Tap any paragraph to write a margin note. Your notes collect in the Desk below the text and file under cases with @. The side-by-side margin rail opens on a larger screen.

§
Marginalia
Code · REGISTER · 2006-11-16 · Nuclear Regulatory Commission · Rules and Regulations

Rules and Regulations. Direct final rule

27,179 words·~124 min read·/register/2006/11/16/06-9237

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

BILLING CODE 3410-02-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 50 RIN 3150-AH95 Criticality Control of Fuel Within Dry Storage Casks or Transportation Packages in a Spent Fuel Pool AGENCY: Nuclear Regulatory Commission. ACTION: Direct final rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is amending its regulations that govern domestic licensing of production and utilization facilities so that the requirements governing criticality control for spent fuel pool storage racks do not apply to the fuel within a spent fuel transportation package or storage cask when a package or cask is in a spent fuel pool. These packages and casks are subject to separate criticality control requirements. This action is necessary to avoid applying two different sets of criticality control requirements to fuel within a package or cask in a spent fuel pool. DATES: *Effective Date:* The final rule will become effective January 30, 2007, unless significant adverse comments are received by December 18, 2006. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change (refer to “Procedural Background” in the Supplementary Information section of this document for further details). If the rule is withdrawn, timely notice will be published in the **Federal Register** . Comments received after December 18, 2006 will be considered if it is practical to do so, but the NRC is able to ensure only that comments received on or before this date will be considered. ADDRESSES: You may submit comments by any one of the following methods. Please include the following number RIN 3150-AH95 in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available for public inspection. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including personal information such as social security numbers and birth dates in your submission. *Mail comments to:* Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. *E-mail comments to:* *SECY@nrc.gov.* If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at
(301)415-1966. You may also submit comments via the NRC's rulemaking Web site at *http://ruleforum.llnl.gov.* Address questions about our rulemaking website to Carol Gallagher at
(301)415-5905; e-mail cag@nrc.gov. Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov.* *Hand deliver comments to:* 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays [telephone
(301)415-1966]. *Fax comments to:* Secretary, U.S. Nuclear Regulatory Commission at
(301)415-1101. Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O-1F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. The PDR reproduction contractor will copy documents for a fee. Selected documents, including comments, can be viewed and downloaded electronically via the NRC rulemaking Web site at *http://ruleforum.llnl.gov.* Publicly available documents created or received at the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: George M. Tartal, Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-0016, e-mail *gmt1@nrc.gov.* SUPPLEMENTARY INFORMATION: I. Background Storage of spent fuel can be done safely in a water filled spent fuel pool under 10 CFR Part 50, a transportation package under 10 CFR Part 71, or a dry storage cask under 10 CFR Part 72. The primary technical challenges involve removing the heat generated by the spent fuel (decay heat), storing the fuel in an arrangement that avoids an accidental criticality, and providing radiation shielding. Removing the decay heat keeps the spent fuel from becoming damaged due to excessive heatup. Transportation packages and dry storage casks are designed to be capable of removing the decay heat generated by the fuel when filled with water or when dry without the need for active heat removal systems. Avoiding an accidental criticality is important to preclude the possibility of overheating the spent fuel and damaging the fuel. When dry, transportation packages and dry storage casks are subcritical by the absence of water as a neutron moderator, as well as by geometric design, and through the use of neutron poison materials such as boral and poison plates. When the packages and casks are flooded with water, they may also rely on soluble boron to maintain the subcritical condition. Therefore, a boron dilution event is the scenario that could result in an accidental criticality with the possibility of excessive fuel temperature and subsequent fuel damage. Radiation shielding, provided by the water in a spent fuel pool or the container material in a transportation package or dry storage cask, is important to protect people that may be near the spent fuel from unacceptable exposure to radiation. The NRC has promulgated regulations governing the capability of both spent fuel pools (10 CFR Parts 50 and 70), dry storage casks (10 CFR Part 72) and transportation packages (10 CFR Part 71) to address these technical challenges for the protection of public health and safety. 10 CFR 50.68 requires that spent fuel pools remain subcritical in an unborated, maximum moderation condition. Implementation of this regulation also allows credit for the operating history of the fuel (fuel burnup) when analyzing the storage configuration of the spent fuel. 10 CFR Parts 71 and 72 approve the use of spent fuel transportation packages and storage casks, respectively. 10 CFR Part 71 requires that transportation packages be designed assuming they can be flooded with fresh water (unborated), and thus are already analyzed in a manner that complies with the 10 CFR 50.68 assumption. However, 10 CFR Part 72 was, in part, predicated on the assumption that spent fuel (without any burnup) would remain subcritical when stored dry in a cask and remain subcritical when placed in a cask in a spent fuel pool at a commercial power reactor. Implementation of 10 CFR Part 72 relies on soluble boron, rather than on burnup, to assure subcriticality when the fuel is in a cask in a spent fuel pool. On March 23, 2005, the NRC issued Regulatory Issue Summary
(RIS)2005-05 addressing spent fuel criticality analyses for spent fuel pools under 10 CFR 50.68 and Independent Spent Fuel Storage Installations (ISFSI) under 10 CFR Part 72. The intent of the RIS was to advise reactor licensees that they must meet both the requirements of 10 CFR 50.68 and 10 CFR Part 72 with respect to subcriticality during storage cask loading in spent fuel pools. The need to meet both regulations and the differences in the assumptions described above create an additional burden on licensees to show that credit for soluble boron is not required to preclude an accidental criticality in a water-filled, high-density dry storage cask used for storing fuel. In order to satisfy both of these requirements, a site-specific analysis that demonstrates that the casks would remain subcritical for the specific irradiated fuel loading planned, without credit for soluble boron, as described in 10 CFR 50.68 is required. This analysis relies on the fuel burnup to determine the margin to criticality for the specific cask loading. The analysis is similar to that conducted for the spent fuel pool itself, but takes into account the unique design features of the cask when determining the minimum burnup required for spent fuel storage in the specific cask. This issue only applies to pressurized water reactors
(PWR)because boiling water reactor
(BWR)spent fuel pools do not contain soluble boron and the casks that are used to load BWR fuel do not rely on soluble boron to maintain subcriticality. The regulations, as currently written, create an unnecessary burden for both industry and the NRC, of performing two different analyses with two different sets of assumptions for the purpose of preventing a criticality accident, with no associated safety benefit. This burden is considered unnecessary because the conditions which could dilute the boron concentration within a transportation package or dry storage cask (hereinafter “package or cask”) in a spent fuel pool, and cause fuel damage with the release of radioactive material, are highly unlikely. The NRC evaluated the two scenarios in which a boron dilution could occur:
(1)A rapid drain down and subsequent reflood of the spent fuel pool, or
(2)a slow boron dilution of the spent fuel pool. The result of the NRC evaluation is that the possibility of each scenario is highly unlikely (see Appendix A for additional details). Therefore, there is no safety benefit from requiring the licensee to conduct a site specific analysis to comply with 10 CFR 50.68(b) while fuel is within a package or cask in a spent fuel pool. As a result, a revision to the Commission's regulations is necessary to eliminate the requirement for separate criticality analyses using different methodologies and acceptance criteria for fuel within a package or cask in a spent fuel pool. This direct final rule will eliminate the need to comply with the criticality control requirements in § 50.68 if fuel is within a package or cask in a spent fuel pool. Instead, the criticality requirements of 10 CFR Parts 71 and 72, as applicable, would apply to fuel within packages and casks in a spent fuel pool. For fuel in the spent fuel pool but outside the package or cask, the criticality requirements of 10 CFR 50.68 would apply. II. Section-by-Section Analysis of Substantive Changes Section 50.68 Criticality Accident Requirements Section 50.68 describes the requirements for maintaining subcriticality of fuel assemblies in the spent fuel pool. New paragraph
(c)of this section states that the criticality accident requirements of 10 CFR 50.68(b) do not apply to fuel within a package or cask in a spent fuel pool. Rather, the criticality accident requirements of 10 CFR Part 71 or 72, as applicable, apply to fuel within a package or cask in a spent fuel pool. This new paragraph provides the regulatory boundary between § 50.68(b) and 10 CFR Part 71 or 72 for performing criticality analyses. A licensee moving fuel between the spent fuel pool and a package or cask need only analyze fuel within the package or cask according to 10 CFR Part 71 or 72, as applicable, and is not required to analyze fuel within the package or cask using § 50.68(b) requirements. For the purpose of this paragraph, any package or cask that is in contact with the water in a spent fuel pool is considered “in” the spent fuel pool. Also, once any portion of the fuel (fuel assembly, fuel bundle, fuel pin, or other device containing fuel) enters the physical boundary of the package or cask, that fuel is considered “within” that package or cask. When a package or cask is in a spent fuel pool, the criticality requirements of 10 CFR Part 71 or 72, as applicable, and the requirements of the Certificate of Compliance for that package or cask, apply to the fuel within that package or cask. Criticality analysis for the fuel in that package or cask in accordance with § 50.68(b) is not required. For fuel in the spent fuel pool and not within a package or cask, the criticality requirements of § 50.68(b) apply. III. Procedural Background The NRC is using the “direct final rule procedure” to issue this amendment because it is not expected to be controversial. The amendment to the rule will become effective on January 30, 2007. However, if the NRC receives significant adverse comments by December 18, 2006, then the NRC will publish a document that withdraws this action. In that event, the comments received in response to this amendment would then be considered as comments on the companion proposed rule published elsewhere in this **Federal Register** , and the comments will be addressed in a later final rule based on that proposed rule. Unless the modifications to the proposed rule are significant enough to require that it be republished as a proposed rule, the NRC will not initiate a second comment period on this action. A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:
(1)The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:
(a)The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;
(b)The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or
(c)The comment raises a relevant issue that was not previously addressed or considered by the NRC.
(2)The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.
(3)The comment causes the NRC to make a change (other than editorial) to the rule. IV. Voluntary Consensus Standards The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. This direct final rule eliminates duplication of criticality control requirements for fuel within a package or cask in the spent fuel pool. These packages and casks have separate requirements for criticality control during loading, storage and unloading operations. This rulemaking does not involve the establishment or use of technical standards, and hence this act does not apply to this direct final rule. V. Agreement State Compatibility Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the NRC on June 30, 1997, and published in the **Federal Register** on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended (AEA), or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State. VI. Plain Language The Presidential Memorandum dated June 1, 1998, entitled “Plain Language in Government Writing,” directed that the Government's writing be in plain language. The NRC requests comments on this direct final rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the heading ADDRESSES above. VII. Finding of No Significant Environmental Impact: Environmental Assessment The NRC has determined under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The basis for this determination is set forth below. This direct final rule eliminates duplication of criticality control requirements for fuel within a package or cask in the spent fuel pool. These packages and casks are required to meet the licensing requirements, defined in 10 CFR Part 71 or 72, as applicable, and the applicable Certificate of Compliance (CoC), which currently provide criticality control requirements for fuel loading, storage and unloading. This rulemaking will preclude the necessity for nuclear power plant licensees to meet the criticality control requirements for both regulations (for 10 CFR Part 50 and for 10 CFR Part 71 or 72) while fuel is within a package or cask in a spent fuel pool. The regulations in 10 CFR Parts 71 and 72, as applicable, coupled with the package or cask CoC, provide adequate assurance that there are no inadvertent criticality events while fuel is within a package or cask in a spent fuel pool. Experience over 20 years has demonstrated that the regulations in 10 CFR Parts 71 and 72 have been effective in preventing inadvertent criticality events, and the NRC concludes that as a matter of regulatory efficiency, there is no purpose to requiring licensees to apply for and obtain exemptions from requirements of § 50.68(b) if they adhere to the regulations in 10 CFR Part 71 or 72 as applicable. Since the regulations in 10 CFR Parts 71 and 72 and the CoC provide safe and effective methods for preventing inadvertent criticality events in nuclear power plants, the NRC concludes that this direct final rule will not have any significant impact on the quality of the human environment. Therefore, an environmental impact statement has not been prepared for this direct final rule. The foregoing constitutes the environmental assessment for this direct final rule. VIII. Paperwork Reduction Act Statement This direct final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Existing requirements were approved by the Office of Management and Budget, Approval Number 3150-0011, 3150-0008 and 3150-0132. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number. IX. Regulatory Analysis Statement of the Problem and Objectives As described in the Background section of this document, the need to meet the criticality accident requirements of 10 CFR 50.68 and of 10 CFR Part 71 or 72, and the differences in their assumptions, create an additional burden on licensees to show that credit for soluble boron is not required to preclude an accidental criticality in a water-filled package for transporting fuel or a water-filled, high-density dry storage cask used for storing fuel. In order to satisfy both of these requirements, a site-specific analysis that demonstrates that the fuel in the package or cask would remain subcritical for the specific irradiated fuel loading planned, without credit for soluble boron, would be required. In the § 50.68 analysis, the licensee would rely on the fuel burnup to determine the margin to criticality for the specific package or cask loading. The § 50.68 analysis would be similar to that conducted for the spent fuel pool itself, but would take into account the unique design features of the package or cask when determining the minimum burnup required for spent fuel storage in the specific package or cask. This issue only applies to PWRs because BWR spent fuel pools do not contain soluble boron and the packages and casks that are used to load BWR fuel do not rely on soluble boron to maintain subcriticality. As currently written, these regulations create an unnecessary burden for both industry and the NRC with no associated safety benefit. The objective of this rulemaking activity is to revise 10 CFR 50.68 to eliminate the requirement for licensees to perform a separate criticality analysis based on the requirements of 10 CFR 50.68 for fuel within a package or cask in a spent fuel pool. As a result, any fuel that is in the spent fuel pool and not within the physical boundary of a package or cask remains subject to the criticality requirements of § 50.68. Once the fuel enters the physical boundary of the package or cask, it is then subject to the criticality requirements of 10 CFR Part 71 or 72, as applicable, and no longer subject to the criticality requirements of § 50.68. Alternative Approaches and Their Values and Impacts Another option to this amendment is for the NRC to make no changes and allow the licensees to continue requesting exemptions. If no changes are made, the licensees will continue to incur the costs of submitting exemptions (approximately $300k) and NRC will incur the costs of reviewing them (approximately $150k). Under this rule, an easing of the burden on licensees results from not having to request exemptions. Similarly, the NRC's burden will be reduced by avoiding the need to review and evaluate these exemption requests. Another downfall to this option is that licensees may not apply 10 CFR 50.59 to exemptions, instead necessitating a new exemption for future modifications to package or cask design. Furthermore, licensees would not be in compliance with existing regulations, and that the NRC would then be regulating by exemption rather than by rule. A final option is for the NRC to make no change and licensees to request a license amendment to add a Technical Specification which restricts the burnup of spent fuel assemblies loaded into the package or cask. This license amendment would only be required once, putting the licensee into compliance with NRC regulations, and would then permit licensees to make modifications using 10 CFR 50.59. However, the burden of producing and approving an amendment on both the licensee (approximately $300k) and the NRC (approximately $100k) is quite significant, with no safety benefit. Decision Rationale for the Selected Regulatory Action Based on the evaluation of values and impacts of the alternative approaches, the NRC has decided to revise 10 CFR 50.68 to eliminate the requirement for licensees to perform a separate criticality analysis based on the requirements of 10 CFR 50.68 for fuel within a package or cask in a spent fuel pool. This rule revision is an easing of burden action which results in increased regulatory efficiency. The rule does not impose any additional costs on existing licensees and has no negative impact on public health and safety. The rule will provide savings to licensees that transfer fuel from the spent fuel pool to a dry storage cask or transportation package. There will also be savings in resources to the NRC as well. X. Regulatory Flexibility Certification Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This direct final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the Small Business Size Standards set out in regulations issued by the Small Business Administration at 10 CFR 2.810. XI. Backfit Analysis The NRC has determined that the backfit rule does not apply to this direct final rule because this amendment does not involve any provisions that would impose backfits as defined in 10 CFR 50.109. Reactor licensees are currently required to meet both the requirements of 10 CFR 50.68 and 10 CFR Part 71 or 72, as applicable, with respect to subcriticality during package or cask loading or unloading in spent fuel pools. The need to meet both regulations creates an additional burden on licensees to show that credit for soluble boron is not required to preclude an accidental criticality in a package or cask when filled with water. In order to satisfy both of these requirements, a site specific analysis that demonstrates that the fuel in the package or cask would remain subcritical for the specific irradiated fuel loading planned, without credit for boron, would be required. This action amends 10 CFR 50.68 so that the criticality accident requirements for spent fuel pool storage racks do not apply to the fuel within a package or cask in a spent fuel pool. This rule constitutes a voluntary relaxation of requirements, and as a result, a backfit analysis is not required. During the 535th meeting of the Advisory Committee for Reactor Safeguards on September 7, 2006, a concern was raised regarding any actions that would be required for licensees who have previously requested and been granted either:
(1)a license amendment to modify the plant technical specifications to comply with the criticality accident requirements of 10 CFR 50.68 for fuel in a 10 CFR Part 72 licensed cask in their spent fuel pool, or
(2)an exemption from the criticality accident requirements of 10 CFR 50.68 for fuel in a 10 CFR Part 72 licensed cask in their spent fuel pool. The NRC position is that this rulemaking activity does not constitute a backfit. The following discussion in the Backfit Analysis clarify this NRC position for the amendment or exemption cases described above. For licensees with an approved license amendment, no action is required by the licensee. The license amendment modified the licensee's 10 CFR Part 50 technical specifications by adding minimum fuel burnup limits to the fuel being loaded into a licensed dry storage cask. This direct final rule does not affect the licensee's ability to load spent fuel into the cask in accordance with the amended technical specifications, nor does it create any conflict with the amended technical specifications. Therefore, a licensee may choose to continue to comply with the requirements of their amended 10 CFR Part 50 license and with the requirements of 10 CFR Part 71 or Part 72, as applicable, while loading or unloading a package or cask in the spent fuel pool. However, for those licensees who have amended their 10 CFR Part 50 license to comply with 10 CFR 50.68 and have included minimum fuel burnup limits, and choose to take advantage of this voluntary relaxation of requirements, they must request removal of the previously amended portions of the 10 CFR Part 50 technical specifications as a conforming change consistent with the amended rule. For licensees with an approved exemption, no action is required by the licensee. The exemption permitted licensees to be exempt from the criticality accident requirements of 10 CFR 50.68 for fuel being loaded into a licensed dry storage cask. These licensees can continue operating under their approved exemption. However, a licensee may instead choose to comply with the amended rule. Operating under the exemption or the amended rule have effectively the same criticality accident requirements for fuel within a package or cask in a spent fuel pool, namely only those of 10 CFR Part 71 or Part 72, as applicable. XII. Congressional Review Act In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs, Office of Management and Budget. List of Subjects in 10 CFR Part 50 Antitrust, Classified information, Criminal penalties, Fire protection, Intergovernmental relations, Nuclear power plants and reactors, Radiation protection, Reactor siting criteria, Reporting and recordkeeping requirements. For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 50. PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES 1. The authority citation for part 50 continues to read as follows: Authority: Secs. 102, 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237). 2. Section 50.68 is amended by adding a new paragraph
(c)to read as follows: § 50.68 Criticality accident requirements.
(c)While a spent fuel transportation package approved under Part 71 of this chapter or spent fuel storage cask approved under Part 72 of this chapter is in the spent fuel pool:
(1)The requirements in § 50.68(b) do not apply to the fuel located within that package or cask; and
(2)The requirements in Part 71 or 72 of this chapter, as applicable, and the requirements of the Certificate of Compliance for that package or cask, apply to the fuel within that package or cask. Dated at Rockville, Maryland, this 31st day of October, 2006. For the Nuclear Regulatory Commission. William F. Kane, Deputy Executive Director for Reactor and Preparedness Programs Office of the Executive Director for Operations. Note: This Appendix will not appear in the Code of Federal Regulations. Appendix A: Technical Basis Document for RIN 3150-AH95 (RN 678) I. Background In the production of electricity from commercial power reactors, spent fuel that is generated needs to be stored and safely managed. As part of the design of all commercial power reactors, spent fuel storage pools
(SFP)were included to provide for the safe storage of spent fuel for a number of years. For many years there was sufficient room in the original spent fuel pools to continually store spent fuel without space restrictions being an immediate concern. In the 1960's and 1970's, when the spent fuel pools currently in use were designed and built, it was anticipated that the spent fuel would be moved off the reactor site for further processing and/or permanent disposal. The planned long-term approach is for disposal of this spent fuel in a permanent geological repository. As delays were encountered with the development of the permanent geological disposal site, the spent fuel pools began to fill up and space restrictions became a concern. Since the 1970's licensees, with NRC approval, have increased the storage capacity of the spent fuel pools by changing the designs of the storage racks to allow the fuel to be safely stored closer together. This was recognized as a short term solution, with the assumption that permanent disposal would be made available within a reasonable period. As additional delays were encountered with the permanent geological disposal of the spent fuel, the nuclear power industry, in conjunction with the NRC, developed alternative storage solutions, including storing the spent fuel in dry storage casks on their sites. Maintaining the capacity to store spent fuel in a spent fuel pool is important for safety. Being able to store the spent fuel in a water filled spent fuel pool allows the fuel that is removed from the reactor core at the start of a refueling outage to be safely cooled at the time it is generating the greatest decay heat. Also, the water provides shielding for the workers involved in conducting maintenance on the various systems and components necessary to safely operate the reactor. During a refueling outage, inspection and maintenance activities need to be performed on the systems and components that would normally protect the fuel from damage as a result of the operation of the reactor. These inspections and maintenance activities can be accomplished more effectively and efficiently by draining the water from the reactor coolant and other supporting systems. Placing the fuel assemblies in the spent fuel pool during this period allows the reactor coolant and other systems to be drained while keeping the spent fuel safe (covered with water). Therefore, it is important to maintain the capability to completely remove all of the fuel assemblies from the reactor vessel during a refueling outage (full core offload capability). From an operational perspective, additional capacity should be maintained to accommodate a full core offload as well as the storage of new fuel that replaces the spent fuel permanently removed from the reactor core. Storage of spent fuel can be done safely in a water filled spent fuel pool under 10 CFR Part 50, a transportation package under 10 CFR Part 71, or a dry storage cask under 10 CFR Part 72. The primary technical challenges involve removing the heat generated by the spent fuel (decay heat), storing the fuel in an arrangement that avoids an accidental criticality, and providing radiation shielding. Removing the decay heat keeps the spent fuel from becoming damaged due to excessive heatup. Dry storage casks are designed to be capable of removing the decay heat generated by the fuel when filled with water or when dry without the need for active heat removal systems. Avoiding an accidental criticality is important to preclude the possibility of overheating the spent fuel and damaging the fuel. When dry, casks are subcritical by the absence of water as a neutron moderator, as well as by geometric design, and for some cask designs through the use of neutron poison materials such as boral and poison plates. When the casks are flooded with water, they may also rely on soluble boron to maintain the subcritical condition. Therefore, a boron dilution event is the scenario that could result in an accidental criticality with the possibility of excessive fuel temperature and subsequent fuel damage. Radiation shielding, provided by the water in a spent fuel pool or the container material in a dry storage cask, is important to protect people that may be near the spent fuel from unacceptable exposure to radiation. The NRC has promulgated regulations governing the capability of both spent fuel pools (10 CFR Parts 50 and 70), dry storage casks (10 CFR Part 72) and transportation packages (10 CFR Part 71) to address these technical challenges for the protection of public health and safety. Since the original design of commercial reactors included spent fuel pools, the spent fuel is stored in these pools when it initially comes out of the reactor. Decay heat from this spent fuel is primarily produced by the radioactive decay of fission products generated during the period the fuel is in the reactor core. As the fission products decay, the amount of decay heat generated in the spent fuel also decreases. So, over time the spent fuel becomes cooler, requiring less heat removal capability. Since the decay heat is higher when the spent fuel is removed from the reactor, it is more efficient to cool the fuel in a spent fuel pool where the fuel is surrounded by water. This allows the heat to be transferred to the water in the pool. The spent fuel pool requires a dedicated cooling system to maintain the temperature of the water in the pool cool enough to prevent the water from boiling. The spent fuel is allowed to cool down in the spent fuel pool for several years before it is placed in a dry cask storage cask or transportation package. When placed in a dry storage cask or transportation package, the amount of heat generated by the spent fuel is low enough that the fuel can be cooled by the gas surrounding the fuel with the heat being transferred through the cask or package to the surrounding air. Once placed in the dry storage cask or transportation package, the fuel will remain cool enough to prevent fuel damage without the need for an auxiliary cooling system. Spent fuel pools, dry storage casks and transportation packages are designed to preclude an accidental criticality primarily by relying on the geometrical configuration of how the spent fuel is stored. Both wet and dry storage may rely on material that absorbs the neutrons necessary for the fission process to occur (fixed neutron poisons, such as boral, poison plates, etc.). This material is inserted when building the storage racks or when building the cask/package. This material is integral to the storage racks in the spent fuel pool and in the cask/package used to physically hold the spent fuel in place. This establishes the geometrical configuration of how the spent fuel is stored. Criticality is of a greater concern when the fuel is stored in a spent fuel pool because the water used to cool the fuel is also a very effective moderator that facilitates the nuclear fission process. In dry storage, the spent fuel is surrounded by a gas that does not act as a moderator, therefore, criticality is a significantly smaller concern and the spent fuel can be safely stored closer together than in a spent fuel pool. Transfer of the spent fuel from the spent fuel pool to the cask/package is performed while the cask/package is submerged in the spent fuel pool. When the cask/package is in the spent fuel pool, the fuel stored in the cask/package is surrounded by water, making an accidental criticality a concern. To preclude an accidental criticality in this circumstance, other physical processes or systems are used, primarily by putting a neutron poison (boron) in the water. Before any spent fuel is placed in either a spent fuel pool or a cask/package, a detailed analysis is conducted that demonstrates that the geometrical configuration and other physical systems or processes provide reasonable assurance that an accidental criticality will be prevented. It is also possible that the spent fuel would need to be transferred out of a dry storage cask and back in to the spent fuel pool. This might arise in one of two situations. The first situation is that it might be necessary to inspect the spent fuel or the dry storage cask itself. This would necessitate transferring some or all of the spent fuel in the dry storage cask back into the spent fuel pool. The second and more probable situation that would require unloading the spent fuel from the dry storage cask back into the spent fuel pool, would be in preparation for shipment of the spent fuel. Before the spent fuel in a dry storage cask licensed pursuant to 10 CFR Part 72 only (not also licensed pursuant to 10 CFR Part 71) can be shipped, it must first be transferred to an approved transportation package licensed pursuant to 10 CFR Part 71. In order to place the spent fuel into the transportation package, it must first be unloaded from the dry storage cask back into the spent fuel pool. The dry storage cask is then removed from the spent fuel pool and is replaced by the transportation package. The spent fuel is then loaded into the transportation package. As described in more detail below, there are sufficient regulatory controls in place to provide reasonable assurance that spent fuel can be safely stored both in spent fuel pools and in dry storage casks or transportation packages. The purpose for the change to 10 CFR 50.68 is to reduce the regulatory burden imposed on licensees by removing a requirement for an unnecessary criticality analysis. This change clarifies that, when loading spent fuel into a dry storage cask or transportation package while in the spent fuel pool, the license requirements and controls (including the physical processes and systems) relied on by the NRC in its determination that a specific dry storage cask or transportation package is acceptable shall be followed and provide the basis for the NRC concluding that public health and safety are maintained. II. Regulatory Evaluation The regulation at 10 CFR 50.68 requires that pressurized water reactor
(PWR)SFPs remain subcritical in an unborated, maximum moderation condition. To demonstrate that the fuel in the SFP remains subcritical in this condition, 10 CFR 50.68 allows credit for the operating history of the fuel (fuel burnup) when analyzing the storage configuration of the spent fuel. Taking the burnup of the spent fuel into consideration reduces the reactivity of the fuel and reduces the need for soluble boron to demonstrate subcriticality. Meeting the unborated condition requirement provides reasonable assurance that potential boron dilution events that could occur during the storage period of spent fuel in the SFP would not result in an accidental criticality. Boron dilution events could occur due to leakage from the spent fuel pool requiring replenishment from an unborated water source. For example, a SFP liner rupture due to an earthquake could result in a rapid drain down of the SFP as could a rupture of the SFP cooling system. Dilution could also result from the introduction of unborated water in the vicinity of the SFP, such as from a fire suppression system. For the rapid drain down scenario, the SFP might be replenished with unborated sources of water in an effort to quickly reestablish spent fuel cooling and to provide shielding. It is necessary to reestablish spent fuel cooling during a rapid drain down event to preclude the possibility of the elevated cladding temperature that could cause overheating of the fuel and a loss of fuel cladding integrity. Because of the very low likelihood of a rapid drain down event, it is not considered part of the licensing basis for commercial nuclear power reactors. Storage casks are approved for use by the NRC by the issuance of specific and general licenses pursuant to 10 CFR Part 72. Transportation packages for spent fuel are licensed pursuant to 10 CFR Part 71. 10 CFR Part 71 currently requires that the criticality safety system for transportation packages be designed with the assumption that a package can be flooded with fresh water (i.e., no soluble boron). Therefore, the transportation packages are already analyzed in a manner that complies with the 10 CFR 50.68 assumption. The following discussions will then focus only on storage casks. However, the transportation packages are included in the proposed change in order to allow loading/unloading operation of a transportation package into a 10 CFR Part 50 facility (i.e., spent fuel pool) without the need for a specific license or exemption considerations under 10 CFR Part 50. The certificates and licenses issued by the NRC for these storage casks and the requirements of 10 CFR Part 72 include controls for fuel loading, storage, and unloading that provide reasonable assurance that spent fuel cooling is maintained and an accidental criticality is avoided. These controls are not identical to the requirements contained in 10 CFR 50.68, but instead allow for an alternate means of assuring safety by providing additional requirements that are not present in 10 CFR 50.68. NRC approval of the storage cask designs was, in part, predicated on the assumption that unirradiated commercial nuclear fuel (fresh fuel) of no more than 5 weight percent enrichment would remain subcritical when stored in its dry configuration and that it would remain subcritical with a sufficient boron concentration (if any boron was required) when stored in a water filled configuration, such as when it is in a SFP at a commercial power reactor. Under 10 CFR Part 72, reliance is placed on soluble boron to assure subcriticality when the cask is full of water, rather than relying on fuel burnup. The fresh fuel assumption allowed the NRC to generically approve storage casks without regard to the operating history of the fuel from a criticality perspective by establishing a bounding case for the various fuel types that could be stored in the approved storage casks. If generic fuel burnup data were available, the NRC may have been able to approve storage cask designs without the need for boron to assure subcriticality, but would have put in place a minimum fuel burnup requirement instead. By having the 10 CFR Part 72 controls in place, loading, storage, and unloading of spent fuel can be accomplished in a manner that precludes an accidental criticality while maintaining sufficient fuel cooling capabilities. III. Problem Statement On March 23, 2005, the NRC issued Regulatory Issue Summary
(RIS)2005-05 addressing spent fuel criticality analyses for SFPs under 10 CFR 50.68 and Independent Spent Fuel Storage Installations (ISFSI) under 10 CFR Part 72. The intent of the RIS was to inform reactor licensees that they must meet both the requirements of 10 CFR 50.68 and 10 CFR Part 72 with respect to subcriticality during storage cask loading in SFPs. Different assumptions are relied on under these regulations to achieve the same underlying purpose, namely to place spent fuel in a condition such that it remains cooled and to preclude an accidental criticality. The need to meet both regulations and the differences in the assumptions creates an additional burden on licensees to show that credit for boron is not required to preclude an accidental criticality in a storage cask when filled with water. This condition exists for NRC approved high density storage casks used for storing PWR fuel. As permitted under 10 CFR Part 72, boron can be relied on at PWR SFPs to maintain subcriticality during storage cask loading or unloading. However, 10 CFR 50.68 requires that spent fuel assemblies be subcritical with unborated water in SFPs. In order to satisfy both of these requirements, a site specific analysis that demonstrates that the storage casks would remain subcritical for the specific irradiated fuel loading planned, without credit for boron, would be required. In this analysis, the licensee would rely on the fuel burnup to determine the margin to criticality for the specific cask loading. The analysis would be similar to that conducted for the SFP itself, but would take into account the unique design features of the storage cask when determining the minimum burnup required for spent fuel storage in the specific cask. In a July 25, 2005, letter to the NRC, the Nuclear Energy Institute
(NEI)indicated that the implementation of the RIS recommendations would “create an unnecessary burden for both industry and the NRC with no associated safety benefit for public.” In other words, preparing an amendment application by performing a redundant criticality analysis consistent with 10 CFR 50.68 would cause “an unnecessary administrative burden for licensees with no commensurate safety benefits” because the dry storage cask had already been approved based on the criticality analysis and assumptions required by 10 CFR Part 72, i.e., boron credit with no burnup credit. NEI reiterated its position at a meeting with the NRC staff on November 10, 2005. Subsequent to the November 10, 2005 meeting, the NRC decided to examine the likelihood of criticality in casks while submerged in SFPs during loading or unloading in the event of a boron dilution in SFPs due to natural phenomena and other scenarios. Based on the low likelihood of such an event, NRC has determined that a revision to 10 CFR 50.68 clarifying that the requirements of 10 CFR Part 71 or 72, as appropriate, apply to transportation packages and storage casks during loading and unloading operations while submerged in a PWR SFP. This issue does not apply to boiling water reactors
(BWR)because BWR SFPs do not contain boron and dry storage casks that are used to load BWR fuel do not rely on boron to maintain subcriticality. As discussed below, there is no safety benefit from requiring the licensee to conduct a site specific analysis to comply with 10 CFR 50.68(b) in support of dry storage cask loading, fuel storage, or unloading activities. IV. Technical Evaluation In assessing the proposed change to 10 CFR 50.68, the staff considered what type of events could lead to damage of the fuel in a storage cask as a result of the proposed change. Since the central issue in the application of the regulations is whether boron is credited as a control for avoiding an accidental criticality, events that reduce the boron concentration in the storage cask were considered the only events that would be affected by the proposed change. There are two types of scenarios in which a boron dilution could occur. A rapid drain down and subsequent reflood of the SFP or in leakage from the SFP cooling system or from an unborated water source in the vicinity of the SFP (i.e., fire suppression system) that would go undetected by normal licensee activities (slow boron dilution event). Each of these scenarios are addressed below. a. Slow Boron Dilution Event The possibility of a slow boron dilution event resulting in an accidental criticality event in a storage cask in a SFP is highly unlikely based on the requirements contained in the technical specifications attached to the Certificate of Compliance issued under 10 CFR Part 71 or 72 for the specific cask design. The storage cask technical specifications require measurements of the concentration of dissolved boron in a SFP before and during cask loading and unloading operations. At a point a few hours prior to insertion of the first fuel assembly into a storage cask, independent measurements of the dissolved boron concentration in the SFP are performed. During the loading and unloading operation, the dissolved boron concentration in the water is confirmed at intervals that do not exceed 72 hours. The measurements of the dissolved boron in the SFP are performed independently by two different individuals gathering two different samples. This redundancy reduces the possibility of an error and increases the accuracy of the measurement that is used to confirm that the boron concentration is in compliance with the storage cask's technical specifications. These measurements are continued until the storage cask is removed from the SFP or the fuel is removed from the cask. In addition to the storage cask technical specification boron concentration sampling requirements, 10 CFR Part 72 also requires criticality monitoring. As stated in 10 CFR 72.124(c), a criticality monitoring system is required for dry storage cask loading, storage, or unloading operations: “A criticality monitoring system shall be maintained in each area where special nuclear material is handled, used, or stored which will energize clearly audible alarm signals if accidental criticality occurs. Underwater monitoring is not required when special nuclear material is handled or stored beneath water shielding. Monitoring of dry storage areas where special nuclear material is packaged in its stored configuration under a license issued under this subpart is not required.” Although 10 CFR 72.124(c) states “underwater [criticality] monitoring is not required,” criticality monitoring is required when special nuclear material is handled, used, or stored at facilities where the requirements of 10 CFR Part 72 apply. The point being made in 10 CFR 72.124(c) is that the criticality monitors are not required to be located under the water, but rather that criticality monitors can be located above the water to satisfy this requirement. The facilities to which this requirement applies include 10 CFR Part 50 SFPs when loading, storing, or unloading fuel in storage casks licensed under 10 CFR Part 72. The underlying intent of 10 CFR 72.124(c) is that criticality monitors are required under circumstances where an accidental criticality could occur as the result of changes in the critical configuration of special nuclear material. As such, storage cask loading and unloading activities need to be monitored to provide reasonable assurance that these fuel handling activities (changes in the critical configuration) do not result in an accidental criticality. When storing fuel in a storage cask that requires boron to remain subcritical while submerged in the SFP, the critical configuration can be affected by changes to the moderation (temperature changes of the water) or boron concentration. The primary concern during storage under these circumstances is the dilution of the boron concentration. Therefore, to meet the underlying intent of 10 CFR 72.124(c) either criticality monitors are required to detect an accidental criticality or controls are necessary to preclude a boron dilution event that could lead to an accidental criticality. As previously discussed, periodic sampling (at intervals no greater than 72 hours) of the boron concentration is required when fuel is stored in storage casks in the SFP. The requirement to periodically sample the boron concentration provides reasonable assurance that should a slow boron dilution event occur, it would be identified such that actions could be taken to preclude an accidental criticality and thereby meet the underlying intent of 10 CFR 72.124(c). A slow boron dilution event would require that an unborated source of water be injected into the SFP and be undetected by normal plant operational activities for sufficient duration to allow the boron concentration to drop below the level required to maintain a storage cask subcritical. First, consider the nature of the boron dilution event that would be required to dilute the SFP boron concentration from the storage cask technical specification concentration level (typically about 2200 ppm) to the critical boron concentration value (typically around 1800 ppm). The in-leakage rate would have to be large enough to dilute the entire volume of the pool between the time of the initial boron concentration sample and the time of the subsequent boron concentration sample and yet be small enough to remain undetected. Cask loading and unloading are conducted by licensed operators or certified fuel handlers who are present during any fuel movement. It is reasonable to conclude that these operators or handlers would detect all but the smallest increases in SFP level that would be indicative of a slow boron dilution event. Second, consider the storage casks loading and unloading operation frequency and duration. The frequency and duration depend on the dry storage needs and the reactor facility design. Based on historical average data, only a few casks (on the order of about 5 casks) are loaded each year at an operating reactor that is in need of dry storage. Third, consider that the time a storage cask is actually loaded with fuel while in the SFP is typically between 24 and 72 hours. When all of these factors are considered, it is clear that the likelihood of an undetected slow boron dilution event occurring during the time that a storage cask is loaded with fuel in the SFP is very remote. Another scenario that could result in a slow boron dilution event is the intentional injection of unborated water into the storage cask while loaded with fuel. A person would need access to a source of unborated water and a means for injecting the water directly into the cask (e.g., using a fire hose). While it is possible that someone could intentionally inject unborated water into the cask, it is highly unlikely that this could be done without being promptly detected by other licensee personnel monitoring cask loading or unloading activities. This scenario would result in a localized dilution of boron concentration in the storage cask. As the soluble boron concentration decreased in the storage cask, the fuel in the cask could become critical. The inadvertent criticality would be detected by the criticality monitors required by 10 CFR 72.124 during cask loading and unloading operations. As such, the licensee would be notified of the inadvertent criticality and could take action to stop the intentional injection of unborated water into the cask, re-establish a subcritical boron concentration in the cask, and terminate the inadvertent criticality event. This scenario is essentially the same as any other slow boron dilution event in that it requires an undetected injection of unborated water into a cask that is loaded with fuel. With the controls of the storage cask technical specifications related to monitoring boron concentration, the requirements of 10 CFR 72.124(c) for criticality monitoring to detect and avoid an accidental criticality, and the very remote likelihood of an undetected slow boron dilution event occurring at the time a storage cask is being loaded, it is reasonable to conclude that considering a slow boron dilution event there is no safety benefit in requiring a licensee to conduct a site specific analysis to demonstrate that a dry storage cask will remain subcritical in an unborated condition as required by 10 CFR 50.68(b). b. Rapid Drain Down Event A rapid drain down event could be postulated if there were an event that caused a catastrophic failure of the SFP liner and supporting concrete structure. If there were a catastrophic failure of the SFP liner that resulted in a rapid drain down while a storage cask was in the SFP, the borated water in the storage cask would likely remain in the storage cask providing reasonable assurance that the fuel would be cooled and remain subcritical. However, if the storage cask were to become dry, the design of the storage cask would allow the fuel to remain cooled, and without water as a moderator the fuel in the storage cask would be significantly subcritical. To assess whether there is a safety benefit from requiring licensees to conduct an analysis of storage casks assuming no boron as the result of a rapid SFP drain down event three factors were considered in the NRC's assessment. The first factor is the probability that a storage cask will be in the SFP, loaded with fuel. The second factor is whether there are credible scenarios that could result in the rapid drain down of the SFP. The third factor is whether a boron dilution event would occur in the storage casks if the rapid SFP drain down event were to occur. As described below, when taken together, it is clear that it is not necessary to require licensees to conduct additional criticality analyses to demonstrate that the storage casks will remain subcritical assuming no boron as required by 10 CFR 50.68 in response to a SFP rapid drain down event due to its highly unlikely occurrence. For the first factor, historical data suggests that approximately five storage casks are loaded on a annual basis at those facilities that need dry storage. The casks are typically in the SFP with fuel installed for as long as 72 hours. Using 72 hours and the historical data as initial assumptions, the probability of a storage cask loaded with spent fuel being in a SFP is about 4E-2/yr. Licensees only have the capability of moving one storage cask at a time into or out of the SFP. The total time it typically takes to bring a storage cask into the SFP, load it with fuel, and remove it from the SFP area for transport to the ISFSI is between 3 and 5 days. If a licensee were to continuously load storage casks, assuming the shortest duration to complete the transfer cycle (24 hours to transfer the cask from outside the building into the spent fuel pool; loading two to three assemblies per hour, or 12 hours to load the cask to capacity; and 36 hours for removing the cask from the spent fuel pool, sealing the cask and removing it from the building), the licensee would be able to load approximately 120 storage casks per year. Under these assumptions, the probability of having a storage cask loaded with fuel in the SFP would increase to 1.6E-1/year. If one assumes that it is possible to load 1 storage cask a week (for a total of 52 casks a year) this would result in a probability of having a cask that is loaded with fuel physically in the pool of 4E-1/year. For the second factor, the NRC has assessed the possibility of rapid drain down events at SFPs. From NUREG-1738, “Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants,” phenomena that could cause such a catastrophic failure include a storage cask drop (event frequency of about 2E-7/year), an aircraft impact (event frequency of about 2.9E-9/year), a tornado missile (event frequency of <1E-9/year) or a seismic event. A dropped storage cask does not affect the proposed change to 10 CFR 50.68 because the dilution of boron in the cask is the issue of interest. When moving a storage cask, it is either empty (no fuel) or has fuel stored in it with a closure lid installed. In each case a boron dilution event that could result in an accidental criticality in a dry storage cask would be precluded. The aircraft impact and tornado missile events are of such a low frequency that they do not need to be considered within the scope of the proposed change. However, the consequences of the aircraft and tornado events would be similar to a SFP liner rupture due to other events (such as an earthquake). This leaves a seismic event as the only initiating event for a rapid drain down of a SFP that may be credible. In Sections 3.5.1 and 3.7.2 of NUREG-1738, the NRC describes the beyond design basis seismic event that would have to occur to result in a rapid drain down of a SFP. Given the robust structural design of the spent fuel pools, the NRC expects that a seismic event with a peak spectral acceleration several times larger than the safe shutdown earthquake
(SSE)would be required to produce a catastrophic failure of the structure. There are two information sources that the NRC relies upon to provide reasonable estimates of seismic event frequency:
(1)Lawrence Livermore National Laboratory
(LLNL)seismic hazard curves, published in NUREG-1488, “Revised Livermore Seismic Hazard Estimates for Sixty-Nine Nuclear Power Plant Sites East of the Rocky Mountains;” and
(2)Electric Power Research Institute
(EPRI)seismic hazard curves, published in EPRI NP-4726, “Seismic Hazard Methodology for the Central and Eastern United States.” Both the LLNL and EPRI hazard estimates were developed as best estimates based on data extrapolation and expert opinion and are considered valid by the NRC. In NUREG-1738, a general high confidence with a low probability of failure (HCLPF) capacity of 1.2g peak spectral acceleration (PSA), which is equivalent to about 0.5g peak ground acceleration (PGA), is established for SFPs. Under 10 CFR Part 100, “Seismic and Geologic Siting Criteria for Nuclear Power Plants,” the minimum SSE seismic PGA value is 0.1g. Typical PGA values for plants east of the Rocky Mountains range from 0.1g to 0.25g and the PGA values for plants west of the Rocky Mountains range from 0.25g to 0.75g. Using the LLNL seismic hazard curves, with a SFP HCLPF capacity of 1.2g PSA, the mean frequency of a seismically-induced rapid drain down event is estimated to be about 2E-6/year, ranging from less than 1E-7/year to 1.4E-5/year, depending on the site-specific seismic hazard. The EPRI seismic hazard curves provide a mean frequency of a seismically-induced rapid drain down event of about 2E-7/year, ranging from less than 1E-8/year to about 2E-6/year, depending on the site-specific seismic hazard. For sites west of the Rocky Mountains, the SFP HCLPF capacity would be site-specific, but would be at least equal to the SSE. The SSE for Columbia is 0.25g PGA and has an annual probability of exceedance
(APE)of 2E-4. However, it is important to note that a seismic event capable of rupturing the SFP would have to be much greater than the SSE. Therefore, it is reasonable to conclude that mean frequency of a seismically-induced rapid drain down event at Columbia is bounded by the analysis for plants East of the Rocky Mountains. Diablo Canyon's SSE is 0.75g PGA with an APE of 2.5E-4. San Onofre's SSE is 0.5g PGA with an APE of 5E-4. An SSE is the earthquake that is expected to occur that produces the maximum ground motion for which certain structures must remain capable of performing their safety function. SFPs are designed to remain functional following an SSE. Further, as noted for all of the other SFPs, the as-designed and as-built structures have significant margin to failure and are capable of remaining functional (not subject to a rapid drain down event) for earthquakes well above the SSE. Both the Diablo Canyon and San Onofre SFPs were designed and constructed in a manner that provides significant structural margin. Therefore, it is reasonable to conclude that the probability of an earthquake causing a rapid drain down event would be similar to the probabilities determined for plants East of the Rocky Mountains. As such, the NRC concluded that for these two plants, specific SFP failure probabilities where not a factor that would have an adverse affect on its determination with regard to the acceptability of the proposed change to 10 CFR 50.68. Based on the above, it would take a seismic event significantly greater than the design basis SSE to credibly cause a SFP rapid drain down event. Using the most conservative results for a seismically-induced SFP rapid drain down event (1.4E-5) and the probability of having a storage cask with fuel installed in the pool (4E-1), the probability of having a SFP rapid drain down event when a storage cask is in the pool would likely be significantly less than 5.6E-6. This is a low probability of SFP failure when a dry storage cask is in the SFP. Coupled with the fact that to reach this low probability would require a seismic event well in excess of the SSE, the NRC concludes there is no safety benefit from requiring the licensee to conduct a site specific analysis in support of storage cask loading, fuel storage, or unloading activities. For the third factor, a rapid drain down event is considered to be a gross, rapid loss of the water that provides cooling for the spent fuel. This event is beyond the licensing basis for PWR plants. Minor leakage is not considered to constitute failure. As such, a rapid drain down event would have to exceed the makeup capability of the normal and alternative water supplies by a significant amount to drain the pool in a short period. The makeup capacities available to refill the SFPs typically range from about 20 gallons per minute
(gpm)for normal makeup to around 1000 gpm for alternative makeup supplies such as the fire suppression system. Many sites have the capability to supply borated water to refill the spent fuel pool. However, to assess the affect of a rapid drain down event on a boron dilution event in a dry storage cask, the NRC assumed that the makeup would be from an unborated water source such as a fire suppression system. The main concern with a rapid drain down event as it affects a dry storage cask is subsequently diluting the boron concentration in the cask during the attempt to refill the SFP to keep the fuel stored in the pool cooled to preclude overheating the fuel and a loss of fuel cladding integrity. Therefore, the assumption that a licensee would use an unborated source of water, such as the fire suppression system, with the largest capacity available to provide cooling water in its attempt to reflood the SFP following a rapid drain down event is reasonable given the importance of quickly re-establishing cooling of the fuel stored in the SFP. The need to establish alternative means for cooling the fuel stored in the SFP during a rapid drain down event is independent of whether a storage cask is located in the SFP and therefore, has no relation to the proposed change to 10 CFR 50.68. The NRC considered four scenarios when assessing the affect of a rapid drain down event on diluting the boron concentration in a dry storage cask. First, the cask might drain as the SFP drains (some older cask designs have drain ports at the bottom of the cask) and the licensee is unable to reflood the SFP because the leak rate is well in excess of the normal or alternate makeup capacity available to reflood the SFP. This scenario results in the fuel stored in the dry storage cask in essentially the same condition under which it would be permanently stored. The geometrical configuration of the dry storage casks are such that without the water, the fuel will remain subcritical. Further, the dry storage cask is designed to remove the decay heat from the fuel in this configuration, so excessive cladding temperatures would not be reached and there would be no fuel damage. The second scenario involves those storage casks that do not have drain ports at the bottom of the cask and therefore would remain filled with water as the SFP experiences the rapid drain down event. In this scenario, the licensee would likely use the largest capacity, unborated source of cooling water to keep the spent fuel in the SFP storage racks cooled. As noted before, a rapid drain down event would significantly exceed the makeup capacity of available water systems and the licensee would need to use an alternative means, such as spraying the fuel stored in the SFP racks to keep the fuel cool. In this scenario, the water that remains in the dry storage cask would still be borated and would maintain the fuel storage in the cask subcritical. The fuel in the cask would remain cooled by the water surrounding it and the heat transfer through the cask consistent with the cask design. Again, in this situation, the fuel in the cask would be adequately cooled and maintained in a subcritical configuration providing reasonable assurance that excessive fuel cladding temperatures and subsequent fuel damage would not occur. The third scenario involves those dry storage casks that would remain filled with borated water. The possibility exists for a licensee to cause a boron dilution event in the dry storage cask when spraying the fuel stored in the SFP racks. The location of the dry storage cask might be close enough to the SFP storage racks that it could inadvertently be sprayed at the same time as the SFP racks, overfilling the dry storage cask, and eventually diluting the boron. Under these conditions, the boron concentration would slowly decrease and this scenario becomes very similar to a slow boron dilution event as discussed previously. The criticality monitors required for dry cask loading would still be available and would provide indication of an accidental criticality. With indication of an accidental criticality, it is reasonable to assume that the licensee would take action to stop the boron dilution from continuing and restore the dry storage cask to a subcritical configuration. Actions the licensee could take to return the dry storage cask to a subcritical configuration could include: 1. Stop spraying unborated water into the dry storage cask and allow the water in the cask to heat up with a subsequent reduction in the moderation provided by the water that would eventually re-establish a subcritical configuration at a higher water temperature. In this condition, the temperature of the water may be high enough that the water would eventually boil off (be higher than 212 degrees F at atmospheric conditions). If this were to occur, the cask would eventually become dry and the fuel would be in a subcritical configuration and cooled consistent with the design of the cask. As the water boiled off, it would continue to provide cooling to the fuel such that the fuel would not experience significantly elevated temperatures and there would be no fuel damage; or 2. Spray water into the cask from a borated water source to increase the boron concentration, re-establishing a subcritical configuration and keeping the fuel cooled. In each case, the fuel would not be subject to excessive temperatures and therefore, there would be no fuel damage that could impact public health and safety. Under this third scenario there is also the possibility that the licensee might intentionally spray water into the dry storage cask in an attempt to keep the fuel in the cask cool. Given that the cask will already be filled with water and the importance of cooling the fuel in the SFP storage racks (where there is no water following a rapid drain down event), the NRC considers the possibility of the intentional diversion of cooling water from the fuel stored in the SFP racks to the fuel stored in the dry storage cask to be very remote. Therefore, the NRC does not consider this as a factor that would have an adverse affect on its determination with regard to the acceptability of the proposed change to 10 CFR 50.68. However, even if the licensee intentionally diverted water from cooling the fuel in the SFP racks to the fuel in the dry storage cask, there would be a slow boron dilution event, a slow approach to criticality, and indication of an accidental criticality from the required criticality monitors. As such, this case would be very similar to the unintentional dilution case described above. In the fourth scenario, the NRC assumed that the licensee was able to repair the damage to the SFP and reflood the pool. In this scenario as the licensee reflooded the SFP the dry storage cask would either reflood as the SFP was filled (for those casks with drain ports at the bottom); if the cask had dried out it would reflood once the water level in the SFP reached the top of the cask and water began spilling into the cask; or if the cask remained flooded following the rapid drain down event, there would be a slow dilution of the boron in the water in the cask as the SFP level continued to rise. In each of these cases, as the cask was filled with water or as the boron dilution of the water in the cask occurred, the possibility increases that an accidental criticality might occur. However, because of the relatively slow reactivity addition that would occur during each of these cases, the approach to criticality would be reasonably slow. As noted previously, the licensee is required to have criticality monitors in place during dry storage cask loading (or unloading) activities. These criticality monitors would provide indication that an accidental criticality had occurred. Once identified, it is reasonable that the licensee would take action to re-establish a subcritical configuration. However, as discussed above for the third scenario, even if there were an accidental criticality, the likelihood of fuel damage is very remote. The possibility of an accidental criticality in the fourth scenario is even less likely given the following factors: 1. Dry storage casks are typically loaded with fuel that has significant burnup that reduces the reactivity of the assembly. As such, it is reasonable to conclude that even in an unborated condition, the fuel stored in the cask would remain subcritical. 2. As the licensee refilled the SFP, it is reasonable to assume that it would be injecting borated water to re-establish the boron concentration level required by plant technical specifications as soon as practical. Based on the above, even if there were an event that caused a rapid drain down of a SFP while a dry storage cask was in the SFP, the likelihood of a boron dilution event causing fuel damage is very remote. Therefore, the NRC concludes there is no safety benefit from requiring the licensee to conduct a site specific analysis in support of dry storage cask loading, fuel storage, or unloading activities. V. Conclusion As discussed above the NRC assessed the safety benefit of requiring licensees to conduct an additional criticality analysis to meet the requirements of 10 CFR 50.68 while loading a transportation package or dry storage cask in the SFP. The NRC determined that the controls required by 10 CFR Part 71 or 72 for the associated package or cask provide reasonable assurance that a slow boron dilution event would not result in elevated fuel temperature and subsequent fuel damage. Therefore, for a slow boron dilution event, there is no benefit to the additional criticality analysis. The NRC further determined that the probability of having a rapid drain down event result in elevated fuel temperatures and subsequent fuel damage was highly unlikely. Based on its analysis, the NRC concludes there is no safety benefit from requiring a licensee to conduct a site specific analysis in support of storage cask loading, fuel storage, or unloading activities and that the proposed rule change is therefore acceptable. [FR Doc. E6-19372 Filed 11-15-06; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-23734; Directorate Identifier 2005-NM-174-AD; Amendment 39-14827; AD 2006-23-15] RIN 2120-AA64 Airworthiness Directives; Boeing Model 757 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive
(AD)for certain Boeing Model 757 airplanes. This AD requires installing a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41; doing a functional test and adjustment of the new installation; and doing related investigative/corrective actions if necessary. For certain airplanes, this AD also requires doing an additional adjustment test of the re-located control wheel position sensor, and an operational test of the flight data recorder and the digital flight data acquisition unit. This AD also requires installing vortex generators (vortilons) on the leading edge of the outboard main flap on certain airplanes. This AD results from several reports that flightcrews experienced unintended roll oscillations during final approach, just before landing. We are issuing this AD to prevent unintended roll oscillations near touchdown, which could result in loss of directional control of the airplane, and consequent airplane damage and/or injury to flightcrew and passengers. DATES: This AD becomes effective December 21, 2006. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of December 21, 2006. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: John Neff, Aerospace Engineer, Flight Test Branch, ANM-160S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6521; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the airworthiness directive
(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 street address stated in the ADDRESSES section. Discussion The FAA issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to certain Boeing Model 757 airplanes. That NPRM was published in the **Federal Register** on January 31, 2006 (71 FR 5021). That NPRM proposed to require installing a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41; doing a functional test and adjustment of the new installation; and doing related investigative/corrective actions if necessary. For certain airplanes, that NPRM also proposed to require doing an additional adjustment test of the re-located control wheel position sensor, and an operational test of the flight data recorder and the digital flight data acquisition unit. That NPRM also proposed to require installing vortex generators (vortilons) on the leading edge of the outboard main flap on certain airplanes. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comments received. Support for the NPRM American Airlines supports the NPRM. Requests To Change Compliance Time Air Line Pilots Association
(ALPA)supports the intent of the NPRM, but feels that the 24-month compliance time should be reduced. ALPA states that, given the serious consequences of unintended roll oscillations near the ground, a shorter compliance time should be imposed. Air Transport Association (ATA), on behalf of US Airways and United Airlines, requests that we lengthen the compliance time from 24 months to the later of 36 months or the next heavy maintenance check. ATA states that the NPRM would impose more work and elapsed hours than stated in the preamble of the NPRM and would require operational tests after certain modifications, and that the accomplishment would be constrained by long production lead times for vortex generators. Further, ATA states that the manufacturer's service instructions recommend compliance within 36 months. US Airways comments that a longer compliance time is appropriate because of the long lead time for getting the vortex generator installation kits (40 weeks, as stated in Boeing Alert Service Bulletin 757-57A0058, Revision 1, dated January 10, 2002). We disagree. In developing the compliance time for this AD action, we considered not only the safety implications of the identified unsafe condition, but also the average utilization rate of the affected fleet, the practical aspects of an orderly modification of the fleet, the availability of required parts, and the time necessary for the rulemaking process. After the release of Boeing Alert Service Bulletin 757-57A0058, Revision 1 (which was referenced in the NPRM as an appropriate source of service information for accomplishing certain required actions), we came to an agreement with Boeing that a compliance time of 24 months was appropriate. When we notified Boeing of this NPRM, Boeing increased the procurement of the vortex generator installation kits to ensure an adequate supply to support the proposed compliance time. Therefore, 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 installations are done. In addition, since maintenance schedules vary among operators, we could not assure that the airplanes would be modified during that maximum interval if we changed the compliance time to incorporate the heavy maintenance visit. We have not changed the AD in this regard. Request To Include Part Number (P/N) Change for Vortex Generators America West states that the NPRM does not include a change in P/N after installation of vortex generators in accordance with paragraph (f)(2) of the NPRM. America West points out that this could result in the installation of pre-modification outboard main flaps on post-modification airplanes. America West recommends that Boeing revise Boeing Alert Service Bulletin 757-57A0058, Revision 1, to include a change in P/N; and that the NPRM be revised to prohibit installation of pre-modification flaps on an airplane after it has been brought into compliance with the AD. We disagree. Determining whether or not an airplane is in compliance with the vortex generator installation can be confirmed easily by visual inspection, on or off the wing. Therefore, we determined that renumbering the flap assembly is an unnecessary burden to the manufacturer and to the operators of the affected airplanes, as the part marking, drawings, and other documentation would have to be revised as well. Boeing agrees that the renumbering is unnecessary. In addition, section 39.7 of the Federal Aviation Regulations (14 CFR 39.7) prohibits operation of an aircraft that is not in compliance with an AD. Therefore, it is not necessary to include the specified prohibition in the AD. We have not changed the AD in this regard. Request To Clarify Differences Paragraph Boeing and UPS both request that we clarify the third paragraph in the section of the NPRM titled “Differences Between the Proposed AD and the Service Bulletins.” That paragraph states: “Although Boeing Alert Service Bulletin 757-27A0146 and Boeing Alert Service Bulletin 757-27A0147 specify that operators may contact the manufacturer if a just-installed
(new)wheel damper does not function properly, this proposed AD would require operators to correct that condition according to a method approved by the FAA.” Boeing also states that clarification is needed because customers have asked if Boeing is about to revise the existing service bulletins referenced in the NPRM to incorporate possible alternative modifications. Other customers have asked Boeing if the FAA will be adding another requirement to the AD that is not currently in the NPRM regarding the replacement of a damper assembly. UPS asks that, if possible, we provide additional information on the approved method that we are considering to correct any problems with the newly installed damper. UPS suggests that, if we are considering a requirement to install a new damper and/or flight tests to certify the installation, we include these specifics and have a new comment period after the specific actions have been defined. We agree that the paragraph Boeing quoted needs clarification. However, since that section of the preamble does not reappear in the final rule, we have instead changed the following to provide clarification: • We have changed the “Interim Action” section of the AD to specify that no additional fixes have been identified; however, as investigation into the unsafe condition continues, additional fixes may be deemed necessary in the future. • We have revised paragraph (f)(1) of the AD to specify that, if a just-installed
(new)wheel damper does not function properly, operators should correct the condition in accordance with the procedures specified in paragraph
(i)of the AD, Alternative Methods of Compliance (AMOCs). An AMOC for this condition could include removing the defective part and returning the airplane to the original configuration, or securing the installation in a method acceptable to us until the affected part can be replaced or repaired within the compliance time of the AD. Request To Revise Parts Installation Paragraph Boeing requests that we change paragraph (g), “Parts Installation,” of the NPRM to allow operators that have not yet performed the new damper installation to replace any part for the existing control wheel position installation during the initial 24-month compliance time. Boeing explains that if an operator needs to replace an existing control wheel position sensor installation before the service bulletin kit can be delivered, they would appear to be out of compliance in just repairing the airplane to the as-delivered condition. Boeing suggests revising paragraph
(g)to include these words, “After the incorporation of the wheel damper assembly to comply with this AD * * *.” We agree that operators may continue to install the existing affected parts and assemblies until the airplane is modified to bring it into compliance with this AD. Therefore, we find that the Parts Installation paragraph is not necessary, and we have removed that paragraph and reidentified the following paragraphs accordingly. Request To Include Cost for “Lost Time” United Airlines states that Boeing Alert Service Bulletins 757-27A0146, dated October 14, 2004; and 757-57A0058, Revision 1, dated January 10, 2002, state that no “lost time” work hours are included in the cost estimates in the NPRM. United Airlines states that, if the tasks specified in the service bulletins are accomplished during non-routine maintenance, then lost-time hours must be included in the cost estimates, and unscheduled downtime must also be considered in those cost estimates. If lost time is included, United Airlines states that the total work hours would increase to approximately 31 total work hours and 19 elapsed-time hours. In addition, United Airlines states that unscheduled downtime for accomplishing the required tasks is estimated to cost $35,000 per day. United Airlines estimates the additional cost for accomplishing both service bulletins during an unscheduled maintenance visit to be $36,000 per day. Therefore, United Airlines requests that the cost estimates be updated to reflect the work accomplished for both service bulletins. We disagree. The cost information below describes only the direct costs of the specific actions required by the AD. The manufacturer provided us with the number of work hours necessary to do the required actions based on the best data available. This number represents the time necessary to perform only the actions actually required by the AD. We recognize that, in doing the actions required by an AD, operators may incur incidental costs in addition to the direct costs. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and close up, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which may vary significantly among operators, are almost impossible to calculate. We have not changed the AD in this regard. Conclusion We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD. Interim Action We consider this AD interim action. The manufacturer is currently investigating an additional modification that may further reduce or eliminate the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we may consider additional rulemaking. Should any additional modification be required as a result of further rulemaking activities, that modification would be in addition to, not a replacement for, the modifications required by this AD. Costs of Compliance There are about 1,036 airplanes of the affected design in the worldwide fleet and about 629 U.S.-registered airplanes. The following table provides the estimated costs for U.S. operators to comply with this AD. Not all of the required actions must be done on all U.S.-registered airplanes. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.- registered airplanes Fleet cost Install control wheel damper assembly, and do functional test (Model 757-200, -200PF, and -200CB series airplanes) 9 to 11 $65 $7,640 to $10,550 $8,225 to $11,265 578 $4,754,050 to $6,511,170. Install control wheel damper assembly, and do functional test (Model 757-300 series airplanes) 15 65 $10,550 $11,525 51 $587,775. Install vortex generators (Model 757-200, -200PF, and -200CB series airplanes) 10 65 $3,336 $3,986 527 $2,100,622. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)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 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, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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): **2006-23-15 Boeing:** Amendment 39-14827. Docket No. FAA-2006-23734; Directorate Identifier 2005-NM-174-AD. Effective Date
(a)This AD becomes effective December 21, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to Model 757-200, -200PF, -200CB, and -300 series airplanes, certificated in any category; as identified in the applicable service bulletin or bulletins in Table 1 of this AD. Table 1.—Boeing Service Bulletins Boeing Alert Service Bulletin Revision Date Model 757-27A0146 Original October 14, 2004 757-200, -200PF, and -200CB series airplanes. 757-27A0147 Original October 14, 2004 757-300 series airplanes. 757-57A0058 1 January 10, 2002 757-200, -200PF, and -200CB series airplanes. Unsafe Condition
(d)This AD results from several reports that flightcrews experienced unintended roll oscillations during final approach, just before landing. We are issuing this AD to prevent unintended roll oscillations near touchdown, which could result in loss of directional control of the airplane, and consequent airplane damage and/or injury to flightcrew and passengers. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Installations
(f)Within 24 months after the effective date of this AD, do the actions in paragraphs (f)(1) and (f)(2) of this AD, as applicable.
(1)For all airplanes: Install a control wheel damper assembly at the first officer's drum bracket assembly and aileron quadrant beneath the flight deck floor in section 41; and do all applicable functional and operational tests and adjustments of the new installation, and all applicable related investigative/corrective actions before further flight after the installation. Do all actions in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-27A0146, dated October 14, 2004 (for Model 757-200, -200PF, and -200CB series airplanes); or Boeing Alert Service Bulletin 757-27A0147, dated October 14, 2004 (for Model 757-300 series airplanes). Where Boeing Alert Service Bulletin 757-27A0146 specifies to contact Boeing if a just-installed
(new)wheel damper does not function properly, correct that condition in accordance with the procedures in paragraph
(i)of this AD.
(2)For Model 757-200, -200PF, and -200CB series airplanes: Install vortex generators (vortilons) on the leading edge of the outboard main flap in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-57A0058, Revision 1, dated January 10, 2002. Actions Accomplished in Accordance With Previous Revision of Service Bulletin
(g)Actions done before the effective date of this AD in accordance with Boeing Special Attention Service Bulletin 757-57-0058, dated March 9, 2000, are acceptable for compliance with the actions in paragraph (f)(2) of this AD. No Reporting Required
(h)Although the Accomplishment Instructions of Boeing Alert Service Bulletin 757-27A0146 and Boeing Alert Service Bulletin 757-27A0147, both dated October 14, 2004, describe procedures for submitting a sheet recording accomplishment of the service bulletin, this AD does not require that action. Alternative Methods of Compliance (AMOCs) (i)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Material Incorporated by Reference
(j)You must use the service information in Table 2 of this AD to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the **Federal Register** approved the incorporation by reference of these documents in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for a copy of this service information. You may review copies at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Room PL-401, Nassif Building, Washington, DC; on the Internet at *http://dms.dot.gov;* or at the National Archives and Records Administration (NARA). For information on the availability of this material at the NARA, call
(202)741-6030, or go to *http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.* Table 2.—Material Incorporated by Reference Boeing Alert Service Bulletin Revision level Date 757-27A0146 Original October 14, 2004. 757-27A0147 Original October 14, 2004. 757-57A0058 1 January 10, 2002. Issued in Renton, Washington, on October 31, 2006. Kalene C. Yanamura, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-19164 Filed 11-15-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25260; Directorate Identifier 2006-CE-37-AD; Amendment 39-14826; AD 2006-23-14] RIN 2120-AA64 Airworthiness Directives; Air Tractor, Inc. Models AT-502, AT-502A, AT-502B, AT-602, AT-802, and AT-802A Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: The FAA adopts a new airworthiness directive
(AD)for certain Air Tractor, Inc. (Air Tractor) Models AT-502, AT-502A, AT-502B, AT-602, AT-802, and AT-802A airplanes. This AD requires you to repetitively visually inspect the rudder and vertical fin hinge attaching structure (vertical fin skins, spars, hinges, and brackets) for loose fasteners, cracks, and/or corrosion. This AD also requires you to replace any damaged parts found as a result of the inspection and install an external doubler at the upper rudder hinge. This AD results from two reports of in-flight rudder separation from the vertical fin at the upper attach hinge area, and other reports of airplanes with loose hinges, skin cracks, or signs of repairs to the affected area. We are issuing this AD to detect and correct loose fasteners; any cracks in the rudder or vertical fin skins, spars, hinges or brackets; and/or corrosion of the rudder and vertical fin hinge attaching structure. Hinge failure adversely affects ability to control yaw and has led to the rudder folding over in flight. This condition could allow the rudder to contact the elevator and affect ability to control pitch with consequent loss of control. DATES: This AD becomes effective on December 21, 2006. As of December 21, 2006, the Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulation. ADDRESSES: To get the service information identified in this AD, contact Air Tractor, Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; fax:
(940)564-5612. To view the AD docket, go to the Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590 or on the Internet at *http://dms.dot.gov.* The docket number is FAA-2006-25260; Directorate Identifier 2006-CE-37-AD. FOR FURTHER INFORMATION CONTACT: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; fax:
(210)308-3370. SUPPLEMENTARY INFORMATION: Discussion On August 3, 2006, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Air Tractor Models AT-502, AT-502A, AT-502B, AT-602, AT-802, and AT-802A airplanes. This proposal was published in the **Federal Register** as a notice of proposed rulemaking
(NPRM)on August 3, 2006 (71 FR 45451). The NPRM proposed to require you to repetitively visually inspect the rudder and vertical fin hinge attaching structure for loose fasteners, any cracks in the rudder or vertical fin skins, spars, hinges or brackets, or corrosion. The AD would also require you to replace any damaged parts found as a result of the inspection and install an external doubler at the upper rudder hinge. Installation of the external doubler at the upper rudder hinge is terminating action for the repetitive inspection requirements. Comments We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment: Comment Issue No. 1: Availability of Manufacturer Service Information for the Proposed AD Jack Buster with the Modification and Replacement Parts Association (MARPA) provides comments on the AD process pertaining to how the FAA addresses publishing manufacturer service information as part of a proposed AD action. Mr. Buster states that the proposed rule attempts to require compliance with a public law by reference to a private writing (as referenced in paragraph
(e)of the proposed AD). Mr. Buster would like the FAA to incorporate by reference
(IBR)Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006; and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991. We agree with Mr. Buster. However, we do not IBR any document in a proposed AD action, instead we IBR the document in the final rule. Since we are issuing the proposal as a final rule AD action, the previously-referenced Snow Engineering Co. documents are incorporated by reference. Comment Issue No. 2: Availability of Manufacturer Service Information in the Federal Register or the Docket Management System
(DMS)Mr. Buster also requests IBR documents be made available to the public by publication in the **Federal Register** or in the DMS. We are currently reviewing issues surrounding the posting of service bulletins in the Department of Transportation's DMS as part of the AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial corrections. We have determined that these minor corrections: • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and • Do not add any additional burden upon the public than was already proposed in the NPRM. Costs of Compliance We estimate that this AD affects 945 airplanes in the U.S. registry. We estimate the following costs to do the inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. Operators 1 work-hour × $80 per hour = $80 Not Applicable $80 $75,600 Any required “upon-condition” repairs will vary depending upon the damage found, and any replacements required will vary based on the results of the inspection. Based on this, we have no way of determining the potential repair and/or replacement costs for each airplane or the number of airplanes that will need the repairs and/or replacements based on the result of the inspections. We estimate the following costs to do the installation of the external doubler at the upper rudder hinge: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 5 work-hours × $80 per hour = $400 $217 $617 $583,065 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this AD. Regulatory Findings We have determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD (and other information as included in the Regulatory Evaluation) and placed it in the AD Docket. You may get a copy of this summary by sending a request to us at the address listed under ADDRESSES . Include “Docket No. FAA-2006-25260; Directorate Identifier 2006-CE-37-AD” in your request. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. FAA amends § 39.13 by adding a new AD to read as follows: **2006-23-14 Air Tractor, Inc.:** Amendment 39-14826; Docket No. FAA-2006-25260; Directorate Identifier 2006-CE-37-AD. Effective Date
(a)This AD becomes effective on December 21, 2006. Affected ADs
(b)None. Applicability
(c)This AD affects the following airplane models and serial numbers that are certificated in any category: Model Serial Nos.
(1)AT-502 and AT-502B 502/502B-0003 through 502/502B-2600.
(2)AT-502A 502A-0003 through 502A-2582.
(3)AT-602 602-0337 through 602-1138.
(4)AT-802 and AT-802A 802/802A-0001 through 802/802A-0215. Unsafe Condition
(d)This AD results from two reports (one Model AT-602 airplane and one Model AT-802A airplane) of in-flight rudder separations at the upper attach hinge area and other reports of Models AT-502B, AT-602, and AT-802/802A airplanes with loose hinges, skin cracks, or signs of repairs to the affected area. We are issuing this AD to detect and correct loose fasteners; any cracks in the rudder or vertical fin skins, spars, hinges or brackets; and/or corrosion of the rudder and vertical fin hinge attaching structure. Hinge failure adversely affects ability to control yaw and has led to the rudder folding over in flight. This condition could allow the rudder to contact the elevator and affect ability to control pitch with consequent loss of control. Compliance
(e)To address this problem, you must do the following: Actions Compliance Procedures
(1)Inspect visually the rudder and vertical hinge attachment for loose fasteners; and inspect the rudder or vertical fin skins, spars, hinges or brackets for cracks and/or corrosion Initially inspect upon reaching 3,500 hours time-in-service (TIS), or within the next 100 hours TIS after December 21, 2006 (the effective date of this AD), whichever occurs later, unless already done. Thereafter, repetitively inspect every 100 hours TIS. Installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD is terminating action for the repetitive inspections required by this AD Follow Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006.
(2)If you find any damage as a result of any inspection required by paragraph (e)(1) of this AD, you must:
(i)Replace any damaged parts with new parts; and
(ii)Do the installation of the external doubler at the upper rudder hinge. Before further flight after any inspection required by paragraph (e)(1) of this AD where you find any damaged parts. The installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD is the terminating action for the repetitive inspections required by this AD Follow Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006, and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991.
(3)Do the installation of the external doubler at the upper rudder hinge Upon accumulating 5,000 hours TIS or within the next 100 hours TIS after the effective date of this AD, whichever occurs later, unless already done. The installation of the external doubler at the upper rudder hinge required by paragraph (e)(2)(ii) or (e)(3) of this AD is the terminating action for the repetitive inspections required by this AD Follow Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006, and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991.
(4)Do not install any rudder without the external doubler at the upper rudder hinge required by paragraph (e)(3) of this AD As of December 21, 2006 (the effective date of this AD) Not Applicable. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Fort Worth Aircraft Certification Office, FAA, ATTN: Andrew McAnaul, Aerospace Engineer, ASW-150 (c/o MIDO-43), 10100 Reunion Place, Suite 650, San Antonio, Texas 78216; telephone:
(210)308-3365; fax:
(210)308-3370, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Material Incorporated by Reference
(g)You must use Snow Engineering Co. Service Letter #247, dated August 14, 2005, revised May 17, 2006; and Snow Engineering Co. Process Specification Number 145, dated December 6, 1991, to do the actions required by this AD, unless the AD specifies otherwise.
(1)The Director of the Federal Register approved the incorporation by reference of this service information under 5 U.S.C. 552(a) and 1 CFR part 51.
(2)For service information identified in this AD, contact Air Tractor, Inc., P.O. Box 485, Olney, Texas 76374; telephone:
(940)564-5616; fax:
(940)564-5612.
(3)You may review copies at the FAA, Central Region, Office of the Regional Counsel, 901 Locust, Kansas City, Missouri 64106; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal_register/ code_of_federal_ regulations/ibr_locations.html* . Issued in Kansas City, Missouri, on November 3, 2006. James E. Jackson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-19153 Filed 11-15-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25970; Directorate Identifier 99-NE-12-AD; Amendment 39-14829; AD 2006-23-17] RIN 2120-AA64 Airworthiness Directives; Turbomeca Turmo IV A and IV C Series Turboshaft Engines AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: The FAA is superseding an existing airworthiness directive
(AD)for Turbomeca Turmo IV A and IV C series turboshaft engines. That AD currently requires borescope and eddy current inspections or ultrasonic inspections of centrifugal compressor intake wheel blades for cracks and evidence of corrosion pitting, and replacement with serviceable parts. This AD requires the same actions, but would require borescope inspections at more frequent intervals for certain engines. This AD results from Turbomeca's review of the engines' service experience that determined more frequent borescope inspections are required on engines not modified to the TU 191, TU 197, or TU 224 standard. We are issuing this AD to prevent centrifugal compressor intake wheel blade cracks, which can result in engine in-flight power loss, engine shutdown, or forced landing. DATES: This AD becomes effective December 21, 2006. The Director of the Federal Register approved the incorporation by reference of certain publications listed in the regulations as of December 21, 2006. ADDRESSES: You can get the service information identified in this AD from Turbomeca, 40220 Tarnos, France; telephone 33 05 59 74 40 00, fax 33 05 59 74 45 15. You may examine the AD docket on the Internet at *http://dms.dot.gov* or in Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC. FOR FURTHER INFORMATION CONTACT: Christopher Spinney, Aerospace Engineer, Engine Certification Office, FAA, Engine and Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; telephone
(781)238-7175; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: The FAA proposed to amend 14 CFR Part 39 with a proposed AD. The proposed AD applies to Turbomeca Turmo IV A and IV C series turboshaft engines. We published the proposed AD in the **Federal Register** on February 9, 2006 (71 FR 6691). That action proposed to require initial and repetitive borescope and eddy current inspections or ultrasonic inspections of centrifugal compressor intake wheel blades for cracks and evidence of corrosion pitting, and, if found cracked or if there is evidence of corrosion pitting, replacement with serviceable parts. Additionally, it proposed to require borescope inspections at more frequent intervals for certain engines. Examining the AD Docket You may examine the docket that contains the AD, any comments received, and any final disposition in person at the Docket Management Facility Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5227) is located on the plaza level of the Department of Transportation Nassif Building at the street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the DMS receives them. Comments We provided the public the opportunity to participate in the development of this AD. We received no comments on the proposal or on the determination of the cost to the public. Docket Number Change We are transferring the docket for this AD to the Docket Management System as part of our on-going docket management consolidation efforts. The new Docket No. is FAA-2006-25970. The old Docket No. became the Directorate Identifier, which is 99-NE-12-AD. This final rule might get logged into the DMS docket, ahead of the proposed AD and comments received, as we are in the process of sending those items to the DMS. Conclusion We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed. Costs of Compliance We estimate that this AD will affect 36 Turbomeca Turmo IV A and IV C series turboshaft engines installed on helicopters of U.S. registry. We also estimate that it will take about 41 work-hours per engine to perform the inspections, including disassembling and assembling engines, and that the average labor rate is $65 per work-hour. A replacement centrifugal compressor assembly costs about $21,651. Based on these figures, the cost per inspection and replacement is estimated to be $24,316. Based on these figures, we estimate the total cost of the AD to U.S. operators to be $875,390. Special Flight Permits Paragraph Removed Paragraph
(e)of the current AD, AD 2003-11-09, contains a paragraph pertaining to special flight permits. Even though this AD does not contain a similar paragraph, we have made no changes with regard to the use of special flight permits to operate the helicopter to a repair facility to do the work required by this AD. In July 2002, we published a new Part 39 that contains a general authority regarding special flight permits and airworthiness directives; see Docket No. FAA-2004-8460, Amendment 39-9474 (69 FR 47998, July 22, 2002). Thus, when we now supersede ADs we will not include a specific paragraph on special flight permits unless we want to limit the use of that general authority granted in section 39.23. 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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the Federal Aviation Administration amends 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by removing Amendment 39-13168 (68 FR 31970, May 29, 2003) and by adding a new airworthiness directive, Amendment 39-14829, to read as follows: **2006-23-17 Turbomeca:** Amendment 39-14829. Docket No. FAA-2006-25970; Directorate Identifier 99-NE-12-AD. Effective Date
(a)This airworthiness directive
(AD)becomes effective December 21, 2006. Affected ADs
(b)This AD supersedes AD 2003-11-09, Amendment 39-13168. Applicability
(c)This AD applies to Turbomeca Turmo IV A and IV C series turboshaft engines. These engines are installed on but not limited to Aerospatiale SA 330—PUMA helicopters. Unsafe Condition
(d)This AD results from Turbomeca's review of the engines' service experience that determined more frequent borescope inspections are required on engines not modified to the TU 191, TU 197, or TU 224 standard. The actions specified in this AD are intended to prevent centrifugal compressor intake wheel blade cracks, which can result in engine in-flight power loss, engine shutdown, or forced landing. 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. Engine Modification Before Further Flight
(f)For engines modified to the TU 197 standard, but not to the TU 191 or TU 224 standard, before further flight, remove the TU 197 standard and install the TU 224 standard. Initial Inspections
(g)For all engines, borescope-inspect, and either eddy current-inspect
(ECI)or ultrasonic-inspect
(UI)the centrifugal compressor intake wheel blades using paragraphs 2.B.(1)(a) through 2.B.(1)(g) of Turbomeca Mandatory Service Bulletin A249 72 0100, Update No. 5, dated February 25, 2005, and the criteria in the following Table 1: Table 1.—Inspection Criteria If engine modification level is: Then borescope-inspect centrifugal compressor intake wheel blades: Were traces of corrosion found at borescope-inspection? Then confirm corrosion by performing ECI or UI within:
(1)Pre TU 191 and Pre TU 224 Within 200 flight hours-since-last inspection
(i)Yes Six months-or 50 flight hours-since-borescope inspection, whichever occurs first.
(ii)No Two hundred flight hours-since-borescope inspection.
(2)Post TU 191 or Post TU 224. Within 1,000 flight hours-since-last inspection
(i)Yes Six months-or 50 flight hours-since-borescope inspection, whichever occurs first.
(ii)No One thousand flight hours-since-borescope inspection.
(h)Thereafter, perform repetitive inspections using the criteria in Table 1 of this AD.
(i)Remove centrifugal compressor intake wheel blades confirmed cracked or pitted. Alternative Methods of Compliance
(j)The Manager, Engine Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Material Incorporated by Reference
(k)You must use Turbomeca Mandatory Service Bulletin A249 72 0100, Update No. 5, dated February 25, 2005, to perform the actions required by this AD. The Director of the Federal Register approved the incorporation by reference of this service bulletin in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You can get a copy of this service information from Turbomeca, 40220 Tarnos, France; telephone 33 05 59 74 40 00, fax 33 05 59 74 45 15. You may review copies at the FAA, New England Region, Office of the Regional Counsel, 12 New England Executive Park, Burlington, MA; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: *http://www.archives.gov/federal-register/cfr/ibr-locations.html.* Related Information
(l)Direction Generale de L'Aviation Civile airworthiness directive F-2005-037, dated March 2, 2005, also addresses the subject of this AD. Issued in Burlington, Massachusetts, on November 7, 2006. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E6-19274 Filed 11-15-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25437; Directorate Identifier 2006-NM-136-AD; Amendment 39-14828; AD 2006-23-16] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Final rule. SUMMARY: The FAA is adopting a new airworthiness directive
(AD)for all BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ airplanes. This AD requires modifying the nose landing gear. This AD results from reports of loss of the nose wheel assembly. We are issuing this AD to prevent the nose wheel nut from loosening, and consequently, the nose wheel assembly detaching from the airplane; and to prevent the nose wheel clamping loads from applying to the machined radius at the root of the stub axle, which could result in damage to the nose landing gear. DATES: This AD becomes effective December 21, 2006. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of December 21, 2006. ADDRESSES: You may examine the AD docket on the Internet at *http://dms.dot.gov* or in person at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC. Contact British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Examining the Docket You may examine the airworthiness directive
(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 street address stated in the ADDRESSES section. Discussion The FAA issued a notice of proposed rulemaking
(NPRM)to amend 14 CFR part 39 to include an AD that would apply to all BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ airplanes. That NPRM was published in the **Federal Register** on July 25, 2006 (71 FR 42065). That NPRM proposed to require modifying the nose landing gear. Comments We provided the public the opportunity to participate in the development of this AD. We have considered the comment received. Request To Publish Service Information The Modification and Replacement Parts Association (MARPA) states that, typically, ADs are based on service information originating with the type certificate holder or its suppliers. MARPA adds that manufacturer service documents are privately authored instruments generally having copyright protection against duplication and distribution. MARPA notes that when a service document is incorporated by reference into a public document, such as an AD, it loses its private, protected status and becomes a public document. MARPA adds that if a service document is used as a mandatory element of compliance, it should not simply be referenced, but should be incorporated into the regulatory document; by definition, public laws must be public, which means they cannot rely upon private writings. MARPA adds that incorporated by reference service documents should be made available to the public by publication in the Docket Management System (DMS), keyed to the action that incorporates them. MARPA notes that the stated purpose of the incorporation by reference method is brevity, to keep from expanding the **Federal Register** needlessly by publishing documents already in the hands of the affected individuals; traditionally, “affected individuals” means aircraft owners and operators, who are generally provided service information by the manufacturer. MARPA adds that a new class of affected individuals has emerged, since the majority of aircraft maintenance is now performed by specialty shops instead of aircraft owners and operators. MARPA notes that this new class includes maintenance and repair organizations, component servicing and repair shops, parts purveyors and distributors, and organizations manufacturing or servicing alternatively certified parts under section 21.303 of the Federal Aviation Regulations (14 CFR 21.303). MARPA adds that the concept of brevity is now nearly archaic as documents exist more frequently in electronic format than on paper. Therefore, MARPA asks that the service documents deemed essential to the accomplishment of the NPRM be incorporated by reference into the regulatory instrument and published in the DMS. We do not agree that documents should be incorporated by reference during the NPRM phase of rulemaking. The Office of the Federal Register
(OFR)requires that documents that are necessary to accomplish the requirements of the AD be incorporated by reference during the final rule phase of rulemaking. This final rule incorporates by reference the document necessary for the accomplishment of the requirements mandated by this AD. Further, we point out that while documents that are incorporated by reference do become public information, they do not lose their copyright protection. For that reason, we advise the public to contact the manufacturer to obtain copies of the referenced service information. In regard to the commenter's request that service documents be made available to the public by publication in the **Federal Register** , we agree that incorporation by reference was authorized to reduce the volume of material published in the **Federal Register** and the Code of Federal Regulations. However, as specified in the *Federal Register Document Drafting Handbook* , the Director of the OFR decides when an agency may incorporate material by reference. As the commenter is aware, the OFR files documents for public inspection on the workday before the date of publication of the rule at its office in Washington, DC. As stated in the *Federal Register Document Drafting Handbook* , when documents are filed for public inspection, anyone may inspect or copy file documents during the OFR's hours of business. Further questions regarding publication of documents in the **Federal Register** or incorporation by reference should be directed to the OFR. In regard to the commenter's request to post service bulletins on the Department of Transportation's DMS, we are currently in the process of reviewing issues surrounding the posting of service bulletins on the DMS as part of an AD docket. Once we have thoroughly examined all aspects of this issue and have made a final determination, we will consider whether our current practice needs to be revised. No change to the final rule is necessary in response to this comment. Conclusion We have carefully reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD as proposed. Costs of Compliance This AD affects about 53 airplanes of U.S. registry. The required actions take about 2 work hours per airplane, at an average labor rate of $80 per work hour. The manufacturer states that it will supply required parts to the operators at no cost. Based on these figures, the estimated cost of the AD for U.S. operators is $8,480, or $160 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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that this AD:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and
(3)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 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, Incorporation by reference, Safety. Adoption of the Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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): **2006-23-16 BAE Systems (Operations) Limited (Formerly British Aerospace Regional Aircraft):** Amendment 39-14828. Docket No. FAA-2006-25437; Directorate Identifier 2006-NM-136-AD. Effective Date
(a)This AD becomes effective December 21, 2006. Affected ADs
(b)None. Applicability
(c)This AD applies to all BAE Systems (Operations) Limited Model BAe 146-100A, -200A, and -300A series airplanes; and Model Avro 146-RJ70A, 146-RJ85A, and 146-RJ100A airplanes; certificated in any category. Unsafe Condition
(d)This AD results from reports of loss of the nose wheel assembly. We are issuing this AD to prevent the nose wheel nut from loosening, and consequently, the nose wheel assembly detaching from the airplane; and to prevent the nose wheel clamping loads from applying to the machined radius at the root of the stub axle, which could result in damage to the nose landing gear. 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. Modification
(f)Within 12 months after the effective date of this AD, modify the nose landing gear in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Modification Service Bulletin 32-174-70676A, dated February 21, 2006. Note 1: BAE Systems (Operations) Limited Modification Service Bulletin 32-174-70676A refers to Messier-Dowty Service Bulletin 146-32-161, dated March 2, 2005, as an additional source of service information for accomplishing the modification. Note 2: BAE Systems (Operations) Limited Modification Service Bulletin 32-174-70676A refers to the abutment ring as a spacer. BAE Systems (Operations) Limited BAe 146/Avro 146-RJ Airplane Maintenance Manual
(AMM)32-42-17 401 identifies this part as an abutment ring (item 4). Item 3 of the AMM is identified as a spacer, but this is not the part described in the modification service bulletin. No Reporting
(g)Although the service bulletin referenced in this AD specifies to submit certain information to the manufacturer, this AD does not include that requirement. Alternative Methods of Compliance (AMOCs) (h)(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
(i)European Aviation Safety Agency
(EASA)airworthiness directive 2006-0137, dated May 23, 2006, also addresses the subject of this AD. Material Incorporated by Reference
(j)You must use BAE Systems (Operations) Limited Modification Service Bulletin 32-174-70676A, dated February 21, 2006, to perform the actions that are required by this AD, unless the AD specifies otherwise. The Director of the Federal Register approved the incorporation by reference of this document in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Contact British Aerospace Regional Aircraft American Support, 13850 Mclearen Road, Herndon, Virginia 20171, for a copy of this service information. You may review copies at the Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Room PL-401, Nassif Building, Washington, DC; on the Internet at *http://dms.dot.gov;* or at the National Archives and Records Administration (NARA). For information on the availability of this material at the NARA, call
(202)741-6030, or go to *http://www.archives.gov/ federal_register/code_ of_federal_ regulations/ibr_ locations.html.* Issued in Renton, Washington, on November 7, 2006. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E6-19148 Filed 11-15-06; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 110 [CGD01-06-026] RIN 1625-AA01 Anchorage Regulations; Falmouth Maine, Casco Bay AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard hereby amends the special anchorage area in Falmouth, Maine, Casco Bay. This action is necessary to facilitate safe navigation and provide mariners a safe and secure anchorage for vessels of not more than 65 feet in length. This action is intended to increase the safety of life and property on Casco Bay, improve the safety of anchored vessels, and provide for the overall safe and efficient flow of vessel traffic and commerce. DATES: This rule is effective December 18, 2006. ADDRESSES: Comments and materials received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket (CGD01-06-026), and are available for inspection or copying at room 628, First Coast Guard District Boston, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Mr. John J. Mauro, Commander (dpw), First Coast Guard District, 408 Atlantic Ave., Boston, MA 02110, Telephone
(617)223-8355, e-mail: *John.J.Mauro@uscg.mil* . Regulatory Information On August 11, 2006, we published a notice of proposed rulemaking
(NPRM)entitled “Anchorage Regulations; Falmouth, ME, Casco Bay” in the **Federal Register** (71 FR 46181). We received no letters commenting on the proposed rule. No public hearing was requested, and none was held. Because we did not receive any comments on the proposed rule, we have not made any changes from the proposed rule with the exception of correcting a paragraph reference in the note to paragraph
(d)of 33 CFR 110.5 from “(g)” to “(d)”. Background and Purpose This rule is intended to reduce the risk of vessel collisions by enlarging the current special anchorage area in Falmouth, Maine, by an additional 206 acres. This rule will expand the existing special anchorage, described in 33 CFR 110.5(d), to allow anchorage for approximately 150 additional vessels. When at anchor in any special anchorage, vessels not more than 65 feet in length need not carry or exhibit the white anchor lights required by the Navigation Rules. The Coast Guard has defined the anchorage area contained herein with the advice and consent of the Army Corps of Engineers, Northeast, located at 696 Virginia Rd., Concord, MA 01742. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation is unnecessary. This finding is based on the fact that this rule conforms to the changing needs of the Town of Falmouth, the changing needs of recreational, fishing and commercial vessels, and makes the best use of the available navigable water. This rule is in the interest of safe navigation and protection of Falmouth and the marine environment. This special area, while in the interest of safe navigation and protection of the vessels moored at the Town of Falmouth, does not impede the passage of vessels intending to transit within Casco Bay. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule will affect the following entities, some of which might be small entities: The owners or operators of recreational or commercial vessels intending to transit in a portion of the Casco Bay in and around the anchorage area. However, this anchorage area would not have a significant economic impact on these entities for the following reasons: The special area does not impede the passage of vessels intending to transit in and around Falmouth, which include both small recreational and large commercial vessels. Thus, the special anchorage area will not impede safe and efficient vessel transits on Casco Bay. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking process. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact John J. Mauro, at the address listed in ADDRESSES above. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). Collection of Information This calls 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 rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This rule will not effect 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 rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have considered the environmental impact of this rule and concluded that, under figure 2-1, paragraph 34(f), of Commandant Instruction M16475.1D, this rule is categorically excluded from further environmental documentation. A final “Categorical Exclusion Determination” and a final “Environmental Analysis Check List” are available in the docket for inspection or copying where indicated under ADDRESSES . This rule fits the category selected from paragraph (34)(f) as it would expand a special anchorage area. List of Subjects in 33 CFR Part 110 Anchorage grounds. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows: PART 110—ANCHORAGE REGULATIONS 1. The authority citation for part 110 continues to read as follows: Authority: 33 U.S.C. 471; 1221 through 1236, 2030, 2035 and 2071; 33 CFR 1.05-1(g); and Department of Homeland Security Delegation No. 0170.1. 2. Amend § 110.5, by revising paragraph
(d)to read as follows: § 110.5 Casco Bay, Maine.
(d)*Mussel Cove and adjacent waters at Falmouth Foreside, Falmouth.* All of the waters enclosed by a line beginning at the Dock House (F.S.) located at latitude 43°44′22″ N, longitude 70°11′41″ W; thence to latitude 43°44′19″ N, longitude 70°11′33″ W; thence to latitude 43°44′00″ N, longitude 70°11′44″ W; thence to latitude 43°43′37″ N, longitude 70°11′37″ W; thence to latitude 43°43′04″ N, longitude 70°12′13″ W; thence to latitude 43°41′56″ N, longitude 70°12′53″ W; thence to latitude 43°41′49″ N, longitude 70°13′05″ W; thence to latitude 43°42′11″ N, longitude 70°13′30″ W; thence along the shoreline to the point of beginning. DATUM: NAD 83. Note to paragraph (d). The area designed by paragraph
(g)of this section is reserved for yachts and other small recreational craft. Fore and aft moorings will be allowed in this area. Temporary floats or buoys for marking anchors or moorings in place will be allowed. Fixed mooring piles or stakes are prohibited. All moorings must be so placed so that no vessel when anchored is at any time extended into the thoroughfare. All anchoring in the area is under the supervision of the local harbor master or such other authority as may be designated by the authorities of the Town of Falmouth, Maine. Dated: October 30, 2006. Timothy S. Sullivan, Rear Admiral, U.S. Coast Guard, Commander, First Coast Guard District. [FR Doc. E6-19315 Filed 11-15-06; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD05-06-002] RIN 1625-AA09 Drawbridge Operation Regulations; Chincoteague Channel, Chincoteague, VA AGENCY: Coast Guard, DHS. ACTION: Final rule. SUMMARY: The Coast Guard is changing the drawbridge operation regulations that govern the SR 175 Bridge, at mile 3.5, across Chincoteague Channel at Chincoteague Island, Virginia. This change is necessary to help relieve vehicular traffic congestion and reduce traffic delays while still balancing the needs of marine and vehicular traffic. DATES: This rule is effective December 18, 2006. ADDRESSES: Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, are part of docket CGD05-06-002 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. The Fifth Coast Guard District maintains the public docket for this rulemaking. FOR FURTHER INFORMATION CONTACT: Gary S. Heyer, Bridge Management Specialist, Fifth Coast Guard District, at
(757)398-6629. SUPPLEMENTARY INFORMATION: Regulatory History On June 28, 2004, we published a notice of temporary deviation from the regulations and request for comments entitled “Drawbridge Operation Regulations; Chincoteague Channel, VA” in the **Federal Register** (69 FR 36011). The temporary deviation was in operation to test an alternate drawbridge operation schedule for 90 days and solicit comments from the public. From July 2, 2004 through September 29, 2004, the draw of the bridge opened every two hours on the even hour from 6 a.m. to midnight; except from 7 a.m. to 5 p.m., on the last consecutive Wednesday and Thursday in July, the draw needed not be opened. At all other times, the draw needed not open. The Coast Guard received six letters and four petitions commenting on the provisions of the temporary deviation. On December 30, 2004, the Coast Guard published a notice of proposed rulemaking
(NPRM)entitled “Drawbridge Operation Regulation; Chincoteague Channel, Chincoteague, VA” in the **Federal Register** (69 FR 78373). The NPRM allowed hourly openings of the draw year-round from 6 a.m. to midnight; except from 7 a.m. to 5 p.m. on the last consecutive Wednesday and Thursday in July of every year, the draw needed not be opened. At all other times, the draw needed not open. We received six comments on the NPRM. On April 18, 2005, the Coast Guard published a final rule entitled “Drawbridge Operation Regulation; Chincoteague Channel, Chincoteague, VA” in the **Federal Register** (70 FR 20051). The final rule required the draw to open on demand from midnight to 6 a.m., and on the hour from 6 a.m. to midnight, except from 7 a.m. to 5 p.m. on the last consecutive Wednesday and Thursday in July of every year, the draw needed not be opened. We published an NPRM on April 13, 2006, entitled “Drawbridge Operation Regulations; Chincoteague Channel, Chincoteague, VA” in the **Federal Register** (71 FR 19150). The NPRM would allow the bridge to open on demand from midnight to 6 a.m., and every hour and a half from 6 a.m. to midnight; except from 7 a.m. to 5 p.m., on the last consecutive Wednesday and Thursday in July, the draw need not be opened. The comment period ended on May 30, 2006. We received 557 comments to the NPRM. On June 26, 2006, we published a notice; request for comments and notice of public meeting in the **Federal Register** (71 FR 36297). On July 18, 2006, we held a public meeting at the Chincoteague Community Center, Chincoteague Island, Virginia. We accepted written comments from the public until July 21, 2006. Background and Purpose Current regulations require the SR 175 Bridge, at mile 3.5, across Chincoteague Channel to open on demand from midnight to 6 a.m. and on the hour from 6 a.m. to midnight, except the draw shall remain in the closed position to vessels from 7 a.m. to 5 p.m. on the last consecutive Wednesday and Thursday in July of every year. In October 2005, the Chincoteague Town Council adopted a resolution that requested a change in the scheduled openings of the bridge. The resolution details the Town's concerns based on the following factors: The number of openings have actually increased since the last modification; the boats north of the bridge frequently sail and return one-at-a-time; due to inconsistencies in the openings, the Town of Chincoteague has received many complaints from motorists; and openings on the even hours as needed will not significantly impact the boaters. Additionally, in September 2005, we were advised of an incident in which ambulance services were unable to transit the drawbridge due to a vessel opening request. The ambulance service was further delayed because during closing procedures the drawbridge experienced mechanical problems. The Coast Guard drawbridge operating regulations already address the emergency situations, so no changes are needed to the operating regulations to address that concern. 33 CFR Part 117.31(a)—Operation of draw for emergency situations—states that “When a draw tender is informed by a reliable source that an emergency vehicle is due to cross the draw, the draw tender shall take all reasonable measures to have the draw closed at the time the emergency vehicle arrives at the bridge”. Based on the request from the Chincoteague Town Council, we published a NPRM on April 13, 2006, entitled “Drawbridge Operation Regulations; Chincoteague Channel, Chincoteague, VA” in the **Federal Register** (71 FR 19150). The NPRM would allow the bridge to open on demand from midnight to 6 a.m., and every one and a half hours from 6 a.m. to midnight; except from 7 a.m. to 5 p.m., on the last consecutive Wednesday and Thursday in July, the draw need not be opened. The proposed change would reduce vehicular traffic congestion while still balancing the needs of marine and vehicular traffic. The comment period ended on May 30, 2006. After the comment period ended on May 30, 2006, an Accomack County official communicated to the Coast Guard that residents of Chincoteague had additional comments concerning the operating regulations of the drawbridge. Based on this request we held a public meeting at the Chincoteague Community Center, at Chincoteague Island, Virginia. We accepted written comments from the public until July 21, 2006. The Coast Guard also reviewed the bridge logs provided by VDOT. There were approximately 1919 bridge openings in 2005 over a six-month period (May, June, July, August, September and October) (See Table A); and in 2006, for the same six-month period, there were approximately 1359 bridge openings. (See Table B). Table A Bridge Openings for 2005 JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC 62 112 60 163 453 330 316 317 291 212 200 134 Boat Passages for 2005 56 122 61 187 642 606 559 622 377 368 268 160 Table B Bridge Openings for 2006 JAN FEB MAR APR MAY JUN JUL AUG SEPT OCT NOV DEC 134 141 82 181 359 271 265 236 122 106 NA NA Boat Passages for 2006 167 177 88 279 710 460 431 361 145 125 NA NA Annually, there are between 66 and 90 commercial fishing vessels that are dependent on regular drawbridge openings to access docking facilities to unload their product. Depending on the season, these vessels regularly unload multiple seafood catches a day because of trip catch limits. The Virginia Natural Resources Department provided Fisheries landing data from 2002 to 2005 for Accomack County. This data supports an overall increase in the pounds of seafood unloaded and the monetary value which supports the economic base for the surrounding area. (See Table C) Table C.—Summary of Fisheries Data—Accomack County 2002 1 11,238,247 $9,811,727 2003 1 11,304,169 10,900,731 2004 1 12,829,955 13,745,649 2005 1 10,693,540 12,369,899 1 Pounds. During the late spring, summer and early fall months, the number of vacationers and commercial fishing vessels (often scallop boats) that utilize the SR 175 Bridge is ever-increasing. The average resident population in the Town of Chincoteague is approximately 5,000. However, in the summertime with vacationers, the average population on Chincoteague Island is about 15,000. A proposed seasonal schedule was considered as an option, where the drawbridge would open for vessels every two hours during the spring and summer months; and hourly during the fall and winter months. However, the data shows that the peak commercial fishing period and delivery times are in direct conflict with the peak tourist and travel season on Chincoteague Island. Therefore, this option was not chosen. Discussion of Comments and Changes The Coast Guard received 554 comments to the NPRM published on April 13, 2006 (71 FR 19150). The comments included 540 letters, one petition, two e-mail comments, and 14 oral remarks presented at the public meeting. The vast majority of the letters
(471)were mass-produced form letters signed by residents. In addition, there were 60 letters from fishermen and small businesses. Six letters were from State and Town officials (two letters each from an Accomack County Supervisor, and the Town Manager of Chincoteague; with one letter each from a Virginia House Delegate, and an official with the Virginia Department of Transportation (VDOT)). Two separate comments were supplied on one e-mail message. A majority of comments from residents of the Town of Chincoteague favored a two-hour opening schedule of the drawbridge from 6 a.m. to midnight. Commercial vessel owners and small businesses preferred hourly openings. However, the commercial vessel owners and small businesses commented that they can manage their establishments and vessels under the proposal to open every one and a half hour from 6 a.m. to midnight. Eight of the 14 oral remarks that were offered at the public meeting favored a two-hour opening schedule of the drawbridge from 6 a.m. to midnight, and 6 supported openings every one and a half hour from 6 a.m. to midnight. The State and Town officials asserted their concerns that the bridge has exceeded its useful design life, that the increase in vessel traffic to the area has had a serious impact on the wear and tear of the bridge, and that reducing the number of vessel openings will assist VDOT in maintaining the mechanical condition of the bridge until a replacement bridge is complete. It is the duty of the owner and operator of a drawbridge, VDOT in this case, to maintain the operating machinery in a serviceable condition and to provide for the safe and prompt opening of the drawbridge according to the operating regulations. The Coast Guard may not issue regulations for the purpose of relieving the owner or operator of the duty to properly maintain or operate the draw span solely because of financial hardship, or to save wear and tear on the structure or machinery, unless there is clearly documented evidence that there is little or no need for bridge openings. The data shows that mariners still require continued openings of the SR 175 Bridge over Chincoteague Channel, so the wear and tear on the bridge will not be considered as a factor in establishing the operating regulations. Based on all of the comments received, we will implement a final rule with no changes to the NPRM. Under this final rule, the draw will open on demand from midnight to 6 a.m., and every one and a half hours from 6 a.m. to midnight (at 6 a.m., 7:30 a.m., 9 a.m., 10:30 a.m., 12 p.m., 1:30 p.m., 3 p.m., 4:30 p.m., 6 p.m., 7:30 p.m., 9 p.m. 10:30 p.m. and midnight); except from 7 a.m. to 5 p.m. on the last consecutive Wednesday and Thursday in July, the draw need not open. To minimize uncertainty and to assist in the transition to the new operating schedule of the drawbridge, the Coast Guard will print and distribute flyers providing the new opening times to residents and business owners. Officials with VDOT are required to post signs on the bridge for mariners with the operating schedule, including the opening times from 6 a.m. to midnight. This final rule will help address vehicular traffic congestion and reduce traffic delays while still providing for the reasonable needs of navigation. Discussion of Rule The Coast Guard amends 33 CFR 117.1005, by inserting a new provision to require the draw to open on demand from midnight to 6 a.m., and every one and a half hour from 6 a.m. to midnight (at 6 a.m., 7:30 a.m., 9 a.m., 10:30 a.m., 12 p.m., 1:30 p.m., 3 p.m., 4:30 p.m., 6 p.m., 7:30 p.m., 9 p.m. 10:30 p.m. and midnight); except from 7 a.m. to 5 p.m. on the last consecutive Wednesday and Thursday in July, the draw need not open. Regulatory Evaluation This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). This conclusion based on the fact that the changes will have only a minimal impact on maritime traffic transiting the bridge. Mariners can plan their trips in accordance with the scheduled bridge openings to minimize delays. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This conclusion is based on the fact the rule would not have a significant economic impact on a substantial number of small entities because the rule only adds minimal restrictions to the movement of navigation, and mariners who plan their transits in accordance with the scheduled bridge openings can minimize delays. In addition, the comments received from mariners suggest that they can accommodate the change in the schedule. 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 rule so that they can better evaluate its effects on them and participate in the rulemaking process. No assistance was requested from any small entity. Collection of Information This rule calls 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 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 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 rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this 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 rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this 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 rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969
(NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation because it has been determined that the promulgation of operating regulations for drawbridges are categorically excluded. List of Subjects in 33 CFR Part 117 Bridges. Regulations For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows: PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority: 33 U.S.C. 499; 33 CFR 1.05-1(g); Department of Homeland Security Delegation No. 0170.1; section 117.255 also issued under the authority of Pub. L. 102-587, 106 Stat. 5039. 2. § 117.1005 is revised to read as follows: § 117.1005 Chincoteague Channel. The draw of the SR 175 Bridge, mile 3.5, at Chincoteague shall open on demand from midnight to 6 a.m., and every one and a half hours from 6 a.m. to midnight (at 6 a.m., 7:30 a.m., 9 a.m., 10:30 a.m., 12 p.m., 1:30 p.m., 3 p.m., 4:30 p.m., 6 p.m., 7:30 p.m., 9 p.m. 10:30 p.m. and midnight); except from 7 a.m. to 5 p.m. on the last consecutive Wednesday and Thursday in July, the draw need not be opened. Dated: November 1, 2006. L.L. Hereth, Rear Admiral, United States Coast Guard, Commander, Fifth Coast Guard District. [FR Doc. 06-9237 Filed 11-15-06; 8:45 am]
Connectionstraces to 36
Traces to 36 documents
U.S. Code
31 references not yet in our index
  • 10 CFR 50
  • 10 CFR 71
  • 10 CFR 72
  • Pub. L. 104-113
  • 10 CFR 51
  • 68 Stat. 936
  • 83 Stat. 444
  • 88 Stat. 1242
  • 112 Stat. 2750
  • Pub. L. 95-601
  • 92 Stat. 2951
  • 68 Stat. 955
  • Pub. L. 91-190
  • 83 Stat. 853
  • 68 Stat. 939
  • 88 Stat. 1245
  • Pub. L. 97-415
  • 96 Stat. 2073
  • 68 Stat. 954
  • 10 CFR 100
  • 14 CFR 39
  • 1 CFR 51
  • 33 CFR 110
  • 5 USC 601-612
  • Pub. L. 104-121
  • 44 USC 3501-3520
  • 2 USC 1531-1538
  • 33 CFR 117
  • 42 USC 4321-4370f
  • Pub. L. 102-587
  • 106 Stat. 5039
Citation graph
cites case law
Rules and Regulations
Direct final rule
C.F.R.§ 50.68
U.S.C.§ 3501
C.F.R.§ 50.59
U.S.C.§ 605
C.F.R.§ 2.810
C.F.R.§ 50.109
U.S.C.§ 552
U.S.C.§ 2132
U.S.C.§ 5841
Cite10 CFR 50
Cite10 CFR 71
Cite10 CFR 72
Cites 67 · showing 12Cited by 0 across 0 sources
★   the supreme law of the land   ★
Don't Tread on Me
E Pluribus Unum — out of many, one

"If you don't know your rights, you don't have any."

Marginalia · a citizen's law index
A research desk, not legal advice. Always read the cited source before relying on a summary.
Questions or an issue? support@self-law.org
disclaimerMarginalia is a research index, not a law firm. Nothing on this site is legal, tax, or financial advice and no attorney–client relationship is formed by using it. Statutes, regulations, and case law change; summaries, search results, AI output, and member posts may be incomplete, out of date, or wrong. Any interpretation drawn from material on this site should be validated by a licensed attorney in your jurisdiction before you act on it.