILLING CODE 6712-01-P 71 153 Wednesday, August 9, 2006 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request August 4, 2006. The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments regarding
(a)whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information to be collected;
(d)ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), *OIRA_Submission@OMB.EOP.GOV* or fax
(202)395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Comments regarding these information collections are best assured of having their full effect if received within 30 days of this notification. Copies of the submission(s) may be obtained by calling
(202)720-8681. An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number. Forest Service *Title:* Forest Service Ride-Along Program Application. *OMB Control Number:* 0596-0170. *Summary of Collection:* The Forest Service
(FS)ride-along program allows the general public or other interested person to accompany agency law enforcement personnel as they conduct their normal field duties, including access to and discussions about agency law enforcement vehicles, procedures, and facilities. The program provides an opportunity for officers to enhance the public's understanding and support of the agency program and to increase agency understanding of public and community concerns. The program also aids the agency's recruitment program by allowing interested persons to observe a potential career choice or to participate in innovative intern-type programs, and by allowing the agency to showcase the quality of its program and services. *Need and Use of the Information:* Information will be collected from any person who voluntarily approaches the FS and wishes to participate in the program. The FS 5300-33 program application form will be used to conduct a minimal background check and the FS 5300-34 is a liability waiver form that requires the applicant's signature and their written assurance that they have read and understood the form. The information collected from the forms will be used by FS and, in appropriate part, by any person or entity needed and authorized by the FS to provide the needed background information (primarily applicable local law enforcement agencies, state criminal justice agencies maintaining state justice records, and by the FBI). If the information is not collected, the program could not operate. *Description of Respondents:* Individuals or households; Federal Government; State, Local or Tribal Government. *Number of Respondents:* 100. *Frequency of Responses:* Reporting: Other (per applicant). *Total Burden Hours:* 16. Charlene Parker, Departmental Information Collection Clearance Officer. [FR Doc. E6-12955 Filed 8-8-06; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Commodity Credit Corporation Information Collection; Rate Quotation for Transportation Services AGENCY: Commodity Credit Corporation (CCC), USDA. ACTION: Notice; request for comments. SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (PRA), the Commodity Credit Corporation is seeking comments from all interested individuals and organizations on the extension with revision of a currently approved information collection associated with Rate Quotation for Transportation Services. The CCC is collecting freight rate quotes from the participating Motor Carriers and Intermodal Marketing Companies who transport agricultural products for the Department of Agriculture and using the collected freight rate quotes to establish the lowest cost of movement to meet the transportation needs of CCC. DATES: Comments on this notice must be received on or before October 10, 2006. ADDRESSES: Comments concerning this notice should be addressed to Khristy Baughman, Chief, Planning and Analysis Division, Kansas City Commodity Office, 6501 Beacon Drive, Kansas City, Missouri 64133-4676. Comments also may be submitted by fax to:
(816)926-1648; or by e-mail to: *Khristy.baughman@kcc.usda.gov.* Comments should also be sent to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503. FOR FURTHER INFORMATION CONTACT: Khristy Baughman, Chief of Planning and Analysis Division,
(816)926-6509, or by e-mail to: *Khristy.baughman@kcc.usda.gov.* SUPPLEMENTARY INFORMATION: *Title:* Rate Quotation for Transportation Services. *OMB Control Number:* 0560-0235. *Type of Request:* Revision and extension of a currently approved collection. *Abstract:* Motor Carriers provide over the road trucking, and Intermodal Marketing Companies
(IMCs)provide rail trailer-on-flatcar/container-on-flatcar (TOFC/COFC) service that CCC at the Kansas City Commodity Office
(KCCO)hires to meet program transportation needs for the agricultural commodities. Motor Carriers and IMCs are required to complete and submit the KC-5, Rate Quotation for Transportation Services form. The CCC is collecting freight rate quotes to establish the lowest cost of movement to meet transportation needs of U.S. Department of Agriculture. CCC must ensure that Motor Carriers and IMCs providing the transportation service have both the willingness and the capacity to meet these needs. *Estimate of Annual Burden:* Public reporting burden for collecting information under this notice is estimated to average 15 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. *Type of Respondents:* Motor Carriers and Intermodal Marketing companies. *Estimated Number of Respondents:* 164. *Estimated Number of Annual Responses per Respondent:* 41. *Estimated Total Annual Burden on Respondents:* 1,681 hours. *Comments are invited on:*
(a)Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b)the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used;
(c)ways to enhance the quality, utility and clarity of the information collected; or
(d)ways to minimize the burden of the collection of the information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All comments received response to this notice, including names and addresses when provided, will be summarized and included in the request for OMB approval. All comments will also become a matter of public record. Signed at Washington, DC, on August 3, 2006. Teresa C. Lasseter, Executive Vice President, Commodity Credit Corporation. [FR Doc. E6-12958 Filed 8-8-06; 8:45 am] BILLING CODE 3410-05-P DEPARTMENT OF AGRICULTURE Forest Service Intermountain Region, Boise, Payette, and Sawtooth National Forests; Supplement to the Environmental Impact Statement for the Revised Land and Resource Management Plan Environmental Impact Statement AGENCY: Forest Service, USDA. ACTION: Notice of intent to supplement an environmental impact statement. SUMMARY: The Forest Service will prepare a supplement to the final environmental impact statement
(EIS)for the Southwest Idaho Ecogroup Revised Land and Resource Management Plan EIS to present additional information concerning terrestrial Management Indicator Species (MIS). DATES: Comments concerning the scope of the analysis must be received 45 days after publication of the draft supplement to the Southwest Idaho Ecogroup Revised Land and Resource Management Plan (SWIEG FLRMP) EIS. The draft supplement to the SWIEG FLRMP EIS is expected December 2006 and the final supplement is expected March 2007. ADDRESSES: Send written comments to Sharon LaBrecque, Planning, GIS and Vegetation Staff Officer, Sawtooth National Forest; 2647 Kimberly Road East, Twin Falls, Idaho 83301; or via telephone at
(208)737-3200; or you may hand-deliver your comments to the Sawtooth Forest Supervisor's Officer, located at 2647 Kimberly Road East, Twin Falls, during normal business hours from 8 a.m. to 5 p.m., Monday through Friday, excluding Federal holidays. Electronic comments must be submitted in a format such as an e-mail message, plain text (.txt), rich text format (.rtf), and Word (.doc) to: *comments-intermtn-sawtooth@fs.fed.us.* FOR FURTHER INFORMATION CONTACT: Sharon LaBrecque, GIS and Vegetation Staff Officer, Sawtooth National Forest at the address above. SUPPLEMENTARY INFORMATION: The Forest Service is proposing to prepare a supplement to the final environmental impact statement for the SWIEG FLRMP. In accordance with FSH 1909.15—Chapter 10—Section 18, the 2003 SWIEG FLRMP Final EIS has been reviewed. The Forest Service will prepare a supplement to the Final EIS by analyzing and presenting additional information concerning terrestrial management Indicator Species
(MIS)specific to the 1982 regulations at 36 CFR 219.20. The scope and analysis of the proposed supplement to the Final EIS will be limited to the requirements for MIS analysis in 36 CFR 219.20. The original Notice of Intent for revision of the SWIEG FLRMP EIS was published in the **Federal Register** Vol. 63, No. 79, April 24, 1998. In July, 2003, a separate Record of Decision
(ROD)was issued for each of the three SWIEG Forests (Boise, Payette, and Sawtooth) which implemented Alternative 7 as described in their respective ROD. All three RODs were appealed in 2004. The Appeal Deciding Officer affirmed each ROD on March 9, 2005. Purpose and Need for Action The supplement will not change the purpose and need which was described in the SWIEG FLRMP Final EIS on pages 1-4 through 1-8. The scope of the supplement is only to provide additional analysis regarding terrestrial MIS. Proposed Action The supplement will not change the proposed action which was described in the SWIEG FLRMP Final EIS on pages 1-1 through 1-3. The scope of the supplement is only to provide additional analysis in accordance with 36 CFR 219.20 regarding terrestrial MIS. Responsible Official The Responsible Official is Jack Troyer, Intermountain Regional Forester, USDA—Forest Service; 324 25th Street; Ogden, UT 84401. Nature of Decision To Be Made The Responsible Official will review the supplement and determine if the 2003 Records of Decision for the Boise, Payette, and Sawtooth National Forests, based on the SWIEG FLRMP Final EIS, should be modified or if the original decisions are to remain in effect and unchanged. Scoping Process Extensive public involvement has occurred on this project over the last ten years in the form of news releases, field tours, and public meetings. No additional scoping is planned for this supplement. Comment Requested A legal notice will be published in the newspaper of record and a Notice of Availability will be published in the **Federal Register** to inform the public when the supplement to the SWIEG FLRMP EIS is availale for review and comment. The draft supplement to the SWIEG FLRMP EIS will be distributed to all parties that received the 2003 SWIEG FLRMP Final EIS and Record of Decision and to those parties that filed an appeal of the 2003 decision. *Early Notice of Importance of Public Participation in Subsequent Environmental Review:* A draft supplement to the SWIEG FLRMP EIS will be prepared for comment. The comment period on the draft supplement to teh SWIEG FLRMP EIS will be 45 days from the date the Environmental Protection Agency publishes the notice of availability in the **Federal Register.** The Forest Service believes, at this early stage, it is important to give reviewers notice of several court rulings related to public participation in the environmental review process. First, reviewers of the draft supplement must structure their participation in the environmental reivew of the proposal so that it is meaningful and alerts an agency to the reviewer's position and contentions. *Vermont Yankee Nuclear Power Corp.* v. *NRDC,* 435 U.S. 519, 553 (1978). Also, environmental objections that could be raised at the draft supplement stage but that are not raised until after completion of the final supplement may be waived or dismissed by the courts. *City of Angoon* v. *Hodel,* 803 F.2d 1016, 1022 (9th Cir. 1986) and *Wisconsin Heritages, Inc.* v. *Harris,* 490 F. Supp. 1334, 1338 (E.D. Wis. 1980). Because of these court rulings, it is very important that those interested in this proposed action participate by the close of the 45-day comment period so that substantive comments and objections are made available to the Forest Service at a time when it can meaningfully consider them and respond to them in the final supplement to the SWIEG FLRMP EIS. To assist the Forest Service it is helpful if comments refer to specific pages or chapters of the draft supplement. Reviewers may wish to refer to the Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act at 40 CFR 1503.3 in addressing these points. Comments received, including the names and addresses of those who comment, will be considered part of the public record on this proposal and will be available for public inspection. (Authority: 40 CFR 1501.7 and 1508.22; Forest Service Handbook 1909.15, Section 21) Dated: August 3, 2006. Sharon LaBrecque, Planning, GIS and Vegetation Staff Officer, Sawtooth National Forest. [FR Doc. 06-6788 Filed 8-8-06; 8:45 am]
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  • 47 CFR 73
  • 49 CFR 572
  • 49 CFR 1.50
  • 49 CFR 501.8
  • 50 CFR 622
  • 50 CFR 622.38
  • 50 CFR 635.21(c)(5)(i)
  • 50 CFR 635.21(a)(3)
  • 50 CFR 635
  • 50 CFR 635.21(c)(5)(i)(E)
  • 50 CFR 635.21(c)(5)(i)(F)
  • 50 CFR 635.21(c)(5)(i)(A)
  • 50 CFR 635.21(c)(5)(i)(B)
  • 50 CFR 635.21(c)(5)(i)(G)
  • 5 CFR 1653
  • Pub. L. 99-335
  • 9 CFR 3
  • 7 USC 2131-2159
  • 7 CFR 2.22
  • 9 CFR 71
  • 9 CFR 93
  • 9 CFR 94
  • 9 CFR 95
  • 7 USC 8301-8317
  • 9 CFR 98
  • 9 CFR 79
  • 9 CFR 54
  • 14 CFR 39
  • 26 CFR 1
  • Pub. L. 97-473
  • 96 Stat. 2605
  • Pub. L. 100-203
  • 101 Stat. 1330
  • 32 CFR 537
  • 5 USC 601-612
  • 31 USC 3711-3720E
  • 42 USC 2651-2653
  • 10 USC 4803-4804
  • Pub. L. 97-365
  • 96 Stat. 1749
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Stat.Public Law 99–334
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U.S.C.§ 401
F. App'x524 F.2d 799
F. App'x460 F.2d 17
SCOTUS409 U.S. 979
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