Proposed Rules. Supplemental notice of proposed rulemaking (NPRM); reopening of comment period
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BILLING CODE 3510-22-S 71 175 Monday, September 11, 2006 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-24289; Directorate Identifier 2005-NM-186-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A300 Airplanes; A300 B4-600, B4-600R, and F4-600R Series Airplanes, and Model A300 C4-605R Variant F Airplanes (Collectively Called A300-600 Series Airplanes); and A310 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: The FAA is revising an earlier NPRM for an airworthiness directive
(AD)that applies to all Airbus airplanes identified above. The original NPRM would have required improving the routing of certain electrical wire bundles in certain airplane zones, as applicable to the airplane model. The original NPRM resulted from fuel system reviews conducted by the manufacturer. This action revises the original NPRM by removing certain requirements, extending the compliance time for a certain replacement, and specifies that the actions in this proposed AD are considered interim action until a terminating action for the removed requirements is approved and available. We are proposing this supplemental NPRM to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. DATES: We must receive comments on this supplemental NPRM by October 6, 2006. ADDRESSES: Use one of the following addresses to submit comments on this supplemental NPRM. • *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 Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Thomas Stafford, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone
(425)227-1622; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this supplemental NPRM. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2006-24289; Directorate Identifier 2005-NM-186-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments. We will post all comments submitted, 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 supplemental NPRM. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or 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 in the Nassif Building at the DOT street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We proposed to amend 14 CFR part 39 with a notice of proposed rulemaking
(NPRM)for an airworthiness directive
(AD)(the “original NPRM”). The original NPRM applies to all Airbus Model A300 B2 and A300 B4 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called A300-600 series airplanes); and A310-200 and -300 series airplanes. The original NPRM was published in the **Federal Register** on April 4, 2006 (71 FR 16716). The original NPRM proposed to require improving the routing of certain electrical wire bundles in certain airplane zones, as applicable to the airplane model. Since the original NPRM was issued, the European Aviation Safety Agency
(EASA)has superseded French airworthiness directive F-2005-112 R1, dated September 14, 2005, which was referenced as the parallel airworthiness directive for the actions in the original NPRM. EASA airworthiness directive 2006-0074, dated April 3, 2006, removes Actions 1 and 2 and specifies that a new EASA airworthiness directive is planned in the future to mandate the embodiment of certain new service information that will render Actions 1 and 2 null and void. Actions 1 and 2 were: • *Action 1* —Install a heat-shrinkable sleeve along the complete length of the electrical supply bundle of the fuel pumps. These electrical supply bundles are located in metallic protective conduits in zones 571 and 671. • *Action 2* —Install a heat-shrinkable sleeve along the complete length of the electrical supply bundle of the fuel pumps. These electrical supply bundles are located in metallic protective conduits in zones 575 and 675. In this supplemental NPRM, we have removed the service bulletins that were referenced as the appropriate sources of service information for doing Actions 1 and 2 in the original NPRM. The service bulletins are described in the following table. Airbus Service Bulletins Removed in This Supplemental NPRM Airbus service bulletin Revision level Date A300-28-0057 02 January 8, 2001. A300-28-6018 1 September 15, 1988. A300-28-0070 01 March 18, 1999. A300-28-6048 Original September 19, 1996. A310-28-2112 Original September 19, 1996. We have also removed Airbus Service Bulletins A300-28-6010, Revision 1, dated September 17, 1986; and A310-28-2008, Revision 2, dated May 14, 1990; which were referenced in the original NPRM as prior/concurrent service bulletins for Actions 1 and 2. We have also removed Airbus Service Bulletins A300-24-0073, Revision 04, dated June 30, 1998; and A300-24-6004, Revision 03, dated June 30, 1998; which were referenced in the original NPRM as prior/concurrent service bulletins for Action 3. Airbus has informed us that the actions in Airbus Service Bulletins A300-24-0073 and A300-24-6004 are recommended as complementary measures to improve the trailing edge electrical installation reliability, but are not required for accomplishing Action 3. However, Airbus Service Bulletin A300-24-6004 is still specified as a requirement for accomplishing Action 5. Relevant Service Information Airbus has issued the service bulletins identified in the following table. We described these service bulletins in the original NPRM. Airbus Service Bulletins Action Applicable to model— Described in Service Bulletin— 3 A300 airplanes A300-24-0085, Revision 06, dated October 13, 2005. A300-600 series airplanes A300-24-6043, Revision 06, dated October 13, 2005. 4 A300-600 series airplanes A300-28-6056, dated February 18, 1998. 5 A300-600 series airplanes A300-24-6004, Revision 03, dated June 30, 1998. A310 airplanes A310-24-2009, Revision 03, dated June 30, 1998. 6 A300 airplanes A300-24-0100, dated April 7, 2005. A300-600 series airplanes A300-24-6084, Revision 01, dated June 28, 2005. A310 airplanes A310-24-2091, dated March 4, 2005. EASA mandated the service information and issued EASA airworthiness directive EASA airworthiness directive 2006-0074, dated April 3, 2006, to ensure the continued airworthiness of these airplanes in the European Union. Comments We have considered the following comments on the original NPRM. Requests To Extend Compliance Time FedEx, and Air Transport Association (ATA), on behalf of its member American Airlines (AAL), request that we extend the compliance time. FedEx states that the proposed compliance time of 26 months after the effective date of the AD is not acceptable and states that it requires 43 months after the effective date to comply. FedEx's comment implies that the 43-month compliance time would better align with its maintenance schedule. AAL requests a 30-month compliance time to align with its maintenance schedule. The scope of the modifications is well beyond the capabilities of AAL's lower-level maintenance infrastructure. AAL is also concerned about kit availability and lead times. AAL states that the relevant reliability and service interruption data gathered since 1996 do not support the 26-month compliance time. AAL has had inspections in place for the affected area since 1996 and has had no significant findings that would indicate re-emergence of the unsafe condition specified in the original NPRM. In addition, AAL states that it has implemented mitigation techniques that are similar but less costly than those described in the referenced serviced bulletins. We disagree with the commenters. We have determined that the compliance time, as proposed, represents the maximum interval of time allowable for the affected airplanes to continue to safely operate before the modification is done. In addition, we have confirmed with the parts manufacturer that parts will be available to operators within the timeframe proposed in this supplemental NPRM. However, operators may request an Alternative Method of Compliance
(AMOC)in accordance with the procedures specified in paragraph
(l)of this supplemental NPRM. Request for Editorial Changes Airbus notes that the original NPRM should be corrected in three areas: In paragraph (h)(2), Modification 11276 should be replaced by Modification 10505; in paragraph (j)(2), Modification 478 should be replaced by Modification 6478; and in paragraph (k), the phrase “* * * with new metallic clamps * * *; or replace * * * ” should be replaced by “* * * with new metallic clamps * * * and/or replace.” We agree with Airbus. We have made the noted editorial changes in the applicable paragraphs of the supplemental NPRM. Request To Withdraw Action ATA, on behalf of AAL, notes that some of the service bulletins in the original NPRM had been released as early as 1988 without the FAA taking AD action. The commenters state that this indicates that at the time the inherent safety risk was not considered to be significant enough to warrant regulatory action. We infer that the commenters are requesting that we withdraw the supplemental NPRM because the action is not warranted. We disagree. As stated in the original NPRM, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (67 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design ( *i.e.* , type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the original NPRM, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. The Joint Aviation Authorities
(JAA)have issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference
(ECAC)representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks. The original NPRM and this supplemental NPRM follow from those rulings. As such, they may make use of service information issued previously but not mandated by AD action. Explanation of Change in Applicability We have revised the applicability to more closely match the effectivity of the EASA airworthiness directive. This change does not expand the applicability of this proposed action. Explanation of Change in Compliance Time of Paragraph
(h)Paragraph
(h)of the NPRM specifies to do the replacement “within 24 months after the effective date of this AD” and to repeat thereafter at intervals not to exceed 24 months. We have revised the compliance times in paragraph
(h)of this supplemental NPRM to specify a compliance time of “within 26 months after the effective date of this AD” and to repeat thereafter at intervals not to exceed 26 months. We have determined that extending the compliance time will not adversely affect safety and will allow operators to coordinate the replacement specified in paragraph
(h)of this supplemental NPRM with the other actions specified in this supplemental NPRM. This difference has been coordinated with the EASA. FAA's Determination and Proposed Requirements of the Supplemental NPRM The changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM. Interim Action We consider this proposed AD interim action. EASA has informed us that the manufacturer is currently developing an additional modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM. This supplemental NPRM would affect about 169 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM. The average labor rate is $80 per work hour. Estimated Costs For airplanes on which this action is required— Work hours Parts Cost per airplane Action 3, Modify the retaining and protection system 4 to 16 $836 to $1,056 $1,156 to $2,336. Action 4, Modify the electrical wiring of routes 1P and 2P 2 $720 $880. Action 5, Inspect the wire looms on the wing trailing edge 8 Operator Supplied $640. Action 6, Replace the nylon clamps of the electrical routes in the hydraulic compartment and in the shroud box 44 to 98 $100 to $5,700 $3,620 to $13,540. Based on these figures, the estimated cost of the supplemental NPRM for U.S. operators is up to $2,939,924, or up to $17,396 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM 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): **Airbus:** Docket No. FAA-2006-24289; Directorate Identifier 2005-NM-186-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by October 6, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to all Airbus Model A300 airplanes; A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, A300 F4-605R, F4-622R, and C4-605R Variant F airplanes; and A310 airplanes; certificated in any category. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. 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. Action 3—Modify the Retaining and Protection System
(f)For all airplanes identified in paragraphs (f)(1), and (f)(2) of this AD: Within 26 months after the effective date of this AD, modify the retaining and protection system for the electrical bundles located at the wing-to-fuselage junction, under the flap control screw jack.
(1)For Model A300 airplanes: Do the actions specified in paragraph
(f)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-24-0085, Revision 06, dated October 13, 2005.
(2)For Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, A300 F4-605R, F4-622R, and C4-605R Variant F airplanes, except those on which Airbus Modification 10505 has been done: Do the action specified in paragraph
(h)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-24-6043, Revision 06, dated October 13, 2005. Action 4—Modify the Electrical Wiring of Routes 1P and 2P
(g)For Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, A300 F4-605R, F4-622R, and C4-605R Variant F airplanes; except those on which Airbus Modification 11741 has been done: Within 26 months after the effective date of this AD, modify the electrical wiring of routes 1P and 2P (along the top panel of the shroud box and the rear spars of the wings) by extending the protective conduits up to the next support, and replace the two existing clamps on this support with new, improved clamps. Do all actions in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-28-6056, dated February 18, 1998. Action 5—Inspect the Wire Looms
(h)For all airplanes identified in paragraphs (h)(1) and (h)(2) of this AD: Within 26 months after the effective date of this AD, do a general visual inspection of the wire looms on the wing trailing edge for improperly held wires in the clamps, restore the electrical bundles to good condition, and replace the affected nylon clamps with metallic clamps that have an elastometer lining. Do any applicable corrective action before further flight. Repeat the inspection thereafter at intervals not to exceed 26 months until all clamps have been replaced.
(1)For Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, A300 F4-605R, F4-622R, and C4-605R Variant F airplanes; except those on which Airbus Modification 6478 has been done: Do the actions specified in paragraph
(h)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-24-6004, Revision 03, dated June 30, 1998.
(2)For Model A310 airplanes, except those on which Airbus Modification 6478 has been done: Do the actions specified in paragraph
(h)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-24-2009, Revision 03, dated June 30, 1998. Action 6—Improve the Quality of the Electrical Routes
(i)For all airplanes identified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD: Within 26 months after the effective date of this AD, replace the nylon clamps of the electrical routes in the hydraulic compartment and in the shroud box with new metallic clamps that have white silicone lining (for airplanes identified in paragraph (i)(1) of this AD); and/or replace the nylon clamps and change the location of routes 1P and 2P to improve the retention of the wiring loom (for airplanes identified in paragraphs (i)(2) and (i)(3) of this AD).
(1)For Model A300 airplanes; except those on which Airbus Modification 11763 has been done: Do the action specified in paragraph
(i)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-24-0100, dated April 7, 2005.
(2)For Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, A300 F4-605R, F4-622R, and C4-605R Variant F airplanes; except those on which Airbus Modifications 11763 and 12995 have been done: Do the action specified in paragraph
(i)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-24-6084, Revision 01, dated June 28, 2005.
(3)For Model A310 airplanes, except those on which Airbus Modification 11763 has been done: Do the action specified in paragraph
(i)of this AD in accordance with the Accomplishment Instructions of Airbus Service Bulletin A310-24-2091, dated March 4, 2005. Parts Installation
(j)After the effective date of this AD, no person may install on any airplane plate assemblies with part numbers A5351088000000 or A5351088000100 unless they have been modified in accordance with paragraph
(f)of this AD. Actions Accomplished According to Previous Revisions of Service Bulletins
(k)Actions done before the effective date of this AD in accordance with the service bulletins identified in Table 1 of this AD are acceptable for compliance with the corresponding requirements in this AD. Table 1.—Previous Revisions of Service Bulletins Airbus Service Bulletin Revision level Date A300-24-0085 Original December 12, 1994. A300-24-0085 03 January 17, 1996. A300-24-0085 04 July 23, 1996. A300-24-0085 05 March 6, 2001. A300-24-6004 1 January 28, 1988. A300-24-6004 2 February 24, 1995. A300-24-6043 Original December 12, 1994. A300-24-6043 01 February 7, 1995. A300-24-6043 02 May 10, 1995. A300-24-6043 03 January 17, 1996. A300-24-6043 04 March 6, 2001. A300-24-6043 05 August 30, 2001. A300-24-6084 Original March 4, 2005. A310-24-2009 Original May 31, 1985. A310-24-2009 1 January 28, 1988. A310-24-2009 2 February 24, 1995. Alternative Methods of Compliance (AMOCs) (l)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, 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. Related Information
(m)European Aviation Safety Agency airworthiness directive 2006-0074, dated April 3, 2006, also addresses the subject of this AD. Issued in Renton, Washington, on September 1, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-14945 Filed 9-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25779; Directorate Identifier 2006-NM-088-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. This proposed AD would require revising the Certification Maintenance Requirements and the Maintenance Review Board Report sections of the Canadair Regional Jet Maintenance Requirements Manual to include changes and additions to checks of the aileron power control units
(PCUs)and a change to the interval of the backlash check of the aileron control system. This proposed AD results from a report that data collected from in-service airplanes show that approximately 19 percent of aileron backlash checks conducted at 4,000-flight-hour intervals reveal that aileron backlash wear limits are being exceeded. We are proposing this AD to prevent exceeded backlashes in both aileron PCUs, which, if accompanied by the failure of the flutter damper, could result in aileron vibration/flutter and reduced controllability of the airplane. DATES: We must receive comments on this proposed AD by October 11, 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 Bombardier, Inc., Canadair, Aerospace Group, P.O. Box 6087, Station Centre-ville, Montreal, Quebec H3C 3G9, Canada, for service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Daniel Parrillo, Aerospace Engineer, Systems and Flight Test Branch, ANE-172, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7305; fax
(516)794-5531. 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-2006-25779; Directorate Identifier 2006-NM-088-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or 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 Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified us that an unsafe condition may exist on all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. TCCA advises that data collected from in-service airplanes show that approximately 19 percent of aileron backlash checks conducted at 4,000-flight-hour intervals reveal that aileron backlash wear limits are being exceeded. Exceeding the backlash in both aileron power control units (PCUs), if accompanied by the failure of the flutter damper, could result in aileron vibration/flutter and reduced controllability of the airplane. Relevant Service Information Bombardier has issued Canadair Regional Jet Temporary Revision 2A-20, dated March 13, 2006, to Part 2, Appendix A—Certification Maintenance Requirements, of the Canadair Regional Jet Maintenance Requirements Manual (MRM), CSP A-053. The temporary revision adds Task C27-10-105-06, a functional check of each aileron PCU for internal leakage at intervals not to exceed 5,000 flight hours, and revises Task C27-10-105-05 to remove the check of the aileron PCU from the functional check of each rudder and elevator PCU for backlash and deflection under load at intervals not to exceed 4,000 flight hours. Bombardier has also issued Canadair Regional Jet Temporary Revision 1-2-33, dated October 27, 2005, to Part 1, Section 2—Systems/Powerplant Program, of the Canadair Regional Jet MRM, CSP A-053. The temporary revision revises Task 27-11-00-09 to perform the functional check (backlash) of the aileron control system at intervals not to exceed 2,000 flight hours. Bombardier also issued Revision 10, dated May 27, 2005, of the Canadair Regional Jet Maintenance Review Board
(MRB)Report for Section 2—Systems and Powerplant Program, of Part 1 of the Canadair Regional Jet MRM, CSP A-053. Revision 10 incorporates Task 27-11-00-09 as revised by Canadair Regional Jet Temporary Revision 1-2-33, into the MRB report. TCCA mandated the service information and issued Canadian airworthiness directive CF-2006-04, dated March 22, 2006, to ensure the continued airworthiness of these airplanes in Canada. FAA's Determination and Requirements of the Proposed AD These airplane models are manufactured in Canada and are 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 airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept the FAA informed of the situation described above. We have examined TCCA's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States. Therefore, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously. Costs of Compliance This proposed AD would affect about 742 airplanes of U.S. registry. The proposed actions would take about 1 work hour per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $59,360, or $80 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2006-25779; Directorate Identifier 2006-NM-088-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by October 11, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes, certificated in any category. Unsafe Condition
(d)This AD results from a report that data collected from in-service airplanes show that approximately 19 percent of aileron backlash checks conducted at 4,000-flight-hour intervals reveal that aileron backlash wear limits are being exceeded. We are issuing this AD to prevent exceeded backlashes in both aileron power control units (PCUs), which, if accompanied by the failure of the flutter damper, could result in aileron vibration/flutter and reduced controllability of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Revision of the Maintenance Requirements Manual
(f)Within 60 days after the effective date of this AD, revise the Canadair Regional Jet MRM CSP A-053 by doing the actions specified in paragraphs (f)(1) and (f)(2) of this AD. When the tasks specified in Canadair Regional Jet Temporary Revisions 2A-20, dated March 13, 2006; and 1-2-33, dated October 27, 2005; are included in the general revisions of the MRM, the general revisions may be inserted in the MRM, and these temporary revisions may be removed.
(1)Revise the Certification Maintenance Requirements section of the Canadair Regional Jet MRM to include Tasks C27-10-105-06 and C27-10-105-05, as specified in Canadair Regional Jet Temporary Revision 2A-20, dated March 13, 2006, to Part 2, Appendix A—Certification Maintenance Requirements, of the Canadair Regional Jet MRM CSP A-053.
(2)Revise the Maintenance Review Board Report for Section 2—Systems and Powerplant Program, of Part 1 of the Canadair Regional Jet MRM CSP A-053, to include the task interval for Task 27-11-00-09, as specified in Canadair Regional Jet Temporary Revision 1-2-33, dated October 27, 2005. Incorporating Revision 10, dated May 27, 2005, of the Canadair Regional Jet Maintenance Review Board Report for Section 2—Systems and Powerplant Program of the Canadair Regional Jet MRM CSP A-053 is one approved method for including the task interval specified in Canadair Regional Jet Temporary Revision 1-2-33. After the task interval has been incorporated into the MRM, no alternative aileron backlash check interval in excess of 2,000 flight hours may be approved, except as specified in paragraphs
(g)and
(h)of this AD. Phase-In Schedule for Initial Inspection Specified in MRM Revisions
(g)For airplanes with more than 1,000 flight hours but less than 3,000 flight hours since the last aileron backlash check specified in Task 27-11-00-09 was accomplished, as of the effective date of this AD: Within 1,000 flight hours after the effective date of this AD, do the next aileron backlash check in accordance with Task 27-11-00-09, as specified in Canadair Regional Jet Temporary Revision 1-2-33, dated October 27, 2005.
(h)For airplanes with 3,000 flight hours or more since the last aileron backlash check specified in Task 27-11-00-09 was accomplished, as of the effective date of this AD: Within 4,000 flight hours since the last aileron backlash check, do the next aileron backlash check in accordance with Task 27-11-00-09, as specified in Canadair Regional Jet Temporary Revision 1-2-33, dated October 27, 2005. One Approved Method for Task C27-10-105-06
(i)For airplanes without access to ground support equipment necessary to do the PCU internal leakage functional check as specified in Task C27-10-105-06 as specified in paragraph (f)(1) of this AD: Doing the aileron PCU internal leakage check in accordance with Task 27-11-00-220-803 of Chapter 27-11-00 of the Canadair Regional Jet Aircraft Maintenance Manual at intervals not to exceed 4,000 flight hours is one approved method for accomplishing Task C27-10-105-06 and is acceptable for up to 12 months after the effective date of this AD. Thereafter, the check must be done in accordance with Task C27-10-105-06 as specified in paragraph (f)(1) of this AD at a repetitive interval not to exceed that specified in the task. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, New York 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. Related Information
(k)Canadian airworthiness directive CF-2006-04, dated March 22, 2006, also addresses the subject of this AD. Issued in Renton, Washington, on September 1, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-14941 Filed 9-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. 98-NM-200-AD] RIN 2120-AA64 Airworthiness Directives; Lockheed Model L-1011-385 Series Airplanes AGENCY: Federal Aviation Administration, DOT. ACTION: Proposed rule; withdrawal. SUMMARY: This action withdraws a notice of proposed rulemaking
(NPRM)that proposed a new airworthiness directive (AD), applicable to all Lockheed Model L-1011-385 series airplanes. That action would have required repetitive leak tests of the lavatory drain systems and repair, if necessary; installation of a lever lock cap, vacuum breaker check valve or flush/fill line ball valve on the flush/fill line; periodic seal changes; and replacement of “donut” type waste drain valves installed in the waste drain system. Since the issuance of the NPRM, the Federal Aviation Administration
(FAA)has reviewed existing data and determined that, for airplanes without a history of engine damage resulting from “blue ice,” such as Lockheed Model L-1011-385 series airplanes, the hazard of “blue ice” to persons and property may be more appropriately addressed through means other than AD action. Accordingly, the proposed rule is withdrawn. FOR FURTHER INFORMATION CONTACT: Hector Hernandez, 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)703-6069; fax
(770)703-6097. SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to all Lockheed Model 1011-385 series airplanes, was published in the **Federal Register** as a Notice of Proposed Rulemaking
(NPRM)on September 3, 1998 (63 FR 46927). The proposed rule would have required repetitive leak tests of the lavatory drain systems and repair, if necessary; installation of a lever lock cap, vacuum breaker check valve or flush/fill line ball valve on the flush/fill line; periodic seal changes; and replacement of “donut” type waste drain valves installed in the waste drain system. That action was prompted by continuing reports of damage to engines, airframes, and to property on the ground, caused by “blue ice” that forms from leaking lavatory drain systems on transport category airplanes and subsequently dislodges from the airplane fuselage. The proposed actions were intended to prevent such damage associated with the problems of “blue ice.” Comments Received Regarding the NPRM Several commenters request various changes to the NPRM. In light of the fact that we are withdrawing the NPRM, responses to those requests are unnecessary, except as discussed below. Request To Withdraw the NPRM One commenter, American Trans Air, suggests several reasons why an AD is unnecessary for Lockheed Model L-1011-385 series airplanes. The commenter points out that Model L-1011-385 series airplanes do not have the adverse service history with “blue ice” leakage that some other airplane models have. The commenter suggests that this may be due, in part, to certain basic differences between the forward lavatory waste system of Model L-1011-385 series airplanes and certain other airplanes such as Boeing Model 727 and 737 airplanes. In support of this statement, the commenter submitted a drawing showing basic differences between the forward lavatory waste system of Model L-1011-385 series airplanes and Model 727 series airplanes. Additionally, the commenter states that normal preflight inspections for blue streaks on the fuselage are adequate for detecting valve leakage without requiring mandatory action. The FAA infers that the commenter is requesting that the NPRM be withdrawn. We agree with the commenter's statements. In addition, for the reasons stated below, we are withdrawing the NPRM. Actions That Occurred Since the NPRM Was Issued Since the issuance of that NPRM, we have determined that it is unnecessary to regulate the actions proposed in the NPRM for certain airplane models equipped with potable water systems and lavatory fill and drain systems, including Model L1011-385 series airplanes. Based on analysis of various service information and data accumulated in the last several years, we have determined that, for airplanes without a history of engine damage resulting from “blue ice,” such as Model L-1011-385 series airplanes, the hazards of “blue ice” to persons or property on the ground may be more appropriately addressed by the issuance of a special airworthiness information bulletin (SAIB). FAA's Conclusions Upon further consideration, we have issued SAIB NM-06-57, dated July 27, 2006, which contains recommendations for owners and operators of certain transport category airplanes regarding maintenance and ground handling practices and procedures that are intended to adequately address issues involving “blue ice.” Accordingly, the proposed rule is hereby withdrawn. Withdrawal of this NPRM constitutes only such action, and does not preclude the agency from issuing another action in the future, nor does it commit the agency to any course of action in the future. Regulatory Impact Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Withdrawal Accordingly, the notice of proposed rulemaking, Docket 98-NM-200-AD, published in the **Federal Register** on September 3, 1998 (63 FR 46927), is withdrawn. Issued in Renton, Washington, on September 1, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-14944 Filed 9-8-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF LABOR Employee Benefits Security Administration 29 CFR Part 2509 RIN 1210-AB09 Independence of Employee Benefit Plan Accountants AGENCY: Employee Benefits Security Administration, DOL. ACTION: Request for Information. SUMMARY: This document requests information from the public concerning the advisability of amending Interpretive Bulletin 75-9 (29 CFR 2509.75-9) relating to guidelines on independence of accountants retained by employee benefit plans under section 103(a)(3)(A) of the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA, unless otherwise exempt, the plan administrator is required to retain on behalf of all plan participants an “independent qualified public accountant” to examine the financial statements of the plan and render an opinion as to whether the financial statements and schedules required to be included in the plan's annual report are presented fairly in conformity with generally accepted accounting principles (GAAP). The purpose of this notice is to obtain information to assist the Department of Labor in evaluating whether and to what extent Interpretive Bulletin 75-9 provides adequate guidance to meet the needs of plan administrators, other plan fiduciaries, participants and beneficiaries, accountants, and other affected parties on when a qualified public accountant is independent. DATES: Written responses must be received by the Department of Labor on or before December 11, 2006. ADDRESSES: Responses should be addressed to the Office of Regulations and Interpretations, Employee Benefits Security Administration (EBSA), Room N-5669, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. Attn: Independence of Accountant RFI (RIN 1210-AB09). Responses also may be submitted electronically to *e-ori@dol.gov* or by using the Federal eRulemaking Portal *www.regulations.gov* (follow instructions for submission of comments). EBSA will make all responses available to the public on its Web site at *www.dol.gov/ebsa* . The responses also will be available for public inspection at the Public Disclosure Room, N-1513, EBSA, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210. FOR FURTHER INFORMATION CONTACT: Michael G. Leventhal, Office of Regulations and Interpretations, Employee Benefits Security Administration, U.S. Department of Labor,
(202)693-8523 (not a toll-free number). SUPPLEMENTARY INFORMATION: A. Background The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to remedy certain abuses in the nation's private-sector employee pension benefit plan and employee welfare benefit plan system. ERISA contains provisions designed to protect the interests of plan participants and beneficiaries by requiring the establishment of effective mechanisms to detect and deter abusive practices. These provisions include requiring annual reporting of financial information and activities of employee benefit plans to the Department of Labor (Department). An integral component of ERISA's annual reporting provisions is the requirement that employee benefit plans, unless otherwise exempt, be subjected to an annual audit performed by an independent qualified public accountant
(IQPA)and that the accountant's report be included as part of the plan's annual report filed with the Department. 1 1 Certain employee benefit plans are eligible for waivers or limited exemptions from the IQPA audit requirements under regulations issued by the Department. For example, regulation section 2520.104-44 provides a limited exemption for welfare plans which are either unfunded, insured or partly unfunded-partly insured. If a plan does not comply with ERISA's annual reporting requirements, including failure to satisfy the requirement to have an audit report and opinion of an IQPA, the Department may reject the plan's annual report. If a satisfactorily revised report is not submitted, the Department may under section 104(a)(5) of ERISA retain an independent qualified public accountant on behalf of the participants to perform a sufficient audit, bring a civil suit for whatever relief may be appropriate, or take any other enforcement action authorized under Title I. The IQPA requirements in ERISA were intended to provide participants, beneficiaries, plan administrators, other plan fiduciaries, and the Department with reliable information about an employee benefit plan and its financial soundness. The precursor to ERISA, the Welfare and Pension Plan Disclosure Act of 1958 (WPPDA), required a certified audit only when the Secretary of Labor found reasonable cause to investigate a plan. Legislative history of ERISA indicates that Congress found this requirement to be insufficient, and specifically replaced it with the annual certified audit requirements in section 103(a)(3)(A) of ERISA. Section 103(a)(3)(A) of ERISA sets forth the requirements governing the IQPA's annual audit. The administrator of an employee benefit plan is required to engage, on behalf of all plan participants, an IQPA to conduct an examination of the plan's financial statements, and other books and records of the plan, as the accountant deems necessary to allow the accountant to form an opinion as to whether the financial statements and schedules required to be included in the plan's annual report are presented fairly in accordance with generally accepted accounting principles
(GAAP)applied on a basis consistent with that of the preceding year. The accountant's examination must be conducted “in accordance with generally accepted auditing standards (GAAS), and shall involve such tests of the books and records of the plan as are considered necessary by the independent qualified public accountant.” The accountant's report must contain certain opinions with respect to the financial statements and schedules covered by the report and the accounting principles and practices reflected in such report. Further, the accountant's report must identify any matters to which the accountant takes exception, whether the matters to which the accountant takes exception are the result of Department's regulations and, to the extent practicable, the effect on the financial statements of the matters to which the accountant has taken exception. If the auditor's independence is considered to have been impaired after the audit is completed, a new audit by another accountant may be required. Section 103(a)(3)(D) of ERISA states that the term “qualified public accountant” means—(i) a person who is a certified public accountant, certified by a regulatory authority of a State;
(ii)a person who is a licensed public accountant, licensed by a regulatory authority of a State, or
(iii)a person certified by the Secretary as a qualified public accountant in accordance with regulations published by the Secretary for a person who practices in States where there is no certification or licensing procedure for accountants. ERISA does not, however, define what would constitute “independence” for purposes of the audit requirements. In the Department's view, an accountant's independence is at least of equal importance to the professional competence he or she brings to an engagement in rendering an opinion and issuing a report on the financial statements of an employee benefit plan. Pursuant to the authority provided to the Department by section 103(a)(3)(A), the Department issued Interpretive Bulletin 75-9 in 1975 to provide guidelines for determining when an accountant is independent for purposes of ERISA's annual reporting requirements. The bulletin explains that the Department will not recognize any person as an independent qualified public accountant with respect to an employee benefit plan who is not in fact independent. The rule also specifically describes three kinds of relationships that will cause an accountant not to be independent. During the audit engagement and during the period covered by the audit, the accountant, his or her firm, and any member of the firm cannot:
(1)Have or be committed to acquire any direct financial interest or any material indirect financial interest in the plan or the plan sponsor;
(2)have a connection to the plan or plan sponsor as a promoter, underwriter, investment advisor, voting trustee, director, officer or employee of the plan or plan sponsor; and
(3)maintain financial records for the employee benefit plan. The Interpretive Bulletin defines “member” of an accounting firm as all partners or shareholder employees in the firm and all professional employees participating in the audit or located in an office of the firm participating in a significant portion of the audit. The Interpretive Bulletin provides that independence is required during the period of professional engagement, at the date of the opinion, and during the period covered by the financial statements. In addition to the specific proscriptions, the Bulletin cautions that the Department will give appropriate consideration to all relevant circumstances in determining whether an accountant or accounting firm is not, in fact, independent with respect to a particular plan, including evidence bearing on all relationships between the accountant or accounting firm and that of the plan sponsor or any affiliate. In that regard, Interpretive Bulletin 75-9 notes that an accountant will not fail to be recognized as independent merely because the accountant or his or her firm is retained or engaged on a professional basis by the plan sponsor, provided none of the three specific proscriptions are violated. Further, the Interpretive Bulletin states that the rendering of services to the plan or plan sponsor by an actuary associated with the accountant or accounting firm will not impair the accountant's independence. In addition to ERISA's annual reporting requirements, accountants and accounting firms are subject to independence requirements of other governmental agencies and accounting industry self-regulatory bodies. For example, the Securities and Exchange Commission
(SEC)has independence guidelines for auditors reporting on financial statements included in SEC filings. Those guidelines were for many years contained in Rule 2-01 of Reg. S-X, Qualifications and Reports of Accountants. On January 28, 2003, the SEC adopted final rules regarding independence for auditors that file financial statements with the SEC implementing Title II of the Sarbanes-Oxley Act of 2002. The Sarbanes-Oxley Act also authorized the establishment of the Public Company Accounting Oversight Board (“PCAOB”) which itself has established ethics and independence requirements for registered public accounting firms. The United States Government Accountability Office
(GAO)has auditor independence requirements under Government Auditing Standards 2 that cover Federal entities and organizations receiving Federal funds. The American Institute of Certified Public Accountants (AICPA) sets GAAS requirements including standards by which the auditor must abide to avoid impairment of independence. 3 Many States have an independence component in their requirements for licensed public accountants. Some have adopted the AICPA's Code of Conduct, including its independence guidelines. Others, however, have adopted specific rules, including limitations on offering or rendering services under a contingency fee arrangement as well as limitations on ownership interests in the enterprise being audited. 4 Further, the nature and complexity of the business environment in which accountants perform services has changed in ways that have led many accounting firms to develop expertise in an array of activities peripheral to audit services, for example, business consulting, valuation and appraisal services, applications programming, electronic data processing and recordkeeping. The Department has received public comments indicating that these developments have made it a more complicated process for accountants and accounting firms to monitor compliance with the different independence standards that apply in the different business sectors in which they provide audit services. 2 Information about Government Auditing Standards (commonly referred to as “Generally Accepted Government Auditing Standards,” or “GAGAS”) is available on the GAO Web site at *www.gao.gov/govaud/ybk01.htm.* 3 Information about AICPA's standards is available at *www.aicpa.org/about/code/index.html.* 4 See section 29.10(a)(5), (6), and
(7)of New York State's Education Department's Office of Profession's Rules of the Board of Regents (Special provisions for the profession of public accountancy) ( *www.op.nysed.gov/part29.htm#cpa* ). B. Request for Information The purpose of this Notice is to obtain information to assist the Department in evaluating whether and to what extent the guidelines in Interpretive Bulletin 75-9 provide adequate guidance regarding the independence of accountants who audit employee benefit plans to meet the needs of plan officials, participants and beneficiaries, accountants, and other affected parties. Given the changes that have taken place with respect to employee benefit plans and auditing practices and standards, as well as changes in the industry since the issuance of the guidelines in Interpretive Bulletin 75-9, EBSA is inviting interested persons to submit written comments and suggestions concerning whether and to what extent the current guidelines should be modified. In order to assist interested parties in responding, this document contains a list of specific questions. The Department recognizes that these questions may not address all issues relevant to the independence of accountants who audit employee benefit plans. Accordingly, interested parties are invited to submit comments on other issues relating to Interpretive Bulletin 75-9 that they believe are pertinent to the Department's consideration of new or additional independence guidelines. 1. Should the Department adopt, in whole or in part, current rules or guidelines on accountant independence of the SEC, AICPA, GAO or other governmental or nongovernmental entity? If the Department were to adopt a specific organization's rules or guidelines, what adjustments would be needed to reflect the audit requirements for or circumstances of employee benefit plans under ERISA? 2. Should the Department modify, or otherwise provide guidance on, the prohibition in Interpretive Bulletin 75-9 on an independent accountant, his or her firm, or a member of the firm having a “direct financial interest” or a “material indirect financial interest” in a plan or plan sponsor? For example, should the Department issue guidance that clarifies whether, and under what circumstances, financial interests held by an accountant's family members are deemed to be held by the accountant or his or her accounting firm for independence purposes? If so, what familial relationships should trigger the imposition of ownership attribution rules? Should the ownership attribution rules apply to all members of the accounting firm retained to perform the audit of the plan or should it be restricted to individuals who work directly on the audit or may be able to influence the audit? 3. Should the Department issue guidance on whether, and under what circumstances, employment of an accountant's family members by a plan or plan sponsor that is a client of the accountant or his or her accounting firm impairs the independence of the accountant or accounting firm? 4. Interpretive Bulletin 75-9 states that an accountant will not be considered independent with respect to a plan if the accountant or member of his or her accounting firm maintains financial records for the employee benefit plan. Should the Department define the term “financial records” and provide guidance on what activities would constitute “maintaining” financial records. If so, what definitions should apply? 5. Should the Department define the terms “promoter,” “underwriter,” “investment advisor,” “voting trustee,” “director,” “officer,” and “employee of the plan or plan sponsor,” as used in Interpretive Bulletin 75-9? Should the Department include and define additional disqualifying status positions in its independence guidelines? If so, what positions and how should they be defined? 6. Interpretive Bulletin 75-9 defines the term “member of an accounting firm” as all partners or shareholder employees in the firm and all professional employees participating in the audit or located in an office of the firm participating in a significant portion of the audit. Should the Department revise and update the definition of “member?” If so, how should the definition be revised and updated? 7. What kinds of nonaudit services are accountants and accounting firms engaged to provide to the plans they audit or to the sponsor of plans they audit? Are there benefits for the plan or plan sponsor from entering into agreements to have the accountant or accounting firm provide nonaudit services and also perform the employee benefit plan audit? If so, what are the benefits? Should the Department issue guidance on the circumstances under which the performance of nonaudit services by accountants and accounting firms for the plan or plan sponsor would be treated as impairing an accountant's independence for purposes of auditing and rendering an opinion on the financial information required to be included in the plan's annual report? If so, what should the guidance provide? 8. Interpretive Bulletin 75-9 requires an auditor to be independent during the period of professional engagement to examine the financial statements being reported, at the date of the opinion, and during the period covered by the financial statements. Should the Department change the Interpretive Bulletin to remove or otherwise provide exceptions for “the period covered by the financial statements” requirement? For example, should the requirement be changed so that an accountant's independence would be impaired by a material direct financial interest in the plan or plan sponsor during the period covered by the financial statements rather than any direct financial interest? 9. Should there be special provisions in the Department's independence guidelines for plans that have audit committees that hire and monitor an auditor's independence, such as the audit committees described in the Sarbanes-Oxley Act applicable to public companies? 10. What types and level of fees, payments, and compensation are accountants and accounting firms receiving from plans they audit and sponsors of plans they audit for audit and nonaudit services provided to the plan? Should the Department issue guidance regarding whether receipt of particular types of fees, such as contingent fees and other fees and compensation received from parties other than the plan or plan sponsor, would be treated as impairing an accountant's independence for purposes of auditing and rendering an opinion on the financial information required to be included in the plan's annual report? 11. Should the Department define the term “firm” in Interpretive Bulletin 75-9 or otherwise issue guidance on the treatment of subsidiaries and affiliates of an accounting firm in evaluating the independence of an accounting firm and members of the firm? If so, what should the guidance provide regarding subsidiaries and affiliates in the evaluation of the independence of an accountant or accounting firm? 12. Should the Department's independence guidance include an “appearance of independence” requirement in addition to the requirement that applies by reason of the ERISA requirement that the accountant perform the plan's audit in accordance with GAAS? 13. Should the Department require accountants and accounting firms to have written policies and procedures on independence which apply when performing audits of employee benefit plans? If so, should the Department require those policies and procedures be disclosed to plan clients as part of the audit engagement? 14. Should the Department adopt formal procedures under which the Department will refer accountants to state licensing boards for discipline when the Department concludes an accountant has conducted an employee benefit plan audit without being independent? 15. Should accountants and accounting firms be required to make any standard disclosures to plan clients about the accountant's and firm's independence as part of the audit engagement? If so, what standard disclosures should be required? Signed at Washington, DC, this 5th day of September 2006. Ann L. Combs, Assistant Secretary, Employee Benefits Security Administration. [FR Doc. E6-14913 Filed 9-8-06; 8:45 am] BILLING CODE 4510-29-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 938 [PA-148-FOR] Pennsylvania Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Proposed rule; extension of comment period and notice of hearing. SUMMARY: We are reopening the public comment period on the proposed Pennsylvania Regulatory Program rule published on July 31, 2006. The comment period is being reopened in order to afford the public more time to comment and allow enough time to hold a public hearing which has been requested by several individuals. We are also notifying the public of the date, time and location for the public hearing. DATES: Comments on the proposed rule must be received on or before 4 p.m., local time on September 28, 2006. The public hearing will be held on Thursday, September 21, 2006, at 7 p.m. local time. ADDRESSES: You may submit written or electronic comments identified by PA-148, by any of the following methods: • *E-Mail: grieger@osmre.gov.* Include docket number PA-148-FOR in the subject line of the message. • *Mail/Hand-Delivery/Courier:* George Rieger, Director, Pittsburgh Field Division, Office of Surface Mining Reclamation and Enforcement, 415 Market Street, Room 304, Harrisburg, Pennsylvania 17101 • *Federal e-Rulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. For detailed instructions on submitting comments and additional information on the rulemaking process, see “III. Public Comment Procedures” in the SUPPLEMENTARY INFORMATION section of the proposed rule published on July 31, 2006. *Public hearing:* The public hearing will be held at The Days Inn, located at 3620 Route 31, Donegal, Pennsylvania 15628, telephone: 724-593-7536, on September 21, 2006, at 7 p.m. local time. FOR FURTHER INFORMATION CONTACT: George Rieger, Director, Pittsburgh Field Division, Telephone:
(717)782-4036, e-mail: *grieger@osmre.gov.* SUPPLEMENTARY INFORMATION: On July 31, 2006 (71 FR 43087), we published a proposed rule that would revise the Pennsylvania Regulatory Program. The revisions would address blasting for the development of shafts for underground mines and make administrative changes to regulations relating to blasting in 25 Pa. Code Chapters 87, 88, 89 and 210. Specifically, the proposed changes would:
(1)Clarify that the use of explosives in connection with the construction of a mine opening for an underground coal mine is a surface mining activity subject to the applicable requirements in Chapters 87 or 88 and that the person conducting the blasting activity must possess a blaster's license;
(2)change the scheduling requirements applicable to the use of explosives for constructing openings for underground coal mines and changes to the requirements for protective measures to be taken when surface coal mine blasting is in proximity to a public highway or an entrance to a mine; and
(3)add a category for mine opening blasting to the classifications of blaster's licenses. We have received several requests for a public hearing on the proposed rule. We are extending the public comment period in order to afford the public more time to comment and allow enough time to schedule and hold the hearing. The date, time, and location for the public hearing may be found under DATES and ADDRESSES above. The hearings will be open to anyone who would like to attend and/or testify. The primary purpose of the public hearing is to obtain your comments on the proposed rule so that we can prepare a complete and objective analysis of the proposal. The purpose of the hearing officer is to conduct the hearing and receive the comments submitted. Comments submitted during the hearing will be responded to in the preamble to the final rule, not at the hearing. We appreciate all comments but those most useful and likely to influence decisions on the final rule will be those that either involve personal experience or include citations to and analysis of the Surface Mining Control and Reclamation Act of 1977, its legislative history, its implementing regulations, case law, other State or Federal laws and regulations, data, technical literature, or relevant publications. At the hearing, a court reporter will record and make a written record of the statements presented. This written record will be made part of the administrative record for the rule. If you have a written copy of your testimony, we encourage you to give us a copy. It will assist the court reporter in preparing the written record. Any disabled individual who needs reasonable accommodation to attend the hearing is encouraged to contact the person listed under FOR FURTHER INFORMATION CONTACT . List of Subjects in 30 CFR Part 938 Intergovernmental relations, Surface mining, Underground mining. Dated: August 23, 2006. Michael K. Robinson, Acting Regional Director, Appalachian Region. [FR Doc. E6-14756 Filed 9-8-06; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD5-06-086] RIN 1625-AA09 Drawbridge Operation Regulations; Darby Creek, PA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard is proposing to change the operating regulations for the Consolidated Rail Corporation (CONRAIL) Railroad Bridge, at mile 0.3, across Darby Creek in Essington, Pennsylvania. The proposal would allow the bridge to be left in the open-to-navigation position from April 1 through October 31 of every year. The bridge would only close for the passage of trains and to perform periodic maintenance. From November 1 to March 31, the bridge would open on signal, if at least 24 hours notice is given by calling
(856)231-7088 or
(856)662-8201. DATES: Comments and related material must reach the Coast Guard on or before November 13, 2006. ADDRESSES: You may mail comments and related material to Commander (dpb), Fifth Coast Guard District, Federal Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 233704-5004. The Fifth Coast Guard District maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at Commander (dpb), Fifth Coast Guard District between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, at
(757)398-6222. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking CGD05-06-086, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like a return receipt, please enclose a stamped, self-addressed postcard or envelope. We will consider all submittals received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander (dpb), Fifth Coast Guard District at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose CONRAIL owns and remotely operates the railroad drawbridge across Darby Creek, at mile 0.3, located in Essington, Pennsylvania. The current operating regulations set out in 33 CFR 117.903 requires that from May 15 through October 15, the draw be left in the open position at all times and will only be lowered for the passage of trains and to perform periodic maintenance authorized in accordance with subpart A of this part. From October 16 through May 14, the draw shall open on signal if at least 24 hours notice is given by telephone at
(856)231-7088 or
(856)662-8201. Operational information will be provided 24 hours a day at the same telephone numbers. The CONRAIL Railroad Bridge, a bascule-type drawbridge, has a vertical clearance in the closed position to vessels of approximately three feet above mean high water; and unlimited vertical clearance in the open-to-navigation position. The Ridley Township Municipal Marina Authority has requested a change to the operating regulations for the Railroad Bridge, due to increased marine traffic under the bridge from April 1 to October 31. CONRAIL has agreed to modify the operating regulations of the drawbridge to accommodate additional vessel traffic. Discussion of Proposed Rule The Coast Guard proposes to amend 33 CFR 117.903(a), which governs the CONRAIL railroad drawbridge across Darby Creek, at mile 0.3 in Essington, Pennsylvania, by amending paragraphs (a)(3) and (a)(13). From April 1 through October 31, the bridge would be left in the open position and would only close for the passage of trains and to perform periodic maintenance authorized in accordance with subpart A of this part. From November 1 to March 31, the draw of the CONRAIL Railroad Bridge need only open on signal if at least 24 hours notice is given by calling
(856)231-7088 or
(856)662-8201. Operational information will be provided 24 hours a day by telephone at
(856)231-7088 or
(856)662-8201, respectively. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. We reached this conclusion based on the fact CONRAIL, the only known land user of the bridge, has agreed to the change in the operating regulations. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reason. This proposed rule will have not impact on any small entities because CONRAIL, the only known land user of the bridge, has agreed to the change in the operating regulations. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking process. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District,
(757)398-6222. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminates ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it 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. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( *e.g.* , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” is not required for this rule. Comments on this section will be considered before we make the final decision on whether to categorically exclude this rule from further environmental review. List of Subjects in 33 CFR Part 117 Bridges. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATIONS REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Section 117.255 also issued under authority of Public Law 102-587, 106 Stat. 5039. 2. Section 117.903 is amended by revising paragraphs (a)(3) and (a)(13) to read as follows: § 117.903 Darby Creek.
(a)* * *
(3)From April 1 through October 31, the draw shall be left in the open position at all times and will only be lowered for the passage of trains and to perform periodic maintenance authorized in accordance with subpart A of this part.
(13)From November 1 through March 31, the draw shall open on signal if at least 24 hours notice is given by telephone at
(856)231-7088 or
(856)662-8201. Operational information will be provided 24 hours a day by telephone at
(856)231-7088 or
(856)662-8201. Dated: August 23, 2006. L.L. Hereth, Rear Admiral, U. S. Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. E6-14983 Filed 9-8-06; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 355 [EPA-HQ-SFUND-2005-0520; FRL-8217-5] RIN 2050-AG32 Reportable Quantity Adjustment for Isophorone Diisocyanate AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: The Environmental Protection Agency
(EPA)is proposing to adjust the reportable quantity
(RQ)for Isophorone Diisocyanate (IPDI). Reportable quantities for many of the Extremely Hazardous Substances
(EHSs)under the Emergency Planning and Community Right-to-Know Act (EPCRA) were adjusted to their threshold planning quantities
(TPQ)in a final rule on May 7, 1996. On September 8, 2003, EPA modified the TPQ for IPDI to 500 pounds. However, EPA inadvertantly omitted an RQ adjustment for this substance. Therefore, EPA is now proposing to adjust the RQ for IPDI to be 500 pounds. In the “Rules and Regulations” section of the **Federal Register** , we are revising the RQ for Isophorone Diisocyanate to 500 pounds without prior proposal because we view the revision as noncontroversial and anticipate no adverse comment. We have explained our reasons for this approach in the preamble to the direct final rule. If we receive adverse comment on this revision, however, we will withdraw this direct final action and it will not take effect. We will address all public comments in a subsequent final rule based on this proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting on any amendment must do so at this time. DATES: Comments must be received on or before October 11, 2006. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2005-0520, by one of the following methods: 1. *www.regulations.gov* : Follow the on-line instructions for submitting comments. 2. *E-mail: superfund.docket@epa.gov* . 3. *Fax* :
(202)566-0224. 4. *Mail* : Superfund Docket, Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 5. *Hand Delivery* : Superfund Docket, EPA Docket Center, 1301 Constitution Avenue, NW., EPA West Building, Room B-102, Washington DC 20004. 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-SFUND-2005-0520. 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 Superfund 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 Superfund Docket is
(202)566-0276). This Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. 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: Sicy Jacob, Office of Emergency Management, 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington DC 20004; telephone number:
(202)564-8019; fax number:
(202)564-2620; e-mail address: *jacob.sicy@epa.gov* . SUPPLEMENTARY INFORMATION: I. General Information A. Does This Action Apply to Me? This action applies to any facility handling Isophorone Diisocyanate. B. What Should I Consider as I Prepare My Comments for EPA? *Submitting CBI.* Do not submit this information to EPA through *www.regulations.gov* or e-mail. 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. *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. • Make sure to submit your comments by the comment period deadline identified. Dated: August 31, 2006. Stephen L. Johnson, Administrator. [FR Doc. E6-14843 Filed 9-8-06; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AU52 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; reopening of public comment period, notice of availability of draft economic analysis and draft environmental assessment, and amended Required Determinations. SUMMARY: We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the public comment period on the proposal to designate critical habitat for the Contiguous United States Distinct Population Segment of the Canada lynx ( *Lynx canadensis* ), the availability of the draft economic analysis and draft environmental assessment of the proposed designation of critical habitat, and an amended Required Determinations section of the proposal. The draft economic analysis estimates the potential total future costs to range from $175 million to $889 million in undiscounted dollars over the next 20 years. Discounted future costs are estimated to be from $125 million to $411 million over 20 years ($8.38 million to $27.6 million annually) using a 3 percent discount rate, or $99.9 million to $259 million over 20 years ($9.43 million to $24.4 million annually) using a 7 percent discount rate. The amended Required Determinations section provides our determination concerning compliance with applicable statues and Executive Orders that we have deferred until the information from the draft economic analysis of this proposal was available. We are reopening the comment period to allow all interested parties to comment simultaneously on the proposed rule, the associated draft economic analysis and draft environmental assessment, and the amended Required Determinations section. DATES: We will accept public comments until October 11, 2006. ADDRESSES: Written comments and materials may be submitted to us by any one of the following methods:
(1)*E-mail:* You may send comments by electronic mail (e-mail) to *fw6_lynx@fws.gov.* For directions on how to submit e-mail comments, see the “Public Comments Solicited” section.
(2)*Mail or hand delivery/courier:* You may submit written comments and information to Field Supervisor, Montana Ecological Services Field Office, 585 Shepard Way, Helena, MT, 59601.
(3)*Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. FOR FURTHER INFORMATION CONTACT: Lori Nordstrom, Montana Ecological Services Field Office, at the address listed in ADDRESSES (telephone, 406-449-5225 extension 208). SUPPLEMENTARY INFORMATION: Public Comments Solicited We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation for the Canada lynx (lynx), published in the **Federal Register** on November 9, 2005 (70 FR 68294), the clarification of the proposed critical habitat, published in the **Federal Register** on February 16, 2006 (71 FR 8258), on our draft economic analysis of the proposed designation, and on our draft environmental assessment of the proposed designation. We particularly seek comments concerning:
(1)The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act, including whether it is prudent to designate critical habitat;
(2)Specific information on the amount and distribution of lynx habitat in the contiguous United States, and what occupied habitat has features that are essential to the conservation of the species and why and what unoccupied habitat is essential to the conservation of the species and why;
(3)Comments or information that may assist us with identifying or clarifying the Primary Constituent Elements (PCEs);
(4)Land use designations and current or planned activities in areas proposed as critical habitat and their possible impacts on proposed critical habitat;
(5)Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation and, in particular, any impacts on small entities in timber activities, residential and commercial development, recreation, and mining;
(6)As discussed in this proposed rule, we are considering whether some of the lands we have identified as having features essential for the conservation of the lynx should not be included in the final designation of critical habitat if, prior to the final critical habitat designation, they are covered by final management plans that incorporate the conservation measures for the lynx ( *i.e.* , the Lynx Conservation Assessment and Strategy
(LCAS)(Ruediger *et al.* 2000), or comparable). In particular, seven National Forests and one Bureau of Land Management
(BLM)district are in the process of revising or amending their Land and Resource Management Plans
(LRMP)to provide measures for lynx conservation. It is anticipated that all of these plans will be complete prior to promulgation of the final critical habitat designation. As a result, all National Forest and BLM plans would have measures that provide for conservation of lynx, and consequently will not be in need of special management or protection. Currently, National Forests that have not revised or amended their LRMPs operate under a Conservation Agreement with the Service in which the parties agree to take measures to reduce or eliminate adverse effects or risks to lynx and its occupied habitat pending amendments to LRMPs. The LCAS is a basis for implementing this Agreement. In addition, we will be evaluating the adequacy of existing management plans to conserve lynx on lands that are designated wilderness areas or National Parks, as discussed in this proposed rule. We specifically solicit comment on whether such areas meet the definition of critical habitat based on:
(A)Whether these areas contain features essential to the conservation of the lynx;
(B)The adequacy of these management plans or the Conservation Agreement to provide special management and protection to lynx habitat; Any of these lands identified above may, if appropriate, be included in the final critical habitat designation, even if not proposed for designation in this notice.
(7)Our proposal to not include tribal lands in the Maine and Minnesota units under the Secretarial Order Number 3206. The size of the individual reservation lands in the Maine and Minnesota units is relatively small. As a result, we believe conservation of the lynx can be achieved by limiting the designation to the other lands in the proposed units.
(8)Whether lands in three areas are essential for the conservation of the species and the basis for why they might be essential. These areas are:
(a)The Greater Yellowstone Ecosystem (Wyoming, Montana, and Idaho);
(b)the “Kettle Range” in Ferry County, Washington; and
(c)the Southern Rocky Mountains,
(9)How the proposed boundaries of critical habitat units could be refined to more closely conform to the boreal forest types occupied by lynx. Maps that accurately depict the specific vegetation types on all land ownerships were not readily available. Additionally, even if accurate, detailed vegetation maps were available, we were unsure how to delineate and describe critical habitat boundaries that solely encompassed lands containing the features essential to the conservation of the lynx.
(10)Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
(11)Any foreseeable environmental impacts directly or indirectly resulting from the proposed designation of critical habitat;
(12)Whether the economic analysis identifies all State and local costs attributable to the proposed critical habitat, and information on costs that have been inadvertently overlooked;
(13)Whether the economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;
(14)Whether the economic analysis correctly assesses the effect on regional costs associated with land- and water-use controls that derive from the designation;
(15)Whether the critical habitat designation will result in disproportionate economic impacts to specific areas that should be evaluated for possible exclusion from the final designation per our discretion under section 4(b)(2) of the Act. We are specifically seeking comment along with additional information on the estimated costs, how these estimated costs are distributed within such location, and whether we should exclude all or a portion of a unit;
(16)Whether the economic analysis appropriately identifies all costs that could result from the designation;
(17)As noted in the draft economic analysis, we did not estimate the potential economic impacts for several specific land-use categories for two reasons, first because we are unsure of how certain conservation guidelines for the lynx may be applied and second, because we are uncertain as to how we should assume development will occur. We believe that we have three options: a. Apply potential economic impacts equally across all land-uses assuming all zoned development will occur. For example, the Lynx Conservation Assessment and Strategy allows no more than 10 percent of habitat be lost to the lynx, in which case, we would assume that 90 percent of the lands zoned for development would not be available for anything other than lynx habitat and identify any economic losses identified with those activities; b. Assume that the 10 percent limitation on habitat loss will be calculated across the entire range of the lynx and that habitat losses will be concentrated in the highest economic value areas and that lower economic value areas will be preserved as habitat; or c. Focus potential economic impacts in areas where major economic development is projected in order to maximize the amount of habitat protected for lynx. This approach results in the highest economic cost as most areas zoned for development would be unable to be developed. Please provide comment on which approach is the most appropriate. Please reference page 3-12 of the draft economic analysis for further clarification of conservation guidelines.
(18)The Lynx Conservation Assessment and Strategy
(LCAS)was developed for conservation of lynx and lynx habitat on Federal lands particularly for the U.S. Forest Service and Bureau of Land Management. Although developed for public lands, it represents the best available scientific information. Should the Service assume that the requirements of the LCAS management guidelines will be applied to private lands, and base the economic cost on that approach? If not, what standard should be used to measure the potential economic impacts of this designation on affected private landowners?
(19)Private timber companies may also be subject to consultation on critical habitat or face impacts from consultation or mitigation based on their interaction with Federal agencies. For these reasons, we are requesting comments from any potentially affected small businesses involved in timber activities about the impacts resulting from the proposed designation of critical habitat. How will your small business be affected by this critical habitat designation? What are the estimated cost impacts of this proposed designation to your small business? and
(20)Whether the benefits of exclusion in any particular area outweigh the benefits of inclusion under Section 4(b)(2) of the Act. All previous comments and information submitted during the initial comment periods on the proposed rule need not be resubmitted. If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Our final designation of critical habitat for the lynx will take into consideration all comments and any additional information received during all comment periods. On the basis of public comment on the draft economic analysis, the critical habitat proposal, and the final economic analysis, we may during the development of our final determination find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or not appropriate for exclusion. Please submit electronic comments in an ASCII file format and avoid the use of special characters and encryption. Please also include “Attn: RIN 1018-AU52” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under For Further Information Contact . Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. We will not consider anonymous comments and we will make all comments available for public inspection in their entirety. Comments and materials received, as well as supporting information used in preparation of the proposed critical habitat designation, will be available for public inspection, by appointment, during normal business hours at the Montana Ecological Services Field Office at the address listed under ADDRESSES. You may obtain copies of the proposed rule, draft economic analysis, and draft environmental assessment by mail or by visiting our Web site at *http://mountain-prairie.fws.gov/species/mammals/lynx/criticalhabitat.htm.* In the event that our Internet connection is not functional, please obtain copies of documents directly from the Montana Ecological Services Field Office. Background The lynx generally inhabits cold, moist boreal forests in the contiguous United States. On November 9, 2005, we published a proposed rule in the **Federal Register** (70 FR 68294) to designate approximately 18,031 square miles (mi 2 ) (46,699 square kilometers (km 2 )) as critical habitat for the lynx. The proposed critical habitat includes four units in the States of Idaho, Maine, Minnesota, Montana, and Washington. The original comment period on the proposed critical habitat rule closed on February 7, 2006. On February 16, 2006, we published a notice in the **Federal Register** (71 FR 8258) to reopen the public comment period and clarify the proposed designation; this second comment period closed on April 30, 2006. Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act. Draft Economic Analysis Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We have prepared a draft economic analysis of the November 9, 2005 (70 FR 68294), proposed designation of critical habitat for the lynx. The draft economic analysis considers the potential economic effects of actions relating to the conservation of the lynx including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to designating critical habitat. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures ( *e.g.* , lost economic opportunities associated with restrictions on land use). The draft analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, the draft analysis looks retrospectively at costs that have been incurred since the date the lynx was listed as threatened in 2000, and considers those costs that may occur in the 20 years following a designation of critical habitat. Costs related to conservation activities for the proposed designation of critical habitat for lynx pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $175 to $889 million over 20 years in undiscounted 2006 dollars. Discounted future costs are estimated to be from $125 million to $411 million over 20 years ($8.38 million to $27.6 million annually) using a 3 percent discount rate, or $99.9 million to $259 million over 20 years ($9.43 million to $24.4 million annually) using a 7 percent discount rate. We solicit data and comments from the public on the draft economic analysis, as well as on all aspects of the proposal to designate critical habitat. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species. National Environmental Policy Act The draft environmental assessment
(EA)presents the purpose of and need for critical habitat designation, the Proposed Action and alternatives, and an evaluation of the direct, indirect, and cumulative effects of the alternatives pursuant to the requirements of the National Environmental Policy Act of 1969
(NEPA)as implemented by the Council on Environmental Quality regulations (40 CFR 1500 *et seq.* ) and according to the Department of Interior NEPA procedures. The scope of the EA includes issues and resources within the contiguous United States range of the lynx in portions of Maine, Minnesota, Montana, Idaho, and Washington as well as areas with lynx habitat in Colorado and Wyoming not included in the proposed designation of critical habitat for the lynx. The EA will be used by the Service to decide whether or not critical habitat will be designated as proposed, if the Proposed Action requires refinement, or if further analyses are needed through preparation of an environmental impact statement (EIS). If the Proposed Action is selected as described, or with minimal changes, and no further environmental analyses are needed, then a Finding of No Significant Impact (FONSI) would be the appropriate conclusion of this process. A FONSI would then be prepared for the EA. Required Determinations—Amended In our November 9, 2005, proposed rule (70 FR 68294), we indicated that we would be deferring our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order 13132 and Executive Order 12988; the Paperwork Reduction Act; the National Environmental Policy Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning Executive Order 12866 and the Regulatory Flexibility Act, Executive Order 13211, Executive Order 12630, and the Unfunded Mandates Reform Act. Regulatory Planning and Review In accordance with Executive Order 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed designation of critical habitat for the lynx, costs related to conservation activities for lynx pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $175 to $889 million over 20 years in undiscounted 2006 dollars. Discounted future costs are estimated to be from $125 million to $411 million over 20 years ($8.38 million to $27.6 million annually) using a 3 percent discount rate, or $99.9 million to $259 million over 20 years ($9.43 million to $24.4 million annually) using a 7 percent discount rate. Therefore, based on our draft economic analysis, it is not anticipated that the proposed designation of critical habitat for the lynx would result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the **Federal Register** , the Office of Management and Budget
(OMB)has not formally reviewed the proposed rule or accompanying economic analysis. Further, Executive Order 12866 directs Federal Agencies promulgating regulations to evaluate regulatory alternatives (OMB, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has been determined that the Federal regulatory action is appropriate, the agency will need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat. In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts under section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat, provided that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis. Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) Under the Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( *i.e.* , small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations and small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents, as well as small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations. To determine if this proposed designation of critical habitat for lynx would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities ( *e.g.* , timber, recreation, public and conservation land management, transportation, and mining). We considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Some kinds of activities are unlikely to have any Federal involvement and so will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; other activities are not affected by the designation. If this proposed critical habitat designation is made final, Federal agencies must consult with us if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process. Private companies may also be subject to consultation or mitigation impacts. Several of the activities potentially affected by lynx conservation efforts within the study area (timber, recreation, grazing) involve small businesses. Given the rural nature of the proposed designation, most of the potentially affected businesses in the affected regions are small. Our draft economic analysis of this proposed designation evaluated the potential economic effects on small business entities and small governments resulting from conservation actions related to the listing of this species and proposed designation of its critical habitat. We evaluated small business entities in the following categories: Timber activities; residential and commercial development; recreation; public lands management and conservation planning; transportation, utilities, and municipal activities; and mining operations. Based on our analysis, impacts associated with small entities are anticipated to occur to timber activities, recreation, public lands management, conservation planning, transportation, and mining. Because no information was available regarding how residential and commercial development may be affected by lynx conservation, the analysis does not quantify specific impacts to residential and commercial development but rather provides the full option value for development within the study area. Thus, residential and commercial development impacts to small entities are not addressed in the SBREFA screening analysis. We are seeking comments from potentially affected small entities involved in timber activities, residential and commercial development, recreation, and mining. The following is a summary of the information contained in the draft economic analysis:
(a)Timber Activities According to the draft economic analysis, impacts on timberlands have historically resulted from implementation of lynx management plans and project modifications. The majority of forecast impacts on timber relate to potential restrictions on pre-commercial thinning, with nearly half of these impacts occurring on private timberland in Maine. The economic analysis applied two scenarios to bound the impacts resulting from potential changes to timber activities. Under Scenario 2, the upper bound, timber impacts range from $15.6 million (discounted at 7 percent) to $33.3 million (discounted at 3 percent) over 20 years. When compared to forestry-related earning across counties in the study area ($454 million in 2003), these potential losses are approximately 3 to 7 percent of total forestry-related earnings. Total forecast impacts to timber activities range from $117 million to $808 million over 20 years. Exhibits C-1 through C-4 of the economic analysis quantify the small timber companies that may be affected by the proposed rule. However, the draft economic analysis states that it is uncertain whether private timber companies will be affected by the designation of critical habitat. Government agencies, such as the U.S. Forest Service, are subject to critical habitat consultations.
(b)Residential and Commercial Development Because specific information on how residential and commercial development projects would mitigate for impacts to lynx and its habitat is unknown, the draft economic analysis does not attempt to quantify the economic impacts of mitigating development activities. Instead, it presents the full value that may be derived from potential future development within the potential critical habitat. The total projected future development value of areas proposed for designation as critical habitat for the lynx is approximately $2.26 billion. Approximately 69.1 percent ($1.56 billion) of this is the value of future development in Minnesota (Unit 2); 25.7 percent ($579 million) of this is the value of future development in Maine (Unit 1), of which $1.57 million is proposed for exclusion; and 5.2 percent ($117 million) of this is the value of future development in Montana. Lands proposed for critical habitat in Washington are characterized by public lands managed for timber and recreation. As such, residential and commercial development is not considered to be a future land use, and the value of these lands for future development is considered to be negligible. Recognizing that approximately 80 percent of the projected value of potential future residential and commercial development within the area proposed as critical habitat consist of lands within Minnesota and recognizing the potential effects on landowners and development companies, we will consider this information pursuant to section 4(b)(2) during the development of the final designation. No North American Industry Classification System (NAICS) code exists for landowners, and the Small Business Administration does not provide a definition of a small landowner. However, recognizing that it is possible that some of the landowners may be small businesses, this analysis provides information concerning the number of landowners potentially affected: An upward estimate of 38 in Maine, 53 in Minnesota, and 110 in Montana. It is possible that a portion of these affected landowners could be small businesses in the residential or commercial land development industry or could be associated businesses, such as builders and developers. Actual conservation requirements undertaken by an individual landowner will depend on how much of a parcel lies within or affects proposed critical habitat. Individual single-family home development has not historically been subject to consultation or habitat conservation requirements for lynx, although consultation could be required if Federal permits from the Army Corps of Engineers, Environmental Protection Agency, or Federal Emergency Management Agency are required. For these reasons, we are requesting comments from any potentially affected small businesses involved in residential and commercial development activities, about the impacts resulting from the proposed designation of critical habitat. How will small businesses, such as landowners, builders or developers be affected by this critical habitat designation? The economic analysis presents the full potential development value of impacted lands within the potential critical habitat as a baseline, but does not provide a cost estimate. How could this estimate be refined to demonstrate how small businesses in the residential and commercial development field will be affected by this critical habitat designation? What would you suggest as another measure of these costs?
(c)Recreation Recreational activities that have the potential to affect the lynx and its habitat include over-the-snow trails for snowmobiling and cross-country skiing, accidental trapping or shooting, and recreation area expansions such as ski resorts, campgrounds, or snowmobile areas. Total forecast costs to all recreation activities in areas proposed for designation are $1.05 to $3.46 million, or an annualized estimate of $57,600 to $178,000 (applying a 7 percent discount rate) or $54,500 to $175,000 (applying a 3 percent discount rate). Impacts to recreation activity forecast in the draft analysis include welfare impacts to individual snowmobilers; however, the level of participation is not expected to change. As no decrease in the level of snowmobiling activity is forecast, impacts to small businesses that support the recreation sector are not anticipated. We are requesting comments from any potentially affected small businesses involved in recreation activities, about the impacts resulting from the proposed designation of critical habitat. What are the estimated cost impacts of this proposed designation to your small business?
(d)Public lands management and conservation planning The draft economic analysis estimates that total post-designation costs of lynx conservation efforts associated with public and conservation lands management in areas proposed for designation to be approximately $12.8 million over the next 20 years, or an annualized cost of $940,000 (present value applying a 7 percent discount rate) or $767,000 (applying a 3 percent discount rate). The majority of public lands are managed by Federal and State entities that do not qualify as small businesses. As such, designation of critical habitat for lynx is not anticipated to have a significant impact on a substantial number of small businesses involved in public lands management or conservation planning.
(e)Transportation, Utilities, and Municipal Activities The draft economic analysis estimates that total post-designation costs resulting from lynx conservation efforts associated with transportation, utilities, and municipal activities for areas proposed for designation will range from $34.9 million to $55.1 million over the next 20 years, or an annualized value of $1.9 to 2.9 million (present value applying a 7 percent discount rate) or $1.8 to $2.8 million (present value applying a 3 percent discount rate). Of the total post-designation costs, approximately 71 percent are attributed to transportation activities, and 29 percent are attributed to utility and municipal activities. Impacts to transportation and municipal projects are expected to be borne by the Federal and State agencies undertaking lynx-related modifications to these types of projects, including the Federal Highway Administration, the Federal Emergency Management Agency, the U.S. Army Corps of Engineers, and State transportation departments. Since Federal and State entities do not qualify as small businesses, the designation of critical habitat for the lynx is not anticipated to have a significant impact on a substantial number of small businesses associated with transportation, utilities, and municipal activities. Impacts to dam projects, including costs of remote monitoring for lynx that could be required for relicensing of dams, could be borne by the companies that own the dams. In particular, 14 dams in Minnesota and two in Maine are expected to consider lynx conservation at the time of relicensing. The economic analysis estimated costs of $13,000 to $18,000 to each of these 16 dam projects in 2025. Based on these small costs, we do not anticipate that this would be a significant impact to dam operators.
(f)Mining Operations The draft economic analysis estimates total post-designation costs resulting from lynx conservation efforts associated with mining projects of approximately $430,000, or an annualized rate of $38,000 (present value applying a 7 percent discount rate) or $28,100 (present value applying a 3 percent discount rate). Unit 2 (Minnesota) is the only area of potential critical habitat for which future surface mining expansion and development projects have been identified; specifically, three new or expanded mining projects are forecast to occur on leased lands of Superior National Forest. The greatest impact estimated is $375,000 or an annualized impact of $33,100 for the East Reserve Mine, which has a total value of $819 million, which equates to less than a 1 percent annual impact to the mine relative to its total value. There is an uncertainty for realized impacts on the mining industry from lynx conservation activities. We are requesting comments from any potentially affected small businesses involved in the mining industry, about the impacts resulting from the proposed designation of critical habitat. What are the estimated cost impacts of this proposed designation to your small business? We evaluated small business entities relative to the proposed designation of critical habitat for the lynx to determine potential effects to these business entities and the scale of any potential impact. Based on our analysis, there are potential projected impacts associated with small entities in the areas of timber activities, recreation, public lands management, conservation planning, transportation, and mining. There is also a possibility of potential projected impacts to development activities. Due to the lack of information, the economic analysis for this critical habitat does not attempt to assign development impacts to specific small entities, rather leaving open the question of whether any small entities will be affected. We have outlined above potential projected future impacts to these entities resulting from conservation-related activities for the lynx, and asked potential affected small entities for input as to what the likely impacts will be for their industry sectors. We do, however, recognize that there may be disproportionate impact to certain sectors and geographic areas within lands proposed for designation. As such, we will more fully evaluate these potential impacts during the development of the final designation, and may, if appropriate, consider such lands for exclusion pursuant to section 4(b)(2) of the Act. Executive Order 13211—Energy Supply, Distribution, and Use On May 18, 2001, the President issued Executive Order 13211 on regulations that significantly affect energy supply, distribution, and use. Executive Order 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed designation of critical habitat for the Canada lynx is considered a significant regulatory action under Executive Order 12866 due to it potentially raising novel legal and policy issues. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared without the regulatory action under consideration. The draft economic analysis finds that none of these criteria are relevant to this analysis (refer to Appendix C of the draft economic analysis). Thus, based on the information in the draft economic analysis, energy-related impacts associated with lynx conservation activities within proposed critical habitat are not expected. As such, the proposed designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use and a Statement of Energy Effects is not required. Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ) In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:
(a)This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with the following two exceptions: It excludes “a condition of federal assistance” and “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. At the time of enactment, these entitlement programs were: Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except
(i)a condition of Federal assistance; or
(ii)a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose a legally binding duty on non-Federal Government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, or permits, or that otherwise require approval or authorization from a Federal agency for an action, may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply; nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.
(b)The draft economic analysis discusses potential impacts of critical habitat designation for lynx on timber activities, development, recreation, public lands management and conservation planning, transportation, utilities, and municipal activities, and mining operations. The analysis estimates that annual costs of the rule could range from $175 million to $889 million in constant dollars over 20 years. Impacts are largely anticipated to affect timber management, with some effects on residential and commercial development, recreation, and transportation. Impacts on small governments are either not anticipated, or they are anticipated to be passed through to consumers. Consequently, for the reasons discussed above, we do not believe that the designation of critical habitat for lynx will significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required. Executive Order 12630—Takings In accordance with Executive Order 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for the lynx in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for the lynx does not pose significant takings implications. Author The primary authors of this notice are the staff of the Montana Ecological Services Field Office (see ADDRESSES section). Authority: The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq* ). Dated: August 29, 2006. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 06-7579 Filed 9-6-06; 2:32 pm]
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register
U.S. Code
CFR
- May I address the unsafe condition in a way other than that set out in the airworthiness directive?§ 39.19
- Issue of type certificate: import products.§ 21.29
- Darby Creek.§ 117.903
- Delegation of rulemaking authority.§ 1.05-1
- What size standards has SBA identified by North American Industry Classification System codes?§ 121.201
16 references not yet in our index
- 14 CFR 39
- 29 CFR 2509
- 29 CFR 2509.75-9
- 30 CFR 938
- 33 CFR 117
- 5 USC 601-612
- Pub. L. 104-121
- 44 USC 3501-3520
- 2 USC 1531-1538
- 42 USC 4321-4370f
- Pub. L. 102-587
- 106 Stat. 5039
- 40 CFR 355
- 40 CFR 2
- 50 CFR 17
- 40 CFR 1500
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cites case law
Proposed Rules
Supplemental notice of proposed rulemaking (NPRM); reopening of comment period
Cite14 CFR 39
Cite29 CFR 2509
Cite29 CFR 2509.75-9
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