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Code · REGISTER · 2007-03-06 · PROPOSED RULES · Agricultural Agricultural Marketing Service RULES Walnuts grown in California, 9841-9843 E7-3818 PROPOSED RULES National Organic Program: Allowed and prohibited substances; national list, 9872-9877 E7 · Unknown

Unknown. Final rule

73,802 words·~335 min read·/register/2007/03/06/07-855

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

--- schema: federal-register doc_type: fedreg source_file: FR-2007-03-06.xml --- 72 43 Tuesday, March 6, 2007 Contents Agricultural Agricultural Marketing Service RULES Walnuts grown in California, 9841-9843 E7-3818 PROPOSED RULES National Organic Program: Allowed and prohibited substances; national list, 9872-9877 E7-3829 NOTICES Cotton research and promotion order: Cotton Research and Promotion Act; referendum determination, 9918-9919 E7-3828 Agriculture Agriculture Department See Agricultural Marketing Service Army Army Department See Engineers Corps NOTICES Meetings:
Army Educational Advisory Committee, 9933 07-1011 Census Census Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 9920-9921 E7-3879 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 9949-9950 E7-3851 Meetings: Disease, Disability, and Injury Prevention and Control Special Emphasis Panels, 9950-9951 E7-3852 Correction, 9950 E7-3843 Coast Guard Coast Guard RULES Drawbridge operations:
California, 9854-9855 E7-3802 E7-3809 PROPOSED RULES Ports and waterways safety; regulated navigation areas, safety zones, security zones, etc.: Sacramento River, CA, 9901-9903 E7-3804 Commerce Commerce Department See Census Bureau See Industry and Security Bureau See International Trade Administration See National Institute of Standards and Technology See National Oceanic and Atmospheric Administration See Patent and Trademark Office NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-3875 E7-3876 9919-9920 E7-3877 E7-3880 Commission of Fine Commission of Fine Arts NOTICES Meetings, 9933 07-1003 Customs Customs and Border Protection Bureau RULES Merchandise, special classes:
Cement products from Mexico requiring Commerce Department import license, 10004-10006 07-997 Defense Defense Department See Army Department See Engineers Corps See Navy Department Drug Drug Enforcement Administration NOTICES Registration revocations, restrictions, denials, reinstatements: ATF Fitness Products, Inc., 9967-9969 E7-3856 Georgia Convenience Wholesale, Inc., 9969-9971 E7-3839 MK Distributing, Inc., 9972-9974 E7-3857 *Applications, hearings, determinations, etc.:* Varian, Inc., 9967 E7-3919 Education Education Department NOTICES Grants and cooperative agreements; availability, etc.:
Special education and rehabilitative services— Centers for Independent Living Program, 9936-9938 E7-3886 Rehabilitation Continuing Education Programs-Community Rehabilitation Programs, 9939-9942 E7-3889 Special education and rehabilitative services: Rehabilitation Services Administration Rehabilitation Training Program; redesign; comments and recommendations request, 9942-9943 E7-3887 Employment Employment Standards Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 9974-9977 E7-3865 E7-3866 E7-3867 Energy Energy Department NOTICES Privacy Act; systems of records, 9943-9947 E7-3836 Engineers Engineers Corps NOTICES Environmental statements; notice of intent:
Lorain Harbor, OH; dredged material management plan, 9934-9935 07-1007 EPA Environmental Protection Agency PROPOSED RULES Air pollution; standards of performance for new stationary sources: Electric utility steam generating units and industrial-commercial-institutional steam generating units, 9903 E7-3878 NOTICES Superfund; response and remedial actions, proposed settlements, etc.: Beaver Wood Product Site, MT, 9947-9948 E7-3941 Star Lake Canal Site, TX, 9948 E7-3881 Executive Executive Office of the President See Presidential Documents Farm Farm Credit Administration NOTICES Meetings;
Sunshine Act, 9948 07-1057 FAA Federal Aviation Administration RULES Air traffic operating and flight rules, etc.: Grand Canyon National Park, AZ; special flight rules in vicinity— Special flight rules area informational map; obsolete reference removed, 9845-9846 E7-3810 Airworthiness directives: Fokker, 9843-9845 E7-3659 Standard instrument approach procedures, 9846-9847 E7-3681 PROPOSED RULES Airworthiness directives: Airbus, 9880-9884 E7-3841 Boeing, 9877-9880 E7-3842 NOTICES Meetings:
Aviation Rulemaking Advisory Committee, 9995 E7-3801 Federal Motor Federal Motor Carrier Safety Administration RULES Motor carrier safety standards: Parts and accessories necessary for safe operation— Surge brake requirements, 9855-9871 E7-3815 NOTICES Agency information collection activities; proposals, submissions, and approvals, 9995-9996 E7-3803 Reports and guidance documents; availability, etc.: Oregon Department of Transportation; weight-mile tax display requirement for interstate motor carriers; petition denied, 9996-9999 E7-3806 Surge brakes use on commercial motor vehicles; regulatory guidance withdrawn, 9999 E7-3813 Federal Railroad Federal Railroad Administration PROPOSED RULES Railroad locomotive safety standards:
Sanders; addition use, 9904-9912 E7-3885 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Formations, acquisitions, and mergers, 9948-9949 E7-3838 Fine Arts Fine Arts Commission See Commission of Fine Arts Fish Fish and Wildlife Service PROPOSED RULES Endangered and threatened species: Findings on petitions, etc.— Indiana bat, 9913-9917 E7-3868 Virginia northern flying squirrel; delisting Correction, 9913 07-855 Food Food and Drug Administration RULES Human drugs:
Dandruff, seborrheic dermatitis, and psoriasis drug products (OTC); final monograph amendment, 9849-9852 E7-3808 NOTICES Reports and guidance documents; availability, etc.: Orally inhaled and intranasal corticosteroids; evaluation of effects on growth in children, 9951-9952 E7-3807 Government Government Printing Office NOTICES Meetings: Depository Library Council to the Public Printer, 9949 07-1012 Health Health and Human Services Department See Centers for Disease Control and Prevention See Food and Drug Administration See Substance Abuse and Mental Health Services Administration NOTICES Meetings:
Human Research Protections Advisory Committee, 9949 E7-3882 Homeland Homeland Security Department See Coast Guard See Customs and Border Protection Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 9953-9954 07-1065 Immigration and Nationality Act; Secretarial determination, E7-3905 9954-9958 E7-3906 E7-3907 E7-3909 E7-3910 E7-3914 Meetings: Data Privacy and Integrity Advisory Committee, 9958-9959 07-1008 Memorandums of understanding:
NRC and Homeland Security Department; location of new utilization facilities; potential vulnerabilities, 9959-9960 07-1006 Housing Housing and Urban Development Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 9960-9961 E7-3805 Grants and cooperative agreements; availability, etc.: Community Development Block Grant Program— Disaster recovery grants provided to States; waivers and alternative requirements, 10014-10018, E7-3830 10020-10022 E7-3831 Low income housing:
Difficult development areas and qualified census tracts; statutorily mandated designation for tax credit; effective date definition revised, 9961-9963 E7-3894 Industry Industry and Security Bureau RULES Export administration regulations: Crime control items; license exception availability, license requirements, and licensing policy; revisions and clarifications, 9847-9849 E7-3895 Interior Interior Department See Fish and Wildlife Service See Minerals Management Service See Reclamation Bureau International International Trade Administration RULES Mexican Cement Import Licensing System, 10006-10011 07-996 NOTICES Antidumping:
Canned pineapple fruit from— Thailand, 9921-9922 E7-3891 Carbon and alloy steel wire rod from— Trinidad and Tobago, 9922-9924 E7-3892 Oil country tubular goods, other than drill pipe, from— Korea, 9924-9926 E7-3893 Sodium hexametaphosphate from— China, 9926-9930 E7-3890 Solid urea from— Russia, 9930-9931 E7-3896 Justice Justice Department See Drug Enforcement Administration Labor Labor Department See Employment Standards Administration Minerals Minerals Management Service PROPOSED RULES Outer Continental Shelf; oil, gas, and sulphur operations:
Oil and gas production requirements, 9884-9901 E7-3846 NASA National Aeronautics and Space Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-3858 9977-9979 E7-3859 E7-3860 E7-3861 E7-3862 National Highway National Highway Traffic Safety Administration NOTICES Meetings: New Car Assessment Program; suggested approaches for enhancements; hearing; correction, 9999 E7-3814 Motor vehicle safety standards; exemption petitions, etc.:
J.K. Technologies, LLC, 9999-10001 E7-3817 National Institute National Institute of Standards and Technology NOTICES Meetings: Manufacturing Extension Partnership National Advisory Board, 9931 E7-3874 NOAA National Oceanic and Atmospheric Administration NOTICES Meetings: Gulf of Mexico and South Atlantic gag grouper and Gulf of Mexico red grouper; SEDAR workshops, 9931-9932 E7-3849 Navy Navy Department NOTICES Base realignment and closure: Surplus Federal property— Naval Station Pascagoula, MS, 9935-9936 E7-3850 Naval Weapons Station Seal Beach Detachment, Concord, CA, 9935 E7-3848 Nuclear Nuclear Regulatory Commission NOTICES Generic letters:
Inaccessible or underground power cable failures that disable accident mitigation systems or cause plant transients, 9979-9980 E7-3854 Meetings: Nuclear Waste Advisory Committee, 9980-9981 E7-3863 E7-3864 Meetings; Sunshine Act, 9981-9982 07-1062 Memorandums of understanding: NRC and Homeland Security Department; location of new utilization facilities; potential vulnerabilities, 9959-9960 07-1006 Petitions; Director's decisions: STP Nuclear Operating Co., 9982-9983 E7-3827 Patent Patent and Trademark Office NOTICES Organization, functions, and authority delegations:
Trademark Search Facility, Arlington, VA; paper search collection of registered word-only marks removed, 9932-9933 E7-3853 Postal Postal Service NOTICES Meetings; Sunshine Act, 9983 07-1066 Presidential Presidential Documents PROCLAMATIONS Dominican Republic; free trade agreement (Proc. 8111), 10023-10028 07-1068 Northwestern Hawaiian Islands Marine National Monument; amendment to Proclamation 8031 (Proc. 8112), 10029-10031 07-1077 Reclamation Reclamation Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 9964-9967 E7-3844 E7-3845 E7-3847 SEC Securities and Exchange Commission NOTICES Securities Exchange Act:
International Securities Exchange, LLC and National Association of Securities Dealers, Inc.; regulatory responsibilities allocation plan, 9983-9985 E7-3837 Self-regulatory organizations; proposed rule changes: New York Stock Exchange LLC, 9985-9989 E7-3795 SBA Small Business Administration NOTICES Meetings: National Small Business Development Center Advisory Board, 9989 E7-3812 State State Department RULES Intercounty Adoption Act of 2000: Hague Convention— Emigrating children; convention and nonconvention adoptions; reporting requirements, 9852-9854 E7-3684 NOTICES Grants and cooperative agreements; availability, etc.:
Faith and Community: A Dialogue, 9990-9995 E7-3869 Substance Substance Abuse and Mental Health Services Administration NOTICES Federal agency urine drug testing; certified laboratories meeting minimum standards, list, 9952-9953 E7-3770 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See National Highway Traffic Safety Administration Treasury Treasury Department RULES Merchandise, special classes:
Cement products from Mexico requiring Commerce Department import license, 10004-10006 07-997 Separate Parts In This Issue Part II Commerce Department, International Trade Administration, 10006-10011 07-996 Homeland Security Department, Customs and Border Protection Bureau; Treasury Department, 10004-10006 07-997 Part III Housing and Urban Development Department, 10014-10018 E7-3830 Part IV Housing and Urban Development Department, 10020-10022 E7-3831 Part V Executive Office of the President, Presidential Documents, 10023-10028 07-1068 Part VI Executive Office of the President, Presidential Documents, 10029-10031 07-1077 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 43 Tuesday, March 6, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 984 [Docket No. AMS-FV-06-0196; FV06-984-2 FIR] Walnuts Grown in California; Increased Assessment Rate AGENCY:
Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture
(USDA)is adopting as a final rule, without change, an interim final rule which increased the assessment rate established for the Walnut Marketing Board (Board) for the 2006-07 and subsequent marketing years from $0.0096 to $0.0101 per kernelweight pound of assessable walnuts. The Board locally administers the marketing order which regulates the handling of walnuts grown in California. Assessments upon walnut handlers are used by the Board to fund reasonable and necessary expenses of the program. The marketing year begins August 1 and ends July 31. The assessment rate will remain in effect indefinitely unless modified, suspended, or terminated. EFFECTIVE DATE: April 5, 2007. FOR FURTHER INFORMATION CONTACT: Shereen Marino, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(559)487-5901, Fax:
(559)487-5906, or E-mail: *Shereen.Marino@usda.gov* or *Kurt.Kimmel@usda.gov.* Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov.* SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 984, both as amended (7 CFR part 984), regulating the handling of walnuts grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the marketing order now in effect, California walnut handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the assessment rate as issued herein will be applicable to all assessable walnuts beginning on August 1, 2006, and continue until amended, suspended, or terminated. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule continues in effect the action that increased the assessment rate established for the Board for the 2006-07 and subsequent marketing years from $0.0096 to $0.0101 per kernelweight pound of assessable walnuts. The California walnut marketing order provides authority for the Board, with the approval of USDA, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are producers and handlers of California walnuts. They are familiar with the Board's needs and the costs for goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed at a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input. For the 2005-06 and subsequent marketing years, the Board recommended, and USDA approved, an assessment rate of $0.0096 per kernelweight of assessable walnuts that would continue in effect from year to year unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other information available to USDA. The Board met on September 8, 2006, and unanimously recommended 2006-07 expenditures of $3,222,860 and an assessment rate of $0.0101 per kernelweight pound of assessable walnuts. In comparison, last year's budgeted expenditures were $2,937,600. The assessment rate of $0.0101 per kernelweight pound of assessable walnuts is $0.0005 per pound higher than the 2005-06 rate. The higher assessment rate is necessary to cover increased expenses including increased salaries, operating expenses and research for the 2006-07 marketing year. The following table compares major budget expenditures recommended by the Board for the 2005-06 and 2006-07 marketing years: Budget expense categories 2005-06 2006-07 Administrative Staff/Field Salaries & Benefits $360,000 $415,000 Travel/Board Expenses 80,000 75,000 Office Costs/Annual Audit 132,500 142,500 Program Expenses Including Research: Controlled Purchases 5,000 5,000 Crop Acreage Survey 85,000 Crop Estimate 95,000 100,000 Production Research Director 75,000 75,000 Production Research 500,000 650,000 Domestic Market Development 1,550,000 1,750,000 Reserve for Contingency 55,100 10,360 The assessment rate recommended by the Board was derived by dividing anticipated expenses by expected shipments of California walnuts certified as merchantable. Merchantable shipments for the year are estimated at 318,600,000 kernelweight pounds which should provide $3,217,860 in assessment income. Assessment income combined with interest income should allow the Board to cover its expenses. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69. The estimate for merchantable shipments is based on the California Agricultural Statistics Service's crop estimate for the crop year of 354,000 tons (inshell). Pursuant to § 984.51(b) of the order, this figure was converted to a merchantable kernelweight basis using a factor of .45 (354,000 tons × 2,000 pounds/ton × .45). The assessment rate established in this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Board or other available information. Although this assessment rate will be in effect for an indefinite period, the Board will continue to meet prior to or during each marketing year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Board meetings are available from the Board or USDA. Board meetings are open to the public and interested persons may express their views at these meetings. USDA will evaluate Board recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking will be undertaken as necessary. The Board's 2006-07 budget and those for subsequent marketing years will be reviewed and, as appropriate, approved by USDA. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility. There are currently 44 handlers of California walnuts subject to regulation under the marketing order and approximately 5,150 growers in the production area. Small agricultural service firms are defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those whose annual receipts are less than $6,500,000, and small agricultural producers are defined as those whose annual receipts are less than $750,000. Current industry information suggests that 16 of the 44 handlers (36 percent) shipped over $6,500,000 of merchantable walnuts and could be considered large handlers by the SBA. Twenty-eight of the 44 walnut handlers (64 percent) shipped under $6,500,000 of merchantable walnuts and could be considered small handlers. The number of large walnut growers (annual walnut revenue greater than $750,000) can be estimated as follows. According to the National Agricultural Statistics Service (NASS), the average yield per acre for 2003-05 is 1.567 tons. A grower with 353 acres with average yields would produce approximately 553 tons. The average of grower prices for 2003-05 (published by NASS) is $1,357 per ton. At that average price, the 553 tons produced on 353 acres would yield approximately $750,000 in annual revenue. The 2002 Agricultural Census indicated 56 walnut farms (just under one percent of the 7,025 walnut farmers in 2002) were 500 acres or larger. The 500 acre threshold in the census data is somewhat larger than the 353 acres that would produce $750,000 in revenue with average yields and average prices. Thus, it can be concluded that the number of large walnut farms in 2006 is still likely to be not much above one percent. Based on the foregoing, it can be concluded that the majority of California walnut handlers and producers may be classified as small entities. This rule continues in effect the action that increased the assessment rate established for the Board and collected from handlers for the 2006-07 and subsequent marketing years from $0.0096 to $0.0101 per kernelweight pound of assessable walnuts. The Board unanimously recommended 2006-07 expenditures of $3,222,860 and an assessment rate of $0.0101 per kernelweight pound of assessable walnuts. The assessment rate of $0.0101 is $0.0005 higher than the 2005-06 rate. The quantity of assessable walnuts for the 2006-07 marketing year is estimated at 318,600,000 merchantable kernelweight pounds. Thus, the $0.0101 rate should provide $3,217,860 in assessment income. Assessment income combined with an anticipated interest income of $5,000 should be adequate to meet this year's expenses. The increased assessment rate is primarily due to increased budget expenditures. The following table compares major budget expenditures recommended by the Board for the 2005-06 and 2006-07 marketing years: Budget expense categories 2005-06 2006-07 Administrative Staff/Field Salaries & Benefits $360,000 $415,000 Travel/Board Expenses 80,000 75,000 Office Costs/Annual Audit 132,500 142,500 Program Expenses Including Research: Controlled Purchases 5,000 5,000 Crop Acreage Survey 85,000 Crop Estimate 95,000 100,000 Production Research Director 75,000 75,000 Production Research 500,000 650,000 Domestic Market Development 1,550,000 1,750,000 Reserve for Contingency 55,100 10,360 Prior to arriving at this budget, the Board considered alternative expenditure levels, but ultimately decided that the recommended levels were reasonable to properly administer the order. Unexpended funds may be used temporarily to defray expenses of the subsequent marketing year, but must be made available to the handlers from whom collected within 5 months after the end of the year, according to § 984.69. According to NASS, the season average grower prices for years 2004 and 2005 were $1,390 and $1,520 per ton, respectively. Dividing these average grower prices by 2,000 pounds per ton provides an inshell price per pound range of between $.70 and $.76. Adjusting by a few cents above and below those prices ($0.67 to $0.79 per inshell pound) provides a reasonable price range within which the 2006-07 season average price is likely to fall. Dividing these inshell prices per pound by the 0.45 conversion factor designated in the order yields a 2006-07 price range estimate of $1.49 and $1.76 per kernelweight pound of assessable walnuts. To calculate the percentage of grower revenue represented by the assessment rate, the assessment rate of $0.0101 (per kernelweight pound) is divided by the low and high estimates of the price range and then multiplied by 100. The estimated assessment revenue for the 2006-07 marketing year as a percentage of total grower revenue would likely range between .7 and .6 percent. This action continues in effect the action that increased the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the marketing order. In addition, the Board's meeting was widely publicized throughout the California walnut industry and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 8, 2006, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. This action imposes no additional reporting or recordkeeping requirements on either small or large California walnut handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. An interim final rule concerning this action was published in the **Federal Register** on November 16, 2006 (71 FR 66645). Copies of the rule were also mailed by the Board's staff to all Board members and walnut handlers. In addition, the interim final rule was made available through the Internet by USDA and the Office of the Federal Register. The rule provided for a 60-day comment period, which ended on January 16, 2007, and no comments were received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 984 Marketing agreements, Walnuts, Nuts, Reporting and recordkeeping requirements. PART 984—WALNUTS GROWN IN CALIFORNIA Accordingly, the interim final rule amending 7 CFR part 984 which was published at 71 FR 66645 on November 16, 2006, is adopted as a final rule without change. Dated: February 28, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-3818 Filed 3-5-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-26709; Directorate Identifier 2006-NM-202-AD; Amendment 39-14968; AD 2007-05-07] RIN 2120-AA64 Airworthiness Directives; Fokker Model F.28 Mark 0070 and 0100 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 Fokker Model F.28 Mark 0070 and 0100 airplanes. This AD requires inspecting the carbon-fiber reinforced plastic main landing gear
(MLG)door to determine whether certain part numbers are installed. For airplanes having certain doors, this AD requires inspecting the MLG outboard door for cracks, play, and loose sealant/bolts/nuts, and related investigative and corrective actions if necessary. This AD also requires, for airplanes having certain doors, modifying the rod bracket attachment of the MLG outboard door. This AD results from a report of a rod bracket of the MLG door detaching during flight. We are issuing this AD to detect and correct cracks in the rod bracket attachment bolts, which could result in the rod brackets detaching from the MLG door and blocking the proper functioning of the MLG. DATES: This AD becomes effective April 10, 2007. The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of April 10, 2007. 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 Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands, for service information identified in this AD. FOR FURTHER INFORMATION CONTACT: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; 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 Fokker Model F.28 Mark 0070 and 0100 airplanes. That NPRM was published in the **Federal Register** on December 28, 2006 (71 FR 78099). That NPRM proposed to require inspecting the carbon-fiber reinforced plastic main landing gear
(MLG)door to determine whether certain part numbers are installed. For airplanes having certain doors, that NPRM proposed to require inspecting the MLG outboard door for cracks, play, and loose sealant/bolts/nuts, and related investigative and corrective actions if necessary. That NPRM also proposed to require, for airplanes having certain doors, modifying the rod bracket attachment of the MLG outboard door. Comments We provided the public the opportunity to participate in the development of this AD. We received no comments on the NPRM or on the determination of the cost to the public. 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 The following table provides the estimated costs for U.S. operators to comply with this AD. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Inspections 2 $80 $0 $160 7 $1,120 Modification 6 80 1,066 1,546 7 10,822 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): **2007-05-07 Fokker Services B.V:** Amendment 39-14968. Docket No. FAA-2006-26709; Directorate Identifier 2006-NM-202-AD. Effective Date
(a)This AD becomes effective April 10, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to all Fokker Model F.28 Mark 0070 and 0100 airplanes, certificated in any category. Unsafe Condition
(d)This AD results from a report of a rod bracket of the main landing gear
(MLG)door detaching during flight. We are issuing this AD to detect and correct cracks in the rod bracket attachment bolts, which could result in the rod brackets detaching from the MLG door and blocking the proper functioning of the MLG. 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. Inspections
(f)Within 9 months after the effective date of this AD, inspect the carbon-fiber reinforced plastic
(CFRP)MLG doors to determine if any MLG door having a part number (P/N) D13312-401 through -410 inclusive is installed. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number of the CFRP MLG doors can be conclusively determined from that review. If the CFRP MLG doors have any part number other than P/N D13312-401 through -410 inclusive installed, no further action is required by this AD.
(g)If any CFRP MLG door having any P/N D13312-401 through -410 inclusive is found during the inspection required by paragraph
(f)of this AD: Within 9 months after the effective date of this AD, do a detailed inspection of the MLG outboard door for cracks, play, and loose sealant/bolts/nuts as specified in Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, and do all applicable related investigative and corrective actions, by doing all the applicable actions specified in Part 1 of the Accomplishment Instructions of the service bulletin, except as provided by paragraphs (i), (j), and
(k)of this AD. Do all applicable related investigative and corrective actions before further flight. Note 1: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.” Modification
(h)If any CFRP MLG door having any P/N D13312-401 through -410 inclusive is found during the inspection required by paragraph
(f)of this AD: Within 12 months after the effective date of this AD, modify the MLG outboard door operating rod bracket attachment and do all applicable related investigative and corrective actions by doing all the applicable actions specified in Part 2 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, except as provided by paragraph
(i)of this AD. Do all applicable related investigative and corrective actions before further flight. Exceptions to the Service Bulletin
(i)Where Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, specifies to contact the manufacturer for repair, before further flight, repair using a method approved by either the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency
(EASA)(or its delegated agent).
(j)If any loose sealant or any delamination is found during any inspection required by paragraph
(g)of this AD, before further flight, do the corrective action specified in paragraph C.(3) of Part 1 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005.
(k)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) (l)(1) The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office. Related Information
(m)Dutch airworthiness directive NL-2006-001, dated January 5, 2006, also addresses the subject of this AD. Material Incorporated by Reference
(n)You must use Fokker Service Bulletin SBF100-52-080, dated December 12, 2005, including Fokker Manual Change Notification—Maintenance Documentation MCNM-F100-103, dated November 15, 2005, 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 Fokker Services B.V., Technical Services Dept., P.O. Box 231, 2150 AE Nieuw-Vennep, the Netherlands, for a copy of this service information. You may review copies at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, S.W., Renton, Washington; 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.* Issued in Renton, Washington, on February 22, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-3659 Filed 3-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 Removal of an Obsolete Reference in Special Federal Aviation Regulation 50-2—Special Flight Rules in the Vicinity of Grand Canyon National Park, AZ AGENCY: Federal Aviation Administration, DOT. ACTION: Final rule; technical amendment. SUMMARY: This amendment removes an obsolete reference in Special Federal Aviation Regulation 50-2, Special Flight Rules in the Vicinity of Grand Canyon National Park, AZ. In section 9 of that SFAR, there is a “Note” that refers to an informational map of the Special Flight Rules Area (SFRA). This map is no longer available; however, there is an illustrational map of the SFRA in Part 93, Subpart U. Therefore, this technical amendment deletes the reference in SFAR 50-2, which is no longer needed and is confusing to the public. DATES: *Effective Dates:* Effective on March 6, 2007. FOR FURTHER INFORMATION CONTACT: Linda Williams, Office of Rulemaking (ARM-109), Federal Aviation Administration, 800 Independence Avenue, SW., Washington, DC 20591. Telephone: (202-267-9685); e-mail: *Linda.L.Williams@faa.gov.* SUPPLEMENTARY INFORMATION: In January 2001(66 FR 1002) the FAA found it necessary to delay the implementation of the routes in the east end of the Canyon. Because this was initially difficult to explain in the regulations, the FAA made available an informational map to assist the public in understanding the boundaries of the Grand Canyon's Special Flight Rules Area, or SFRA. The note says that the map is available on the Office of Rulemaking's website or by contacting that office. Because an illustrational map of the SFRA is contained in Part 93, Subpart U, the FAA removes the reference to the map in SFAR 50-2. The illustrational map remains in Part 93 to give interested parties a general picture of the Grand Canyon SFRA. List of Subjects in 14 CFR Part 91 Aircraft, Airmen, Airports, Aviation safety, Freight, Incorporation by reference, Reporting and recordkeeping requirements. The Amendment Accordingly, Title 14 of the Code of Federal Regulations
(CFR)part 91 is amended as follows: PART 91—GENERAL OPERATING AND FLIGHT RULES 1. The authority citation for part 91 continues to read as follows: Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 stat. 1180). 2. Amend Special Federal Aviation Regulation 50-2 by removing the “Note” at the end of section 9. Special Federal Aviation Regulation 50-2, Special Flight Rules in the Vicinity of Grand Canyon National Park, AZ *Section 9 Termination date.* Note: [Removed] Issued on February 26, 2007. Pamela Hamilton-Powell, Director, Office of Rulemaking, Federal Aviation Administration. [FR Doc. E7-3810 Filed 3-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 30540; Amdt. No. 3209] Standard Instrument Approach Procedures; Miscellaneous Amendments AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule. SUMMARY: This amendment amends Standard Instrument Approach Procedures (SIAPs) for operations at certain airports. These regulatory actions are needed because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, addition of new obstacles, or changes in air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports. DATES: This rule is effective March 6, 2007. The compliance date for each SIAP is specified in the amendatory provisions. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of March 6, 2007. ADDRESSES: Availability of matter incorporated by reference in the amendment is as follows: *For Examination* — 1. FAA Rules Docket, FAA Headquarters Building, 800 Independence Ave., SW., Washington, DC 20591; 2. The FAA Regional Office of the region in which affected airport is located; or 3. The National Flight Procedures Office, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or, 4. 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.* *For Purchase* —Individual SIAP copies may be obtained from: 1. FAA Public Inquiry Center (APA-200), FAA Headquarters Building, 800 Independence Avenue, SW., Washington, DC 20591; or 2. The FAA Regional Office of the region in which the affected airport is located. *By Subscription* —Copies of all SIAPs, mailed once every 2 weeks, are for sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. FOR FURTHER INFORMATION CONTACT: Donald P. Pate, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone:
(405)954-4164. SUPPLEMENTARY INFORMATION: This amendment to Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) amends Standard Instrument Approach Procedures (SIAPs). The complete regulatory description of each SIAP is contained in the appropriate FAA Form 8260, as modified by the National Flight Data Center (FDC)/Permanent Notice to Airmen (P-NOTAM), which is incorporated by reference in the amendment under 5 U.S.C. 552(a), 1 CFR part 51, and § 97.20 of the Code of Federal Regulations. Materials incorporated by reference are available for examination or purchase as stated above. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the **Federal Register** expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained in FAA form documents is unnecessary. The provisions of this amendment state the affected CFR sections, with the types and effective dates of the SIAPs. This amendment also identifies the airport, its location, the procedure identification and the amendment number. The Rule This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP as modified by FDC/P-NOTAMs. The SIAPs, as modified by FDC P-NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these chart changes to SIAPs, the TERPS criteria were applied to only these specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts. The circumstances which created the need for all these SIAP amendments requires making them effective in less than 30 days. Further, the SIAPs contained in this amendment are based on the criteria contained in TERPS. Because of the close and immediate relationship between these SIAPs and safety in air commerce, I find that notice and public procedure before adopting these SIAPs are impracticable and contrary to the public interest and, where applicable, that good cause exists for making these SIAPs effective in less than 30 days. Conclusion The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(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)does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. List of Subjects in 14 CFR Part 97 Air Traffic Control, Airports, Incorporation by reference, and Navigation (Air). Issued in Washington, DC on February 23, 2007. James J. Ballough, Director, Flight Standards Service. Adoption of the Amendment Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, part 97, 14 CFR part 97, is amended by amending Standard Instrument Approach Procedures, effective at 0901 UTC on the dates specified, as follows: PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority: 49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722. 2. Part 97 is amended to read as follows: §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35, and 97.37 [Amended] By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, LDA w/GS, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, MLS, TLS, GLS, WAAS PA, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; § 97.35 COPTER SIAPs, § 97.37 Takeoff Minima and Obstacle Departure Procedures. Identified as follows: * * *Effective Upon Publication FDC date State City Airport FDC No. Subject 02/08/07 CA FRESNO FRESNO-CHANDLER EXECUTIVE 7/2739 VOR/DME OR GPS-C, AMDT 5. 02/08/07 CA FRESNO FRESNO-CHANDLER EXECUTIVE 7/2742 GPS RWY 12R, ORIG-A. 02/08/07 CA FRESNO FRESNO-CHANDLER EXECUTIVE 7/2743 NDB OR GPS-B, AMDT 7A. 02/08/07 CA FRESNO FRESNO-CHANDLER EXECUTIVE 7/2744 GPS RWY 30L, ORIG-A. 02/15/07 WY CHEYENNE CHEYENNE REGIONAL/JERRY OLSON FIELD 7/3287 NDB RWY 27, AMDT 14. 02/15/07 WY CHEYENNE CHEYENNE REGIONAL/JERRY OLSON FIELD 7/3288 VOR OR TACAN A, AMDT 10. 02/15/07 AK ANCHORAGE TED STEVENS ANCHORAGE INTL 7/3289 ILS OR LOC/DME RWY 7R, ORIG. 02/15/07 AK FAIRBANKS FAIRBANKS INTL 7/3290 ILS RWY 1L, AMDT 7. 02/15/07 AK YAKUTAT YAKUTAT 7/3291 ILS OR LOC/DME RWY 11, ORIG. 02/15/07 AK FAIRBANKS FAIRBANKS INTL 7/3295 ILS RWY 19R, AMDT 21A. 02/20/07 VA WINCHESTER WINCHESTER REGIONAL 7/3558 VOR/DME OR GPS-A, AMDT 4. [FR Doc. E7-3681 Filed 3-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF COMMERCE Bureau of Industry and Security 15 CFR Parts 740, 742, and 774 [Docket No. 060117010-6010-01] RIN 0694-AD47 Revisions and Clarifications of License Exception Availability, License Requirements and Licensing Policy for Certain Crime Control Items AGENCY: Bureau of Industry and Security, Commerce. ACTION: Final rule. SUMMARY: This rule removes the geographic restrictions on use of a license exception used to ship items to U.S. government agencies, applies those geographic restrictions on use of license exceptions to crime control software and technology, reclassifies thumbcuffs on the Commerce Control List, and restates and emphasizes BIS's policy of distinguishing crime control items from specially designed implements of torture for export control purposes. DATES: This rule is effective March 6, 2007. ADDRESSES: Comments may be submitted by e-mail to *publiccomments@bis.doc.gov* ; by fax to
(202)482-3355; or on paper to Regulatory Policy Division, Office of Exporter Services, Bureau of Industry and Security, Room H2705, U.S. Department of Commerce, 14th Street and Pennsylvania Avenue, NW., Washington, DC 20230. Refer to Regulatory Identification Number
(RIN)0694-AD47 in all comments. Comments on the information collection should also be sent to David Rostker, Office of Management and Budget Desk Officer; by e-mail to *david_rostker@omb.eop.gov* ; or by fax to
(202)395-7285. Refer to Regulatory Identification Number
(RIN)0694-AD47 in all comments. FOR FURTHER INFORMATION CONTACT: Steven B. Clagett, Director, Nuclear and Missile Technology Controls Division, Office of Nonproliferation and Treaty Compliance
(202)482-4188. SUPPLEMENTARY INFORMATION: Background The Export Administration Regulations
(EAR)impose license requirements on certain items because of their potential use in crime control activities. These license requirements are maintained to support U.S. foreign policy to promote human rights. This rule revises the EAR to make certain shipments of crime control items consigned to and for the use of U.S. government agencies eligible for a license exception. It also clarifies and strengthens limits on use of License Exceptions for crime control items generally and clearly delineates between our export control policies regarding legitimate crime control items (a policy of reviewing license applications based on the human rights record in the destination country with some exceptions to the license requirements available in appropriate circumstances) and our policies regarding specially designed implements of torture (a general policy of denial of license applications and no license exceptions available). In addition to these changes, BIS is continuing to review the list of items restricted for crime control reasons to ensure that such controls keep pace with the technologies currently used by law enforcement. The specific changes made by this rule are described more fully below. Specific Changes Made by This Rule Clarification of the Application of the Restrictions in § 740.2(a)(4) to Software and Technology This rule replaces the word “commodities” in paragraph (a)(4) of § 740.2 with the word “items” to make clear that the restrictions of paragraph (a)(4) on the use of License Exceptions to export or reexport crime control items apply to software and technology, as well as commodities. Exemption of Exports and Reexports to and for the Official Use of the United States Government From the Restrictions of § 740.2(a)(4) This rule revises paragraph (a)(4) of § 740.2 to permit the use of License Exception GOV for the export of items subject to § 742.7 of the EAR if consigned to and for the official use of any U.S. government agency, worldwide. Although this change applies to any U.S. Government agency, BIS is making it at this time because of the need to supply U.S. armed forces in locations that, prior to publication of this rule, would be subject to the geographic restriction on use of License Exceptions for crime control items. This rule does not expand the scope of eligible recipients under License Exception GOV. In particular, this rule does not make shipments consigned to contractors employed by the U.S. government eligible for License Exception GOV. This rule also reformats paragraph (a)(4) while retaining its pre-existing exemptions for shipments to NATO countries, Australia, New Zealand and Japan as well as certain shipments of shotguns for personal use. Clarification of Policy Regarding Specially Designed Implements of Torture This rule creates a new paragraph (a)(10) in § 740.2. The new paragraph (a)(10) expressly prohibits the use of License Exceptions for all commodities subject to the license requirements of § 742.11 of the EAR (specially designed implements of torture and some related commodities). Clarification of the Applicability of § 742.11 to All Commodities in ECCN 0A983 This rule revises the heading and paragraph
(a)of § 742.11 of the EAR to make clear that the license requirements and licensing policy of that section apply to all commodities that are controlled by Export Control Classification Number
(ECCN)0A983. Such was BIS's interpretation prior to publication of this rule and BIS does not view this as a substantive change. However, prior to publication of this rule, ECCN 0A983 referred to “specially designed implements of torture and thumbscrews; and parts and accessories, n.e.s.,” whereas § 742.11 referred to “specially designed implements of torture controlled by ECCN 0A983.” This rule makes the wording of the headings of § 742.11 and ECCN 0A983 identical and revises the license requirements section of § 742.11 to refer to “any commodity controlled by ECCN 0A983.” Placement of Thumbcuffs in ECCN 0A983 To Reflect Licensing Policy This rule removes thumbcuffs from ECCN 0A982 and adds them to ECCN 0A983. BIS's licensing policy is generally to deny applications to export or reexport thumbcuffs. Controlling them under ECCN 0A983, for which § 742.11 of the EAR provides a general policy of denial, more accurately states BIS's licensing policy than does controlling them under ECCN 0A982, for which § 742.7 provides for favorable case-by-case consideration “unless there is civil disorder in the country or region or unless there is evidence that the government of the importing country may have violated internationally recognized human rights.” In addition, this change will make thumbcuffs ineligible for any License Exception under any circumstances. This rule also adds a “related controls” note to ECCN 0A982 to guide readers to ECCN 0A983 for controls on thumbcuffs. Although the Export Administration Act of 1979 (EAA), as amended, expired on August 20, 2001, Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp., p. 783 (2002)) as extended by the Notice of August 3, 2006, 71 FR 44551 (August 7, 2006), continues the EAR in effect under the International Emergency Economic Powers Act (IEEPA). Rulemaking Requirements 1. This rule has been determined to be not significant for purposes of Executive Order 12866. 2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget
(OMB)Control Number. This regulation involves collections previously approved by the OMB under control numbers 0694-0088, “Multi-Purpose Application,” which carries a burden hour estimate of 58 minutes to prepare and submit form BIS-748. Miscellaneous and recordkeeping activities account for 12 minutes per submission. BIS estimates that this rule will reduce the number of multi-purpose application forms that must be filed by about 100 per year. 3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132. 4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public participation, and a delay in effective date, are inapplicable because this regulation involves a military or foreign affairs function of the United States (see 5 U.S.C. 553(a)(1)). Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 *et. seq.* , are not applicable. List of Subjects 15 CFR Part 740 Administrative practice and procedure, Exports, Reporting and recordkeeping requirements. 15 CFR Part 742 Exports, Terrorism. 15 CFR Part 774 Exports, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, parts 740, 742 and 774 of the Export Administration Regulations (15 CFR 730-799) are amended as follows: PART 740—[AMENDED] 1. The authority citation for part 740 continues to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; Sec. 901-911, Pub. L. 106-387; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006). 2. In § 740.2, revise paragraph (a)(4) and add paragraph (a)(10) to read as follows: § 740.2 Restrictions on all License exceptions.
(a)* * *
(4)The item being exported or reexported is subject to the license requirements described in § 742.7 of the EAR and the export or reexport is not:
(i)Being made to Australia, Japan, New Zealand, or a NATO (North Atlantic Treaty Organization) member state (see NATO membership listing in § 772.1 of the EAR);
(ii)Authorized by § 740.11(b)(2)(ii) (official use by personnel and agencies of the U.S. government); or
(iii)Authorized by § 740.14(e) of the EAR (certain shotguns and shotgun shells for personal use).
(10)The commodity being exported or reexported is subject to the license requirements of § 742.11 of the EAR. PART 742—[AMENDED] 3. The authority citation for part 742 is revised to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 22 U.S.C. 3201 *et seq.* ; 42 U.S.C. 2139a; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; Sec. 1503, Pub. L. 108-11,117 Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination 2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006); Notice of October 27, 2006, 71 FR 64109 (October 31, 2006). 4. In § 742.11, revise the heading and paragraph
(a)to read as follows: § 742.11 Specially designed implements of torture, thumbscrews, and thumbcuffs; and parts and accessories, n.e.s.
(a)*License Requirements.* In support of U.S. foreign policy to promote the observance of human rights throughout the world, a license is required to export any commodity controlled by ECCN 0A983 to all destinations including Canada. PART 774—[AMENDED] 5. The authority citation for part 774 is revised to read as follows: Authority: 50 U.S.C. app. 2401 *et seq.* ; 50 U.S.C. 1701 *et seq.* ; 10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 *et seq.* , 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. 1354; 46 U.S.C. app. 466c; 50 U.S.C. app. 5; Sec. 901-911, Pub. L. 106-387; Sec. 221, Pub. L. 107-56; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 3, 2006, 71 FR 44551 (August 7, 2006). Supplement No. 1 to Part 774—[Amended] 6. In Supplement No. 1 to Part 774, Category 0, Export Control Classification Number 0A982, revise the heading and the “Related Controls” paragraph in the “List of Items Controlled” section to read as follows: **0A982 Restraint devices, including leg irons, shackles, and handcuffs; straight jackets, plastic handcuffs; and parts and accessories, n.e.s.** List of Items Controlled *Unit* * * * *Related Controls:* Thumbcuffs are controlled under ECCN 0A983. Supplement No. 1 to Part 774—[Amended] 7. In Supplement No. 1 to Part 774, Category 0, Export Control Classification Number 0A983, revise the heading to read as follows: **0A983 Specially designed implements of torture, thumbscrews, and thumbcuffs; and parts and accessories, n.e.s.** Dated: February 26, 2007. Christopher A. Padilla, Assistant Secretary for Export Administration. [FR Doc. E7-3895 Filed 3-5-07; 8:45 am] BILLING CODE 3510-33-P DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 310 and 358 [Docket No. 2005N-0448] RIN 0910-AF49 Dandruff, Seborrheic Dermatitis, and Psoriasis Drug Products Containing Coal Tar and Menthol for Over-the-Counter Human Use; Amendment to the Monograph AGENCY: Food and Drug Administration, HHS. ACTION: Final rule. SUMMARY: The Food and Drug Administration
(FDA)is issuing a final rule amending the final monograph
(FM)for over-the-counter
(OTC)dandruff, seborrheic dermatitis, and psoriasis drug products to include the combination of 1.8 percent coal tar solution and 1.5 percent menthol in a shampoo drug product to control dandruff. FDA did not receive any comments or data in response to its previously proposed rule to include this combination. This final rule is part of FDA's ongoing review of OTC drug products. DATES: *Effective Date* : This regulation is effective April 5, 2007. FOR FURTHER INFORMATION CONTACT: Michael L. Chasey, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 22, MS 5411, Silver Spring, MD 20993, 301-796-2090. SUPPLEMENTARY INFORMATION: I. Background In the **Federal Register** of December 4, 1979 (44 FR 69768), FDA published an advance notice of proposed rulemaking
(ANPR)to establish a monograph for OTC external analgesic drug products. The ANPR includes the recommendations of the Advisory Review Panel on OTC Topical Analgesic, Antirheumatic, Otic, Burn, and Sunburn Prevention and Treatment Drug Products (the Topical Analgesic Panel). The Topical Analgesic Panel concluded that menthol is safe and effective for use as an OTC external antipruritic (anti-itch) ingredient in concentrations of 1.0 percent or less and as an external counterirritant in concentrations exceeding 1.25 percent up to 16 percent. In the **Federal Register** of February 8, 1983 (48 FR 5852), FDA's proposed monograph, or tentative final monograph (TFM), for OTC external analgesic drug products included menthol as an antipruritic ingredient at concentrations from 0.1 percent to 1.0 percent. In the **Federal Register** of December 3, 1982 (47 FR 54646), FDA published an ANPR to establish a monograph for OTC dandruff, seborrheic dermatitis, and psoriasis drug products. The ANPR includes the recommendations of the Advisory Review Panel on OTC Miscellaneous External Drug Products (the Miscellaneous External Panel) concerning OTC drug products for the control of dandruff, seborrheic dermatitis, and psoriasis. The Miscellaneous External Panel recommended coal tar preparations as safe and effective for use as shampoos for controlling dandruff. The Miscellaneous External Panel also concluded that menthol is safe at concentrations of 0.04 to 1.5 percent, but that there were insufficient effectiveness data to include menthol in the monograph for controlling dandruff. The Miscellaneous External Panel further noted that menthol's activity to temporarily relieve itching should not be considered the same as control of dandruff. In the **Federal Register** of July 30, 1986 (51 FR 27346), FDA published its TFM for OTC dandruff, seborrheic dermatitis, and psoriasis drug products. No new information was submitted for menthol. Therefore, menthol was not included in the TFM. In the **Federal Register** of December 4, 1991 (56 FR 63554), FDA issued a FM for OTC dandruff, seborrheic dermatitis, and psoriasis drug products (21 CFR part 358, subpart H). The FM includes a discussion of a study comparing two shampoo formulations for relief of scalp itching associated with dandruff. One formulation contained the combination of 9 percent coal tar solution and 1.5 percent menthol and the other contained coal tar as a single ingredient. FDA determined that the study had a number of major design flaws. For example, the study did not include a group of subjects who only used menthol. Thus, the individual contributions of coal tar and menthol to the effectiveness of the combination product could not be determined from the study. In addition, the statistical analysis of the study results was not valid. FDA concluded that the study did not demonstrate that the combination product offers any advantage over the product containing only coal tar. Thus, FDA concluded that the coal tar-menthol combination is not generally recognized as safe and effective (GRASE) for the control of dandruff based on the study. This combination was placed in a list of active ingredients found not to be GRASE (21 CFR 310.545(d)(3)). II. Amendment of the Dandruff, Seborrheic Dermatitis, and Psoriasis FM In 1993, FDA received a petition containing new data in support of the combination of coal tar and menthol for the relief of scalp itching associated with dandruff. This new study addressed the concerns raised by FDA with the original study in the FM. The new study was a three-arm study, so the effectiveness of the individual ingredients could be properly compared to the combination product. In addition, the appropriate statistics were used to analyze the data. The study shows that both menthol alone as well as the combination of menthol and coal tar provide greater itch relief than coal tar alone at 5, 15, and 30 minutes after shampooing and that the differences at each timepoint were statistically significant. Although menthol alone provides itch relief, FDA has no data to support menthol as a single active ingredient for general relief and control of the non-pruritic symptoms of dandruff (e.g., scaling). Thus, in the **Federal Register** of December 9, 2005 (70 FR 73178), FDA published a proposed rule
(PR)to amend the FM for OTC dandruff, seborrheic dermatitis, and psoriasis drug products to include the combination of 1.8 percent coal tar solution and 1.5 percent menthol as GRASE in a shampoo drug product to control dandruff and relieve scalp itching associated with dandruff. FDA did not receive any comments or data in response to the proposed amendment to the final rule. Therefore, in this final rule, FDA is adding the combination of 1.8 percent coal tar and 1.5 percent menthol to § 358.720 (21 CFR 358.720) and removing the combination from § 310.545(d)(3) (21 CFR 310.545(d)(3)). As proposed, FDA is also adding new § 358.760 (21 CFR 358.760) to describe the labeling for this combination. It reads as follows: • Statement of identity (§ 358.760(a)(1)): “dandruff/anti-itch shampoo” or “antidandruff/anti-itch shampoo” • Indication (§ 358.760(b)(1) and (b)(2)): “[bullet] [select one of the following: ‘for relief of’ or ‘controls’] the symptoms of dandruff [bullet] [select one of the following: ‘additional’ or ‘extra’] relief of itching due to dandruff” • Warnings (§ 358.760(c)(1) and (c)(2)): those listed in § 358.750(c)(1) and (c)(2) • Directions (§ 358.760(d)(1)): “[bullet] wet hair [bullet] apply shampoo and work into a lather [bullet] rinse thoroughly [bullet] for best results, use at least twice a week or as directed by a doctor” Any OTC dandruff, seborrheic dermatitis, or psoriasis drug product containing this combination of ingredients that is initially introduced or initially delivered for introduction into interstate commerce after the effective date of this final rule and is not in compliance with the regulations is subject to regulatory action. FDA is adding the combination of 1.8 percent coal tar and 1.5 percent menthol and corresponding labeling and is also revising § 358.720(a) to correct an error. Section 358.720(a) references “sulfur identified in § 358.710(a)(6),” but the paragraph should reference “sulfur identified in § 358.710(a)(7).” This error was introduced when micronized selenium sulfide was added to the monograph and § 358.710(a) was renumbered (58 FR 17554 and 59 FR 4000). III. Analysis of Impacts FDA has examined the impacts of the final rule under Executive Order 12866, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 *et seq.* ). Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Under the Regulatory Flexibility Act, if a rule may have a significant economic impact on a substantial number of small entities, an agency must analyze regulatory options that would minimize any significant impact of the rule on small entities. Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.” FDA concludes that this final rule is consistent with the principles set out in Executive Order 12866 and in these two statutes. This final rule is not a significant regulatory action as defined by the Executive order and so is not subject to review under the Executive order. As discussed in this section, FDA has determined that this final rule will not have significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. The Unfunded Mandates Reform Act does not require FDA to prepare a statement of costs and benefits for this final rule because the rule is not expected to result in any 1-year expenditure that would meet or exceed $100 million adjusted for inflation. The current threshold after adjustment for inflation is about $118 million, using the most current
(2004)Implicit Price Deflator for the Gross Domestic Product. The purpose of this final rule is to allow an additional combination of active ingredients for OTC antidandruff drug products. Manufacturers can reformulate their OTC antidandruff drug products that contain coal tar to include the combination or can manufacture a new combination product containing coal tar and menthol. Reformulating or manufacturing a new combination product might result in additional product sales but, in either case, is optional. Thus, this final rule will not impose a significant economic burden on affected entities. Therefore, FDA certifies that this final rule will not have a significant economic impact on a substantial number of small entities. No further analysis is required under the Regulatory Flexibility Act (5 U.S.C. 605(b)). IV. Paperwork Reduction Act of 1995 FDA concludes that the labeling requirements proposed in this document are not subject to review by the Office of Management and Budget because they do not constitute a “collection of information” under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Rather, the labeling statements are a “public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public” (5 CFR 1320.3(c)(2)). V. Environmental Impact FDA has determined under 21 CFR 25.31(a) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required. VI. Federalism FDA has analyzed this final rule in accordance with the principles set forth in Executive Order 13132. FDA has determined that the rule will have a preemptive effect on State law. Section 4(a) of the Executive order requires agencies to “construe * * * a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 751 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 379r) is an express preemption provision. Section 751(a) of the act (21 U.S.C. 379r(a)) provides that: * * * no State or political subdivision of a State may establish or continue in effect any requirement—* * *
(1)that relates to the regulation of a drug that is not subject to the requirements of section 503(b)(1) or 503(f)(1)(A); and
(2)that is different from or in addition to, or that is otherwise not identical with, a requirement under this Act, the Poison Prevention Packaging Act of 1970 (15 U.S.C. 1471 *et seq.* ), or the Fair Packaging and Labeling Act (15 U.S.C. 1451 *et seq.* ). Currently, this provision operates to preempt States from imposing requirements related to the regulation of nonprescription drug products. (See Section 751(b) through
(e)of the act for the scope of the express preemption provision, the exemption procedures, and the exceptions to the provision.) This final rule amends the FM for OTC dandruff, seborrheic dermatitis, and psoriasis drug products to include the combination of 1.8 percent coal tar solution and 1.5 percent menthol in a shampoo drug product to control dandruff. Although this final rule has a preemptive effect, in that it precludes States from promulgating requirements related to labeling for OTC dandruff, seborrheic dermatitis, and psoriasis drug products that are different from or in addition to, or not otherwise identical with a requirement in the final rule, this preemptive effect is consistent with what Congress set forth in section 751 of the act. Section 751(a) of the act displaces both State legislative requirements and State common law duties. We also note that even where the express preemption provision is not applicable, implied pre-emption may arise (see *Geier* v. *American Honda Co* ., 529 US 861 (2000)). FDA believes that the preemptive effect of the final rule is consistent with Executive Order 13132. Section 4(e) of the Executive order provides that “when an agency proposes to act through adjudication or rulemaking to preempt State law, the agency shall provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.” On January 18, 2007, FDA's Division of Federal and State Relations provided notice via fax and email transmission to elected officials of State governments and their representatives of national organizations. The notice provided the States with further opportunity for input on the rule. It advised the States of the publication of the December 9, 2005, proposed rule and encouraged State and local governments to review the notice and to provide any comments to the docket (2005N-0448) by a date 30 days from the date of the letter (i.e., by February 20, 2007), or to contact certain named individuals. FDA received no comments in response to this notice. The notice has been filed in the above numbered docket. List of Subjects 21 CFR Part 310 Administrative practice and procedure, Drugs, Labeling, Medical devices, Reporting and recordkeeping requirements. 21 CFR Part 358 Labeling, Over-the-counter drugs. Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 310 and 358 are amended as follows: PART 310—NEW DRUGS 1. The authority citation for 21 CFR part 310 continues to read as follows: Authority: 21 U.S.C. 321, 331, 351, 352, 353, 355, 360b-360f, 360j, 361(a), 371, 374, 375, 379e; 42 U.S.C. 216, 241, 242(a), 262, 263b-263n. 2. Section 310.545 is amended by revising paragraph (d)(3) to read as follows: § 310.545 Drug products containing certain active ingredients offered over-the-counter
(OTC)for certain uses.
(d)* * *
(3)December 4, 1992, for products subject to paragraph (a)(7) of this section that contain menthol as an antipruritic in combination with the antidandruff ingredient coal tar identified in § 358.710(a)(1) of this chapter. This section does not apply to products allowed by § 358.720(b) of this chapter after April 5, 2007. PART 358—MISCELLANEOUS EXTERNAL DRUG PRODUCTS FOR OVER-THE-COUNTER HUMAN USE 3. The authority citation for 21 CFR part 358 continues to read as follows: Authority: 21 U.S.C. 321, 351, 352, 353, 355, 360, 371. 4. Section 358.720 is revised to read as follows: § 358.720 Permitted combinations of active ingredients.
(a)*Combination of active ingredients for the control of dandruff* . Salicylic acid identified in § 358.710(a)(4) may be combined with sulfur identified in § 358.710(a)(7) provided each ingredient is present within the established concentration and the product is labeled according to § 358.750.
(b)*Combination of control of dandruff and external analgesic active ingredients* . Coal tar identified in § 358.710(a)(1) may be used at a concentration of 1.8 percent coal tar solution, on a weight to volume basis, in combination with menthol, 1.5 percent, in a shampoo formulation provided the product is labeled according to § 358.760. 5. New § 358.760 is added to read as follows: § 358.760 Labeling of permitted combinations of active ingredients for the control of dandruff. The statement of identity, indications, warnings, and directions for use, respectively, applicable to each ingredient in the product may be combined to eliminate duplicative words or phrases so that the resulting information is clear and understandable.
(a)*Statement of identity* . For a combination drug product that has an established name, the labeling of the product states the established name of the combination drug product, followed by the statement of identity for each ingredient in the combination, as established in the statement of identity sections of the applicable OTC drug monographs.
(1)*Combinations of control of dandruff and external analgesic active ingredients in § 358.720(b)* . The label states “dandruff/anti-itch shampoo” or “antidandruff/anti-itch shampoo”.
(2)[Reserved]
(b)*Indications* . The labeling of the product states, under the heading “Uses,” one or more of the phrases listed in this paragraph (b), as appropriate. Other truthful and nonmisleading statements, describing only the uses that have been established and listed in this paragraph (b), may also be used, as provided in § 330.1(c)(2) of this chapter, subject to the provisions of section 502 of the Federal Food, Drug, and Cosmetic Act (the act) relating to misbranding and the prohibition in section 301(d) of the act against the introduction or delivery for introduction into interstate commerce of unapproved new drugs in violation of section 505(a) of the act.
(1)*Combinations of control of dandruff and external analgesic active ingredients in § 358.720(b)* . The labeling states “[bullet] [select one of the following: ‘for relief of’ or ‘controls’] the symptoms of dandruff [bullet] [select one of the following: ‘additional’ or ‘extra’] relief of itching due to dandruff”.
(2)The following terms or phrases may be used in place of or in addition to the words “for the relief of” or “controls” in the indications in paragraph (b)(1) of this section: “fights,” “reduces,” “helps eliminate,” “helps stop,” “controls recurrence of,” “fights recurrence of,” “helps prevent recurrence of,” “reduces recurrence of,” “helps eliminate recurrence of,” “helps stop recurrence of.”
(3)The following terms may be used in place of the words “the symptoms of” in the indication in paragraph (b)(1) of this section: “scalp” (select one or more of the following: “itching,” “irritation,” “redness,” “flaking,” “scaling”) “associated with”.
(c)*Warnings* . The labeling of the product states, under the heading “Warnings,” the warning(s) listed in § 358.750(c)(1) and (c)(2).
(d)*Directions* . The labeling of the product states, under the heading “Directions,” directions that conform to the directions established for each ingredient in the directions sections of the applicable OTC drug monographs, unless otherwise stated in this paragraph (d). When the time intervals or age limitations for administration of the individual ingredients differ, the directions for the combination product may not contain any dosage that exceeds those established for any individual ingredient in the applicable OTC drug monograph(s), and may not provide for use by any age group lower than the highest minimum age limit established for any individual ingredient.
(1)*Combinations of control of dandruff and external analgesic active ingredients in § 358.720(b)* . The labeling states “[bullet] wet hair [bullet] apply shampoo and work into a lather [bullet] rinse thoroughly [bullet] for best results, use at least twice a week or as directed by a doctor”.
(2)[Reserved] Dated: February 26, 2007. Jeffrey Shuren, Assistant Commissioner for Policy. [FR Doc. E7-3808 Filed 3-5-07; 8:45 am] BILLING CODE 4160-01-S DEPARTMENT OF STATE 22 CFR Part 99 [Public Notice 5705] RIN 1400-AC-20 Intercountry Adoption—Reporting on Non-Convention and Convention Adoptions of Emigrating Children AGENCY: Department of State. ACTION: Final rule. SUMMARY: The Department of State (the Department), with the joint review and approval of the Department of Homeland Security (DHS), is issuing a new rule to implement the requirement in the Intercountry Adoption Act of 2000 (the IAA) to establish a Case Registry for, *inter alia,* emigrating children. This final rule imposes reporting requirements on adoption service providers, including governmental authorities who provide adoption services, in cases involving adoptions of children who will emigrate from the United States. These reporting obligations apply to all intercountry adoptions, regardless of whether they are covered under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (the Convention). This final rule, although issued with the joint review and approval of DHS pursuant to section 303(d) of the IAA, only adds a new section to the Department's Convention regulations; no amendments or additions are made to DHS regulations. DATES: This rule is effective April 5, 2007. Information about the date the Convention will enter into force with respect to the United States is provided in 22 CFR 96.17. FOR FURTHER INFORMATION CONTACT: Anna Mary Coburn at 202-736-9081. Hearing-or speech-impaired persons may use the Telecommunications Devices for the Deaf
(TDD)by contacting the Federal Information Relay Service at 1-800-877-8339. SUPPLEMENTARY INFORMATION: I. Introduction The Convention is a multilateral treaty that provides a framework for the adoption of children habitually resident in one country that is a party to the Convention by persons habitually resident in another country that is also a party to the Convention. The Convention establishes procedures to be followed in these intercountry adoption cases and imposes safeguards to protect the best interests of children. When the Convention enters into force with respect to the United States, it will apply to the United States as both a country of origin (outgoing cases, i.e., where children are emigrating from the United States to a foreign country) and a receiving country (incoming cases, i.e., where children are immigrating to the United States from a foreign country). The implementing legislation for the Convention is the IAA. The IAA requires the Department and DHS to establish a Case Registry to track all intercountry adoption cases: Convention and non-Convention; emigrating and immigrating cases. The Department is, with the joint review and approval of DHS, promulgating this final rule to require adoption service providers that provide adoption services in intercountry adoption cases involving a child emigrating from the United States (including governmental authorities who provide such adoption services) to report certain information to the Department for incorporation into the Case Registry. II. The Final Rule The Department issued a proposed rule for public comment (See Proposed Rule on Intercountry Adoption—Reporting on Non-Convention and Convention Adoptions of Emigrating Children, 71 FR 54001-54005, September 13, 2006). No public comments were received. The Department is now issuing the final rule as it was proposed. No changes have been made to the text of the rule, except that the Department has made certain technical clarifications, including changing the § 99.2 heading and § 99.2(d)(1) to correct any misimpression that the rule applies only to U.S. national children and changing § 99.2(a) to clarify that the reporting requirements do not take effect until the Convention has entered into force for the United States. III. Regulatory Review A. Administrative Procedure Act In accordance with provisions of the Administrative Procedure Act governing rules promulgated by Federal agencies that affect the public (5 U.S.C. 533), the Department published this rule for public comment. B. Regulatory Flexibility Act/Executive Order 13272: Small Business In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601-612 and Executive Order 13272, section 3(b), the Department of State has evaluated the effects of this action on small entities, and has determined, and hereby certifies, pursuant to 5 U.S.C. 605(b), that it would not have a significant economic impact on a substantial number of small entities. Overall, the number of outgoing intercountry adoption cases is expected to be very small in comparison with the number of incoming cases. Consequently, very few ASPs that are small entities will also be involved in outgoing cases. Moreover, the rule requires only extremely limited reporting requirements for outgoing cases. Thus, the Department does not believe the economic impact on small entities will be significant. The Department received no public comments on the rule's impact on small entities. C. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by 5 U.S.C. 804 for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Pub. L. 104-121. The rule would not result in an annual effect on the economy of $100 million or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, or innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets. D. The Unfunded Mandates Reform Act of 1995 Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Pub. L. 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement, including cost-benefit and other analyses, before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year. Moreover, because this rule will not significantly or uniquely affect small governments, section 203 of the UFMA, 2 U.S.C. 1533, does not require preparation of a small government agency plan in connection with it. E. Executive Order 13132: Federalism A rule has federalism implications under Executive Order 13132 if it has substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. This regulation will not have such effects, and therefore does not have sufficient federalism implications to require consultations or to warrant the preparation of a federalism summary impact statement under section 6 of Executive Order 13132. F. Executive Order 12866: Regulatory Review The Department of State does not consider this rule to be a “significant regulatory action” within the scope of section 3(f)(1) of Executive Order 12866. Nonetheless, the Department has reviewed the rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order. G. Executive Order 12988: Civil Justice Reform The Department has reviewed this rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. The Department has made every reasonable effort to ensure compliance with the requirements in Executive Order 12988. H. The Paperwork Reduction Act
(PRA)of 1995 Under the PRA, 42 U.S.C. 3501 *et seq.* , agencies are generally required to submit to the Office of Management and Budget
(OMB)for review and approval information collection requirements imposed on “persons” as defined in the PRA. Section 503(c) of the IAA exempts from the PRA information collection “for purposes of sections 104, 202(b)(4), and 303(d)” of the IAA “or for use as a Convention record as defined” in the IAA. All information collections that relate to outgoing non-Convention cases will be collections made for the purposes of section 303(d) of the IAA, and thereby are exempt. All information collections that relate to outgoing Convention cases will be Convention records as defined in and subject to the preservation requirements of 22 CFR part 98, which implements section 401(a) of the IAA. Additionally, the majority of information collection imposed on persons pursuant to this rule, with respect to both Convention and non-Convention cases, will be for the purposes of obtaining information for congressional reports required under section 104 of the IAA. Accordingly, the Department has concluded that the PRA does not apply to information collected from the public under this rule. List of Subjects in 22 CFR Part 99 Adoption and foster care; International agreements; Reporting and recordkeeping requirements. Accordingly, the Department adds new part 99 to title 22 of the CFR, chapter I, subchapter J, to read as follows: PART 99—REPORTING ON CONVENTION AND NON-CONVENTION ADOPTIONS OF EMIGRATING CHILDREN Sec. 99.1 Definitions. 99.2 Reporting requirements for adoption cases involving children emigrating from the United States. 99.3 [Reserved]. Authority: The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (done at The Hague, May 29, 1993), S. Treaty Doc. 105-51 (1998); 1870 U.N.T.S. 167 (Reg. No. 31922 (1993)); The Intercountry Adoption Act of 2000, 42 U.S.C. 14901-14954. § 99.1 Definitions. As used in this part, the term:
(a)*Convention* means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993.
(b)Such other terms as are defined in 22 CFR 96.2 shall have the meaning given to them therein. § 99.2 Reporting requirements for adoption cases involving children emigrating from the United States.
(a)Once the Convention has entered into force for the United States, an agency (including an accredited agency and temporarily accredited agency), person (including an approved person), public domestic authority, or other adoption service provider providing adoption services in a case involving the emigration of a child from the United States must report information to the Secretary in accordance with this section if it is identified as the reporting provider in accordance with paragraph
(b)of this section.
(b)In a Convention case in which an accredited agency, temporarily accredited agency, or approved person is providing adoption services, the primary provider is the reporting provider. In any other Convention case, or in a non-Convention case, the reporting provider is the agency, person, public domestic authority, or other adoption service provider that is providing adoption services in the case, if it is the only provider of adoption services. If there is more than one provider of adoption services in a non-Convention case, the reporting provider is the one that has child placement responsibility, as evidenced by the following factors:
(1)Entering into placement contracts with prospective adoptive parent(s) to provide child referral and placement;
(2)Accepting custody from a birthparent or other legal guardian for the purpose of placement for adoption;
(3)Assuming responsibility for liaison with a foreign government or its designees with regard to arranging an adoption; or
(4)Receiving information from, or sending information to a foreign country about a child that is under consideration for adoption.
(c)A reporting provider, as identified in paragraph
(b)of this section, must report the following identifying information to the Secretary for each outgoing case within 30 days of learning that the case involves emigration of a child from the United States to a foreign country:
(1)Name, date of birth of child, and place of birth of child;
(2)The U.S. State from which the child is emigrating;
(3)The country to which the child is immigrating;
(4)The U.S. State where the final adoption is taking place, or the U.S. State where legal custody for the purpose of adoption is being granted and the country where the final adoption is taking place; and
(5)Its name, address, phone number, and other contact information.
(d)A reporting provider, as identified in paragraph
(b)of this section, must report any changes to information previously provided as well as the following milestone information to the Secretary for each outgoing case within 30 days of occurrence:
(1)Date case determined to involve emigration from the United States (generally the time the child is matched with adoptive parents);
(2)Date of U.S. final adoption or date on which custody for the purpose of adoption was granted in United States;
(3)Date of foreign final adoption if custody for purpose of adoption was granted in the United States, to the extent practicable; and
(4)Any additional information when requested by the Secretary in a particular case. § 99.3 [Reserved]. Dated: December 18, 2006. Maura Harty, Assistant Secretary, Bureau of Consular Affairs, Department of State. Dated: February 2, 2007. Michael Chertoff, Secretary of Homeland Security, Department of Homeland Security. [FR Doc. E7-3684 Filed 3-5-07; 8:45 am] BILLING CODE 4710-06-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD11-07-005] RIN 1625-AA09 Drawbridge Operation Regulations; Sacramento River, at Isleton, CA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Isleton Drawbridge across the Sacramento River, mile 18.7, at Isleton, CA. This deviation allows for a 12-hour notice for openings. The deviation is necessary for the bridge owner, the California Department of Transportation (Caltrans), to coordinate vessel traffic with their scheduled critical maintenance and operating upgrades. DATES: This deviation is effective from 12:01 a.m. on April 21, 2007 through 11:59 p.m. on May 25, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at Commander (dpw), Eleventh Coast Guard District, Building 50-2, Coast Guard Island, Alameda, CA 94501-5100, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District, telephone
(510)437-3516. SUPPLEMENTARY INFORMATION: Caltrans requested a temporary change to the operation of the Isleton Drawbridge, mile 18.7, Sacramento River, at Isleton, CA. The Isleton Drawbridge navigation span provides a vertical clearance of 13 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal between 6 a.m. and 10 p.m. from May 1 through October 31, and between 9 a.m. and 5 p.m. from November 1 through April 30. At all other times, it opens on signal if at least four hours notice is given as required by 33 CFR 117.189. Navigation on the waterway is recreational, search and rescue and commercial traffic hauling materials for levee repair. Caltrans requested a change to the 12-hour notice for openings from 12:01 a.m. on April 21, 2007 through 11:59 p.m. on May 25, 2007. During this time the control house will be replaced, motors refurbished, and operating machinery will be upgraded, resulting in manual control of the drawspan. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary rule were raised. Vessels that can transit the bridge while in the closed-to-navigation position may continue to do so at any time. In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: February 23, 2007. J.A. Breckenridge, Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard District. [FR Doc. E7-3802 Filed 3-5-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [CGD11-07-004] RIN 1625-AA09 Drawbridge Operation Regulations; Sacramento River, at Paintersville, CA AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, Eleventh Coast Guard District, has issued a temporary deviation from the regulation governing the operation of the Paintersville Drawbridge across the Sacramento River, mile 33.4, at Paintersville, CA. This deviation allows for a 12-hour notice for openings. The deviation is necessary for the bridge owner, the California Department of Transportation (Caltrans), to coordinate vessel traffic with their scheduled critical maintenance and operating upgrades. DATES: This deviation is effective from 12:01 a.m. on March 9, 2007 through 11:59 p.m. on April 11, 2007. ADDRESSES: Materials referred to in this document are available for inspection or copying at Commander (dpw), Eleventh Coast Guard District, Building 50-2, Coast Guard Island, Alameda, CA 94501-5100, between 8 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District, telephone
(510)437-3516. SUPPLEMENTARY INFORMATION: Caltrans requested a temporary change to the operation of the Paintersville Drawbridge, mile 33.4, Sacramento River, at Paintersville, CA. The Paintersville Drawbridge navigation span provides a vertical clearance of 24 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal between 6 a.m. and 10 p.m. from May 1 through October 31, and between 9 a.m. and 5 p.m. from November 1 through April 30. At all other times, it opens on signal if at least four hours notice is given as required by 33 CFR 117.189. Navigation on the waterway is recreational, search and rescue and commercial traffic hauling materials for levee repair. Caltrans requested a change to the 12-hour notice for openings from 12:01 a.m. on March 9, 2007 through 11:59 p.m. on April 11, 2007. During this time the control house will be replaced, motors refurbished, and operating machinery will be upgraded. This temporary deviation has been coordinated with waterway users. No objections to the proposed temporary rule were raised. Vessels that can transit the bridge while in the closed-to-navigation position may continue to do so at any time. In accordance with 33 CFR 117.35(c), this work will be performed with all due speed in order to return the bridge to normal operation as soon as possible. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: February 23, 2007. J.A. Breckenridge, Rear Admiral, U.S. Coast Guard, Commander, Eleventh Coast Guard District. [FR Doc. E7-3809 Filed 3-5-07; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Part 393 [Docket No. FMCSA-2005-21323] RIN-2126-AA91 Parts and Accessories Necessary for Safe Operation: Surge Brake Requirements AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. SUMMARY: FMCSA amends the Federal Motor Carrier Safety Regulations to allow the use of automatic hydraulic inertia brake systems (surge brakes) on trailers when the ratios of gross vehicle weight ratings
(GVWR)for the towing-vehicle and trailer are within certain limits. A surge brake is a self-contained permanently closed hydraulic brake system activated in response to the braking action of the towing vehicle. The amount of braking force developed by the trailer surge-brake system is proportional to the ratio of the towing vehicle to trailer weight and deceleration rate of the towing vehicle. This action is in response to a petition for rulemaking from the Surge Brake Coalition (Coalition). DATES: *Effective Date:* April 5, 2007. ADDRESSES: *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time, or go to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: Mr. Luke W. Loy, Vehicle and Roadside Operations Division, Federal Motor Carrier Safety Administration, 202-366-0676, 400 Seventh Street, SW., Washington, DC 20590-0001. Office hours are from 9 a.m. to 5 p.m., e.s.t., Monday through Friday, except Federal holidays. SUPPLEMENTARY INFORMATION: This Final Rule is organized as follows: I. Legal Basis for the Rulemaking II. Background A. Current Regulatory Environment B. Regulatory History C. Petition D. Analysis of Petition E. Notice of Proposed Rulemaking
(NPRM)III. Discussion of Comments to NPRM A. Comments Supporting B. Comments Opposing IV. Summary V. Regulatory Analyses and Notices VI. Regulatory Language for the Final Rule I. Legal Basis for the Rulemaking This rule is based on the authority of the Motor Carrier Act of 1935 and the Motor Carrier Safety Act of 1984. The Motor Carrier Act of 1935 provides that “[t]he Secretary of Transportation may prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and
(2)qualifications and maximum hours of service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation” [49 U.S.C. 31502(b)]. The amendments to 49 CFR part 393 adopted today deal directly with the “safety of * * * equipment of[ ] a motor carrier” [sec. 31502(b)(1)] and the “standards of equipment of[ ] a motor private carrier * * *” [sec. 31502(b)(2)]. The adoption and enforcement of rules relating to brakes on commercial vehicles was clearly authorized by the Motor Carrier Act of 1935. This rule rests squarely on that authority. The Motor Carrier Safety Act of 1984 provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary of Transportation to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles.” Although this authority is very broad, the Act also includes specific requirements: “At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely;
(2)the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely;
(3)the physical condition of operators of commercial motor vehicles is adequate to enable them to operate the vehicles safely; and
(4)the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators” [49 U.S.C. 31136(a)]. This rule focuses primarily on the mandate of sec. 31136(a)(1) that commercial motor vehicles
(CMVs)be “equipped * * * and operated” safely. FMCSA has determined that surge brakes can safely be allowed on trailers operating in interstate commerce under the conditions set forth in this final rule. Sections 31136(a)(2) and 31136(a)(4) deal with the safety and health effects, respectively, of the operational responsibilities imposed on CMV drivers. The Agency has concluded that operating a combination vehicle that includes a surge-braked trailer meeting the requirements of this rule would neither impair a driver's ability to operate safely nor adversely affect the driver's health. Finally, sec. 31136(a)(3) deals almost exclusively with a driver's “physical condition,” i.e., medical status. That subject is not specifically addressed in this rule, and the surge-brake provisions adopted today would not affect a driver's physical condition. Before prescribing any regulations, FMCSA must also consider the “costs and benefits” of its proposal (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are discussed in the regulatory analysis for this rule filed separately in the docket. II. Background A. Regulatory History The National Highway Traffic Safety Administration (NHTSA) has a legislative mandate under Title 49 of the United States Code, Chapter 301, Motor Vehicle Safety, to issue Federal Motor Vehicle Safety Standards (FMVSS) and Regulations to which manufacturers of motor vehicles must conform; manufacturers must certify that their vehicles and equipment comply with the FMVSSs. These Federal safety standards are regulations written in terms of minimum safety performance requirements for motor vehicles or equipment. These requirements are specified in such a manner that the public is protected against unreasonable risk of crashes occurring as a result of the design, construction, or performance of motor vehicles and is also protected against unreasonable risk of death or injury in the event crashes do occur. FMVSS No. 121, “Air brake systems,” specifies performance and equipment requirements for trucks, buses, and trailers equipped with air brake systems, including air-over-hydraulic brake systems, to ensure safe braking performance under normal and emergency conditions. 1 However, there are no requirements in FMVSS No. 121, or any of the other FMVSSs, relating to the performance of surge brakes, electric brakes, or parking brakes on trailers. 1 Certain trailers and trucks are exempted depending on width, axle GVWR, maximum speed, and unloaded vehicle weight. Whereas the FMVSSs—other than FMVSS No. 121—do not specify performance requirements for trailer braking, Section 393.40 of the FMCSRs requires each CMV to have brakes adequate to stop and hold the vehicle or combination of motor vehicles. Trailer braking performance is specified in Section 393.52(d) of the FMCSRs, and generally requires property-carrying vehicles and combinations of property-carrying vehicles used in interstate commerce be able to stop within 40 feet from 20 miles-per-hour
(mph)on a hard surface that is substantially level, dry, smooth, and free of loose material. However, any semitrailer, trailer, or pole trailer with a gross weight of 3,000 pounds or less is not required to be equipped with brakes if the axle weight of the towed vehicle does not exceed 40 percent of the sum of the axle weights of the towing vehicle. Thus, a combination operating in interstate commerce would not need brakes on a 3,000-pound trailer when pulled by a 7,500-pound or heavier towing vehicle (49 CFR 393.42(b) (3)-(4)). In these cases, the vehicle combination must be able to stop within 35 feet from 20 mph, and the service brakes of the towing vehicle alone are sufficient to stop the combination. In 1952, the two requirements regarding brakes that are the subject of this rulemaking were included in the FMCSRs. Section 393.48 of the FMCSRs requires that all brakes with which a motor vehicle is equipped be capable of operating at all times. In addition, § 393.49 requires that a single application valve must, when applied, operate all the service brakes on the motor vehicle or combination of motor vehicles. While electric brakes on trailers used in interstate commerce are considered to meet the requirements of §§ 393.48 and 393.49, and have been in use for many years, regulatory guidance issued by the Agency in 1975 (40 FR 50671, 50688, Oct. 31, 1975) 2 indicated the use of surge brakes on trailers operated in interstate commerce was inconsistent with the requirements of §§ 393.48 and 393.49. The 1975 guidance reads as follows: 2 The Federal Highway Administration's
(FHWA)Bureau of Motor Carrier Safety (Bureau) (FMCSA's predecessor agency) published these interpretations. **Section 393.48 Brakes to be Operative** . The Bureau's position regarding surge brakes has been that they did not comply with the requirements of Section 393.48 of the Motor Carrier Safety Regulations. The cited section requires, in part, that all brakes with which motor vehicles are required to be equipped must be operative at all times. A surge brake which is only operative under certain preset conditions would not be in compliance with this requirement. In other words, surge brakes, in general, are only operative when the vehicles are moving in the forward direction. **Section 393.49 Single Valve to Operate All Brakes** . A surge brake would comply with the requirements of Section 393.49 as it specifically states that the brake system shall be so arranged that one application valve shall, when applied, operate all of the service brakes on the motor vehicle or combination of motor vehicles. When the service brakes on a power unit towing a vehicle with surge brakes are applied, the brakes on both vehicles would be applied. The power unit brakes would be applied by its application valve and the surge brakes on the towed vehicle by the overrunning effect. Subsequent regulatory guidance published by FHWA on November 17, 1993, (58 FR 60734, 60755) indicated that surge brakes did not comply with either § 393.48 or § 393.49. It reads as follows: **Section 393.48 Brakes to be Operative** . Question 1: Do surge brakes comply with § 393.48? **Guidance** : No. Section 393.48 requires that brakes be operable at all times. Generally, surge brakes are only operative when the vehicle is moving in the forward direction and as such do not comply with § 393.48. **Section 393.49 Single Valve to Operate All Brakes** . Question 1: Does a combination of vehicles using a surge brake to activate the towed vehicle's brakes comply with § 393.49? **Guidance** : No. The surge brake cannot keep the trailer brakes in an applied position. Therefore, the brakes on the combination of vehicles are not under the control of a single valve as required by § 393.49. * * * The 1993 guidance was also republished in FHWA's April 4, 1997, publication, “Regulatory Guidance for the Federal Motor Carrier Safety Regulations.” (62 FR 16370, 16415-16416) Various parties over the years expressed concern about FMCSA's position on trailer surge brakes. FMCSA advised interested parties to follow the procedures found at § 389.31 and submit a petition requesting such a rule change accompanied by sufficient information supporting the safety performance of their request. The Surge Brake Coalition (Coalition) submitted such a petition requesting a rulemaking to change the regulation. FMCSA notes that in contrast to the United States, Canada allows surge brake systems on trailers used in inter-Provincial commerce. Today's rule allowing surge brakes will enhance the uniformity of Canadian and U.S. safety regulations. B. The Surge Brake Coalition Petition The Coalition submitted a petition on February 28, 2002, asking FMCSA to undertake rulemaking to allow surge brakes by amending §§ 393.48 and 393.49. Members of the Coalition include trailer manufacturers, parts suppliers, commercial users of surge-braked trailers, trailer rental companies, and trade associations representing segments of the trailer business. A copy of the Coalition's petition is included in the docket referenced at the beginning of this document. The Coalition said: Technological advances in braking systems render the original purpose of 393.49 and its “single-valve” criterion overly broad and excessively restrictive. FHWA [previously] developed this regulation as a materials-oriented specification to foreclose the shortcomings of and risks associated with the predominant braking system of the day, wheel brakes and their use in conjunction with large tractors or power units. The Coalition asserted that Congress had declared that DOT's motor vehicle safety standards must be minimum performance standards, based upon performance of the vehicle (49 U.S.C. 30102(a)(8) and (9)). The standards must “meet the need for motor vehicle safety” and must be “stated in objective terms” (49 U.S.C. 30111(a)). However, FMCSA's interpretation of how §§ 393.48(a) and 393.49 apply to surge brakes is a prescriptive component specification that does not address how the trailer braking system performs either as a unit or as part of a combination vehicle. The Coalition requested that section 393.48 be amended by: 1. Revising paragraph
(a)to read: “General rule. Except as provided in paragraphs (b), (c), and
(d)of this section, all brakes with which a motor vehicle is equipped must at all times be capable of operating.” 2. Adding a new paragraph
(d)to read: “(d) Surge brakes. Paragraph
(a)of this section does not apply to: Any trailer with a gross vehicle weight rating
(GVWR)of 12,000 pounds or less, equipped with inertial surge brakes when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; or Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, equipped with inertial surge brakes when the GVWR does not exceed 1.25 times the GVWR of the towing vehicle.” The Coalition also requested the following exception be added to § 393.49: “This requirement shall not apply to trailers equipped with surge brakes that satisfy the conditions provided in § 393.48(d).” The Coalition argued that surge brakes provide a safe, practical braking system for CMV combinations, especially for scenarios in which the trailer is likely to be towed by a variety of vehicles. For example, in the rental market, trailers are commonly rented separately from towing vehicles, and towing vehicles frequently are not wired for electric brake controls. The Coalition indicated that rental companies believe it is “prohibitively expensive and impractical” to install or adapt an electric brake control system on each towing vehicle every time they rent a trailer or piece of mobile equipment outfitted with electric brakes. The Coalition stated that surge brakes are a popular alternative to electric brakes because they activate automatically when the towing vehicle brakes are applied, adapt to the weight of the trailer load, have fewer components, and require less maintenance than trailers with electric brakes. These features make surge brakes ideal for flatbed and van-type trailers with a GVWR of 20,000 pounds or less, and boat trailers serving the marine industry. The Coalition also noted that manufacturers install approximately 250,000 surge brake systems annually on such trailers. This includes both in the personal market and the commercial intrastate market in 7 States, as of their 2002 petition, where the Coalition said surge brakes are allowed in intrastate commercial applications. (The 2004 article cited in the Regulatory Evaluation from Trailer Body Builders indicates the number of such States had risen to 9. 3 ) The Coalition estimated that over 25 percent of the rental trailer fleet is equipped with surge brakes. There are no restrictions in any State on surge-braked trailers for personal use. 3 A Break on Brakes, in Trailer Body Builders, August 1, 2004, Rick Weber ( *http://trailer-bodybuilders.com/mag/trucks_break_brakes/* ). The Coalition's Engineering Tests In order to demonstrate systematically that surge brake equipped trailers meet the safety performance requirements of the FMCSRs, as well as relevant testing procedures adapted from NHTSA's FMVSS No. 121 that apply to air-braked trailers, the Coalition retained the services of Mr. Richard H. Klein, P.E., who is described as a nationally known expert in trailer safety and testing. Mr. Klein was tasked to develop a test plan, select an independent testing laboratory, and to oversee the testing of a variety of tow vehicles and trailers equipped with surge brakes. Mr. Klein finalized the test protocol, procedures and methods. The tests covered combinations of representative towing vehicles commonly used by customers and trailers widely available in the rental market. Special attention was given to the ratio of the gross vehicle weight rating
(GVWR)of the towing vehicles to that of the trailers when evaluating braking performance. Mr. Klein then solicited bids to obtain the services of a qualified, reputable, independent testing lab to execute the tests. The facility selected by Mr. Klein was Exponent Failure Analysis Associates'
(EFAA)Test and Engineering Center in Phoenix, Arizona. EFAA is an ISO 9001 lab that conducts a wide variety of scientific testing and research. EFAA has performed compliance testing on various FMVSSs for NHTSA. Initially, EFAA tested and fully analyzed the data from the braking performance of 11 different combinations of instrumented towing vehicles and trailers from the matrix developed by Mr. Klein. Those 11 combinations were chosen for full analysis from the 20 instrumented combinations initially tested because they represented a very wide range of towing vehicle to trailer GVWR ratios. Based on results of those initial tests, two additional vehicle configurations were tested to determine the performance of trailers over 12,001 pounds GVWR when the ratio of the simulated trailer GVWR to towing vehicle GVWR was restricted to 1:1.25. Mr. Klein interpreted the test data provided to him by EFAA and prepared the final report. His report is included as part of the petition submitted by the Coalition, and is, thus, included in the docket for this rulemaking. Test Vehicles Trailers
(GVWR)• *Light.* 1999 U-Haul tandem axle auto transport (6,000 pounds GVWR), equipped with U-Haul surge brake actuator. • *Medium.* 2000 Big Tex tandem axle, open cargo area, with side rails (14,000 pounds GVWR), equipped with Demco Model DA20 surge brake actuator. • *Heavy.* Two-2001 Wells Cargo flatbed trailers with triple torsion axles (20,000 pounds GVWR). One trailer was equipped with a Titan model 20 surge brake actuator and the other with a Demco DA20 surge brake actuator. Towing Vehicles
(GVWR)• *Light* . 1993 Chevrolet C-1500 (6,100 pounds GVWR), curb weight 4,194 pounds. The vehicle was equipped with front disc brakes and rear drum brakes. The vehicle was also equipped with a rear-axle antilock braking system (ABS). • *Medium.* 2001 Chevrolet K-3500 (11,400 pounds GVWR), curb weight 7,072 pounds. The vehicle was equipped with four-wheel disc brakes, four-wheel ABS and dual rear tires. • *Medium* . 2001 GMC Sierra (11,400 pounds GVWR), curb weight 7,476 pounds. The vehicle was equipped with four-wheel disc brakes, four-wheel ABS and dual rear tires. Note: The petition referred to the Chevrolet K-3500 and GMC Sierra as “heavy” vehicles. This document labels them as medium weight vehicles to distinguish them from the later discussion of a towing vehicle with a 16,000-pound GVWR, which we term “heavy.” Test Protocol The Coalition developed a test plan modeled on the procedures employed by NHTSA. It was designed to check brake performance in three areas of particular concern for surge brake equipped trailers. 1. *Straight-line braking:* Vehicle combinations were tested to see whether their stopping distance from 20 mph could meet the straight line performance requirements under § 393.52. The vehicle combination was required to stay within a 12-foot-wide lane during the test and not exceed the 40-foot stopping distance limit. 2. *Braking in a curve:* FMVSS Nos. 105 and 121 both require testing of brakes in a 500-foot radius curve from 30 mph on wet pavement to determine functionality of the ABS brakes on what would be the towing vehicles in this rulemaking. This requirement does not apply since functioning of ABS brakes is not the subject of this rulemaking. Although the FMVSS do not have a specification for braking-in-a-curve tests for trailers, the Coalition decided to include such tests of combination vehicles on a dry surface (as required by § 393.52) to check for jack-knifing tendencies and any other sources of instability. Testing consisted of driving the towing and trailer combinations at 30 mph on a circular, 12-foot-wide, 500-foot-radius test track. The driver then applied the brakes to achieve maximum deceleration, and the vehicle combination was required to stay within a 12-foot-wide lane during the stop. 3. *Brake-holding on a hill:* Because surge brakes work by transforming the trailer's forward momentum into hydraulic braking pressure, a stationary trailer facing uphill generates no braking effect. The Coalition, therefore, tested whether a combination that is required to stop facing uphill on a 20 percent grade can safely remain stationary using only the service brakes of the towing vehicle. The issue has practical implications in hilly areas where stop signs or traffic signals might halt a combination heading uphill. The Coalition applied the standard normally used for the parking brake, which in this case is for the towing vehicle, as specified in FMVSS Nos. 105 and 121, i.e., holding on a 20 percent grade. The combination was required to remain stationary for at least 5 minutes. Test Results A total of 22 towing vehicle and trailer combinations were tested. The petition explained that data from 13 instrumented combinations representing the widest possible range of weight ratios were selected for detailed analysis and inclusion in Mr. Klein's final report, which was included in the petition. The petition says that data collected from the other instrumented vehicle combinations tested were not included in the report because of budget constraints, but these tests generated essentially the same performance results as those that were included. Initially, three towing vehicles representing two weight classes were tested with three trailers representing three weight classes. Subsequently, a fourth medium weight towing vehicle and heavy trailer were added for two extra tests. The first three towing vehicles were run both at their unloaded curb weights of 4,194 pounds, 7,072 pounds and 7,476 pounds, and also loaded to their approximate GVWR of 6,100 pounds, 11,400 pounds, and 11,400 pounds, respectively. The three trailers were loaded at different weights to simulate towing vehicle to trailer GVWR ratios of 1:1, 1:1.25, 1:1.5, 1:1.7 and 1:2. The test “curb weights” shown in the petition for the towing vehicles were measured by driving the towing vehicles with loaded trailers attached onto the scales just before starting the test. Thus, the “curb weights” shown in the test data includes the driver, test equipment, fuel load, and tongue weight. A reasonable approximation of the tongue weight is 10 percent of the loaded trailer weight. For example, in a medium towing vehicle with an unloaded curb weight of 7,072 pounds towing a heavy trailer loaded to 16,540 pounds, the weight of the driver, fuel and test equipment and tongue weight produced a test “curb weights” of 9,370 when the towing vehicle began the test. For similar reasons, a few of the actual test weights for the towing vehicle slightly exceeded the GVWR of the towing vehicle. 1. *Straight-line braking:* A light towing vehicle (GVWR of 6,100 pounds), operating both at test curb weight and loaded to full GVWR, was tested in combination with a light trailer loaded approximately to its GVWR at 6,030 pounds for a ratio of approximately 1:1. Both of these combinations stopped from 20 mph well within the 40 feet allowed by § 393.52. The light towing vehicle loaded approximately to its GVWR of 6,100 pounds was also tested with a medium weight trailer (14,000 pounds GVWR) loaded to 9,090 pounds and 12,090 pounds (simulating GVWR ratios of approximately 1:1.5 and 1:2, respectively). These combinations also complied with § 393.52 by stopping from 20 mph within 40 feet. The medium towing vehicles of 11,400 pounds GVWR were tested loaded to their GVWR with
(1)a medium trailer (GVWR 14,000 pounds) partially loaded to 12,090 pounds for a simulated ratio of approximately 1:1.1, and
(2)a heavy trailer (GVWR 20,000 pounds) partially loaded to 14,600 pounds for a simulated GVWR ratio of approximately 1:1.25. These combinations complied with § 393.52, demonstrating safe braking performance when the simulated GVWR of trailers heavier than 12,000 pounds was limited to approximately the requested 1.25 times that of the towing vehicle, or less. A medium towing vehicle tested with a heavy trailer (both loaded to approximately their GVWR for a ratio of 1:1.75) achieved a stopping distance of 44.7 feet from 20 mph. This combination has a GVWR ratio that is considerably higher (approximately 40 percent higher) than the 1:1.25 requested by the petitioner for heavier trailers, yet the vehicle combination still came very close to the stopping distance requirement of 40 feet, as specified in § 393.52. This test with a GVWR ratio of 1:1.75 demonstrated that the Coalition's proposed GVWR ratio of 1:1.25 is conservative, and includes a substantial safety margin for trailers with a GVWR greater than 12,000 pounds. 2. *Braking in a curve:* EFAA conducted 39 brake-in-a-curve tests with 11 combinations. The actual or simulated GVWR ratios varied widely (from 1:1 to 1:2), depending on the load carried by the trailer. These tests included all the vehicle combinations described in the straight-line braking test above, except for the two combinations added later, i.e., a medium towing vehicle with a trailer loaded to 14,600 pounds for a weight ratio of 1:1.25. The braking-in-a-curve test was not done on those combinations because these tests had already been run for that vehicle at weight ratios up to 1:2. The combinations included in these tests included: light towing vehicle and light trailer; the light towing vehicle and the medium trailer; medium towing vehicle and medium trailer; and medium towing vehicle and heavy trailer. The reported results indicated that in all of the 39 tests, the combinations were able to stop from 30 mph within a 12 foot lane on a 500 foot radius circle without any loss of control. 3. *Brake-holding on a hill:* Six combinations were parked heading uphill on a 20 percent grade. In all cases, the service brakes on the towing vehicle held the entire combination in place for 5 minutes, the duration of the test. The combinations tested included: A light towing vehicle both at its test “curb weight” and loaded to its GVWR attached to a trailer loaded to a simulated GVWR of 12,090 pounds, for a maximum GVWR ratio of approximately 1:2; a medium towing vehicle tested at its test “curb weight” with a heavy trailer loaded to 16,540 pounds for a simulated GVWR ratio of approximately 1:1.45; and a medium towing vehicle loaded approximately to its GVWR and tested with a heavy trailer loaded to its approximate GVWR of 20,000 pounds, representing a GVWR ratio of about 1:1.75. Although surge brakes automatically release when deceleration stops, the tests showed that the service brakes of a towing vehicle are more than adequate to hold the combination at a stop even while facing uphill on a 20 percent grade, even when the GVWR ratios substantially exceed the limits proposed by the Coalition. C. Analysis of Petition The data submitted by the Coalition indicate that approximately 250,000 surge-brake units are installed each year. This large number creates a considerable population of non-commercial surge-braked trailers operating on the public roads. Numerous commenters contend that this trailer braking technology is inherently unsafe, as discussed in following sections, because—compared to other brake systems—it increases
(1)the risk of brake fires while descending large hills, and
(2)the risk of crashes. FMCSA was unable to find any data to support those claims. Although surge brakes have been in use for many years, no government agency or private entity that FMCSA is aware of has found their performance to be inadequate or contributory to highway crashes. The absence of such data suggests that the alleged safety problems of surge brakes are in fact a non-issue for their manufacturers, renters and insurers of trailers so equipped, and State and local safety officials. FMCSA believes that the use of surge brakes has proven to be safe. FMCSA investigated whether crash data could be obtained from either NHTSA's Fatality Analysis Reporting System
(FARS)or the General Estimates System
(GES)to assist in this evaluation. Neither FARS nor GES identifies the type of brakes used on trailers involved in fatal or non-fatal crashes and, therefore, cannot reveal whether surge brakes are under-or over-represented in crash statistics. FMCSA analyzed the information provided by the Coalition and, as indicated in the NPRM, made a preliminary determination that the test results supported a number of conclusions. Vehicles equipped with surge brakes, subject to the GVWR ratios proposed in the petition and NPRM
(1)have sufficient braking capability to comply with the Agency's stopping requirements while operating on public roads in interstate commerce;
(2)have no braking stability problems; and
(3)are able to safely hold their position when stopped facing uphill on steep grades, and then to proceed. The test results involving a medium towing vehicle and a heavier trailer were particularly important. The tests demonstrated that heavier towing vehicles in compliance with FMVSS No. 105, which allows a longer stopping distance for non-passenger vehicles over 10,000 pounds, would still meet the vehicle braking performance requirements of § 393.52 if the GVWR ratio of towing vehicle to trailer did not exceed 1:1.25. The Coalition's petition asked for the break point in towing vehicle to trailer GVWR ratio to occur at 12,000 pounds. At a GVWR ratio of 1:1.25, the FMVSS No. 105 definition for towing vehicles of 10,000 or more pounds would place that break point for trailers with a GVWR of over 12,500 pounds. FMCSA chose the more conservative 12,000 requested by the Coalition. Thus, while surge brakes are not “operable at all times,” as required by § 393.48(a), FMCSA concluded that the Coalition's safety performance test results, which show that towing vehicles pulling surge-braked trailers were consistently able to stop within the distances required by § 393.52, provided certain GVWR ratios were observed, adequately demonstrate that the design requirement of § 393.48(a) is excessively restrictive. The purpose of § 393.48(a) is to maintain highway safety, and the Coalition's wide-ranging test program showed that towing vehicles, which are all subject to either FMVSS Nos. 105, 121 or 135, when operated with surge-braked trailers that are within the specified GVWR ratios, meet all applicable stopping tests. In view of those performance results, the Agency preliminarily determined that § 393.48 should not be allowed to bar the operation of surge-braked trailers in interstate commerce. FMCSA's analysis of the petition was reviewed by NHTSA, which concurred in the determination to grant the petition to initiate a rulemaking. D. Notice of Proposed Rulemaking
(NPRM)FMCSA published an NPRM on October 7, 2005 (70 FR 58657). The Agency explained that the use of surge brakes, under the conditions specified in the NPRM, appeared to be consistent with the safety performance objectives, though not the letter, of §§ 393.48 and 393.49. Therefore, the Agency concluded it was appropriate to propose amending the regulations to allow the use of surge-braked trailers in interstate commerce. The NPRM proposed adding the following definition of “surge brake” to § 390.5: *Surge Brake.* A self-contained, permanently closed hydraulic brake system for trailers that relies on inertial forces, developed in response to the braking action of the towing vehicle, applied to a hydraulic device mounted on or connected to the tongue of the trailer, to slow down or stop the towed vehicle. The NPRM proposed amending § 393.48 by revising paragraph
(a)and adding paragraph
(d)to read as follows: § 393.48 Brakes To Be Operative
(a)*General rule.* Except as provided in paragraphs (b), (c), and
(d)of this section, all brakes with which a motor vehicle is equipped must at all times be capable of operating.
(b)* * *
(c)* * *
(d)*Surge brakes.* Paragraph
(a)of this section does not apply to:
(i)Any trailer with a gross vehicle weight rating
(GVWR)of 12,000 pounds or less, equipped with inertial surge brakes when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; or
(ii)Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, equipped with inertial surge brakes when the GVWR does not exceed 1.25 times the GVWR of the towing vehicle. The NPRM proposed replacing § 393.49 in its entirety, including a revised title, to read as follows: § 393.49 Control Valves for Brakes
(a)*General rule.* Except as provided in paragraphs
(b)and
(c)of this section, every motor vehicle, manufactured after June 30, 1953, which is equipped with power brakes, must have the braking system so arranged that one application valve must when applied operate all the service brakes on the motor vehicle or combination of motor vehicles. This requirement must not be construed to prohibit motor vehicles from being equipped with an additional valve to be used to operate the brakes on a trailer or trailers or as provided in § 393.44.
(b)*Driveaway-Towaway Exception.* This section is not applicable to driveaway-towaway operations unless the brakes on such operations are designed to be operated by a single valve.
(c)*Surge brake exception.* This requirement is not applicable to trailers equipped with surge brakes that satisfy the conditions specified in 49 CFR § 393.48(d). In view of the representative nature of the simulated GVWR ratios for towing vehicles and trailers used in the Coalition's tests and the satisfactory performance results, the NPRM noted that it was appropriate to conclude that surge-braked vehicles were safe, when operating within the specified ratios of towing vehicle GVWR to trailer GVWR. The petition did not include test data demonstrating that a towing vehicle with a GVWR of 16,000 pounds or more, towing a 20,000 pounds trailer, could stop within 40 feet. Therefore, FMCSA noted it was reasonable to assume such a combination would pass the test, but also asked for public comment and data either supporting or contradicting that assumption. Specifically: The Agency requests comment on whether additional analysis is needed to support the Petitioner's assertion that vehicle combinations that include a heavy trailer (GVWR between 14,600 pounds and 20,000 pounds) would satisfy FMCSA's brake performance requirements under § 393.52 when the GVWR of the trailer is 1.25 times that of the towing vehicle or less. The agency is also requesting the submission of brake performance data and information relevant to all the other issues raised in the petition, and the proposed amendments to §§ 393.48 and 393.49. II. Discussion of Comments to the NPRM The Agency received 63 individual comments in response to the NPRM. (In some cases, more than one person from the same organization submitted similar comments.) Comments were submitted on behalf of the following organizations: A-1 Rental; A to Z Rental Center; ABC Equipment Rental; Action Rental; ADH Equipment & Sales; Advocates for Highway and Auto Safety (Advocates); Aide Rentals & Sales II; All County Rental Center; All Star Rents; ALTCO Tool Rental, L.L.C.; American Rental Association (ARA); American Trucking Associations, Inc. (ATA); Aurora Rents, Inc.; Arapahoe Rental; Bee Gee Rental & Sales; Mr. Barry Hansel; Bill's Rental Center, Inc.; Bradley Rentals; Bryant's Rent-All, Inc.; Buttons Rent-It; Carlisle Industrial Brake and Friction (Carlisle); Construction Rental Inc.; County Corner Rental Center, Inc.; Do-It-Yourself, Inc.; Equipment Rentals Inc.; Front Range Rents; Grants Rental; Highway 55 Rental; House of Rental; Jackson Rentals & Supplies Inc.; Johnson Creek Rentals; Kimps ACE Hardware and Rental; LEW Corporation; Lew Rents; Lindner Hardware, Inc.; London Road Rental Center; Maryland State Highway Administration, Motor Carrier Division (MDSHA/MCD); Mikerentals, Inc.; National Marine Manufacturers Association (NMMA); the Ohio State Highway Patrol (OSHP); Reading Rentals, Inc.; Rental World; The Rentit Shop Inc.; S and M Rentals Inc.; Southwest Rentals, Inc.; Sunstate Equipment Co.; Surge Brake Coalition (Coalition); Taylor Rental; Taylor Rental Center; Truck Manufacturers Association (TMA); Tidewater Rental & Sales; Total Rental Center; Top Quality Rental and Sales, LLC; United Rentals; Wautoma Rental Center; Wirtz Rentals, Co.; and Wirtz Rentals Co. Summit Division. A. Comments Supporting the NPRM Fifty-four
(54)commenters identified themselves as members of the ARA, and provided comments supporting the NPRM. The ARA commenters stated they rent surge brake equipped trailers, and indicated that FMCSA's current interpretation of the rules causes problems for both commercial and non-commercial customers. Specifically, non-commercial customers may use trailers equipped with surge brakes for private use without restrictions, while commercial customers are prohibited from using those same trailers in interstate commerce (or even in intrastate commerce in 41 States and the District of Columbia) due to the existing interpretations of the FMCSRs. These 54 commenters are grouped together under ARA. 1. ARA is a member of the Coalition, and supports its comments to the docket. ARA's initial comments essentially repeat material included in the petition for rulemaking. Namely, the proposed modifications to 49 CFR Part 393 will allow commercial trailers to use surge brakes for specified weight combinations, thus harmonizing braking system regulations for commercial interstate, commercial intrastate and non-commercial trailers equipped with surge brakes. ARA believes the proposed action will simplify enforcement and eliminate the confusion that trailer rental and sales businesses experience when advising both commercial and non-commercial customers about appropriate equipment applications. Under the current regulations, a person operating as a licensed contractor may not transport equipment on rented trailers equipped with surge brakes in interstate commerce. The requirement of the Motor Carrier Safety Assistance Program (MCSAP) that States adopt regulations compatible with Federal regulations (49 CFR 350.201(a), 350.341) has resulted in the widespread prohibition of surge-braked trailers for commercial purposes, even in intrastate commerce. However, the Coalition points out that an individual can legally use surge-braked trailers for non-commercial uses. ARA believes this creates a fundamentally unworkable system for rental businesses. ARA contends that there are no viable alternatives to surge brakes for rental businesses, where customers usually own the towing vehicles. Trailers with electric brake systems are available, but are not standardized, and towing vehicles are not always equipped with electric brake controllers and the necessary wiring to operate trailers equipped with electric brakes. ARA states that trailer brakes are a fundamental safety requirement, and that use of self-contained surge brakes is the only viable way rental businesses can meet that requirement. ARA asserted that safety is a serious concern for its members and that the safety record of surge-braked rental trailers is good. ARA said that ARA Insurance Services (AIS), its wholly owned insurance subsidiary, offers property, casualty and liability insurance to ARA members. It offered the following information: AIS writes insurance policies for approximately 40 percent of the ARA membership. AIS researched all trailer claims in its system back to 1989. During those 16 years, only six percent of the claims were for accidents involving trailers or towable equipment. In 91 percent of those claims, AIS was able to determine that on trailers equipped with surge brakes, the brakes were not the cause of the accidents. On the remaining nine percent [or 0.54% of all claims], there was not enough information or evidence available for AIS to find that surge brakes were a factor, nor to rule out the possibility that surge brakes were involved. However, within that 9 percent, we [AIS] found only two claims that actually mentioned surge brakes and neither of those specified that the insured [rental company] was liable for faulty surge brakes. It is noteworthy that through 25-plus years in business, AIS has and continues today to write insurance coverage for ARA members that have surge brake-equipped trailers in their fleets. There are no special provisions, premiums, or riders required for insuring surge brake equipped trailers in rental fleets. *FMCSA Response:* As noted earlier, this rule focuses primarily on the mandate of 49 U.S.C. 31136(a)(1) that CMVs be “equipped * * * and operated” safely. The fact that ARA's insurance subsidiary
(AIS)does not charge a premium to cover surge-braked rental trailers is a strong indicator, based on actuarial experience, that trailers with surge brakes are no less safe than trailers with any other kind of braking system. The only two claims AIS was able to locate that mentioned surge brakes do not indicate that they malfunctioned. Many of ARA's comments addressed the issue of efficiency in trailer-rental operations that, while not directly related to safety, were considered in the preparation of this rule, including the regulatory analysis of its costs and benefits. 2.
(a)The Coalition pointed out that surge brake technology has evolved since the petition was submitted and suggested the definition of surge brakes may someday require modification. For example, non-hydraulic surge brake systems have been developed and are entering the marketplace in Europe. The Coalition proposed that FMCSA consider deleting “permanently closed hydraulic” and the adjective “hydraulic” from the definition of surge brakes as proposed in § 390.5 to eliminate any future design restrictions, or the need for further rulemaking petitions. The bulk of the Coalition comments responded to the request in the NPRM to provide additional information on trailers with weights between 14,000 pounds and 20,000 pounds.
(b)The Coalition acknowledged its tests did not include a towing vehicle with a GVWR exceeding 11,400 pounds. Under the proposal, a towing vehicle with a minimum GVWR of 16,000 pounds would be required to tow a trailer with a GVWR of 20,000 pounds. Instead of obtaining a 16,000 pound towing vehicle and running actual tests, the Coalition hired a national trailer expert, Dr. Michael Graboski, to perform independent mathematical analyses to predict braking performance from the data generated by the Coalition's tests. Specifically, Dr. Graboski used the test data submitted in the petition and analytically predicted that the combination of a heavy towing vehicle (GVWR of 16,000 pounds or greater) and a trailer of 20,000 pounds GVWR would comply with the stopping distance requirements of § 393.52. The Coalition again asserted that the stopping distance for a properly matched combination vehicle depends on the ratio of the towing-vehicle to trailer weight, and not just on the weight of the trailer. The Coalition argued that the EFAA straight-line braking data is sufficient to predict that combinations with heavy trailers (14,600 to 20,000 pounds GVWR) would comply with the requirements of § 393.52 at GVWR ratios of 1:1.25 and less. It then reiterated the following test data results: • Test data showed that the medium towing vehicle loaded to its approximate test GVWR of 11,730 pounds successfully completed the braking in a 2curve testing at 30 mph with a test weight trailer of 20,560 pounds. This represents a simulated GVWR ratio of 1:1.75, compared to the proposed GVWR ratio of 1:1.25. • The towing vehicle loaded to its approximate test GVWR of 11,730 pounds with a test weight trailer of 20,560 pounds also successfully held the combination facing uphill on a 20 percent grade for 5 minutes using the service brakes. This is a GVWR ratio of 1:1.75, compared to the proposed GVWR ratio of 1:1.25. • The towing vehicle loaded to its approximate test GVWR of 11,730 pounds, pulling a test weight trailer of 20,560 pounds, was also able to stop in a straight line from 20 mph in a distance of 44.7 feet, which only slightly exceeds the 40 feet stopping distance requirement of § 393.52. But this combination represents a GVWR ratio of 1:1.75 as compared to the proposed GVWR ratio of 1:1.25 for trailers between 12,001 pounds and 20,001 pounds GVWR. • The towing vehicle (both at test curb weight of 9,260 pounds and loaded to its GVWR of 11,400 pounds) pulling a 20,000 pound GVWR trailer loaded to 14,600 pounds (ratio of 1:1.28) stopped within 38.5 and 38.9 feet respectively. The test data was used to perform the two following analytical analyses. *Analysis one:* Dr. Graboski analyzed the different combinations of towing vehicle and trailer load ratios using linear regression. That analysis predicted a stopping distance of exactly 40 feet for a towing vehicle with a GVWR of 16,000 pounds pulling a trailer with a GVWR of 20,000 pounds, which meets the standard for stopping distance allowed by § 393.52. *Analysis two:* Dr. Graboski then performed a separate engineering analysis based upon the mathematical modeling relationship found in the final report submitted by Klein and Szostak under the 1979 NHTSA contract (DOT-HS-805-327). 4 The details regarding surge brake gain (defined and discussed below) were subsequently published as a Society for Automotive Engineers
(SAE)paper. 5 This model quantifies the braking performance of towing vehicles with trailers equipped with surge brakes. Using the principles of engineering mechanics set forth in the Klein and Szostak model, Dr. Graboski applied the brake test data collected by EFAA to calculate the minimum surge brake gain necessary to achieve the required braking performance for a 16,000 pound GVWR towing vehicle with a 20,000 pound GVWR trailer equipped with surge brakes. 4 Development of Car/Trailer Handling and Braking Standards; Volume II: Technical Report, November 1979, copy in docket. 5 Klein, R.H., Szostak, H.T., “Description and Performance of Trailer Brake Systems with Recommendations for an Effectiveness Test Procedure,” SAE 820135, 1982. This model quantifies the braking performance of combination vehicles with trailers equipped with surge brakes. An abstract of this copyrighted paper has been included in the docket. Anyone who wishes to examine a hard copy of this document should contact Mr. Luke Loy at the phone number given at the beginning of this rule. The paper may be also purchased from SAE. [ *http://www.sae.org/servlets/productDetail?PROD_TYP=PAPER&PROD_CD=820135* ] The deceleration of a towing vehicle-trailer combination is the sum of the towing vehicle and trailer braking forces divided by the sum of the weights of the towing vehicle and trailer. Surge brake operation relies on the compression force at the trailer hitch caused by deceleration of the towing vehicle being delivered to the trailer's hydraulic actuator to activate the trailer's hydraulic brakes. The compression force at the hitch is the product of the deceleration of the towing vehicle and the weight of the trailer minus the brake force of the trailer surge brakes. Upon applying the towing vehicle brakes, the surge brake actuator, located between the trailer and the towing vehicle, receives the initial compressive force that results from the inertia difference between the braked towing vehicle and the as-yet-unbraked trailer. The surge brake actuator drives a piston in the trailer's hydraulic brake system master cylinder producing hydraulic pressure in the trailer's braking system proportional to that initial compressive force. The ratio of the resulting initial braking force applied to the trailer brakes to the compressive force at the surge brake actuator is termed the surge brake gain. More simply stated, the gain is the ratio of the amount of trailer braking force developed per pound of horizontal hitch force. This is a measure of the performance of that surge brake system. The value achieved is determined by the design characteristics of that particular system, including characteristics of the actuator. Although initial compression force generated at the hitch is subsequently diminished because of the braking force being applied by the trailer brakes, the amount of trailer braking force remains dependent on the gain realized above the remaining force at the hitch. Dr. Graboski used the Klein and Szostak model to calculate the minimum required surge brake gain, G, necessary for the combination vehicle to stop within the 40 feet stopping distance requirement of § 393.52. That value is 1.48. Instrument readings from several tests were available from EFAA. Those readings were used to calculate the initial surge brake gains that occurred for the two actuators tested for the two 20,000 pound GVWR 2001 Wells Cargo flatbed trailers. One was equipped with a Titan Model 20 surge brake actuator and the other with a Demco DA20 surge brake actuator. • Towing vehicle loaded to its approximate test GVWR of 11,300 pounds and the 20,000 pound GVWR trailer loaded to 16,540 pounds, for a simulated GVWR ratio of approximately 1:1.45. • Towing vehicle of 11,400 GVWR at test curb weight of 9,370 pounds and the 20,000 GVWR trailer loaded to 16,540 pounds, for a simulated GVWR ratio of approximately 1:1.45. • Towing vehicle at approximate test GVWR of 11,730 pounds and the trailer loaded to its test GVWR of 20,560 pounds, for a GVWR ratio of approximately 1:1.75. • Towing vehicle at approximately test GVWR of 11,400 pounds and the 20,000 pounds GVWR trailer loaded to a test 14,600 pounds, for a simulated GVWR ratio of about 1:1.28. • Towing vehicle of 11,400 GVWR at test curb weight of 9,260 pounds and the 20,000 pounds GVWR trailer loaded to 14,600 pounds, for a simulated GVWR ratio of approximately 1:1.28. Using the Klein and Szostak model, the surge brake gain, G, achieved for each of these surge brake actuators was calculated. It was 1.59 for the Demco DA20 and 1.84 for the Titan Model 20 surge brake actuators. The surge brake gain achieved by each of these actuators is thus well above the calculated minimum surge brake gain, G, of 1.48 needed to stop a combination of a 16,000 pound towing vehicle with a 20,000 pound trailer within 40 feet from 20 mph. Based upon these analyses, the Coalition submits that it is safe to operate 20,000-pound GVWR trailers with towing vehicles having GVWRs of 16,000 pounds or more with braking characteristics similar to the vehicles tested. In summary, the Coalition believes that their tests and analytical evaluation of the data provide sufficient information to conclude that the proposals in the NPRM should be adopted. *FMCSA Response:*
(a)No data are available to the Agency regarding the performance of other surge brake technologies to support the Coalition's request to remove the word “hydraulic” from the definition of surge brake. If the Coalition wishes to make such data available to FMCSA, a modification of this definition may be evaluated.
(b)The additional analysis is consistent with the provision of § 389.31(b)(4) that requires petitions to contain “* * * any information and arguments available to the petitioner to support the action sought.” It is also consistent with the following request in the NPRM: The Agency requests comment on whether additional analysis is needed to support the Petitioner's assertion that vehicle combinations that include a heavy trailer (GVWR between 14,600 lbs and 20,000 lbs) would satisfy FMCSA's brake performance requirements under § 393.52 when the GVWR of the trailer is 1.25 times that of the towing vehicle or less. The agency is also requesting the submission of brake performance data and information relevant to all the other issues raised in the petition, and the proposed amendments to §§ 393.48 and 393.49. The Agency notes that the Klein and Szostak model was applied on the assumption that the sustained braking deceleration of the heavy towing vehicle with a 16,000-pound GVWR remains the same as the initial braking deceleration achieved by the medium 11,400-pound GVWR vehicles. The basis for this assumption is that the 16,000 pound GVWR vehicle is required by FMVSS No. 105 to comply with the same braking performance (stopping distance) as the 11,400 pound GVWR vehicle. Therefore, the total braking capability of the 16,000 pound vehicle must be proportionally greater than for the 11,400 pound vehicle, making it more capable of maintaining the initial braking deceleration force when the forward momentum of the trailer comes to bear upon the trailer hitch. The assertion by the Coalition that the surge brake gain of both the Demco and Titan exceeds the minimum necessary for the combination vehicle to stop within 40 feet is relevant only if these actuators are reasonably representative of the brake gain provided by other surge brake actuators available in the market. FMCSA notes that the Demco and Titan actuators on the test trailers represent manufacturers with very prominent market shares for heavy trailer actuators. The technology on which these actuators are based is quite standardized. The market for surge brake actuators for heavy trailers (14,600-20,000 pounds) is relatively small. As such, it is reasonable to assume other competing surge brake actuators in this weight range will have to provide comparable performance to remain competitive in the market. Therefore, the Agency believes the measured surge brake gains of 1.59 and 1.84 are representative, and that it is reasonable to presume the minimum gain necessary of 1.48 will be met by available actuators. The Agency determined that the Coalition has provided sufficient additional analytical information supporting its original proposal to allow surge brakes on trailers when the towing vehicle to trailer GVWR ratio does not exceed 1:1.25 for trailers with GVWRs between 14,600 pounds and 20,000 pounds. The two independent analytical methods used by the Coalition, in conjunction with available test data, both predict that combination vehicles towing surge-braked trailers with GVWRs between 14,600 and 20,000 pounds, but not more than 1.25 times the GVWR of the towing vehicle, can meet the 40 feet stopping distance of § 393.52. FMCSA finds these additional analyses persuasive and agrees with their conclusions. 3. The National Marine Manufacturers Association
(NMMA)supports the use of trailers equipped with surge brakes in interstate “commercial” applications, and argues the recreational marine industry has a unique problem regarding surge brakes. NMMA notes that surge brakes are especially useful and reliable in marine applications where the boat trailer is expected to be repeatedly immersed in water, a practice that could damage components of electric brakes. NMMA states that while the consumer use of surge brakes on boat trailers is exempt from existing Federal regulations, the same brake system that is considered a safety feature for consumer use is prohibited when that boat trailer is used in a technically “commercial” application (for example, when a boat dealer or repair shop transports a boat to or from a customer using the customer's trailer). In addition, the FMCSRs may be violated when a boat dealer or manufacturer transports a boat on a consumer type surge-braked trailer to or from a boat show. NMMA believes the current regulation is especially burdensome for the recreational boat industry, since a consumer boat trailer is often specifically matched or manufactured for a particular boat and is the preferred way to transport that boat. NMMA notes that this use of a surge brake equipped boat trailer, although sometimes commercial in nature, is in fact identical to the use of the boat trailer by the consumer. In addition, even if a boat dealer or repair shop did use its own trailer for these trips, NMMA states that it would be preferable to use a trailer with surge brakes, since those trailer brakes are generally considered more durable and suitable for water applications. *FMCSA Response:* The NMMA comments explain the marine uses of surge brakes in detail as well as the problems created by the Agency's position that surge brakes do not comply with the requirements of Part 393. While much of its discussion centers on the operational difficulties that NMMA's industry partners face given the current regulatory requirements, NMMA also addresses the operational safety of surge brakes through real-world experience. NMMA specifically states that a large number of private boat owners are personally using surge brake equipped trailers. Some of those trailers are for larger boats that would require a GVWR in the heavier range of 12,001 to 20,000 pounds. The fact that no safety problems relating to surge brake performance have been reported by the marine industry or by State and local highway safety officials, as a result of that usage on the public roads, suggests that these trailers and their braking systems are safe. B. Comments Opposing the NPRM 1. The Ohio State Highway Patrol
(OSHP)believes surge brakes are a viable alternative to braking systems currently in use on smaller commercial motor vehicles, but also commented that: (a)(i) Additional testing is appropriate, and
(ii)Such testing should be completed by FMCSA, NHTSA, and/or an independent group other than the Coalition. OSHP recommends that any additional testing include old vehicles, to the point where the requirements of § 393.52 cannot be met. OSHP believes that such testing would provide law enforcement with an acceptable level of confidence, and a margin of safety, for the use of surge brakes.
(iii)OSHP recommended that testing should also include the vehicle's ability to stop during backing maneuvers.
(b)OSHP also believes that the criterion set forth in the NPRM, i.e., that the ratios of the towing vehicle to trailer weight must be based solely on GVWR, is incomplete, and should include provisions for using each of the vehicles' actual gross weights to determine compliance with the proposed regulation. Specifically, OSHP recommended the inclusion of a provision to allow law enforcement to use either the vehicles' GVWR or their actual gross weights to determine compliance with the regulation. OSHP believes that this would keep the operator of the vehicle “honest” and keep unsafe combinations of vehicles from operating on the highway. *FMCSA Response:* (a)(i) FMCSA has reviewed the Coalition's test procedures and finds them well grounded in modern scientific practice and sufficient to measure the safety performance of surge brake systems. The tests were performed in a controlled fashion by a reputable organization, EFAA, precisely to ensure that the test results would not be influenced by the Coalition. Further, EFAA is an ISO 9001 compliant facility that has conducted FMVSS testing for NHTSA. FMCSA does not believe additional testing is required. (a)(ii) A review of the test results provided by the Coalition indicates the towing vehicles were not new, and that the more extreme weight ratio combinations tested failed to achieve the brake performance requirements of § 393.52(d). The Coalition petitioned FMCSA to adopt GVWR ratios substantially more stringent than the ratios at which test combinations failed to meet the required stopping distance. Manufacturers were required by NHTSA rules and § 393.55(a) to include ABS systems on new vehicles built after March 1, 1999; the brake performance of older vehicles manufactured before that date is essentially grandfathered. FMCSA acknowledges that two of the three Coalition test vehicles were newer than March 1999 and, thus, were equipped with ABS on all wheels. The third vehicle was a 1993 model that only has ABS on the rear axle brakes. However, such older vehicles are in use towing commercial trailers with electric brakes, and commercial trailers weighing less than 3,000 pounds that are not required to be equipped with any brakes. No data were submitted to the docket indicating that towing vehicles without ABS are a safety hazard. The subject of this rulemaking is the safety of surge brakes on trailers, not whether the Agency or anyone else believes that the lack of ABS on a grandfathered CMV would adversely affect the performance of a trailer equipped with surge brakes. As a practical matter, surge-braked trailers might improve the stopping performance of some pre-1999 towing vehicles (especially unloaded pickups) by putting added weight on the rear tires and, thus, delaying the onset of lock-up. The Coalition's test procedures were specifically selected to address several existing specifications for braking systems. These include FMVSS No. 105 for Hydraulic Brakes, FMVSS No. 121 for Air Brake Systems, and § 393.52(d) for the FMCSA vehicle stopping distance requirements. FMCSA has no reason to believe the test procedures used by EFAA failed to demonstrate the braking characteristics of combination vehicles using surge-braked trailers. The testing performed by EFAA utilized a wide variety of towing-vehicle and trailer weight combinations, with numerous different simulated GVWR ratios. Multiple test runs for each combination were made and measured. The ratios of weights for towing vehicle to trailer simulated GVWRs covering all ratios proposed in the petition, and included testing of GVWR ratios exceeding the request. Test data showed that all combinations were stable while braking in a curve and held firm on a 20 percent uphill grade while using only the towing vehicle's service brakes, some at GVWR ratios much higher than those proposed by the Coalition, in some cases at a ratio of 1:2. The subsequent mathematical analysis performed by Dr. Michael Graboski also predicted that the requirements of § 393.52(d) would be met by towing vehicles with GVWRs of 16,000 pounds or greater, towing surge brake trailers with a GVWR of 20,000 pounds or less, for a GVWR ratio of 1:1.25 or less. The FMVSS currently includes manufacturers' performance standards only for air-braked trailers; there are no such standards for trailers with electrical, electric over hydraulic, or surge brakes. OSHP provided no information that the operation of surge brake equipped trailers for personal use has created undue concern among safety and law enforcement personnel.
(iii)There are no FMCSA or NHTSA regulatory standards for brake performance when a vehicle backs up. Rather, brake performance requirements for motor vehicles are applicable only when a vehicle is operating in the forward direction. Because vehicles typically operate in reverse at speeds much lower than when operating in the forward direction, and only for very short distances, existing tests that specify brake performance in the forward direction are considered to be sufficient to ensure that the same vehicle can stop safely when operating in reverse. As such, none of the FMVSSs or the FMCSRs specify braking performance requirements for vehicles operating in reverse. While surge brakes automatically release when deceleration stops—and therefore, are not operable while the vehicle is operating in reverse—the brake holding on a hill tests conducted by the Coalition clearly showed that the service brakes of a towing vehicle alone are more than adequate to hold the combination at a stop
(1)even while facing uphill on a 20 percent grade, and
(2)even when the GVWR ratios substantially exceeded the limits that had been proposed by the Coalition. FMCSA considers these brake holding on a hill tests to be a much more severe test of brake performance than stopping a vehicle/surge brake equipped trailer combination traveling in reverse at low speeds or backing down an incline at less than a 20 percent grade. While recognizing that vehicles are not required to demonstrate the ability to stop while operating in reverse, as noted in the preceding paragraph, FMCSA is confident that these test results, in conjunction with the conservative GVWR ratios specified in this rule, will ensure that combinations with surge brake equipped trailers will be able to stop safely while operating at low speeds in reverse.
(b)FMCSA agrees with OSHP that an overloaded surge-braked trailer, or one without a manufacturer's GVWR certification, could pose safety risks. Therefore, the Agency has added provisions to the reformatted § 393.48(d) to deal with missing GVWR labels and overloading. New paragraphs
(2)and
(3)are added to read as follows:
(2)The gross vehicle weight
(GVW)of a trailer equipped with surge brakes may be used instead of its GVWR to calculate the weight ratios specified in this paragraph (d)(1) of this section when the trailer manufacturer's GVWR label is missing.
(3)The GVW of a trailer equipped with surge brakes must be used to calculate the weight ratios specified in paragraph (d)(1) of this section when the trailer's GVW exceeds its GVWR. General or approximate GVWRs for most models of towing vehicles covered by this rule are commonly known. FMCSA will ask the Commercial Vehicle Safety Alliance
(CVSA)to make these values available for use when towing vehicles between 10,000 and 16,000 pounds do not have a GVWR plate. If OSHP is concerned about overloaded towing vehicles, all existing enforcement procedures remain in effect for dealing with vehicles loaded beyond their manufacturer's GVWR. OSHP has the authority under the State version of § 396.7 (adopted pursuant to MCSAP) to remove such vehicles from the road, and this provision is incorporated in the North American Standard
(NAS)Out-of-Service criteria. 2. Mr. Barry Hansel commented that “surge brakes are better than no brakes,” but he argued:
(a)That surge brakes have numerous shortcomings that do not apply to electric over hydraulic brake systems 6 available from numerous manufacturers. Specifically, Mr. Hansel stated that
(i)surge brakes cannot provide braking when backing down a hill, because they do not have an electrical solenoid that can be activated,
(ii)surge brakes can be unintentionally activated by backing up a grade of as little as a 1 percent,
(iii)a jack-knifing trailer cannot be straightened out with a surge brake, and surge brakes can actually create or aggravate a jack-knife condition, and
(iv)when going down steep mountain roads, surge brakes would activate the trailer brakes and cause them to overheat or burn out. 6 Electric over hydraulic is distinguished from the more commonly known electric brake systems in that the former consists of an electric motor, pump, and brake fluid reservoir attached to the trailer and plumbed into the hydraulic brake system of the trailer. The brakes are applied by pushing on the brake pedal of the towing vehicle, which activates the electric brake controller mechanism in the towing vehicle. This sends an electrical signal to the electric motor and pump on the trailer, causing the trailer brakes to pressurize and slow or stop the trailer. With the same controller, the trailer brakes can be activated by themselves simply by activating the manual override on the controller.
(b)Mr. Hansel contends that alternative brake technologies for trailers—specifically electric over hydraulic brake actuators—are safer because they do not have the shortcomings associated with surge brakes that were noted above.
(c)Mr. Hansel stated that the stopping distances documented by the Coalition were most likely achieved under ideal road conditions. He contends that surge brakes cannot stop a trailer on ice covered, wet, or dirt roads safely.
(d)He further argues the only reason the Surge Brake Coalition favors surge brakes is because they are cheaper than electric over hydraulic brakes. *FMCSA Response:* (a)(i) As discussed earlier, neither FMCSA nor NHTSA has any regulatory standard for braking while a vehicle backs up. Although not a significant safety concern, this issue is largely addressed by the tests documenting the ability of towing vehicles' service brakes to hold several combinations facing uphill on a 20 percent grade.
(ii)The amount of braking force applied to the trailer brakes is a proportional function of the ratio of the towing vehicle and the trailer weight, and braking inertial forces generated by deceleration of the towing vehicle. Mr. Hansel is correct that, when a combination is backed up an incline, the trailer weight/gravity component could induce a braking effect. The larger inertial force generator is virtually absent. Additionally, some trailers are equipped with surge brakes with mechanisms that allow the operator to lock out the braking effect while backing the trailer. In any case, the Agency does not believe the presence or absence of this device is a safety issue. If the brakes should engage during a backing operation, it most likely would be an annoyance to the operator of these combination vehicles, not a safety issue associated with operating on public roads.
(iii)It is possible for some combination vehicles with air brakes, electric brakes, or the electric over hydraulic system described by Mr. Hansel, to apply the trailer brakes independently, in an effort to address a jack-knife situation. This technique is not easy to use in an emergency. Further, neither the FMVSSs nor the FMCSRs require combination vehicles to have this capability. Surge-braked trailers cannot be faulted for lacking a system that no other trailer is required to have. Surge brakes are designed so that the amount of braking force applied by the trailer brakes is proportional to the effective braking/deceleration of the towing vehicle. Thus, the amount of braking of the trailer adjusts to that of the towing vehicle. If the braking ability of the towing vehicle is limited by the road conditions, so too is the brake-gain of the trailer, thus, preventing lock-up of the trailer brakes. However, in the unlikely case that the trailer brakes locked up, the driver could release them simply by taking his or her foot off the brake pedal, exactly the same technique used with electric or electric over hydraulic trailer brakes. The braking-in-a-turn tests were specifically included to determine the inherent stability of each combination evaluated, i.e., whether there was a tendency to jack-knife. As pointed out in the discussions above regarding the breaking-in-a-turn test results, all combinations tested by EFAA passed this stability test.
(iv)With regard to the possibility of surge brake systems overheating or catching fire going down a steep mountain grade, no such problems have come to the Department's attention as data in either of NHTSA's crash databases (FARS or GES), despite the large number of personal trailers equipped with surge brakes currently in use. This has not been identified as a safety issue in mountainous regions by enforcement personnel in such States. While it is incumbent on the commenter to substantiate claims made, Mr. Hansel did not do so. Thus, FMCSA must conclude that no available empirical data supports his concern.
(b)FMCSA's role is limited to determining whether a braking system meets the safety performance requirements of the FMCSRs. Manufacturers may select any system that complies with Federal standards, including the electric over hydraulic advocated by Mr. Hansel.
(c)Mr. Hansel is correct that the Coalition's testing was performed in dry conditions. This is required by § 393.52(c), which directs that stopping distance tests be performed on a hard surface that is substantially level, dry, smooth, and free of loose material. These are the test conditions that apply to all CMVs, including electric and hydraulic over electric braked trailers.
(d)If the emerging brake technology espoused by Mr. Hansel, electric over hydraulic, meets the FMCSR safety performance standards, this final rule does not preclude its development, marketing, and use. 3. TMA acknowledged that surge brakes are well adapted to the rental market where trailers are towed by a wide variety of vehicles.
(a)TMA expressed general concern, however, that no test results or other evaluations are available to assess how these trailers would perform when towed by air- or hydraulically-braked vehicles with GVWRs exceeding those that were tested by the Coalition. In the absence of performance standards for trailers equipped with surge brake systems, TMA said it was unable to predict with certainty whether overall combination-unit braking performance would be acceptable. Like OSHP, TMA recommended that FMCSA and NHTSA conduct additional research, testing, and evaluation prior to amending the standard to allow the use of surge brakes in interstate commerce.
(b)With regard to stopping distances on public roads, TMA expressed concern over the potential failure of the towing unit's brake system. This would reduce deceleration rates, which in turn would reduce the braking forces generated by the surge-braked trailer, and the net effect would be even longer stopping distances. TMA cited the requirements of S5.1.2 and S5.1.3 of FMVSS No. 105, which set manufacturing standards to deal with partial brake failure and inoperative power assist units, respectively. TMA also drew attention to S5.7 of FMVSS No. 121, which sets emergency brake standards for trucks and buses. The organization acknowledged, however, that FMVSS No. 105 includes no specific test of vehicle performance after brake failure.
(c)TMA expressed concern that users could unwittingly park combination units with gross combination weights
(GCWs)in excess of 40,000-50,000 pounds facing uphill on grades. In these situations, and in others less severe, TMA was concerned that the towing vehicle's parking brake system, which is neither designed nor required to handle that amount of weight, would not be able to hold the combination vehicle stationary. TMA noted that FMCSA's recently revised parking brake requirements at § 393.41 (70 FR 48008) require the following:
(a)Hydraulic-braked vehicles manufactured on or after September 2, 1983. Each truck and bus (other than a school bus) with a GVWR of 4,536 kg (10,000 pounds) or less which is subject to this part and school buses with a GVWR greater than 4,536 kg (10,000 pounds) shall be equipped with a parking brake system as required by FMVSS No. 571.105 (S5.2) in effect at the time of manufacture. The parking brake shall be capable of holding the vehicle or combination of vehicles stationary under any condition of loading in which it is found on a public road (free of ice and snow) (Emphasis added). Hydraulic braked vehicles which were not subject to the parking brake requirements of FMVSS No. 571.105 (S5.2) must be equipped with a parking brake system that meets the requirements of paragraph
(c)of this section. TMA further noted: * * * the new FMCSA requirement, § 393.42(c), which applies to vehicles not subject to FMVSS Nos.105 and 121 on the date of manufacture (which would be the case with all surge-brake trailers since NHTSA made it clear in their most recent revision to FMVSS 105 that it does not apply to hydraulic brake trailers), reads in part: * * * every combination of motor vehicles must be equipped with a parking brake system adequate to hold the vehicle or combination on any grade on which it is operated, under any condition of loading in which it is found on a public road (free of snow and ice). TMA's reference in its December 2, 2005 letter to NHTSA making it clear that FMVSS No. 105 does not apply to trailer parking brakes can be found at (70 FR 37711, June 30, 2005). TMA stated that since the parking brake system of the towing unit is neither required to meet, nor likely to be capable of meeting, this standard by itself, it is not apparent how this requirement could be met, under particularly adverse conditions, without the trailer having some type of parking brake system as well. While air-brake equipped trailers have this capability, TMA noted that trailers equipped with surge brakes—particularly those at the upper end of the proposed allowable weight range—generally do not have parking brake systems.
(d)TMA also pointed out concerns similar to those raised by Mr. Hansel regarding
(i)excessive thermal loading of the towing unit's brakes on a long downhill grade, and
(ii)the ability of a towing vehicle pulling a surge-braked trailer to make an abrupt stop while backing up at any speed above 1-2 mph. *FMCSA Response:*
(a)TMA members manufacture trucks weighing 19,500 pounds or more, which include a relatively higher percentage of air braked vehicles. Although air-braked towing vehicles subject to FMVSS No. 121 were not tested by EFAA, data available in the rulemaking and the additional explanations in this final rule should allay TMA's concerns. The heaviest surge-braked trailer allowed by this final rule has a GVWR of 20,000 pounds. In order to meet the weight ratio specification, the minimum towing vehicle GVWR allowed for that trailer is 16,000 pounds, for a combined GVWR of 36,000 pounds. A higher combined weight rating is possible only if the additional GVWR is in the towing vehicle. Thus, a towing vehicle of 30,000 pounds GVWR would be required in order to achieve a combined GCWR of 50,000 pounds. If it were hydraulically braked, it would be subject to FMVSS No. 105, like the 16,000-pound GVWR towing vehicle, with the same stopping distance requirement. If that towing vehicle were air braked, it would be subject to FMVSS No. 121. It requires the same stopping distance as FMVSS No. 105. Thus, there appears to be no basis for TMA's suggestion that vehicles with higher GVWRs might not match the braking performance of a vehicle with a 16,000-pound GVWR. The Coalition's analysis, based on the model by Klein and Szostak, indicates that the braking performance of a lower GVWR ratio, i.e., a larger towing vehicle in combination with the same 20,000 pound GVWR trailer, would be better. This is because the stopping performance of the combination, including the surge-braked trailer, is dependent on the GVWR ratio of the towing vehicle to the trailer. The lower the ratio of GVWR of a trailer compared to that of the towing vehicle, the better the stopping power of the combination. The GVWR ratio of a 30,000 pound towing vehicle to a 20,000 pound trailer would be less than 1, i.e., 1:0.66. In summary, FMVSS Nos. 105 and 121 have the same requirement for stopping distance. There is no reason to believe that a heavier towing vehicle with or without air brakes, which thus has a GVWR ratio below that required by this rule, would not meet the 40-foot stopping distance required by § 393.52(d), the 30 mph braking-in-a-curve test, and the 20 percent grade-service brake holding test.
(b)We agree with TMA's conclusion that no specific test applies to trailer brake performance after brake failure on the towing vehicle.
(c)TMA correctly noted there is no standard in FMVSS No. 105 that applies to the parking brake capability of hydraulically braked trailers. Neither is there a parking brake standard for electrically braked trailers or for trailers weighing less than 3,000 pounds that are exempted from having any brakes. Only air-braked trailers are subject to a parking brake standard. NHTSA, not FMCSA, has the authority to set manufacturing standards. Any rule requiring retrofitting of parking brakes to trailers already in operation would be prohibitively expensive, and the results of the tests submitted with the petition make it clear there would not be commensurate safety benefits. Section 393.41(c) of the FMCSRs says that the parking brake on combination vehicles must be sufficient to prevent the combination from rolling backward. Although the rule does not further specify the performance standard, such as the grade on which roll-back must be tested, this standard applies to all combinations, including unbraked, electric braked, and surge-braked trailers. TMA's comments give no indication that its members have any parking brake problem for comparable electric-braked trailers, which do not have parking brakes. If manufacturers have no parking brake problem with similar GVWR electric-braked trailers, FMCSA is unable to see why there should be a problem with comparable surge-braked trailers.
(d)As discussed under 2(a)(iv) in response to Mr. Hansel's comments above, no data have been submitted in this rulemaking which supports this theoretical concern. 4. Carlisle elaborated on the points raised by Mr. Hansel and TMA. (a)(i) Carlisle was primarily concerned that testing by EFAA for the Coalition was conducted on dry road surfaces. Carlisle contends that because the coefficient of friction drops with moisture or ice on the road surface, the trailer inertia may act to “push” the towing vehicle, thus, creating conditions where trailer jack-knife is much more likely to occur.
(ii)Carlisle noted that electric and electric over hydraulic trailer brake actuators do not rely on towing vehicle inertia to apply the trailer brakes. In these situations, the trailer brakes are applied at a proportionate rate whenever the towing vehicle brakes are applied. The combined braking of the two units minimizes the likelihood of a jack-knife condition. In addition, unlike surge brakes, the trailer brakes work when the vehicle backs up. (b)(i) Carlisle, like Mr. Hansel, pointed out that alternative braking systems are available from more than one manufacturer, including themselves.
(ii)They also pointed out that most newer towing vehicles are wired for easy installation of in-cab brake controllers.
(c)Carlisle also expressed concern regarding elimination of the requirement, for trailers equipped with surge brakes, of a single control valve capable of operating all of the service brakes.
(d)Carlisle believes that one of the inherent problems with a surge brake system is the inability to verify that the system is working without driving the combination. Like MDSHA/MCD below, Carlisle questioned how a rental customer or enforcement agent could test a trailer to verify that the surge brakes are working. *FMCSA Response:* (a)(i) As mentioned above, the FMCSRs require that brake testing be performed on a hard surface that is substantially level, dry, smooth, and free of loose material. Based on that, the brake-in-a-curve test, not required for trailers even by FMVSS No. 121, was also performed on a comparable surface. FMCSA cannot require surge-braked trailers to meet a different standard than other vehicles.
(ii)It is unclear whether Carlisle is possibly implying that electric or electric over hydraulic brake systems may have a more proportional trailer braking force. Carlisle provided no explanation of what they mean by use of the word “proportionate,” and how their system is more or less safe than surge brakes, or how that relates to jack-knifing. Surge brakes by their physical design apply a braking force proportional to that generated by the towing vehicle, that varies whether empty or loaded to any weight up to its GVWR. In contrast, the brake gain set on the controller for electric and electric over hydraulic brake systems has to be manually adjusted based on the load being carried by trailers equipped with those systems, and the driving conditions. This is a different meaning for the word proportionate. It is not apparent from Carlisle's comments how electric or electric over hydraulic brakes on a trailer would prevent it from jack-knifing in wet or icy conditions. Historically, a major cause of jack-knifing was locking up the brakes on the rear axle of the towing vehicle, now addressed by ABS systems. (b)(i) The availability of alternative braking systems is not germane to determining whether surge brake systems meet FMCSA's safety performance requirements.
(ii)Carlisle's assertion that towing vehicles are wired for easy installation of in-cab electric brake controllers appears to be a reference to the common manufacturing practice of installing wiring harnesses that can accommodate optional equipment, such as a controller for electric trailer brakes. Carlisle fails to mention the cost and difficulty of purchasing and installing a controller in the cab of the towing vehicle. A brake expert on a specific model year truck could perhaps install a controller in 15 minutes. However, thousands of trailer rental companies are unlikely to
(1)have such expertise readily available, or
(2)stock appropriate controllers for all electric brake systems. While the Agency does not consider the installation of electric brake controllers “easy” based on the above, the availability of alternative brake systems is not related to the issue of whether surge brake systems meet the performance requirements of the FMCSRs.
(c)The rule requiring a single control valve (§ 393.49) is designed to enhance safety. The Coalition's petition argued that the actual, operational safety performance of surge-braked trailers demonstrates that this rule need not be applied to surge-braked trailers. FMCSA granted the petition for a rulemaking and via that process has now concluded that surge brakes are safe, when limited to certain GVWR ratios.
(d)Carlisle's concern about the ability of customers and enforcement personnel to verify that the trailer brakes are working was shared by MDSHA/MCD below. There are ways to verify that trailer brakes are operational. The following examples illustrate this: Canada allows surge-braked trailers to be used for commercial purposes. Enforcement officers in the Provinces begin by making a visual inspection of the brake components. They perform the on-road inspection specified for hydraulic brakes in the NAS Out-of-Service criteria. Just as for all other hydraulically braked vehicles, this includes checking for leaks in the hydraulic system, sufficient fluid in the actuator/master-cylinder reservoir, and whether there are any unusual component conditions. Then, if anything in the visual inspection causes concern, it is possible to physically test the trailer's hydraulic brake system. This is because combination vehicles—including trailers equipped with surge brake systems—must also meet the operational brake performance requirement of § 393.43(d) for trailer breakaway and emergency braking. A trailer equipped with surge brakes meets this requirement only if it also includes an emergency release mechanism that would be actuated on a breakaway. The standard design for surge brake actuators is for that emergency breakaway capability to work through the hydraulic actuator to apply the wheel brakes. In some designs the emergency release mechanism can be manually actuated, and a simple determination can then be made whether the brakes are operational, either by attempting to move the trailer, or by jacking up a trailer wheel and attempting to rotate the tire. In other designs, a different procedure is used. Information on applying these approaches is available from the manufacturers of the surge brake actuators. FMCSA is convinced this two-stage inspection procedure is adequate for pre-trip and roadside inspections to insure safety of the braking function. The current NAS Out-of-Service criteria gives nine different items the inspector is to check at the roadside for a vehicle with a hydraulic system. The instructor and student guide give more details on how to carry out inspections for these criteria. Instructions very similar to this already exist in the CVSA NAS Out-of-Service criteria for a Level 1 inspection of electric brakes. The current instructor and student guides for the NAS Out-of-Service criteria read: Electric brakes can be checked for operation by activating a manual control in the cab without activating the tractor's service brakes, and attempting to move the vehicle while the brakes are applied. The Agency will ask CVSA to update the Out-of-Service criteria to reflect this rule's change in the meaning of § 393.48(a), allowing surge brakes, and to provide comparably explicit guidance for inspecting surge-braked trailers as part of the NAS Instructor and Student guides for Inspection criteria. 5. MDSHA/MCD commented that in 2004, Maryland Vehicle Law was modified by working with the trailer manufacturing industry to allow trailers and semi-trailers less than 10,000 pounds equipped with surge brakes to be used on Maryland highways, but limited to combination vehicles in intrastate commerce that would not require a CDL.
(a)MDSHA/MCD takes exception to allowing the use of surge brakes on trailers over 10,000 pounds operated in interstate commerce, contending that the very limited testing of a few vehicle combinations fails to justify revising the standards that currently apply.
(i)MDSHA/MCD states the tests performed were not comprehensive enough and addressed only four towing vehicle and trailer combinations.
(ii)MDSHA/MCD notes that since the NPRM proposed that a trailer may have a GVWR up to 20,000 pounds, a combination vehicle could include larger or smaller types of vehicles, including cargo type vans normally used by small construction and/or landscaping companies. MDSHA/MCD notes that these, as well as other, vehicles were not tested nor was data provided to substantiate that towing vehicles like cargo vans would be able to meet similar requirements for braking in curve from 30 mph, service brakes holding on a 20 percent uphill grade, and straight line stopping distance from 20 mph.
(iii)MDSHA/MCD stated that no tests were conducted using towing vehicles that were not equipped with anti-lock braking systems (ABS).
(iv)MDSHA/MCD contends that the amendments proposed in the NPRM do not address the GCW for the combinations tested, but only the GVWR ratio for the towing units and trailers equipped with surge brakes. MDSHA/MCD believes that the limited testing by the Coalition is not representative of the range of real-world applications.
(b)MDSHA/MCD is concerned that if the proposed amendments are adopted, enforcement personnel would be unable to determine if the surge brake system is working properly. MDSHA/MCD noted that 49 CFR 396.17 provides that periodic inspections shall be conducted covering those “accessories set forth in Appendix G of this subchapter.” However, MDSHA/MCD states that a review of Appendix G fails to reveal any guidance and/or methodology for conducting an inspection of any “surge brake” component to determine that it is working and/or maintained correctly to some unidentified accepted standards, e.g., SAE standards. MDSHA/MCD believes that this omission jeopardizes safety and, absent any guidance, owners and operators have no way of knowing what methods should be employed to assure that the surge brake equipment is functioning properly. (c)(i) MDSHA/MCD, like Carlisle, commented that tests were not conducted on wet or icy surfaces to determine what could potentially occur when surge brakes are applied.
(ii)MDSHA/MCD expressed concern that during brake application under wet or icy road conditions, forward inertia could cause the surge brake to lock up and the operator to lose control of the combination vehicle. With electric or other brakes, by contrast, MDSHA/MCD maintains the operator has the ability to correct a brake lock condition by lifting his/her foot off the brake pedal.
(d)MDSHA/MCD believes that the revisions to § 393.48 are flawed, as the proposed amendment to paragraph
(a)exempts surge brakes; therefore, they do not have to work or be capable of working. MDSHA/MCD contends that § 393.5 needs to be reworded to reflect that a vehicle and combinations must be equipped with brakes that are operative. In addition, MDSHA/MCD believes that wording to the effect that brakes must at all times be capable of operating should not exclude any system regardless of braking type, as does the proposed language. *FMCSA Response:* (a)(i) As explained in the background information, the test data submitted by the Coalition meets what FMCSA believes are reasonable requirements for evaluating the safety performance of trailer surge brake systems. The Coalition's additional analysis for trailers in the range of 14,600 to 20,000 pounds GVWR demonstrates that these trailers, subject to the GVWR ratio limitation of this rule, meet the safety performance criteria for these braking systems. FMCSA has determined that the combination of tests performed and analysis submitted are sufficiently rigorous, and that no further tests or analysis are required to establish this performance.
(ii)The other types of vehicles MDSHA/MCD mentioned, including cargo vans, are normally built on a chassis similar to that of a pick-up truck in that vehicle's class, with similarly sized brake components meeting the FMVSS No. 105 requirement. For example, the light truck tested was a Chevrolet C-1500, which serves as the light truck chassis for the cargo vans built by GM in that model size class. Cargo vans built on light truck chassis have the same braking system and thus stopping ability of the truck chassis they are built on. The agency points out that vehicles like the C-1500 are required by FMVSS No. 105 to have a shorter stopping distance than larger vehicles over 10,000 pounds. Further, for the even smaller cargo vans that are built on a truck chassis like the Chevrolet S-10 pick-up truck, all such vehicles less than 3,500 kilograms (7,716 pounds) are required by FMVSS No. 135 to have the same stopping distance performance as required by FMVSS No. 105 for light trucks over 7,716 pounds and less than 10,000 pounds. The Agency concluded that the braking characteristics of other towing vehicles, such as cargo vans, will be similar to that of the vehicles tested by EFAA. As long as the towing vehicle meets the applicable FMVSS standard, and the combination meets the GVWR ratios of this rule, all evidence demonstrates that such combinations will have braking system performance similar to the vehicles tested by the Coalition.
(iii)As explained above, there is no justification for requiring a different testing standard for surge brakes than for electric brakes. Trucks manufactured before March 1, 1999, when the requirement for ABS brake took effect (see § 393.55), have always been allowed to tow trailers with electric brakes. These vehicles will be equally safe when towing surge-braked trailers, within the GVWR ratios required by this rule.
(iv)MDSHA/MCD may have been confused by the repeated use of the term GVWR in the NPRM. The Coalition tested a variety of simulated GVWR combinations by loading the trailers to different weights. These were selected to be representative of or simulate different GVWR combinations in order to test the safety performance of the associated surge brake systems. The combinations were tested at simulated towing vehicle to trailer weight/GVWR ratios from 1:1 up to 1:2. FMCSA believes that the data provided by the Coalition thoroughly address the concern of MDSHA/MCD that vehicles be tested at a wide range of GCWs.
(b)Since Maryland allows surge brake systems on trailers up to 10,000 pounds GVWR in intrastate commerce, at least some of the larger trailers are used as part of combination vehicles over 10,000 pounds. It appears Maryland felt surge-braked trailers operating in intrastate commerce are safe without needing a roadside inspection program. Such a program is feasible, as the response to Carlisle under section 4(d) above demonstrates. Appendix G to Chapter III, Subchapter B of title 49, identifies hydraulic brake components that must be checked. FMCSA believes inspection of surge brakes should begin with these hydraulic brake components. If compromised components are found by the first stage inspection, it would then be appropriate or necessary to perform a second stage performance inspection. (c)(i) As discussed above under section 2(c) of the Agency's response to Mr. Hansel, the performance regulations require the testing to be conducted under dry conditions.
(ii)The theory that under icy conditions the surge brakes of the trailer could lock up requires an assumption that the towing vehicle has enough friction with the road to create a deceleration force on the trailer actuator. Thus, the towing vehicle would have to have better friction contact with the road than the trailer. While this could momentarily be true, the combination is traveling down the road, and the trailer wheels will encounter exactly the same friction contact that the towing vehicle just passed over. Thus, as the trailer wheels move forward that might have momentarily locked up on ice, they will encounter the greater traction just experienced by the towing vehicle. And as MDSHA/MCD pointed out, the operator has the ability to correct a brake lock condition by lifting his/her foot off the brake pedal.
(d)The MDSHA/MCD expressed concern that the exemption in § 393.48(d) would mean that surge brakes do not have to operate. The NPRM pointed out that surge brakes will still be subject to the performance requirements of § 393.52(d), which served as guidance for the tests performed by the Coalition. The NPRM said: The Agency emphasizes that the granting of the petition for rulemaking, and subsequent proposal to amend §§ 393.48 and 393.49 should not be construed as an exception to the brake performance requirements under § 393.52. Therefore, adoption of a final rule would not relieve motor carriers of their responsibility to ensure that any commercial motor vehicle, or combination of commercial motor vehicles, operated in interstate commerce, comply with the brake performance requirements under § 393.52. The NPRM and this final rule also contain a new § 393.40(b)(5) requiring surge braked trailers to comply with the same existing provisions required for electric brakes. However, to further clarify that the surge brakes must operate, FMCSA has added an additional paragraph to the reformatted § 393.48(d) to read as follows:
(4)The surge brakes must meet the requirements of § 393.40. 6. The American Trucking Associations, Inc. (ATA), on behalf of its members that manufacture commercial vehicles, expressed the same concern as TMA above regarding the lack of parking-brake capability with surge brakes, and the potential that the parking brake system on the towing vehicle could be overloaded, thus, creating a roll-away situation. ATA believes this is reason enough to continue to ban the use of surge brakes on commercial vehicles where they are more likely to be used beyond the towing vehicles' rated capacities. ATA believes that additional parking brake Testing should be completed on situations where the trailer has the maximum proposed gross vehicle weight rating of 1.75 times the weight of the towing vehicle for 12,000 pounds or less, and 1.25 times the weight of the towing vehicle for 12,000-20,000 pounds GVWR to verify if the towing vehicle has the capacity to hold the combined weight. This testing may have to include a variety of makes and models as individual vehicles from different manufacturers can have performance variations. *FMCSA Response:* ATA's concern regarding parking brakes is the same as that addressed in the response to TMA above. 7. Advocates for Highway and Auto Safety (Advocates) opposed the proposed rulemaking on the grounds that FMCSA moved the petition immediately into rulemaking, rather than preliminarily asking for comments and views on the wisdom of changing current regulations to permit this technology. Advocates regards the subject rulemaking proposal both as inadequate and premature, as well as failing to meet the agency's basic responsibilities to conduct its own investigations and make its own determinations about the merits of major changes to its safety regulations. Moreover, the agency has failed to offer this petition for public evaluation in a timely manner through an earlier notice asking for preliminary information that would be relevant to determining whether to propose changes to the FMCSR and exactly what changes are documented by the agency's own tests to be in the public interest to advance motor carrier and commercial vehicle safety. Advocates contend that a proposed rule is not the occasion for requesting comment on whether additional analysis is needed to support the petitioner's assertions. *FMCSA Response:* FMCSA followed established procedures in this rulemaking. Section 389.31, Petitions for Rulemaking, specifies that any interested person may petition the Administrator to establish, amend, or repeal a rule. Each petition filed must set forth the text or substance of the rule or amendment proposed, and include any information or arguments available to support the action. The Coalition filed such a petition, and it contained their requested regulatory changes and their data supporting the safety performance of their request. FMCSA determined in accordance with § 389.33(b) that the petition appeared to have merit, and the Administrator, therefore, notified the Coalition their petition for rulemaking was granted. FMCSA subsequently issued the NPRM, asking for specific data regarding trailers over 14,600 pounds. The NPRM is the official opportunity for the public to provide comments or data relevant to the proposed rule. There is nothing unusual about asking potential commenters who may possess data or analysis to share it with an agency, nor is there any requirement of administrative law that an agency digest and republish for an additional round of comments all data submitted in response to an NPRM. IV. Summary 1. As specified in Part 389, the Surge Brake Coalition submitted a petition for rulemaking containing safety performance test data supporting their contention that surge-braked trailers meet the safety performance requirements of Part 393, and, thus, should not be prescriptively excluded. 2. FMCSA determined that the test data supported the contention of the Coalition, and that a rulemaking on this subject was warranted. Therefore, FMCSA granted the petition for a rulemaking. 3. FMCSA then developed and issued an NPRM putting forth the proposal and asking for any additional information from the public. In particular, FMCSA requested data regarding the safety performance of trailers with a GVWR greater than 14,600 pounds. 4. FMCSA analyzed all information submitted to the docket and developed this final rule specifying that surge-braked trailers subject to the specified GVWR ratios are allowed as part of combination commercial motor vehicles operating in interstate commerce. V. Regulatory Analyses and Notices Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures FMCSA has determined that this action is a significant regulatory action within the meaning of Executive Order 12866 because it is the subject of both a regulatory reform nomination and an industry petition. This rule has generated a significant amount of public interest and has been listed in the 2005 “Regulatory Reform of the U.S. Manufacturing Sector” as published by the Office of Management and Budget. We expect the rule will have minimal costs and small benefits that outweigh the costs. The Agency has prepared a regulatory analysis of the costs and benefits of this rulemaking action. A copy of the analysis is included in the docket referenced at the beginning of this document. Regulatory Flexibility Act In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-612), FMCSA considered the effects of this regulatory action on small entities and determined that this final rule has a minimal, but positive impact on a substantial number of small entities. This is because it removes a regulatory obstacle to the use of surge brakes on small and medium trailers. There are over 150 firms that manufacture trailers, about 300 firms that are in the boat delivery service, thousands of landscape and construction firms that may use trailers, and over 2,000 rental equipment firms that may offer trailers for rent. The majority of these firms are small businesses according to the definition provided by the Small Business Administration. No entity is required to use surge brakes, and those currently using electric or other types of brakes have the option to continue with no change. This final rule allows a braking system that was not allowed in interstate commerce for a number of years. Many businesses use small or medium trailers in their daily operations; if these operations are in interstate commerce, and the vehicle combination meets the definition of CMV (49 CFR 390.5), they are subject to the FMCSRs, which previously did not allow the use of surge brakes. CMVs towing such trailers are most likely to be operated in interstate commerce if the operation is near a State boundary. This final rule establishes uniformity without compromising safety. It removes the dilemma faced by numerous State agencies responsible for motor carrier safety of enforcing Federal regulations prohibiting the use of surge brakes on trailers operated in interstate commerce, while allowing identical trailer combinations to operate on the same roads, under the same conditions, in intrastate commerce. Accordingly, FMCSA certifies that this rule does not have a significant economic impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 This rulemaking does not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, *et seq.* ), that results in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128 million or more in any 1 year. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) In accordance with E.O. 13175, we evaluated possible effects on federally recognized Indian tribes and have determined there are no effects. Executive Order 12988 (Civil Justice Reform) This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 13045 (Protection of Children) FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency determined that this rulemaking does not create an environmental risk to health or safety disproportionately affecting children. Executive Order 12630 (Taking of Private Property) This rulemaking does 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. Executive Order 13132 (Federalism) This action was analyzed in accordance with the principles and criteria contained in Executive Order 13132. The FMCSA determined this rulemaking does not have a substantial direct effect on States, nor does it limit the policy-making discretion of the States. Nothing in this document preempts any State law or regulation. Executive Order 12372 (Intergovernmental Review) The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program. Paperwork Reduction Act This rulemaking does not contain a collection of information requirement for the purposes of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, *et seq.* National Environmental Policy Act The Agency analyzed this action for purposes of the National Environmental Policy Act of 1969 (42 U.S.C. 4321, *et seq.* ) and determined this action does not have an effect on the quality of the environment. However, an environmental assessment
(EA)supporting this conclusion was prepared because the rulemaking is not among the type covered by a categorical exclusion. A copy of the environmental assessment is included in the docket listed at the beginning of this notice. Executive Order 13211 (Energy Effects) The Agency analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use. The Agency determined it would not be a “significant energy action” under that Executive Order because it is not economically significant and does not have a significant adverse effect on the supply, distribution, or use of energy. List of Subjects in 49 CFR Part 393 Highway safety, Motor carriers and Motor vehicle safety. VI. Regulatory Language for the Final Rule In consideration of the foregoing, FMCSA amends title 49, Code of Federal Regulations, chapter III, as follows: PART 393—PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION 1. The authority citation for part 393 continues to read as follows: Authority: Section 1041(b) of Pub. L. 102-240, 105 Stat. 1914; 49 U.S.C. 31136 and 31502; and 49 CFR 1.73. 2. Amend § 393.5 by adding a new definition for “Surge Brake” in alphabetical order to read as follows: § 393.5 Definitions. *Surge Brake.* A self-contained, permanently closed hydraulic brake system for trailers that relies on inertial forces, developed in response to the braking action of the towing vehicle, applied to a hydraulic device mounted on or connected to the tongue of the trailer, to slow down or stop the towed vehicle. 3. Amend § 393.40 by adding paragraph (b)(5), a new specification of “Surge brake systems,” to read as follows: § 393.40 Required brake systems.
(b)* * *
(5)*Surge brake systems.* Motor vehicles equipped with surge brake systems must have a service brake system that meets the applicable requirements of §§ 393.42, 393.48, 393.49, and 393.52 of this subpart. 4. Amend § 393.48 by revising paragraph
(a)and adding paragraph
(d)to read as follows: § 393.48 Brakes to be operative.
(a)*General rule.* Except as provided in paragraphs (b), (c), and
(d)of this section, all brakes with which a motor vehicle is equipped must at all times be capable of operating.
(b)* * *
(c)* * *
(d)*Surge brakes.*
(1)Surge brakes are allowed on:
(i)Any trailer with a gross vehicle weight rating
(GVWR)of 12,000 pounds or less, when its GVWR does not exceed 1.75 times the GVWR of the towing vehicle; and
(ii)Any trailer with a GVWR greater than 12,000 pounds, but less than 20,001 pounds, when its GVWR does not exceed 1.25 times the GVWR of the towing vehicle.
(2)The gross vehicle weight
(GVW)of a trailer equipped with surge brakes may be used instead of its GVWR to calculate compliance with the weight ratios specified in paragraph (d)(1) of this section when the trailer manufacturer's GVWR label is missing.
(3)The GVW of a trailer equipped with surge brakes must be used to calculate compliance with the weight ratios specified in paragraph (d)(1) of this section when the trailer's GVW exceeds its GVWR.
(4)The surge brakes must meet the requirements of § 393.40. 5. Revise § 393.49 to read as follows: § 393.49 Control valves for brakes.
(a)*General rule.* Except as provided in paragraphs
(b)and
(c)of this section, every motor vehicle manufactured after June 30, 1953, which is equipped with power brakes, must have the braking system so arranged that one application valve must when activated cause all of the service brakes on the motor vehicle or combination motor vehicle to operate. This requirement must not be construed to prohibit motor vehicles from being equipped with an additional valve to be used to operate the brakes on a trailer or trailers or as required for busses in § 393.44.
(b)*Driveaway-Towaway Exception.* This section is not applicable to driveaway-towaway operations unless the brakes on such operations are designed to be operated by a single valve.
(c)*Surge brake exception.* This requirement is not applicable to trailers equipped with surge brakes that satisfy the conditions specified in § 393.48(d). Issued on: February 26, 2007. John H. Hill, Administrator. [FR Doc. E7-3815 Filed 3-5-07; 8:45 am] BILLING CODE 4910-EX-P 72 43 Tuesday, March 6, 2007 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Docket Number AMS-TM-06-0222; TM-04-07PR] RIN 0581-AC51 National Organic Program, Sunset Review AGENCY: Agricultural Marketing Service, USDA. ACTION: Proposed rule. SUMMARY: This proposed rule would amend the U.S. Department of Agriculture's
(USDA)National List of Allowed and Prohibited Substances (National List) regulations to reflect recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board
(NOSB)from November 17, 2005 through October 19, 2006. The recommendations addressed in this proposed rule pertain to the continued exemption
(use)and prohibition of 169 substances in organic production and handling. Consistent with the recommendations from the NOSB, this proposed rule would renew 166 of the 169 exemptions and prohibitions on the National List (along with any restrictive annotations), and remove 3 exemptions from the National List. DATES: Comments must be received by May 7, 2007. ADDRESSES: Interested persons may comment on this proposed rule using the following procedures: • *Mail:* Comments may be submitted by mail to: Toni Strother, Agricultural Marketing Specialist, National Organic Program, USDA-AMS-TMP-NOP, 1400 Independence Ave., SW., Room 4008-So., Ag Stop 0268, Washington, DC 20250. • *Internet: www.regulations.gov.* • Written comments on this proposed rule should be identified with the docket number TM-04-07. Commenters should identify the topic and section number of this proposed rule to which the comment refers. • Clearly indicate if you are for or against the proposed rule or some portion of it and your reason for it. Include recommended language changes as appropriate. • Include a copy of articles or other references that support your comments. Only relevant material should be submitted. It is our intention to have all comments to this proposed rule, whether submitted by mail, or Internet, available for viewing on the regulations.gov homepage. Comments submitted in response to this proposed rule will be available for viewing in person at USDA-AMS, Transportation and Marketing, Room 4008-South Building, 1400 Independence Ave., SW., Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday (except official Federal holidays). Persons wanting to visit the USDA South Building to view comments received in response to this proposed rule are requested to make an appointment in advance by calling
(202)720-3252. FOR FURTHER INFORMATION CONTACT: Toni Strother, Agricultural Marketing Specialist, Telephone:
(202)720-3252; Fax:
(202)205-7808. SUPPLEMENTARY INFORMATION: I. Background The Organic Foods Production Act (OFPA), 7 U.S.C. 6501 *et seq.* , authorizes the establishment of the National List of allowed and prohibited substances. The National List identifies synthetic substances (synthetics) that are exempted (allowed) and nonsynthetic substances (nonsynthetics) that are prohibited in organic crop and livestock production. The National List also identifies nonsynthetics and synthetics that are exempted for use in organic handling. The exemptions and prohibitions granted under the OFPA are required to be reviewed every 5 years by the NOSB. The Secretary of Agriculture has authority under the OFPA to renew such exemptions and prohibitions. If they are not reviewed by the NOSB within 5 years of their inclusion on the National List and renewed by the Secretary, their authorized use or prohibition expires. This means that a synthetic substance exempted for use on the National List in 2002 and currently allowed for use in organic production will no longer be allowed for use after October 21, 2007; a non-synthetic substance prohibited from use on the National List in 2002 and currently prohibited from use in organic production will be allowed after October 21, 2007; and a synthetic or nonsynthetic substance exempted for use on the National List and currently allowed for use in organic handling will be prohibited after October 21, 2007. In response to the sunset provisions in the OFPA, the Secretary published an Advanced Notice of Proposed Rulemaking
(ANPR)(70 FR 35177) in the **Federal Register** on June 17, 2005, to announce the review of 174 exemptions and prohibitions authorized under the National Organic Program regulations. This ANPR also requested public comment on the continued use or prohibition of such exemptions and prohibitions. The public comment period lasted 60 days. We received approximately 350 comments. Comments were received from consumers, producers, certifying agents, trade associations, retailers, organic associations, animal welfare organizations, consumer groups, the NOSB, and various industry groups. In general, we received comments urging the current list to remain intact as it currently exists with many providing specific focused support for materials that they promoted, represented, or relied upon. One commenter strongly advocated for a careful review of the materials up for sunset review and not just a blanket approval. In particular, the commenter emphasized the need for additional technical review of the general categories of flavors, colors, vitamins and minerals used in handling; aquatic plant products, fish products, humic acid derivatives, antibiotics used in crops; and chlorine materials used as sanitizers in crops, livestock and handling. The NOSB reviewed the comments received on the ANPR and used the comments to make recommendations to the Secretary regarding the continued use and prohibition of the 169 substances under review. Three meetings were held for the NOSB to deliberate and make recommendations to the Secretary. The first meeting was held on November 16-17, 2005, in Washington, DC. The second meeting was held on April 19-20, 2006, in State College, PA. The third meeting was held on October 17-19, 2006, in Arlington, VA. All three meetings were open to the public and additional comments were received during the meetings. As a result of the November 2005, and 2006 April and October NOSB meetings, the NOSB recommended that the Secretary renew 166 of the 169 exemptions and prohibitions on the National List; and remove 3 exemptions from the National List. These recommendations are limited to those exemptions and prohibitions that were originally included on the National List on October 21, 2002. The Secretary is engaging in this proposed rulemaking to reflect the recommendations of the NOSB, from November 2005, April 2006, and October 2006, and request public comment. Under the authority of the OFPA, as amended, (7 U.S.C. 6501 *et seq.* ), the National List can be amended by the Secretary based on proposed amendments developed by the NOSB. Since established, the National List has been amended four times, October 31, 2003 (68 FR 61987), November 3, 2003 (68 FR 62215), October 21, 2005 (70 CFR 61217) and September 11, 2006 (71 FR 53299). II. Overview of Proposed Amendments From November 17, 2005, through October 19, 2006, the NOSB reviewed 169 exemptions and prohibitions that are authorized on the National List and set to expire on October 21, 2007. [In the ANPR announcing this sunset review of substances (70 FR 35177, June 17, 2005), the original count of substances was quoted at 174 substances; however, there were a number of substances counted in technical error. As a result, the count has been corrected to reflect a total of 169 substances under review during this sunset process.] Using the evaluation criteria specified in the ANPR for sunset review, the NOSB reviewed these exemptions and prohibitions for continued authorization in organic agricultural production and handling. As a result of the NOSB's review, the NOSB recommended that the Secretary renew 166 of the 169 exemptions and prohibitions. In addition, the NOSB recommended that 3 exemptions not be renewed. With respect to the criteria used to make recommendations regarding the continued authorization of exemptions and prohibitions, the NOSB agreed that decision making would be based on public comments and applicable supporting evidence that expressed a continued need for the use or prohibition of the substance(s). Concerning criteria used to make recommendations regarding the discontinuation of an authorized exempted synthetic substance or prohibited nonsynthetic substance, the NOSB agreed that decision making, for the exempted synthetic substance, would be based on public comments and applicable supporting evidence that demonstrated the currently authorized exempted or prohibited substance is
(a)harmful to human health or the environment,
(b)not necessary to the production of the agricultural products because of the availability of wholly nonsynthetic substitute products, or
(c)inconsistent with organic farming and handling. In the case of recommendations to discontinue prohibitions of nonsynthetic substances, the NOSB agreed that decision making would be based on public comments and applicable supporting evidence demonstrating that the prohibited nonsynthetic substance is no longer harmful to human health or the environment and is consistent and compatible with organic practices. Renewals After considering all public comments and supporting evidence, the NOSB determined that 166 out of the 169 exemptions and prohibitions demonstrated a continued need for authorization in organic agricultural production and handling. Based on the recommendations from the NOSB concerning substances identified for review under this sunset review process, this proposed rule would amend the USDA's National regulations (7 CFR part 205) to renew exemptions and prohibitions of the following substances in organic agricultural production and handling (use categories and any restrictive annotations remain unchanged, but have been omitted from this overview): Section 205.601 Synthetic Substances Allowed for Use in Organic Crop Production 1. Ethanol. 2. Isopropanol. 3. Calcium hypochlorite. 4. Chlorine dioxide. 5. Sodium hypochlorite. 6. Hydrogen peroxide. 7. Soap-based algicide/demossers. 8. Herbicides, soap-based. 9. Newspaper or other recycled paper, without glossy or colored inks. 10. Plastic mulch and covers. 11. Newspapers or other recycled paper, without glossy or colored inks. 12. Soaps, ammonium. 13. Ammonium carbonate. 14. Boric acid. 15. Elemental sulfur. 16. Lime sulfur-including calcium polysulfide. 17. Oils, horticultural-narrow range oils as dormant, suffocating, and summer oils. 18. Soaps, insecticidal. 19. Sticky traps/barriers. 20. Pheromones. 21. Sulfur dioxide. 22. Vitamin D <sup>3</sup> . 23. Copper hydroxide. 24. Copper oxide. 25. Copper oxychloride. 26. Copper sulfate. 27. Hydrated lime. 28. Hydrogen peroxide. 29. Lime sulfur. 30. Oils, horticultural, narrow range oils as dormant, suffocating, and summer oils. 31. Potassium bicarbonate. 32. Elemental sulfur. 33. Streptomycin. 34. Tetracycline (oxytetracycline calcium complex). 35. Aquatic plant extracts (other than hydrolyzed). 36. Elemental sulfur. 37. Humic acids. 38. Lignin sulfonate. 39. Magnesium sulfate. 40. Soluble boron products. 41. Sulfates. 42. Carbonates. 43. Oxides. 44. Silicate of zinc. 45. Silicate of copper. 46. Silicate of iron. 47. Silicate of manganese. 48. Silicate of molybdenum. 49. Silicate of selenium. 50. Silicate of cobalt. 51. Liquid fish products. 52. Vitamin B <sup>1</sup> . 53. Vitamin C. 54. Vitamin E. 55. Ethylene gas. 56. Lignin sulfonate. 57. Sodium silicate. 58. EPA List 4-Inerts of Minimal Concern. Section 205.602 Nonsynthetic Substances Prohibited for Use in Organic Crop Production 1. Ash from manure burning. 2. Arsenic. 3. Lead salts. 4. Potassium chloride. 5. Sodium fluoaluminate (mined). 6. Sodium nitrate. 7. Strychnine. 8. Tobacco dust (nicotine sulfate). Section 205.603 Synthetic Substances Allowed for Use in Organic Livestock Production 1. Ethanol. 2. Isopropanol. 3. Aspirin. 4. Vaccines. 5. Chlorhexidine. 6. Calcium hypochlorite. 7. Chlorine dioxide. 8. Sodium hypochlorite. 9. Electrolytes. 10. Glucose. 11. Glycerine. 12. Hydrogen peroxide. 13. Iodine. 14. Magnesium sulfate. 15. Oxytocin. 16. Ivermectin. 17. Phosphoric acid. 18. Copper sulfate. 19. Iodine. 20. Lidocaine. 21. Lime, hydrated. 22. Mineral oil. 23. Procaine. 24. Trace minerals. 25. Vitamins. 26. EPA List 4-Inerts of Minimal Concern. Section 205.604 Nonsynthetic Substances Prohibited for Use in Organic Livestock Production 1. Strychnine. Section 205.605 Nonagricultural (Nonorganic) Substances Allowed as Ingredients In or On Processed Products Labeled As “Organic” or “Made With Organic (Specified Ingredients or Food Groups(s))”
(a)Nonsynthetics allowed: 1. Alginic acid. 2. Citric acid. 3. Lactic acid. 4. Bentonite. 5. Calcium carbonate. 6. Calcium chloride. 7. Carageenan. 8. Dairy cultures. 9. Diatomaceous earth. 10. Enzymes. 11. Flavors. 12. Kaolin. 13. Magnesium sulfate. 14. Nitrogen-oil-free grades. 15. Oxygen-oil-free grades. 16. Perlite. 17. Potassium chloride. 18. Potassium iodide. 19. Sodium bicarbonate. 20. Sodium carbonate. 21. Carnauba wax. 22. Wood resin wax. 23. Autolysate yeast. 24. Bakers yeast. 25. Brewers yeast. 26. Nutritional yeast. 27. Smoked yeast.
(b)Synthetics allowed: 1. Alginates. 2. Ammonium bicarbonate. 3. Ammonium carbonate. 4. Ascorbic acid. 5. Calcium citrate. 6. Calcium hydroxide. 7. Monobasic calcium phosphates. 8. Dibasic calcium phosphates. 9. Tribasic calcium phosphates. 10. Carbon dioxide. 11. Calcium hypochlorite. 12. Chlorine dioxide. 13. Sodium hypochlorite. 14. Ethylene. 15. Ferrous sulfate. 16. Monoglycerides. 17. Diglycerides. 18. Glycerin. 19. Hydrogen peroxide. 20. Lecithin—bleached. 21. Magnesium carbonate. 22. Magnesium chloride. 23. Magnesium stearate. 24. Nutrient vitamins. 25. Nutrient minerals. 26. Ozone. 27. Pectin (low-methoxy). 28. Phosphoric acid. 29. Potassium acid tartrate. 30. Potassium carbonate. 31. Potassium citrate. 32. Potassium hydroxide. 33. Potassium iodide. 34. Potassium phosphate. 35. Silicon dioxide. 36. Sodium citrate. 37. Sodium hydroxide. 38. Sodium phosphates. 39. Sulfur dioxide. 40. Tocopherols. 41. Xanthan gum. Section 205.606 Nonorganically Produced Agricultural Products Allowed as Ingredients In or On Processed Products Labeled as “Organic” 1. Cornstarch (native). 2. Gums—water extracted only (arabic, guar, locust bean, carob bean). 3. Kelp—for use only as a thickener and dietary supplement. 4. Lecithin—unbleached. 5. Pectin (high-methoxy). Nonrenewals Based on recommendations from the NOSB concerning substances identified for review under this sunset review process, this proposed rule would amend the USDA's National List to remove exemptions (and any restrictive annotations) for the following substances in organic agricultural production and handling: Section 205.603 Synthetic Substances Allowed for Use in Organic Livestock Production Milk replacers without antibiotics, as emergency use only, no nonmilk products or products from BST treated animals. A milk replacer is a formula (powdered or liquid) designed to take the place of natural mother's milk by supplying the nutritional needs of the baby animal during the critical, early nursing stage of its life. Milk replacers traditionally contain milk-based ingredients as their major source of protein. However, as more milk proteins are being used by the human food industry, milk proteins are becoming more and more expensive to source. The NOP regulations, at § 205.237(a), state that “The producer of an organic livestock operation must provide livestock with a total feed ration composed of agricultural products, including pasture and forage, that are organically produced and, if applicable, organically handled: *Except* , That, nonsynthetic substances and synthetic substances allowed under § 205.603 may be used as feed additives and supplements.” In relation to this requirement, the National List, at § 205.603(c), provides that nonorganic milk replacers, without antibiotics and not from nonmilk products or products from Bovine somatotropin treated animals may be used, for emergency use only, as a feed supplement in organic livestock production. Due to the concern for the commercial availability of organic milk at the time of publication of the NOP regulations (December 21, 2000), this exemption was considered necessary to protect the interests of organic livestock producers and the health of organic young calves. In reviewing public comments and evidence regarding the continued authorization of the use of milk replacers in organic agricultural livestock production, the NOSB determined that nonorganic milk replacers should no longer be permitted for use in organic livestock production. The NOSB based their decision on input and testimonies from organic livestock producers which stated that the use of such nonorganic agricultural feed supplements were not a necessity or widely utilized in organic livestock production. They also suggested that organic milk is commercially available and should be used to feed young animals that may need to be fed a milk replacer during their early stages of development. Since the full implementation of the NOP regulations and approximately four years of certified organic livestock production under such regulations, commenters expressed that there were not many emergency cases that justified the use of nonorganic milk replacers above organic milk in the production of organic dairy animals. There were a few comments that suggested that nonorganic milk replacers should remain available for use in organic livestock production. Such comments provided that it would be more expensive to use organic milk as a milk replacer than nonorganic milk because organic milk is a highly valued commodity for human consumption. Therefore, it would present more of an economic challenge to farmers to feed saleable organic milk to an animal, rather than selling the milk for human consumption. After considering all input from the public and any applicable evidence, the NOSB maintained that nonorganic milk replacers should no longer be permitted as an authorized substance for use in organic livestock production, due to the availability of organic milk and the requirements in the regulations that require the feeding of organic agricultural feed to organically produced livestock. Therefore, the Secretary accepts the NOSB's recommendation and proposes not to renew the exemption for the use of nonorganic milk replacers in § 205.603(c) of the National List. Section 205.605 Nonagricultural (Nonorganic) Substances Allowed as Ingredients In or On Processed Products Labeled as “Organic” or “Made With Organic (Specified Ingredients or Food Groups(s))” Colors-nonsynthetic sources only. The NOSB voted not to renew the exemption to permit the use of nonsynthetic colors in organic handling. In considering whether to renew the exemption of nonsynthetic colors, many concerns were raised for the NOSB. First, the NOSB reflected on the fact that the OFPA states that the National List, established by the Secretary, shall be based upon a proposed National List or proposed amendments to the National List developed by the NOSB. In relation to that provision of the OFPA, the NOSB was made aware that nonsynthetic colors never received a formal recommendation by the NOSB to be included on the National List. Nonsynthetic colors were erroneously included in the final rule. As a result, the NOSB received several comments to remove the category of nonsynthetic colors from the National List, as nonsynthetic colors should be evaluated by the NOSB through the petition process. Secondly, the NOSB took comments into account that raised concern about how the broad category of “nonsynthetic colors” produces difficulty in determining and verifying what colors are truly nonsynthetic versus synthetic and how such ambiguity could give rise to the use of inappropriate substances in organically handled products. In addition, the NOSB also deliberated on the historical fact that nonsynthetic colors had been permitted for use by the organic industry for over five years. As a result, commenters raised a general concern that removing nonsynthetic colors from the National List could cause a disruption in the manufacture of organic products in the organic handling sector. Taking all of these concerns into consideration, the NOSB decided that it would not affirm or deny the re-authorization of nonsynthetic colors on the National List at its April 2006 meeting. Instead, the NOSB decided that it would provide the industry a window of opportunity to petition the addition of nonsynthetic colors on the National List before the finalization of the Sunset Review process. As of the October 2006 meeting, nine individual and groups of colors had been petitioned for consideration as nonsynthetic on § 205.605(a), and as agricultural, but not commercially available as organic, on § 205.606, of the National List. In addition, the NOSB considered that in the absence of an initial recommendation from the NOSB to permit the addition of nonsynthetic colors as a broad category that they could not continue to permit the exemption of nonsynthetic colors on § 205.605(a). As a result, the NOSB voted not to renew the exemption of nonsynthetic colors on § 205.605(a) and that they not be permitted for use in organic handling. Therefore, the Secretary accepts the NOSB's recommendation and proposes not to renew the exemption for the use of colors, nonsynthetic on § 205.605(a) of the National List. Potassium tartrate made from tartaric acid. The NOSB recommended to remove “Potassium tartrate made from tartaric acid” from § 205.605(b) of the National List. The NOP regulations, at § 205.605(b), authorize the use of Potassium tartrate made from tartaric acid in organic handling. Comments were submitted concerning the continued need for this authorization. Based on information received through public comment, the NOSB learned that Potassium tartrate made from tartaric acid is not a term/substance formally recognized or authorized by the Food and Drug Administration
(FDA)in food processing and is improperly identified on the National List. Comments suggested that the authorization for Potassium tartrate made from tartaric acid be removed from the National List and be properly referenced as “Potassium acid tartrate,” (21 CFR 184.1077), which is already an exempted substance on the National List. Research demonstrates that the original intent of the NOSB, in 1995, was to authorize the use of “Potassium tartrate” (also known as Potassium acid tartrate) in organic handling; however, when the NOSB made its recommendation to the Secretary, its recommendation included language suggesting the Secretary authorize the use of “Potassium acid tartrate (or potassium tartrate made from tartaric acid)” on the National List for organic handling. As a result of the NOSB recommendation, the NOP, when finalizing the National List in December 2000, included both references of the substance (Potassium acid tartrate and Potassium tartrate made from tartaric acid) on the National List and created a situation of unnecessary duplication, as the terms were meant to be synonymous. Therefore, the inclusion of the term “Potassium tartrate made from tartaric acid” was included in technical error, considering the fact that the FDA regulations do not authorize its use, but, instead, authorize the use of “potassium acid tartrate”. Accordingly, in response to the NOSB's recommendation to remove “Potassium tartrate made from tartaric acid” from the National List at § 205.605(b), the Secretary accepts the NOSB's recommendation and proposes not to renew the exemption. III. Related Documents One advanced notice of proposed rulemaking with request for comments was published in **Federal Register** Notice 70 FR 35177, June 17, 2005, to make the public aware that the allowance of 169 synthetic and non-synthetic substances in organic production and handling will expire, if not reviewed by the NOSB and renewed by the Secretary. IV. Statutory and Regulatory Authority The OFPA, as amended (7 U.S.C. 6501 *et seq.* ), authorizes the Secretary to make amendments to the National List based on proposed amendments developed by the NOSB. Sections 6518(k)(2) and 6518(n) of OFPA authorize the NOSB to develop proposed amendments to the National List for submission to the Secretary and establish a petition process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. The National List petition process is implemented under § 205.607 of the NOP regulations. The current petition process (65 FR 43259, July 13, 200) can be accessed through the NOP Web site at *http://www.ams.usda.gov/nop.* A. Executive Order 12866 This action has been determined not significant for purposes of Executive Order 12866, and therefore, has not been reviewed by the Office of Management and Budget. B. Executive Order 12988 Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations in order to avoid unduly burdening the court system. This proposed rule is not intended to have a retroactive effect. States and local jurisdictions are preempted under § 2115 of the OFPA (7 U.S.C. 6514) from creating programs of accreditation for private persons or State officials who want to become certifying agents of organic farms or handling operations. A governing State official would have to apply to USDA to be accredited as a certifying agent, as described in § 2115(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under §§ 2104 through 2108 of the OFPA (7 U.S.C. 6503 through 6507) from creating certification programs to certify organic farms or handling operations unless the State programs have been submitted to, and approved by, the Secretary as meeting the requirements of the OFPA. Pursuant to § 2108(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)), a State organic certification program may contain additional requirements for the production and handling of organically produced agricultural products that are produced in the State and for the certification of organic farm and handling operations located within the State under certain circumstances. Such additional requirements must:
(a)Further the purposes of the OFPA,
(b)not be inconsistent with the OFPA,
(c)not be discriminatory toward agricultural commodities organically produced in other States, and
(d)not be effective until approved by the Secretary. Pursuant to § 2120(f) of the OFPA (7 U.S.C. 6519(f)), this proposed rule would not alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601 *et seq.* ), the Poultry Products Inspections Act (21 U.S.C. 451 *et seq.* ), or the Egg Products Inspection Act (21 U.S.C. 1031 *et seq.* ), concerning meat, poultry, and egg products, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301 *et seq.* ), nor the authority of the Administrator of EPA under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 *et seq.* ). Section 2121 of the OFPA (7 U.S.C. 6520) provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under this title that adversely affects such person or is inconsistent with the organic certification program established under this title. The OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision. C. Regulatory Flexibility Act The Regulatory Flexibility Act
(RFA)(5 U.S.C. 601 *et seq.* ) requires agencies to consider the economic impact of each rule on small entities and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Pursuant to the requirements set forth in the RFA, the Agricultural Marketing Service
(AMS)performed an economic impact analysis on small entities in the final rule published in the **Federal Register** on December 21, 2000 (65 FR 80548). The AMS has also considered the economic impact of this action on small entities. The impact on entities affected by this proposed rule would not be significant. The effect of this proposed rule would be to allow the continued use of most substances currently listed for use in organic agricultural production and handling. The AMS concludes that this action would have minimal economic impact on small agricultural service firms. Accordingly, USDA certifies that this rule will not have a significant economic impact on a substantial number of small entities. Small agricultural service firms, which include producers, handlers, and accredited certifying agents, have been defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $6,500,000 and small agricultural producers are defined as those having annual receipts of less than $750,000. This proposed rule would have an impact on a substantial number of small entities. The U.S. organic industry at the end of 2001 included nearly 6,949 certified organic crop and livestock operations. These operations reported certified acreage totaling more than 2.09 million acres of organic farm production. Data on the numbers of certified organic handling operations (any operation that transforms raw product into processed products using organic ingredients) were not available at the time of survey in 2001; but they were estimated to be in the thousands. By the end of 2004, the number of certified organic crop, livestock, and handling operations totaled nearly 11,400 operations. Based on 2003 data, certified organic acreage increased to 2.2 million acres. The U.S. sales of organic food and beverages have grown from $1 billion in 1990 to an estimated $12.2 billion in 2004. Organic food sales were projected to reach $14.5 billion in 2005; total U.S. organic sales, including nonfood uses, were expected to reach $15 billion in 2005. The organic industry is viewed as the fasting growing sector of agriculture, representing 2 percent of overall food and beverage sales. Since 1990, organic retail sales have historically demonstrated a growth rate between 20 to 24 percent each year. This growth rate is projected to decline and fall to a rate of 5 to 10 percent in the future. In addition, USDA has accredited 95 certifying agents provide certification services to producers and handlers. A complete list of names and addresses of accredited certifying agents may be found on the AMS NOP Web site, at *http://www.ams.usda.gov/nop.* AMS believes that most of these entities would be considered small entities under the criteria established by the SBA. D. Paperwork Reduction Act No additional collection or recordkeeping requirements are imposed on the public by this proposed rule. Accordingly, OMB clearance is not required by section 350(h) of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, *et seq.* , or OMB's implementing regulations at 5 CFR part 1320. The AMS is committed to compliance with the Government Paperwork Elimination Act (GPEA), which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. E. General Notice of Public Rulemaking This proposed rule reflects recommendations submitted to the Secretary by the NOSB for the continuation of 166 exemptions and prohibitions contained on the National List of Allowed and Prohibited Substances. This proposed rule also reflects recommendations by the NOSB to discontinue 3 exemptions contained on the National List. A 60-day period for interested persons to comment on this rule is provided. List of Subjects in 7 CFR Part 205 Administrative practice and procedure, Agriculture, Animals, Archives and records, Imports, Labeling, Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation. For the reasons set forth in the preamble, 7 CFR part 205, Subpart G is proposed to be amended as follows: PART 205—NATIONAL ORGANIC PROGRAM 1. The authority citation for 7 CFR part 205 continues to read as follows: Authority: 7 U.S.C. 6501-6522. 2. Section 205.603 is revised to read as follows: § 205.603 Synthetic substances allowed for use in organic livestock production. In accordance with restrictions specified in this section the following synthetic substances may be used in organic livestock production:
(a)As disinfectants, sanitizer, and medical treatments as applicable.
(1)Alcohols.
(i)Ethanol—disinfectant and sanitizer only, prohibited as a feed additive.
(ii)Isopropanol—disinfectant only.
(2)Aspirin—approved for health care use to reduce inflammation.
(3)Biologics—Vaccines.
(4)Chlorhexidine—Allowed for surgical procedures conducted by a veterinarian. Allowed for use as a teat dip when alternative germicidal agents and/or physical barriers have lost their effectiveness.
(5)Chlorine materials—disinfecting and sanitizing facilities and equipment. Residual chlorine levels in the water shall not exceed the maximum residual disinfectant limit under the Safe Drinking Water Act.
(i)Calcium hypochlorite.
(ii)Chlorine dioxide.
(iii)Sodium hypochlorite.
(6)Electrolytes—without antibiotics.
(7)Glucose.
(8)Glycerine—Allowed as a livestock teat dip, must be produced through the hydrolysis of fats or oils.
(9)Hydrogen peroxide.
(10)Iodine.
(11)Magnesium sulfate.
(12)Oxytocin—use in postparturition therapeutic applications.
(13)Paraciticides. Ivermectin—prohibited in slaughter stock, allowed in emergency treatment for dairy and breeder stock when organic system plan-approved preventive management does not prevent infestation. Milk or milk products from a treated animal cannot be labeled as provided for in subpart D of this part for 90 days following treatment. In breeder stock, treatment cannot occur during the last third of gestation if the progeny will be sold as organic and must not be used during the lactation period for breeding stock.
(14)Phosphoric acid—allowed as an equipment cleaner, *Provided,* That, no direct contact with organically managed livestock or land occurs.
(b)As topical treatment, external parasiticide or local anesthetic as applicable.
(1)Copper sulfate.
(2)Iodine.
(3)Lidocaine—as a local anesthetic. Use requires a withdrawal period of 90 days after administering to livestock intended for slaughter and 7 days after administering to dairy animals.
(4)Lime, hydrated—as an external pest control, not permitted to cauterize physical alterations or deodorize animal wastes.
(5)Mineral oil—for topical use and as a lubricant.
(6)Procaine—as a local anesthetic, use requires a withdrawal period of 90 days after administering to livestock intended for slaughter and 7 days after administering to dairy animals.
(c)As feed supplements. None.
(d)As feed additives.
(1)DL-Methionine, DL-Methionine-hydroxy analog, and DL-Methionine-hydroxy analog calcium—for use only in organic poultry production until October 21, 2008.
(2)Trace minerals, used for enrichment or fortification when FDA approved.
(3)Vitamins, used for enrichment or fortification when FDA approved.
(e)As synthetic inert ingredients as classified by the Environmental Protection Agency (EPA), for use with nonsynthetic substances or a synthetic substances listed in this section and used as an active pesticide ingredient in accordance with any limitations on the use of such substances.
(1)EPA List 4—Inerts of Minimal Concern.
(2)[Reserved]
(f)through
(z)[Reserved] § 205.605 [Amended] 3. In § 205.605, the substance “colors, nonsynthetic sources only” is removed from paragraph
(a)and the substance “Potassium tartrate made from tartaric acid” is removed from paragraph (b). Dated: February 28, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-3829 Filed 3-5-07; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27359; Directorate Identifier 2006-NM-042-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747-100, 747-100B, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP Series Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain Boeing Model 747-100, 747-100B, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. This proposed AD would require repetitive high frequency eddy current inspections for cracks of the fuselage skin at stringer 5 left and right between stations 340 and 350, and corrective actions if necessary. This proposed AD results from reports of fatigue cracks in the fuselage skin near stringer 5 between stations 340 and 350. We are proposing this AD to detect and correct fatigue cracking of the fuselage skin near stringer 5. Cracks in this area could join together and result in in-flight depressurization of the airplane. DATES: We must receive comments on this proposed AD by April 20, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • *DOT Docket Web site:* Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • *Fax:*
(202)493-2251. • *Hand Delivery:* Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207, for the service information identified in this proposed AD. FOR FURTHER INFORMATION CONTACT: Ivan Li, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6437; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27359; Directorate Identifier 2006-NM-042-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://dms.dot.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov.* Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov,* or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion We have received a report indicating that, during inspections on certain Boeing Model 747 airplanes, four operators found fatigue cracks in the fuselage skin at stringer 5, between stations 340 and 350. The airplanes had flown 18,000 to 20,000 total flight cycles. The cracks that were found ranged in length from a single crack of 0.25 inch to multiple cracks that were equivalent to a 10-inch long crack. Skin cracks in this area could join together and result in in-flight depressurization of the airplane. Other Relevant Rulemaking On January 16, 1990, we issued AD 90-06-06, amendment 39-6490 (55 FR 8374, March 7, 1990), for certain Boeing Model 747 series airplanes. That AD requires the incorporation of certain structural modifications (reference Boeing Service Bulletin 747-53-2272, Revision 12, dated December 22, 1988, identified in Boeing Document No. D6-35999). We issued that AD to prevent structural failure of the affected airplanes. One of the required modifications of AD 90-06-06 ends the repetitive inspections of certain structures that would also be required by this proposed AD. On April 1, 2005, we issued AD 2005-08-01, amendment 39-14053 (70 FR 18290, April 11, 2005), for certain Boeing Model 747 series airplanes. That AD requires repetitive inspections; repetitive external detailed inspections for cracks or loose or missing fasteners of certain body skin on the left and right sides of the airplane; an internal detailed inspection for cracking of certain left- and right-side frames and adjacent skin; repetitive high-frequency eddy current
(HFEC)inspections of certain body frames between certain body stations; and repairs if necessary. We issued that AD to detect and correct fatigue cracks in the body frames, skin, and other internal structures in fuselage section 41, which could lead to rapid decompression and loss of the structural integrity of the airplane. Paragraph
(s)of AD 2005-08-01 refers to Boeing Service Bulletin 747-53-2272, dated January 12, 1987, and any revision through Revision 18, dated May 16, 2002, as the appropriate source of service information for accomplishing the terminating action described in that AD. That terminating action ends the repetitive inspections of certain structures that would also be required by this proposed AD. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006 (referred to hereafter as “the alert service bulletin”). For airplanes that do not have external skin doublers installed around the left- and right-side Number 3 flight deck windows in accordance with Boeing Service Bulletin 747-53-2272, the alert service bulletin describes procedures for repetitive HFEC inspections for cracks of the external surface of the fuselage skin at stringer 5 left and right, between stations 340 and 350. The alert service bulletin specifies that the HFEC inspections be done at the compliance times specified in the following table. Compliance Times for HFEC Inspections Airplane group Airplane condition Initial compliance time (whichever occurs later) Repetitive interval (not to exceed) Group 1 Fewer than 16,000 total flight cycles Before accumulating 16,000 total flight cycles or within 2,000 flight cycles 1 4,000 flight cycles. 16,000 or more total flight cycles Before accumulating 18,000 total flight cycles or within 250 flight cycles 1 None. Group 2 Fewer than 20,000 total flight cycle Before accumulating 20,000 total flight cycles or within 2,000 flight cycles 1 4,000 flight cycles. 20,000 or more total flight cycles Before accumulating 22,000 total flight cycles or within 250 flight cycles 1 None. 1 After the date on the alert service bulletin. The alert service bulletin also describes corrective actions to be done if any crack is found. If the total length of all cracks found is less than 1.0 inch, corrective actions include stop drilling the crack or cracks; and, either installing external skin doublers around the Number 3 flight deck window, or installing a temporary external structural repair manual
(SRM)skin repair. If the total length of all cracks found is 1.0 inch or longer, corrective actions include trimming the cracked area of skin and installing a filler; and, either installing external skin doublers around the Number 3 flight deck window and installing a tripler, or installing a temporary external SRM skin repair. The alert service bulletin specifies that the corrective actions should be done before further flight. The alert service bulletin refers to Boeing Service Bulletin 747-53-2272 (currently at Revision 18, dated May 16, 2002) as an additional source of service information for installing the external skin doublers around the left- and right-side Number 3 flight deck windows. For Group 2 airplanes only: The alert service bulletin describes installing external skin doublers around the left- and right-side Number 3 flight deck windows before accumulating 24,000 total flight cycles or within 250 flight cycles after the effective date of the alert service bulletin, whichever occurs later. This constitutes terminating action for the repetitive HFEC inspections specified in this NPRM. For Group 1 airplanes only: AD 90-06-06 requires installation of external skin doublers around the Number 3 flight deck windows in accordance with Boeing Service Bulletin 747-53-2272, Revision 12, dated December 22, 1988, at or before 20,000 total flight cycles. This constitutes terminating action for the repetitive HFEC inspections specified in this NPRM. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and Alert Service Bulletin.” Difference Between the Proposed AD and Alert Service Bulletin The alert service bulletin specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways: • Using a method that we approve; or • Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings. Clarification of Reporting Although the alert service bulletin discusses reporting inspection results, the Accomplishment Instructions of the alert service bulletin do not specify sending such a report to Boeing. This proposed AD would not require such reporting. Costs of Compliance There are about 281 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 92 airplanes of U.S. registry. The proposed inspection would take about 4 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed inspection for U.S. operators is $29,440, or $320 per airplane, per inspection cycle. For Group 2 airplanes (about 4 of U.S. registry), the mandatory terminating action for the repetitive inspections would take about 1,240 work hours, 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 terminating action for U.S. operators is $396,800, or $99,200 per airplane. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by adding the following new airworthiness directive (AD): **Boeing:** Docket No. FAA-2007-27359; Directorate Identifier 2006-NM-042-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 20, 2007. Affected ADs
(b)AD 90-06-06, amendment 39-6490, paragraph A., requires installation of external skin doublers in the area near the flight deck windows for Group 1 airplanes, which ends the repetitive high-frequency eddy current
(HFEC)inspections required by this AD only for those airplanes. Installing external skin doublers as required by paragraph
(g)of this AD ends certain repetitive inspections of the fuselage skin required by paragraph
(f)of AD 2005-08-01, amendment 39-14053, only for the area near the flight deck windows modified by the external skin doublers. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006. Unsafe Condition
(d)This AD results from reports of fatigue cracks in the fuselage skin near stringer 5 between body stations 340 and 350. We are issuing this AD to detect and correct fatigue cracking of the fuselage skin near stringer 5. Cracks in this area could join together and result in in-flight depressurization of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Inspections and Corrective Actions
(f)For any airplane that has not had external skin doublers installed around the left- or right-side Number 3 flight deck window in accordance with Boeing Service Bulletin 747-53-2272, Revision 18, dated May 16, 2002, or an earlier revision: Do the applicable actions described in paragraphs (f)(1) and (f)(2) of this AD. Do all the actions in and in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006. Do the actions at the compliance times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2542, dated February 16, 2006, on the side(s) of the airplane on which the doubler installation has not been done; except where the service bulletin specifies compliance times after the date on the service bulletin, this AD requires compliance times after the effective date of this AD. Installing external skin doublers around the left- or right-side Number 3 flight deck windows in accordance with Boeing Service Bulletin 747-53-2272, Revision 18, or an earlier revision; ends the repetitive HFEC inspections required by this paragraph on the side of the airplane on which the doubler is installed. After the effective date of this AD, only Boeing Service Bulletin 747-53-2272, Revision 18, may be used to install the external skin doublers around the left- and right-side Number 3 flight deck windows.
(1)Do a HFEC inspection for cracks of the fuselage skin at stringer 5, between body stations 340 and 350; and do all applicable corrective actions before further flight.
(2)Repeat the HFEC inspection thereafter at the applicable interval specified in paragraph 1.E. of Boeing Alert Service Bulletin 747-53A2542. Terminating Action
(g)For Group 2 airplanes only: Before accumulating 24,000 total flight cycles, or within 250 flight cycles after the effective date of the AD, whichever occurs later, install external skin doublers around the left- and right-side Number 3 flight deck windows; in accordance with Boeing Service Bulletin 747-53-2272, Revision 17, dated November 18, 1999; or Revision 18, dated May 16, 2002. After the effective date of this AD, only Boeing Service Bulletin 747-53-2272, Revision 18, may be used to accomplish the doubler installation around the left- and right-side Number 3 flight deck windows. Accomplishing this action ends the repetitive inspections required by paragraph
(f)of this AD. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested in accordance with the procedures found in 14 CFR 39.19.
(2)Before using any AMOC approved in accordance with § 39.19 on any airplane to which the AMOC applies, notify the appropriate principal inspector in the FAA Flight Standards Certificate Holding District Office.
(3)An AMOC that provides an acceptable level of safety may be used for any repair required by this AD, if it is approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization who has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on February 23, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-3842 Filed 3-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2006-25658; Directorate Identifier 2006-NM-054-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Model A318, A319, A320, and A321 Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: The FAA is revising an earlier NPRM for an airworthiness directive
(AD)that applies to certain Airbus Model A318, A319, A320, and A321 airplanes. The original NPRM would have superseded an existing AD that currently requires repetitive detailed inspections of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and corrective actions if necessary. The original NPRM proposed to add airplanes to the applicability in the existing AD and change the inspection type. The original NPRM resulted from a determination that certain airplanes must be included in the applicability of the AD, and that the inspection type must be revised. This new action revises the original NPRM by including airplanes that were inadvertently excluded from the applicability. We are proposing this supplemental NPRM to detect and correct wear of the inboard flap trunnions, which could lead to loss of flap surface control and consequently result in the flap detaching from the airplane. A detached flap could result in damage to the tail of the airplane. DATES: We must receive comments on this supplemental NPRM by April 2, 2007. ADDRESSES: Use one of the following addresses to submit comments on this proposed AD. • DOT Docket web site: Go to *http://dms.dot.gov* and follow the instructions for sending your comments electronically. • Government-wide rulemaking web site: Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • Mail: Docket Management Facility; U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590. • Fax:
(202)493-2251. • Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Contact Airbus, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, for service information identified in this supplemental NPRM. FOR FURTHER INFORMATION CONTACT: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-2125; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to submit any relevant written data, views, or arguments regarding this proposal. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2006-25658; Directorate Identifier 2006-NM-054-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this supplemental NPRM. We will consider all comments received by the closing date and may amend this supplemental NPRM in light of those comments. We will post all comments submitted, without change, to *http://dms.dot.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this supplemental NPRM. Using the search function of that web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78), or you may visit *http://dms.dot.gov* . Examining the Docket You may examine the AD docket on the Internet at *http://dms.dot.gov* , or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone
(800)647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in ADDRESSES . Comments will be available in the AD docket shortly after the Docket Management System receives them. Discussion The FAA issued a notice of proposed rulemaking
(NPRM)(the “original NPRM”) to amend 14 CFR part 39 to include an AD that supersedes AD 2006-04-06, amendment 39-14487 (71 FR 8439, February 17, 2006). The original NPRM applies to certain Airbus Model A318, A319, A320, and A321-100 airplanes. The original NPRM was published in the **Federal Register** on August 22, 2006 (71 FR 48838). The original NPRM proposed to continue to require repetitive detailed inspections of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and corrective actions if necessary. The original NPRM also proposed to add airplanes to the applicability in the existing AD and change the inspection type. Actions Since Original NPRM Was Issued We have determined that the original NPRM should have applied to certain Airbus Model A318 airplanes, and all Airbus Model A319, A320, and A321-111, -112, and -131 airplanes. In the original NPRM, we stated that we were adding Model A321-211 and -231 airplanes; however, the applicability was inadvertently changed to Model A318, A319, A320, and A321 airplanes on which Airbus Modification 26495 has been incorporated in production. The change resulted in the airplanes identified in paragraph
(f)of the original NPRM (Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, and -131 airplanes; except those on which Airbus Modification 26495 has been accomplished in production) being excluded from the applicability of the original NPRM. We have changed the applicability in this supplemental NPRM to certain Airbus Model A318 airplanes, and “all” Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, and -231 airplanes. Relevant Service Information Airbus has issued Service Bulletins A320-27-1117, Revision 03, dated August 24, 2001; and Revision 04, dated November 6, 2001. (Airbus Service Bulletin A320-27-1117, Revision 02, dated January 18, 2000, was referenced in the original NPRM as the appropriate source of service information for accomplishing the modification.) Airbus has also issued Airbus Service Bulletin A320-57-1133, Revision 01, dated August 7, 2006. (Airbus Service Bulletin A320-57-1133, dated July 28, 2005, was referenced in the original NPRM as the appropriate source of service information for accomplishing the inspections.) The changes in these revisions are minor and no additional work is necessary for airplanes modified by the previous issues. We have changed the AD to refer to this revised service information as the appropriate source of service information for accomplishing the required actions. In addition, we have added new paragraphs
(k)and
(l)to this AD to provide credit for accomplishing the actions before the effective date of this AD in accordance with the service information referenced in the original NPRM. Subsequent paragraphs have been re-identified accordingly. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. Comments We have considered the following comments on the original NPRM. Support for the NPRM Airbus supports the original NPRM. Request To Incorporate/Publish Certain Information The Modification and Replacement Parts Association (MARPA) states that, frequently, airworthiness directives 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 airworthiness directive, 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 notes that since the interpretation of a document is a question of law, and not fact, a service document not incorporated by reference will not be considered in a legal finding of the meaning of an airworthiness directive. MARPA is concerned that the failure to incorporate essential service information could result in a court decision invalidating the airworthiness directive. 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 (“Replacement and modification parts”) of the Federal Aviation Regulations (14 CFR 21.303). MARPA adds that the distribution to owners may, when the owner is a financing or leasing institution, not actually reach the persons responsible for accomplishing the airworthiness directive. 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. We intend that the final rule in this action will incorporate by reference the documents necessary for the accomplishment of the proposed 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. Additionally, we do not publish service documents in DMS. We are currently reviewing our practice of publishing proprietary service information. 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. However, we consider that to delay this AD action for that reason would be inappropriate, since we have determined that an unsafe condition exists and that the requirements in this AD must be accomplished to ensure continued safety. Therefore, we have not changed the supplemental NPRM in this regard. Clarification of Compliance Times and Applicability of Paragraphs
(g)and (j)(2) of This Supplemental NPRM We have changed paragraphs
(g)and (j)(2) of this supplemental NPRM (paragraph (i)(2) of the original NPRM) to specify the “applicable” compliance times in the subparagraphs. Paragraphs (g)(2) and (j)(2)(ii) of this supplemental NPRM are applicable only to airplanes that have not had Airbus Modification 26495 done in production. Revised Applicability in Paragraph
(g)of This Supplemental NPRM We have changed the applicability in paragraph
(g)of this supplemental NPRM for clarity and we have added Model A320-111 airplanes, which were inadvertently excluded from that paragraph in the original NPRM. Paragraph
(g)is applicable to all airplanes identified in the existing AD, and Model A320-111 airplanes are included in that applicability. FAA's Determination and Proposed Requirements of the Supplemental NPRM The changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM. Costs of Compliance The following table provides the estimated costs for U.S. operators to comply with this supplemental NPRM. Estimated Costs Action Work hours Average labor rate per hour Parts Cost per airplane Number of U.S.-registered airplanes Fleet cost Modification in AD 2006-04-06 14 $80 The manufacturer states that it will supply required parts to operators at no cost $1,120 755 $845,600. Detailed inspection in AD 2006-04-06 2 80 None $160, per inspection cycle 755 $120,800, per inspection cycle. General visual inspection (new action) 1 80 None $80, per inspection cycle 741 $59,280, per inspection cycle. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The Federal Aviation Administration
(FAA)amends § 39.13 by removing amendment 39-14487 (71 FR 8439, February 17, 2006) and adding the following new airworthiness directive (AD): **Airbus:** Docket No.: FAA-2006-25658; Directorate Identifier 2006-NM-054-AD. Comments Due Date
(a)The FAA must receive comments on this AD action by April 2, 2007. Affected ADs
(b)This AD supersedes AD 2006-04-06. Applicability
(c)This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.
(1)Airbus Model A318-111 and -112 airplanes on which Airbus Modification 26495 has been incorporated in production.
(2)All Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, -131, -211, and -231 airplanes. Unsafe Condition
(d)This AD results from a determination that certain airplanes must be included in the applicability of the AD, and that the inspection type must be revised. We are issuing this AD to detect and correct wear of the inboard flap trunnions, which could lead to loss of flap surface control and consequently result in the flap detaching from the airplane. A detached flap could result in damage to the tail of the airplane. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done. Restatement of Requirements of AD 2006-04-06 Modification
(f)For Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, and -131 airplanes; except those on which Airbus Modification 26495 has been accomplished in production: Within 18 months after January 8, 2001 (the effective date of AD 2000-24-02, amendment 39-12009), modify the sliding panel driving mechanism of the flap drive trunnions, in accordance with Airbus Service Bulletin A320-27-1117, Revision 02, dated January 18, 2000; or Revision 04, dated November 6, 2001. As of the effective date of this AD, only Revision 04 may be used. Note 1: Accomplishment of the modification required by paragraph
(f)of this AD before January 8, 2001, in accordance with Airbus Service Bulletin A320-27-1117, dated July 31, 1997; or Revision 01, dated June 25, 1999; is acceptable for compliance with that paragraph. Detailed Inspections
(g)For Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; Model A320-111 airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321-111, -112, and -131 airplanes: At the latest of the applicable times specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, do a detailed inspection of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and do any corrective actions, as applicable, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-57-1133, dated July 28, 2005; or Revision 01, dated August 7, 2006; except as provided by paragraph
(p)of this AD. As of the effective date of this AD, only Revision 01 may be used. Any corrective actions must be done at the compliance times specified in Figures 5 and 6, as applicable, of the service bulletin; except as provided by paragraphs (m), (n), and
(o)of this AD. Repeat the inspection thereafter at intervals not to exceed 4,000 flight hours until the inspection required by paragraph
(j)of this AD is done. Note 2: For the purposes of this AD, a detailed inspection is: “An intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.”
(1)Before accumulating 4,000 total flight hours on the inboard flap trunnion since new.
(2)Within 4,000 flight hours after accomplishing paragraph
(f)of this AD.
(3)Within 600 flight hours after March 24, 2006 (the effective date of AD 2006-04-06). New Requirements of This AD Modification
(h)For Model A321-211 and -231 airplanes, except those on which Airbus Modification 26495 has been accomplished in production: Within 18 months after the effective date of this AD, modify the sliding panel driving mechanism of the flap drive trunnions, in accordance with Airbus Service Bulletin A320-27-1117, Revision 04, dated November 6, 2001.
(i)Accomplishing the modification specified in paragraph
(h)of this AD is acceptable for compliance with the requirements of that paragraph if done before the effective date of this AD in accordance with the applicable service bulletin identified in Table 1 of this AD. Table 1.—Airbus Service Bulletins Service Bulletin Revision level Date A320-27-1117 Original July 31, 1997. A320-27-1117 Revision 01 June 25, 1999. A320-27-1117 Revision 02 January 18, 2000. A320-27-1117 Revision 03 August 24, 2001. General Visual Inspections
(j)For all airplanes: At the time specified in paragraph (j)(1) or (j)(2) of this AD, as applicable, do a general visual inspection of the inboard flap trunnions for any wear marks and of the sliding panels for any cracking at the long edges, and do all applicable corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Airbus Service Bulletin A320-57-1133, Revision 01, dated August 7, 2006; except as provided by paragraph
(p)of this AD. All corrective actions must be done at the compliance times specified in Figures 5 and 6, as applicable, of the service bulletin; except as provided by paragraphs (m), (n), and
(o)of this AD. Repeat the inspection thereafter at intervals not to exceed 4,000 flight hours. Accomplishment of the general visual inspection required by this paragraph terminates the detailed inspection requirement of paragraph
(g)of this AD. Note 3: For the purposes of this AD, a general visual inspection is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.”
(1)For airplanes on which the detailed inspection required by paragraph
(g)of this AD has been done before the effective date of this AD: Inspect before accumulating 4,000 total flight hours on the inboard flap trunnion since new, or within 4,000 flight hours after accomplishing the most recent inspection required by paragraph
(g)of this AD, whichever occurs later.
(2)For airplanes other than those identified in paragraph (j)(1) of this AD: Inspect at the latest of the applicable times specified in paragraphs (j)(2)(i), (j)(2)(ii), and (j)(2)(iii) of this AD.
(i)Before accumulating 4,000 total flight hours on the inboard flap trunnion since new.
(ii)Within 4,000 flight hours after accomplishing paragraph
(f)or
(h)of this AD.
(iii)Within 600 flight hours after the effective date of this AD. Actions Accomplished According to Previous Issue of Service Bulletins
(k)Accomplishment of the modification required by paragraph
(f)of this AD before the effective date of this AD, in accordance with Airbus Service Bulletin A320-27-1117, Revision 03, dated August 24, 2001, is acceptable for compliance with the requirements of that paragraph.
(l)Accomplishment of the inspections required by paragraph
(j)of this AD before the effective date of this AD, in accordance with Airbus Service Bulletin A320-57-1133, dated July 28, 2005, is acceptable for compliance with the requirements of that paragraph. Compliance Times
(m)Where Airbus Service Bulletins A320-57-1133, dated July 28, 2005; and Revision 01, dated August 7, 2006; specify replacing the sliding panel at the next opportunity if damaged, replace it within 600 flight hours after the inspection required by paragraph
(g)or
(j)of this AD, as applicable.
(n)If any damage to the trunnion is found during any inspection required by paragraph
(g)or
(j)of this AD, before further flight, do the corrective actions specified in Airbus Service Bulletin A320-57-1133, dated July 28, 2005; or Revision 01, dated August 7, 2006. As of the effective date of this AD, only Revision 01 may be used. Grace Period Assessment
(o)Where Airbus Service Bulletins A320-57-1133, dated July 28, 2005; and Revision 01, dated August 7, 2006; specify contacting the manufacturer for a grace period assessment after replacing the trunnion or flap, contact the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; the Direction Ge´ne´rale de l'Aviation Civile; or the European Aviation Safety Agency (or its delegated agent); for the grace period assessment. No Reporting Requirement
(p)Although Airbus Service Bulletins A320-57-1133, dated July 28, 2005; and Revision 01, dated August 7, 2006; specify to submit certain information to the manufacturer, this AD does not include that requirement. Alternative Methods of Compliance (AMOCs) (q)(1) The Manager, International Branch, ANM-116, 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 14 CFR 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
(r)French airworthiness directive F-2005-139, dated August 3, 2005, also addresses the subject of this AD. Issued in Renton, Washington, on February 23, 2007. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-3841 Filed 3-5-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF THE INTERIOR Minerals Management Service 30 CFR Part 250 RIN 1010-AD12 Oil and Gas and Sulphur Operations on the Outer Continental Shelf (OCS)—Oil and Gas Production Requirements AGENCY: Minerals Management Service (MMS), Interior. ACTION: Proposed rule. SUMMARY: MMS proposes to amend the regulations regarding oil and natural gas production. This is a complete rewrite of these regulations, addressing issues such as production rates, burning oil, and venting and flaring natural gas. The proposed rule would eliminate most restrictions on production rates and clarify flaring and venting limits. The proposed rule was written using plain language, so it will be easier to read and understand. DATES: Submit comments by June 4, 2007. MMS may not fully consider comments received after this date. Submit comments to the Office of Management and Budget on the information collection burden in this rule by April 5, 2007. ADDRESSES: You may submit comments on the rulemaking by any of the following methods. Please use the Regulation Identifier Number
(RIN)1010-AD12 as an identifier in your message. See also Public Comment Procedures under Procedural Matters. • MMS's Public Connect on-line commenting system, *https://ocsconnect.mms.gov* . Follow the instructions on the Web site for submitting comments. • Federal eRulemaking Portal: *http://www.regulations.gov* . Follow the instructions on the Web site for submitting comments. • E-mail MMS at *rules.comments@mms.gov.* Use RIN 1010-AD12 in the subject line. • Fax: 703-787-1546. Identify with the RIN, 1010-AD12. • Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Rules Processing Team (RPT); 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Oil and Gas Production Requirements, 1010-AD12” in your comments and include your name and return address. • Send comments on the information collection in this rule to: Interior Desk Officer 1010-AD12, Office of Management and Budget; 202/395-6566 (facsimile); e-mail: *oira_docket@omb.eop.gov.* FOR FURTHER INFORMATION CONTACT: Amy C. White, Regulations and Standards Branch, 703-787-1665. SUPPLEMENTARY INFORMATION: This rule proposes to revise subpart K, Oil and Gas Production Rates, of 30 CFR 250. The new version of subpart K would represent a major change in the structure and readability of the regulation with some changes in the requirements. This revision would eliminate some requirements that are no longer necessary in today's industry and clarify other requirements. Some of these revisions are based on a Government Accountability Office
(GAO)report on natural gas flaring and venting. GAO Report In July 2004, the GAO issued a report on world-wide emissions from vented and flared natural gas titled, “Natural Gas Flaring and Venting—Opportunities to Improve Data and Reduce Emissions” (GAO-04-809). This report is available on the GAO Web site at: *http://www.gao.gov/new.items/d04809.pdf.* This report reviewed the flaring and venting data available, the extent of flaring and venting, their contributions to greenhouse gas emissions, and opportunities for the federal government to reduce flaring and venting. The report found that: • The amount of gas emitted through flaring and venting worldwide is small compared with global natural gas production and represents a small portion of greenhouse gas emissions. • Worldwide flaring and venting is estimated to contribute, respectively, about 4 percent of the total methane and about 1 percent of the total carbon dioxide emissions caused by human activity. • EIA [Energy Information Administration] estimates that the United States flares or vents about 0.4 percent of its production, representing only 3 percent of the world's total amount of natural gas flared and vented. • In the United States, there are well-developed natural gas markets and infrastructure to reduce the flaring and venting of associated natural gas. • Since 1990, the quantity of oil produced has increased, but because of various global reduction initiatives, the quantity of natural gas flared and vented has remained constant. Consequently, natural gas emissions as a percentage of oil production have decreased. • Since the impact of methane (venting) on the earth's atmosphere is about 23 times greater than that of carbon dioxide (flaring), a small change in the ratio of flaring to venting could cause a disproportionate change in the impact of emissions. The report concluded that more accurate records on flaring and venting are needed to determine the amount of the resource that is lost and the volume of greenhouse gas emissions these practices contribute to the atmosphere each year. The GAO made two recommendations to the Secretary of the Interior:
(1)“Consider the cost and benefit of requiring that companies flare the natural gas, whenever possible, when flaring or venting is necessary,” and
(2)“consider the cost and benefit of requiring that companies use flaring and venting meters to improve oversight.” In addition, there was a recommendation to the Secretary of Energy to consider, “in consultation with EPA [Environmental Protection Agency], MMS, and BLM [Bureau of Land Management], how to best collect separate statistics on flaring and venting.” In comments on the draft report, the Department of the Interior
(DOI)concurred with the report's recommendations and agreed to assess the cost effectiveness of requiring the oil and gas industry to implement these changes. MMS conducted analyses to assess the costs and benefits of requiring flare/vent meters and also of requiring flaring instead of venting. The first analysis supported the recommendation to require meters provided that the facilities process more than 2,000 barrels of oil per day (BOPD). This requirement is included in the proposed rule. The second analysis indicated that a regulatory change to require flaring instead of venting may be appropriate. However, the cost of implementing this requirement is significant, and input from potentially affected parties is necessary to establish a reasonable threshold. MMS plans to work directly with interested parties to determine the best approach in considering the GAO recommendation to require flaring instead of venting natural gas. We are soliciting comments on this issue in this proposed rule. We would like comments related to additional costs, environmental impacts, and conditions or situations where flaring may not be advisable. We are planning a workshop to discuss the issue. The workshop would be followed by appropriate rulemaking. To improve data collection, as the GAO report suggested, MMS is proposing that operators report flaring and venting volumes to MMS separately. Currently, MMS only collects information on the total natural gas flared and vented. Operators do not need to differentiate between the two categories. In addition, MMS inspectors currently use infrared cameras to verify natural gas venting. Proposed Rule Organization The proposed rule would completely restructure subpart K. The new version is divided into shorter, easier-to-read sections. Each section focuses on one topic instead of the arrangement in the current version, which covers multiple topics in each section. For example, in the current edition of subpart K, the regulations regarding burning liquid hydrocarbons, as well as those governing flaring or venting natural gas, are in one section. In the proposed rule, these same requirements are in five sections, making it easier for an operator to find the information that applies to its particular situation. The numbering for subpart K would start at § 250.1150 instead of § 250.1100 to accommodate other planned rulemaking. The proposed structure is shown in the following table: Current rule Proposed rule § 250.1100 Definitions for production rates § 250.105 Definitions. § 250.105 Definitions. § 250.1101 General requirements and classification of reservoirs § 250.1150 General reservoir production requirements. § 250.1154 How do I determine if my reservoir is sensitive? § 250.1155 What information must I submit for sensitive reservoirs? § 250.1156 What steps must I take to receive approval to produce within 500 feet of a unit or lease line? § 250.1157 How do I receive approval to produce gas from an oil reservoir with an associated gas cap? § 250.1102 Oil and gas production rates Requirements for production rates are largely eliminated. Portions retained were combined with new information in “§ 250.1159 May the Regional Supervisor limit my well or reservoir production rates?” § 250.1103 Well production testing § 250.1151 How often must I conduct well production tests? § 250.1152 How do I conduct well tests? § 250.1104 Bottomhole pressure survey § 250.1153 When must I conduct a static bottomhole pressure survey? § 250.1105 Flaring or venting of gas and burning liquid hydrocarbons § 250.1160 When may I flare or vent gas? § 250.1161 When may I flare or vent gas for extended periods of time? § 250.1162 When may I burn produced liquid hydrocarbons? § 250.1163 How must I measure gas flaring or venting and liquid hydrocarbon burning volumes and what records must I maintain? § 250.1164 What are the requirements for flaring or venting gas containing H 2 S? § 250.1106 Downhole commingling § 250.1158 How do I receive approval to downhole commingle hydrocarbons? § 250.1107 Enhanced oil and gas recovery operations § 250.1165 What must I do for enhanced recovery operations? New § 250.1159 May the Regional Supervisor limit my well or reservoir production rates? § 250.1166 What additional reporting is required for developments in the Alaska Region? § 250.1167 What information must I submit for approvals? The organization of the proposed rule reflects the actual sequence of events that occurs as wells are developed and the resources produced. The proposed rule is written in plain language to conform to the DOI's standards for rule writing. These changes include incorporating tables, using a question format for section headings, and using pronouns. These changes would make the rule easier to understand. Finally, a table at the end of the rule lists the information that operators would have to submit to MMS to receive approvals for various operations. Major Changes to the Rule Some requirements from the previous edition of subpart K would be eliminated by the proposed rule because they are unnecessary in today's petroleum industry. For example, MMS required operators to establish maximum production rates (MPR's) for producing well completions, and maximum efficient rates (MER's) for producing reservoirs, in OCS Order No. 11 in 1974, during a period of oil shortages and energy crises. In 1988, MMS reduced the MER requirement. Currently, MER's are required only on sensitive reservoirs (primarily oil reservoirs with associated gas caps). Determining and maintaining production rates imposes a significant burden on operators. Based on the past 30 years of experience, MMS has concluded that maximum rate requirements and production balancing requirements can be largely eliminated without significant detriment to efforts for conservation and maximization of ultimate recovery. However, the proposed rule would allow the Regional Supervisor to set production rates in cases where excessive production could harm ultimate recovery from the reservoir. The proposed rule would clarify required information submittals to MMS, including requirements relating to the documents submitted to MMS and the timing of those submissions. For example, there is additional guidance on notifying adjoining operators regarding production within 500 feet of a common lease or unit line. The proposed rule would provide more detail as to when the notification must occur, what the notice must include, and how to verify the notification with MMS. The proposed rule would incorporate several Notices to Lessees and Operators
(NTLs)that clarify the current regulations. These NTLs would be obsolete if the proposed rule becomes final and MMS would withdraw all of these NTLs at that time. However, if necessary, MMS would issue additional NTLs to provide guidance. The NTLs affected include: • NTL No. 97-16, “Production Within 500 Feet of a Unit or Lease Line,” effective August 1, 1997. This NTL clarifies MMS policy on issuing approvals for production within 500 feet of a unit or lease line, and includes details on what the requesting operator needs to provide to MMS for approval. Those details are addressed in the proposed rule. • NTL No. 98-23, “Interim Reporting Requirements for 30 CFR 250, subpart K, Oil and Gas Production Rates,” effective October 15, 1998. This NTL addressed oral approvals for gas flaring and relaxed some of the requirements regarding production rates, including MER and MPR in certain circumstances. The NTL clarified the submittal of written summary letters on flaring incidents that received oral approval. These requirements are addressed in the proposed rule. • NTL No. 99-G20, “Downhole Commingling Applications,” effective September 7, 1999. This NTL was issued in conjunction with NTL No. 99-G19. It clarifies what information the applicant needs to include in downhole commingling applications to ensure that the application is processed without delay. These information requirements were added to the proposed rule. • NTL No. 2006-N06, “Flaring and Venting Approvals,” effective December 19, 2006. This NTL clarifies the definitions of flaring and venting, the record-keeping requirements, the classification of emitted natural gas, and the MMS policy regarding continuous flaring or venting of small volumes of oil-well gas or gas-well gas from storage vessels or other low-pressure production vessels when the gas cannot be economically recovered. These issues are addressed in the proposed rule. This NTL also provides contact information for each Region and provides sample field records. These two items are not addressed in the proposed rule. MMS would issue a new NTL to include only this information, after we publish the final rule. The most significant change, with regard to cost, would be a proposed requirement for natural gas flare/vent meters on facilities that process significant volumes of oil. The current MMS requirements rely heavily on the accuracy of operator calculations and record keeping. Recent incidents have shown that these methods are insufficient to accurately capture actual flaring and venting volumes. The proposed rule would require the installation of meters to accurately measure all flared and vented natural gas on facilities that process more than 2,000 BOPD. These facilities have the potential to flare or vent significant volumes of associated gas. MMS estimates the cost of purchasing and installing these meters to be $77,000 per facility. Limiting the requirement to facilities that process over 2,000 BOPD ensures that the meters are a small expense relative to the cost of operating those facilities and relative to the income generated by those facilities; and that the requirement would not be an unfair burden to small operators. MMS estimates that 34 operators would have to install the meters on 112 facilities. Of those operators that would have to install the meters, nine are considered small businesses, according to the North American Industry Classification System (NAICS). The July 2004 GAO report on world-wide emissions from vented and flared natural gas, discussed above, recommended that more accurate records on flaring and venting are needed to determine the amount of the resource that is wasted, and the volume of greenhouse gas these practices contribute to the atmosphere each year. The report recommended that DOI consider requiring flare/vent meters to measure the gas lost. MMS agrees with that recommendation. However, MMS believes installing these meters on facilities that process less than 2,000 BOPD would not be cost effective, and might be an undue burden on smaller operators. MMS is also proposing to add new definitions for “flaring” and “venting” to 30 CFR part 250 subpart A, and to revise the definition for “sensitive reservoir.” The following is a brief section-by-section description of the substantive proposed changes to subpart K: *§ 250.105 Definitions* . In the current rule, definitions appear in subpart A at 30 CFR 250.105 and in subpart K at 30 CFR 250.1100. MMS proposes removing the definitions from subpart K because they already appear in subpart A. General *§ 250.1150 What are General Reservoir Production Requirements?* Because the first section of subpart K would no longer contain the definitions, this section would contain the general requirements for producing wells and reservoirs. Well Tests and Surveys *§ 250.1151 How often must I conduct well production tests?* Well production testing is required for all wells. This proposed section defines when an operator must perform the tests and describes the conditions for the tests. This section would cover well flow potential tests, semi-annual well tests, and any special tests that the Regional Supervisor may require. Operators would no longer be required to submit Semiannual Well Test Reports within 45 days of the tests. Instead, they would submit the reports within 45 days after the end of the calendar half-year. This would allow operators to submit all their well tests at one time and include the most recent tests for those few completions that produced during the 6-month period, but were not tested within the last 45 days. *§ 250.1152 How do I conduct well tests?* This proposed section describes how operators must conduct a well test. The testing procedures would be the same as in the current version of the rule. However, the section would be reformatted to make the procedures easier to follow. This reformatting would include the procedure for ensuring that the well is stabilized before conducting the test; the required duration of the test; the usage of correction factors and adjustments; and an option to use other procedures with approval from the Regional Supervisor. It also discusses conducting additional tests that the Regional Supervisor may require. *§ 250.1153 When must I conduct a static bottomhole pressure survey?* Static bottomhole pressure surveys are required on all new producing reservoirs, and annually on reservoirs with three or more producing completions. This proposed section addresses when operators must conduct static bottomhole pressure surveys and what information operators must submit to MMS. The proposed new provision would allow the operator to request a departure from this requirement from the Regional Supervisor, with appropriate justification. Classifying Reservoirs *§ 250.1154 How do I determine if my reservoir is sensitive?* MMS requires that operators classify all reservoirs as either sensitive or non-sensitive. A sensitive reservoir is a reservoir in which high reservoir production rates would decrease ultimate recovery. This section would define the requirements for classifying reservoirs; when the Regional Supervisor may reclassify a reservoir; and when an operator may or must request reclassification of a reservoir. There are not substantive changes between the requirements of the current version of the rule and the proposed; this section would be reorganized and easier to read. *§ 250.1155 What information must I submit for sensitive reservoirs?* This proposed section defines what information MMS requires for sensitive reservoirs and when operators must submit that information. The only proposed change is that the Regional Supervisor may request that the operator submit Form MMS-127 (Sensitive Reservoir Information Report) and supporting information. Approvals Prior to Production *§ 250.1156 What steps must I take to receive approval to produce within 500 feet of a unit or lease line?* In the current version of subpart K, a number of requirements, including approval for producing within 500 feet of a unit or lease line and basic classification requirements, are included in one section, 30 CFR 250.1101. In the proposed rule, each of these issues is addressed in a separate section. Title 30 CFR 250.1156 would address only the approval and service fee for producing within 500 feet of a lease or unit line. The proposed approval requirements are clearer than in the current rule, and include issues addressed in NTL 97-16. In addition to receiving approval from the Regional Supervisor, operators must notify operators of adjacent leases. The requirement to notify adjacent operators would be clearer, and there is a list of information the notification would have to include. *§ 250.1157 How do I receive approval to produce gas from an oil reservoir with an associated gas cap?* This section would address how to receive approval to produce from an associated gas cap and its service fee. The required supporting information is listed in the table at proposed 30 CFR 250.1167 at the end of the rule. *§ 250.1158 How do I receive approval to downhole commingle hydrocarbons?* This section would address how to obtain MMS approval to downhole commingle hydrocarbons and the service fee that must accompany your request. For downhole commingling in a competitive reservoir, the operator would be required to notify the operators of all leases that contain the reservoir. The request for approval must document this notification. Operators of the other leases would have 30 days after the notification to provide the Regional Supervisor with letters of acceptance or objection. If the notified operators do not respond within the specified period, the Regional Supervisor will assume the operators do not object. The Regional Supervisor will consider any objections, but may approve the commingling request to protect correlative rights. This section would also incorporate issues addressed in NTL's No. 99-G19 and 99-G20. Production Rates *§ 250.1159 May the Regional Supervisor limit my well or reservoir production rates?* Generally, this proposed rule would eliminate MPR's and MER's. However, this section would retain the Regional Supervisor's authority to set an MPR for a producing well completion or an MER for a sensitive reservoir. If the Regional Supervisor sets an MPR or MER, it would be subject to the terms and conditions set by the Regional Supervisor. Those terms and conditions would include production restrictions that allow for normal variations and fluctuations in production rates. Flaring, Venting, and Burning Hydrocarbons *§ 250.1160 When may I flare or vent gas?* The current regulation contains all of the flaring, venting, and burning regulations in one section. The proposed rule covers these in separate sections, so it is easier to find the requirements for a given situation. The new format also allows for the inclusion of more detail and clarification of flaring and venting situations that are not described in the current rule. Since there are many situations under which flaring and venting might occur, the table in this section reflects general categories that encompass the situations under which MMS would allow flaring or venting without approval from the Regional Supervisor. Under most circumstances, the proposed rule would allow operators to treat gas flashing from gas-well condensate similar to oil-well gas for flaring and venting approval purposes. The proposed rule would require operators to receive approval before flaring or venting gas in volumes higher than those specified in their previously-approved plans. This would enable MMS to ensure that flaring and venting activities are in compliance with environmental laws. The proposed rule would also allow the Regional Supervisor to specify flaring and venting volume limits (in addition to time limits) in order to prevent air quality degradation or the loss of reserves. This is sometimes necessary because offshore production facilities are now capable of flaring or venting extremely large volumes in a short amount of time. *§ 250.1161 When may I flare or vent gas for extended periods of time?* This section would define when operators must receive approval from the Regional Supervisor to flare or vent gas for an extended period of time. If there is a need to flare or vent a small amount of gas (less than 10 MCF per day) due to improperly working valves or pipe fittings and the Regional Supervisor determines that it is prudent to postpone the repair until a scheduled facility shutdown occurs, then the proposed rule would allow the Regional Supervisor to exempt the amount flared or vented from the time limits set in § 250.1160. *§ 250.1162 When may I burn produced liquid hydrocarbons?* The regulations on burning produced liquid hydrocarbon would not change. Operators must receive approval from the Regional Supervisor in all cases before burning liquid hydrocarbons. *§ 250.1163 How must I measure gas flaring or venting volumes, and liquid hydrocarbon burning volumes; and what records must I maintain?* Requirements for measuring and keeping records on flaring, venting, and burning would change. The proposed rule would require vent/flare meters on all facilities that process more than 2,000 BOPD. Operators would be required to install these meters within 120 days after the final rule is published. This extended time frame is to accommodate operators that are required to install meters at multiple facilities. Facilities that do not process more than 2,000 BOPD when the final rule is published, but increase production above this level after the rule is published, would be required to install meters within 90 days. Operators would be required to keep records on flaring, venting, and burning for 6 years to comply with 30 CFR Part 212—Records and Files Maintenance. The operators would be required to store these records on the facility for the first 2 years after the flaring, venting, or burning event. After that, the operator would be able to keep the records at a separate location, but they must be available for MMS review. The proposed rule would clarify reporting procedures and require operators to report flared and vented volumes separately. The previously discussed GAO report concluded that MMS should collect flared and vented volumes separately. MMS tentatively agrees with this conclusion, and does not believe it will pose a significant burden on operators because they already report the volumes of gas flared and vented to MMS on Form MMS-4054 (Oil and Gas Operations Report). Operators would only need to identify whether the gas volumes were flared or vented. The proposed rule would require operators to identify the facilities where the gas is flared or vented. This would enable MMS to directly compare volumes reported on Forms MMS-4054 with field records. This requirement would also reduce the burden on operators during royalty audits because operators would no longer have to reconstruct historical flare/vent allocations for MMS auditors. The proposed rule would require operators to retain meter recordings on facilities that require flare/vent meters. This would allow MMS to compare eyewitness observations with field records and ensure that flaring and venting incidents are properly recorded. MMS does not believe this would be a significant burden on those facilities with flare/vent meters because these meters typically record such events automatically and operators usually maintain these electronic records for their own purposes. In addition, the proposed rule would clarify when royalties are due on flared gas, vented gas, and burned liquid hydrocarbons under 30 CFR 202.100 Royalty on Oil and 30 CFR 202.150 Royalty on Gas. As in the current rule, royalties would not be due if the hydrocarbons were unavoidably lost. In most cases, MMS will consider hydrocarbons that are flared, vented or burned with MMS approval as “unavoidably lost” and the operator would not be required to pay royalties. However, MMS would retain the authority to determine whether or not the loss was avoidable or due to negligence, even if approved by MMS. For example, if you received MMS approval to flare 100 MCF of gas per day, then actually flared 100,000 MCF of gas per day under conditions that would not have been approved, MMS might determine that the entire volume flared was “avoidably lost” and royalties would be due on the entire volume. MMS would also be able to pursue civil penalties, under 30 CFR 250 subpart N—Outer Continental Shelf
(OCS)Civil Penalties, if we determine that the loss was avoidable or due to negligence. *§ 250.1164 What are the requirements for flaring or venting gas containing H* <sup>2</sup> *S* ? The proposed rule would require Regional Supervisor approval before emitting more than 15 lbs of SO <sup>2</sup> per hour per mile from shore. This would ensure that flaring activities are in compliance with environmental laws. MMS does not believe this would create an excessive burden on operators. The proposed regulations specify the records that the operator would have to keep. These records must be kept for 6 years, meeting the same requirements as in the previous section. Enhanced Recovery *§ 250.1165 What must I do for enhanced recovery operations?* There are no significant proposed changes to the regulations regarding enhanced recovery operations. Operators would still be required to initiate enhanced recovery operations; receive Regional Supervisor approval for the plans; and submit reports on the substances injected, produced, or reproduced. Special Alaska OCS Region Requirements *§ 250.1166 What additional reporting is required for developments in the Alaska Region?* This new section addresses special proposed reporting requirements for Alaska. This would require operators to submit an annual reservoir management report to the Regional Supervisor for any development in Alaska. If a development is regulated by both the MMS and the State of Alaska, the operator would be able to coordinate reporting requirements with MMS and the State of Alaska Oil and Gas Conservation Commission. This section would also require operators to request an MER for sensitive reservoirs in Alaska. This is necessary for the MMS Alaska Region to administer Section 7 Agreements between the Secretary of the Interior and the Governor of the State of Alaska. Under existing Section 7 Agreements, oil and gas reserves underlying a common geologic structure must be unitized and the allocation of production between Federal and State leases for royalty payment must be based on recoverable oil and gas. Under agreement with the State, this determination will be based on reservoir performance following completion of the development drilling program and sustained production. Annual reservoir management plans enable the MMS to monitor recoverable oil and assure proper allocation of reserves for royalty payment and to be consistent with the State of Alaska requirements. This provision would also enable the MMS to manage its responsibility for conservation of resources on a real time basis. The number, type, spacing and sequencing of development wells (producers and injectors) will vary from the original approved development and production plan as more information on the reservoir is obtained. An annual reservoir management plan would enable the MMS to track development activities with the approved development and production plan and assure maximum recovery based on the most current knowledge of the reservoir. Information Needed With Forms and for Approvals *§ 250.1167 What information must I submit with forms and for approvals?* This proposed table is designed to be an easy-to-use reference to determine the information and supporting documentation to submit to the Regional Supervisor and to remind lessees to pay the appropriate service fee. Forms MMS-126 (Well Potential Test Report) and MMS-127 (Sensitive Reservoir Information Report) would require supporting documents. Also, several operations covered under subpart K (gas cap production, downhole commingling, reservoir reclassification, and production within 500 feet of a unit or lease line), would require that the operator submit applications and supporting documents to the Regional Supervisor. All of these documents are covered in the table. Questions In addition to comments on these proposed regulations, MMS is requesting comments on the following questions. 1. Are these regulations well organized and easy to read? 2. Is the submittal table useful? 3. Is the 2,000 BOPD requirement for installing flare/vent meters reasonable? Are the cost estimates accurate? 4. Would the requirement to install flare/vent meters pose a safety hazard by restricting flow during emergency facility blowdowns, or are accurate meters (such as ultrasonic meters) available that do not impede gas flow? 5. Should MMS require operators to flare natural gas instead of venting it, under approved flaring and venting conditions? This question is based on a recommendation from the GAO report on flaring and venting natural gas, and reflects concerns about the amount of greenhouse gas that is released into the environment by venting. MMS is studying this recommendation before proposing any regulatory change. We would like comments on this issue, including comments related to additional costs, environmental impacts, and conditions or situations where flaring may not be advisable. Procedural Matters Public Availability of Comments Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. Regulatory Planning and Review (Executive Order (E.O.) 12866) This proposed rule is not a significant rule as determined by the Office of Management and Budget
(OMB)and is not subject to review under E.O. 12866.
(1)The proposed rule would not have an annual economic effect of $100 million or more on the economy. It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. A cost-benefit and economic analysis is not required. This proposed rule revises the requirements for oil and gas production. The changes in the rule are not significant enough to have an impact on the economy or an economic sector, productivity, jobs, the environment, or other units of government. Some of the current requirements would be relaxed. For example, limits on production rates were eliminated in most cases. This would allow the operators to produce the oil and gas at the rates that they determine are best, and would not have a significant effect on any sector of the economy.
(2)The proposed rule would not create a serious inconsistency or otherwise interfere with action taken or planned by another agency because MMS is the only Federal government agency directly involved in setting production requirements for the offshore oil and natural gas industry.
(3)This proposed rule would not alter the budgetary effects of entitlements, grants, user fees or loan programs, or the rights and obligations of their recipients.
(4)This proposed rule would not raise novel legal or policy issues. There are some changes in production requirements in this proposal, but most of the changes clarify existing MMS requirements. Some may require additional paperwork for the operators. Since the basic production requirements are not changed, and restrictions on production rates are decreased, this proposed rule should not raise novel legal or policy issues. Regulatory Flexibility Act
(RFA)The Department of the Interior certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities as defined under the RFA (5 U.S.C. 601 *et seq.* ). An initial Regulatory Flexibility Analysis is not required. Accordingly, a Small Entity Compliance Guide is not required. This rule applies to all lessees operating on the OCS. Lessees fall under the Small Business Administration's North American Industry Classification System (NAICS) code 211111, Crude Petroleum and Natural Gas Extraction. Under this NAICS code, companies with less than 500 employees are considered small businesses. MMS estimates that 130 lessees explore for and produce oil and gas on the OCS; approximately 70 percent of them (91 companies) fall into the small business category. The proposed regulation would therefore affect a substantial number of small entities. However, we have determined that it would not have a significant economic effect on these small entities. One new requirement that would impose a cost to operators is a requirement to install flaring/venting meters on all facilities that process more than 2,000 BOPD. The GAO report on flaring and venting natural gas, released in July 2004, recommended that MMS require these meters to improve oversight. MMS agrees with this recommendation. MMS regulations allow flaring and venting in very limited circumstances. These meters would help MMS: • Verify the amounts of natural gas that operators flare or vent into the environment; • Prevent waste of resources; • Collect the proper royalties on avoidably flared or vented gas; • Determine if an operator is violating MMS regulations; and • Assess the impacts on the environment. In determining the criteria for which facilities must install the meters, MMS considered the cost of the meters and the amount of production needed to justify the cost. To ensure that the requirement to install flare/vent meters would not produce an undue burden on small companies, it was limited to those facilities that process more than an average of 2,000 BOPD. MMS estimates that 34 companies would have to install meters on 112 facilities at an average cost of $77,000 per facility and a total cost to industry of $8,624,000 (112 × $77,000 = $8,624,000). Of those, nine companies are considered small businesses, based on the NAICS. These nine companies represent only 7 percent of the 130 operators on the OCS. We estimate that seven of these nine companies would need to install meters on one facility each; one company would need to install meters on two facilities; and one company would need to install meters on three facilities. This represents an average cost of $105,875 for each of the small companies (11 facilities × $77,000/9 companies). The average cost to non small companies would be $311,080 per company (101 facilities × $77,000/25 companies). In addition, this does not represent an unfair burden to small companies because the cost of these meters is small in comparison to the revenues generated by the amount of oil processed by those facilities. Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of MMS, call 1-888-734-3247. You may comment to the Small Business Administration without fear of retaliation. Disciplinary action for retaliation by an MMS employee may include suspension or termination from employment with the DOI. Small Business Regulatory Enforcement Fairness Act (SBREFA) The proposed rule is not a major rule under SBREFA (5 U.S.C. 804(2)). This proposed rule: a. Would not have an annual effect on the economy of $100 million or more. This proposed rule revises the requirements for oil and gas production. The changes would not have an impact on the economy or an economic sector, productivity, jobs, the environment, or other units of government. Most of the new requirements are paperwork requirements, and would not add significant time to development and production processes. One new requirement would add new costs for some operators. Operators would be required to install flare/vent meters on any facility that processes more than an average of 2,000 BOPD. MMS estimates that 34 companies would have to install meters on 112 facilities at an average cost of $77,000 per facility and a total cost to industry of $8,624,000 (112 × $77,000 = $8,624,000). b. Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. In most cases, this proposed rule would eliminate the requirement for operators to set limits on production rates, allowing the operators to determine the best rate to produce their reservoirs. The limits on burning, flaring, and venting are clearer. These limits would encourage conservation of our natural resources, without putting undue production restrictions on operators. There would be a new requirement to install meters on facilities that process more than an average of 2,000 BOPD. As discussed above, this requirement would not significantly increase the cost of doing business offshore. c. Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This proposed rule would eliminate the requirement for operators to set limits on production rates, allowing the operators to determine the best rate to produce their reservoirs. There are clearer limits on burning, flaring, and venting, which would encourage conservation of our natural resources. Unfunded Mandates Reform Act
(UMRA)of 1995 This proposed rule would not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by UMRA (2 U.S.C. 1531 *et seq.* ) is not required. This is because the proposal would not affect State, local, or tribal governments, and the effect on the private sector is small. Takings Implication Assessment (Executive Order 12630) The proposed rule is not a governmental action capable of interference with constitutionally protected property rights. Thus, MMS did not need to prepare a Takings Implication Assessment according to E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Federalism (Executive Order 13132) With respect to E.O. 13132, this proposed rule would not have federalism implications. This proposed rule would not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role. MMS has the authority to regulate offshore oil and gas production. State governments do not have authority over offshore production in Federal waters. Civil Justice Reform (Executive Order 12988) With respect to E.O. 12988, the Office of the Solicitor has determined that the proposed rule would not unduly burden the judicial system and does not meet the requirements of sections 3(a) and 3(b)(2) of the Order. MMS drafted this proposed rule in plain language to provide clear standards. We consulted with the Department of the Interior's Office of the Solicitor throughout the drafting process for the same reasons. Paperwork Reduction Act
(PRA)The proposed rule contains a collection of information that has been submitted to OMB for review and approval under § 3507(d) of the PRA. As part of our continuing effort to reduce paperwork and respondent burdens, MMS invites the public and other Federal agencies to comment on any aspect of the reporting and recordkeeping burden. You may submit your comments on the information collection aspects of this proposed rule directly to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, OMB Attention: Desk Officer for the Department of the Interior via OMB e-mail: ( *OIRA_DOCKET@omb.eop.gov* ); or by fax
(202)395-6566; identify with 1010-AD12. Send a copy of your comments to the Rules Processing Team (RPT), Attn: Rules Comments; 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference “Oil and Gas Production Requirements—AD12” in your comments. You may obtain a copy of the supporting statement for the new collection of information by contacting the Bureau's Information Collection Clearance Officer at
(202)208-7744. The PRA provides that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB is required to make a decision concerning the collection of information contained in these proposed regulations 30-60 days after publication of this document in the **Federal Register** . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it by April 5, 2007. This does not affect the deadline for the public to comment to MMS on the proposed regulations. The title of the collection of information for the rule is “30 CFR 250, Subpart K, Oil and Gas Production Requirements.” The proposed regulations concern oil and gas production requirements, and the information is used in our efforts to conserve natural resources, prevent waste, and protect correlative rights, including the government's royalty interest. Respondents are the approximately 130 Federal oil and gas and sulphur lessees. Responses to this collection are mandatory. The frequency of response is on occasion, monthly, semi-annually, annually, and as a result of situations encountered depending upon the requirement. The information collection
(IC)does not include questions of a sensitive nature. MMS will protect proprietary information according to the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), and 30 CFR 250.196, “Data and information to be made available to the public,” and 30 CFR part 252, “OCS Oil and Gas Information Program.” Proprietary information concerning geological and geophysical data will be protected according to 43 U.S.C. 1352. The collection of information required by the current subpart K regulations is approved under OMB Control Number 1010-0041. The proposed rule imposes minor changes to the information collection burden. The changes are: • Report to Minerals Revenue Management
(MRM)measured gas flaring or venting and liquid hydrocarbon burning. Submit periodic reports of volumes of oil, gas, or other substances injected, produced, or produced for a second time. Both requirements and burdens are now reported to MRM and their respective burdens are covered under OMB Control Number 1010-0139 (-154 burden hours); • Request Regional Supervisor approval for emitting more than 15 lbs. of SO <sup>2</sup> (+10 burden hours); • Submit to Regional Supervisor air quality modeling analysis report. The proposed burden hours represent an adjustment to a current requirement for information that was not previously collected (+40 burden hours); • For Alaska Region Only: Submit to Regional Supervisor annual reservoir management report and supporting information. (At this time, the state requires the same information and MMS receives a copy). Alaska has started producing in state waters. If new development occurs in Federal waters, a minimal burden for submitting an annual reservoir management report, and burden hours for annual revisions are being added (+161 burden hours). • Maintain meter records for detailing gas flaring or venting, and liquid hydrocarbon burning for 6 years. These new burden requirements do not add additional burden hours. • General departure or alternative compliance requests (+5 burden hours). The currently approved information collection for this subpart (1010-0041) will be superseded by this collection when final regulations take effect. Currently, regulations covered under OMB Control Number 1010-0041 have 43,065 annual burden hours. MMS estimates the total annual reporting and recordkeeping “hour” burden for the proposed rule to be 43,127 hours; this is an increase of 62 burden hours. With the exception of the recordkeeping requirement changes and the items identified as “new” in the following chart, the burden estimates shown are those that are estimated for the current subpart K regulations. 30 CFR 250 Subpart K Reporting & recordkeeping requirement Fee/non-hour cost Hour burden Average number of annual responses Annual burden hours 1151(a), (c); 1155; 1165; 1166(c); 1167 Submit form MMS-126 and supporting information 3 1,325 forms 3,975 Submit form MMS-127 and supporting information 2.2 2,189 forms 4,816 Submit form MMS-128 and supporting information 0.1—3 13,000 GOM forms 600 POCS forms 1,336* 1151(b) Request extension of time to submit results of semiannual well test 0.5 37 requests 19 1152(b),
(c)Obtain Regional Supervisor approval to conduct well testing using alternative procedures; conduct tests/retests to establish proper MPR or MER; conduct multipoint backpressure test for open flow potential 0.5 37 requests 19 1152(d) Provide advance notice of time and date of well tests 0.5 10 notices 5 1153 Submit results of all static bottomhole pressure surveys obtained by lessee using form MMS-140. Request departure requirement w/justification to Regional Supervisor; submit with Form MMS-140 and supporting information 14 1 1,270 surveys 120 survey waivers 17,780 120 1154; 1167 Request reclassification of reservoir for Regional Supervisor approval and submit supporting information 6 20 requests 120 1156; 1167 Request approval to produce within 500 feet of a unit or lease line and submit supporting information; notify operators; provide proof of date to Regional Supervisor 5 50 requests 250 3,300 × 50 requests = $165,000 1157; 1167 Request approval to produce gas cap of a sensitive reservoir and submit supporting information; obtain approval to produce gas from an oil reservoir with an associated gas cap 12 125 requests 1,500 $4,200 × 125 requests = $525,000 1158; 1167 Submit request to downhole commingle hydrocarbons and supporting information; notify operators; provide proof of date to Regional Supervisor 6 119 applications 714 $4,900 × 119 applications = $583,100 1160; 1161 Request Regional Supervisor approval/inform to flare or vent oil-well gas or gas-well gas/exceed volume; submit documentation 0.5 1,007 requests 504 1162; 1163(e) Request approval to burn produced liquid hydrocarbons; submit documentation 0.5 60 requests 30 NEW 1163 Initial purchase and install gas meters to measure the amount of gas flared or vented. This is a non-hour cost burden 0 112 0 112 meters @ $77,000 ea = $8,624,000 NEW 1163(b); 1165(c) Report to MRM measured gas flaring or venting and liquid hydrocarbon burning—burden covered under 1010-0139 0 NEW 1164(b)(1) Request Regional Supervisor approval for emitting more than 15 lbs. of SO 2 0.5 20 requests 10 1164(b)(2) H 2 S Contingency, Exploration, or Development and Production Plans—burden covered under 1010-0141 and 1010-0151 0 NEW 1164(b)(3) Submit to Regional Supervisor air quality modeling analysis 40 1 modeling analysis 40 1164(c) Submit monthly reports of flared or vented gas containing H 2 S 2 3 operators × 12 mos. = 36 72 1165 Submit proposed plan for enhanced recovery operations 12 27 plans 324 1165(c) Submit periodic reports of volumes of oil, gas, or other substances injected, produced, or produced for a second time—burden covered under OMB approval 1010-0139 0 NEW 1166 Alaska Region only: submit to Regional Supervisor annual reservoir management report and supporting information 1 100 1 (required by State, MMS gets copy) 1 new develop not State lands 1 100 20 3 annual revisions 60 NEW 1150-1167 General departure or alternative compliance requests not specifically covered elsewhere in subpart K 1 5 5 Reporting Subtotal 20,175 31,800 1163(c),
(d)Maintain records for 6 years detailing gas flaring or venting; maintain meter records and provide copies if requested 13 869 platforms 11,297 1163(c) Maintain records for 6 years detailing liquid hydrocarbon burning; maintain meter records and provide copies if requested 0.5 60 occurrences 30 Recordkeeping Subtotal 929 11,327 Total Burden 21,104 43,127 $9,897,100 * Reporting burden for this form is estimated to average 0.1 to 3 hours per form depending on the number of well tests reported, including the time for reviewing instructions, gathering and maintaining data, and completing and reviewing the form. See breakdown for form MMS-128 above.
(a)MMS specifically solicits comments on the following questions:
(1)Is the proposed collection of information necessary for MMS to properly perform its functions, and will it be useful?
(2)Are the estimates of the burden hours of the proposed collection reasonable?
(3)Do you have any suggestions that would enhance the quality, clarity, or usefulness of the information to be collected?
(4)Is there a way to minimize the information collection burden on those who are to respond, including the use of appropriate automated electronic, mechanical, or other forms of information technology?
(b)In addition, the PRA requires agencies to estimate the total annual reporting and recordkeeping “non-hour cost” burden resulting from the collection of information. Other than the cost recovery fees listed in the burden table, and the fee for installing flaring/venting meters (§ 250.1163), we have not identified any other costs, and we solicit your comments on this item. For reporting and recordkeeping only, your response should split the cost estimate into two components:
(1)Total capital and startup cost component and
(2)annual operation, maintenance, and purchase of services components. Your estimates should consider the costs to generate, maintain, disclose or provide the information. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and start-up costs include, among other items, computers and software you purchase to prepare for collecting information; monitoring, sampling, drilling, and testing equipment; and record storage facilities. Generally, our estimates should not include equipment or services purchased: before October 1, 1995; to comply with requirements not associated with the information collection; for reasons other than to provide information or keep records for the Government; or as part of customary and usual business or private practices. National Environmental Policy Act
(NEPA)of 1969 We analyzed this proposed rule in accordance with the criteria of the NEPA and 516 Departmental Manual 6, Appendix 10.4C, “issuance, and/or modification of regulations.” MMS completed a Categorical Exclusion Review
(CER)for this action on May 31, 2005, and concluded: “The proposed rulemaking does not represent an exception to the established criteria for categorical exclusion. Therefore, preparation of an environmental document will not be required, and further documentation of this CER is not required.” Energy Supply, Distribution, or Use (Executive Order 13211) Executive Order 13211 requires the agency to prepare a Statement of Energy Effects when it takes a regulatory action that is identified as a significant energy action. This proposed rule is not a significant energy action, and therefore would not require a Statement of Energy Effects because it: a. Is not a significant regulatory action under E.O. 12866, b. Is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and c. Has not been designated by the Administrator of the Office of Information and Regulatory Affairs, OMB, as a significant energy action. Consultation With Indian Tribes (Executive Order 13175) Under the criteria in E.O. 13175, we have evaluated this proposed rule and determined that it has no potential effects on federally recognized Indian tribes. There are no Indian or tribal lands on the OCS. Clarity of This Regulation (Executive Order 12866) Executive Order 12866 requires each agency to write regulations that are easy to understand. MMS invites your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:
(1)Are the requirements in the proposed rule clearly stated?
(2)Does the proposed rule contain technical language or jargon that interferes with its clarity?
(3)Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphs, etc.) aid or reduce its clarity?
(4)Is the description of the proposed rule in the “Supplementary Information” section of this preamble helpful in understanding the rule? Send a copy of any comments that concern how we could make this proposed rule easier to understand to: Office of Regulatory Affairs; Department of the Interior, Room 7229; 1849 C Street, NW., Washington, DC 20240. You may also e-mail the comments to this address: *Exsec@ios.doi.gov.* List of Subjects in 30 CFR Part 250 Continental shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Oil and gas exploration, Penalties, Pipelines, Public lands—mineral resources, Public lands—rights-of-way, Reporting and recordkeeping requirements, Sulphur. Dated: January 31, 2007. C. Stephen Allred, Assistant Secretary—Land and Minerals Management. For the reasons stated in the preamble, Minerals Management Service
(MMS)proposes to revise 30 CFR part 250 as follows: PART 250—OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER CONTINENTAL SHELF 1. The authority citation for part 250 continues to read as follows: Authority: 43 U.S.C. 1331 *et seq.* ; 31 U.S.C. 9701. 2. Amend § 250.105 to revise the definition of “Sensitive reservoir” and add in alphabetical order definitions for “Flaring” and “Venting” to read as follows: § 250.105 Definitions. *Flaring* means the burning of gas in the field as it is released into the atmosphere. *Sensitive reservoir* means a reservoir in which high reservoir production rates will decrease ultimate recovery. *Venting* means the release of gas into the atmosphere without igniting it. This includes gas that is released underwater and bubbles to the atmosphere. 3. In § 250.125, revise the table in paragraph
(a)to read as follows: § 250.125 Service fees.
(a)* * * Service Fee Table Service—processing of the following: Fee amount 30 CFR citation Change in Designation of Operator $150 § 250.143. Suspension of Operations/Suspension of Production (SOO/SOP) Request $1,800 § 250.171. Exploration Plan
(EP)$3,250 for each surface location, no fee for revisions § 250.211. Development and Production Plan
(DPP)or Development Operations Coordination Document
(DOCD)$3,750 for each well proposed, no fee for revisions § 250.241(e). Deepwater Operations Plan $3,150 § 250.292(p). Conservation Information Document $24,200 § 250.296(a). Application for Permit to Drill (APD; Form MMS-123) $1,850 Initial applications only, no fee for revisions § 250.410(d); § 250.411; § 250.460; § 250.513(b); § 250.515; § 250.1605; § 250.1617(a); § 250.1622. Application for Permit to Modify (APM; Form MMS-124) $110 § 250.460; § 250.465(b); § 250.513(b); § 250.515; § 250.613(b); § 250.615; § 250.1618(a); § 250.1622; § 250.1704(g). New Facility Production Safety System Application for facility with more than 125 components $4,750 A component is a piece of equipment or ancillary system that is protected by one or more of the safety devices required by API RP 14C (incorporated by reference as specified in § 250.198) § 250.802(e). (Additional fee of $12,500 will be charged if MMS deems it necessary to visit a facility offshore; and $6,500 to visit a facility in a shipyard) New Facility Production Safety System Application for facility with 25-125 components $1,150 (Additional fee of $7,850 will be charged if MMS deems it necessary to visit a facility offshore; and $4,500 to visit a facility in a shipyard) § 250.802(e). New Facility Production Safety System Application for facility with fewer than 25 components $570 § 250.802(e). Production Safety System Application—Modification with more than 125 components reviewed $530 § 250.802(e). Production Safety System Application—Modification with 25-125 components reviewed $190 § 250.802(e). Production Safety System Application—Modification with fewer than 25 components reviewed $80 § 250.802(e). Platform Application—Installation—under the Platform Verification Program $19,900 § 250.905(k). Platform Application—Installation—Fixed Structure Under the Platform Approval Program $2,850 § 250.905(k). Platform Application—Installation—Caisson/Well Protector $1,450 § 250.905(k). Platform Application—Modification/Repair $3,400 § 250.905(k). New Pipeline Application (Lease Term) $3,100 § 250.1000(b). Pipeline Application—Modification (Lease Term) $1,800 § 250.1000(b). Pipeline Application—Modification
(ROW)$3,650 § 250.1000(b). Pipeline Repair Notification $340 § 250.1008(e). Pipeline Right-of-Way
(ROW)Grant Application $2,350 § 250.1015. Pipeline Conversion of Lease Term to ROW $200 § 250.1015. Pipeline ROW Assignment $170 § 250.1018. 500 Feet From Lease/Unit Line Production Request $3,300 § 250.1156. Gas Cap Production Request $4,200 § 250.1157. Downhole Commingling Request $4,900 § 250.1158. Complex Surface Commingling and Measurement Application $3,550 § 250.1202(a); § 250.1203(b); § 250.1204(a). Simple Surface Commingling and Measurement Application $1,200 § 250.1202(a); § 250.1203(b); § 250.1204(a). Voluntary Unitization Proposal or Unit Expansion $10,700 § 250.1303. Unitization Revision $760 § 250.1303. Application to Remove a Platform or Other Facility $4,100 § 250.1727. Application to Decommission a Pipeline (Lease Term) $1,000 § 250.1751(a) or § 250.1752(a). Application to Decommission a Pipeline
(ROW)$1,900 § 250.1751(a) or § 250.1752(a). 4. Revise subpart K to read as follows: Subpart K—Oil and Gas Production Requirements General Sec. 250.1150 What are the general reservoir production requirements? Well Tests and Surveys 250.1151 How often must I conduct well production tests? 250.1152 How do I conduct well tests? 250.1153 When must I conduct a static bottomhole pressure survey? Classifying Reservoirs 250.1154 How do I determine if my reservoir is sensitive? 250.1155 What information must I submit for sensitive reservoirs? Approvals Prior to Production 250.1156 What steps must I take to receive approval to produce within 500 feet of a unit or lease line? 250.1157 How do I receive approval to produce gas from an oil reservoir with an associated gas cap? 250.1158 How do I receive approval to downhole commingle hydrocarbons? Production Rates 250.1159 May the Regional Supervisor limit my well or reservoir production rates? Flaring, Venting, and Burning Hydrocarbons 250.1160 When may I flare or vent gas? 250.1161 When may I flare or vent gas for extended periods of time? 250.1162 When may I burn produced liquid hydrocarbons? 250.1163 How must I measure gas flaring or venting volumes and liquid hydrocarbon burning volumes and what records must I maintain? 250.1164 What are the requirements for flaring or venting gas containing H <sup>2</sup> S? Enhanced Recovery 250.1165 What must I do for enhanced recovery operations? Special Alaska OCS Region Requirements 250.1166 What additional reporting is required for developments in the Alaska OCS Region? Information Needed with Forms and for Approvals 250.1167 What information must I submit with forms and for approvals? Subpart K—Oil and Gas Production Requirements General § 250.1150 What are the general reservoir production requirements? You must produce wells and reservoirs at rates that provide for economic development without harming ultimate recovery and without adversely affecting correlative rights. Well Tests and Surveys § 250.1151 How often must I conduct well production tests?
(a)You must conduct well production tests as shown in the following table: You must conduct: And you must submit to the Regional Supervisor:
(1)A well-flow potential test on all new, recompleted, or reworked well completions within 30 days of the date of first continuous production Form MMS-126, Well Potential Test Report, along with the supporting data as listed in the table in § 250.1167, within 15 days after the end of the test period.
(2)At least one well test during a calendar half-year for each producing completion Results on Form MMS-128, Semiannual Well Test Report, of the most recent well test obtained. This must be submitted within 45 days after the end of the calendar half-year
(b)You may request an extension from the Regional Supervisor if you cannot submit the results of a semiannual well test within the specified time.
(c)You must submit an original and one copy of the form required by paragraph
(a)of this section, as listed in the table in § 250.1167. You must include one public information copy with each submittal in accordance with §§ 250.190 and 250.196, and mark that copy “Public Information.” § 250.1152 How do I conduct well tests?
(a)When you conduct well tests you must:
(1)Recover fluid from the well completion equivalent to the amount of fluid introduced into the formation during completion, recompletion, reworking, or treatment operations before you start a well test;
(2)Produce the well completion under stabilized rate conditions for at least 6 consecutive hours before beginning the test period;
(3)Conduct the test for at least 4 consecutive hours;
(4)Adjust measured gas volumes to the standard conditions of 14.73 pounds per square inch absolute
(psia)and 60°F for all tests; and
(5)Use measured specific gravity values to calculate gas volumes.
(b)You may request approval from the Regional Supervisor to conduct a well test using alternative procedures if you can demonstrate test reliability under those procedures.
(c)The Regional Supervisor may also require you to conduct the following tests and complete them within the specified time period:
(1)A retest or a prolonged test of a well completion if it is determined to be necessary for the proper establishment of a Maximum Production Rate
(MPR)or a Maximum Efficient Rate (MER); and
(2)A multipoint back-pressure test to determine the theoretical open-flow potential of a gas well.
(d)An MMS representative may witness any well test. Upon request, you must provide advance notice to the Regional Supervisor of the times and dates of well tests. § 250.1153 When must I conduct a static bottomhole pressure survey?
(a)You must conduct a static bottomhole pressure survey under the following conditions: If you have: Then you must conduct:
(1)A new producing reservoir A static bottomhole pressure survey within 90 days after the date of first continuous production.
(2)A reservoir with three or more producing completions Annual static bottomhole pressure surveys in a sufficient number of key wells to establish an average reservoir pressure. The Regional Supervisor may require that bottomhole pressure surveys be performed on specific wells.
(b)Your bottomhole pressure survey must meet the following requirements:
(1)You must shut-in the well for a minimum period of 4 hours to ensure stabilized conditions; and
(2)The bottomhole pressure survey must consist of a pressure measurement at mid-perforation, and pressure measurements and gradient information for at least four gradient stops coming out of the hole.
(c)You must submit to the Regional Supervisor the results of all static bottomhole pressure surveys on Form MMS-140, Bottomhole Pressure Survey Report, within 60 days after the date of the survey.
(d)The Regional Supervisor may grant a departure from the requirement to run a static bottomhole pressure survey. You must request a departure by letter, along with Form MMS-140, Bottomhole Pressure Survey Report. You must include sufficient justification to support the departure request. Classifying Reservoirs § 250.1154 How do I determine if my reservoir is sensitive?
(a)You must determine whether each reservoir is sensitive. You must classify the reservoir as sensitive if:
(1)Under initial conditions it is an oil reservoir with an associated gas cap;
(2)At any time there are near-critical fluids; or
(3)The reservoir is undergoing secondary or tertiary recovery.
(b)For the purposes of this subpart, near-critical fluids are those fluids that occur in high temperature, high-pressure reservoirs where it is not possible to define the liquid-gas contact or fluids in reservoirs that are near bubble point or dew point conditions.
(c)The Regional Supervisor may reclassify a reservoir when available information warrants reclassification.
(d)If available information indicates that a reservoir previously classified as non-sensitive is now sensitive, you must submit a request to the Regional Supervisor to reclassify the reservoir. You must include supporting information, as listed in the table in § 250.1167, with your request.
(e)If information indicates that a reservoir previously classified as sensitive is now non-sensitive, you may submit a request to the Regional Supervisor to reclassify the reservoir. You must include supporting information, as listed in the table in § 250.1167, with your request. § 250.1155 What information must I submit for sensitive reservoirs? You must submit an original and three copies of Form MMS-127 and supporting information, as listed in the table in § 250.1167 to the Regional Supervisor. You must include one public information copy with each submittal in accordance with §§ 250.190 and 250.196, and mark that copy “Public Information.” You must submit this information:
(a)Within 45 days after beginning production from the reservoir or discovering that it is sensitive;
(b)At least once during the calendar year;
(c)Within 45 days after you revise reservoir parameters; and
(d)Within 45 days after the Regional Supervisor classifies the reservoir as sensitive under § 250.1154(c). Approvals Prior to Production § 250.1156 What steps must I take to receive approval to produce within 500 feet of a unit or lease line?
(a)You must obtain approval from the Regional Supervisor before you start producing from a well that has any portion of the completed interval less than 500 feet from a unit or lease line. Submit to MMS the service fee listed in § 250.125 and the Regional Supervisor will determine whether approval of your request will maximize ultimate recovery, avoids the waste of natural resources or whether it is necessary to protect correlative rights. You do not need to obtain approval if the adjacent leases or units have the same unit, lease, and royalty interests as the lease or unit you plan to produce. You do not need to obtain approval if the adjacent block is unleased.
(b)You must notify the operator(s) of adjacent property(ies) that are within 500 feet of the completion, if the adjacent acreage is a leased block in the Federal OCS. You must provide the Regional Supervisor proof of the date of the notification. The operators of the adjacent properties have 30 days after receiving the notification to provide the Regional Supervisor letters of acceptance or objection. If an adjacent operator does not respond within 30 days, the Regional Supervisor will presume there are no objections and proceed with a decision. The notification must include:
(1)The well name;
(2)The rectangular coordinates (x, y) of the location of the top and bottom of the completion or target completion reference to the North American Datum 1983, and the subsea depths of the top and bottom of the completion or target completion;
(3)The distance from the completion or target completion to the unit or lease line at its nearest point; and
(4)A statement indicating whether or not it will be a high-capacity completion having a perforated or open hole interval greater than 150 feet measured depth. § 250.1157 How do I receive approval to produce gas from an oil reservoir with an associated gas cap? You must request and receive written approval from the Regional Supervisor before producing gas from each completion in an oil reservoir that is known to have an associated gas cap. If the oil reservoir is not initially known to have an associated gas cap, but your oil well begins to show characteristics of a gas well, you must request and receive written approval from the Regional Supervisor to continue producing the well. You must include the service fee listed in § 250.125 and the supporting information, as listed in the table in § 250.1167, with your request. § 250.1158 How do I receive approval to downhole commingle hydrocarbons?
(a)Before you perforate a well, you must request and receive approval from the Regional Supervisor to commingle hydrocarbons produced from multiple reservoirs within a common wellbore. The Regional Supervisor will determine whether your request maximizes ultimate recovery and avoids the waste of natural resources. You must include the service fee listed in § 250.125 and the supporting information, as listed in the table in § 250.1167, with your request.
(b)If one or more of the commingled reservoirs is a competitive reservoir, you must notify the operators of all leases that contain the reservoir that you intend to downhole commingle the reservoirs. Your request for approval of downhole commingling must include proof of the date of this notification. The notified operators have 30 days after notification to provide the Regional Supervisor with letters of acceptance or objection. If the notified operators do not respond within the specified period, the Regional Supervisor will assume the operators do not object and proceed with a decision. Production Rates § 250.1159 May the Regional Supervisor limit my well or reservoir production rates?
(a)The Regional Supervisor may set a Maximum Production Rate
(MPR)for a producing well completion, or set a Maximum Efficient Rate
(MER)for a reservoir, or both, if the Regional Supervisor determines that an excessive production rate could harm ultimate recovery. An MPR or MER will be based on well tests and any limitations imposed by well and surface equipment, sand production, reservoir sensitivity, gas-oil and water-oil ratios, location of perforated intervals, and prudent operating practices.
(b)If the Regional Supervisor sets an MPR for a producing well completion, or an MER for a reservoir, you may not exceed those rates except due to normal variations and fluctuations in production rates, as set by the Regional Supervisor. Flaring, Venting, and Burning Hydrocarbons § 250.1160 When may I flare or vent gas?
(a)You must receive approval from the Regional Supervisor to flare or vent oil-well gas or gas-well gas at your facility, except in the following situations: Condition Additional requirements
(1)When the gas is lease use gas (produced natural gas which is used on or for the benefit of lease operations such as gas used to operate production facilities) or is used as an additive necessary to burn waste products, such as H 2 S The volume of gas flared or vented may not exceed the amount necessary for its intended purpose. Burning waste products may require approval under other regulations.
(2)During the restart of a facility that was shut in because of weather conditions, such as a hurricane Flaring or venting may not exceed 48 cumulative hours without Regional Supervisor approval.
(3)During the blow down of transportation pipelines downstream of the royalty meter
(i)You must report the location, time, flare/vent volume, and reason for flaring/venting to the Regional Supervisor in writing within 72 hours after the incident is over.
(ii)Additional approval may be required under subparts H and J of this part.
(4)During the unloading or cleaning of a well, drill-stem testing, production testing, other well-evaluation testing, or the necessary blow down to perform these procedures You may not exceed 48 cumulative hours of flaring or venting per testing operation on a single completion without Regional Supervisor approval.
(5)When properly working equipment yields flash gas (natural gas released from liquid hydrocarbons as a result of a decrease in pressure, an increase in temperature, or both) from storage vessels or other low-pressure production vessels, and you cannot economically recover this flash gas You may not flare or vent more than an average 50 MCF per day during any calendar month without Regional Supervisor approval.
(6)When the equipment works properly but there is a temporary upset condition, such as a hydrate or paraffin plug
(i)For oil-well gas and gas-well flash gas (natural gas released from condensate as a result of a decrease in pressure, an increase in temperature, or both), you may not exceed 48 continuous hours of flaring or venting without Regional Supervisor approval.
(ii)For primary gas-well gas (natural gas from a gas well completion that is at or near its wellhead pressure; this does not include flash gas), you may not exceed 2 continuous hours of flaring or venting without Regional Supervisor approval.
(iii)You may not exceed 144 cumulative hours of flaring or venting during a calendar month without Regional Supervisor approval.
(7)When equipment fails to work properly, including equipment maintenance and repair, or when you must relieve system pressures
(i)For oil-well gas and gas-well flash gas, you may not exceed 48 continuous hours of flaring or venting without Regional Supervisor approval.
(ii)For primary gas-well gas, you may not exceed 2 continuous hours of flaring or venting without Regional Supervisor approval.
(iii)You may not exceed 144 cumulative hours of flaring or venting during a calendar month without Regional Supervisor approval.
(iv)The continuous and cumulative hours allowed under this paragraph may be counted separately from the hours under paragraph (a)(6) of this section.
(b)You must inform the Regional Supervisor and receive approval to flare or vent gas before you exceed the volume specified in your Development and Production Plan submitted under subpart B of this part, even if the flaring or venting does not require approval under paragraph
(a)of this section. The Regional Supervisor will determine whether your proposed flaring or venting complies with air emission thresholds under subpart C of this part.
(c)The Regional Supervisor may establish alternative approval procedures to cover situations where you cannot contact the MMS office, such as during non-office hours.
(d)The Regional Supervisor may specify a volume limit, or a shorter time limit than specified elsewhere in this part, in order to prevent air quality degradation or loss of reserves.
(e)The Regional Supervisor will evaluate your request for gas flaring or venting and determine if the loss of hydrocarbons is due to negligence, or could be avoided.
(f)If you flare or vent gas without the required approval, or if the Regional Supervisor determines that you were negligent or could have avoided flaring or venting the gas, the hydrocarbons will be considered avoidably lost or wasted. You must pay royalties on the loss or waste, according to part 202 of this title. You must value any gas or liquid hydrocarbons avoidably lost or wasted under the provisions of part 206 of this title. § 250.1161 When may I flare or vent gas for extended periods of time? You may flare or vent oil-well gas and gas-well flash gas for a period that the Regional Supervisor will specify, and which will not exceed 1 year, if the Regional Supervisor approves your request for one of the following reasons:
(a)You initiate an action which, when completed, will eliminate flaring and venting;
(b)You submit to the Regional Supervisor an evaluation supported by engineering, geologic, and economic data indicating that the oil and gas produced from the well(s) will not economically support the facilities necessary to sell the gas; or to use the gas on or for the benefit of, the lease; or
(c)The Regional Supervisor determines that an improperly working valve, pipe fitting, or similar component results in flaring or venting of less than 10 MCF per day, and that it is prudent to repair the leak at a later date. The Regional Supervisor may exempt this flaring or venting from the time limits set in § 250.1160. § 250.1162 When may I burn produced liquid hydrocarbons?
(a)You must request and receive approval from the Regional Supervisor to burn any produced liquid hydrocarbons. The Regional Supervisor may allow you to burn condensate if you demonstrate that transporting it to market or re-injecting it is not feasible or poses a significant risk of harm to offshore personnel or the environment. In most cases, the Regional Supervisor will not allow you to burn more than 300 barrels of condensate in total during unloading or cleaning of a well, drill-stem testing, production testing, or other well-evaluation testing.
(b)The Regional Supervisor will evaluate your request for liquid hydrocarbon burning, and determine if the loss of hydrocarbons is due to negligence or could be avoided.
(c)If you burn liquid hydrocarbons without the required approval, or if the Regional Supervisor determines that you were negligent or could have avoided burning liquid hydrocarbons, the hydrocarbons will be considered avoidably lost or wasted. You must pay royalties on the loss or waste, according to part 202 of this title. You must value any liquid hydrocarbons avoidably lost or wasted under the provisions of part 206 of this title. § 250.1163 How must I measure gas flaring or venting volumes and liquid hydrocarbon burning volumes and what records must I maintain?
(a)If your facility processes more than an average of 2,000 BOPD during [MONTH AND YEAR IN WHICH FINAL RULE IS PUBLISHED], you must install flare/vent meters within 120 days after [THE MONTH AND YEAR IN WHICH THE FINAL RULE IS PUBLISHED]. If your facility processes more than an average of 2,000 BOPD during a calendar month after [MONTH AND YEAR IN WHICH FINAL RULE IS PUBLISHED], you must install flare/vent meters within 90 days after the end of the month in which the average amount of oil processed exceeds 2,000 BOPD.
(1)The flare/vent meters must measure all flared and vented gas within 2 percent accuracy.
(2)You must calibrate the meters regularly, in accordance with the manufacturer's recommendation, or at least once every 6 months, whichever is shorter.
(b)You must report all hydrocarbons produced from a well completion, including all gas flared, gas vented, and liquid hydrocarbons burned, to Minerals Revenue Management on Form MMS-4054 (Oil and Gas Operations Report), in accordance with § 216.53 of this title.
(1)You must report the amount of gas flared and the amount of gas vented separately.
(2)You may classify and report gas used to operate equipment on the facility (such as gas used to power engines, gas used as pilot lights, instrument gas, purge gas used to prevent oxygen from entering the flare or vent stack, sparge gas used to regenerate glycol, and blanket gas used to maintain pressure in low pressure vessels) as lease use gas.
(3)You must report the amount of gas flared and vented at each facility on a lease or unit basis. Gas flared and vented from multiple facilities on a single lease or unit must be reported separately.
(c)You must prepare and maintain records detailing gas flaring, gas venting, and liquid hydrocarbon burning for each facility. You must maintain these records for the period specified in part 212 of this title. You must keep these records on the facility for 2 years and have them available for inspection by MMS representatives. After 2 years, you must maintain the records, allow MMS representatives to inspect the records upon request, and provide copies to the Regional Supervisor upon request, but you are not required to keep them on the facility. The records must include, at a minimum:
(1)Daily volumes of gas flared, gas vented, and liquid hydrocarbons burned;
(2)Number of hours of gas flaring, gas venting, and liquid hydrocarbon burning, on a daily basis;
(3)A list of the wells contributing to gas flaring, gas venting, and liquid hydrocarbon burning, along with gas-oil ratio data;
(4)Reasons for gas flaring, gas venting, and liquid hydrocarbon burning; and
(5)Documentation of all required approvals.
(d)If your facility is required to have flare/vent meters, you must maintain the meter recordings for the period specified in §§ 212.50 and 212.51 of this title. You must keep these recordings on the facility for 2 years and have them available for inspection by MMS representatives. After 2 years, you must maintain the recordings, allow MMS representatives to inspect the recordings upon request, and provide copies to the Regional Supervisor upon request, but are not required to keep them on the facility. These recordings must include the begin times, end times, and volumes for all flaring and venting incidents.
(e)If your flaring or venting of gas, or burning of liquid hydrocarbons, required written or oral approval, you must submit documentation to the Regional Supervisor summarizing the location, dates, number of hours, and volumes of gas flared, gas vented, and liquid hydrocarbons burned under the approval, as required under § 250.140. § 250.1164 What are the requirements for flaring or venting gas containing H <sup>2</sup> S?
(a)You may not vent gas containing H <sup>2</sup> S, except for minor releases during maintenance and repair activities that do not result in a 15-minute time-weighted average atmosphere concentration of H <sup>2</sup> S of 20 ppm or higher anywhere on the platform.
(b)You may flare gas containing H <sup>2</sup> S only if you meet the requirements of §§ 250.1160, 250.1161, 250.1163, and the following additional requirements:
(1)You may not emit more than 15 lbs of SO <sup>2</sup> per hour per mile from shore, without approval from the Regional Supervisor;
(2)For safety or air pollution prevention purposes, the Regional Supervisor may further restrict the flaring of gas containing H <sup>2</sup> S. The Regional Supervisor will use information provided in the lessee's H <sup>2</sup> S Contingency Plan (§ 250.490(f)), Exploration Plan, Development and Production Plan, Development Operations Coordination Document, and associated documents to determine the need for restrictions; and
(3)If the Regional Supervisor determines that flaring at a facility or group of facilities may significantly affect the air quality of an onshore area, the Regional Supervisor may require you to conduct an air quality modeling analysis to determine the potential effect of facility emissions. The Regional Supervisor may require monitoring and reporting, or may restrict or prohibit flaring, under §§ 250.303 and 250.304.
(c)You must report flared and vented gas containing H <sup>2</sup> S as required under § 250.1163. In addition, the Regional Supervisor may require you to submit monthly reports of flared and vented gas containing H <sup>2</sup> S. Each report must contain, on a daily basis:
(1)The volume and duration of each flaring and venting occurrence;
(2)H <sup>2</sup> S concentration in the flared or vented gas; and
(3)The calculated amount of SO <sup>2</sup> emitted. Enhanced Recovery § 250.1165 What must I do for enhanced recovery operations?
(a)You must promptly initiate enhanced oil and gas recovery operations for all reservoirs where these operations would result in increased ultimate recovery of oil or gas under sound engineering and economic principles.
(b)Before initiating enhanced recovery operations, you must submit a proposed plan to the Regional Supervisor and receive approval for pressure maintenance, secondary or tertiary recovery, cycling, and similar recovery operations intended to increase the ultimate recovery of oil and gas from a reservoir. The proposed plan must include, for each project reservoir, a brief geologic and engineering overview, structure map, well log section, Form MMS-127, and any additional information required by the Regional Supervisor.
(c)You must report to Minerals Revenue Management the volumes of oil, gas, or other substances injected, produced, or produced for a second time under § 216.53 of this title. Special Alaska OCS Region Requirements § 250.1166 What additional reporting is required for developments in the Alaska OCS Region?
(a)For any development in the Alaska OCS Region, you must submit an annual reservoir management report to the Regional Supervisor. The report must contain information detailing the activities performed during the previous year and planned for the upcoming year that will provide for:
(1)The prevention of waste;
(2)The protection of correlative rights; and
(3)A greater ultimate recovery of oil and gas.
(b)If your development is jointly regulated by MMS and the State of Alaska, MMS and the AOGCC will jointly determine appropriate reporting requirements to minimize or eliminate duplicate reporting requirements.
(c)Every time you are required to submit Form MMS-127 under § 250.1155, you must request an MER for each producing sensitive reservoir in the Alaska OCS Region, unless otherwise instructed by the Regional Supervisor. Information Needed With Forms and for Approvals § 250.1167 What information must I submit with forms and for approvals? You must submit the supporting information listed in the following table with the forms and for the approvals required under this subpart: WPT MMS-126 SRI MMS-127 Gas cap production Downhole commingling Reservoir reclassification Production within 500-ft of a Unit or Lease Line
(a)Maps:
(1)Base map with surface, bottomhole, and completion locations with respect to the unit or lease line and the orientation of representative seismic lines or cross sections ✓ ✓ ✓
(2)Structure maps with penetration point and subsea depth for each well penetrating the reservoirs, highlighting subject wells; reservoir boundaries; and original and current fluid levels ✓ ✓ ✓ ✓ ✓ ✓
(3)Net sand isopach with total net sand penetrated for each well, identified at the penetration point ✓ ✓ ✓
(4)Net hydrocarbon isopach with net feet of pay for each well, identified at the penetration point ✓ ✓ ✓
(b)Seismic data:
(1)Representative seismic lines, including strike and dip lines that confirm the structure; indicate polarity ✓ ✓ ✓
(2)Time/depth correlation table for seismic data ✓ ✓ ✓
(3)Amplitude extraction of seismic horizon, if applicable ✓ ✓ ✓ ✓ ✓
(c)Logs:
(1)Well log sections with tops and bottoms of the reservoir(s) and proposed or existing perforations ✓ ✓ ✓ ✓ ✓ ✓
(2)Structural cross-sections showing the subject well and nearby wells ✓ ✓ ✓
(d)Engineering Data:
(1)Estimated recoverable reserves for each well completion in the reservoir; total recoverable reserves for each reservoir; method of calculation; reservoir parameters used in volumetric and decline curve analysis ✓ † † ✓
(2)Well schematics showing current and proposed conditions ✓ ✓ ✓
(3)The drive mechanism of each reservoir ✓ ✓ ✓ ✓ ✓
(4)Pressure data, by date, and whether they are estimated or measured ✓ ✓ ✓
(5)Production data and decline curve analysis indicative of the reservoir performance ✓ ✓ ✓
(6)Reservoir simulation with the reservoir parameters used, history matches, and prediction runs (include proposed development scenario) * * * *
(e)General information:
(1)Detailed economic analysis * *
(2)Reservoir name and whether or not it is competitive as defined under § 250.105 ✓ ✓ ✓ ✓ ✓
(3)Operator name, lessee name(s), block, lease number, royalty rate, and unit number (if applicable) of all relevant leases ✓ ✓
(4)Brief geologic overview of project ✓ ✓ ✓ ✓
(5)Explanation of why the proposed completion scenario will not harm ultimate recovery ✓ ✓ ✓
(6)List of all wells in subject reservoirs that have ever produced or been used for injection ✓ ✓ ✓ ✓ † Each Gas Cap Production request and Downhole Commingling request should include the estimated recoverable reserves for
(1)the case where your proposed production scenario is approved, and
(2)the case where your proposed production scenario is denied. * Additional items the Regional Supervisor may request. Note: All maps must be at a standard scale and show lease and unit lines. If you have not generated all of the required data for your own purposes, you may submit those data you have available for consideration.
(f)Depending on the above requirement, you must submit appropriate payment of the service fee(s) listed in § 250.125. [FR Doc. E7-3846 Filed 3-5-07; 8:45 am] BILLING CODE 4310-MR-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [COTP San Francisco Bay 07-003] RIN 1625-AA00 Safety Zone; Liberty Island Conductor Removal, Sacramento River, CA AGENCY: Coast Guard, DHS. ACTION: Notice of proposed rulemaking. SUMMARY: The Coast Guard proposes to establish a safety zone in the navigable waters of the Sacramento River that will prohibit vessels and people from entering into or remaining within close proximity to the deep water channel. Pacific Gas and Electric Company (PG&E) will be removing a conductor from the Liberty Island towers, two of which cross over the deep water channel, on March 28, 2007. The proposed safety zone will close the deep water channel for approximately 30 minutes during the conductor removal. DATES: Comments and related material must reach the Coast Guard on or before March 14, 2007. ADDRESSES: You may mail comments and related material to United States Coast Guard Sector San Francisco, Waterways Safety Branch, Yerba Buena Island, Bldg. 278, San Francisco, California, 94130. The Waterways Safety Branch of Sector San Francisco maintains the public docket for this rulemaking. Comments and material received from the public, as well as documents indicated in this preamble as being available in the docket, will become part of this docket and will be available for inspection or copying at the Waterways Safety Branch of Sector San Francisco between 9 a.m. and 4 p.m., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Lieutenant Eric Ramos, U.S. Coast Guard Sector San Francisco, at
(415)556-2950 or Sector San Francisco 24-hour Command Center at
(415)399-3547. SUPPLEMENTARY INFORMATION: Request for Comments We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP SF 07-003), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. Public Meeting We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Coast Guard Sector San Francisco, Waterways Safety Branch at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the **Federal Register** . Background and Purpose PG&E will be removing a conductor from the Liberty Island towers on March 28, 2007. Two of the towers cross the Sacramento deep water channel. PG&E will use a helicopter to cut the conductor off of one tower and it will fall into the water. They will then recover the cut conductor and place it on the bank before continuing to remove the rest of the conductors from the remaining towers that are over land. Discussion of Proposed Rule This proposed safety zone will encompass the navigable waters of the Sacramento River from the surface to the sea floor, encompassing a circular area with a 500-yard radius at position 38°17.072′N / 121°39.619′W (NAD 83) for the removal of a conductor from a tower that crosses over the deep water channel. This proposed safety zone is necessary to protect persons and vessels from hazards, injury, and damage associated with the conductor removal. Regulatory Evaluation This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. Although this rule will restrict access to the waters encompassed by the proposed safety zone, the effect of this rule is not expected to be significant because the local waterway users will be notified via public broadcast notice to mariners to ensure the proposed safety zone will result in minimum impact. The entities most likely to be affected are pleasure craft engaged in recreational activities. Small Entities Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This safety zone is not expected to have a significant economic impact on a substantial number of small entities for the following reasons. This rule will only be in effect for approximately 30 minutes. Although the safety zone will apply to the entire width of the channel, traffic may be allowed to pass through the zone with the permission of the Coast Guard patrol commander. Before the effective period, we will issue maritime advisories widely available to users of the river. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it. Assistance for Small Entities Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact (see ADDRESSES ). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard. Collection of Information This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.). Federalism A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble. Taking of Private Property This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. Civil Justice Reform This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. Protection of Children We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children. Indian Tribal Governments This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Energy Effects We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed 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 made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES . Comments on this section will be considered before we make the final decision on whether this rule should be categorically excluded from further environmental review. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR Part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for Part 165 continues to read as follows: Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11-171, to read as follows: § 165.T11-171 Safety Zone; Sacramento River Deep Water Channel, California.
(a)*Location.* This safety zone encompasses the navigable waters of the Sacramento River from the surface to the sea floor and is bounded by the arc of a circle with a 500-yard radius from position 38°17.072′N 121°39.619′W (NAD 83).
(b)*Effective Date.* This rule will be in effect on March 28, 2007 from approximately 11 a.m. through 11:30 a.m.
(c)*Regulations.* In accordance with the general regulations in § 165.23 of this part, entry into, transit through, or anchoring within this safety zone by all vessels and persons will be prohibited, unless specifically authorized by the Captain of the Port San Francisco, or his designated representative. Dated: February 16, 2007. W.J. Uberti, Captain, U.S. Coast Guard, Captain of the Port, San Francisco. [FR Doc. E7-3804 Filed 3-5-07; 8:45 am] BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA-HQ-OAR-2005-0031; FRL-8283-5] RIN 2060-AN97 Standards of Performance for Fossil-Fuel-Fired Steam Generators for Which Construction Is Commenced After August 17, 1971; Standards of Performance for Electric Utility Steam Generating Units for Which Construction Is Commenced After September 18, 1978; Standards of Performance for Industrial-Commercial-Institutional Steam Generating Units; and Standards of Performance for Small Industrial-Commercial-Institutional Steam Generating Units AGENCY: Environmental Protection Agency (EPA). ACTION: Extension of public comment period. SUMMARY: EPA is announcing the extension of the public comment period on the proposed reconsideration amendments to the new source performance standards
(NSPS)for electric utility steam generating units and industrial-commercial-institutional steam generating units. EPA originally requested comments on the proposed rule by March 12, 2007 (February 9, 2007,72 FR 6320). EPA is extending the deadline to March 26, 2007, and is now requesting written comments by that date. EPA received a request for a 15 day extension to the comment period from the Utility Air Regulatory Group, the Council of Industrial Boiler Owners, and the Coke Oven Environmental Task Force. The reason given for requesting the extension was the need for additional time to gather data and review the proposed amendments. Since the original comment period was 30 days, EPA finds this request reasonable. DATES: *Comments.* Comments must be received on or before March 26, 2007. ADDRESSES: *Comments.* Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2005-0031, by one of the following methods: • *www.regulations.gov.* Follow the on-line instructions for submitting comments. • *E-mail: a-and-r-docket@epa.gov.* • *By Facsimile:*
(202)566-1741. • *Mail:* Air and Radiation Docket, U.S. EPA, Mail Code 6102T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. EPA requests a separate copy also be sent to the contact person identified below (see FOR FURTHER INFORMATION CONTACT ). • *Hand Delivery:* EPA Docket Center, Docket ID Number EPA-HQ-OAR-2005-0031, EPA West Building, 1301 Constitution Ave., NW., Room 3334, Washington, DC, 20004. Such deliveries are accepted only during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-HQ-OAR-2005-0031. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The *http://www.regulations.gov* website is an “anonymous access” systems, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *http://www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm. Docket:* All documents in the docket are listed in the *http://www.regulations.gov index.* Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in *http://www.regulations.gov* or in hard copy at the Air and Radiation Docket EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is
(202)566-1744, and the telephone number for the Air and Radiation Docket is
(202)566-1742. FOR FURTHER INFORMATION CONTACT: Mr. Christian Fellner, Energy Strategies Group, Sector Policies and Programs Division (D243-01), U.S. EPA, Research Triangle Park, NC 27711, telephone number
(919)541-4003, facsimile number
(919)541-5450, electronic mail (e-mail) address: *fellner.christian@epa.gov.* List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: February 28, 2007. William L. Wehrum, Acting Assistant Administrator for Air and Radiation. [FR Doc. E7-3878 Filed 3-5-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 229 [Docket No. FRA-2006-26174] RIN 2130-AB83 Locomotive Safety Standards; Sanders AGENCY: Federal Railroad Administration (FRA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: FRA proposes to revise the existing requirements related to sanders on locomotives. The proposed rule would modify the existing regulations by permitting additional flexibility in the use of locomotives with inoperative sanders. The proposal would provide railroads the ability to better utilize their locomotive fleets while ensuring that locomotives are equipped with operative sanders in situations where they provide the most benefit from a safety and operational perspective. The proposed rule would also make the regulations related to operative sanders more consistent with existing Canadian standards related to the devices. DATES:
(1)Written comments must be received by May 7, 2007. Comments received after that date will be considered to the extent possible without incurring additional expenses or delays.
(2)FRA anticipates being able to resolve this rulemaking without a public, oral hearing. However, if FRA receives a specific request for a public, oral hearing prior to April 5, 2007, one will be scheduled and FRA will publish a supplemental notice in the **Federal Register** to inform interested parties of the date, time, and location of any such hearing. ADDRESSES: *Comments:* Comments related to Docket No. FRA-2006-26174, may be submitted by any of the following methods: Web site: *http://dms.dot.gov.* Follow the instructions for submitting comments on the DOT electronic docket site. Fax: 202-493-2251. Mail: Docket Management Facility, U.S. Department of Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, Washington, DC 20590-001. Hand Delivery: Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays. Federal eRulemaking Portal: Go to *http://www.regulations.gov.* Follow the online instructions for submitting comments. *Instructions:* All submissions must include the agency name and docket number or Regulatory Identification Number
(RIN)for this rulemaking. Note that all comments received will be posted without change to *http://dms.dot.gov* including any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials. *Docket:* For access to the docket to read background documents or comments received, go to *http://dms.dot.gov* at any time or to PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. and 5 p.m. Monday through Friday, except Federal Holidays. FOR FURTHER INFORMATION CONTACT: George Scerbo, Office of Safety Assurance and Compliance, Motive Power & Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6247), or Michael Masci, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6037). SUPPLEMENTARY INFORMATION: I. Statutory and Regulatory Background FRA has broad statutory authority to regulate railroad safety. The Locomotive Inspection Act (formerly 45 U.S.C. 22-34, now 49 U.S.C. 20701-20703) was enacted in 1911. It prohibits the use of unsafe locomotives and authorizes FRA to issue standards for locomotive maintenance and testing. In order to further FRA's ability to respond effectively to contemporary safety problems and hazards as they arise in the railroad industry, Congress enacted the Federal Railroad Safety Act of 1970 (Safety Act) (formerly 45 U.S.C. 421, 431 *et seq.* , now found primarily in chapter 201 of Title 49). The Safety Act grants the Secretary of Transportation rulemaking authority over all areas of railroad safety (49 U.S.C. 20103(a)) and confers powers necessary to detect and penalize violations of any rail safety law. This authority was subsequently delegated to the FRA Administrator (49 CFR 1.49) (Until July 5, 1994, the Federal railroad safety statutes existed as separate acts found primarily in title 45 of the United States Code. On that date, all of the acts were repealed, and their provisions were recodified into title 49.). Pursuant to its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address the safety of railroad track, signal systems, communications, rolling stock, operating practices, passenger train emergency preparedness, alcohol and drug testing, locomotive engineer certification, and workplace safety. In the area of locomotive safety, FRA has issued regulations, found at 49 CFR part 229 (“part 229”), addressing topics such as inspections and tests, safety requirements for brake, draft, suspension, and electrical systems, and cabs and cab equipment. All references to parts and sections in this document shall be to parts and sections located in Title 49 of the Code of Federal Regulations. FRA continually reviews its regulations and revises them as needed to keep up with emerging technology. On July 12, 2004, the Association of American Railroads (AAR), on behalf of itself and its member railroads, petitioned the FRA to delete the requirement as contained in 49 CFR 229.131. The petition and supporting documentation asserted that contrary to popular belief, depositing sand on the rail will not have any significant influence on the emergency stopping distance of a train. Subsequent to the petition, FRA and interested industry members began identifying various issues related to locomotive safety standards with the intent that FRA would potentially address the issues through its Railroad Safety Advisory Committee (RSAC). II. RSAC Overview In March 1996, FRA established the RSAC, which provides a forum for developing consensus recommendations on rulemakings and other safety program issues. The Committee includes representation from all of the agency's major customer groups, including railroads, labor organizations, suppliers and manufacturers, and other interested parties. A list of member groups follows: American Association of Private Railroad Car Owners (AARPCO) American Association of State Highway & Transportation Officials (AASHTO) American Public Transportation Association
(APTA)American Short Line and Regional Railroad Association (ASLRRA) American Train Dispatchers Association
(ATDA)Amtrak Association of American Railroads
(AAR)Association of Railway Museums
(ARM)Association of State Rail Safety Managers (ASRSM) Brotherhood of Locomotive Engineers and Trainmen
(BLET)Brotherhood of Maintenance of Way Employees Division (BMWED) Brotherhood of Railroad Signalmen
(BRS)Federal Transit Administration (FTA)* High Speed Ground Transportation Association (HSGTA) International Association of Machinists and Aerospace Workers International Brotherhood of Electrical Workers
(IBEW)Labor Council for Latin American Advancement (LCLAA)* League of Railway Industry Women* National Association of Railroad Passengers
(NARP)National Association of Railway Business Women* National Conference of Firemen & Oilers National Railroad Construction and Maintenance Association National Railroad Passenger Corporation (Amtrak) National Transportation Safety Board (NTSB)* Railway Supply Institute
(RSI)Safe Travel America
(STA)Secretaria de Communicaciones y Transporte* Sheet Metal Workers International Association (SMWIA) Tourist Railway Association Inc. Transport Canada* Transport Workers Union of America
(TWU)Transportation Communications International Union/BRC (TCIU/BRC) United Transportation Union
(UTU)*Indicates associate membership. When appropriate, FRA assigns a task to the RSAC, and after consideration and debate, the RSAC may accept or reject the task. If a task is accepted, the RSAC establishes a working group that possesses the appropriate expertise and representation of interests to develop recommendations to FRA for action on the task. These recommendations are developed by consensus. A working group may establish one or more task forces to develop facts and options on a particular aspect of a given task. The task force then provides that information to the working group for consideration. If a working group comes to unanimous consensus on recommendations for action, the package is presented to the RSAC for a vote. If the proposal is accepted by a simple majority of the RSAC, the proposal is formally recommended to FRA. FRA then determines what action to take on the recommendation. Because FRA staff has played an active role at the working group level in discussing the issues and options and in drafting the language of the consensus proposal, FRA is often favorably inclined toward the RSAC recommendation. However, FRA is in no way bound to follow the recommendation and the agency exercises its independent judgment on whether the recommended rule achieves the agency's regulatory goal, is soundly supported, and is in accordance with policy and legal requirements. Often, FRA varies in some respects from the RSAC recommendation in developing the actual regulatory proposal. If the working group or the RSAC is unable to reach consensus on recommendations for action, FRA moves ahead to resolve the issue through traditional rulemaking proceedings. III. Proceedings to Date On February 22, 2006, FRA presented, and the RSAC accepted, the task of reviewing existing locomotive safety needs and recommending consideration of specific actions useful to advance the safety of rail operations. The RSAC established the Locomotive Safety Standards Working Group (Working Group) to handle this task and develop recommendations for the full RSAC to consider. Members of the Working Group, in addition to FRA, included the following: APTA ASLRRA Amtrak AAR ASRSM BLET BMWE BRS BNSF Railway Company
(BNSF)California Department of Transportation Canadian National Railway
(CN)Canadian Pacific Railway
(CP)Conrail CSX Transportation
(CSXT)Florida East Coast Railroad General Electric
(GE)Genesee & Wyoming Inc. International Association of Machinists and Aerospace Workers IBEW Kansas City Southern Railway
(KCS)Long Island Rail Road Metro-North Railroad MTA Long Island National Conference of Firemen and Oilers Norfolk Southern Corporation
(NS)Public Service Commission of West Virginia Rail America, Inc. Southeastern Pennsylvania Transportation Agency SMWIA STV, Inc. Tourist Railway Association Inc. Transport Canada Union Pacific Railroad
(UP)UTU Volpe Center Wabtech Corporation Watco Companies The task statement approved by the full RSAC sought immediate action from the Working Group regarding the need for and usefulness of the existing regulation related to locomotive sanders. The task statement established a target date of 90 days for the Working Group to report back to the RSAC with recommendations to revise the existing regulatory sander provision. The Working Group conducted two meetings that focused almost exclusively on the sander requirement. The meetings were held on May 8-10, 2006, in St. Louis, Missouri, and on August 9-10, 2006, in Fort Worth, Texas. Minutes of these meetings have been made part of the docket in this proceeding. After broad and meaningful discussion related to the potential safety and operational benefits provided by equipping locomotives with operative sanders, the Working Group reached consensus on a recommendation for the full RSAC. On September 21, 2006, the full RSAC unanimously adopted the Working Group's recommendation on locomotive sanders as its recommendation to FRA. The RSAC recommendation included the Working Group's consensus rule text, and requested that FRA draft a regulatory proposal related to the use of sanders on locomotives performing switching service at outlying locations. The Working Group's discussion of outlying locations had been based on an apparent need to distinguish locations that did not have sufficient access to a sand delivery system from those that do have such access. FRA has reviewed and accepted RSAC's recommendation and has developed this regulatory proposal based on that recommendation. The specific regulatory language recommended by the RSAC has been amended slightly for clarity and consistency and FRA has independently developed provisions related to the use of sanders on locomotives used in switching service at outlying locations. FRA agrees with the Working Group's determination that locomotive sanders provide limited safety benefits and that the primary benefits derived from the devices are operational. Accordingly, this proposal attempts to preserve the limited safety benefits while addressing the overly restrictive nature of the existing provision. This proposal is intended to provide appropriate relief from the existing requirement by creating a more precise standard. Under the existing requirements, a locomotive cannot depart from a daily inspection with inoperative sanders and can only move as far as the next daily inspection if sanders become inoperative en route. The proposal attempts to require sander maintenance based on operational realities instead of the current time-based standard. The NPRM provides relief according to specific identified operational conditions. The proposal distinguishes between the following conditions: Lead and non-lead locomotives; locomotives in road service and switching service; and, locomotives at locations with or without a sand delivery system. These distinctions would modify the current requirement to better reflect railroad operations while maintaining the current level of safety. The proposed rule would also harmonize the sander requirement with the Canadian rule by placing a fourteen day limit on service for lead locomotives in road service with inoperative sanders, in lieu of the current requirement. Throughout the preamble discussion of this proposal, FRA refers to comments, views, suggestions, or recommendations made by members of the Working Group. When using this terminology, FRA is referring to views, statements, discussions or positions identified or contained in the minutes of the Working Group meetings. These documents have been made part of the docket in this proceeding and are available for public inspection as discussed in the ADDRESSES portion of this document. These points are discussed to show the origin of certain issues and the course of discussions on those issues at the task force or working group level. We believe this helps illuminate factors FRA has weighed in making its regulatory decisions, and the logic behind those decisions. The reader should keep in mind, of course, that only the full RSAC makes recommendations to FRA, and it is the consensus recommendation of the full RSAC on which FRA is acting. IV. Technical Background On July 12, 2004, the AAR, on behalf of itself and its member railroads, petitioned the FRA to delete the requirement as contained in 49 CFR 229.131, which states, “[e]xcept for MU locomotives, each locomotive shall be equipped with operable sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement.” AAR's rationale for its petition was that, despite being in existence for many decades, this requirement does not provide any safety benefit. Enclosed with the petition was a presentation by CN to the 81st Annual Meeting of the Air Brake Association in September 1989. In that presentation, CN reported on a number of tests that measured the stopping distances of a train from emergency braking with and without sanding, with the conclusion that sanding from the locomotive consistently did not have any significant influence upon the emergency stopping distance of freight trains. Subsequently, FRA reviewed the overall operation of locomotive sanders to fully evaluate the petition. In addition to stopping distances, FRA examined other ramifications that the lack of sanding may have on the operation of locomotives and trains. For each technical aspect affected, FRA wanted to determine if it affects safety, operation efficiency, or both. A. Adhesion A generally recognized benefit of sanding is improved adhesion of the locomotive wheels to the rail. The maximum force or pull that a locomotive can generate in order to pull a train is limited by the weight of the locomotive and the amount of adhesion that it can maintain without wheel slippage. Once the wheel starts to slip, the pulling force is greatly reduced. Adhesion is critical for the locomotive pulling power on a steep grade. For a heavy freight train, the grade resistance will slow the train in an uphill move. As the speed drops, the tractive effort of the locomotive consist will go up. At a certain speed, the tractive effort may balance the total resistance including that from the grade. In that case, a constant speed can be maintained for the train to crest over the peak. However, at a low speed, the adhesion limit becomes an important factor because the maximum tractive effort that the locomotives can develop to pull the train is the product of the locomotive weight and the adhesion limit. Heavier six-axle locomotives can develop a higher tractive effort than the lighter four-axle locomotives of the same horsepower. If this maximum tractive effort is not sufficient to overcome the total resistance, the train will eventually stall on this grade. The presence of a stalled train on mainline track creates a safety issue as well as an apparent operational inconvenience. In addition, a stalled train at a grade crossing could tempt pedestrians to cross through the train. As the pedestrian crosses, the train could move and injure the pedestrian. The use of sand could prevent such a potentially dangerous situation. If the total horsepower results in force output higher than the maximum tractive effort that the adhesion between rail and wheel can provide, wheel slip will occur resulting in the actual pulling force being limited by the maximum tractive effort. Under this condition, sanding will provide a higher adhesion coefficient, boosting the maximum tractive effort. In some previous studies with conventional DC motors, the adhesion limit with smooth wheels on smooth rails can be as low as 10 percent under wet rail condition. With sanding, the adhesion can be increased to 30 percent. The same principle applies to AC motors, except that the adhesion limits with and without sanding will both be higher because of the inherent advantage of AC motors. For dispatching purposes, the railroads produce tonnage-rating tables that are used to determine the number and the kind of locomotives to be assigned to a train given its length and weight. These tables are often developed with the assumption that sanding is available to boost the adhesion limit. Appropriate adhesion limits with the use of sanding are assumed for various types of locomotive equipment to calculate the available maximum tractive effort to ensure that trains will not stall on the ruling grade. This is particularly important for heavy merchandise trains, unit coal trains, and unit mineral trains. Speed is not very important for these trains. For better asset utilization and overall operation efficiency, railroads want to assign just enough locomotive units to enable the trains to climb up the ruling grade at low speed but not to stall. Sanding is very useful to increase the tractive effort. Using sanding to improve adhesion, railroads can reduce the number of locomotives assigned to a train, resulting in lower locomotive cost, one of the important factors in the overall cost structure of a rail operation. Sanding will increase the capability of a train to climb up the ruling grade. While lack of sanding will affect the efficiency of train operations and will become a safety issue if the train stalls on the track, the operational issue may be resolved if the locomotive engineer handles the situation to prevent undesirable consequences from wheel slipping. With automatic wheel slip control, the system will see wheel slip, cut power to the traction motor for a short duration, and reapply the power. If the engineer maintains the high throttle position, the traction motor will again overpower the adhesion, and the wheels will slip again. This continuous recycling of power on and power off of the traction motors will cause the locomotive to chatter loudly. This phenomenon may cause damage to wheel and rail. The train forces may spike high and low, leading to track train dynamics problems. Sometimes rail corrugation and rail burns are attributed to continuous wheel slipping, which is a common practice. Under this circumstance, the locomotives should be throttled down gradually to avoid long duration of wheel slipping. The train should be anchored on the grade, and the crew should call for help. Although the various railroads' airbrake and train-handling manuals do not describe this instruction and procedure, it is a common practice for an underpowered train with insufficient pulling force to successfully operate up a grade with or without sanding. Some members of the Working Group raised the concern that damage to rail from slipping wheels can lead to development of transverse defects and broken rails. Corrugation and shelling of the rail head can mask internal rail defects and can defeat internal rail flaw detection. These circumstances can lead to train derailments unless they are properly managed, and the heavy cumulative tonnages experienced by most rail now in service is already taxing the ability of the railroads to manage these issues successfully. Railroads are expected to manage these issues and have done so thus far. FRA invites comments on this issue. B. Braking Distance As sanding may increase the coefficient of friction between wheel and rail, one may anticipate that sanding can reduce the stopping distance of a train from braking, especially on wet rail. However, the following factors should be considered before drawing such a conclusion: • The increase in friction is on the first few sets of axles only (i.e., on the locomotives). Sanding will splash and be dispersed rather quickly from the rails once several wheels roll over it. Over 90 percent of the wheels in a train will likely not receive any benefit from sanding. Thus, it is unlikely that the stopping distance will be affected by it. • Wet rail and dirty rail can be dried out and cleaned out rather quickly with the rolling of several axles on it. In numerous field tests, the second locomotive's tractive effort is always 20-30 percent higher than the first unit, especially on wet rail. This is an indication that the rail can be dried out and cleaned out just by one locomotive passing over it. Therefore, wet rail conditions will only affect one to two locomotives, and the rest of a train will be braked on relatively dry conditions, even though the rails are originally wet. Given the above explanation, sanding will hardly make any difference in the braking performance of all the cars behind the locomotives. • Engineers have been trained to rely on dynamic brakes instead of the pneumatic brakes, unless during extreme emergency situations. In emergency braking, little difference will occur in stopping distance with or without sanding because, as explained earlier, sanding likely only affects, if any, the braking efforts of the first few axles. • When insufficient adhesion prevails during braking, the wheels may slide. The coefficient of friction during this sliding will maintain the retardation rate of the trains. Therefore, it is not surprising that the results of CN's testing show that the emergency braking stopping distances under various speeds and conditions were unchanged by sanding. However, the results of the test of the stopping distances of a short VIA passenger train with and without sanding were somewhat less expected. The conclusion for the VIA test was the same as that for the freight trains. As the train consist is very short for the passenger trains, typically as short as several vehicles, the factors described above are not all applicable to the passenger trains. It may be expected that some effect would occur on the stopping distance of a passenger train as a result of sanding. The vehicles in the tested passenger trains had mixed wheel and disk braking, but it is not clear as to how disk braking is affected by sanding. Nonetheless, the tests with VIA trains, submitted by the AAR with the petition, showed that sanding had no effect in the stopping distance of the trains. Even if sanding can affect the braking of these short passenger trains, we should note that the stopping distance of a short passenger train is extremely short compared to the heavy freight trains, and therefore the actual difference in the stopping distance will not be too significant. Some MU equipment always avoids sanding because this equipment is light and the number of axles in a train is usually small, thus, rail-shunting ability may get affected by sanding. This is the primary reason why the MU equipment is not equipped with sanders. The braking distance tests submitted by the railroads did not include stopping distances for “lite” locomotive consists. Locomotives are frequently moved without cars in order to reposition power. Lite locomotives do not respond favorably to braking because of the ratio of axle load to available rail/wheel contact zone. Despite results in other brake tests, FRA would expect that sand applied on multiple axles could be an important contributor to maintaining satisfactory stopping distances of lite locomotive consists under unfavorable conditions (wet rail, etc.). FRA also notes that the Working Group received little information related to actual use of sand in conjunction with extended range dynamic braking, which is now used extensively to slow trains and (with rolling resistance and perhaps the independent brake) bring them to a stop. Locomotive engineers may utilize dynamic brakes rather than the automatic train brake, where possible, in order to conserve fuel and avoid mechanical problems. C. Operating Rules and Training In order to determine what instructions each railroad gives to the locomotive engineers on the use of sanding, FRA obtained and reviewed the air braking and train handling manuals of NS, CSXT, UP, and BNSF. Past experience indicating that sanding affects the safety of the train operation, would likely be reflected in the instructions given to the engineers in these manuals. The results of the review of the latest version of the manuals revealed the following: • *NS* : No reference to sanding exists in NS-1, “Rules of Equipment Operation and Handling.” Discussion with the senior road foreman revealed that Norfolk Southern simply instructed locomotive engineers to use sanding to improve adhesion when wheels start to slip. The railroad does instruct engineers to back off the throttle if wheel slip continues to occur even with sanding. If the train stalls on the ruling grade, then the engineer must ask for help. • *CSXT* : Only one section of the railroad's operating rules makes reference to sanding (excluding instructions to check for sander operation during daily inspection): 5503 Sanding Use—sand as provided below: 1. Use sand only when necessary to improve traction, which includes “sanding the rail;” 2. When conditions require, use sand as the train is stopping to avoid wheel slipping when starting; and 3. Use trainline sanding only when front/lead truck sanding proves inadequate. CSXT's rules also include the definition of sanding, which states: “Sanding the Rail: A term used to describe the act of putting sand on a rail in advance of an anticipated train movement to ensure greater adhesion when movement begins.” • *UP* : No specific instruction exists on the circumstance and manner that sanding should be used, other than instructions to check for sanding operation during daily inspection. • *BNSF* : Other than instructions to check for sanding operation during daily inspection, BSNF's rules include the statement, “Apply sand as conditions warrant,” in sections to instruct how to operate during start, going upgrade, negotiating undulating grade, and cresting grade. In the two sections where instructions are given to stop a train in a descending grade or controlling the speed using dynamic brake, the engineers must perform the following steps: • As dynamic braking becomes ineffective near the stopping point, turn on the sand and develop enough brake cylinder pressure with the independent brake valve to prevent forward surge. • Make a final brake pipe reduction to complete the stop with the service exhaust blowing at the stopping point. • After stopping, move the dynamic brake controller to OFF and reduce the remote(s) DB to IDLE. • Fully apply the independent brake and turn off the sand after the stop is completed. Apparently, BNSF believes that the use of sanding with the independent brake at near zero speed will brake the locomotive more effectively so that a surge of the locomotives can be prevented when dynamic braking becomes ineffective. However, it is not a general practice for all railroads to operate that way. D. Train Simulations The AAR Train Operation and Energy Simulation
(TOES)Model makes no mention of the use of sand for braking purposes. This further points to the conclusion that sanding is not considered for emergency or other braking purposes. E. General Considerations In the Working Group, representatives of locomotive engineers supported retention of a requirement for provision of sand to support safe and efficient operations. FRA is conscious of the fact that, unlike other safety statutes, the Locomotive Inspection law, at 49 U.S.C. 20701, requires that each locomotive be “in proper condition” as well as “safe”. Railroad representatives agree that sand remains useful for adhesion in many circumstances and would not remove sanders from locomotives even if allowed to do so. These considerations argue for proceeding with caution as the regulation is revised. Finally, it should be noted that there are a variety of situations in yard switching (where locomotives only may be relied upon for stopping a switching movement) and over the road (where it is necessary to cross a ruling grade with marginal motive power) where sand would ordinarily be relied upon. Members of the Working Group raised the possibility that a locomotive engineer might feel compelled to skirt other safeguards in order to overcome operational difficulties should sand be unavailable. This is a concern that should be factored in when determining how much latitude to provide in this rulemaking. FRA welcomes comment on this issue. V. Current Regulatory Impediments Relaxing the locomotive sanding requirement as proposed would maintain safety and would allow railroads to better utilize their locomotive fleets. The current requirement allows a locomotive found with a defective sander to continue in service to the next forward location where repairs can be made or the next calendar day inspection, which ever occurs first. Under the proposed requirement, a lead locomotive in an over-the-road train may continue to be utilized by the railroad for up to fourteen days; in the case of a trailing locomotive, it may continue to be utilized by the railroad until placed in a facility with a sand delivery system or departure from an initial terminal. Sanding may reach optimal effectiveness even where one or more locomotive sanders in a consist is inoperative. Locomotives are routinely equipped with two sanders at each end. Often a consist will contain multiple locomotives. Each locomotive in a multiple-locomotive consist distributes sand to the rail. As a result, when each of the locomotives in a multiple locomotive consist are operating with all sanders operative, the train could potentially distribute more sand to the rail than it will utilize. At that point the effect of the sand on the train would be the same if one or two sanders in the consist were inoperative. Requirements for sanders can be traced back to the steam locomotive era; at that time, sanding the rail was thought to enhance adhesion between the steam locomotive wheel and the rail. Modern diesel locomotives rely on wheel slip and wheel creep devices, as well as sand, to provide adhesion between the wheel and rail. Where sanders are inoperative on a diesel locomotive the total loss of adhesion would be less than it would have been for a steam locomotive. Notably, any reduced adhesion would limit the ability of the locomotive to pull its train. Loss of the ability to pull the train is a productivity concern that is not being addressed by this proposed rule. Sanding the rail in braking mode provides little additional adhesion to a train, because train handling depends primarily on train brakes to maintain train dynamics. The locomotive braking has limited effect. As stated in the technical discussion above, by the time the locomotives in the consist have passed over the sanded rail, little to no sand remains on the rail and little or no benefit is provided to train braking. VI. Section-by-Section Analysis Proposed Amendments to 49 CFR Part 229 Section 229.5 Definitions. FRA is proposing to add the term “sand delivery system” in this section. The term would mean a permanently stationed or fixed device designed to deliver sand to locomotive sand boxes that do not require the sand to be manually delivered or loaded. A sand delivery system will be considered permanently stationed if it is at a location at least five days a week for eight hours per day. FRA seeks views from interested parties regarding this definition. FRA is also proposing to add the term “initial terminal.” The definition of this term would be identical to that currently contained in 49 CFR 232.5 and 238.5. The term would mean “a location where a train is originally assembled.” Section 229.9 Movement of non-complying locomotives. FRA proposes to amend this section to exempt locomotives operated under proposed paragraphs 229.131(b) and (c)(1) from the movement for repair provision contained in Section 229.9. In general, Section 229.9 currently provides movement for repair requirements for part 229. Proposed paragraphs 229.131(b) and (c)(1) contain specific requirements relating to the movement and continued use of locomotives with defective sander equipment. Because the proposed paragraphs specifically address movement for repair, applying Section 229.9 would be superfluous or conflicting, and would no longer be necessary. FRA also proposes to make a clarifying amendment to this section of part 229. Section 229.9 currently contains the following exception that reads: “[e]xcept as provided in * * * 229.125(h)” The exception relates to locomotive auxiliary lights and although a correct citation when originally inserted into the regulations, later amendments to that section resulted in redesignation of the paragraphs. The exception should refer to Section 229.125(g). Like Section 229.131(b) and (c)(1), Section 229.125(g) sets forth movement for repair requirements specific to that section. Consequently, FRA is proposing to make this clarification in this regulatory proceeding. Section 229.131 Sanders. *Paragraph (a)* . This paragraph would establish a general requirement that locomotives be equipped with operative sanders before departing an initial terminal. Any time a locomotive is in use before leaving the initial terminal it will be required to have operative sanders. The term “in use” has been consistently applied to mean when a locomotive is capable of being used. Thus, the locomotive does not have to actually be used to be in use. Examples of a locomotive in use are when a locomotive has been inspected, or a locomotive is on a ready track. FRA agrees with the RSAC's recommendation that the initial terminal would be an appropriate place to initially require operative sanders, because it is a place where sander maintenance can usually be accomplished without imposing a significant burden on the railroad. In many instances, locations where trains are initiated are equipped with sand delivery systems and are capable of making repairs to the sander mechanisms. FRA notes that this proposal will permit locomotives to be released from daily locomotive inspections with inoperative sanders. However, the proposal would require sanders to be repaired or handled for repair under Section 229.9 if defective when the locomotive is preparing to depart from an initial terminal. In instances where repairs cannot be performed, a locomotive may be dispatched from an initial terminal but only under the strict provisions contained in Section 229.9. Thus, the locomotive could only continue in use to the nearest forward location where necessary repairs could be effectuated or to the locomotive's next calendar day inspection, whichever occurs first. FRA further notes that if a locomotive is at an initial terminal for its train and that location has a sand delivery system or is otherwise capable of making sander repairs, then the locomotive may not legally depart that location with inoperative sanders. FRA also intends to make clear that a locomotive's sanders will only be considered operative if appropriate amounts of sand are deposited on each rail in front of the first power operated wheel set in the direction of movement. FRA recognizes that this proposal would be less restrictive than the movement for repair provisions currently contained in Section 229.9. In most instances, locomotives will likely encounter an initial terminal less frequently than a daily inspection. This will facilitate more efficient railroad operations. Under the current provision, a railroad will take a locomotive out of service when a sander defect is found at the daily inspection. By requiring operative sanders less frequently, the new requirement allows the railroad to keep the locomotive in service more often. With more locomotives in service, the railroad will be able to better utilize its power throughout its fleet. *Paragraph (b)* . This paragraph contains the proposed requirements for handling locomotives used in road service where sanders become inoperative after departure from an initial terminal. Road service would be distinguished from yard service because the type of service affects the need for sand. Locomotives performing road service will likely be in longer trains and run at higher speeds than those performing switching service. The existing definition of switching service, as it appears in Sections 229.5 and 232.5, provides background for the distinction between road service and switching service. Switching service means “assembling cars for train movements * * * or moving rail equipment in connection with work service that does not constitute a train movement.” Any movement that is not considered “switching service” would be considered “road service.” Therefore, any service which constitutes a “train movement” would be considered “road service” for purposes of this section. The preamble to the final rule related to part 232 (66 FR 4104, January 17, 2001) contains detailed discussion of the factors that are to be considered when determining what constitutes a “train movement.” *See* 66 FR 4148-49. *Paragraph (b)(1)* . This paragraph proposes requirements related to lead locomotives being used in road service where sanders are discovered to be inoperative after departure from an initial terminal. Once inoperative sanders are discovered on these locomotives, there are four proposed triggers that would determine how long a lead locomotive will be permitted to remain in service with inoperative sanders. The proposed triggers are: the next initial terminal; a location where it is placed in a facility with a sand delivery system; its next periodic inspection under Section 229.23; or fourteen calendar days from the date the sanders are first discovered to be inoperative, whichever occurs first. FRA agrees with the Working Group's determination that the four triggering events will ensure that sanders are repaired in a timely fashion while providing railroads the ability to better utilize their locomotive fleets. Under the existing rule, a locomotive can move only until the next daily inspection with inoperative sanders. Utilizing four different triggers allows the railroad a greater degree of operational flexibility. Each trigger provides a logical point at which sander maintenance should and can be conducted without impacting a railroad's operation to a significant degree. The initial terminal is an appropriate place to require operative sanders for the reasons stated in paragraph 229.131(a). When a locomotive is placed in a facility that has a sand delivery system it is appropriate to require a railroad to provide sander maintenance. Placed in a facility is intended to mean actually placed on trackage with access to the sand delivery system, and not merely passing through a location with a sand delivery system on the premises. Similarly, when a locomotive is given its required periodic inspection it is expected that the location will be capable of providing repairs and additional sand to the locomotive sanders with little burden. Permitting a lead locomotive to remain in service for no longer than fourteen days is reasonable as it permits the locomotive to reach the destination of a long-distance train run, ensures timely repairs to the sanders, and is consistent with the current Canadian requirement. *Paragraph (b)(2).* This paragraph proposes the requirements for handling trailing locomotives, including distributed power locomotives, that are being used in road service when sanders are discovered to be inoperative after departure from an initial terminal. Once inoperative sanders are discovered, the NPRM proposes three triggering events that will determine how long the trailing locomotive will be permitted to remain in service with inoperative sanders. The triggering events proposed in this paragraph are identical to those proposed in paragraph (b)(1) except for the elimination of the fourteen day requirement. FRA agrees with the Working Group's determination that the need to provide sand to a trailing locomotive is less critical than it is for a lead locomotive. The engineer operating the train or locomotive consist may be more familiar with the lead locomotive than with the trailing locomotive. The engineer is likely to be operating from the lead locomotive, and thus, that locomotive is less likely to be switched out of the consist while moving over the road. The term “trailing locomotive,” as used in this paragraph, specifically refers to a locomotive that is located behind the lead locomotive in a train or locomotive consist. A distributed power locomotive, as defined in Section 229.5, is a locomotive that is part of a distributed power system that provides control to a number of locomotives dispersed in a consist from command signals originating in the lead locomotive. The distributed power locomotives are also trailing locomotives because they are located behind the lead locomotive in the train. Including both the terms “trailing locomotives” and “distributed power locomotives” may add clarity by emphasizing all trailing locomotives are subject to the requirements of this paragraph. FRA seeks comment and views from interested parties regarding the relationship between these two terms and whether there is a need to use both terms in this paragraph. *Paragraph (c).* This paragraph proposes requirements for handling locomotives used in switching service where sanders become inoperative. The Working Group and the full RSAC recommended that the use of sand on locomotives performing switching service should be distinguished from locomotives being used in road service as described above in paragraph (b). Included as part of the RSAC's recommendation to FRA in this area, it was requested that FRA unilaterally develop criteria for the handling of locomotives being used in switching service that experience inoperative sanders. The request specifically related to the identification of what constituted locomotives at “outlying locations” and the identification of the triggering events for repairing inoperative sanders on such locomotives. FRA considered the discussions and views provided by members of the Working Group when developing this proposal. Rather than attempt to define what constitutes an “outlying location,” FRA believes that the most appropriate method of distinguishing between switching locomotives and the locations where they operate, is to base the determination on the existence of a sand delivery system at the location. FRA believes that locomotives being used in switching service at a location with a sand delivery system should be able to be maintained and handled for repair in a more timely manner, with less disruption to railroad operations, than locomotives being used in switching service at locations without sand delivery systems. If there is no sand delivery system at a location, then the railroad is required to send maintenance vehicles or crews to the location or is required to move the locomotive to another location to effectuate necessary repairs. This can have a significant impact on the efficiency and continuity of switching operations at certain locations. Thus, paragraphs (c)(1) and (c)(2) separate the requirements for maintaining the sanders on locomotives being used in switching service based on the presence of a sand delivery system at the location where the locomotive is being used. *Paragraph (c)(1).* This paragraph proposes requirements for handling locomotives being used in switching service at locations that are not equipped with a sand delivery system. In order to remain consistent with the overall design of the proposal submitted by the RSAC, FRA believes that some operational flexibility needs to be provided to locomotives being used in switching service at locations not capable of quickly delivering sand or making necessary repairs. As noted above, the simplest way of making this determination is based on whether or not the location has a sand delivery system. FRA believes that seven days is a reasonable amount of time to permit railroads to provide necessary sander attention to a locomotive being used in switching service at a location that does not have a sand delivery system. This amount of time is consistent and within the time frame in which locomotives used in switching service will need some other type of maintenance or attention, most likely re-fueling. The seven day mark appears to be a reasonable outer-limit for the requirement. The second triggering event proposed in this paragraph is if the locomotive becomes due for its periodic inspection pursuant to Section 229.23 of this part. FRA solicits comments and views concerning the appropriateness of this proposed provision. *Paragraph (c)(2).* This paragraph proposes requirements for handling locomotives used in switching service at locations equipped with a sand delivery system. FRA agrees with the opinions of the Working Group and full RSAC that sanders on these types of locomotives can be maintained with little burden on a railroad's operation as they are already at the location where sand can be delivered and effective repairs can be effectuated. Therefore, FRA accepts the RSAC's recommendation and retains the existing requirements applicable to these locomotives. Consequently, when sanders become inoperative on these locomotives they would have to be handled in accordance with the provisions contained in Section 229.9. *Paragraph (d).* This paragraph is proposed in an effort to ensure that any locomotive with inoperative sanders is properly tagged under the tagging provisions contained in Section 229.9(a). As paragraphs
(b)and (c)(1) provide railroads with more flexibility with regard to using a locomotive with inoperative sanders than what is currently permitted by Section 229.9, FRA wants to ensure that proper notification and records are maintained on in-service locomotives with inoperative sanders. Thus, FRA proposes to require that locomotives operating with defective sanders be tagged in accordance with the provisions contained in Section 229.9(a). This will also ensure that the individuals operating the locomotive are fully informed as to the fact that the locomotive they are operating does not have working sanders. VII. Regulatory Impact and Notices Executive Order 12866 and DOT Regulatory Policies and Procedures This rule has been evaluated in accordance with existing policies and procedures, and determined to be non-significant under both Executive Order 12866 and DOT policies and procedures (44 FR 11034; February 26, 1979). FRA has prepared and placed in the docket a regulatory analysis addressing the economic impact of this proposed rule. Document inspection and copying facilities are available at 1120 Vermont Avenue, 7th Floor, Washington, DC 20590. Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Federal Railroad Administration, 400 Seventh Street, SW., Washington, DC 20590. As part of the regulatory impact analysis FRA has assessed quantitative measurements of cost and benefit streams expected from the adoption of this proposed rule. For the twenty year period the estimated quantified costs are minimal. For this period the estimated quantified benefits have a PV of $70.6 million The major benefits anticipated from implementing this proposed rule include: a reduction in the number of times locomotives have sand loaded or the number of times the sanders are made operative. This reduction produces a reduction in injuries related to the operation of filling sand boxes on the locomotive and the employee days absent related to these injures. Finally the proposed rule would also harmonize the sander requirement with the Canadian rule by placing a fourteen day limit on service for lead locomotives in road service with inoperative sanders. Regulatory Flexibility Act and Executive Order 13272 The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) and Executive Order 13272 require a review of proposed and final rules to assess their impact on small entities. FRA has prepared and placed in the docket an Analysis of Impact on Small Entities
(AISE)that assesses the small entity impact of this proposal. Document inspection and copying facilities are available at the Department of Transportation Central Docket Management Facility located in Room PL-401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC 20590. Docket material is also available for inspection on the Internet at *http://dms.dot.gov.* Photocopies may also be obtained by submitting a written request to the FRA Docket Clerk at Office of Chief Counsel, Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590; please refer to Docket No. FRA-2005-23080. “Small entity” is defined in 5 U.S.C. 601 as a small business concern that is independently owned and operated, and is not dominant in its field of operation. The U.S. Small Business Administration
(SBA)has authority to regulate issues related to small businesses, and stipulates in its size standards that a “small entity” in the railroad industry is a railroad business “line-haul operation” that has fewer than 1,500 employees and a “switching and terminal” establishment with fewer than 500 employees. SBA's “size standards” may be altered by Federal agencies, in consultation with SBA and in conjunction with public comment. Pursuant to that authority FRA has published a final statement of agency policy that formally establishes “small entities” as being railroads that meet the line-haulage revenue requirements of a Class III railroad. See 68 FR 24891 (May 9, 2003). Currently, the revenue requirements are $20 million or less in annual operating revenue. The $20 million limit is based on the Surface Transportation Board's threshold of a Class III railroad carrier, which is adjusted by applying the railroad revenue deflator adjustment (49 CFR part 1201). The same dollar limit on revenues is established to determine whether a railroad shipper or contractor is a small entity. For the proposed rule over 600 railroads could potentially be affected. The proposed rule would impact all locomotives except those propelled by steam power. Given this application, only railroads that operate steam locomotives exclusively, would be unaffected. For those railroads that would be affected the impact will be minimal, if any. The focus is on permitting additional flexibility in the use of locomotives with inoperative sanders. It is anticipated that the additional flexibility will produce mostly positive impacts, i.e., savings and injury reductions. The AISE developed in connection with this NPRM concludes that this proposal would not have a significant economic impact on a substantial number of small entities. Thus, FRA certifies that this proposed rule is not expected to have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act or Executive Order 13272. In order to determine the significance of the economic impact for the final rule's Regulatory Flexibility Act requirements, FRA invites comments from all interested parties concerning the potential economic impact on small entities caused by this proposed rule. The Agency will consider the comments and data it receives in making a decision on the small entity impact for the final rule. Paperwork Reduction Act The proposed rule contains one section that would change the current regulation, Section 229.131. The proposed change would not change the current information collection activity. The information collection burden associated with the proposed rule already exists under Section 229.9. OMB clearance for the current rule has been granted and no further approval is sought at this time. If new information collection issues arise in the final rule stage, FRA will seek OMB approval. FRA is not authorized to impose a penalty on persons for violating information collection requirements which do not display a current OMB control number, if required. The OMB control number assigned for information collection related to this proposed rule is OMB No. 2130-0004. Federalism Implications FRA has analyzed this proposed rule in accordance with the principles and criteria contained in Executive Order 13132, issued on August 4, 1999, which directs Federal agencies to exercise great care in establishing policies that have federalism implications. *See* 64 FR 43255. This proposed rule will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. This proposed rule will not have federalism implications that impose any direct compliance costs on State and local governments. FRA notes that the RSAC, which endorsed and recommended the majority of this proposed rule to FRA, has as permanent members two organizations representing State and local interests: AASHTO and the Association of State Rail Safety Managers (ASRSM). Both of these State organizations concurred with the RSAC recommendation endorsing this proposed rule. The RSAC regularly provides recommendations to the FRA Administrator for solutions to regulatory issues that reflect significant input from its State members. To date, FRA has received no indication of concerns about the Federalism implications of this rulemaking from these representatives or of any other representatives of State government. Consequently, FRA concludes that this proposed rule has no federalism implications, other than the preemption of state laws covering the subject matter of this proposed rule, which occurs by operation of law under 49 U.S.C. Section 20106 whenever FRA issues a rule or order. Environmental Impact FRA has evaluated this proposed regulation in accordance with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 *et seq.* ), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined that this proposed regulation is not a major FRA action (requiring the preparation of an environmental impact statement or environmental assessment) because it is categorically excluded from detailed environmental review pursuant to section 4(c)(20) of FRA's Procedures. 64 FR 28547, May 26, 1999. Section 4(c)(20) reads as follows:
(c)Actions categorically excluded. Certain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. * * * The following classes of FRA actions are categorically excluded: * * *
(20)Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions or air or water pollutants or noise or increased traffic congestion in any mode of transportation. In accordance with section 4(c) and
(e)of FRA's Procedures, the agency has further concluded that no extraordinary circumstances exist with respect to this regulation that might trigger the need for a more detailed environmental review. As a result, FRA finds that this proposed regulation is not a major Federal action significantly affecting the quality of the human environment. Unfunded Mandates Reform Act of 1995 Pursuant to Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that “before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $128,100,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement” detailing the effect on State, local, and tribal governments and the private sector. The proposed rule would not result in the expenditure, in the aggregate, of $128,100,000 or more in any one year, and thus preparation of such a statement is not required. Privacy Act FRA wishes to inform all potential commenters that anyone is able to search the electronic form of all comments received into any agency docket by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit *http://dms.dot.gov* . List of Subjects in 49 CFR Part 229 Locomotives, Railroad safety, and Sanders. The Proposed Rule For the reasons discussed in the preamble, FRA proposes to amend part 229 of chapter II, subtitle B of Title 49, Code of Federal Regulations, as follows: PART 229—[AMENDED] 1. The authority citation for part 229 continues to read as follows: Authority: 49 U.S.C. 20102-03, 20107, 20133, 20137-38, 20143, 20701-03, 21301-02, 21304; 28 U.S.C. 2401, note; and 49 CFR 1.49(c), (m). 2. Section 229.5 is amended by adding alphabetically the definitions of “initial terminal” and “sand delivery system” to read as follows: § 229.5 Definitions. *Initial terminal* means a location where a train is originally assembled. *Sand delivery system* means a permanently stationed or fixed device designed to deliver sand to locomotive sand boxes that do not require the sand to be manually delivered or loaded. A sand delivery system will be considered permanently stationed if it is at a location at least five days a week for eight hours per day. 3. Section 229.9 is amended by revising the introductory phrase contained in paragraph
(a)to read as follows: § 229.9 Movement of non-complying locomotives.
(a)Except as provided in paragraphs (b), (c), § 229.125(g), and § 229.131(b) and (c)(1), * * * 4. Section 229.131 is revised to read as follows: § 229.131 Sanders.
(a)Prior to departure from an initial terminal, each locomotive, except for MU locomotives, shall be equipped with operative sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement or shall be handled in accordance with the requirements contained in § 229.9.
(b)Locomotives being used in road service with sanders that become inoperative after departure from an initial terminal shall be handled in accordance with the following:
(1)Lead locomotives being used in road service that experience inoperative sanders after departure from an initial terminal may continue in service until the earliest of the following occurrences:
(i)Arrival at the next initial terminal;
(ii)Arrival at a location where it is placed in a facility with a sand delivery system;
(iii)The next periodic inspection under § 229.23; or,
(iv)Fourteen calendar days from the date the sanders are first discovered to be inoperative; and
(2)Trailing locomotives and distributed power locomotives being used in road service that experience inoperative sanders after departure from an initial terminal may continue in service until the earliest of the following occurrence:
(i)Arrival at the next initial terminal;
(ii)Arrival at a location where it is placed in a facility with a sand delivery system; or,
(iii)The next periodic inspection under § 229.23.
(c)Locomotives being used in switching service shall be equipped with operative sanders that deposit sand on each rail in front of the first power operated wheel set in the direction of movement. If the sanders become inoperative, the locomotives shall be handled in accordance with the following:
(1)Locomotives being used in switching service at a location not equipped with a sand delivery system may continue in service for seven calendar days from the date the sanders are first discovered inoperative or until its next periodic inspection under § 229.23, which ever occurs first; and
(2)Locomotives being used in switching service at locations equipped with a sand delivery system shall be handled in accordance with the requirements contained in § 229.9.
(d)Locomotives being handled under the provisions contained in paragraph
(b)and (c)(1) of this section shall be tagged in accordance with § 229.9(a). Issued in Washington, DC, on February 27, 2007. Joseph H. Boardman, Federal Railroad Administrator. [FR Doc. E7-3885 Filed 3-5-07; 8:45 am] BILLING CODE 4910-06-P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 RIN 1018-AT37 Endangered and Threatened Wildlife and Plants; Proposed Rule To Remove the Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus) from the Federal List of Endangered and Threatened Wildlife AGENCY: Fish and Wildlife Service, Interior. ACTION: Proposed rule; extension of comment period; correction. SUMMARY: We, the U.S. Fish and Wildlife Service (Service or we), extended the public comment period on the proposed rule to remove the Virginia northern flying squirrel ( *Glaucomys sabrinus fuscus* ), more commonly known as the West Virginia northern flying squirrel (WVNFS), on February 21, 2007 (72 FR 7852). However, we inadvertently left out the e-mail address to which the public could send comments. This document corrects that error. DATES: The public comment period for the proposed rule published on December 19, 2006 (71 FR 75924) ends on April 23, 2007. If you previously submitted a comment through the regulations.gov Web site and did not receive an automatic confirmation that we received your comment, please either resubmit those comments or contact us. If you previously submitted a comment to us via mail, courier, or fax, you do not need to resubmit those comments as they have been incorporated into the public record and will be fully considered in the final determination. Any comments received after the closing date may not be considered in the final decision on the proposal. ADDRESSES: You may submit comments on the proposed delisting by any one of several methods: 1. You may submit written comments and information to the Assistant Chief, Division of Endangered and Threatened Species, U.S. Fish and Wildlife Service, Northeast Regional Office, 300 Westgate Center Drive, Hadley, MA 01035. 2. You may hand-deliver written comments to our Northeast Regional Office, at the above address. 3. You may fax your comments to 413-253-8482. 4. You may e-mail your comments to *wvnfscomments@fws.gov.* 5. You may use the Federal eRulemaking Portal: *http://www.regulations.gov.* Follow the instructions for submitting comments. Comments and materials received will be available for public inspection, by appointment, during normal business hours at our Northeast Regional Office. FOR FURTHER INFORMATION CONTACT: Diane Lynch at our Northeast Regional Office (telephone: 413-253-8628) or the Field Office Supervisor, West Virginia Field Office, 694 Beverly Pike, Elkins, WV 26241 (telephone: 304-636-6586). SUPPLEMENTARY INFORMATION: On December 19, 2006, the Service published a proposed rule (71 FR 75924), under the authority of the Act, to remove the WVNFS from the Federal List of Endangered and Threatened Wildlife, due to recovery. On February 21, 2007, we published a 60-day comment period extension (72 FR 7852) to the proposed rule. However, we inadvertently left out the email address to which the public could send comments. We now correct that error. Please see the comment period extension document (72 FR 7852) for a list of subjects for which we are seeking comments. The public comment period for the proposed rule ends on April 23, 2007. Authority: The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 *et seq.* ). Dated: February 21, 2007. Sara Prigan, Fish and Wildlife Service Federal Register Liaison. [FR Doc. 07-855 Filed 3-5-07; 8:45 am]
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  • 7 CFR 984
  • 7 USC 601-674
  • 14 CFR 39
  • 1 CFR 51
  • 14 CFR 91
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  • 15 CFR 740
  • 15 CFR 742
  • 15 CFR 774
  • 15 CFR 730
  • Pub. L. 106-387
  • Pub. L. 107-56
  • Pub. L. 108-11
  • 117 Stat. 559
  • 10 USC 7430(e)
  • 21 CFR 358
  • 5 USC 601-612
  • 5 CFR 1320.3(c)(2)
  • 529 U.S. 861
  • 21 CFR 310
  • 22 CFR 99
  • 5 USC 533
  • Pub. L. 104-121
  • Pub. L. 104-4
  • 109 Stat. 48
  • 22 CFR 98
  • 42 USC 14901-14954
  • 33 CFR 117
  • 49 CFR 393
  • 49 CFR 393.42(b)
  • 49 CFR 393.48(d)
  • 49 CFR 350.201(a)
  • 49 CFR 396.17
  • 49 CFR 390.5
  • Pub. L. 102-240
  • 105 Stat. 1914
  • 49 CFR 1.73
  • 7 CFR 205
  • 70 CFR 61217
  • 5 CFR 1320
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SCOTUS529 U.S. 861
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