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Code · REGISTER · 2008-01-31 · Environmental Protection Agency (EPA) · Rules and Regulations

Rules and Regulations. Final rule

26,897 words·~122 min read·/register/2008/01/31/08-351

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

BILLING CODE 4910-15-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 239 and 258 [EPA-R07-RCRA-2006-0878; FRL-8523-2] Adequacy of Nebraska Municipal Solid Waste Landfill Program AGENCY: Environmental Protection Agency (EPA). ACTION: Final rule. SUMMARY: This action approves Nebraska's Research, Development and Demonstration (RD&D) permit program and updates to the approved Municipal Solid Waste Landfill Permit (MSWLP) program. On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued to certain municipal solid waste landfills by approved States.
On September 27, 2006, Nebraska submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP Program. On November 16, 2006, the EPA published direct final and proposed rules to approve the application on January 16, 2007, if adverse comment was not received. EPA received adverse comment and withdrew the direct final rule on January 16, 2007. This action addresses the comment and approves the Nebraska application.
DATES: This final determination is effective January 31, 2008. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-R07-RCRA-2006-0878. All documents in the docket are listed on the *http://www.regulations.gov* web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically through *http://www.regulations.gov* or in hard copy at the Environmental Protection Agency, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101. The Regional Office's official hours of business are Monday through Friday, 8:00 to 4:30 excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: Chilton McLaughlin, EPA Region 7, Solid Waste/Pollution Prevention Branch, 901 North 5th Street, Kansas City, Kansas 66101, telephone
(913)551-7666, or by e-mail at *mclaughlin.chilton@epa.gov* . SUPPLEMENTARY INFORMATION: A. Background On March 22, 2004, the EPA issued final regulations allowing RD&D permits to be issued at certain municipal solid waste landfills (69 FR 13242). This new provision may only be implemented by an approved State. While States are not required to seek approval for this new provision, those States that are interested in providing RD&D permits to municipal solid waste landfills must seek approval from EPA before issuing such permits. The current request is for approval to issue RD&D permits. Nebraska received partial approval for 40 CFR part 258 provisions on October 5, 1993 (58 FR 51819). The provision that it received partial approval for did not include requirements for groundwater monitoring at small, arid landfills as required by an opinion by the United States Court of Appeals on February 12, 1992, which instructed EPA to require groundwater monitoring at all landfills. The updated State rules impose groundwater monitoring at small, arid landfills. The current request also incorporates the August 7, 1995, rule (60 FR 40105) which modifies the financial assurance criteria; September 25, 1996, rule (61 FR 50413) which relates to groundwater exemptions of small, arid, remote landfills; November 27, 1996, rule (61 FR 60328 at 60337) which adds financial mechanisms for local governments; and April 10, 1998, rule (63 FR 17706 at 17729) which adds a financial test and corporate guarantee to financial assurance mechanisms. Approval procedures for new provisions of 40 CFR part 258 are outlined in 40 CFR 239.12. On September 27, 2006, Nebraska submitted an application to the EPA seeking Federal approval of its RD&D requirements and to update Federal approval of its MSWLP Program. On November 16, 2006, the EPA published direct final and proposed rules (71 FR 66686 and 71 FR 66722, respectively) to approve the application on January 16, 2007, if adverse comment was not received. EPA received adverse comment and withdrew the direct final rule on January 16, 2007 (72 FR 1670). B. Response to Comment The comment was from the GrassRoots Recycling Network (GRRN). The GRRN objected to Nebraska's effort to implement an RD&D permit program alleging that the underlying RD&D violates the Resource Conservation and Recovery Act
(RCRA)and the National Environmental Policy Act (NEPA). The commenter objected to what it claims are inadequacies in the underlying RD&D rule, namely, an allegedly unlimited number of permits and an allegedly unlimited program duration. EPA is proceeding with its approval of the Nebraska program. First, it should be noted that the timeframe within which challenges to the Federal underlying RD&D rule may be filed has expired. (See 42 U.S.C. 6976, petitions challenging a RCRA regulation must be filed within 90 days of promulgation.) The GRRN has challenged the rule before the U.S. Court of Appeals for the D.C. Circuit, which found that GRRN did not have standing to challenge the rule ( *GrassRoots Recycling Network* v. *EPA* , No. 04-1196 (D.C. Cir.)). Moreover, EPA does not intend to reopen the underlying RD&D rule in its approval of state programs. The issue before the Agency in this action is whether Nebraska's submitted RD&D program is adequate under RCRA and EPA's Subtitle D regulations, but the comment is addressed to the underlying Federal program. Thus, the comment does not change EPA's decision to approve Nebraska's submitted RD&D program. C. Decision After a thorough review, EPA Region 7 determined that Nebraska's RD&D provisions and the updated rules for its Municipal Solid Waste Landfill Permit Program (the August 7, 1995, rule (60 FR 40105) which modifies the financial assurance criteria; September 25, 1996, rule (61 FR 50413) which relates to groundwater exemptions of small, arid, remote landfills; November 27, 1996, rule (61 FR 60328, at 60337) which adds financial mechanisms for local governments; and April 10, 1998, rule (63 FR 17706, at 17729) which adds a financial test and corporate guarantee to financial assurance mechanisms) as defined under Nebraska Title 132—Integrated Solid Waste effective March 7, 2006, are adequate to ensure compliance with the Federal criteria as defined at 40 CFR 258.1, 258.4, 258.70, 258.74, and 258.75. D. Statutory and Executive Order Reviews This action approves State solid waste requirements pursuant to Resource Conservation and Recovery Act
(RCRA)Section 4005 and imposes no Federal requirements. Therefore, this rule complies with applicable executive orders and statutory provisions as follows: 1. Executive Order 12866: Regulatory Planning Review—The Office of Management and Budget has exempted this action from its review under Executive Order
(EO)12866; 2. Paperwork Reduction Act—This action does not impose an information collection burden under the Paperwork Reduction Act; 3. Regulatory Flexibility Act—After considering the economic impacts of today's action on small entities under the Regulatory Flexibility Act, I certify that this action will not have a significant economic impact on a substantial number of small entities; 4. Unfunded Mandates Reform Act—Because this action approves pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, this action does not contain any unfunded mandate, or significantly or uniquely affect small governments, as described in the Unfunded Mandates Act; 5. Executive Order 13132: Federalism—EO 13132 does not apply to this action because this action will not have federalism implications (i.e., there are no substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities between Federal and State governments); 6. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments—EO 13175 does not apply to this action because it will not have tribal implications (i.e., there are no substantial direct effects 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); 7. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks—This action is not subject to EO 13045 because it is not economically significant and is not based on health or safety risks; 8. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use—This action is not subject to EO 13211 because it is not a significant regulatory action as defined in EO 12866; 9. National Technology Transfer Advancement Act—EPA approves State programs so long as the State programs meet the criteria delineated in RCRA. It would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets RCRA requirements. Thus, section 12(d) of the National Technology Transfer and Advancement Act does not apply to this action; 10. Congressional Review Act—EPA will submit a report containing this action and other information required by the Congressional Review Act (5 U.S.C. 801 *et seq.* ) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the **Federal Register** . List of Subjects 40 CFR Part 239 Environmental protection, Administrative practice and procedure, Intergovernmental relations, Waste treatment and disposal. 40 CFR Part 258 Reporting and recordkeeping requirements, Waste treatment disposal, Water pollution control. Authority: This action is issued under the authority of section 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912, 6945 and 6949(a). Dated: January 18, 2008. John B. Askew, Regional Administrator, Region 7. [FR Doc. E8-1786 Filed 1-30-08; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R01-RCRA-2007-1171; FRL-8521-8] Massachusetts: Final Authorization of State Hazardous Waste Management Program Revisions AGENCY: Environmental Protection Agency (EPA). ACTION: Immediate final rule. SUMMARY: The Commonwealth of Massachusetts has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization and is authorizing the State's changes through this immediate final action. DATES: This final authorization will become effective on March 31, 2008 unless EPA receives adverse written comment by March 3, 2008. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the **Federal Register** and inform the public that this authorization will not take immediate effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2007-1171, by one of the following methods: • *www.regulations.gov:* Follow the online instructions for submitting comments. • *E-mail:* *biscaia.robin@epa.gov* . • *Fax:*
(617)918-0642, to the attention of Robin Biscaia. • *Mail:* Robin Biscaia, Hazardous Waste Unit, EPA New England—Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023. • *Hand Delivery or Courier:* Deliver your comments to: Robin Biscaia, Hazardous Waste Unit, Office of Ecosystem Protection, EPA New England—Region 1, One Congress Street, 11th Floor, (CHW), Boston, MA 02114-2023. Such deliveries are only accepted during the Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Identify your comments as relating to Docket ID No. EPA-R01-RCRA-2007-1171. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information
(CBI)or claimed to be other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* , your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at *http://www.epa.gov/epahome/dockets.htm* . *Docket:* EPA has established a docket for this action under Docket ID No. EPA-R01-RCRA-2007-1171. All documents in the docket are listed on the *www.regulations.gov* Web site. Although it may be listed in the index, some information might not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through *www.regulations.gov* or in hard copy at the following two locations:
(i)Massachusetts Department of Environmental Protection, Business Compliance Division, One Winter Street—8th Floor, Boston, MA 02108, business hours Monday through Friday 9 a.m. to 5 p.m., tel:
(617)556-1096; and
(ii)EPA Region I Library, One Congress Street—11th Floor, Boston, MA 02114-2023, by appointment only,
(617)918-1990. FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit, EPA New England—Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; telephone number:
(617)918-1642; fax number:
(617)918-0642, e-mail address: *biscaia.robin@epa.gov* . SUPPLEMENTARY INFORMATION: A. Why Are Revisions to State Programs Necessary? States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations
(CFR)parts 124, 260 through 266, 268, 270, 273 and 279. B. What Decisions Have We Made in This Rule? We have concluded that Massachusetts's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Massachusetts final authorization to operate its hazardous waste program with the changes described in the authorization application. The Massachusetts Department of Environmental Protection (MassDEP) has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program covered by its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement any such requirements and prohibitions in Massachusetts, including issuing permits, until the State is granted authorization to do so. C. What Is the Effect of This Authorization Decision? The effect of this decision is that a facility in Massachusetts subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Massachusetts has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA also retains its full authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, authority to: • Perform inspections, and require monitoring, tests, analyses or reports. • Enforce RCRA requirements and suspend or revoke permits. • Take enforcement actions. This action does not impose additional requirements on the regulated community because the regulations for which Massachusetts is being authorized by today's action are already effective under State law, and are not changed by today's action. D. Why Wasn't There a Proposed Rule Before This Rule? EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect adverse comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's **Federal Register** we are publishing a separate document that proposes to authorize the State program changes. E. What Happens If EPA Receives Comments That Oppose This Action? If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the **Federal Register** before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule based upon this proposed rule that also appears in today's **Federal Register** . You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time. If we receive adverse comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The **Federal Register** withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn. F. What Has Massachusetts Previously Been Authorized for? The Commonwealth of Massachusetts initially received Final Authorization on January 24, 1985, effective February 7, 1985 (50 FR 3344), to implement its base hazardous waste management program. This authorized base program generally tracked Federal hazardous waste requirements through July 1, 1984. In addition, the EPA previously has authorized particular Massachusetts regulations which address several of the EPA requirements adopted after July 1, 1984. Specifically, on September 30, 1998, the EPA authorized Massachusetts to administer the Satellite Accumulation rule, effective November 30, 1998 (63 FR 52180). Also, on October 12, 1999, the EPA authorized Massachusetts to administer the Toxicity Characteristics rule (except with respect to Cathode Ray Tubes), and the Universal Waste rule, effective immediately (64 FR 55153). On November 15, 2000, the EPA granted interim authorization for Massachusetts to regulate Cathode Ray Tubes under the Toxicity Characteristics rule through January 1, 2003, effective immediately (65 FR 68915). This interim authorization subsequently was extended to run through January 1, 2006 (67 FR 66338, October 31, 2002) which was then further extended until January 1, 2011 (70 FR 69900, November 18, 2005). On March 12, 2004, EPA authorized the State for updates to its hazardous waste program which generally track Federal requirements through the July 1, 1990 edition of Title 40 of the Code of Federal Regulations (and in some cases beyond), including definitions and miscellaneous provisions, provisions for the identification and listing of hazardous wastes and standards for hazardous waste generators; it also approved a State-specific modification to the Federal hazardous waste regulations regarding recyclable materials under an ECOS flexibility project; and finally it approved Massachusetts site-specific regulations developed under the Project XL, New England Universities Laboratories XL Project (69 FR 11801, March 12, 2004), effective immediately. G. What Changes Are We Authorizing With This Action? On November 30, 2007, Massachusetts submitted a final complete program revision application, seeking authorization for its changes in accordance with 40 CFR 271.21. In particular, Massachusetts is seeking authorization for updated State regulations addressing Federal requirements for Corrective Action, Radioactive Mixed Waste, and the Hazardous Waste Manifest revisions. Massachusetts is also seeking authorization for various changes it recently has made to its base program regulations, including the hazardous waste exemption for dredged material regulated under the Federal Clean Water Act, requirements relating to elementary neutralization, an exemption for dental amalgam being recycled, and a State regulation which allows for the waiving of State requirements that are more stringent than the Federal RCRA counterparts. In addition, Massachusetts has revised its base program regulations regarding interim status facilities and is seeking authorization of the revised regulations. Finally, Massachusetts is seeking authorization for an extension of the special regulations governing the New England Universities' Laboratories XL project. The State's authorization application includes such documents as a Corrective Action Program Description, a Corrective Action Memorandum of Agreement
(MOA)between EPA and the MassDEP, a Final Project Agreement Modification for the New England Universities Laboratories XL Project between EPA and the MassDEP, a copy of MassDEP's Hazardous Waste Regulations effective July 13, 2007, and an Attorney General's Statement. We are now making an immediate final decision, subject to reconsideration only if we receive written comments that oppose this action, that Massachusetts's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we grant Massachusetts final authorization for the following program changes identified below. Note, the Federal requirements are identified either by their rule checklist
(CL)number or by direct reference to a Federal regulation, followed by the corresponding State regulatory analogs from Massachusetts Hazardous Waste Regulations, 310 CMR 30.0000, as in effect on July 13, 2007. First, we are authorizing revised state rules that are analogous to the following Federal rules which relate to EPA's Corrective Action program: CL 17L—HSWA Codification Rule, Corrective Action, 50 FR 28702-28755, July 15, 1985; CL 17 O—HSWA Codification Rule, Omnibus Provision, 50 FR 28702-28755, July 15, 1985; CL 44A—HSWA Codification Rule 2, Permit Application Requirements Regarding Corrective Action, 52 FR 45788-45799, December 1, 1987; CL 44B—HSWA Codification Rule 2, Corrective Action Beyond the Facility Boundary, 52 FR 45788-45799, December 1, 1987; CL 44C—HSWA Codification Rule 2, Corrective Action for Injection Wells, 52 FR 45788-45799, December 1, 1987; CL 121—Corrective Action Management Units and Temporary Units; Corrective Action Provisions Under Subtitle C, 58 FR 8658-8685, February 16, 1993; CL 174—Post-Closure Permit Requirements and Closure Process, 63 FR 56710-56735, October 22, 1998; CL 196—Amendments to the Corrective Action Management Unit
(CAMU)Rule, 67 FR 2962-3029, January 22, 2002; 40 CFR 270.73(a) (regarding termination of interim status at facilities where corrective action has been completed); and 40 CFR 270.1(c)(3), 270.72(a)(5) and 270.1(c) as limited by CERCLA 121(e) (exemptions from RCRA permitting for certain remedial activities). The analogous State citations are as follows: 310 CMR 30.010, definitions of “Facility” and “Solid Waste Management Unit,” 30.602(9), 30.602(10), 30.661(1), 30.604(1), 30.605(1), 30.829, 30.003(8), 30.804(23), 30.804(29), 30.672(5) and (6), 30.602(12), 30.099(13)(a)-(g), 30.602(13)-(15), 30.099(4)(b), 30.099(6), 30.801(11)(a) and (b), and 30.801(intro.) as limited by 30.801(11)(c). Second, we are authorizing revised state rules that are analogous to the following Federal rules which relate to EPA's Mixed Waste program: MW CL—Radioactive Mixed Waste, 51 FR 24504, July 3, 1986; and CL 191—Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 FR 27218-27266, May 16, 2001. The analogous State citations are as follows: 310 CMR 30.010, definitions of “Low-Level Mixed Waste,” “Low-Level Radioactive Waste,” “Mixed Waste,” “Naturally Occurring and/or Accelerator-produced Radioactive Material,” and “NRC,” 30.104(3)(g), and 30.099(6)(r). Third, we are authorizing the following revised state rules that are analogous to the EPA's Uniform Hazardous Waste Manifest revisions: CL 207—Hazardous Waste Management System, Modification of the Hazardous Waste Management System, 70 FR 10776-10825, March 4, 2005: 310 CMR 30.010, definition of “Designated Facility,” 30.106(2)(a)(3) and (4), 30.310, 30.311(1), 30.312, 30.313, 30.313(1)-(9), 30.314(1)-(5), 30.317, 30.323(2), 30.324, 30.331(1) and (2), 30.334(2), 30.340(9), 30.340(9)(a) and (b), 30.341(6)(b), 30.351(2)(a), 30.351(2)(c)(2)-(4), 351(5)(a)(2), 30.351(10)(e) (excluding reference to 30.316), 30.353(2)(a)(2), 30.353(2)(b)(6), 30.353(2)(c)(3)-(5), 30.353(6)(e) (excluding reference to 30.316), 30.361(1) and (2), 30.340(9), 30.361(1)(a), 30.361(2), 30.404(2) and (3), 30.405(1), 30.405(8)(a)-(d), 30.531, 30.532(1)(a)-(d), 30.532(1)(f) and (g), 30.533(1)(a)-(c), 30.533(2), 30.533(3), 30.533(4)(a) and (b), 30.533(5)(a)-(g), 30.533(6)(a)-(g), 30.533(7), 534(2)(1)-(g), 30.099(6)(a). In addition to the regulations listed above, there are various previously authorized State program regulations to which the State has made changes. The EPA is also authorizing these revised provisions as in effect in 310 CMR on July 13, 2007. Regarding 40 CFR 261.33(f), Commercial Chemical Products: State technical correction to the U28 listing at 310 CMR 30.133. Regarding 40 CFR 262.34(a)(1)(i), Generator accumulation time: 310 CMR 30.342(1)(c) including an update in container management requirements at 30.685. Regarding Elementary Neutralization Requirements at 40 CFR 260.10 “Elementary Neutralization Unit” definition, 40 CFR 264.1(g)(6), 40 CFR 265.1(c)(10), 40 CFR 270.1(c)(2): 310 CMR 30.010 “Elementary Neutralization” and “Elementary Neutralization Unit” definitions, 310 CMR 30.340(8), 310 CMR 30.351(11), 310 CMR 30.501(2)(h), 310 CMR 30.601(2)(h), 310 CMR 30.801(17), 310 CMR 30.1103. Regarding requirements related to Dredged Material Exemption at 40 CFR 261.4(g): 310 CMR 30.010 “Dredged Material” definition and 310 CMR 30.104(3)(f). Regarding Federal Minimum Requirements in 40 CFR Parts 260 to 279: 310 CMR 30.1100-1102—State Waiver Authority—allowing the State to waive requirements more stringent than the minimum Federal requirements. Regarding 40 CFR 261.2, Characteristic sludge exemption: 310 CMR 30.104(2)(u) (exemption for dental amalgam). Regarding 40 CFR part 265—Interim Status Standards for Owners and Operators of Hazardous Waste TSDFs, Subpart A—Purpose Scope and Applicability, 40 CFR Part 265.1: 310 CMR 30.010, “polyhalogenated aromatic hydrocarbons”
(PAH)definition, 30.099(1)(a) and (b), and 30.099(11). Regarding Subpart B—General Facility Standards, 40 CFR 265.10-19: 310 CMR 30.099(6)(a). Regarding Subpart C—Preparedness and Prevention, 40 CFR 265.30-37: 310 CMR 30.099(6)(a). Regarding Subpart D—Contingency Plan and Emergency Procedures, 40 CFR 265.50-56: 310 CMR 30.099(6)(a). Regarding Subpart E—Manifest System, Record Keeping and Reporting, 40 CFR 265.70-77: 310 CMR 30.099(6)(a). Regarding Subpart F—Ground-water Monitoring, 40 CFR 265.90-94: 310 CMR 30.099(6)(d). Regarding Subpart G—Closure and Post-Closure, 40 CFR 265.110-121: 310 CMR 30.099(6)(b). Regarding Subpart H—Financial Requirements, 40 CFR 265.140-150: 310 CMR 30.099(6)(c). Regarding Subpart I—Containers, 40 CFR 265.170-202: 310 CMR 30.099(6)(e). Regarding Subpart J—Tanks, 40 CFR 265.190-202: 310 CMR 30.099(6)(f). Regarding Subpart K—Surface Impoundments, 40 CFR 265.220-231: 310 CMR 30.099(6)(g). Regarding Subpart L—Waste Piles, 40 CFR 265.250-260: 310 CMR 30.099(6)(h). Regarding Subpart M—Land Treatment, 40 CFR 265.270-282: 310 CMR 30.099(6)(i). Regarding Subpart N—Landfills, 40 CFR 265.300-316: 310 CMR 30.099(6)(j). Regarding Subpart O—Incinerators, 40 CFR 265.340-352. Regarding Subpart P—Thermal Treatment, 40 CFR 265.370-383: 310 CMR 30.099(6)(l). Regarding Subpart Q—Chemical, Physical and Biological Treatment, 40 CFR 265.400-406. Regarding Subpart R—Underground Injection, 265.430: 310 CMR 30.604(1) (prohibition). Regarding Subpart W—Drip Pads, 40 CFR 265.440-445: 310 CMR 30.099(6)(n). Regarding Subpart AA—Air Emission Standards for Process Vents, 40 CFR 265.1030-1036: 310 CMR 30.099(6)(o). Regarding Subpart BB—Air Emission Standards for Equipment Leaks, 40 CFR 265.1050-1064: 310 CMR 30.099(6)(p). Regarding Subpart DD—Containment Buildings, 40 CFR 265.1100-1102: 310 CMR 30.099(6)(q). Regarding 40 CFR part 270—EPA Administered Permit Programs: The Hazardous Waste Permit Program, Subpart B—Permit Application, General Application Requirements, 40 CFR 270.10(e): 310 CMR 30.099(2)(a)(1) and (2), and 310 CMR 30.099(12)(d) and (e). Regarding Subpart G—Interim Status, Qualifying for Interim Status, 40 CFR 270.70(a)-270.70(c): 310 CMR 30.010 “Existing Facility” definition, 310 CMR 30.060, and 310 CMR 30.099(1)(a)-(d). Regarding Operation during Interim Status, 40 CFR 270.71(a) and (b): 310 CMR 30.099(4)(a) and (b). Regarding Changes During Interim Status, 40 CFR 270.72(a) and (b): 310 CMR 30.064(2)(a), and 310 CMR 30.099(5)(a) and (b). Regarding Termination of Interim Status, 40 CFR 270.73(a)-(g): 310 CMR 30.099(6), and 310 CMR 30.099(12)(a)-(c). The State has also extended the expiration date of its special regulations governing the universities participating in the New England Universities' Laboratories XL project. The Massachusetts Project XL regulations were originally authorized by the EPA and became part of the Federally enforceable Massachusetts RCRA program on March 12, 2004. See 69 FR 11801. We are now authorizing the extension of these regulations through April 15, 2009. EPA amended its Federal regulations to allow for extension of the expiration date of the XL Project from September 30, 2006 to this new date of April 15, 2009. See 71 FR 35547. The State has adopted a regulation allowing the extension of the XL Project through September 30, 2012. *See* 310 CMR 30.354(3). In line with its regulation as currently amended, the EPA is only able to authorize an extension through April 15, 2009 at this time, but could later consider another Federal extension should a longer one prove to be necessary. EPA believes the current extension is appropriate since it has recently proposed a national set of alternative regulations for academic laboratories (see 71 FR 29712, May 23, 2006). Pending promulgation of a national rule, the extension will allow the universities currently participating in the Labs XL Project to continue to build upon the successes of the project and not have to terminate their participation in the Project. This extension also includes an updated Final Project Agreement
(FPA)for this XL Project to reflect the extended period of coverage through April 15, 2009. To allow this extension, we are authorizing the following revised state regulation: 310 CMR 30.354(3) (through only April 15, 2009). EPA also is authorizing the updated cross-references in the State regulations at 310 CMR 30.354(1)(a) and 310 CMR 30.354(2). Today's final authorization of new State regulations and regulation changes is in addition to the previous authorizations of State regulations which remain part of the authorized program. H. Where Are the Revised State Rules Different From the Federal Rules? The most significant differences between the State rules being authorized and the Federal rules are summarized below. It should be noted that this summary does not describe every difference, or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete regulations to ensure that they understand all of the requirements with which they will need to comply. 1. More Stringent Provisions There are aspects of the Massachusetts program which are more stringent than the Federal program. All of these more stringent requirements are or will become part of the federally enforceable RCRA program when authorized by the EPA, and must be complied with in addition to the State requirements which track the minimum Federal requirements. These more stringent requirements include the following: • Massachusetts has adopted an exemption from hazardous waste requirements for elementary neutralization at 310 CMR 30.1103. While generally tracking the Federal exemption at 40 CFR 264.1(g)(6), 264.17(b), 265.1(c)(10), 265.17(b), and 270.1(c)(v), the State regulations are more stringent than the Federal regulations in several respects. First, the State regulations contain general requirements that all elementary neutralization be conducted in a manner that does not present a danger to public health, safety, welfare or the environment, does not generate toxic vapors or fumes, does not generate extreme heat or pressure, and does not damage the structural integrity of the container or tank containing the waste. The Federal regulations at 40 CFR 264.17(b) and 265.17(b) similarly require the safe conducting of treatment, for certain wastes posing particular concerns, but the State provision applies more stringently to the treatment of all hazardous wastes. Second, the State regulations exempt from the permit requirement only elementary neutralization conducted at the site of generation. In contrast, the Federal regulations also exempt from the permit requirement elementary neutralization conducted at a treatment, storage or disposal facility. Thus the State regulates TSDFs more stringently. 2. Broader in Scope Provisions There are parts of regulations in the Massachusetts program which are broader in scope than the Federal program. The portions of State requirements which are broader in scope are not considered to be part of the Federally enforceable RCRA program. However, they are fully enforceable under State law and must be complied with by sources within Massachusetts. These broader in scope portions of State requirements include the following: • Massachusetts has adopted an exemption from hazardous waste requirements for dredged materials at 310 CMR 30.104(3)(f). While generally tracking the Federal exemption at 40 CFR 261.4(g), the Massachusetts exemption is narrower in some respects than the Federal exemption, which results in the State regulating more broadly than the Federal regulations. In particular, the Massachusetts exemption applies to dredged materials only when they are temporarily stored at an intermediate facility pursuant to 314 CMR 9.07(4) or when they are placed in confined disposal pursuant to 314 CMR 9.07(8). Under the Federal regulations, the exemption also could apply to dredged material that was land applied, provided that such placement was instead regulated under Section 404 of the Clean Water Act. In addition, the Massachusetts regulations specify that the exemption applies only when a source complies with the alternative requirements established by a Clean Water Act section 404 permit. In contrast, under the Federal regulations, the exemption applies so long as the source is subject to a Clean Water Act section 404 permit. In addition, the Massachusetts regulations specify that the exemption applies only when requirements have been established by both the State requiring them pursuant to a Clean Water Act section 401 certification (of a section 404 permit), and the requirements then being included in the Clean Water Act section 404 permit. In contrast, under the Federal regulations, the exemption applies so long as there are alternative requirements in the 404 permit, whether or not they were set pursuant to a State section 401 certification. Finally, the State exemption only applies to activities regulated under Clean Water Act section 404, while the Federal exemption also applies to activities regulated under the Marine Protection, Research and Sanctuaries Act. Note that in addition to the provisions making the Massachusetts requirements partially broader in scope, the Massachusetts regulation also has clarifying language emphasizing that for this exemption to apply to a particular activity (i.e., temporary storage, or placement in confined disposal), specific alternative requirements must be established (under Clean Water Act section 404) with respect to that activity. 3. Different but Equivalent Provisions There are some Massachusetts regulations which differ from, but have been determined to be equivalent to, the Federal regulations. These State regulations are or will become part of the Federally enforceable RCRA program when authorized by the EPA. These different but equivalent requirements include some requirements related to Corrective Action described in the next section, and also the following: • Under the State's Environmental Results Program (ERP), the State has adopted regulations requiring dental offices to install wastewater treatment units to collect dental amalgam containing mercury and to ship such amalgam for recycling (including mercury reclamation). The environmentally poor practices of putting such amalgam in the trash or flushing it down the drain both are banned, as a part of the State's efforts to reduce mercury in the environment. As a part of this set of regulations, the State has exempted from its hazardous waste regulations “amalgam waste” that is hazardous solely due to the mercury characteristic, when the “amalgam waste” is managed by dental facilities in accordance with the proposed ERP sector regulations. *See* 310 CMR 30.104(2)(u). The State regulates such “amalgam waste” under the ERP sector regulations rather than its hazardous waste regulations. As further explained in a March 9, 2005 memorandum by Jeffry Fowley, EPA Region I Office of Regional Counsel, entitled “Proposed Massachusetts Regulations Regarding Dental Amalgam” (included in the administrative docket), the Massachusetts exemption is equivalent to Federal RCRA requirements. Under the Federal RCRA regulations, the dental amalgam would be classified as a characteristic sludge, which is not considered to be a solid or hazardous waste when being reclaimed, and thus is exempt from RCRA requirements. In general, the Massachusetts hazardous waste program does not exempt characteristic sludge from hazardous waste requirements—but rather regulates it under the State's Class A recycling program. But Massachusetts has chosen to regulate dental amalgam in a different way, outside of its hazardous waste program. Massachusetts may of course choose to exempt certain characteristic sludges from hazardous waste requirements—e.g., dental amalgam—in line with Federal requirements, while regulating more stringently and broadly in its hazardous waste program other characteristic sludges. Thus, the EPA is authoring the State's exemption in 310 CMR 30.104(2)(u) and the associated definitions of “amalgam” and “amalgam waste” in 310 CMR 30.010. • Massachusetts has adopted regulations allowing the MassDEP to grant waivers from State RCRA regulatory requirements for wastes or activities that the MassDEP determines are insignificant as a potential hazard to public health, safety, welfare or the environment, or are adequately regulated by another government agency. 310 CMR 30.1100 (including 30.1101 and 30.1102). These regulations specify that waivers may be granted only from requirements that are, “more stringent than the minimum Federal requirements promulgated under the Resource Conservation and Recovery Act.” Moreover the person seeking the waiver must demonstrate that the waiver “will not result in the Department's requirements applicable to the person becoming less stringent than the minimum Federal requirements promulgated under the Resource Conservation and Recovery Act.” The person receiving the waiver must comply with the terms of the waiver (which will be established in place of any waived requirements), in addition to all requirements that are not waived. As further explained in a March 8, 2005 letter to MassDEP from Ernest Waterman, Chief of the EPA Region I Hazardous Waste Unit, and Jeffry Fowley of the Region I Office of Regional Counsel (included in the administrative docket), since the State regulations mandate that requirements equivalent to the minimum Federal RCRA requirements always will be maintained, the State regulations are equivalent to the Federal RCRA regulations. Thus the EPA is authorizing these State regulations. As a result of today's authorization, individual waiver determinations may be issued by the State without needing to separately and repeatedly go through the authorization process, provided of course that equivalency with the minimum Federal requirements is maintained. Any alternative requirements set by the State in any waiver determination, in order to maintain equivalency with the Federal requirements, will become part of the Federally enforceable (as well as State enforceable) RCRA program, as a result of being specified in the waiver determination by the State. EPA Region I has encouraged the MassDEP to consult with the Region with respect to each waiver, to ensure that the Department and EPA are in agreement that any waiver is only from more stringent State requirements. I. What Is the Massachusetts Corrective Action Program That Is Being Authorized? As part of this program update, the State will be assuming responsibility for operating the Federal Corrective Action program. The program being authorized covers all Treatment Storage and Disposal Facilities (TSDFs) subject to 40 CFR 264.101, which includes
(i)active facilities which need permits to conduct ongoing treatment, storage or disposal, and
(ii)interim status land disposal facilities which have been required to seek post closure permits under the EPA regulations. Massachusetts is planning to carry out the Corrective Action program utilizing three different approaches. First, the State will issue RCRA permits (called licenses in Massachusetts) to active TSDFs, in accordance with State regulations that track 40 CFR 264.101. Second, Massachusetts will issue enforceable Orders to some interim status land disposal facilities
(LDFs)undergoing closure or in post closure, in accordance with State regulations which track the requirements of the EPA's closure/post-closure rule, 63 FR 56710 (October 22, 1998). The State regulations regarding such permits and Orders raise no significant authorization issues. Use of the 21E Program Third, Massachusetts also plans to allow some clean-ups at interim status LDFs to be conducted under the State's Superfund program promulgated under M.G.L. c. 21E (the 21E program). This should result in the acceleration of the cleanups. This deferral of corrective action to the 21E program will occur only at sites which have not yet been issued RCRA closure/post-closure permits, and will involve moving forward with the clean-ups without waiting for the issuance of the permits. The 21E program regulations contain enforceable deadlines and standards that facilities must follow. This deferral of corrective action also will avoid duplication of effort. Cleanups at most of the sites in question already are occurring under the 21E program, and it makes sense to take advantage of that fact, rather than starting the cleanups over again under another program. However, the State's plan to utilize the 21E program at sites subject to Corrective Action under RCRA raised certain RCRA authorization issues. In particular, these issues arose because in the 21E program, Massachusetts utilizes State licensed but privately employed professionals (Licensed Site Professionals or LSPs) for day-to-day oversight of many of the clean-ups. In the 21E program generally, only some LSP clean-up determinations are subject to State audit. Also, in the 21E program generally, the public comment process does not include a comment period in connection with the audits. In contrast, the EPA corrective action regulations contemplate that there will be governmental oversight and the opportunity for public comment (to the government) in connection with clean-ups. These authorization issues have been resolved as follows. First, Massachusetts has adopted a regulation requiring State audits at all corrective action sites at which clean-ups are conducted in the 21E program under the day-to-day direction of LSPs. 310 CMR 30.099(13)(e)(3). If the audit finds that a site has not been remediated so as to meet the same State clean-up standards as would be applied under a RCRA permit or Order, then the facility must carry out additional corrective action as required. *Id.* The State regulations also clarify that the MassDEP may intervene at any time during the carrying out of a remediation to correct any violations of the corrective action requirements. 310 CMR 30.099(13)(e)(2). In addition, the State regulations require that a public comment period will be conducted by the State regarding each audit, prior to making the determination that corrective action is complete. 310 CMR 30.099(13)(e)(4). This is in addition to the public comment process that must occur at the time of remedy selection. 310 CMR 30.099(13)(e)(1). The adoption of these additional State regulations along with commitments made by the State in the Memorandum of Agreement and Program Description, have resolved the EPA's concerns. There will be government oversight and a meaningful opportunity for public comment in connection with all clean-ups at corrective action sites subject to today's authorization. To the extent that the State's use of the 21E program will result in cleanups occurring with less immediate day-to-day government oversight than might occur under a permit or Order, this is compensated for by the acceleration of the cleanups and the fact that there will be a thorough governmental review at the end of the process. If instead of authorizing Massachusetts to carry out the Corrective Action program, the EPA was to continue to operate the program in Massachusetts, it similarly could allow a clean-up to occur, prior to permitting, under another program such as the 21E program. In such a situation, the EPA would then review the adequacy of the clean-up prior to determining that corrective action was complete, and thus allowing the facility to be terminated from interim status, pursuant to 40 CFR 270.73(a). 1 Prior to terminating the facility's interim status, the EPA also would follow the public comment procedures specified in 40 CFR 124.6 and 124.10(a)(1)(i). The State has adopted similar regulations requiring governmental review and public comment prior to interim status being terminated. These State regulations are equivalent to—or more stringent than—40 CFR 270.73(a). 2 1 An EPA decision terminating interim status after corrective action had been completed (with no waste left in place) would technically be a ‘permit denial’ based on there being no need for a closure/post closure permit since corrective action (and all other required closure activities) had been completed. The State program similarly contemplates that facilities fully cleaned up prior to getting a permit (with no waste left in place) never will need to be issued a closure/post closure permit. 2 Pursuant to the EPA regulations on State authorization at 40 CFR 271.12(a) and 271.14, States with interim status facilities must track the requirements of 40 CFR 270.73, but generally need not track the public comment requirements of 40 CFR 124.6 and 124.10(a)(1)(i) when denying a permit under 40 CFR 270.73. This is because permit denials typically are employed to not allow facilities to operate, and a State may be more stringent in not allowing a facility to operate without needing to follow any federally prescribed comment process. However, since Massachusetts will be employing a procedure similar to the federal “permit denial” to recognize the completion of correction action and allow facilities to be terminated from interim status, Massachusetts appropriately agreed to adopt public comment procedures (as well as audit procedures) as a part of that process. The EPA is not authorizing as part of the Federal RCRA program the 21E program as such, or the 21E program regulations themselves, or the use of LSPs. As explained above, the 21E program standing alone is not equivalent to the Federal Corrective Action program in certain respects. Rather, the EPA is authorizing the regulations at 310 CMR 30.099(13) that the State will utilize to ensure that clean-ups that have occurred in the 21E program meet Federal Corrective Action requirements. Today's authorization does not alter the previously authorized State requirements regarding regulated unit closure. Regulated unit closure will continue to be governed by the State's hazardous waste program regulations rather than being conducted under the 21E program under the supervision of LSPs. *See* 310 CMR 30.099(13)(f). Also, sites which are addressed in the 21E program, but which are unable to clean close, will be issued post closure permits or Orders rather than remaining under LSP supervision over the long term. In its discussion of the 21E program audits, at page 5, the Memorandum of Agreement specifies: “[f]or facilities requiring long-term operation and maintenance, and monitoring (e.g., closed landfills), these [audits] will be conducted in connection with the issuance of post-closure permits or orders requiring the long-term operation and maintenance, and monitoring.” Exemption From Permitting Massachusetts also has adopted a hazardous waste program regulation which exempts some remediation activities from the RCRA permit (state license) requirement, if the activities are conducted within a “disposal site” in compliance with the 21E program requirements. 310 CMR 30.801(c). 3 The EPA is authorizing this regulation in connection with today's authorization of the Corrective Action program. 3 This new hazardous waste program regulation actually narrows the exemption from RCRA permitting earlier allowed by Massachusetts in its 21E program regulations, at 310 CMR 40.0031(3) and 40.0041(4). This new regulation specifies that its terms “govern” in the event of any inconsistency between its terms and the 21E program regulations. *See* 310 CMR 30.801(11) (intro.). The State regulation narrowly exempts from only the permit requirement only certain low risk treatment activities which may occur within previously contaminated areas in order to reduce or eliminate the contamination. A permit still will be required before higher risk treatment involving the combustion of hazardous waste is allowed. 310 CMR 30.801(c)(1). The exemption also does not apply to treatment which occurs outside of the boundary of a contaminated “disposal site.” 310 CMR 30.801(c)(3) and (4). The exemption also is only from the permit requirement and does not exempt even on-site treatment activities from other applicable hazardous waste program requirements. 310 CMR 30.801(c)(5). The EPA long has allowed States to waive the RCRA permit requirement in order to foster the on-site clean-up of remediation wastes. On November 16, 1987, the EPA Director of the Office of Solid Waste and Emergency Response, J. Winston Porter, issued guidance—OSWER Policy Directive 9522.00-2 (Porter Memorandum)—stating that “[i]n general, * * * a State authorized to conduct the RCRA base permit program will have the authority to waive RCRA permit requirements for State Superfund actions as long as:
(1)The State has the authority under its own statutes and regulations to grant permit waivers, and
(2)the State waiver authority is used in no less stringent a manner than allowed under Federal permit waiver authority, for example, sec. 7003 of RCRA or sec. 121(e) of CERCLA.” The Porter Memorandum goes on to state that “* * * States should be encouraged to move ahead on cleanups under their own Superfund authorities and * * * it does not make sense to delay actions until a RCRA permit can be issued, as long as an appropriate waiver mechanism applies and adequate measures are taken to protect human health and the environment.” That the Porter Memorandum would continue to be followed was reiterated by EPA in the Preamble to the HWIR-Media Rule. In its discussion of when RCRA permits are required, the Preamble states, “There are also instances when treating, storing and disposing of remediation wastes do not require a RCRA permit. * * * Another example would be when [a] State that is authorized to implement the RCRA program has a permit waiver authority that is analogous to EPA's authority under CERCLA 121(e) or RCRA 7003. This permit waiver authority is described in a memorandum from J. Winston Porter * * * available in the docket to today's rule. Today's rule does not change or affect this policy in any way.” 63 FR 65874, 65887-65888 (November 30, 1998). The Massachusetts permit exemption meets the tests set forth in the Porter Memorandum. Massachusetts has been authorized to conduct the RCRA base permit program. The State has the statutory authority to grant waivers from RCRA permit requirements pursuant to M.G.L. c. 21C, sec. 4, so long as there is “adequate regulation” under another program—such as exists under the State's 21E program. Finally, the State's waiver authority is being used in a manner that is no less stringent than allowed under sec. 121(e) of CERCLA. That Federal provision specifies that “No Federal, State or local permit shall be required for the portion of any removal or remedial action conducted entirely onsite, where such remedial action is carried out in compliance with this section.” The Massachusetts exemption similarly applies only to remediation activities conducted within a “disposal site” and only when they are conducted in accordance with the State's 21E program requirements. The State's 21E program requirements which ensure that LSPs will safely carry out hazardous waste remediation activities within disposal sites are described in the Program Description at pages 29-30. At least for the lower risk treatment activities covered by the State's exemption, these requirements are equivalent in ensuring environmental protection to the requirements under CERCLA. Under the Federal RCRA regulations—40 CFR 270.1(c)—a RCRA permit is required for the “treatment,” “storage” and “disposal” of hazardous waste, but that requirement is limited by CERCLA 121(e). Under the Massachusetts hazardous waste program regulations, a RCRA “license” similarly is required for treatment, storage and disposal of hazardous waste by 310 CMR 30.801 (intro.), but that requirement is limited by 310 CMR 30.801(11)(c). The State requirement at 30.801 (intro.) as limited by 30.801(11)(c) is equivalent to the Federal requirement at 40 CFR 270.1(c), as limited by CERCLA 121(e). Thus the EPA is authorizing 310 CMR 30.801(11)(c). Additional Issues In determining whether remediation is complete at corrective action sites, the State will utilize the clean-up standards set forth in its 21E program regulations. 310 CMR 40.0000. The EPA has reviewed those regulations. For the reasons explained in the Memorandum entitled “MA Contingency Plan Regulations” by Frank Battaglia, MA State Coordinator, RCRA Corrective Action Section, dated February 6, 2007 (included in the administrative docket), the EPA has determined that the State standards meet the Federal requirement (40 CFR 264.101) for protection of human health and the environment. In connection with today's authorization, the EPA also did an analysis to determine if the State has the capability to administer the Corrective Action program. This analysis went beyond reviewing the State regulations to focus on such things as resources and technical capability. For the reasons explained in the Memorandum entitled “Capability Assessment” by Frank Battaglia, dated March 9, 2007 (included in the administrative docket), the EPA has determined that the State has the capability to administer this important program. J. How Does This Action Affect Indian Country (18 U.S.C. 115) in Massachusetts? Massachusetts is not authorized to carry out its hazardous waste program in Indian country within the State (land of the Wampanoag tribe). Therefore, EPA will continue to implement and administer the RCRA program in these lands. K. Who Handles Permits After the Authorization Takes Effect? Massachusetts will issue permits for provisions for which it is authorized and will administer the permits it issues. However, EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits which it has issued in Massachusetts prior to the effective date of this authorization. In particular, as further specified in the Memorandum of Agreement, the EPA will continue to administer the EPA corrective action permit reissued to General Electric—Pittsfield in 2007, including handling any permit modifications, and any administrative and court appeals from any permit modifications. EPA will not issue any more new permits, or new portions of permits, for the provisions listed in this notice above after the effective date of this authorization. EPA will continue to implement and issue permits for any HSWA requirements for which Massachusetts is not yet authorized. L. What Is Codification and Is EPA Codifying Massachusetts's Hazardous Waste Program as Authorized in This Rule? Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart UU for this authorization of Massachusetts's program until a later date. M. Administrative Requirements The Office of Management and Budget has exempted this action (RCRA State Authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); therefore, this action is not subject to review by OMB. This action authorizes State requirements under RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001) ) because it is not a significant regulatory action under Executive Order 12866. Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). The Congressional Review Act, 5 U.S.C. 801 *et seq.* , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the **Federal Register** . A major rule cannot take effect until 60 days after it is published in the **Federal Register** . This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action nevertheless will be effective March 31, 2008, because it is an immediate final rule. List of Subjects in 40 CFR Part 271 Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indians—lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements. Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b). Dated: December 17, 2007. Robert W. Varney, Regional Administrator, EPA New England. [FR Doc. E8-1316 Filed 1-30-08; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070907502-7668-03] RIN 0648-XB01 Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. SUMMARY: NMFS issues this final rule to implement the annual harvest guideline
(HG)for Pacific mackerel in the U.S. exclusive economic zone
(EEZ)off the Pacific coast for the fishing season of July 1, 2007, through June 30, 2008. This HG has been calculated according to the regulations implementing the Coastal Pelagic Species
(CPS)Fishery Management Plan
(FMP)and establishes allowable harvest levels for Pacific mackerel off the Pacific coast. The HG for the 2007-2008 fishing season is 40,000 metric tons (mt). If this total is reached, Pacific mackerel fishing will be closed to directed harvest and only incidental harvest will be allowed at a 45 percent by weight incidental catch rate when landed with other CPS, except that up to one mt of Pacific mackerel can be landed without landing any other CPS. DATES: Effective March 3, 2008 through June 30, 2008. ADDRESSES: Copies of the report *Pacific Mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2007-2008 Fishing Year* may be obtained from the Southwest Regional Office by contacting Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802-4213. FOR FURTHER INFORMATION CONTACT: Joshua Lindsay, Southwest Region, NMFS,
(562)980-4034. SUPPLEMENTARY INFORMATION: The CPS FMP, which was implemented by publication of the final rule in the **Federal Register** on December 15, 1999 (64 FR 69888), divides management unit species into two categories: actively managed and monitored. Harvest guidelines for actively managed species (Pacific sardine and Pacific mackerel) are based on formulas applied to current biomass estimates. Biomass estimates are not calculated for species that are only monitored (jack mackerel, northern anchovy, and market squid). During annual public meetings, the biomass for each actively managed species within the CPS FMP is presented to the Pacific Fishery Management Council's (Council) Coastal Pelagic Species Management Team (Team), the Council's Coastal Pelagic Species Advisory Subpanel (Subpanel) and the CPS Subcommitee of the Scientific and Statistical Committee (SSC). At that time, the biomass, the acceptable biological catch
(ABC)and the status of the fisheries are reviewed and discussed. This information is then presented to the Council along with HG recommendations and comments from the Team and Subpanel. Following review by the Council and after hearing public comments, the Council makes its HG recommendation to NOAA's National Marine Fisheries Service (NMFS). The Pacific mackerel season begins on July 1 and ends on June 30 of each year. A full assessment for Pacific mackerel was conducted this year and reviewed by a Stock Assessment Review
(STAR)Panel in La Jolla, CA, May 1-4. Public meetings of the Team and Subpanel were then held May 8-10 in Long Beach, CA. During these meetings the STAR Panel report and current stock assessment for Pacific mackerel, which included a preliminary biomass estimate and ABC, were presented and reviewed in accordance with the procedures of the FMP. Based on a total stock biomass estimate of 359,290 metric tons (mt), the ABC for U.S. fisheries for the 2007/2008 management season is 71,629 mt. In June, the Council held a public meeting in Foster City, CA, during which time they reviewed the current stock assessment, biomass numbers and ABC and heard statements from the SSC, Team and Subpanel (72 FR 29130). The SSC endorsed the assessment as the best available science for use in management. Both the Team and Subpanel recommended setting the 2007/2008 HG below ABC and no higher than 40,000 mt. This HG recommendation is still roughly double the HG adopted by the Council for the 2006/2007 fishing year (19,845 mt) and much greater than the average U.S. harvest since the year 2000 (5,700 mt). Setting the harvest guideline substantially below the ABC was recommended as a precautionary measure in response to uncertainty associated with changes to assessment modeling parameters and the reference in the FMP that the domestic fishery appears to be market limited to roughly 40,000 mt. Following the SSC, Team and Subpanel reports the Council adopted an HG of 40,000 mt for the 2007-2008 fishing year. The Council also adopted the Subpanel recommendation that in the event that the 40,000 mt is attained by the fishery, that Pacific mackerel fishing be closed to directed harvest and only incidental harvest be allowed. This incidental fishery is constrained to a 45 percent by weight incidental catch rate when Pacific mackerel are landed with other CPS, except that up to one metric ton of Pacific mackerel could be landed without landing any other CPS. The Council may schedule an inseason review of the Pacific mackerel fishery for the March or April 2008 Council meeting, in order to consider either releasing a portion of the incidental allotment to the directed fishery or further constraining incidental landings to ensure total harvest remains below the ABC. Information on the fishery and the stock assessment are found in the report *Pacific mackerel (Scomber japonicus) Stock Assessment for U.S. Management in the 2007-08 Fishing Season* (see ADDRESSES ). Classification The Administrator, Southwest Region, NMFS, determined that this final rule is necessary for the conservation and management of the CPS fishery and that it is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This final rule is exempt from Office of Management and Budget review under Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule (72 FR 35419) and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared. Authority: 16 U.S.C. 1801 *et seq.* Dated: January 24, 2008. Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service. [FR Doc. E8-1683 Filed 1-30-08; 8:45 am] BILLING CODE 3510-22-S 73 21 Thursday, January 31, 2008 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 51 [Docket No. PRM-51-9] State of Nevada; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking: denial. SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is denying a petition for rulemaking submitted by the State of Nevada (PRM-51-9). The petition requests that NRC modify its regulation setting criteria for adoption of an environmental impact statement prepared by the Secretary of the Department of Energy in proceedings for issuance of a construction authorization and materials license with respect to a geologic repository. The petitioner asserts that the current regulation must be “corrected” because it is at odds with a recent court of appeals decision. Further, petitioner asserts that certain litigation procedures that will be used in the proceedings to consider the adoption question violate the National Environmental Policy Act of 1969, as amended (NEPA). NRC is denying the petition because the court found no reason for NRC to correct its adoption criteria and because the petition does not demonstrate that NRC's litigation procedures violate NEPA. Commissioner Gregory B. Jaczko's vote on this denial is included in Appendix I to this notice. ADDRESSES: Publicly available documents related to this petition, including the petition for rulemaking, the comments received, and NRC's letter of denial to the petitioner may be viewed electronically on public computers in NRC's Public Document Room (PDR), 01F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Publicly available documents created or received at NRC after November 1, 1999, are also available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html.* From this site, the public can gain entry into the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR reference staff at
(800)387-4209,
(301)415-4737 or by e-mail to *pdr@nrc.gov.* FOR FURTHER INFORMATION CONTACT: Jerry Bonanno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-1328 or Toll Free: 1-800-368-5642, e-mail: *jxb5@nrc.gov.* SUPPLEMENTARY INFORMATION: Introduction On April 8, 2005, the State of Nevada (petitioner or the State) submitted a “Petition by the State of Nevada to Amend 10 CFR 51.109” (petition), which was docketed as a petition for rulemaking under 10 CFR 2.802 of the Commission's regulations (PRM-51-9). The petition was noticed on August 12, 2005 (70 FR 47148) with a public comment period that closed on October 26, 2005. Three comment letters were received. The petition requests amendments to the Commission's regulation at 10 CFR 51.109 governing NRC's adoption of the Department of Energy's
(DOE)final environmental impact statement (FEIS), and any supplements thereto, which accompanied the Secretary of Energy's (the Secretary) recommendation to the President that the Yucca Mountain, Nevada
(YM)site be approved for the development of a geologic repository. Petitioner believes that the current regulation is contrary to the NEPA, the Nuclear Waste Policy Act of 1982, as amended (NWPA), and the decision of the U.S. Court of Appeals for the District of Columbia Circuit in *Nuclear Energy Institute, Inc.* v. *Environmental Protection Agency,* 373 F.3d 1251 (D.C. Cir. 2004) (NEI). Background A. Statutory and Regulatory Background of § 51.109 Section 114(f)(4) of the NWPA provides that “[a]ny [EIS] prepared in connection with a repository proposed to be constructed by the Secretary under this subtitle shall, *to the extent practicable,* be adopted by the Commission in connection with the issuance by the Commission of a construction authorization and license for such repository” (emphasis added). The statute further provides that “[t]o the extent such statement is adopted by the Commission, such adoption shall be deemed to also satisfy the responsibilities of the Commission under the [NEPA] and no further consideration shall be required, except that nothing in this subsection shall affect any independent responsibilities of the Commission to protect public health under the Atomic Energy Act of 1954 (42 U.S.C. 2011 *et seq.* ).” In 1988-89, NRC conducted a rulemaking to set out the standards and procedures that would be used in licensing proceedings for determining whether NRC's adoption of DOE's FEIS is practicable. *See,* 53 FR 16131; May 5, 1988 (proposed rule); 54 FR 27864; July 3, 1989 (final rule). In that rulemaking, NRC determined that the NWPA had altered NRC's ordinary NEPA responsibilities in such a manner as to narrow the scope of NRC's independent review of environmental issues that had been decided by DOE in its FEIS. As summarized by the Commission in the final rule, [T]he Commission continues to emphasize its view that its role under NWPA is oriented toward health and safety issues and that, in general, nonradiological environmental issues are intended to be resolved in advance of NRC licensing decisions through the actions of the Department of Energy, subject to Congressional and judicial review in accordance with NWPA and other applicable law. The Commission anticipates that many environmental questions would have been, or at least could have been, adjudicated in connection with an environmental impact statement prepared by DOE, and such questions should not be reopened in proceedings before NRC. 54 FR at 27865. Accordingly, NRC's 1989 final rule established, in a new 10 CFR 51.109, “Public hearings in proceedings for issuance of materials license with respect to a geologic repository,” procedures and criteria for implementing the statutory directive to adopt DOE's FEIS to the extent practicable. Under § 51.109(a)(1), the NRC staff must present its position on whether it is practicable to adopt, without further supplementation, DOE's FEIS upon publication of the notice of hearing in the **Federal Register** . Under § 51.109(a)(2), parties to a proceeding are given the opportunity to submit contentions asserting that it is not practicable to adopt: (a)(2) Any other party to the proceeding who contends that it is not practicable to adopt the DOE [FEIS], as it may have been supplemented, shall file a contention to that effect within thirty
(30)days after the publication of the notice of hearing in the **Federal Register** . Such contention must be accompanied by one or more affidavits which set forth factual and/or technical bases for the claim that, under the principles set forth in paragraphs
(c)and
(d)of this section, it is not practicable to adopt the DOE [FEIS], as it may have been supplemented. The presiding officer shall resolve disputes concerning adoption of the DOE [FEIS] by using, to the extent possible, the criteria and procedures that are followed in ruling on motions to reopen under § 2.236 of this chapter. 10 CFR 51.109(a)(2)(2007). 1 The criteria governing the practicability of adoption are set forth in § 51.109(c): 1 In 2004, § 51.109(a)(2) was revised to reference a new section number for motions to reopen as part of the Commission's revision of its rules of practice in adjudicatory proceedings. See 69 FR 2182, 2276 (January 14, 2004). The standards for reopening were not changed.
(c)The presiding officer will find that it is practicable to adopt any environmental impact statement prepared by the Secretary of Energy in connection with a geologic repository proposed to be constructed under Title I of the Nuclear Waste Policy Act of 1982, as amended, unless: (1)(i) The action proposed to be taken by the Commission differs from the action proposed in the license application submitted by the Secretary of Energy; and
(ii)The difference may significantly affect the quality of the human environment; or
(2)Significant and substantial new information or new considerations render such environmental impact statement inadequate. 10 CFR 51.109(c) (2007). B. DOE's FEIS The NWPA, *inter alia,* establishes a process for the characterization, siting, construction, and operation of a geologic repository at the YM site. As relevant here, when site characterization activities are completed, the Secretary of Energy may recommend site approval to the President and any such recommendation must be accompanied by a FEIS. See, section 114(a)(1) of the NWPA. Then, the President may recommend the site to the Congress and must include a copy of the documents comprising the basis of the Secretary's recommendation, including the FEIS. See, section 114(a)(2). The State is then given an opportunity to submit a notice of disapproval of the site designation which, however, may be overcome by a joint resolution of the Congress approving the recommended repository site. See, sections 115 and 116 of the NWPA. If the site designation is permitted to take effect under the provisions of section 115, the Secretary of Energy shall submit an application for a construction authorization to NRC. See, section 114(b) of the NWPA. In February 2002, the Secretary issued the *Final Environmental Impact Statement for a Geologic Repository for the Disposal of Spent Nuclear Fuel and High-Level Radioactive Waste at Yucca Mountain, Nye County, Nevada* and recommended the YM site to the President. The President then recommended the YM site to the Congress. In April 2002, the State of Nevada submitted a notice of disapproval to the Congress. However, Congress approved the site designation by a Joint Resolution signed by the President on July 23, 2002. Public Law 107-200, 116 Stat. 735
(2002)(codified at 42 U.S.C. 10135 note (Supp. IV 2004)). C. The NEI Decision Thereafter, the State of Nevada sought court review of the Secretary's decision to recommend the YM site to the President, the President's decision to recommend the YM site to the Congress, and DOE's FEIS, which had been used to support both recommendations. In response, DOE argued that the Joint Resolution had rendered moot Nevada's challenges to the Secretary's and the President's recommendations, with the result that Nevada's claims that the FEIS was inadequate could not be considered as part of the challenges to these recommendations. Further, DOE argued that, insofar as the FEIS might be used to support future DOE and NRC decisions, the FEIS was unripe for review because there was no final agency action affecting the State at that time. In the litigation resulting in the *NEI* decision, the State's challenges to the Secretary's and the President's recommendations and to the FEIS were combined with other issues raised by the State and with other lawsuits concerning the YM repository, including challenges to both the Environmental Protection Agency's final standards (66 FR 32,074; June 13, 2001) and NRC's final regulations for the proposed geologic repository at YM (66 FR 55,732; November 2, 2001). However, NRC's procedures and criteria for adoption of DOE's FEIS were not issues raised in any of the lawsuits and NRC's rationale for adoption of the § 51.109 procedures and criteria was neither briefed nor argued by NRC. NRC did describe in its brief its regulatory adoption process in the context of an issue raised by Nevada concerning NRC's regulation at 10 CFR 63.341, which required DOE to include the results of its projections of peak dose in its FEIS. 2 *See, Brief for the Federal Respondents, State of Nevada* v. *U.S. Nuclear Regulatory Commission,* Nos. 01-1116 and 03-1058, June 6, 2003, at 44-45. In resolving this issue, the court noted NRC's statement “that it has imposed no categorical limitation on any challenge to DOE's peak dose calculations and that, under its regulations, parties to the proceeding may challenge the practicability of adopting aspects of DOE's EIS, including the peak dose calculations, based on substantial new information to the contrary.” 375 F.3d 1251, at 1300 (internal quotations omitted). 2 In 2005, NRC proposed to eliminate § 63.341 as part of its proposed amendments to 10 CFR Part 63. See, 70 FR 53313 (September 8, 2005). In *NEI,* the court agreed with DOE that Congress' enactment of the Joint Resolution had rendered moot issues raised concerning the Secretary's and the President's recommendation of the YM site. *See* 373 F.3d at 1309. Thus, the court held that “[i]nsofar as Nevada's instant challenge to the FEIS is intended to reverse the decision to select the Yucca site, the challenge is moot * * *” 373 F.3d at 1312. However, the court noted the anticipated use of the FEIS in future decisionmaking related to YM, including its potential adoption by NRC in NRC's licensing proceeding, and considered whether the court should review the FEIS because it might be used to support future decisions. The court determined that the FEIS was not ripe for review under the two-part test used to determine ripeness: The fitness of the issue for judicial decision and the hardship to the parties of withholding court consideration. Under the first prong of the test, the court noted that it was unclear to what extent NRC would adopt the FEIS and whether the FEIS would require supplementation prior to any adoption. The court concluded that “[o]ur review of the FEIS therefore would benefit from postponing consideration until the FEIS has been used to support a specific, concrete, and final decision.” 373 F.3d at 1313. Under the second prong of the test, the court concluded that “withholding consideration of Nevada's substantive claims at this time imposes no hardship on Nevada * * * [because] Nevada may raise its substantive claims against the FEIS if and when NRC or DOE makes * * * a final decision.” Id. In reaching this conclusion as to hardship, the court stated that “we rely on the assurances of counsel for both NRC and DOE at oral argument that Nevada will be permitted to raise its substantive challenges to the FEIS in any NRC proceeding to decide whether to adopt the FEIS and in any DOE proceeding to select a transportation alternative.” *Id.* The Petition The petitioner agrees that § 51.109 “in most respects tracks the language of [section 114(f)(4) of the NWPA]” on which it is based. Petition at 2. However, the petitioner claims that this regulation also adds three special provisions not found in the statute:
(1)Special procedures for litigation of NEPA issues;
(2)allowance for adoption of DOE supplements to the FEIS; and
(3)special standards that specify in some detail precisely when NRC will adopt the FEIS. The petitioner believes that the Commission must conduct a rulemaking to eliminate the “special litigation procedures” and to correct the “special adoption standards.” The petition makes no further reference to the second “special provision” and suggests no rule change with respect to this provision. There is no apparent reason why Congress would have intended to exclude supplements to the FEIS in its requirement for NRC to adopt DOE's FEIS to the extent practicable, so we do not regard this provision of the regulation as being within the petition for rulemaking. To correct the criteria for assessing the practicability of adoption, petitioner requests that the Commission add a new paragraph
(h)to § 51.109: Nothing in this section shall be construed to limit the ability of any party or interested governmental participant to challenge in a licensing hearing any environmental impact statement (including any supplement thereto) prepared by the Secretary of Energy on the ground that such statement violates NEPA or the regulations of the Council on Environmental Quality, provided that the challenge is not barred by traditional principles of federal collateral estoppel. Collateral estoppel shall not bar the admission of a NEPA contention if the standards in subparagraphs (c)(1) and (c)(2) of this section are met, provided that the change in the proposed action or new information or considerations became known after the litigation in question. Petitioner further proposes that the Commission delete § 51.109(a)(2), with the result that the admission of NEPA contentions will be guided by the same principles in 10 CFR 2.309(f) that apply to other kinds of contentions. Public Comments on the Petition Three comment letters were received on the petition. The Board of Lincoln County Commissioners supports the petition for the reasons advanced in the petition, noting that it expects to participate in an NRC proceeding which will examine NRC's independent review of the FEIS. The National Association of Regulatory Utility Commissioners (NARUC) expressed the view that Nevada's substantive issues on the FEIS could be considered in NRC's licensing proceeding without any need to amend the regulations because, *inter alia,* “the Court of Appeals provided the State the right to have consideration be given to outstanding concerns with the EIS prepared for the Yucca Mountain repository when * * * the NRC prepares its own EIS for the licensing decision.” 3 DOE does not think that Nevada's requested rulemaking is warranted because “[t]he regulation at issue comports with NRC's responsibilities under both NEPA and the NWPA, and nothing in the *NEI* case supports Nevada's claim that the regulation must be revised.” 3 It is not clear whether NARUC recognizes that NRC may adopt DOE's EIS to the extent practicable, rather than prepare its own EIS. Reasons for Denial A. The Adoption Standards in § 51.109(c) With regard to the “special adoption standards” in § 51.109(c), petitioner notes that both Nevada and the Council on Environmental Quality
(CEQ)had objected to NRC's criteria for determining that it is practicable to adopt the FEIS. In comments submitted at the time of the 1988-89 rulemaking, Nevada and CEQ argued that NEPA does not allow NRC to adopt the FEIS without a full and independent review of the FEIS. Further, Nevada also disagreed, and continues to disagree, with NRC's position in that rulemaking that in the NWPA, Congress intended to alter NRC's ordinary NEPA obligations and lessened the need for NRC to conduct a fully independent review of the FEIS prior to adoption. In support of its position, the petitioner cites the statements of two Senators made during the congressional debates leading to the NWPA, statements considered by NRC in its rulemaking but rejected as “less illuminating” than the legislative history stemming from the House of Representatives' consideration of the issues. *See,* 53 FR 16137. The State's main basis for requesting rulemaking stems from the NEI court's discussion of NRC's potential adoption of the FEIS. The petitioner notes the court's observations that Nevada may raise its substantive claims against the FEIS when it is used by NRC to support a future construction authorization or licensing decision, and that NRC counsel had assured the court that Nevada would be permitted to raise its substantive challenges to the FEIS in any NRC proceeding to decide whether to adopt the FEIS. The petitioner further notes the court's statement that NWPA's mandate that the FEIS be adopted by NRC “to the extent practicable” * * * “cannot reasonably be interpreted to permit NRC to premise a construction-authorization or licensing decision upon an EIS that does not meet the substantive requirements of the NEPA or [CEQ's] NEPA regulations.” 373 F.3d at 1314. Finally, the petitioner notes the court's rejection of the position taken in a letter from NRC counsel to the court that § 51.109(c) only affected issues that could be raised and litigated in NRC administrative proceedings and not issues that could be raised on judicial review. *See,* Petition at 5; 373 F.3d 1314. Rather, the court stated, “Nevada's claims have not been adjudicated on the merits here and presumably will not have been passed upon by any court prior to the relevant NRC proceedings. The claims thus would certainly raise ‘new considerations’ with regard to any decision to adopt the FEIS.” *Id.* The petitioner believes that “any Commission interpretation of 10 CFR 51.109 at odds with counsel's representation at oral argument would clearly be unlawful” and asserts that “[NRC's] current regulation is directly at odds with [its counsel's and the court's] interpretation,” so that the Commission must correct the regulation. Petition at 5-6. Petitioner's assertion that § 51.109(c) must be “corrected” because it is “directly at odds” with the interpretation of this regulation by the *NEI* court directly contradicts what the court itself said on the subject of any need for the Commission to amend its regulations. The court stated: Government counsel's unequivocal representation to the court during oral argument that Nevada will not be foreclosed from raising substantive claims against the FEIS in administrative proceedings comports with the terms of the regulation and reflects a reasonable and compelling interpretation. Therefore, on the record at hand, there is no reason to assume that the regulation will bar consideration of Nevada's substantive claims in the relevant NRC administrative proceedings. 373 F.3d at 1314. Far from suggesting that NRC's regulation needed to be amended to accommodate the court's interpretation of the regulation, the court expressed its satisfaction that there was no reason to assume that the present language of the regulation would bar consideration of Nevada's substantive claims. This conclusion follows the court's explicit consideration of the language of the § 51.109(c) criteria. The court focused on the second criterion; *i.e.* , that it might not be practicable for NRC to adopt the FEIS if “significant and substantial new information or new considerations render such environmental impact statement inadequate.” The court noted that “Government counsel assured the court that NRC will not construe the ‘new information or new considerations' requirement to preclude Nevada from raising substantive claims against the FEIS in administrative proceedings.” *Id.* Further, the court observed that “Nevada's claims have not been adjudicated on the merits here and presumably will not have been passed upon by any court prior to the relevant NRC proceedings. The claims thus would certainly raise ‘new considerations' with regard to any decision to adopt the FEIS.” *Id.* 4 There is no need for the Commission to expend the resources needed for a rulemaking to “correct” a rule which the court gave no indication of needing correction. NRC will treat Nevada's substantive claims against the FEIS as “new considerations” within the framework of § 51.109(c). 4 At the same time, the court recognized that “[t]he NWPA's mandate that the FEIS be adopted by NRC ‘to the extent practicable’ is intended to avoid duplication of the environmental review process.” 373 F.3d 1251. Although the petitioner frames its request for correction of § 51.109(c) in terms of a supposed need to bring the regulation into line with the views of the court, the petitioner may actually be seeking to raise once again the issues the State and CEQ raised in comments made during the 1988-89 rulemaking. The petition raises no issues that were not raised and fully considered in that rulemaking. The Commission's rationale for the adoption criteria issued as part of that rulemaking was not before the court in NEI and the court, as explained above, found nothing amiss with the criteria. The court's decision presents no reasons for the Commission to reexamine the basis of that rulemaking. B. The Litigation Procedures in § 51.109(a)(2) With regard to the “special litigation procedures,” the petitioner notes that § 51.109(a)(2) conditions the admissibility of a contention which asserts that NRC should not adopt the FEIS on satisfaction, to the extent possible, of the standards for reopening a closed record under 10 CFR 2.326. The petitioner asserts that the principal difference between this standard and the contention standard in 10 CFR 2.309(f) that applies to other issues is that the former requires submission of admissible evidence, while the latter does not. The petitioner asserts that NRC's creation of “special litigation procedures” violates NEPA: “Section 102(2)(C) of NEPA requires that an FEIS must be considered in the ‘existing agency review processes’ [emphasis added], not some different review process applicabl[e] only to NEPA where interested persons must satisfy additional pleading requirements that would otherwise not apply.” Petition at 6 (citing *Calvert Cliffs,* 449 F.2d 1109 (D.C. Cir. 1971); 40 CFR 1505.1; *Aberdeen & Rockfish R. Co.* v. *SCRAP,* 422 U.S. 289, 320 (1975)). The relevant portion of section 102(2)(C) of the NEPA states that copies of the requisite “detailed statement” must “accompany the proposal through the existing agency review processes.” 5 This language does not require that an agency establish one uniform agency process for all NEPA reviews. Here, NRC has adopted a contention standard in § 51.109(a)(2) which takes account of the NWPA's effect on its NEPA responsibilities as explained in its 1988-89 rulemaking. In the relevant portion of the Calvert Cliffs decision, the question before the court was “whether the [Atomic Energy] Commission is correct in thinking that its NEPA responsibilities may be carried out in toto outside the hearing process—whether it is enough that environmental data and evaluations merely accompany the application through the review process, but receive no consideration whatever from the hearing board.” *Calvert Cliffs,* 449 F.2d at 1117 (internal quotation marks omitted). In the discussion that follows, the court focused on the meaning of the term “accompany,” not whether changes in agency procedures for considering NEPA issues would be inconsistent with the “existing agency review process” language. The court concluded that the word “accompany” meant that the detailed statement must be considered during the agency review process. In *Aberdeen,* the Court held that an oral hearing held before an agency made a recommendation or report on a proposal for Federal action was not an “existing agency review process” under section 102(2)(C) of the NEPA and thus, a FEIS was not required to be available during this hearing. *See* , 422 U.S. at 320-21. Thus, the Supreme Court's discussion in *Aberdeen* focuses on when the FEIS must be made available, not whether the term “existing agency review process” means that one contention standard must apply to all NEPA reviews in all cases before an agency. In short, the case law cited by the petitioner does not provide a reason for NRC to delete § 51.109(a)(2) from its regulations. 5 The CEQ regulation at 40 CFR 1505.1 is based on the statutory language and requires that agency procedures require “that relevant environmental documents * * * accompany the proposal through existing agency review processes so that agency officials use the statement in making decisions.” Conclusion The *NEI* court found no need for NRC to amend its regulations for the purpose of allowing the State to have its substantive claims examined in NRC's licensing proceeding for a potential YM repository. Petitioner's claims that NRC's adoption criteria violate the NEPA or the NWPA were addressed in the 1988-89 rulemaking and petitioner offers no new arguments for the Commission's consideration. Nor does the petitioner provide adequate legal support for NRC to amend its litigation procedures. Given this, it would be an unwise expenditure of resources for the Commission to conduct a rulemaking on this matter. For these reasons, the Commission denies PRM-51-9. Dated at Rockville, Maryland, this 25th day of January 2008. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. Appendix I—Commissioner Jaczko's Comments on SECY-07-0159, Denial of a Petition for Rulemaking (PRM-51-9)—State of Nevada I approve in part and disapprove in part the recommendation to proceed with option 2 which would deny the rulemaking petition while offering the assurance that the NRC will interpret the existing regulations to allow substantive claims to the Department of Energy's
(DOE)Final Environmental Impact Statement (FEIS). Instead, I approve a combination of options 1 and 2. The original regulations governing the agency's review of the FEIS were based upon an assumption of how the site selection process for a potential repository would unfold. But because the judicial review of environmental issues did not happen as we envisioned, I believe we should grant the petition and fix the corresponding regulations to appropriately reflect that the entire FEIS will be open for litigation in any NRC administrative proceeding regarding a repository application. At the same time, I believe the notice of the proposed rule should explain that the agency will interpret the regulations in a manner consistent with this approach should the rulemaking not be completed in time for a hearing on a potential Yucca Mountain license application. Based upon the history of this issue, I think granting the petition and amending our regulations is the right answer in this case. First, it is important to remember that the NRC could have originally interpreted the Nuclear Waste Policy Act
(NWPA)to allow the NRC to handle the adoption of DOE's FEIS in the same manner it currently handles the adoption of any other federal agency EIS in the NEPA review process. The NWPA's direction to avoid duplicative environmental analysis does not necessarily equate to a direction to eliminate most, if not all, of the FEIS from the NRC's hearing process. I believe we should treat DOE's FEIS in the same manner as we treat any other FEIS submitted by a similarly situated regulated entity. In this case, that would mean defending the agency's independent review of the entire FEIS—not just limited portions of it—in the NRC's administrative proceedings. Commenters, including the Council on Environmental Quality, said as much in comments to this rulemaking and I find their logic persuasive. Had the agency opted for that interpretation in the proposed rulemaking, perhaps we would not find ourselves facing this petition today. NRC's rationale for not doing so, however, while not ideal, made sense in the context of what the agency thought would happen with the FEIS. According to the rulemaking history, section 51.109 of NRC's regulations was based, at least in large part, upon the theory that the administrative litigation of NEPA issues at the NRC should be limited because many of these issues should have already had the opportunity to be litigated in another forum. Thus, legal doctrines which prevent issues and claims from being re-litigated, such as res judicata and collateral estoppel, would prevent the re-litigation of these issues in NRC hearings. This was premised upon NRC's expectation that an interested person would have had an opportunity to legally challenge DOE's FEIS after it was used to support the recommendations of Yucca Mountain as a site for a repository by the Secretary of Energy and the President. With that expectation in mind, the regulations were then designed to ensure that the environmental issues in any NRC proceeding on the proposed repository would appropriately focus on issues that were new—that were not able to be raised at the earlier opportunity to challenge the FEIS. So the regulations adopted in section 51.109 focused not on the entire FEIS, as would be the normal NRC practice, but on the NRC's decision to adopt the FEIS. The regulations limited challenges to NRC's adoption decision to those issues that had changed from the original application, or that were issues raising “significant and substantial new information” since that earlier opportunity to challenge the FEIS. This makes sense if any of the other issues regarding the FEIS had already had the opportunity to be challenged. Given that presumption, it also explains why the regulations direct the Board to use the higher standards governing a motion to reopen when ruling upon the issues raised regarding adoption of the FEIS—because litigating the FEIS in NRC's administrative proceeding was seen as re-opening the record on an already litigated FEIS. All that being said, as is often the case, actual events regarding judicial review of environmental issues transpired differently. Instead of the FEIS being used to support the recommendation of Yucca Mountain as a site for a repository, there was a Joint Resolution of Congress approving the Yucca Mountain site designation. This change of events, according to the Federal Court of Appeals decision in *Nuclear Energy Institute, Inc.* v. *Environmental Protection Agency,* 373 F.3d 1251 (D.C. Circuit 2004), rendered any such challenge to the FEIS' support for the Yucca Mountain site moot; and to the extent the NRC may rely upon the FEIS, rendered challenges unripe because the NRC had not reached a decision regarding adopting or relying upon the FEIS in a way that could have yet harmed the parties. It was part of this discussion that led the NRC and DOE to assure the court that the parties would have an opportunity during NRC's administrative hearing to raise substantive challenges to the FEIS. And it is this assurance from NRC counsel that generated the petition for rulemaking. In essence, the petitioners do not understand how NRC's current regulations can be in accord with the assurance the court relied upon—that parties would have the opportunity at the NRC to substantively challenge the FEIS. Because current NRC regulations limit challenges to NRC's decision about adoption of the FEIS rather than the FEIS itself; and further limit those challenges to require they be based upon significant and substantial new information, it is easy to see how our stakeholders might be confused. Add to that the direction in the current regulations that the Boards are directed to review any challenge to the decision regarding adoption using the standards that govern re-opening a record—which is an intentionally higher bar for review—and there can be little question that the current regulations are confusing in light of the discussion in front of the court and the relied upon assurance that substantive issues regarding the FEIS could, in fact, be raised in NRC proceedings. For all of these reasons, it appears to me that the best way to transparently resolve the real question presented—the question of what issues surrounding the FEIS can be challenged in a prospective hearing on an application for a construction authorization—is to grant this petition and ensure that the regulations transparently capture precisely how the environmental review will be conducted in NRC's administrative proceeding. The earlier rulemaking was based upon assumptions, but we can now answer the questions with the benefit of knowing now what we did not know then. I recognize that the timing of the agency's decision on this petition is not ideal because an application for a repository may be submitted before this rulemaking would end. That is especially unfortunate in this particular situation where the petition was filed in 2005. Had we granted this petition at the close of the public comment period in October 2005, we likely would now be voting on the final rule instead of voting on this petition. I am hopeful that the staff's work to improve the rulemaking process will include ways to improve the timeliness of the petition process so we are not in this unfortunate position in the future. But we are where we are, and with that in mind, I believe the notice that grants the petition for rulemaking should indicate that, if the rulemaking is not resolved prior to the receipt of an application for a repository, the agency intends to interpret the regulations in a manner consistent with the court's decision—as the staff has drafted in the notice accompanying option 2—with some additional clarification. The notice should also explain that section 51.109(c), which indicates that challenges to the NRC's adoption decision are to be based upon “significant and substantial new information”, will be interpreted in a manner that recognizes, as the court did, that claims regarding DOE's FEIS have not been adjudicated on the merits and thus, would certainly raise “new considerations” with regard to any decision to adopt the FEIS. The notice should also make it clear that the current direction in section 51.109(a) that the presiding officer should, to the extent possible, use the criteria for ruling on a motion to reopen in resolving disputes regarding the adoption of the FEIS, is rendered moot. The notice should clearly state that it is not possible to rely upon criteria used for a motion to reopen given the relevant history of this matter where there was no opportunity to originally open these issues. Instead, the contention admissibility should be determined by reliance upon section 2.309(f), the agency's current contention standard. I appreciate that because these regulations have not yet been interpreted and applied in any proceeding, the agency has more flexibility to interpret them now without recreating them in a new rulemaking—and thus the recommendation for option 2. But this is not a situation where the regulations intent could have been clearer; this is a situation where the interpretation of the regulations will essentially require the agency to exercise great latitude in applying them in a manner consistent with the discussion in court. Transparency should dictate that we, at least, try to correct this situation through the appropriate rulemaking channels regardless of the impacts of the timing of this decision. We should not let the prospect of a potential application complicate what is clearly the right answer. We can and should deal with the possible complications of an intervening application by providing appropriate guidance should the rulemaking not resolve itself in time. But the two are not mutually exclusive and thus, I support a combination of options 1 and 2—granting the petition and clarifying in the notice the agency's regulatory interpretation of the existing regulations should they be required to be used prior to completion of the rulemaking. Also, this paper should be reviewed for a release determination and, at a minimum, the voting record and SRM from this paper should be made publicly available five business days after the letter is sent to the petitioner, as is current practice for release of information regarding decisions on rulemaking petitions. Gregory B. Jaczko. [FR Doc. E8-1751 Filed 1-30-08; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket Nos. FAA-2007-0413 and FAA-2007-0414; Directorate Identifiers 2007-NM-341-AD and 2007-NM-340-AD] RIN 2120-AA64 Airworthiness Directives; Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440), CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM); correction. SUMMARY: The FAA is correcting typographical errors in two NPRMs that were published in the **Federal Register** on January 4, 2008 (73 FR 833, and 73 FR 830). The errors resulted in incorrect docket numbers. One NPRM applies to all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The other NPRM applies to all Bombardier Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) airplanes. Both actions proposed to require revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. ADDRESSES: You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is the Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. FOR FURTHER INFORMATION CONTACT: Rocco Viselli, Aerospace Engineer, Airframe and Propulsion Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, New York 11590; telephone
(516)228-7331; fax
(516)794-5531. SUPPLEMENTARY INFORMATION: On December 26, 2007, the FAA issued a notice of proposed rulemaking
(NPRM)for all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. That NPRM, Directorate Identifier 2007-NM-341-AD, was published in the **Federal Register** on January 4, 2008 (73 FR 833). On December 21, 2007, the FAA issued an NPRM for all Bombardier Model CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2D15 (Regional Jet Series 705), and CL-600-2D24 (Regional Jet Series 900) airplanes. That NPRM, Directorate Identifier 2007-NM-340-AD, was published in the **Federal Register** on January 4, 2008 (73 FR 830). Both actions proposed to require revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems. As published, those NPRMs specify incorrect docket numbers throughout the preamble and the regulatory text. The docket number associated with NPRM Directorate Identifier 2007-NM-341-AD was FAA-2008-0413, and the docket number associated with NPRM Directorate Identifier 2007-NM-340-AD was FAA-2008-0414. The docket numbers were assigned by the Federal Document Management System. We have been informed that incorrect docket numbers were assigned. The correct docket number for NPRM Directorate Identifier 2007-NM-341-AD is FAA-2007-0413. The correct docket number for NPRM Directorate Identifier 2007-NM-340-AD is FAA-2007-0414. Any commenter who submitted comments to an original, incorrect docket number should check Docket No. FAA-2007-0413 or FAA-2007-0414 on *www.regulations.gov* to determine whether the comments have been received and filed in the appropriate docket. If not, or if it is not possible to determine whether comments have been posted to the correct docket, the comments should be resubmitted using the correct docket number. No other part of the preamble or regulatory information has been changed; therefore, the NPRMs are not republished in the **Federal Register** . The last date for submitting comments to the NPRMs remains February 4, 2008. Correction In the **Federal Register** of January 4, 2008, on page 833, in the second column, the headings section of NPRM Docket No. FAA-2008-0413, Directorate Identifier 2007-NM-341-AD, is corrected to read as follows: “[Docket No. FAA-2007-0413; Directorate Identifier 2007-NM-341-AD]” In the **Federal Register** of January 4, 2008, on page 833, in the third column, the SUPPLEMENTARY INFORMATION section of NPRM Docket No. FAA-2008-0413, Directorate Identifier 2007-NM-341-AD, is corrected to read as follows: “* * * Include “Docket No. FAA-2007-0413; Directorate Identifier 2007-NM-341-AD” at the beginning of your comments. * * *” In the **Federal Register** of January 4, 2008, on page 830, in the second column, the headings section of NPRM Docket No. FAA-2008-0414, Directorate Identifier 2007-NM-340-AD, is corrected to read as follows: “[Docket No. FAA-2007-0414; Directorate Identifier 2007-NM-340-AD]” In the **Federal Register** of January 4, 2008, on page 831, in the first column, the SUPPLEMENTARY INFORMATION section of NPRM Docket No. FAA-2008-0414, Directorate Identifier 2007-NM-340-AD, is corrected to read as follows: “* * * Include “Docket No. FAA-2007-0414; Directorate Identifier 2007-NM-340-AD” at the beginning of your comments. * * *” § 39.13 [Corrected] In the **Federal Register** of January 4, 2008, on page 835, in the first column, paragraph 2. of PART 39—AIRWORTHINESS DIRECTIVES of NPRM Docket No. FAA-2008-0413, Directorate Identifier 2007-NM-341-AD is corrected to read as follows: **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2007-0413; Directorate Identifier 2007-NM-341-AD. In the **Federal Register** of January 4, 2008, on page 832, in the second column, paragraph 2. of PART 39—AIRWORTHINESS DIRECTIVES of NPRM Docket No. FAA-2008-0414, Directorate Identifier 2007-NM-340-AD is corrected to read as follows: **Bombardier, Inc. (Formerly Canadair):** Docket No. FAA-2007-0414; Directorate Identifier 2007-NM-340-AD. Issued in Renton, Washington, on January 24, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. 5 [FR Doc. E8-1695 Filed 1-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0107; Directorate Identifier 2007-NM-087-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Boeing Model 747 airplanes. This proposed AD would require inspections for scribe lines in affected lap and butt splices, wing-to-body fairing locations, and external repair and cutout reinforcement areas; and related investigative and corrective actions if necessary. This proposed AD results from reports of scribe lines found at lap joints and butt joints, around external doublers and antennas, and at locations where external decals had been cut. We are proposing this AD to detect and correct scribe lines, which can develop into fatigue cracks in the skin and cause sudden decompression of the airplane. DATES: We must receive comments on this proposed AD by March 17, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6447; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0107; Directorate Identifier 2007-NM-087-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion We have received a report indicating that scribe lines have been found by 8 operators on 15 Model 747 airplanes. Scribe lines were found at lap joints and butt joints, around external doublers and antennas, and at locations where external decals had been cut. Many of the scribe lines appear to have been made when sealant was removed as part of preparation of the airplane for repainting. Although fatigue cracks can develop in the skin at scribe line locations—and have been found on some airplane models, no such cracking has been found on Model 747 airplanes. Such fatigue cracks, if not corrected, could grow large and cause sudden decompression of the airplane. Related ADs This proposed AD is similar to two existing ADs. AD 2006-07-12, amendment 39-14539 (71 FR 16211, March 31, 2006), applies to all Boeing Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. AD 2007-19-07, amendment 39-15198 (72 FR 60244, October 24, 2007), applies to all Boeing Model 757-200, -200PF, and -200CB series airplanes. Those ADs require inspections to detect scribe lines in the fuselage skin at certain lap joints, butt joints, external repair doublers, and other areas; and related investigative/corrective actions if necessary. Those actions resulted from reports of fuselage skin cracks adjacent to the skin lap joints on airplanes that had scribe lines. Relevant Service Information We have reviewed Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008. The service bulletin describes procedures for exploratory detailed inspections to detect scribe lines in affected lap and butt splices, wing-to-body fairing locations, and external repair and cutout reinforcement areas. The service bulletin specifies removing paint and sealant from affected areas before the initial exploratory inspection. The compliance time for the exploratory inspections is 15,000 or 25,000 total flight cycles (depending on the inspection location), with a grace period between 500 and 1,500 flight cycles depending on the age of the airplane and the location of the inspection. The service bulletin specifies conditional actions, depending on the size, depth, and location of the damage. These actions include performing eddy current or ultrasonic inspections of the scribe lines to detect cracks, and either repairing scribe lines and cracks or contacting Boeing for repair instructions. The service bulletin specifies repairing scribe lines before further flight, except when a limited return to service
(LRTS)program for qualifying scribe lines would allow return to service for a limited period before scribe lines are repaired. The LRTS program includes repetitive inspections to detect cracks where scribe lines are found. To qualify for an LRTS program, scribe lines must meet certain criteria based on their depth and location. The service bulletin specifies contacting Boeing for final repair instructions, which would eliminate the need for the repetitive inspections of the LRTS program. The repetitive intervals for the LRTS program range from 250 to 10,000 flight cycles, depending on the depth and location of the scribe lines and the configuration of the airplane. The service bulletin notes that certain inspections would not be required under the following conditions: • The airplane had never been stripped or repainted. • The wing-to-body fairings had never been removed. • The airplane had never been stripped or repainted under the wing-to-body fairings. • For each repair, the airplane had never been stripped or repainted since the repair was installed. • No sealant had been removed except in accordance with the specified sealant removal processes as given in Appendix A of the service bulletin. The service bulletin specifies submitting the initial inspection results to Boeing. The service bulletin also provides procedures for addressing scribe lines detected before the initial inspection threshold. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed below. This proposed AD would also require sending the results of the exploratory inspections to Boeing. Difference Between the Proposed AD and Service Bulletin The 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 Proposed Requirements Beyond Specified Inspection Areas and Threshold Although the service bulletin provides procedures for addressing scribe lines that are found outside the inspection areas and before the initial inspection threshold, this proposed AD would not include such requirements. Interim Action This proposed AD is considered to be interim action. The inspection reports that would be required by this proposed AD will enable the manufacturer to obtain better insight into the nature, cause, and extent of the cracking, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking. Costs of Compliance There are about 1,038 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Average labor rate per hour Cost per airplane Number of U.S.-registered airplanes Fleet cost Exploratory inspections 1,020 to 1,140 $80 $81,600 to $91,200 219 $17,870,400 to $19,972,800. Report 1 80 $80 219 $17,520. 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 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 this 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. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Boeing:** Docket No. FAA-2008-0107; Directorate Identifier 2007-NM-087-AD. Comments Due Date
(a)We must receive comments by March 17, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SP, and 747SR series airplanes, certificated in any category; as identified in Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008. Unsafe Condition
(d)This AD results from reports of scribe lines found at lap joints and butt joints, around external doublers and antennas, and at locations where external decals had been cut. We are issuing this AD to detect and correct scribe lines, which can develop into fatigue cracks in the skin and cause sudden decompression 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. Inspection
(f)At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008, except as provided in paragraph
(g)of this AD, do detailed exploratory inspections for scribe lines of affected lap and butt splices, wing-to-body fairing locations, and external repair and cutout reinforcement areas, and do all applicable related investigative and corrective actions, by accomplishing all actions specified in the Accomplishment Instructions of the service bulletin, except as provided by paragraph
(h)of this AD. Note 1: The inspection exemptions noted in paragraph 1.E. of Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008, apply to this AD. Exceptions to Service Bulletin Specifications
(g)Where Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008, specifies a compliance time after the date on the service bulletin, this AD requires compliance within the specified compliance time after the effective date of this AD.
(h)Where Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008, specifies to contact Boeing for appropriate action, accomplish applicable actions before further flight using a method approved in accordance with the procedures specified in paragraph
(k)of this AD. Report
(i)At the applicable time specified in paragraph (i)(1) or (i)(2) of this AD: Submit a report of the findings (both positive and negative) of the inspections required by paragraph (f)(1) of this AD. One approved method for reporting is Appendixes B and C as applicable of Boeing Service Bulletin 747-53A2563, Revision 2, dated January 3, 2008. Send the report to Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. The report must contain, at a minimum, the inspection results, a description of any discrepancies found, the airplane serial number, and the number of flight cycles and flight hours on the airplane. Under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ), the Office of Management and Budget
(OMB)has approved the information collection requirements contained in this AD and has assigned OMB Control Number 2120-0056.
(1)If the inspection was done after the effective date of this AD: Submit the report within 30 days after the inspection.
(2)If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD. Actions Accomplished According to Previous Issue of Service Bulletin
(j)Actions accomplished before the effective date of this AD according to Boeing Alert Service Bulletin 747-53A2563, dated March 29, 2007, are considered acceptable for compliance with the corresponding actions specified in this AD. Alternative Methods of Compliance (AMOCs) (k)(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)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO.
(3)An AMOC that provides an acceptable level of safety may be used for any repair or limited return to service
(LRTS)plan specified in this AD, if the repair or LRTS plan 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. To be approved, the repair and LRTS plan must meet the certification basis of the airplane, and the approval must specifically refer to this AD. Issued in Renton, Washington, on January 18, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1703 Filed 1-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0091; Directorate Identifier 2007-NM-311-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Boeing Model 747 airplanes. This proposed AD would require modification of the refuel valve control unit for the reserve fuel tanks. This proposed AD would also require a revision to the FAA-approved maintenance program to incorporate airworthiness limitation
(AWL)No. 28-AWL-20 or AWL No. 28-AWL-25, as applicable. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to prevent lightning-induced electrical energy from entering a reserve fuel tank through the refuel valve, which could result in a fuel tank explosion and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by March 17, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6501; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0091; Directorate Identifier 2007-NM-311-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Boeing has found that it is possible for unsafe energy to enter a reserve fuel tank through the refuel valve from induced electrical energy on the unshielded wire during a lightning strike. This condition, if not corrected, could result in a fuel tank explosion and consequent loss of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 747-28A2291, dated September 27, 2007. The service bulletin describes procedures for modifying the refuel valve control unit for the reserve fuel tanks. The modification includes installing a new angle bracket with two grounding studs, installing bonding ground jumpers between the refuel valve mounting bolts and the grounding studs, and doing a resistance check. We have also reviewed the Boeing 747-100/200/300/SP Airworthiness Limitations
(AWLs)and Certification Maintenance Requirements (CMRs), D6-13747-CMR, Revision January 2007 (hereafter referred to as “Document D6-13747-CMR”). (For the purposes of Document D6-13747-CMR, the Model 747SR series airplane is basically a Model 747-100 series airplane with certain modifications to improve fatigue life.) Section D of Document D6-13747-CMR describes new AWLs for fuel tank systems. The AWLs include: • AWL inspections, which are periodic inspections of certain features for latent failures that could contribute to an ignition source. • Critical design configuration control limitations (CDCCLs), which are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection. Section D of Document D6-13747-CMR adds new fuel system AWL No. 28-AWL-20, which is a CDCCL to maintain the design features of the reserve tank fueling valve controller when the fueling valve controller is removed and replaced. We have also reviewed the Boeing 747-400 Maintenance Planning Data
(MPD)Document, D621U400-9, Section 9, Revision 24, dated June 2006 (hereafter referred to as the “Boeing 747-400 MPD”). Subsection D of the Boeing 747-400 MPD adds new fuel system AWL No. 28-AWL-25, which is a CDCCL to maintain the design features of the reserve tank fueling valve controller when the fueling valve controller is removed and replaced. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require the following actions: • Modification of the refuel valve control unit for the reserve fuel tanks. • Revision to the FAA-approved maintenance program to incorporate AWL No. 28-AWL-20, which would require maintaining the design features of the reserve tank fueling valve controller when the fueling valve controller is removed and replaced on Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. • Revision to the FAA-approved maintenance program to incorporate AWL No. 28-AWL-25, which would require maintaining the design features of the reserve tank fueling valve controller when the fueling valve controlled is removed and replaced on Model 747-400, 747-400D, and 747-400F series airplanes. This proposed AD would also allow accomplishing the revision to the AWLs section of the Instructions for Continued Airworthiness in accordance with later revisions of the MPD as an acceptable method of compliance if they are approved by the Manager, Seattle Aircraft Certification Office, FAA. Costs of Compliance We estimate that this proposed AD would affect 300 airplanes of U.S. registry. The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Parts Cost per product Fleet cost Modification Up to 7 Up to $286 Up to $846 Up to $253,800. Maintenance program revision 1 None $80 $24,000. 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 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 this 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. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Boeing:** Docket No. FAA-2008-0091; Directorate Identifier 2007-NM-311-AD. Comments Due Date
(a)We must receive comments by March 17, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-28A2291, dated September 27, 2007. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(h)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent lightning-induced electrical energy from entering a reserve fuel tank through the refuel valve, which could result in a fuel tank explosion and consequent loss of the airplane. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Modification
(f)Within 60 months after the effective date of this AD, modify the refuel valve control unit for the reserve fuel tanks, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 747-28A2291, dated September 27, 2007. Maintenance Program Revision
(g)Concurrently with accomplishing the modification required by paragraph
(f)of this AD, revise the FAA-approved maintenance program by incorporating the information specified in paragraphs (g)(1) or (g)(2) of this AD, as applicable.
(1)For Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes: Incorporate AWL No. 28-AWL-20 of Section D of the Boeing 747-100/200/300/SP Airworthiness Limitations
(AWLs)and Certification Maintenance Requirements (CMRs), D6-13747-CMR, Revision January 2007, into the FAA-approved maintenance program. Accomplishing the revision in accordance with a later revision of Document D6-13747-CMR is an acceptable method of compliance if the revision is approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA.
(2)For Model 747-400, 747-400D, and 747-400F series airplanes: Incorporate AWL No. 28-AWL-25 of Subsection D of the Boeing 747-400 Maintenance Planning Data
(MPD)Document, D621U400-9, Section 9, Revision 24, dated June 2006, into the FAA-approved maintenance program. Accomplishing the revision in accordance with a later revision of the MPD is an acceptable method of compliance if the revision is approved by the Manager, Seattle ACO, FAA. Alternative Methods of Compliance (AMOCs) (h)(1) The Manager, Seattle ACO, FAA, ATTN: Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)917-6501; fax
(425)917-6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on January 18, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1704 Filed 1-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0090; Directorate Identifier 2007-NM-312-AD] RIN 2120-AA64 Airworthiness Directives; Boeing Model 747 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Boeing Model 747 airplanes. This proposed AD would require measuring the electrical bond resistance between the motor operated valve
(MOV)actuators and airplane structure for the main, center, auxiliary, and horizontal stabilizer fuel tanks as applicable, and corrective action if necessary. This proposed AD would also require a revision to the FAA-approved maintenance program to incorporate airworthiness limitation
(AWL)No. 28-AWL-21 or AWL No. 28-AWL-27, as applicable. This proposed AD results from fuel system reviews conducted by the manufacturer. We are proposing this AD to prevent electrical current from flowing through a MOV actuator into a fuel tank, which could create a potential ignition source inside the fuel tank. This condition, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. DATES: We must receive comments on this proposed AD by March 17, 2008. ADDRESSES: You may send comments by any of the following methods: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:* 202-493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this AD, contact Boeing Commercial Airplanes, P.O. Box 3707, Seattle, Washington 98124-2207. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6501; fax
(425)917-6590. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2008-0090; Directorate Identifier 2007-NM-312-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD. Discussion The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83). Among other actions, SFAR 88 requires certain type design (i.e., type certificate
(TC)and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews. In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action. We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane. Boeing has found that, under specific conditions, it is possible for electrical current to flow through a motor operated valve
(MOV)actuator into a fuel tank, which could create a potential ignition source inside the fuel tank. This condition, if not corrected, in combination with flammable fuel vapors could result in a fuel tank explosion and consequent loss of the airplane. Relevant Service Information We have reviewed Boeing Alert Service Bulletin 747-28A2292, dated September 14, 2007, for Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The service bulletin describes procedures for measuring the electrical bond resistance between the MOV actuators and airplane structure for the main, center, and auxiliary fuel tanks, and corrective action if necessary. The corrective action includes reworking the index plate and cleaning the surface of the adapter plate and airplane structure as necessary. We have also reviewed Boeing Alert Service Bulletin 747-28A2294, dated September 21, 2007, for Model 747-400 series airplanes equipped with an active horizontal stabilizer fuel tank. The service bulletin describes procedures for measuring the electrical bond resistance between the MOV actuators and airplane structure for the horizontal stabilizer fuel tank, and corrective action if necessary. The corrective action includes reworking the index plate and cleaning the surface of the adapter plate and airplane structure as necessary. We have also reviewed the Boeing 747-100/200/300/SP Airworthiness Limitations
(AWLs)and Certification Maintenance Requirements (CMRs), D6-13747-CMR, Revision January 2007 (hereafter referred to as “Document D6-13747-CMR”). (For the purposes of Document D6-13747-CMR, the Model 747SR series airplane is basically a Model 747-100 series airplane with certain modifications to improve fatigue life.) Section D of Document D6-13747-CMR describes new AWLs for fuel tank systems. The AWLs include: • AWL inspections, which are periodic inspections of certain features for latent failures that could contribute to an ignition source. • Critical design configuration control limitations (CDCCLs), which are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection. Section D of Document D6-13747-CMR adds new fuel system AWL No. 28-AWL-21, which is a CDCCL to maintain the design features of the MOV actuator. We have also reviewed the Boeing 747-400 Maintenance Planning Data
(MPD)Document, D621U400-9, Section 9, Revision December 2006 R1 (hereafter referred to as the “Boeing 747-400 MPD”). Subsection D of the Boeing 747-400 MPD adds new fuel system AWL No. 28-AWL-27, which is a CDCCL to maintain the design features of the MOV actuator. FAA's Determination and Requirements of This Proposed AD We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the(se) same type design(s). This proposed AD would require the following actions: • Measuring the electrical bond resistance between the MOV actuators and airplane structure for the main, center, auxiliary, and horizontal stabilizer fuel tanks as applicable, and corrective action if necessary. • Revising the FAA-approved maintenance program to incorporate AWL No. 28-AWL-21, which would require maintaining the design features of the MOV actuator on Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. • Revising the FAA-approved maintenance program to incorporate AWL No. 28-AWL-27, which would require maintaining the design features of the MOV actuator on Model 747-400, 747-400D, and 747-400F series airplanes. Costs of Compliance We estimate that this proposed AD would affect 300 airplanes of U.S. registry. The following table provides the estimated costs, at an average labor rate of $80 per hour, for U.S. operators to comply with this proposed AD. Estimated Costs Action Work hours Parts Cost per product Fleet cost Measurements Up to 447 Up to $350 Up to $36,110 Up to $10,833,000. Maintenance program revision 1 None $80 $24,000. 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 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 this 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. You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Boeing:** Docket No. FAA-2008-0090; Directorate Identifier 2007-NM-312-AD. Comments Due Date
(a)We must receive comments by March 17, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category; as identified in Boeing Alert Service Bulletin 747-28A2292, dated September 14, 2007. Note 1: This AD requires revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, the operator may not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph
(j)of this AD. The request should include a description of changes to the required inspections that will ensure the continued operational safety of the airplane. Unsafe Condition
(d)This AD results from fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent electrical current from flowing through a motor operated valve
(MOV)actuator into a fuel tank, which could create a potential ignition source inside the fuel tank. This condition, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane. Compliance
(e)Comply with this AD within the compliance times specified, unless already done. Measurement and Corrective Action
(f)For all airplanes: Within 60 months after the effective date of this AD, measure the electrical bond resistance between the MOV actuators and airplane structure for the main, center, and auxiliary fuel tanks as applicable, and do all the applicable corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 747-28A2292, dated September 14, 2007. The corrective actions must be accomplished before further flight.
(g)For Model 747-400 series airplanes identified in paragraph 1.A of Boeing Alert Service Bulletin 747-28A2294, dated September 21, 2007: Within 60 months after the effective date of this AD, measure the electrical bond resistance between the MOV actuators and airplane structure for the horizontal stabilizer fuel tanks, and do all the applicable corrective actions, by accomplishing all of the applicable actions specified in the Accomplishment Instructions of the service bulletin. The corrective actions must be accomplished before further flight. Maintenance Program Revision
(h)For Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes: Concurrently with accomplishing the actions required by paragraph
(f)of this AD, revise the FAA-approved maintenance program by incorporating AWL No. 28-AWL-21 of Section D of the Boeing 747-100/200/300/SP Airworthiness Limitations
(AWLs)and Certification Maintenance Requirements (CMRs), D6-13747-CMR, Revision January 2007. Accomplishing the revision in accordance with a later revision of Document D6-13747-CMR is an acceptable method of compliance if the revision is approved by the Manager, Seattle Aircraft Certification Office (ACO), FAA.
(i)For Model 747-400, 747-400D, and 747-400F series airplanes: Concurrently with accomplishing the applicable actions required by paragraph
(f)and
(g)of this AD, revise the FAA-approved maintenance program by incorporating AWL No. 28-AWL-27 of Subsection D of the Boeing 747-400 Maintenance Planning Data
(MPD)Document, D621U400-9, Section 9, Revision December 2006 R1. Accomplishing the revision in accordance with a later revision of the MPD is an acceptable method of compliance if the revision is approved by the Manager, Seattle ACO, FAA. Alternative Methods of Compliance (AMOCs) (j)(1) The Manager, Seattle ACO, FAA, ATTN: Sulmo Mariano, Aerospace Engineer, Propulsion Branch, ANM-140S, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)917-6501; fax
(425)917-6590; has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19.
(2)To request a different method of compliance or a different compliance time for this AD, follow the procedures in 14 CFR 39.19. Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Issued in Renton, Washington, on January 14, 2008. Stephen P. Boyd, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1705 Filed 1-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Directorate Identifier 2000-NM-120-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model EMB-120 Series Airplanes AGENCY: Federal Aviation Administration, DOT. ACTION: Proposed rule; withdrawal. SUMMARY: This action withdraws a notice of proposed rulemaking
(NPRM)that proposed a new airworthiness directive (AD), applicable to certain EMBRAER Model EMB-120 series airplanes. That action would have required repetitive calibration testing of potentiometers to detect noisy signals, replacement of only those with noisy signals, and reporting results of the calibration tests of the potentiometers and the readouts of the flight data recorder
(FDR)to the airplane manufacturer. Since the issuance of the NPRM, the Federal Aviation Administration
(FAA)has determined that while a noisy or defective potentiometer may hamper the ability to access certain aircraft data in support of either an accident or incident investigation or just general maintenance activities, there is no direct effect on the aircraft's ability to be operated safely. Accordingly, the proposed rule is withdrawn. FOR FURTHER INFORMATION CONTACT: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add a new airworthiness directive (AD), applicable to certain EMBRAER Model EMB-120 series airplanes, was published in the **Federal Register** as a second supplemental Notice of Proposed Rulemaking
(NPRM)on February 1, 2005 (70 FR 5070). The proposed rule would have required repetitive calibration testing of potentiometers to detect noisy signals, replacement of only those with noisy signals, and reporting results of the calibration tests of the potentiometers and the readouts of the flight data recorder
(FDR)to the airplane manufacturer. The proposed actions were intended to prevent the potentiometers that provide information on the positions of the primary flight controls to the FDR from transmitting noisy signals or becoming improperly calibrated, resulting in the transmission of incomplete or inaccurate data to the FDR. Actions That Occurred Since the Second Supplemental NPRM Was Issued Since the issuance of the second supplemental NPRM, the FAA has determined that while a noisy or defective potentiometer may hamper the ability to access certain aircraft data in support of either an accident or incident investigation or just general maintenance activities, there is no direct effect on the aircraft's ability to be operated safely. On December 7, 2007, we issued Special Airworthiness Information Bulletin
(SAIB)NM-08/10 to recommend calibrating, testing, and replacing certain potentiometers to the ailerons, elevators, and rudder of the subject airplanes, which is part of the manufacturer's recommended maintenance program. FAA's Conclusions Upon further consideration, the FAA has determined that no unsafe condition exists. Accordingly, the proposed rule is hereby withdrawn. Withdrawal of this second supplemental NPRM constitutes only such action, and does not preclude the agency from issuing another action in the future, nor does it commit the agency to any course of action in the future. Regulatory Impact Since this action only withdraws a notice of proposed rulemaking, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Withdrawal Accordingly, the second supplemental notice of proposed rulemaking, Directorate Identifier 2000-NM-120-AD, published in the **Federal Register** on February 1, 2005 (70 FR 5070), is withdrawn. Issued in Renton, Washington, on January 15, 2008. Ali Bahrami, Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-1706 Filed 1-30-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2007-29260; Airspace Docket 07-ASO-24] Proposed Establishment of Class E Airspace; Winona, MS AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to establish Class E airspace at Winona, MS. An Area Navigation
(RNAV)Global Positioning System
(GPS)Standard Instrument Approach Procedures
(SIAP)Runways
(RWY)03-21 has been developed for Winona-Montgomery County Airport. As a result, controlled airspace extending upward from 700 feet Above Ground Level
(AGL)is needed to contain the SIAP and for Instrument Flight Rule
(IFR)operations at Winona-Montgomery County Airport. The operating status of the airport will change from Visual Flight Rules
(VFR)to include IFR operations concurrent with the publication of the SIAP. This action enhances the safety and airspace management of Winona-Montgomery County Airport. DATES: Comments must be received on or before March 17. 2008. ADDRESSES: Send comments on this proposal to the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Ave., SE. West Building, Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527. You must identify the docket number FAA-2007-29260; Airspace Docket 07-ASO-24, at the beginning of your comments. You may also submit comments on the Internet at *http://www.regulations.gov.* You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, Georgia 30337. FOR FURTHER INFORMATION CONTACT: Melinda Giddens, System Support, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone
(404)305-5610. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, view or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Those wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2007-29260; Airspace Docket No. 07-ASO-24.” The postcard will be date/time stamped and returned to the commenter. All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRMs An electronic copy of this document may be downloaded through the Internet at *http://www.regulations.gov.* Recently published rulemaking documents can also be accessed through the FAA's web page at *http://www.faa.gov* or the Federal Register's web page at *http://www.gpoaccess.gov/fr/index.html.* Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. The Proposal The FAA is considering an amendment to Part 71 of the Code of Federal Regulations (14 CFR Part 71) to establish Class E airspace at Winona, MS. Class E airspace designations for airspace areas extending upward from 700 feet or more above the surface of the earth are published in Paragraph 6005 of FAA Order 7400.9R, signed August 15, 2007, and effective September 15, 2007, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document would be published subsequently in the Order. The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. 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. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it proposes to establish Class E airspace at Winona, MS. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, CLASS B, CLASS C, CLASS D, AND CLASS E AIRSPACE AREAS; AIRWAYS; ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389. § 71.1 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO MS E5 Winona, MS [New] Winona-Montgomery County Airport, MS (Lat. 33°27′54″ N., long. 89°43′48.8″ W.) That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Winona-Montgomery County Airport. Issued in College Park, Georgia, on December 14, 2007. Mark D. Ward, Manager, System Support Group, Eastern Service Center. [FR Doc. 08-351 Filed 1-30-08; 8:45 am]
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Traces to 26 documents
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  • 40 CFR 258
  • 40 CFR 239.12
  • 40 CFR 258.1
  • 40 CFR 239
  • 40 CFR 271
  • 40 CFR 271.21
  • 40 CFR 270.73(a)
  • 40 CFR 270.1(c)(3)
  • 40 CFR 261.33(f)
  • 40 CFR 262.34(a)(1)(i)
  • 40 CFR 260.10
  • 40 CFR 264.1(g)(6)
  • 40 CFR 265.1(c)(10)
  • 40 CFR 270.1(c)(2)
  • 40 CFR 261.4(g)
  • 40 CFR 261.2
  • 40 CFR 265
  • 40 CFR 265.1
  • 40 CFR 265.10-19
  • 40 CFR 265.30-37
  • 40 CFR 265.50-56
  • 40 CFR 265.70-77
  • 40 CFR 265.90-94
  • 40 CFR 265.110-121
  • 40 CFR 265.140-150
  • 40 CFR 265.170-202
  • 40 CFR 265.190-202
  • 40 CFR 265.220-231
  • 40 CFR 265.250-260
  • 40 CFR 265.270-282
  • 40 CFR 265.300-316
  • 40 CFR 265.340-352
  • 40 CFR 265.370-383
  • 40 CFR 265.400-406
  • 40 CFR 265.440-445
  • 40 CFR 265.1030-1036
  • 40 CFR 265.1050-1064
  • 40 CFR 265.1100-1102
  • 40 CFR 270
  • 40 CFR 270.10(e)
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U.S.C.§ 6912
U.S.C.§ 6926
F. App'x373 F.3d 1251
F. App'x375 F.3d 1251
F. App'x373 F.3d 1314
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