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Code · REGISTER · 2008-04-11 · PROPOSED RULES · Agricultural Agricultural Marketing Service RULES Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West: Revision of Salable Quantity and Allotment Percentage for Class 3 ( · Unknown

Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2008-04-11.xml --- 73 71 Friday, April 11, 2008 Contents Agricultural Agricultural Marketing Service RULES Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West: Revision of Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2007-2008 Marketing Year, 19743-19746 E8-7866 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Forest Service NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 19802 E8-7672 Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19894 E8-7822 Animal Animal and Plant Health Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19802-19805 E8-7753 E8-7755 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities;
Proposals, Submissions, and Approvals, 19853-19854 E8-7706 Centers Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19854 E8-7709 Children Children and Families Administration NOTICES Administration for Native Americans; Award Urgent Grants, 19854-19855 E8-7808 Coast Guard Coast Guard RULES Drawbridge Operations: Norwalk River, Norwalk, CT, 19746-19747 E8-7675 PROPOSED RULES Regulated Navigation Areas, Safety Zones, Security Zones, and Deepwater Port Facilities:
Navigable Waters of Boston Captain of the Port Zone, 19780-19785 E8-7676 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19857-19859 E8-7673 E8-7674 Commerce Commerce Department See Industry and Security Bureau See International Trade Administration See National Oceanic and Atmospheric Administration See National Telecommunications and Information Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19808-19809 E8-7651 E8-7652 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List;
Additions, 19807 E8-7773 Procurement List; Proposed Additions and Deletions, 19807-19808 E8-7772 Drug Drug Enforcement Administration NOTICES Manufacturer of Controlled Substances Notice of Registration, 19894 E8-7080 Employee Employee Benefits Security Administration NOTICES Meetings: Advisory Council on Employee Welfare and Pension Benefit Plans, 19895-19896 E8-7757 Employment Employment and Training Administration RULES Labor Condition Application Requirements: Filing Procedures for Employers Seeking to Use Nonimmigrants on E-3 Visas in Specialty Occupations, 19944-19950 E8-7563 NOTICES Application for Reconsideration;
Affirmative Determination: Dynamerica Manufacturing LLC, Muncie, IN, 19896 E8-7736 Parlex U.S.A., Methuen, MA, 19896 E8-7738 Eligibility Certification for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance: NACOM Corp., Griffin, GA, 19896-19897 E8-7734 Quebcor World, Brookfield, WI, 19897 E8-7732 Silicon Laboratories, Inc., Austin, TX, 19897 E8-7737 Solectron Corp., Charlotte, NC, 19897-19898 E8-7733 Statek Group L. P., et al., Austin, TX, 19898 E8-7731 Eligibility Determination for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance:
General Electric, Niles Glass Plant, et al., 19898-19900 E8-7743 Investigation Regarding Eligibility Certification for Worker Adjustment Assistance and Alternative Trade Adjustment Assistance, 19900-19901 E8-7742 Revised Determination on Reconsideration: LLINK Technologies, LLC, Brown City, MI, 19901-19902 E8-7744 Merix Corp., Wood Village, OR, 19902 E8-7735 Termination of Investigation: Esselte Corp., Kankakee, IL, 19902 E8-7739 Kodyn Products Co., Loyalhanna, PA, 19902 E8-7740 NewPage Corp., Niagara, WI, 19903 E8-7745 Southern Furniture, Inc., Conover, NC, 19903 E8-7730 Employment Employment Standards Administration RULES Labor Condition Application Requirements:
Filing Procedures for Employers Seeking to Use Nonimmigrants on E-3 Visas in Specialty Occupations, 19944-19950 E8-7563 Energy Energy Department See Federal Energy Regulatory Commission See Southeastern Power Administration PROPOSED RULES Procedural Rules for DOE Nuclear Activities, 19761-19766 E8-7763 NOTICES Environmental Impact Statement: Draft Complex Transformation Supplemental Programmatic; Extension of Comment Period, 19829 E8-7869 EPA Environmental Protection Agency NOTICES Environmental Impacts Statements;
Weekly Receipt Availability, 19834 E8-7787 Environmental Impact Statements and Regulations; Availability of Comments, 19833-19834 E8-7784 Meetings: Board of Scientific Counselors, Executive Committee, 19834-19835 E8-7812 Science Advisory Board, 19835-19837 E8-7811 Proposed Settlement Agreement, 19838-19839 E8-7814 Receipt of Petition; Massachusetts Marine Sanitation Device Standard, 19839-19841 E8-7793 Executive Executive Office of the President See Presidential Documents See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Damage Tolerance and Fatigue Evaluation of Structure, 19746 E8-7649 PROPOSED RULES Airworthiness Directives:
ATR Model ATR42 Airplanes and Model ATR72-101, -102, -201, -202, 211, and 212 Airplanes, 19768-19770 E8-7658 Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 and Model ERJ 190 Airplanes, 19770-19772 E8-7667 General Avia Costruzioni Aeronatiche Models F22B, F22C, and F22R Airplanes, 19775-19777 E8-7657 MORAVAN a.s. Model Z-143L Airplanes, 19766-19768 E8-7654 Teledyne Continental Motors
(TCM)IO-520, et al., 19772-19775 E8-7711 Class E Airspace; Revocation: Luke AFB, Phoenix, AZ, 19777-19778 E8-7663 FBI Federal Bureau of Investigation NOTICES Meetings: Compact Council for the National Crime Prevention and Privacy Compact, 19895 E8-7616 Federal Energy Federal Energy Regulatory Commission NOTICES Compliance Filing: Southern California Water Co., 19829-19830 E8-7771 Filing: Bonneville Power Administration, 19830 E8-7769 Public Service Company of New Mexico, 19830 E8-7770 Issuance of Order: NRG Southaven, LLC, 19830-19831 E8-7768 Records Governing Off-the Record Communications, 19831-19832 E8-7767 Federal Highway Federal Highway Administration NOTICES Buy America Waiver Notification System, 19927 E8-7664 Federal Housing Federal Housing Finance Board NOTICES Federal Home Loan Bank Members Selected for Community Support Review, 19841-19851 E8-7510 Federal Motor Federal Motor Carrier Safety Administration NOTICES Qualification of Drivers; Exemption Renewals; Vision, E8-7661 19928-19929 E8-7666 Federal Railroad Federal Railroad Administration NOTICES Application for Approval of Discontinuance or Modification of a Railroad Signal System, etc., E8-7659 19929-19930 E8-7680 E8-7681 Petition for Waiver of Compliance, 19930-19931 E8-7682 Federal Reserve Federal Reserve System NOTICES Formations, Acquisitions, and Mergers of Bank Holding Companies, 19851-19852 E8-7645 E8-7762 Meetings: Application by Bank of America Corp., Charlotte, NC to Acquire Countrywide Financial Corp., Calabasas, CA, 19852-19853 E8-7758 Fish Fish and Wildlife Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19867-19868 E8-7648 Draft Safe Harbor Agreement and Application; Availability: Enhancement of Survival Permit for the Beautiful Shiner et al.; Cochise County, AZ, 19868-19869 E8-7690 Endangered Wildlife and Plants; Permits, 19869 E8-7707 Forest Forest Service NOTICES Boundary Establishment; Wildcat National Wild and Scenic River, White Mountain National Forest, Carroll County, NH, 19805 E8-7559 Intent to Prepare Environmental Impact Statement: Bend/Ft. Rock Ranger District, Deschutes National Forest, Oregon; EXF Thinning, Fuels Reduction, and Research Project, 19805-19806 E8-7692 Meetings: Ravalli County Resource Advisory Committee, 19806-19807 E8-7693 Roadless Area Conservation National Advisory Committee, 19807 E8-7509 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See National Institutes of Health Homeland Homeland Security Department See Coast Guard See Transportation Security Administration See U.S. Citizenship and Immigration Services See U.S. Customs and Border Protection Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 19866 E8-7415 Industry Industry and Security Bureau NOTICES Order Renewing Temporary Denial Order: Aviation Services International B.V. et al., 19809-19811 E8-7683 Interior Interior Department See Fish and Wildlife Service See Land Management Bureau See Minerals Management Service See National Indian Gaming Commission See Reclamation Bureau NOTICES Final Environmental Impact Statement; Availability: Central Utah Project, 19866-19867 E8-7810 IRS Internal Revenue Service PROPOSED RULES Amendment of Matching Rule for Certain Gains on Member Stock; Guidance; Correction, 19942 Z8-4571 International International Trade Administration NOTICES Antidumping Duty Administrative Review; Final Results: Carbazole Violet Pigment 23 From India, 19811-19812 E8-7794 Expected Non-Market Economy Wages; Request for Comments on 2007 Calculation, 19812-19814 E8-7805 Final Determination of Sales at Less Than Fair Value: Light-Walled Rectangular Pipe and Tube From Turkey, 19814-19816 E8-7833 Preliminary Affirmative Countervailing Duty Determination: Sodium Nitrite From the People's Republic of China, 19816-19820 E8-7798 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau See Drug Enforcement Administration See Federal Bureau of Investigation NOTICES Lodging of Consent Decree: Industrial Excess Landfill, Inc., 19893 E8-7685 T.L. Diamond & Co., Inc. et al., 19893-19894 E8-7686 Labor Labor Department See Employee Benefits Security Administration See Employment and Training Administration See Employment Standards Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19895 E8-7705 Land Land Management Bureau NOTICES Alaska Native Claims Selection, 19869-19870 E8-7710 Conveyance of Federally-owned Mineral Interests in California, 19870-19871 E8-7688 Proposed Resource Management Plan and Final Environmental Impact Statement, Yuma Field Office; Availability, 19871-19872 E8-7622 Maritime Maritime Administration NOTICES Coastwise Trade Laws; Requested Administrative Waiver, 19931-19933 E8-7678 E8-7679 E8-7687 Minerals Minerals Management Service NOTICES Oil and Gas Lease Sales for 2009-2012: Gulf of Mexico, Outer Continental Shelf, Central Planning Area and Western Planning Area, 19872 E8-7775 National Archives National Archives and Records Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19903 E8-7721 Meetings: Advisory Committee on the Electronic Records Archives, 19903-19904 E8-7717 National Highway National Highway Traffic Safety Administration NOTICES Meetings: National Emergency Medical Services Advisory Council, 19933-19934 E8-7660 National Indian National Indian Gaming Commission NOTICES Environmental Impact Statement; Cancellation: Big Sandy Casino and Resort, Fresno County, CA, 19904 E8-7766 NIH National Institutes of Health NOTICES Meetings: Center for Scientific Review, 19855-19857 E8-7691 NOAA National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area, 19748 E8-7801 PROPOSED RULES Atlantic Highly Migratory Species: Renewal of Atlantic Tunas Longline Limited Access Permits and Atlantic Shark Dealer Workshop Attendance Requirements, 19795-19801 E8-7820 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Shock Trial, 19789-19795 E8-7778 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19821 E8-7653 Bay Watershed Education and Training (B WET) Program; Correction, 19821-19822 E8-7708 Draft Environmental Impact Statement and Habitat Conservation Plan; Availability, 19822-19824 E8-7821 Endangered and Threatened Species: Finding on Petition to List Lynn Canal Population of Pacific Herring as Threatened or Endangered Species, 19824-19825 E8-7797 Pacific Whiting; Joint Management Committee and Scientific Review Group; Nominations, 19825-19826 E8-7792 Taking and importing of Endangered Species: Sea Turtles Incidental to Power Plant Operations, 19826-19828 E8-7788 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Cyberinfrastructure, 19904 E8-7704 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: Commerce Spectrum Management Advisory Committee, 19828-19829 E8-7809 Nuclear Nuclear Regulatory Commission PROPOSED RULES Expansion of the National Source Tracking System, 19749-19761 E8-7756 NOTICES Extension of Time for Petition for Leave to Intervene in Combined Operating License for Bellefonte, 19904 E8-7729 Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Digital Instrumentation and Control Systems, E8-7712 19904-19905 E8-7715 Order Modifying License: Exelon Generation Company, LLC, 19905-19909 E8-7727 Office of U.S. Trade Office of United States Trade Representative See Trade Representative, Office of United States Personnel Personnel Management Office NOTICES Computer Matching Program Between the Office of Personnel Management and Social Security Administration, 19911-19912 E8-7752 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Availability of Funds: Hazardous Materials Instructor Training Grants Program, 19934-19936 E8-7703 Presidential Presidential Documents PROCLAMATIONS *Special observances:* National D.A.R.E. Day (Proc. 8235), 19955-19956 08-1124 National Former Prisoner of War Recognition Day (Proc. 8234), 19951-19954 08-1123 ADMINISTRATIVE ORDERS Implementing Recommendations of the 9/11 Commission Act of 2007; Assignment of Functions (Memorandum of March 28, 2008), 19957 08-1125 Reclamation Reclamation Bureau NOTICES Charter Renewal; Yakima River Basin Conservation Advisory Group, 19872-19873 E8-7728 Interim Guidelines; Colorado River Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, 19873-19892 E8-7760 SEC Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19912-19913 E8-7700 Self-Regulatory Organizations; Proposed Rule Changes: American Stock Exchange LLC, 19913-19914 E8-7656 Boston Stock Exchange, Inc., 19914-19916 E8-7781 Financial Industry Regulatory Authority, Inc., 19916-19918 E8-7655 National Securities Clearing Corp., 19918-19919 E8-7696 New York Stock Exchange LLC, 19919-19921 E8-7699 NYSE Arca, Inc., 19921-19926 E8-7697 E8-7698 SBA Small Business Administration NOTICES Disaster Declaration: Colorado, 19926 E8-7723 South Carolina, 19926-19927 E8-7724 Southeastern Southeastern Power Administration NOTICES Cumberland System of Projects, 19832-19833 E8-7761 State State Department PROPOSED RULES Amendment to the International Traffic in Arms Regulations: The United States Munitions List, 19778-19780 08-1122 NOTICES Meetings: Fine Arts Committee, 19927 E8-7813 Surface Surface Transportation Board NOTICES Finance Transaction; Stagecoach Group PLC and Coach USA, Inc.- Control - Megabus Northeast LLC, 19936-19937 E8-7764 Trade Trade Representative, Office of United States NOTICES Generalized System of Preferences: Re-initiation of a Review to Consider the Designation of the Republic of Azerbaijan as a Beneficiary Developing Country, 19909-19911 E8-7702 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See Maritime Administration See National Highway Traffic Safety Administration See Pipeline and Hazardous Materials Safety Administration See Surface Transportation Board Transportation Transportation Security Administration NOTICES Transportation Worker Identification Credential: Enrollment Dates for Ports of Portsmouth, NH; Chattanooga, TN and San Juan, PR, 19859-19860 E8-7646 Treasury Treasury Department See Internal Revenue Service MISSING FOR: U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19860-19861 E8-7790 E8-7791 Customs U.S. Customs and Border Protection NOTICES International Registered Traveler; Pilot Program Announcement, 19861-19865 E8-7643 Modification and Extension of the Post-Entry Amendment Processing Test; Correction, 19865-19866 E8-7695 Utah Utah Reclamation Mitigation and Conservation Commission NOTICES Final Environmental Impact Statement; Availability: Central Utah Project, 19866-19867 E8-7810 Veterans Veterans Affairs Department RULES Data Breaches, 19747-19748 E8-7726 PROPOSED RULES Assistance to States in Hiring and Retaining Nurses at State Veterans Homes, 19785-19789 E8-7641 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, E8-7748 E8-7749 19937-19940 E8-7750 E8-7751 E8-7786 GR Modifier Use, 19940-19941 E8-7642 Separate Parts In This Issue Part II Labor Department, Employment Standards Administration; Labor Department, Employment and Training Administration, 19944-19950 E8-7563 Part III Executive Office of the President, Presidential Documents, 19951-19957 08-1123 08-1124 08-1125 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 73 71 Friday, April 11, 2008 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 985 [Docket Nos. AMS-FV-07-0134; FV08-985-1 FIR] Marketing Order Regulating the Handling of Spearmint Oil Produced in the Far West; Revision of the Salable Quantity and Allotment Percentage for Class 3 (Native) Spearmint Oil for the 2007-2008 Marketing Year AGENCY: Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture
(USDA)is adopting, as a final rule, without change, an interim final rule revising the quantity of Class 3 (Native) spearmint oil that handlers may purchase from, or handle for, producers during the 2007-2008 marketing year. This rule continues in effect the action that increased the Native spearmint oil salable quantity from 1,162,336 pounds to 1,172,956 pounds, and the allotment percentage from 48 percent to 53 percent. The marketing order regulates the handling of spearmint oil produced in the Far West and is administered locally by the Spearmint Oil Administrative Committee (Committee). The Committee recommended this rule for the purpose of avoiding extreme fluctuations in supplies and prices and to help maintain stability in the Far West spearmint oil market. DATES: *Effective Date:* May 12, 2008. FOR FURTHER INFORMATION CONTACT: Susan M. Coleman, Marketing Specialist, or Gary D. Olson, Regional Manager, Northwest Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(503)326-2724, Fax:
(503)326-7440, or E-mail: *Sue.Coleman@usda.gov* or *GaryD.Olson@usda.gov* . Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491, Fax:
(202)720-8938, or E-mail: *Jay.Guerber@usda.gov* . SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Order No. 985 (7 CFR part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the provisions of the marketing order now in effect, salable quantities and allotment percentages may be established for classes of spearmint oil produced in the Far West. This rule continues in effect the action that increased the quantity of Native spearmint oil produced in the Far West that may be purchased from or handled for producers by handlers during the 2007-2008 marketing year, which ends on May 31, 2008. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. The original salable quantity and allotment percentages for Scotch and Native spearmint oil for the 2007-2008 marketing year were recommended by the Committee at its October 4, 2006, meeting. The Committee recommended salable quantities of 886,667 pounds and 1,062,336 pounds, and allotment percentages of 45 percent and 48 percent, respectively, for Scotch and Native spearmint oil. A proposed rule was published in the **Federal Register** on January 22, 2007 (71 FR 2639). Comments on the proposed rule were solicited from interested persons until February 21, 2007. No comments were received. Subsequently, a final rule establishing the salable quantities and allotment percentages for Scotch and Native spearmint oil for the 2007-2008 marketing year was published in the **Federal Register** on March 29, 2007 (72 FR 14657). This rule continues in effect the action that revised the quantity of Native spearmint oil that handlers may purchase from, or handle for, producers during the 2007-2008 marketing year, which ends on May 31, 2008. Pursuant to authority contained in §§ 985.50, 985.51, and 985.52 of the order, the Committee, with seven of its eight members present, met on October 17, 2007, and unanimously recommended that the 2007-2008 Native spearmint oil allotment percentage be increased by 5 percent. Thus, taking into consideration the following discussion on adjustments to the Native spearmint oil salable quantities, this rule continues in effect the action that increased the 2007-2008 marketing year salable quantities and allotment percentages for Native spearmint oil to 1,172,956 pounds and 53 percent. The salable quantity is the total quantity of each class of oil that handlers may purchase from, or handle for, producers during the marketing year. The total salable quantity is divided by the total industry allotment base to determine an allotment percentage. Each producer is allotted a share of the salable quantity by applying the allotment percentage to the producer's individual allotment base for the applicable class of spearmint oil. The total industry allotment base for Native spearmint oil for the 2007-2008 marketing year was estimated by the Committee at the October 4, 2006, meeting at 2,213,200 pounds. This was later revised at the beginning of the 2007-2008 marketing year to 2,213,124 pounds to reflect a 2006-2007 marketing year loss of 76 pounds of base due to non-production of some producers' total annual allotments. When the revised total allotment base of 2,213,124 pounds is applied to the originally established allotment percentage of 48 percent, the initially established 2007-2008 marketing year salable quantity of 1,062,336 pounds is effectively modified to 1,062,300. By increasing the salable quantity and allotment percentage, this final rule makes an additional amount of Native spearmint oil available by releasing oil from the reserve pool. As of February 20, 2008, the reserve pool is estimated at 258,435 pounds. When applied to each individual producer, the allotment percentage increase allows each producer to take up to an amount equal to their allotment base from their reserve for this respective class of oil. In addition, pursuant to §§ 985.56 and 985.156, producers with excess oil are not able to transfer such excess oil to other producers to fill deficiencies in annual allotments after October 31 of each marketing year. The following table summarizes the Committee recommendations: Native Spearmint Oil Recommendation
(A)Estimated 2007-2008 Allotment Base—2,213,200 pounds. This is the estimate on which the original 2007-2008 Native spearmint oil salable quantity and allotment percentage was based.
(B)Revised 2007-2008 Allotment Base—2,213,124 pounds. This is 76 pounds less than the estimated allotment base of 2,213,200 pounds. This is less because some producers failed to produce all of their 2006-2007 allotment.
(C)Original 2007-2008 Allotment Percentage—48 percent. This was unanimously recommended by the Committee on October 4, 2006.
(D)Original 2007-2008 Salable Quantity—1,062,336 pounds. This figure is 48 percent of the estimated 2007-2008 allotment base of 2,213,200 pounds.
(E)Adjustment to the Original 2007-2008 Salable Quantity—1,062,300 pounds. This figure reflects the salable quantity initially available after the beginning of the 2006-2007 marketing year due to the 76-pound reduction in the industry allotment base to 2,213,124 pounds.
(F)First Revision to the 2007-2008 Salable Quantity and Allotment Percentage:
(1)Increase in Allotment Percentage—5 percent. The Committee recommended a 5 percent increase at its October 17, 2007, meeting.
(2)2007-2008 Allotment Percentage—53 percent. This figure is derived by adding the increase of 5 percent to the original 2007-2008 allotment percentage of 48 percent.
(3)Calculated Revised 2007-2008 Salable Quantity—1,172,956 pounds. This figure is 53 percent of the revised 2007-2008 allotment base of 2,213,124 pounds.
(4)Computed Increase in the 2007-2008 Salable Quantity—110,656 pounds. This figure is 5 percent of the revised 2007-2008 allotment base of 2,213,124 pounds. The 2007-2008 marketing year began on June 1, 2007, with an estimated carry-in of 83,417 pounds of salable oil. When the estimated carry-in is added to the revised 2007-2008 salable quantity of 1,062,300 pounds, a total estimated available supply for the 2007-2008 marketing year of 1,145,717 pounds results. In actuality, this final rule made an additional 98,097 pounds of Native spearmint oil available, since not all producers have reserve pool oil. This resulted in a revised available supply of 1,243,814 pounds. As of February 20, 2008, 1,030,839 pounds of oil has already been sold or committed for the 2007-2008 marketing year, which leaves 212,975 pounds available for sale. In making this recommendation, the Committee considered all available information on price, supply, and demand. The Committee also considered reports and other information from handlers and producers in attendance at the meeting and reports given by the Committee Manager from handlers and producers who were not in attendance. The handlers have estimated that the demand for 2007-2008 year will be 1,200,000 pounds, which would leave 43,814 pounds as a carry out at the end of the year. However, when the Committee made its original recommendation for the establishment of the Native spearmint oil salable quantity and allotment percentage for the 2007-2008 marketing year, it had anticipated that the year would end with an ample available supply. Therefore, the industry may not be able to meet market demand without this increase. Based on its analysis of available information, USDA has determined that the salable quantity and allotment percentage for Native spearmint oil for the 2007-2008 marketing year should be increased to 1,172,956 pounds and 53 percent, respectively. This rule finalizes an interim final rule that relaxed the regulation of Native spearmint oil and will allow producers to meet market demand while improving producer returns. In conjunction with the issuance of this rule, the Committee's revised marketing policy statement for the 2007-2008 marketing year has been reviewed by USDA. The Committee's marketing policy statement, a requirement whenever the Committee recommends implementing volume regulations or recommends revisions to existing volume regulations, meets the intent of § 985.50 of the order. During its discussion of revising the 2007-2008 salable quantities and allotment percentages, the Committee considered:
(1)The estimated quantity of salable oil of each class held by producers and handlers;
(2)the estimated demand for each class of oil;
(3)prospective production of each class of oil;
(4)total of allotment bases of each class of oil for the current marketing year and the estimated total of allotment bases of each class for the ensuing marketing year;
(5)the quantity of reserve oil, by class, in storage;
(6)producer prices of oil, including prices for each class of oil; and
(7)general market conditions for each class of oil, including whether the estimated season average price to producers is likely to exceed parity. Conformity with USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” has also been reviewed and confirmed. The increase in the Native spearmint oil salable quantity and allotment percentage allows for anticipated market needs for this class of oil. In determining anticipated market needs, consideration by the Committee was given to historical sales, and changes and trends in production and demand. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are seven spearmint oil handlers subject to regulation under the order, and approximately 58 producers of Scotch spearmint oil and approximately 92 producers of Native spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. Based on the SBA's definition of small entities, the Committee estimates that one of the seven handlers regulated by the order could be considered a small entity. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 19 of the 58 Scotch spearmint oil producers and 22 of the 92 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities. The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. A typical spearmint oil-producing operation has enough acreage for rotation such that the total acreage required to produce the crop is about one-third spearmint and two-thirds rotational crops. Thus, the typical spearmint oil producer has to have considerably more acreage than is planted to spearmint during any given season. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil-producing farms fall into the SBA category of large businesses. Small spearmint oil producers generally are not as extensively diversified as larger ones and as such are more at risk to market fluctuations. Such small producers generally need to market their entire annual crop and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because income from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation. This rule continues in effect the action that increased the quantity of Native spearmint oil that handlers may purchase from, or handle for, producers during the 2007-2008 marketing year, which ends on May 31, 2008. Specifically, this action increases the 2007-2008 marketing year salable quantity and allotment percentage for Native spearmint oil to 1,172,956 and 53 percent. An econometric model was used to assess the impact that volume control has on the prices producers receive for their commodity. Without volume control, spearmint oil markets would likely be over-supplied, resulting in low producer prices and a large volume of oil stored and carried over to the next crop year. The model estimates how much lower producer prices would likely be in the absence of volume controls. The recommended allotment percentages, upon which 2007-2008 producer allotments are based, are 45 percent for Scotch and 53 percent for Native (a 5 percentage point increase from the original allotment percentage of 48 percent). Without volume controls, producers would not be limited to these allotment levels, and could produce and sell additional spearmint oil. The econometric model estimated a $1.40 decline in the season average producer price per pound of Far West spearmint oil (combining the two classes of spearmint oil) resulting from the higher quantities that would be produced and marketed if volume controls were not used. A previous price decline estimate of $1.45 per pound was based on the original 2007-2008 allotment percentages (45 percent for Scotch and 48 percent for Native) published in the **Federal Register** on March 29, 2007 (72 FR 14657). The revised estimate reflects the impact of the additional quantities that will be made available by this rule compared to the original allotment percentages. In actuality, this rule made 98,097 pounds of Native spearmint oil available, which is lower than the computed increase of 110,656 pounds, since not all producers have reserve pool oil. Loosening the volume control restriction resulted in the smaller price decline estimate of $1.40 per pound. The use of volume controls allows the industry to fully supply spearmint oil markets while avoiding the negative consequences of over-supplying these markets. The use of volume controls is believed to have little or no effect on consumer prices of products containing spearmint oil and will not result in fewer retail sales of such products. Based on projections available at the meeting, the Committee considered alternatives to the increase finalized herein. The Committee not only considered leaving the salable quantity and allotment percentage unchanged, but also looked at various increases. The Committee reached its recommendation to increase the salable quantity and allotment percentage for Native spearmint oil after careful consideration of all available information, and believes that the levels recommended will achieve the objectives sought. Without the increase, the Committee believes the industry would not be able to meet market needs. This rule will not impose any additional reporting or recordkeeping requirements on either small or large spearmint oil handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory flexibility analysis, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule. The AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. The Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the October 17, 2007, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. An interim final rule concerning this action was published in the **Federal Register** on December 17, 2007. Copies of the rule were mailed by the Committee's staff to all committee members, producers, handlers, and other interested persons. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 60-day comment period which ended February 15, 2008. No comments were received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing this interim final rule, without change, as published in the **Federal Register** (72 FR 71199) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 985 Marketing agreements, Oils and fats, Reporting and recordkeeping requirements, Spearmint oil. For the reasons set forth in the preamble, 7 CFR part 985 is amended as follows: PART 985—MARKETING ORDER REGULATING THE HANDLING OF SPEARMINT OIL PRODUCED IN THE FAR WEST Accordingly, the interim final rule amending 7 CFR part 985, which was published at 72 FR 71199 on December 17, 2007, is adopted as a final rule without change. Dated: April 8, 2008. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E8-7866 Filed 4-10-08; 8:45 am] BILLING CODE 3410-02-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 Damage Tolerance and Fatigue Evaluation of Structure AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Final rule; technical amendment. SUMMARY: This action corrects a paragraph reference that appeared in the final rule, Airworthiness Standards; Airframe Rules Based on European Joint Aviation Requirements, which the FAA published in the **Federal Register** on February 9, 1996. In that final rule, the FAA inadvertently changed a paragraph reference. The intent of this action is to correct the error in the regulation to ensure the requirement is clear and accurate. DATES: *Effective Date:* April 11, 2008. FOR FURTHER INFORMATION CONTACT: Pat Mullen, Regulations and Policy, ACE-111, Federal Aviation Administration, 901 Locust Street, Kansas City, MO 64106; telephone
(816)329-4111; e-mail *pat.mullen@faa.gov* . SUPPLEMENTARY INFORMATION: On February 9, 1996, the FAA published in the **Federal Register** (61 FR 5147) a final rule that amended § 23.573(b) by removing the reference “§ 23.571(c)” and adding the reference “§ 23.571(a)(3)” in its place. Paragraph (a)(3) of § 23.571 does not exist, and the reference to § 23.571(c) should have remained. This document corrects § 23.573(b) to reflect the correct paragraph reference, § 23.571(c). This correction will not impose any additional requirements. Technical Amendment This technical amendment will correct § 23.573(b) to properly reference § 23.571(c). Justification for Immediate Adoption Because this action corrects an incorrect paragraph reference, the FAA finds that notice and public comment under 5 U.S.C. 553(b) is unnecessary. For the same reason, the FAA finds that good cause exists under 5 U.S.C. 553(d) for making this rule effective upon publication. List of Subjects in 14 CFR Part 23 Aircraft, Aviation safety, Signs and symbols. The Amendment Accordingly, Title 14 of the Code of Federal Regulations
(CFR)part 23 is amended as follows: PART 23—AIRWORTHINESS STANDARDS: NORMAL, UTILITY, ACROBATIC, AND COMMUTER CATEGORY AIRPLANES 1. The authority citation for part 23 continues to read as follows: Authority: 49 U.S.C. 106(g), 40013, 44701, 44702, 44704. 2. Amend § 23.573 by revising the first sentence in paragraph
(b)introductory text to read as follows: § 23.573 Damage tolerance and fatigue evaluation of structure.
(b)*Metallic airframe structure* . If the applicant elects to use § 23.571(c) or § 23.572(a)(3), then the damage tolerance evaluation must include a determination of the probable locations and modes of damage due to fatigue, corrosion, or accidental damage. * * * Issued in Washington, DC, on April 7, 2008. Pamela Hamilton-Powell, Director, Office of Rulemaking. [FR Doc. E8-7649 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [USCG-2008-0228] Drawbridge Operation Regulations; Norwalk River, Norwalk, CT AGENCY: Coast Guard, DHS. ACTION: Notice of temporary deviation from regulations. SUMMARY: The Commander, First Coast Guard District, has issued a temporary deviation from the regulations governing the operation of the Washington Street S136 Bridge, across the Norwalk River, mile 0.0, at Norwalk, Connecticut. While in effect, this deviation allows the bridge owner to open only one of the two moveable spans for bridge openings. Vessels that require a full two-span bridge opening will be required to provide at least a twelve-hour advance notice by calling the bridge operator. This deviation is necessary to facilitate scheduled bridge maintenance. DATES: This deviation is effective from April 1, 2008 through April 30, 2008. ADDRESSES: Documents indicated in this preamble as being available in the docket are part of docket USCG-2008-0228 and are available online at *http://www.regulations.gov.* They are also available for inspection or copying at two locations: the Docket Management Facility (M-30), U.S. Department of Transportation, 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, and the First Coast Guard District, Bridge Branch Office, One South Street, New York, New York, 10004, between 7 a.m. and 3 p.m., Monday through Friday, except Federal holidays, telephone number
(212)668-7165. The First Coast Guard District Bridge Branch Office maintains the public docket for this temporary deviation. FOR FURTHER INFORMATION CONTACT: Judy Leung-Yee, Project Officer, First Coast Guard District, at
(212)668-7165. SUPPLEMENTARY INFORMATION: The Washington Street S136 Bridge, across the Norwalk River, mile 0.0, at Norwalk, Connecticut, has a vertical clearance in the closed position of 9 feet at mean high water and 16 feet at mean low water. The existing regulations are listed at 33 CFR 117.217(a). The owner of the bridge, Connecticut Department of Transportation, requested a temporary deviation to facilitate scheduled structural maintenance and painting at the bridge. In order to perform the structural and bridge painting operations, one of the two moveable spans must remain in the closed position in order to erect paint containment and perform the required bridge maintenance. We issued a temporary deviation (USCG-2007-0185; 73 FR 1273, Jan. 8, 2008) authorizing single leaf operation for bridge painting effective from January 2, 2008 through March 31, 2008. On March 13, 2008, the bridge owner requested that the single leaf operation for bridge painting continue through the end of April 2008, to allow completion of this project. Under this second temporary deviation the Washington Street S136 Bridge across the Norwalk River, mile 0.0, at Norwalk, Connecticut, need open only one of the two moveable spans for bridge openings from April 1, 2008 through April 30, 2008. Vessels requiring a full two-span bridge opening may do so provided that they give at least a twelve-hour advance notice to the bridge operator by calling
(203)866-7691. Should the bridge maintenance authorized by this temporary deviation be completed before the end of the effective period published in this notice, the Coast Guard will rescind the remainder of this temporary deviation, and the bridge shall be returned to its normal operating schedule. Notice of the above action shall be provided to the public in the Local Notice to Mariners and the **Federal Register** , where practicable. In accordance with 33 CFR 117.35(e), the bridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35. Dated: April 1, 2008. Gary Kassof, Bridge Program Manager, First Coast Guard District. [FR Doc. E8-7675 Filed 4-10-08; 8:45 am] BILLING CODE 4910-15-P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 75 RIN 2900-AM63 Data Breaches AGENCY: Department of Veterans Affairs. ACTION: Final rule. SUMMARY: This document adopts, without change, the interim final rule that was published in the **Federal Register** on June 22, 2007, addressing data breaches of sensitive personal information that is processed or maintained by the Department of Veterans Affairs (VA). This final rule implements certain provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006. The regulations prescribe the mechanisms for taking action in response to a data breach of sensitive personal information. DATES: *Effective Date:* April 11, 2008. FOR FURTHER INFORMATION CONTACT: Jonelle Lewis, Office of Information Protection and Risk Management (005R), U.S. Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Telephone:
(202)461-6400. This is not a toll-free number. SUPPLEMENTARY INFORMATION: On June 22, 2007, VA published an interim final rule in the **Federal Register** (72 FR 34395). The interim final rule addressed data breaches of sensitive personal information that is processed or maintained by VA. This final rule implements 38 U.S.C. 5724 and 5727, which were enacted as part of Title IX of Public Law 109-461, the Veterans Benefits, Health Care, and Information Technology Act of 2006. We provided a 60-day comment period that ended August 21, 2007. We received no comments. Based on the rationale set forth in the interim final rule, we adopt the provisions of the interim final rule as a final rule without any changes. Administrative Procedure Act This document, without change, affirms the amendment made by the interim final rule that is already in effect. The Secretary of Veterans Affairs concluded that, under 5 U.S.C. 553, there was good cause to dispense with the opportunity for prior comment with respect to this rule. The Secretary found that it was unnecessary to delay this regulation for the purpose of soliciting prior public comment based on the statutory mandate in 38 U.S.C. 5724 to publish the amendment as an interim final rule. Nevertheless, the Secretary invited public comment on the interim final rule but did not receive any comments. Executive Order 12866 Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), as any regulatory action that is likely to result in a rule that may:
(1)Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;
(2)create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3)materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4)raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments or the private sector. Paperwork Reduction Act This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). Regulatory Flexibility Act The provisions of the Regulatory Flexibility Act (5 U.S.C. 601-612) do not apply to this interim final rule because the provisions of 38 U.S.C. 5724 require that this document be promulgated as an interim final rule, and, consequently, a notice of proposed rulemaking was not required for the rule. 5 U.S.C. 603-604. Catalog of Federal Domestic Assistance Numbers There are no Catalog of Federal Domestic Assistance numbers and titles for this rule. List of Subjects in 38 CFR Part 75 Administrative practice and procedure, Credit monitoring, Data breach, Data breach analysis, Data mining, Fraud alerts, Identity theft insurance, Information, Notification, Risk analysis, Security measures. Approved: April 4, 2008. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. PART 75—INFORMATION SECURITY MATTERS Accordingly, the interim final rule establishing 38 CFR part 75 that was published in the **Federal Register** at 72 FR 34395 on June 22, 2007, is adopted as a final rule without changes. [FR Doc. E8-7726 Filed 4-10-08; 8:45 am] BILLING CODE 8320-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 071106673-8011-02] RIN 0648-XH13 Fisheries of the Exclusive Economic Zone Off Alaska; Reallocation of Pacific Cod in the Bering Sea and Aleutian Islands Management Area AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Temporary rule; reallocation. SUMMARY: NMFS is reallocating the projected unused amount of Pacific cod from vessels using jig gear to catcher vessels less than 60 feet (< 18.3 meters (m)) length overall
(LOA)using pot or hook-and-line gear in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to allow the B season apportionment of the 2008 total allowable catch
(TAC)of Pacific cod to be harvested. DATES: Effective April 10, 2008, through 2400 hrs, Alaska local time (A.l.t.), December 31, 2008. FOR FURTHER INFORMATION CONTACT: Jennifer Hogan, 907-586-7228. SUPPLEMENTARY INFORMATION: NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP)prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. The 2008 Pacific cod TAC specified for vessels using jig gear in the BSAI is 81 metric tons
(mt)for the A season and 427 mt for the B season as established by the 2008 and 2009 final harvest specifications for groundfish in the BSAI (73 FR 10160, February 26, 2008) and reallocation (73 FR 11562, March 4, 2008). The Administrator, Alaska Region, NMFS, has determined that jig vessels will not be able to harvest 400 mt of the B season apportionment of the 2008 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( *1* ). Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 400 mt of Pacific cod from the B season jig gear apportionment to catcher vessels < 60 feet (18.3 m) LOA using pot or hook-and-line gear. The harvest specifications for Pacific cod included in the harvest specifications for groundfish in the BSAI (73 FR 10160, February 26, 2008) are revised as follows: 108 mt to the B season apportionment for vessels using jig gear and 4,633 mt to catcher vessels < 60 feet (18.3 m) LOA using pot or hook-and-line gear. Classification This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from jig vessels to catcher vessels < 60 feet (18.3 m) LOA using pot or hook-and-line gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of April 4, 2008. The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment. This action is required by § 679.20 and is exempt from review under Executive Order 12866. Authority: 16 U.S.C. 1801 *et seq.* Dated: April 7 2008. Emily H. Menashes Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. [FR Doc. E8-7801 Filed 4-10-08; 8:45 am] BILLING CODE 3510-22-S 73 71 Friday, April 11, 2008 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Parts 20 and 32 RIN 3150-AI29 [NRC-2008-0200] Expansion of the National Source Tracking System AGENCY: Nuclear Regulatory Commission. ACTION: Proposed rule. SUMMARY: The Nuclear Regulatory Commission
(NRC)is proposing to amend its regulations to expand the current National Source Tracking System
(NSTS)to include certain additional sealed sources. The proposed amendments would require licensees to report certain transactions involving these sealed sources to the NSTS. These transactions would include the manufacture, transfer, receipt, disassembly, or disposal of the nationally tracked source. The proposed amendment would also require each licensee to provide its initial inventory of nationally tracked sources to the NSTS and annually verify and reconcile the information in the system with the licensee's actual inventory. DATES: Submit comments on the proposed rule by June 25, 2008. Submit comments specific to the information collection aspects of this rule by May 12, 2008. Comments received after the above date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date. ADDRESSES: You may submit comments on the rule by any one of the following methods. Please include the number RIN 3150-AI29 in the subject line of your comments. Comments on rulemakings submitted in writing or in electronic form will be made available to the public in their entirety in NRC's Agencywide Document Access and Management System (ADAMS). Personal information, such as your name, address, telephone number, e-mail address, etc., will not be removed from your submission. Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff. E-mail comments to: *Rulemaking.Comments@nrc.gov* . If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at 301-415-1677. Comments can also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov,* docket # NRC-2008-0200. Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. Federal workdays (Telephone 301-415-1677). Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101. You may submit comments on the information collections by the methods indicated in the Paperwork Reduction Act Statement. Publicly available documents related to this rulemaking may be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, 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 the NRC after November 1, 1999, are available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html* . From this site, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to *pdr@nrc.gov* . FOR FURTHER INFORMATION CONTACT: Michael Williamson, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6234, e-mail, *mkw1@nrc.gov.* SUPPLEMENTARY INFORMATION: I. Background II. Discussion A. Rationale for Expanding the NSTS To Include Additional Source Categories B. Enhanced Accountability Provided by These Amendments C. Other Considerations D. General Content of the Proposed Rule III. Discussion of Proposed Amendments by Section IV. Criminal Penalties V. Agreement State Compatibility VI. Plain Language VII. Voluntary Consensus Standards VIII. Environmental Impact: Categorical Exclusion IX. Paperwork Reduction Act Statement X. Public Protection Notification XI. Regulatory Analysis XII. Regulatory Flexibility Certification XIII. Backfit Analysis I. Background After the terrorist attacks in the United States on September 11, 2001, the NRC conducted a comprehensive review of nuclear material security requirements, with particular focus on radioactive material of concern. This radioactive material (which includes Cobalt-60, Cesium-137, Iridium-192, and Americium-241, as well as other radionuclides) has the potential to be used in a radiological dispersal device
(RDD)or a radiological exposure device
(RED)in the absence of proper security and control measures. The NRC's review took into consideration the changing domestic and international threat environments and related U.S. Government-supported international initiatives in the nuclear security area, particularly activities conducted by the International Atomic Energy Agency (IAEA). In June 2002, the Secretary of Energy and the NRC Chairman met to discuss the adequate protection of inventories of nuclear materials that could be used in a RDD. At the June meeting, the Secretary of Energy and the NRC Chairman agreed to convene an Interagency Working Group on Radiological Dispersal Devices to address security concerns. In May 2003, the joint U.S. Department of Energy (DOE)/NRC report was issued. The report was entitled, “Radiological Dispersal Devices: An Initial Study to Identify Radioactive Materials of Greatest Concern and Approaches to Their Tracking, Tagging, and Disposition.” One of the report's recommendations is development of a national source tracking system to better understand and monitor the location and movement of sources of interest. The full report contains a list of radionuclides and thresholds above which tracking of the sources is recommended. The NRC has also supported U.S. Government efforts to establish international guidance for the safety and security of radioactive materials of concern. This effort has resulted in a major revision of the IAEA Code of Conduct on the Safety and Security of Radioactive Sources (Code of Conduct). The revised Code of Conduct was approved by the IAEA Board of Governors in September 2003, and is available on the IAEA Web site. In particular, the Code of Conduct contains a recommendation that each IAEA Member State develop a national source registry of radioactive sources that includes at a minimum Category 1 and Category 2 radioactive sources as described in Annex 1 of the Code of Conduct. The source registry recommendation addressed 16 radionuclides. The work on the DOE/NRC joint report was done in parallel with the work on the Code of Conduct and the development of IAEA TECDOC-1344, “Categorization of Radioactive Sources.” The IAEA published this categorization system for radioactive sources in August 2005 in its Safety Series as RS-G-1.9, Categorization of Radioactive Sources. The report, available on the IAEA Web site, provides the underlying methodology for the development of the Code of Conduct thresholds. The categorization system is based on the potential for sources to cause deterministic effects and uses the ‘D’ values as normalizing factors. The ‘D’ values are radionuclide-specific activity levels for the purposes of emergency planning and response. The quantities of concern identified in the DOE/NRC report are similar to the Code of Conduct Category 2 threshold values, so to allow alignment between domestic and international efforts to increase the safety and security of radioactive sources, NRC has adopted the Category 2 values. The NRC considers IAEA Category 2 (and higher) to be risk-significant radioactive material that has a potential to result in significant adverse impacts that could reasonably constitute a threat to the public health and safety, the environment, or the common defense and security of the United States. Subsequently, the NRC published a final rule in the **Federal Register** on November 8, 2006 (71 FR 65686), establishing a national system for source tracking. Under this program, certain licensees who possess IAEA Category 1 and 2 sources are required to report information on the manufacture, transfer, receipt, disassembly, and disposal of nationally tracked sources. This information is to be used to support the National Source Tracking System
(NSTS)and will provide the NRC with a life cycle account for these sources and, thus, improve accountability and controls over them. The final rule establishing the NSTS reflected the IAEA Code of Conduct recommendations that are consistent with the NRC's responsibilities under the Atomic Energy Act, including the protection of the public health and safety. The implementation date for the NSTS has been extended to January 31, 2009 (72 FR 59162). The principal purpose of the NSTS is to provide reasonable assurance of timely detection of either the theft or diversion of radioactive materials sufficient to constitute quantities which should be of concern regarding the construction of a radiological dispersion device. This is consistent with one of the objectives of the Code of Conduct which is to prevent unauthorized access or damage to, and loss, theft or unauthorized transfer of, radioactive sources. In the 2005 proposed rulemaking, the Commission specifically invited comments on whether Category 3 sources should be included in the NSTS. In response to the public comments received, the Commission indicated that it was deferring a final determination on what additional sources should be included in the NSTS to a subsequent rulemaking (71 FR 65692). The Commission is now conducting that subsequent rulemaking. II. Discussion In this rulemaking, NRC is proposing to amend its regulations to expand the NSTS to require licensees to report information on the manufacture, transfer, receipt, disassembly, and disposal of additional nationally tracked sources. In determining whether to expand the NSTS to include additional sources, the NRC has considered the need to balance the secure handling and use of the materials without discouraging their beneficial use in academic, medical, and industrial applications. Radioactive materials provide critical capabilities in the oil and gas, electrical power, construction, and food industries; are used to treat millions of patients each year in diagnostic and therapeutic procedures; and are used in technology research and development involving academic, government, and private institutions. These materials are as diverse in geographical location as they are in functional use. Expanding the NSTS is part of a comprehensive radioactive source control program for radioactive materials of greatest concern, as discussed SECY-07-0147, “Response to U.S. Government Accountability Office Recommendations and other Recommendations to Address Security Issues in the U.S. NRC Materials Program,” dated August 25, 2007. Although neither the currently planned NSTS, nor an expanded NSTS, can ensure the physical protection of sources, the NSTS can provide greater source accountability and, as part of an overall effort, in conjunction with other related activities ( *e.g.* , web based licensing, pre-licensing site visits, and increased controls orders), improve the control of radioactive sources and protect public health and safety, as well as common defense and security. Section II of this preamble discusses the overall rationale for expanding the NSTS to include additional sources (Section II.A); how these amendments can improve accountability of sources (Section II.B); and other considerations (Section II.C). The general content of the proposed rule is discussed in Section II.D. A. Rationale for Expanding the NSTS To Include Additional Source Categories A.1 Congressional Concerns/GAO Investigations Concerns by members of the U.S. Congress, and the Government Accountability Office (GAO), have been expressed regarding the aggregation of lower activity sources whose activity level, if taken together, could exceed the Category 2 threshold. Although a GAO investigation involved obtaining sources lower than Category 3 (i.e., in the low range of Category 4), the concerns expressed by members of Congress and the GAO over security issues associated with the NRC materials program have been considered in this rulemaking. Specifically, as a result of an investigation, GAO stated in its report (GAO Testimony, GAO-07-1038T, “Actions Taken by NRC to Strengthen Its Licensing Process for Sealed Radioactive Sources”, July 12, 2007) that NRC should regulate Category 3 sources more stringently (Recommendation B of the report) and that NRC should consider including Category 3 sources in the NSTS (Recommendation B.2). A.2 Recent NRC Actions In addition to the issues noted by the GAO, the NRC staff prepared SECY-06-0094, “Tracking or Providing Enhanced Controls for Category 3 Sources,” April 24, 2006, for the Commission's review. This paper contained options for tracking and/or providing enhanced controls for Category 3 sources. In response to that paper, the Commission provided direction to the NRC staff in SRM-SECY-06-0094, dated June 9, 2006, regarding enhanced controls for Category 3 sources. Specifically, the SRM noted that the staff should submit a proposed rule for the Commission to consider including Category 3 data in the NSTS. Subsequently, in response to Recommendations B and B.2 of the GAO report discussed in this preamble, NRC staff provided the Commission with an Action Plan in SECY-07-0147. The Action Plan, entitled “Action Plan to Respond to Recommendations to Address Security Issues in the U.S. NRC Materials Program,” included, as Recommendation S-2b, an action that the scope of the NSTS rulemaking be expanded to include sources at a level of 1/10 of Category 3. The Commission approved the staff's Action Plan on September 18, 2007, in SRM-SECY-07-0147. A.3. Considerations Regarding the Need for Expanding the NSTS and the Extent to Which the NSTS Should Be Expanded, i.e., What Categories (or Sub-Groups of Categories) of Sources To Be Included A.3.1 The Five IAEA Categories and the Relative Health and Safety Risk Posed by Sources in Those Categories The IAEA source categorization scheme includes five categories. 1 These categories are based on the potential for sources to cause deterministic health effects to persons exposed to them. Sources in Category 1 are considered to be the most ‘dangerous’ because they can pose a very high risk to human health if not managed safely and securely. At the lower end of the categorization system, sources in Category 5 are the least dangerous; however, even these sources could give rise to doses in excess of the dose limits if not properly controlled. Based on analysis of potential health effects, each of the IAEA Categories contain radioactive material in sealed sources in quantities that can be characterized as follows: 1 RS-G-1.9 “Categorization of Radioactive Sources.” *Category 1:* greater than or equal to the Category 1 threshold ( *e.g.* , for Cobalt-60 (Co-60): 810 Curies (Ci)); these sources are typically used in practices such as radiothermal generators, irradiators and radiation therapy. *Category 2:* less than the Category 1 threshold but equal to or greater than the Category 2 threshold (which is 1/100 of Category 1) ( *e.g.* , for Co-60: 8.1 Ci); these sources are typically used in practices such as industrial gamma radiography and high and medium dose rate brachytherapy. *Category 3:* less than the Category 2 threshold but equal to or greater than the Category 3 threshold ( 1/10 of Category 2) ( *e.g.* , for Co-60: 0.81 Ci); these sources are typically used in practices such as fixed industrial gauges involving high activity sources. *Category 4:* less than the Category 3 threshold but equal to or greater than the Category 4 threshold ( 1/100 of Category 3) ( *e.g.* , for Co-60: 0.0081 Ci); *Category 5:* less than the Category 4 threshold down to IAEA exempt quantities. The scope of IAEA's *Code of Conduct on the Safety and Security of Radioactive Sources* is limited to Categories 1-3, *i.e.* , those having the highest potential to cause permanent injury or death when used in a malevolent manner. A.3.2 Rationale in the Existing NSTS Rule for Imposing the Requirement To Track Category 1 and 2 Sources In the rulemaking establishing the NSTS for Category 1 and 2 sources, specific rationale was provided for establishing tracking and inventory requirements for Category 1 and 2 sources. In that rulemaking, as discussed in Section I of this preamble, it was noted that the DOE/NRC analysis of potential health effects from use of sources in a RDD or a RED identified radionuclide “quantities of concern” to be in a range similar to the IAEA Category 2 threshold values. Therefore, to allow alignment between domestic and international efforts to increase safety and security of radioactive sources, NRC adopted the IAEA Category 2 values and used them as a threshold in its rulemaking decision regarding sources requiring tracking and inventorying in a national source tracking system. A.3.3 Discussion in the Previous NSTS Rulemaking for Including Additional IAEA Categories in the NSTS In conducting the rulemaking to establish the NSTS, the Commission noted that Category 3 sources could be included in the NSTS in the future, citing the potential that a licensee possessing a large number of Category 3 sources could present a security concern. Therefore, as part of that rulemaking, the Commission sought comment and information on the issue of including Category 3 sources in the NSTS. These comments are summarized in Section II.C.2. Based on its review of those comments, the Commission, in issuing the final rule to establish the NSTS, noted that it did not have adequate information at that point in time to support inclusion of Category 3 sources in the NSTS, however, it also noted that it was working to develop additional information by conducting a one-time survey of sources at a level of 1/10 of Category 3. The Commission then noted that, in that rulemaking, it was not making a final determination on what additional sources should be included in the NSTS and that if additional material is added to the NSTS, it would be done through subsequent rulemaking. The Commission is now conducting that subsequent rulemaking. A.3.4. Rationale for Inclusion of Additional Sources in an Expanded NSTS in This Rulemaking In preparing this proposed rule, NRC has determined that there is a need to enhance the tracking of lower activity sources to improve accountability for these sources and to provide the ability to detect situations where a licensee's aggregate sources would create larger (more dangerous) quantities. At issue is the extent appropriate for expanding the NSTS beyond Category 2, *i.e.* , should the NSTS be expanded to include IAEA Category 3 sources (as suggested in the June 9th, 2006 SRM) or should it be expanded even further to include sources that are 1/10 of the Category 3 threshold (as suggested in the August 25, 2007 Action Plan). Consideration was also given to expanding the NSTS to include sources in the low end of Category 4 or in Category 5. The rationales for expanding the NSTS to include Category 3 sources and to include lower category sources are provided in Sub-Sections A.3.4.1 and A.3.4.2, respectively. A.3.4.1 Inclusion of Category 3 Sources in the NSTS The Commission believes that it is clear that there is a need to enhance the accountability and control of Category 3 sources (i.e., those that are greater than or equal to the IAEA Category 3 threshold) through improved tracking of these sources. The following are the principal rationale for the Commission's decision regarding Category 3 sources:
(a)*Category 3 sources are defined as dangerous by IAEA:* The IAEA defines Category 3 sources (as well as the Category 1 and 2 sources) as “dangerous sources”, i.e., a source that could if not under control give rise to exposure sufficient to cause severe deterministic effects, although it left to its individual member States whether it would be necessary to actually set up a tracking system for these sources.
(b)*There is potential for aggregation of Category 3 sources to a Category 2 level:* Category 3 sources could be easily aggregated to Category 2 levels, as part of a concerted effort to do so, as they represent sources with activity levels that range from just below the Category 2 threshold down to 1/10 of the Category 2 threshold. Thus, sources at the high end of the range of activities in Category 3 can be at levels just below the threshold of a Category 2 source, meaning that it would take only a few sources to aggregate to Category 2. Adding these sources to the NSTS with its inventory and tracking requirements will provide for increased accountability for these sources because there would a near real-time knowledge of source whereabouts and an ability to confirm an individual licensee's account of their sources.
(c)*Types of licensees that possess Category 3 sources:* The major categories of licensees who possess Category 3 sources include those with fixed industrial gauges (level gauges, conveyor gauges, thickness gauges, blast furnace gauges, dredger, pipe gauges); those who conduct well-logging operations; medical facilities with brachytherapy machines; and some radiographers with relatively low activity sources. Because these sources are thus relatively widespread in use and relatively broadly used in industry, there would be potential for aggregation of sufficient numbers of them to Category 2 levels.
(d)*Additional burden to comply with these requirements is considered reasonable to incur for the benefit in improved source accountability:* Adding Category 3 sources to the NSTS would result in increased burden to the NRC and to the licensed industry for implementation and maintenance of the expanded NSTS. In the Regulatory Analysis for this rulemaking (summarized in Section XI of this FRN), the Commission analyzed the additional costs and benefits of expanding the NSTS to Category 3 levels. As noted in the Regulatory Analysis, the existing NSTS has approximately 1300 NRC and Agreement State licensees and an expanded NSTS under this proposed rule to include Category 3 sources would add approximately 1000 licensees. As estimated in the Regulatory Analysis, the resultant overall annual cost to the industry and to the NRC would be approximately doubled as a result of this expansion of the NSTS to Category 3, however the Commission believes that this additional burden would be reasonable to incur given the additional improvement in accountability for these sources.
(e)*Additional sources can be accommodated by the NSTS:* As noted in Section II.C.1 of this preamble, the Commission believes that the existing NSTS system can accommodate these additional licensees and sources based on its expandability and flexibility and that, if NRC applies the appropriate resources, that monitoring of the expanded NSTS would not divert attention from the monitoring of higher-risk Category 1 and 2 sources.
(f)*Consideration of earlier public comment:* In reaching its decision to include Category 3 sources, the Commission considered the comments received regarding inclusion of Category 3 sources during the rulemaking to establish the NSTS for Category 1 and 2 sources. These comments are summarized in Section II.C.2 of this preamble. Briefly stated, a number of commenters supported inclusion of Category 3 sources in the NSTS for some of the same reasons as previously noted, whereas a larger number of commenters opposed the inclusion of Category 3 sources based on the relatively low risk they present compared to the large increased burden of adding these sources to the NSTS. The Commission believes that it has considered the concerns of the commenters, pro and con, and evaluated the additional burdens which the rule would impose, in reaching its decision. Based on the considerations previously noted, the definition of Category 3 as dangerous, and the potential for aggregation to Category 2, the Commission believes that the same information to be included in the NSTS for Category 1 and Category 2 sources is also needed for Category 3 sources. Expanding the scope of the NSTS will provide for Category 3 sources the same single source of information as collected for Category 1 and 2 sources. Although separate NRC and Agreement State systems contain information on Category 3 source licensees and the maximum amounts of materials they are authorized to possess, those systems do not record actual sources or their movements. Thus, to address this lack of information on such issues as actual materials possessed, the NRC is proposing, as part of this proposed rule, to expand the NSTS to include sources greater than or equal to the IAEA Category 3 threshold levels. Expanding the NSTS to Category 3 sources would provide NRC with information regarding purchases/transactions of sufficient numbers of Category 3 sources that could be aggregated into the equivalent of Category 2 sources. Tracking specific transactions of Category 3 sources enhances accountability and would detect situations where a licensee's aggregate sources would create larger (more dangerous) quantities. A.3.4.2 Inclusion of Lower Category Sources in the NSTS, in Particular 1/10 of Category 3 The Commission has also given consideration to expanding the NSTS to sources below the Category 3 threshold. Specifically, the staff considered expanding the NSTS to include a subset of IAEA Category 4 sources that are in the high end of Category 4 (at a level of 1/10 of the Category 3 threshold). The staff also considered whether to expand the NSTS to include all of Category 4 (the Category 4 threshold is 1/100 of the Category 3 threshold) and Category 5. A principal rationale for including sources at the high-end of the Category 4 range of activities ( *i.e.* , at 1/10 of Category 3) is the potential that a sufficient number of these higher-activity Category 4 sources could be obtained and aggregated to create the equivalent of Category 2 sources. These “high-end” Category 4 sources can be at levels just below the threshold of a Category 3 source, which is about 1/10 of the threshold of a Category 2 source, meaning that it would require about 10-12 of these sources to aggregate to Category 2 quantity. These high-end Category 4 ( 1/10 of Category 3) sources are possessed by the same licensees noted to have Category 3 sources, namely those with fixed industrial gauges, those who conduct well-logging operations, medical facilities with brachytherapy machines, and a few radiographers, and as previously noted, are relatively widespread in use and broadly used in industry, thus allowing for the potential for aggregation of sufficient numbers of them to Category 2 levels. As noted in this preamble for Category 3 sources, the Commission analyzed additional costs and benefits of expanding the NSTS to 1/10 of Category 3 levels. As noted in the Regulatory Analysis, an expanded NSTS to include 1/10 of Category 3 sources would add approximately 2500 licensees with a resultant overall annual cost to the industry and to the NRC that would be approximately doubled again. The Commission also considered including all of Category 4 sources (and/or Category 5) in the NSTS, however in both cases it was decided that, because of the magnitude of the thresholds of each of these categories and the lower likelihood that sources at the lower range of Category 4 or in Category 5 could be aggregated to the higher category levels, that they would not be included in the expansion of the NSTS. Based on these considerations of the nature of the sources at 1/10 of Category 3, their potential to aggregate to Category 2, and the costs to the licensed industry and the NRC, the NRC has decided to also include in the NSTS, sources below the Category 3 threshold, but greater than or equal to a 10th of the Category 3 threshold. This is consistent with the Code of Conduct which encourages countries to give appropriate attention to radioactive sources considered to have the potential to cause unacceptable consequences if employed for malicious purposes and to aggregation of lower activity sources. The Commission believes that the additional costs are reasonable to incur given the additional improvement in accountability for these sources, given their potential to be aggregated to more dangerous quantities. The Commission believes that the existing NSTS can accommodate these additional sources and that the NRC can expend the additional resources to monitor these sources without detracting from the monitoring of Category 1 and 2 sources. The NRC specifically invites comment on the inclusion of these sources at 1/10 of Category 3 in the NSTS. The staff is interested in information concerning:
(1)The number of additional licensees that would be impacted;
(2)The number of sources between the Category 3 threshold and 1/10 of the Category 3 threshold that are possessed by licensees and the activity levels of those sources relative to both of those values;
(3)How often these sources are involved in transactions (manufacture, shipping, receipt, disposal, etc) and the nature of the transaction process, including the ease of obtaining the sources and the cost of the sources. This information will enable the NRC to make a more informed decision on the inclusion of sources greater than or equal to 1/10 of Category 3 in the NSTS. B. Enhanced Accountability Provided by These Amendments The NSTS, as currently planned for Category 1 and 2 sources, is a web-based system that provides the NRC and Agreement States with information related to transactions involving nationally tracked sources. This information includes details of transfers of sources between manufacturers and licensees, and disposal sites, for IAEA Category 1 and 2 sources. Expanding the NSTS to include additional nationally tracked sources would use the same web-based system as for Category 1 and 2 sources, namely providing the NRC with information regarding transactions involving sufficient numbers of these additional sources that could be aggregated into the equivalent of Category 2 source. By tracking specific transactions involving these additional nationally tracked sources, the NRC will be in a better position to track aggregation of these sources and improve accountability for these sources. In addition, with an expanded NSTS, NRC can be alert to discrepancies between transaction reports of manufacturing and distribution licensees and of the persons to whom the shipment of sources is being made. Also, data from the NSTS could be used in conjunction with other data management systems to provide for better source accountability. C. Other Considerations C.1 Other Alternative Approaches for Improving Accountability Require Only Inventorying of Additional Categories of Sources Another alternative approach considered for this rulemaking would be to simply require licensees with sources greater than or equal to either the Category 3 threshold or 1/10 of the Category 3 threshold to conduct and report inventories of nationally tracked sources. However, this alternative would not provide the necessary near real-time knowledge of source transactions and, in addition, lack of transaction data from other licensees would not tend to lead to a cross-check for accurate reporting of inventories. In addition, there would still be significant costs incurred as a result of such a rule including the costs of setting up an account in the NSTS (including licensee credentialing); of conducting inventories; of marking serial numbers; of inspections; of preparing Agreement State regulations; and of NRC system monitoring, operation, and maintenance. C.2 Potential Effects on the Existing NSTS for Category 1 and 2 Sources An important consideration in the NRC's decision to propose expansion of the NSTS is whether the expanded NSTS would divert attention from, or otherwise compromise the currently planned NSTS. In the SRM for SECY-06-0094, the Commission directed the staff to ensure that the NSTS is capable of being modified to include Category 3 sources, and that an expanded NSTS does not divert attention or resources from oversight of Category 1 and 2 sources. This is an important consideration because activities to review new data in the NSTS for the lower activity sources that would now be a part of the NSTS should not divert NRC attention from reviewing and monitoring licensee inventorying and tracking of the higher Category 1 and 2 which present a higher risk to human health. It is expected that expansion of the NSTS will not compromise the information technology
(IT)aspects of the NSTS due to the capabilities incorporated into the NSTS software. Because the IT design and software is flexible and expandable, it can accommodate the anticipated number of licensees and sources and the corresponding tracking activities under the proposed expansion of the NSTS. Thus, it is anticipated that implementation of the expanded NSTS can begin in the timeframe noted in Section II.D.7 of the preamble. In addition, although it is recognized that additional effort will be needed to monitor an expanded NSTS, NRC should be able to continue to adequately monitor both the Category 1 and 2 sources in the existing NSTS and the additional sources in the expanded NSTS and identify possible concerns with aggregation of sources, if it uses the appropriate additional resources which are discussed in the summary of the Regulatory Analysis, Section XI. C.3 Previous Comments Received Regarding Inclusion of Category 3 Sources in the NSTS During the Rulemaking To Establish the NSTS for Category 1 and 2 Sources Another consideration is the public comment received on the proposed rule for establishing the NSTS for IAEA Category 1 and 2 sources. As noted in Section I of this preamble, the proposed rulemaking the Commission issued specifically invited public comment. The public comments received on this subject were discussed in the November 6, 2006 final rule FRN establishing the NSTS. The discussion in the final FRN noted that six commenters supported inclusion of Category 3 while eighteen commenters opposed it. Reasons given for supporting inclusion included that certain Category 3 sources pose comparable threats to Category 2; that there was concern over threats to national security from potential aggregation of Category 3 sources; that IAEA defines Category 3 sources as being dangerous and carrying a potential risk of harm warranting inclusion in a tracking system; and that these sources could be tracked with a modest additional investment. These commenters noted that the inclusion of Category 3 sources should not disrupt implementation of the NSTS for Category 1 and 2 sources. Commenters opposing inclusion of Category 3 sources in the NSTS generally cited the increased burden that would be imposed on licensees and the NRC. Most of these commenters did not provide specific numbers but indicated that inclusion of Category 3 sources would cause a significant increase in the number of transaction reports and unduly burden manufacturers and distributors. These commenters also noted that many of the Category 3 sources are lower risk and do not pose a significant threat compared to Category 1 and 2. These commenters were concerned that inclusion of Category 3 sources would bog down the NSTS and suggested that a better approach would be to require inventory reporting rather than source transactions. In response to all of these commenters, the Commission, in issuing the final rule establishing the NSTS for Category 1 and 2 sources, noted that it did not have adequate information at that point in time to support inclusion of Category 3 sources in the NSTS. The Commission also noted that it was working to develop additional information by conducting a one-time survey of sources at a level of 1/10 of Category 3. The Commission then noted that, in that rulemaking, it was not making a final determination on what additional sources should be included in the NSTS and that if additional material is added to the NSTS, it would be done through subsequent rulemaking, which is what the Commission is currently conducting. In preparing this proposed rule, the NRC has re-considered the relative concerns over accountability and control of these sources; the relative risk the sources may present; the potential for aggregation of lower activity sources to higher IAEA Category levels; and the flexibility and expandability of the existing NSTS to accommodate additional sources. Based on additional information developed, the NRC has also prepared a detailed regulatory analysis of the number of additional licensees and sources that would be included in an expanded NSTS and the effect on licensees, the Agreement States and the NRC. Based on its consideration of the comments and of the results of the Regulatory Analysis, the Commission is proceeding with the proposed rule for expansion of the NSTS. D. General Content of the Proposed Rule Based on the considerations of Sections II.A—II.C, NRC is proposing to expand the NSTS by requiring licensees with additional nationally tracked sources to report information to the NSTS on the manufacture, transfer, receipt, disassembly, and disposal of nationally tracked sources. The expanded NSTS would remain consistent with recommendations in the IAEA Code of Conduct for development of a national register of radioactive sources. This section contains specific information on the content and implementation of this expanded NSTS. The actions required of the additional licensees with sources added to the NSTS are the same as those for licensees currently within the scope of the NSTS. The following discussion is based on supplementary information in the FRN for the final rule establishing the NSTS for IAEA Category 1 and 2 sources (71 FR 65686, November 8, 2006). This section is intended to provide licensees new to the NSTS, i.e., those with Category 3 sources and sources greater than or equal to 1/10 of Category 3, but less than Category 2, with similar information as was provided in the FRN for the final rule for the establishment of the NSTS for IAEA Category 1 and 2 sources. D.1 Definition of a Nationally Tracked Source A sealed source consists of radioactive material that is permanently sealed in a capsule or closely bonded to a non-radioactive substrate designed to prevent leakage or escape of the radioactive material. In either case, it is effectively a solid form of radioactive material which is not exempt from regulatory control. Under this proposed rule, the definition of a nationally tracked source would be revised to include sealed sources containing a quantity of radioactive material equal to or greater than the 1/10 of Category 3 levels listed in the proposed amended Appendix E to 10 CFR Part 20. A nationally tracked source may be either a Category 1 source, a Category 2 source, a Category 3 source or, a 1/10 of Category 3 source. For the purpose of this rulemaking, the term nationally tracked source does not include material encapsulated solely for disposal, or nuclear material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet. Material encapsulated solely for disposal refers to material that without the disposal packaging would not be considered encapsulated. For example, a licensee's bulk material that it plans to send for burial may be placed in a matrix (e.g. mixed in concrete), to meet burial requirements. The placement of the radioactive material in the matrix material may be considered encapsulating. This type of material would not be covered by the rule. However, if a nationally tracked source were to be placed in a matrix material, the sealed source would still be covered by the rule. The specific radioactive material and activity levels covered by this proposed rule are listed in the proposed revised Appendix E to 10 CFR Part 20. These activity values are 1/10 of the Category 3 values in Table 1 of the IAEA Code of Conduct. The Code of Conduct recommends that at a minimum the radionuclides and the threshold values for Category 1 and 2 should be included in a national source registry. The U.S. Government has formally adopted these values to align domestic and international efforts to increase the safety and security of certain radioactive sources. The Terabecquerel
(TBq)values listed in Appendix E would be the regulatory standard. The curie
(Ci)values specified are obtained by converting the TBq value. The Ci values are provided for reference only and are rounded after conversion. The curie values are not intended to be the regulatory standard. D.2 Who Would be Affected by This Action The proposed rule would apply to any person (entity or individual) in possession of a Category 3 source or source greater than or equal to 1/10 of Category 3. It would apply to— —Licensees with either NRC licenses or with Agreement State licenses; —Manufacturers and distributors of Category 3 sources, and sources greater than or equal to 1/10 of Category 3; —Medical facilities, radiographers, well-loggers, licensees using fixed gauges, and any other licensees that are the end users of nationally tracked sources; —Disposal facilities and waste brokers; and —Owners of a source that is not actively used or in long-term storage. Nationally tracked sources (as the definition would be expanded by this proposed rule) include sources possessed by various types of licensees, but primarily by byproduct material licensees, and are used in the oil and gas, electrical power, construction, medical, food industries, and in technology research and development. The definition of nationally tracked sources would be modified by this rulemaking to include Category 3 and sources greater than or equal to 1/10 of Category 3 based on the activity level of the radioactive material. Category 3 sources or sources greater than or equal to 1/10 of Category 3 are typically used in devices such as medical brachytherapy units, well-logging, fixed gauges used throughout various industries, and radiography units in which the radioactivity has decreased from higher IAEA Category 2 levels due to radioactive decay. D.3 How Information Would Be Reported to the NSTS Licensees have several methods for providing the required information under the existing NSTS (see Section II.D.4 of this preamble for the specific information that would be reported to the NSTS). Under the proposed expanded NSTS, these methods would continue to include on-line, computer-readable format files, paper, fax, and telephone and are described below: — *Reporting information on-line:* For most licensees, the most convenient, least burdensome method will be to report the information on-line. In this method, licensees can log on to the system and enter the required information by filling out a form on-line. To report information on-line, a licensee would need to establish an account with the NSTS. Once an account is established, the licensee would be provided with password information that would allow access to the on-line system. A licensee would have access only to information regarding its own material or facility; a licensee would not have access to information concerning other licensees or facilities. When logged on, the licensee could type the necessary information onto the on-line forms. Once a source is in the system, the licensee would be able to click on the source and report a transfer or other transaction. The identifying information would not need to be typed in a second time because information such as license number, facility name, and address would pop up automatically. — *Computer-readable format:* Many licensees conduct a large number of transactions, especially manufacturing and distribution licensees. We recognize that most licensees have a system in which information on sources is maintained. The NSTS will be able to accept batch load information using a computer-readable format. This should ease the reporting burden for a licensee with a large number of transactions. The licensee would be able to electronically send a batch load using a computer readable format file that contained all of the transactions that occurred that day. The format could also be used for reporting the initial inventory. NRC and the entity responsible for developing the NSTS will work with licensees to develop the mechanism to accept batch load information so that it is compatible with many of the existing systems in use by licensees. — *Paper submittals by mail, fax, or telephone:* Licensees would also be able to complete a paper version of the National Source Tracking Transaction form and submit the form by either mail or fax. Licensees would also be able to provide transaction information by telephone and then follow-up with a paper copy. D.4 Specific Information That Licensee Would Report Under the Expanded NSTS Under the requirements of the NSTS, the additional licensees covered by the NSTS would be required to conduct the following actions: —Report their initial inventory of sources greater than or equal to 1/10 of Category 3 nationally tracked sources to NSTS; —On an annual basis, reconcile and verify the inventory of sources greater than or equal to 1/10 of Category 3 possessed against the data in the NSTS; —Complete and submit a National Source Tracking Transaction Report (i.e., NRC Form 748) after each transaction involving a Category 3 or a 1/10 of Category 3 source; —Correct any errors in previously filed National Source Tracking Transaction Reports within five business days of the discovery; and —For licensees who manufacture a Category 3 or 1/10 of Category 3 nationally tracked source, assign a unique serial number to each source. How licensees would carry out these requirements is discussed in more detail in the following subsections. D.4.1 Reporting Initial (Current) Inventory to the NSTS As noted, licensees would be required to report their initial (i.e., current) inventory of nationally tracked sources by a specified date. Licensees would be required to report all sources greater than or equal to 1/10 of Category 3 to the NSTS by July 31, 2009. To ease the implementation of the reporting process, information already in NRC's One-Time Data Collection would be downloaded to the NSTS. A licensee whose nationally tracked source information was reported to the One-Time Data Collection database would be provided a copy of its information and would need only to either verify the information or provide updated information. NRC staff and the entity that operates the NSTS will work with licensees to make sure the inventory information is correct. A licensee whose information was not reported to the One-Time Data Collection database would need to report the information on its nationally tracked source inventory by specified date above. Disposal facilities would not need to report sources that have already been buried or otherwise disposed. D.4.2 Annual Reconciliation and Verification of Information in the NSTS Licensees would be required to reconcile their on-site inventory of nationally tracked sources with the information previously reported to the NSTS. This reconciliation would occur during the month of January of each year. This reconciliation would be necessary to maintain the accuracy and reliability of the National Source Tracking database. The licensee would be able to print a copy of the inventory information from the NSTS. Licensees without on-line access would receive a paper copy of the information in the NSTS. The licensee would compare the information in the system to the actual inventory at the licensee's facility, including a check of the model and serial number of each source. This reconciliation would not require the licensee to conduct an additional physical inventory of its sources. Under current regulations, licensees are currently required to conduct physical inventories annually, semi-annually, or quarterly depending on the type of license. The licensee would be required to reconcile any differences by reporting the appropriate transaction(s) or corrections to the NSTS. The licensee would be required to verify by the end of January of each year that the inventory in the NSTS is correct. The first reconciliation would occur in January 2010. D.4.3 Reporting Transaction Information to the NSTS Prompt updating of the NSTS is necessary for it to be useful and accurate. In order to capture information as soon as possible, licensees would be required to report information on nationally tracked source transactions by the close of the next business day after the transaction. To ease the burden on licensees, any of the methods for reporting the information listed in Section E.3 may be used. Specific transaction information that would be required is discussed in the following subsections. D.4.3.1 Reporting Information on Source Manufacture *Sources Manufactured in the United States:* When a nationally tracked source is manufactured in the United States, the source manufacturer licensee would be required to report the source information to the NSTS. The information must be reported by the close of the next business day after manufacture and includes: Manufacturer (make), model number, serial number, radioactive material, activity at manufacture, and manufacture date for each source. The licensee must also provide its license number, facility name, as well as the name of the individual that prepared the report. *Recycled, Reconfigured, and Disassembled Sources:* Some sources are recycled, reconfigured, or disassembled. For example, a source that has decayed below its usefulness may be returned to the manufacturer for reconfiguration or disassembly. The decayed source may be placed in a reactor and reactivated, or placed in storage. The source retains its serial number, but now has a new activity. The new activity and creation date of the source must be reported to the NSTS. *Imported Sources:* For every nationally tracked source that is imported, the facility obtaining the source would be required to report the information on the manufacture of the source to the NSTS by the close of the next business day after receipt of the imported source at the site. For the purposes of the NSTS, this would be considered the source origin unless the source had been previously possessed in the United States. The licensee would need to report the manufacturer (make), model number, serial number, radioactive material, activity at manufacture or import, and manufacture or import date for each source. The licensee must also provide its license number, facility name, address, as well as the name of the individual that prepared the report and the date of receipt. The licensee would also need to provide information on the facility (name and address) that sent the source and the import license number if applicable. **Note:** Only Category 1 and Category 2 sources including multiple sources that aggregate to at least a Category 2 level on a per shipment basis, require a specific NRC import license. The NRC is interested in determining whether specific requirements for tracking should also be included in 10 CFR Part 110 and specifically invites comment on this question. D.4.3.2 Reporting Information on Source Transfer *Transfers between licensees:* Each time a nationally tracked source is transferred to another facility authorized to use or possess the source, the licensee would be required to report the transfer to the NSTS by the close of the next business day. The licensee must report the recipient name (facility the source is being transferred to), address, license number, the shipping date, the estimated arrival date, and the identifying source information (manufacturer, model number, serial number, and radioactive material). The licensee also would need to provide its name, address, and license number, as well as the name of the individual making the report. For nationally tracked sources that are transferred as waste under a Uniform Low-level Radioactive Waste Manifest, the licensee would also have to report the waste manifest number and the container identification number for the container with the nationally tracked source. *Transfers where the source stays within the licensee's possession:* Source transfer transactions only cover transfers between different licensees and/or authorized facilities. They do not include transfer to a temporary job site. Transactions in which the nationally tracked source remains in the possession of the licensee would not require a report to the NSTS. For example, a radiographer conducting business would not need to report transfers between temporary job sites, even if the temporary job site is located in another state or if the work is conducted under a reciprocity agreement. *Export of sources:* Export of sources would be treated as a transfer. An export is considered a reversible endpoint (e.g., a place of use or storage that is not a temporary job site) because the source can be imported back into the country. The export license number would be reported as the license number of the receiving facility. **Note:** Only Category 1 and 2 sources, including multiple sources that aggregate to at least a Category 2 level on a per shipment basis, are required to have a specific NRC export license. Most Category 3 and below sources can be exported under a general license in accordance with 10 CFR 110.23. D.4.3.3 Reporting Information for Receipt of Sources *Receipt of sources:* A licensee would be required to report each receipt of a nationally tracked source by the close of the next business day. The licensee must report the identifying source information (manufacturer, model number, serial number, and radioactive material) and the date of receipt. The licensee also must include its facility name and license number and the name of the individual that prepared the report. In addition, the licensee must provide the name and license number of the facility that sent the source because this information is necessary to match the transactions. *Receipt of imported sources:* If the source received is an import, the licensee would also need to report the source activity and associated activity date. The import license number would be reported as the license number of the sending facility. *Receipt of sources in a waste shipment:* If a licensee receives a nationally tracked source as part of a waste shipment, the licensee must provide the Uniform Low-level Radioactive Waste Manifest number and the container identification for the container that contains the nationally tracked source. A waste broker or disposal facility are examples of licensees that might receive a nationally tracked source as part of a waste shipment. These licensees would not be expected to open the waste container and verify the presence of the nationally tracked source; they may rely on the information from the licensee who shipped the source. D.4.3.4 Reporting Information on Source Disposal *Licensees sending a source for disposal:* Licensees sending a source to a low-level burial ground for disposal would treat the transaction as a transfer (see Section II.D.4.3.2), and would report the types of information to be reported for a transfer, along with the waste manifest number and the container identification number. *Disposal facilities:* Disposal of a source would be reported by the licensee conducting the actual burial in a low-level disposal facility or other authorized disposal mechanism. The disposal facility may rely on the information from the licensee that sent the waste for disposal and is not expected to open the waste container to verify contents. The disposal facility must report to the NSTS the date and method of disposal, the waste manifest number, and the container identification number for the container with the nationally tracked source. The disposal facility must also provide its facility name and license number, as well as the name of the individual that prepared the report. The report must be made by the close of the next business day. D.4.3.5 Information Regarding Reporting (or Not Reporting) of Other Source Endpoints *Decay of sources:* One feature of the NSTS would be that the decay of a source would be automatically calculated so a licensee would not need to report an endpoint of decay. Once a source has decayed below 1/10 of Category 3 threshold level, it would no longer be considered a nationally tracked source, and the source would automatically be removed from a licensee's active inventory in the NSTS. The licensee would receive a notification that the source has decayed below the tracking level, and that transactions for this source no longer need to be reported. The data on the source, however, will be retained in the system. *Accidental destruction of sources:* Licensees currently report accidental destruction of sources to the NRC Operations Center or to the Agreement States. NRC staff would enter the information from the event report into the NSTS. Because sealed sources are designed to be robust, accidental destruction should be and is rare. *Lost or stolen sources or source abandoned in a well:* These endpoints would be captured by the NSTS. These events are already reported to either NRC or to the Agreement States. Licensees would not be required to report this information a second time to the NSTS. Agreement State licensees would continue to report to the Agreement State. NRC staff would obtain the information on these events from the event reports or the Nuclear Medical Event Database and enter the information into the NSTS. D.4.4 Reporting Errors in Transaction Reports Data integrity for the NSTS is extremely important and necessary to keep the information correct and up-to-date. Licensees are expected to provide correct information to the NSTS and to double-check the accuracy of information before submission. However, the NRC recognizes that some transactions may be missed and that errors may creep into the system over time. Typical reasons for discrepancies could be failure to report the receipt of a source, failure to report the transfer of a source to another licensee, finding a source that was missed during the reporting of the initial inventory, selection of the wrong model number, or incorrect typing of the serial number. Each licensee would be required to correct any errors or missed transactions that it discovers, and to correct any of their inaccurate information in the NSTS, regardless of the origin of the error, within 5 business days of the discovery. Typing errors and errors such as inadvertent selection of the wrong model number need to be corrected in the system so that the information in the NSTS is correct. A licensee would be able to submit a corrected form that contains the correct information online or through any other permitted reporting mechanism at any time. D.4.5 For Manufacturers, Assigning a Unique Serial Number to Sources The proposed rule would require manufacturers of nationally tracked sources to use a unique serial number for each source. The combination of manufacturer, model, and serial number will be used in the NSTS to track the history of each source. D.5 Access to the Information in the NSTS and What Would It be Used For Information in the NSTS will be considered Official Use Only. This means that the information is to be protected and not disclosed to the general public. A licensee would be able to view its own data, but not data for other licensees. Agreement State staff would be able to view information on the licensees in their State, but would not be able to view information on licensees in other States. The one exception is information related to lost or stolen sources. Agreement State staff would be able to view the information on lost or stolen sources from all licensees. This will enable better coordination of recovery efforts. Other Federal and State agencies would also be able to view the information on lost or stolen sources and other information on a need-to-know basis. Once fully operational, the expanded NSTS would be used for a variety of purposes. This standardized, centralized information will help NRC and Agreement States to monitor the location and use of nationally tracked sources; conduct inspections and investigations; communicate nationally tracked source information to other government agencies; verify legitimate ownership and use of nationally tracked sources; and further analyze hazards attributable to the possession and use of these sources. D.6 Implementation and Enforcement of the Expanded NSTS Implementation and enforcement activities, whether the licensee population includes those possessing Category 1 and 2 sources only, or those possessing Category 3 sources or sources greater than or equal to 1/10 of Category 3, would be of a similar nature. The NSTS rule reporting requirements include reporting by licensees of an initial inventory, an annual reconciliation of source inventory, and source transactions. The implementation process would include specific actions to make the affected licensee population aware of the amended requirements in 10 CFR parts 20 and 32 through outreach with licensee groups/organizations, and information on the NRC Web site. In addition, at this time, guidance is in preparation for implementation of the NSTS for Category 1 and 2 licensees; similar guidance will be developed for Category 3 sources and sources greater than or equal to 1/10 of Category 3 licensees. Regarding enforcement action, in a manner similar to that for Category 1 and 2 licensees, NRC and the Agreement states would first need to identify licensees who had not reported the required inventory and transaction information, based on knowledge of the licensee population of interest, which would be determined by using the Licensee Tracking System and eventually by the Web Based Licensing (WBL), when operational. D.7 When These Actions Become Effective The rule would become effective 60 days after the final rule is published in the **Federal Register** . The requirements for sources greater than or equal to 1/10 of Category 3 nationally tracked sources would be implemented by July 31, 2009. This means that by this date any licensee that possesses a Category 3 or sources greater than or equal to 1/10 of Category 3 must have reported its initial inventory and report thereafter all transactions involving sources greater than or equal to 1/10 of Category 3 to the NSTS. III. Discussion of Proposed Amendments by Section Section 20.1003 Definitions An expanded definition of nationally tracked sources to include Category 3 and 1/10 of Category 3 sources would be added to the regulations. Section 20.2207 Reports of Transactions Involving Nationally Tracked Sources A revision to paragraph
(h)would require a licensee to report its initial inventory of Category 3 and 1/10 of Category 3 nationally tracked sources by July 31, 2009. Appendix E Nationally Tracked Source Thresholds A revision to Appendix E of 10 CFR Part 20 would be made to revise the thresholds for nationally tracked sources to include Category 3 and 1/10 of Category 3 levels. The Terabecquerel
(TBq)values listed in the revised Appendix E are the regulatory standard. The curie
(Ci)values specified are obtained by converting from the TBq value. The Ci values are provided for reference only and are rounded after conversion. The curie values are not intended to be the regulatory standard. Section 32.2 Definitions An expanded definition of nationally tracked sources to include Category 3 and 1/10 of Category 3 sources would be added to the regulations. IV. Criminal Penalties For the purpose of Section 223 of the Atomic Energy Act (AEA), as amended, the Commission is proposing to amend 10 CFR Parts 20 and 32 under one or more of Sections 161b, 161i, or 161o of the AEA. Willful violations of the rule would be subject to criminal enforcement. V. Agreement State Compatibility Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the **Federal Register** on September 3, 1997 (62 FR 46517), § 20.2207 of the proposed rule is classified as Compatibility Category “B.” The NRC program elements in this category are those that apply to activities that have direct and significant transboundary implications. An Agreement State should adopt program elements essentially identical to those of NRC. Agreement State and NRC licensees would report their transactions to the NSTS and the database will be maintained by the NRC. VI. Plain Language The Presidential Memorandum “Plain Language in Government Writing” published June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on this proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the ADDRESSES heading. VII. Voluntary Consensus Standards The National Technology Transfer Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this proposed rule, the NRC would require licensees that possess, manufacture, transfer, receive, or dispose of the nationally tracked sources specified in the proposed rule to report the information relating to such transactions to the National Source Tracking System. This action does not constitute the establishment of a standard that contains generally applicable requirements. VIII. Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action described as a categorical exclusion in 10 CFR 51.22(c)(3)(iii). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule. IX. Paperwork Reduction Act Statement This proposed rule contains new or amended information collection requirements that are subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). This rule has been submitted to the Office of Management and Budget
(OMB)for review and approval of the information collection requirements. *Type of submission, new or revision:* Revision. *The title of the information collection:* 10 CFR Parts 20 and 32, National Source Tracking of Sealed Sources. *The form number, if applicable:* NRC Form 748. *How often the collection is required:* Initially, at completion of a transaction, and at inventory reconciliation annually. *Who will be required or asked to report:* Licensees that manufacture, receive, disassemble, transfer, or dispose of nationally tracked sources. *An estimate of the number of annual responses:* 20,912 (19,746 responses and 1,166 recordkeepers). *The estimated number of annual respondents:* 3500 (NRC 700; Agreement States 2800). *An estimate of the total number of hours needed annually to complete the requirement or request:* The total burden increase for this rulemaking is 16,821 hours (10 CFR Part 20: 13,748 hours; 10 CFR Part 32: 600 hours; NRC Form 748: 2,473 hours). *Abstract:* The NRC is proposing to amend its regulations to expand the NSTS to include Category 3 and 1/10 of Category 3 sealed sources. The proposed amendments would require licensees to report certain transactions involving nationally tracked sources to the NSTS. These transactions would include manufacture, transfer, disassembly, receipt, or disposal of the nationally tracked source. The proposed amendment would require each licensee to provide its initial inventory of nationally tracked sources to the NSTS and to annually verify and reconcile the information in the system with the licensee's actual inventory. The proposed rule would also require manufacturers of nationally tracked sources to assign a unique serial number of each source. This information collection is mandatory and will be used to populate the NSTS. The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues: 1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility? 2. Is the estimate of burden accurate? 3. Is there a way to enhance the quality, utility, and clarity of the information to be collected? 4. How can the burden of the information collection be minimized, including the use of automated collection techniques? A copy of the OMB clearance package may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and rule are available at the NRC Worldwide Web site: *http://www.nrc.gov/public-involve/doc-comment/omb/index.html* for 60 days after the signature date of this notice. Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by May 12, 2008 to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by Internet electronic mail to *INFOCOLLECTS@NRC.GOV* and to the Desk Officer, Nathan Frey, Office of Information and Regulatory Affairs, NEOB-10202 (3150-0001, 3150-0014, 3150-0202), Office of Management and Budget, Washington, DC 20503. Comments on the proposed information collections may also be submitted via the Federal eRulemaking Portal *http://www.regulations.gov,* docket # NRC-2008-0200. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. You may also comment by telephone at
(202)395-7345. X. Public Protection Notification The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number. XI. Regulatory Analysis The Commission has prepared a draft regulatory analysis on this proposed regulation. The analysis examines the costs and benefits of the alternatives considered by the Commission. The Regulatory Analysis considers costs to licensees that would result from the proposed amendments. The largest burden would likely fall on the manufacturers and distributors of nationally tracked sources because they will have the most transactions to report. The NRC believes that by allowing batch loading of information using a computer readable format, the burden on the high transaction licensees will be lessened. The Regulatory Analysis also considers costs to the NRC and to Agreement States, including initial costs of entering licensees into the NSTS, annual costs of maintenance and operation of the expanded NSTS, costs of inspections, and costs to Agreement States of issuing legally binding requirements. The Commission requests public comment on the draft regulatory analysis. Comments may be submitted to the NRC as indicated under the ADDRESSES heading. The analysis is available for inspection in the NRC Public Document Room (Adams Accession Number ML080910314), 11555 Rockville Pike, Rockville, MD 20852. Single copies of the draft regulatory analysis are available from Michael Williamson, telephone
(301)415-6284, e-mail *mkw1@nrc.gov,* of the Office of Federal and State Materials and Environmental Management Programs. XII. Regulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the Commission certifies that this rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. The proposed rule would affect about 700 NRC licensees and an additional 2800 Agreement State licensees possessing Category 3 and 1/10 of Category 3 sources. Affected licensees include laboratories, reactors, universities, colleges, medical clinics, hospitals, irradiators, and radiographers, some of which may qualify as small business entities as defined by 10 CFR 2.810. However, the proposed rule is not expected to have a significant economic impact on these licensees. The total time required by a licensee to complete each National Source Tracking Transaction report depends on the number of sources involved in the transaction and the method of reporting. No research or compilation is necessary as all information is transcribed from bills of lading, in-house records kept for other purposes, sales agreements, etc. Each licensee would also spend time on an annual reconciliation of their inventory with the NSTS. As discussed in Section XI of this preamble, the draft regulatory analysis conducted for this action estimates the one-time and annual costs of the proposed amendments for affected licensees based on estimated burdens for actions to comply with the proposed amendments. The NRC believes that the selected alternative reflected in the proposed amendment is the least burdensome, most flexible alternative that would accomplish the NRC's regulatory objective. Because of the widely differing conditions under which impacted licensees operate, the NRC is specifically requesting public comment from licensees concerning the impact of the proposed regulation. The NRC particularly desires comment from licensees who qualify as small businesses, specifically as to how the proposed regulation will affect them and how the regulation may be tiered or otherwise modified to impose less stringent requirements on small entities while still adequately protecting the public health and safety. Comments on how the regulation could be modified to take into account the differing needs of small entities should specifically discuss:
(1)The size of the business and how the proposed regulation would result in a significant economic burden upon it as compared to a larger organization in the same business community;
(2)How the proposed regulation could be further modified to take into account the business's differing needs or capabilities;
(3)The benefits that would accrue, or the detriments that would be avoided, if the proposed regulation was modified as suggested by the commenter;
(4)How the proposed regulation, as modified, would more closely equalize the impact of NRC regulations as opposed to providing special advantages to any individuals or groups; and
(5)How the proposed regulation, as modified, would still adequately protect the public health and safety. Comments should be submitted as indicated under the ADDRESSES heading. XIII. Backfit Analysis The NRC has determined that the backfit rule (§§ 50.109, 70.76, 72.62, or 76.76) does not apply to this proposed rule because this amendment would not involve any provisions that would impose backfits as defined in the backfit rule. Therefore, a backfit analysis is not required. List of Subjects 10 CFR Part 20 Byproduct material, Criminal penalties, Licensed material, Nuclear materials, Nuclear power plants and reactors, Occupational safety and health, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Source material, Special nuclear material, Waste treatment and disposal. 10 CFR Part 32 Byproduct material, Criminal penalties, Labeling, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR Parts 20 and 32. PART 20—STANDARDS FOR PROTECTION AGAINST RADIATION 1. The authority citation for Part 20 continues to read as follows: Authority: Secs. 53, 63, 65, 81, 103, 104, 161, 182, 186, 68 Stat. 930, 933, 935, 936, 937, 948, 953, 955, as amended, sec. 1701, 106 Stat. 2951, 2952, 2953 (42 U.S.C. 2073, 2093, 2095, 2111, 2133, 2134, 2201, 2232, 2236, 2297f), secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Sec. 651(e), Pub. L. 109-58, 119 Stat. 806—810 (42 U.S.C. 2014, 2021, 2021b, 2111). 2. In § 20.1003, the definition *nationally tracked source* is revised to read as follows: § 20.1003 Definitions. *Nationally tracked source* is a sealed source containing a quantity equal to or greater than Category 1, Category 2, Category 3, or 1/10 of Category 3 levels of any radioactive material listed in Appendix E of this Part. In this context a sealed source is defined as radioactive material that is sealed in a capsule or closely bonded, in a solid form and which is not exempt from regulatory control. It does not mean material encapsulated solely for disposal, or nuclear material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet. Category 1 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 1 threshold. Category 2 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 2 threshold but less than the Category 1 threshold. Category 3 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 3 threshold but less than the Category 2 threshold. The 1/10 of Category 3 nationally tracked sources are those containing radioactive material at a quantity greater than or equal to 1/10 of Category 3 threshold but less than the Category 3 threshold. 3. In § 20.2207, paragraph
(h)is revised to read as follows: § 20.2207 Reports of transactions involving nationally tracked sources.
(h)Each licensee that possesses Category 1 nationally tracked sources shall report its initial inventory of Category 1 nationally tracked sources to the National Source Tracking System by January 31, 2009. Each licensee that possesses Category 2 nationally tracked sources shall report its initial inventory of Category 2 nationally tracked sources to the National Source Tracking System by January 31, 2009. Each licensee that possesses Category 3 or 1/10 of Category 3 nationally tracked sources shall report its initial inventory of Category 3 or 1/10 of Category 3 nationally tracked sources to the National Source Tracking System by July 31, 2009. The information may be submitted by using any of the methods identified by paragraphs (f)(1) through (f)(4) of this section. The initial inventory report must include the following information:
(1)The name, address, and license number of the reporting licensee;
(2)The name of the individual preparing the report;
(3)The manufacturer, model, and serial number of each nationally tracked source or, if not available, other information to uniquely identify the source;
(4)The radioactive material in the sealed source;
(5)The initial or current source strength in becquerels (curies); and
(6)The date for which the source strength is reported. 4. In Part 20, Appendix E is revised to read as follows: Appendix E to Part 20—Nationally Tracked Source Thresholds The Terabecquerel
(TBq)values are the regulatory standard as promulgated by the International Atomic Energy Agency for Categories 1-3 of its *Code of Conduct on the Safety and Security of Radioactive Sources* , published in January 2004. The curie
(Ci)values specified are obtained by converting the TBq value. The curie values are provided for practical usefulness only. Radioactive material Category 1
(TBq)Category 1
(Ci)Category 2
(TBq)Category 2
(Ci)Category 3
(TBq)Category 3
(Ci)1/10 of Category 3
(TBq)1/10 of Category 3
(Ci)Actinium-227 20 540 0.2 5.4 .02 0.54 0.002 0.054 Americium-241 60 1,600 0.6 16 0.06 1.6 0.006 0.16 Americium-241/Be 60 1,600 0.6 16 0.06 1.6 0.006 0.16 Californium-252 20 540 0.2 5.4 0.02 0.54 0.002 0.054 Cobalt-60 30 810 0.3 8.1 0.03 0.81 0.003 0.081 Curium-244 50 1,400 0.5 14 0.05 1.4 0.005 0.14 Cesium-137 100 2,700 1 27 0.01 2.7 0.001 0.27 Gadolinium-153 1,000 27,000 10 270 1 27 0.1 2.7 Iridium-192 80 2,200 0.8 22 0.08 2.2 0.008 0.22 Plutonium-238 60 1,600 0.6 16 0.06 1.6 0.006 0.16 Plutonium-239/Be 60 1,600 0.6 16 0.06 1.6 0.006 0.16 Polonium-210 60 1,600 0.6 16 0.06 1.6 0.006 0.16 Promethium-147 40,000 1,100,000 400 11,000 40 1100 4 110 Radium-226 40 1,100 0.4 11 0.04 1.1 0.004 0.11 Selenium-75 200 5,400 2 54 0.02 5.4 0.002 0.54 Strontium-90 1,000 27,000 10 270 1 27 0.10 2.7 Thorium-228 20 540 0.2 5.4 0.02 0.54 0.002 0.054 Thorium-229 20 540 0.2 5.4 0.02 0.54 0.002 0.054 Thulium-170 20,000 540,000 200 5,400 20 540 2 54 Ytterbium-169 300 8,100 3 81 0.03 8.1 0.003 0.81 PART 32—SPECIFIC DOMESTIC LICENSES TO MANUFACTURE OR TRANSFER CERTAIN ITEMS CONTAINING BYPRODUCT MATERIAL 5. The authority citation for Part 32 continues to read as follows: Authority: Secs. 81, 161, 182, 183, 68 Stat. 935, 948, 953, 954, as amended (42 U.S.C. 2111, 2201, 2232, 2233); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111). 6. In § 32.2, the definition *nationally tracked source* is revised to read as follows: § 32.2 Definitions. *Nationally tracked source* is a sealed source containing a quantity equal to or greater than Category 1, 2, 3, or 1/10 of Category 3 levels of any radioactive material listed in Appendix E to 10 CFR Part 20. In this context a sealed source is defined as radioactive material that is permanently sealed in a capsule or closely bonded, in a solid form and which is not exempt from regulatory control. It does not mean material encapsulated solely for disposal, or nuclear material contained in any fuel assembly, subassembly, fuel rod, or fuel pellet. Category 1 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 1 threshold. Category 2 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 2 threshold but less than the Category 1 threshold. Category 3 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the Category 3 threshold but less than the Category 2 threshold. Category 1/10 of Category 3 nationally tracked sources are those containing radioactive material at a quantity equal to or greater than the 1/10 of Category 3 threshold but less than the Category 3 threshold. Dated at Rockville, Maryland, this 7th day of April 2008. For the U.S. Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E8-7756 Filed 4-10-08; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF ENERGY 10 CFR Part 820 RIN 1990-AA30 Procedural Rules for DOE Nuclear Activities AGENCY: Department of Energy. ACTION: Notice of proposed rulemaking. SUMMARY: The Department of Energy
(DOE)is proposing to amend its Procedural Rules for DOE Nuclear Activities to be consistent with section 610 of the Energy Policy Act of 2005, Public Law 109-58 (EPAct 2005), signed into law by President Bush on August 8, 2005. Section 610 amends provisions in section 234A. of the Atomic Energy Act of 1954
(AEA)concerning civil penalties with respect to certain DOE contractors, subcontractors and suppliers. This proposed rule would revise DOE's regulations to be consistent with the changes made by section 610. DATES: Public comments on this proposed rule will be accepted until May 27, 2008. ADDRESSES: You may submit comments, identified by RIN 1990-AA30, by any of the following methods: *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. *E-mail: Martha.Thompson@hq.doe.gov.* *Mail:* Martha Thompson, Deputy Director, (HS-40), Office of Enforcement, Office of Health, Safety and Security, U.S. Department of Energy, 20300 Century Blvd., Germantown, Maryland 20874. You may obtain copies of comments received by DOE from the Office of Health, Safety and Security Web site: *http://www.hss.energy.gov/Enforce/* or by contacting Martha Thompson of the Office of Enforcement. FOR FURTHER INFORMATION CONTACT: Sophia Angelini, Attorney-Advisor (GC-52), Office of the General Counsel, U.S. Department of Energy, 1000 Independence Avenue, SW., Washington, DC 20585,
(202)586-6975; or Martha Thompson, Deputy Director (HS-40), Office of Enforcement, Office of Health, Safety and Security, U.S. Department of Energy, 20300 Century Blvd., Germantown, Maryland 20874,
(301)903-5018 or by e-mail, *martha.thompson@hq.doe.gov.* SUPPLEMENTARY INFORMATION: I. Background II. Discussion of the Proposed Rule III. Public Comment Procedures IV. Regulatory Review I. Background In 1988, Congress amended the Atomic Energy Act of 1954
(AEA)(42 U.S.C. 2011 *et seq.* ) by adding section 234A. (commonly referred to as the Price-Anderson Act) (42 U.S.C. 2282a.) that establishes a system of civil penalties for DOE contractors, subcontractors, and suppliers that are covered by an indemnification agreement under section 170d. of the AEA (42 U.S.C. 2210d.). The civil penalties cover DOE contractors, subcontractors and suppliers that violate, or whose employees violate, any applicable rule, regulation or order related to nuclear safety issued by the Secretary of Energy. Section 234A. specifically exempted seven institutions (and any subcontractors or suppliers thereto) from such civil penalties and directed the Secretary of Energy to determine by rule whether nonprofit educational institutions should receive automatic remission of any penalty. On August 17, 1993, DOE promulgated “Procedural Rules for DOE Nuclear Activities,” codified at 10 CFR Part 820 (Part 820), to provide for the enforcement under section 234A. of the AEA of DOE nuclear safety requirements. Under Part 820, the exemption provision for the seven institutions is set forth in section 820.20(c); the provision for an automatic remission of civil penalties for “nonprofit educational institutions” is in section 820.20(d). DOE is proposing to amend subpart B of Part 820 to incorporate the changes required by section 610 of EPAct 2005. Section 610, entitled “Civil Penalties,” amended section 234A. of the AEA by:
(1)Repealing the automatic remission of civil penalties by striking the last sentence of subsection 234A.b.(2) which reads: “In implementing this section, the Secretary shall determine by rule whether nonprofit educational institutions should receive automatic remission of any penalty under this section.”;
(2)Deleting exemptions provided to seven institutions (including their subcontractors and suppliers) for activities at certain facilities by deleting existing subsection 234A.d. and substituting a new subsection 234A.d.(1) in which the total amount of civil penalties for violations under subsection 234A.a. of the AEA by any not-for-profit contractor, subcontractor, or supplier may not exceed the total amount of fees paid within any 1-year period (as determined by the Secretary) under the contract; and
(3)Adding a new section 234A.d.(2) that defines the term “not-for-profit” to mean that “no part of the net earnings of the contractor, subcontractor, or supplier inures to the benefit of any natural person or for-profit artificial person.” Finally, section 610 of EPAct 2005 included an effective date provision at subsection 234A.c., specifying that the amendments as to civil penalties under section 234A. shall not apply to any violation of the AEA occurring under a contract entered into before the date of enactment of EPAct 2005, which was August 8, 2005. II. Discussion of the Proposed Rule Today's proposed rule would amend section 820.20 as follows:
(1)It would revise paragraph
(c)to limit the exemption for seven institutions (and their subcontractors and suppliers) from the civil penalty provisions of Part 820 to violations occurring under contracts entered into before the date of enactment of EPAct 2005;
(2)It would revise paragraph
(d)to limit the automatic remission of civil penalties for nonprofit educational institutions under Part 820 to violations occurring under contracts entered into before the date of enactment of EPAct 2005;
(3)It would add a new paragraph
(e)to provide that, with respect to any violation occurring under a contract entered into on or after the date of enactment of EPAct 2005, the total amount of civil penalties paid under Part 820 by any not-for-profit contractor, subcontractor, or supplier may not exceed the total amount of fees paid within the fiscal year in which the violation occurs; and
(4)It would add a new paragraph
(f)to provide that a not-for-profit contractor, subcontractor, or supplier is one for which no part of the net earnings of the contractor, subcontractor, or supplier inures to the benefit of any natural person or for-profit artificial person. To summarize, for contracts entered into with the DOE on or after August 8, 2005, all contractors, subcontractors and suppliers would be subject to civil penalties for violations of nuclear safety regulations; however, not-for-profit contractors, subcontractors and suppliers could not be assessed any such penalties greater than the total amount of fees paid to them within the fiscal year in which the violation occurs. For contracts entered into with DOE prior to August 8, 2005, the provisions of section 820.20 pertaining to the exemption from civil penalties for the seven institutions (including their subcontractors and suppliers) and the automatic remission of any civil penalties for nonprofit educational institutions would remain unchanged. DOE's proposed amendments to section 820.20 are intended to effectuate section 610 of EPAct 2005. The following aspects of today's proposal are discussed to facilitate a better understanding of the proposed amendments and their implementation. 1. When a Contract Is “Entered Into” for Purposes of Section 820.20 In many cases, it is a simple matter to determine when a contract is entered into: this occurs when the contractor and the DOE contracting officer have both signed and executed the contract. Further, for purposes of section 820.20, DOE proposes to consider that contractual arrangements between the DOE contractor and its subcontractors and suppliers relate back to the date on which the contract was entered into between the prime contractor and DOE. In some cases, however, a contract may include an option for renewal of the contract beyond the base period or DOE may decide to extend the contract, raising a question as to when the contract is “entered into.” In a case where a contract was competed with an option to renew, DOE proposes that, if it exercises its option, the contract retains the same “entered into” date as the initially competed contract for purposes of section 820.20. In a case where DOE decides to extend a contract pursuant to the applicable provisions of the Federal Acquisition Regulation and the Department of Energy Acquisition Regulation (such as a management and operating contract that does not contain a competitively awarded option clause), DOE proposes to consider the contract “entered into” as of the date of execution of the extended contract, not the initial contract, for purposes of section 820.20. Applying this definition of when a contract is “entered into,” the only institution of the seven institutions that is still exempted from civil penalties under section 234A. of the AEA is the University of California for operation of the Lawrence Berkeley National Laboratory. The University of California was awarded the contract to continue to operate the Lawrence Berkeley National Laboratory following a competition. The contract was entered into and performance of work under this new contract began on June 1, 2005. 2. What Subcontractors and Suppliers are Entitled to the Exemption From Civil Penalties Prior to the passage of EPAct 2005, each of seven institutions “and any subcontractors or suppliers thereto,” even if they were for-profit subcontractors or suppliers, were exempted from civil penalties under section 234A.d. of the AEA. In contrast, amended section 234A.d.(1) provides a cap on civil penalties only “in the case of any not-for-profit contractor, subcontractor, or supplier.” In sum, under prior law any subcontractor or supplier entity associated with one of the seven institutions under contract to the Department was entitled to the exemption from civil penalties to the same extent as the institution for which it was a subcontractor or supplier. Under current law, each contractor, subcontractor, or supplier must itself qualify as a “not-for-profit,” as defined at section 234A.d.(2), in order to qualify for the limitation on civil penalties; the exemption from civil penalties continues to apply in the limited case of any subcontractor or supplier to one of the seven institutions (prime contractor) that currently is under a contract with DOE that was entered into before August 8, 2005. DOE considers that contractual arrangements between a DOE contractor and its subcontractors and suppliers relate back to the date on which the contract was “entered into” between the prime contractor and DOE. To further clarify, there are at present three potential categories of subcontractors and suppliers with entitlement, or lack of entitlement, to the exemption from civil penalties under the new statutory scheme as described herein. First, there are subcontractors and suppliers that retain the entitlement to the exemption from civil penalties for violations occurring under contracts with DOE entered into prior to August 8, 2005, because they were under subcontract with one of the seven institutions at section 234A.d.(1) through
(7)of the AEA before August 8, 2005, and they remain under those same subcontracts. As noted above, there is only one of the seven institutions that has a contract with DOE that was entered into prior to August 8, 2005—the University of California for the operation of the Lawrence Berkeley National Laboratory. Accordingly, only subcontractors and suppliers of the University of California performing activities associated with the Lawrence Berkeley National Laboratory, even if they are for-profit entities, retain the entitlement to exemption from civil penalties while under this prime contract. Second, there are cases where subcontractors and suppliers entered into their subcontracts with one of the seven institutions before August 8, 2005, and, although one of the seven institutions is no longer the prime contractor, the subcontractor or supplier is continuing the same work under the same subcontract. In this case, DOE does not consider the subcontractor or supplier to be entitled to the exemption from civil penalties, as they are no longer under contract with one of the seven institutions named at section 234A.d.(1) through
(7)of the AEA. The third category of subcontractors and suppliers are those that entered into subcontracts with a prime contractor to DOE on or after August 8, 2005. Those subcontractors and suppliers are not entitled to the exemption for civil penalties. They may be entitled to the cap or limitation on civil penalties under the new law if, and only if, they individually qualify as a “not-for-profit” institution as defined at section 234A.d.(2). 3. How DOE Would Determine the “1-Year Period” To Calculate the Limitation on Civil Penalties for Not-For-Profit Entities Section 610 of EPAct 2005 provides that, for violations of nuclear safety requirements occurring under a contract entered into on or after August 8, 2005, any civil penalty assessed against a not-for-profit contractor, subcontractor, or supplier must be capped at the total amount of fees paid within any 1-year period (as determined by the Secretary of Energy) under the contract under which the violation occurs. There are several ways in which DOE could determine what constitutes the relevant “1-year period.” This could be interpreted as the fees paid in the 1-year period from the date of contract award, or the fees paid during the calendar year, or the fees paid during the fiscal year. DOE proposes, consistent with other DOE regulations (e.g., 10 CFR 851.5 (d)), to interpret “the total amount of fees paid within any 1-year period” as the total amount of fees paid by DOE to the “not-for-profit” entity in the U.S. Government fiscal year (i.e., October 1 through September 30) during which the violation(s) occurs for which a civil penalty is assessed. 4. How DOE Would Determine the “Total Amount of Fees Paid” To Calculate the Limitation on Civil Penalties for Not-For-Profit Entities There are different ways in which DOE could determine what constitutes the “total amount of fees paid” to a not-for-profit contractor within the 1-year period discussed in section 3. For example, the total fees paid under section 820.20(e) could be calculated exclusive of any civil penalties, reduction in fees, or subsequent adjustments to fee that might be imposed on the contractor under this or other regulations, such as those involving violations of DOE regulations relating to classified information security, codified at 10 CFR Part 824, or worker safety and health, codified at 10 CFR Part 851. Alternatively, the total fees paid could be calculated inclusive of any civil penalties, reduction in fees, or subsequent adjustments to fee, that might be imposed on the contractor under this or other regulations. In other words, DOE must determine whether the “total amount of fees paid” should reflect the fee the contractor earns in the 1-year period based on its performance of the contract work scope with or without any penalties, reductions in fee, or subsequent adjustments to fee. Current DOE standard contract clauses that address fee reductions for non-compliance with applicable regulations (e.g., 48 CFR 952.204-76, “Conditional payment of fee or profit—safeguarding restricted data and other classified information” and 48 CFR 952.223-77, “Conditional payment of fee or profit—protection of worker safety and health”) provide that “[u]nder this clause, the total amount of fee or profit that is subject to reduction made in combination with any reduction made under any other clause in the contract that provides for a reduction to the fee or profit, shall not exceed the amount of fee or profit that is earned by the contractor in the period established pursuant to paragraph (b)(2)(I) of this clause [the paragraph dealing with performance periods].” In effect, reductions assessed against a contractor's fee are treated cumulatively so that the total fee reductions taken in a performance period do not exceed the amount of fee which the contractor has earned during that period. This provision ensures that the not-for-profit contractor never faces a situation in which a fee reduction could exceed the actual amount of fee that it ultimately receives in a performance period. Although civil penalties are not assessed under a contract provision, DOE believes that they are conceptually similar to fee reductions and that it is appropriate to treat them in the same manner. A cumulative calculation is consistent with the intent of section 610 of EPAct 2005 to limit civil penalties to a not-for-profit entity to the amount it earned under the contract for the performance period, such that the assets of the not-for-profit are not affected or depleted beyond the fee that it earns under the contract. Consistent with this Congressional intent and other DOE regulations, the Department proposes to calculate the “total amount of fees paid” to a not-for-profit entity based on a cumulative calculation that takes into account any reductions in fee, civil penalties (including civil penalties under this regulation), or subsequent adjustment to fees paid. In the case of any subsequent adjustments to fee (i.e., any adjustments to fee that are taken after the fee has been paid), DOE would reassess the penalty amount consistent with the subsequent change in the fee paid. This reassessment would be necessary to ensure that the not-for-profit entity does not pay more in civil penalties than the fee paid in a 1-year performance period. 5. Repeal of the Automatic Remission of Civil Penalties Section 610 of EPAct 2005 includes a provision, entitled “Repeal of Automatic Remission,” that eliminates from section 234A.b.(2) of the AEA the sentence that directed the Secretary to determine by rule whether nonprofit educational institutions should receive automatic remission of any civil monetary penalty for violations of DOE nuclear safety regulations. DOE interprets this amendment as repealing DOE's authority to grant an automatic remission of any civil penalty payments for “nonprofit educational institutions” considered “nonprofit” under the United States Internal Revenue Code. In addition to the title of section 610(a), (“Repeal of Automatic Remission”), the amendments to section 234A. reveal a clear intent to repeal DOE's authority to grant automatic remission of civil penalties under this section. Congress removed the exemption for the seven institutions and, thus, subjected all contractors (including their subcontractors and suppliers) to civil penalties, and capped the total amount of civil penalties paid by any “not-for-profit” contractor at the total amount of fees paid within a 1-year period. Because automatic remission of civil penalties would be inconsistent with this amended statutory scheme, DOE interprets the amendment striking the last sentence in section 234A.b.(2) of the AEA to be a repeal of DOE's authority to provide automatic remission of civil penalties under the statute. Accordingly, DOE proposes to revise section 820.20 to eliminate the provision for automatic remission of civil penalties for contracts entered into on or after August 8, 2005. 6. A “Not-For-Profit” Contractor Under the Section 610 of EPAct 2005 is not the Same as a “Nonprofit Educational Institution” Section 610 of EPAct 2005 amends section 234A.d. of the AEA to define “not-for-profit” to mean that no part of the net earnings of the contractor, subcontractor, or supplier inures to the benefit of any natural person or for-profit artificial person. DOE proposes to adopt that definition in a new paragraph
(f)of the amended section 820.20 for violations occurring under contracts entered into on or after August 8, 2005. DOE notes that the definition of a “not-for-profit” contractor in EPAct 2005 is different from the definition of “nonprofit educational institutions” in the current section 820.20(d) (i.e., any educational institution that is considered nonprofit under the United States Internal Revenue Code). Consequently, under today's proposed rule a contractor, subcontractor and supplier previously entitled to an automatic remission of civil penalties if qualified as a “nonprofit educational institution” under section 820.20(d) may or may not qualify as a “not-for-profit” contractor, subcontractor or supplier for purposes of the limitation on civil penalties provision under the proposed section 820.20(f). III. Public Comment Procedures Interested persons are invited to participate in this proceeding by submitting data, views, or arguments. Written comments should be submitted to the address, and in the form, indicated in the ADDRESSES section of this notice of proposed rulemaking. To help DOE review the comments, interested persons are asked to refer to specific proposed rule provisions, if possible. If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy, as well as one copy from which the information claimed to be exempt by law from public disclosure has been deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information regulations at 10 CFR 1004.11. DOE has determined that this rulemaking does not raise the kinds of substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would require DOE to provide an opportunity for oral presentation of views, data and arguments. Therefore, DOE has not scheduled a public hearing on these proposed amendments to Part 820. IV. Regulatory Review A. Executive Order 12866 This notice of proposed rulemaking has been determined to not be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this notice of proposed rulemaking was not subject to review by the Office of Information and Regulatory Affairs of the Office of Management and Budget (OMB). B. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of the General Counsel's Web site: *http://www.gc.doe.gov.* DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed rule would amend DOE's Procedural Rules for DOE Nuclear Activities to incorporate statutory changes made by EPAct 2005. The proposed amendments to section 820.20 are changes required to conform DOE's regulations to the new statutory provisions. The changes affect the seven institutions named in AEA section 234A.d. prior to amendment, which are not small entities, and their subcontractors and suppliers, which may or may not be small entities. While the amended Part 820 would expose small entities that are subcontractors and suppliers to potential liability for civil penalties, DOE does not expect that a substantial number of these entities will violate a DOE nuclear safety requirement, a DOE Compliance Order, or a DOE nuclear safety program, plan, or other provision, resulting in the imposition of a civil penalty. On the basis of the foregoing, DOE certifies that today's proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b). C. Paperwork Reduction Act This proposed rule would not impose new information or record keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). D. National Environmental Policy Act DOE has determined that this proposed rule is covered under the Categorical Exclusion in DOE's National Environmental Policy Act regulations at paragraph A.5 of Appendix A to Subpart D, 10 CFR Part 1021, which applies to rulemaking that interprets or amends an existing rule or regulation without changing the environmental effect of the rule or regulation that is being amended. The proposed rule would amend DOE's regulations on civil penalties with respect to certain DOE contractors, subcontractors and suppliers in order to incorporate changes made to the AEA by section 610 of EPAct 2005. These proposed amendments are procedural and would not change the environmental effect of section 820.20. Accordingly, neither an environmental assessment nor an environmental impact statement is required. E. Unfunded Mandates Reform Act of 1995 The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Subsection 101(5) of title I of that law defines a Federal intergovernmental mandate to include any regulation that would impose upon State, local, or tribal governments an enforceable duty, except a condition of Federal assistance or a duty arising from participating in a voluntary federal program. Section 201 of title II of that law requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and tribal governments, in the aggregate, or to the private sector, “ *other than to the extent that such regulations incorporate requirements specifically set forth in law* ” (2 U.S.C. 1531, emphasis added). Section 202 of that title requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year (2 U.S.C. 1532). Section 204 of that title requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and tribal governments (2 U.S.C. 1534). This proposed rule merely incorporates requirements specifically set forth in section 610 of EPAct 2005 and, thus, is exempt from the requirement to assess the effects of a Federal regulatory action on State, local, and tribal governments (2 U.S.C. 1531). F. Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. While this proposed rule would apply to individuals who may be members of a family, the rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. G. Executive Order 13132 Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132. H. Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements:
(1)Eliminate drafting errors and ambiguity;
(2)write regulations to minimize litigation; and
(3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect, if any;
(2)clearly specifies any effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct while promoting simplification and burden reduction;
(4)specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988. I. Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's notice under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. J. Executive Order 13211 Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs
(OIRA)a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that:
(1)Is a significant regulatory action under Executive Order 12866, or any successor order; and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy, or
(3)is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action has been determined to not be a significant regulatory action, and it would not have an adverse effect on the supply, distribution, or use of energy. Thus, today's action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Approval of the Office of the Secretary The Secretary of Energy has approved the publication of this proposed rule. List of Subjects in 10 CFR Part 820 Administrative practice and procedure, Government contracts, Penalties, Radiation protection. Glenn S. Podonsky, Chief Health, Safety and Security Officer, Office of Health, Safety and Security. For the reasons stated in the preamble, DOE hereby proposes to amend Chapter III of title 10 of the Code of Federal Regulations as set forth below: PART 820—PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES 1. The authority citation for part 820 continues to read as follows: Authority: 42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note; 50 U.S.C. 2410. 2. Section 820.20 is amended by revising paragraphs
(c)and
(d)and by adding new paragraphs
(e)and
(f)to read as follows: § 820.20 Purpose and scope.
(c)*Exemptions.* With respect to a violation occurring under a contract entered into before August 8, 2005, the following contractors, and subcontractors and suppliers to that prime contract only, are exempt from the assessment of civil penalties under this subpart with respect to the activities specified below:
(1)The University of Chicago for activities associated with Argonne National Laboratory;
(2)The University of California for activities associated with Los Alamos National Laboratory, Lawrence Livermore National Laboratory, and Lawrence Berkeley National Laboratory;
(3)American Telephone and Telegraph Company and its subsidiaries for activities associated with Sandia National Laboratories;
(4)University Research Association, Inc. for activities associated with FERMI National Laboratory;
(5)Princeton University for activities associated with Princeton Plasma Physics Laboratory;
(6)The Associated Universities, Inc. for activities associated with the Brookhaven National Laboratory; and
(7)Battelle Memorial Institute for activities associated with Pacific Northwest Laboratory.
(d)*Nonprofit educational institutions.* With respect to a violation occurring under a contract entered into before August 8, 2005, any educational institution that is considered nonprofit under the United States Internal Revenue Code shall receive automatic remission of any civil penalty assessed under this part.
(e)*Limitation for not-for-profits.* With respect to any violation occurring under a contract entered into on or after August 8, 2005, in the case of any not-for-profit contractor, subcontractor, or supplier, the total amount of civil penalties paid under this part may not exceed the total amount of fees paid by DOE to that entity within the U.S. Government fiscal year in which the violation occurs.
(f)*Not-for-profit.* For purposes of this part, a “not-for-profit” contractor, subcontractor, or supplier is one for which no part of the net earnings of the contractor, subcontractor, or supplier inures to the benefit of any natural person or for-profit artificial person. [FR Doc. E8-7763 Filed 4-10-08; 8:45 am] BILLING CODE 6450-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0426; Directorate Identifier 2008-CE-016-AD] RIN 2120-AA64 Airworthiness Directives; MORAVAN a.s. Model Z-143L Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: Vortex inserts are used inside the heat exchanger of the carburettor heating system. Up to serial number (s/n) 0044 inclusive those inserts have been produced from aluminium alloy which has been found to be susceptible of cracks. As a consequence, if left uncorrected some loose parts could migrate in the induction system, reduce the air flow through the carburettor's venturi and lead to a loss of engine power. From s/n 0045 onwards vortex inserts have been produced from stainless steel. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 12, 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. 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: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. 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-2008-0426; Directorate Identifier 2008-CE-016-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No. 2008-0038, dated February 27, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: Vortex inserts are used inside the heat exchanger of the carburettor heating system. Up to serial number (s/n) 0044 inclusive those inserts have been produced from aluminium alloy which has been found to be susceptible of cracks. As a consequence, if left uncorrected some loose parts could migrate in the induction system, reduce the air flow through the carburettor's venturi and lead to a loss of engine power. From s/n 0045 onwards vortex inserts have been produced from stainless steel. To address this unsafe condition, this Airworthiness Directive
(AD)mandates initial inspections of the heat exchanger vortex inserts and replacement of the aluminium inserts by stainless steel ones if any damage is found; and recurrent inspections to be done as incorporated in the Revision of Airplane Maintenance Manual. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Moravan Aviation s.r.o. has issued Mandatory Service Bulletin Z143L/31a, dated June 8, 2007, and new pages 01-35, 05-28, 75-7, 75-7A, 75-7B, and 75-8 of ZLIN Z 143 L Airplane Maintenance Manual, Revision No. 9, dated: June 8, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance We estimate that this proposed AD will affect 7 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $100 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $4,060, or $580 per product. 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. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it 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: **Moravan a.s.** : Docket No. FAA-2008-0426; Directorate Identifier 2008-CE-016-AD. Comments Due Date
(a)We must receive comments by May 12, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Model Z-143L airplanes, all serial numbers (SNs), certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 75: Engine Air. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: Vortex inserts are used inside the heat exchanger of the carburettor heating system. Up to serial number (s/n) 0044 inclusive those inserts have been produced from aluminium alloy which has been found to be susceptible of cracks. As a consequence, if left uncorrected some loose parts could migrate in the induction system, reduce the air flow through the carburettor's venturi and lead to a loss of engine power. From s/n 0045 onwards vortex inserts have been produced from stainless steel. To address this unsafe condition, this Airworthiness Directive
(AD)mandates initial inspections of the heat exchanger vortex inserts and replacement of the aluminium inserts by stainless steel ones if any damage is found; and recurrent inspections to be done as incorporated in the Revision of Airplane Maintenance Manual. Actions and Compliance
(f)Unless already done, do the following actions:
(1)*For all serial numbers
(SNs)through SN 0044:*
(i)Before further flight after the effective date of this AD, inspect the vortex inserts inside the carburetor heating system heat exchanger for cracks and/or loose or missing rivets following paragraph 8 of Moravan Aviation s.r.o. Mandatory Service Bulletin Z143L/31a, dated June 8, 2007.
(ii)Before further flight, if as a result of the inspection required by paragraph (f)(1)(i) of this AD, you find any cracks and/or loose or missing rivets for the vortex inserts, replace all vortex inserts with new vortex inserts made from stainless steel following paragraph 8 of Moravan Aviation s.r.o. Mandatory Service Bulletin Z143L/31a, dated June 8, 2007.
(2)*For SN 0045 and greater:* Within 110 hours time-in-service
(TIS)after the effective date of this AD or within 60 days after the effective date of this AD, whichever occurs first, inspect the vortex inserts inside the carburetor heating system heat exchanger following new instructions introduced by new pages 05-28, 75-7, 75-7A, and 75-8 of ZLIN Z 143 L Airplane Maintenance Manual, Revision No. 9, dated: June 8, 2007.
(3)*For all SNs:* Within 60 days after the effective date of this AD, incorporate new pages 01-11, 01-12, 01-24, 01-35, 05-28, 75-7, 75-7A, 75-7B, and 75-8 of ZLIN Z 143 L Airplane Maintenance Manual, Revision No. 9, dated: June 8, 2007, into your maintenance program. These pages include compliance times and procedures for repetitive inspections. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: The MCAI requires compliance for the inspection of SN 0045 and greater at the next shop visit or within 110 hours TIS after the effective date of this AD. To assure the AD is clear for U.S. operators and all airplanes have the inspection done in a timely manner, this AD requires compliance for the inspection of SN 0045 and greater within 110 hours TIS after the effective date of this AD or within 60 days after the effective date of this AD, whichever occurs first. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Doug Rudolph, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4059; fax:
(816)329-4090. 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.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, 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 and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency
(EASA)AD No. 2008-0038, dated February 27, 2008; Moravan Aviation s.r.o. Mandatory Service Bulletin Z143L/31a, dated June 8, 2007; and new pages 01-11, 01-12, 01-24, 01-35, 05-28, 75-7, 75-7A, 75-7B, and 75-8 of ZLIN Z 143 L Airplane Maintenance Manual, Revision No. 9, dated: June 8, 2007, for related information. Issued in Kansas City, Missouri, on April 3, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-7654 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0409; Directorate Identifier 2007-NM-265-AD] RIN 2120-AA64 Airworthiness Directives; ATR Model ATR42 Airplanes and Model ATR72-101, -102, -201, -202, -211, and -212 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found on in-service aircraft that some aileron tab bellcrank assemblies were not in accordance with the definition drawings. The main item concerned is the retainer Part Number S2711004620000, which has been manufactured with a hole larger than it should be, or redrilled out of limits. The function of the retainer is to maintain the spacer in position in case of rupture or loss of the bolt which links the tab control rod to the bellcrank assembly. If the diameter of the retainer hole is out of limit, the retainer function is lost and fail-safe installation is no longer ensured. This condition, if not corrected, could lead to loss of the aileron tab bellcrank functionality, resulting in diminished control of the aircraft. * * * * * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 12, 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 W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office 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 Operations 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: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone
(425)227-1137; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: 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-2008-0409; Directorate Identifier 2007-NM-265-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 based on 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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2006-0376, dated December 19, 2006 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: It has been found on in-service aircraft that some aileron tab bellcrank assemblies were not in accordance with the definition drawings. The main item concerned is the retainer Part Number S2711004620000, which has been manufactured with a hole larger than it should be, or redrilled out of limits. The function of the retainer is to maintain the spacer in position in case of rupture or loss of the bolt which links the tab control rod to the bellcrank assembly. If the diameter of the retainer hole is out of limit, the retainer function is lost and fail-safe installation is no longer ensured. This condition, if not corrected, could lead to loss of the aileron tab bellcrank functionality, resulting in diminished control of the aircraft. For the reasons stated above, this Airworthiness Directive
(AD)requires the inspection [for proper hole diameter] of the aileron tab bellcrank retainer and, if necessary, the restoration of a proper installation [replacing any retainer which does not meet specified limits with a new retainer]. Corrective actions also include doing a general visual inspection
(GVI)for discrepancies (corrosion, deformation, scratches, or other defects) of the bolt and fasteners of the bellcrank assembly. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information ATR has issued Avions de Transport Regional Service Bulletins ATR42-27-0098 and ATR72-27-1060, both dated December 19, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 51 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $8,160, or $160 per product. 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. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it 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: **ATR-GIE Avions de Transport Régional (Formerly Aerospatiale)** : Docket No. FAA-2008-0409; Directorate Identifier 2007-NM-265-AD. Comments Due Date
(a)We must receive comments by May 12, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to ATR Model ATR42 airplanes, certificated in any category, all models, all serial numbers, except airplanes which have received ATR modification 04372 (aileron spring tab) in production or ATR Service Bulletin
(SB)ATR42-27-0081 or Service Bulletin ATR42-27-0092 in service; and ATR Model ATR72-101, -102, -201, -202, -211, and -212 airplanes, certificated in any category, all serial numbers, except airplanes which have received ATR modification 04373 (aileron spring tab) in production or ATR Service Bulletin ATR72-27-1045 in service. Subject
(d)*Air Transport Association
(ATA)of America Code 27:* Flight Controls. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: It has been found on in-service aircraft that some aileron tab bellcrank assemblies were not in accordance with the definition drawings. The main item concerned is the retainer Part Number S2711004620000, which has been manufactured with a hole larger than it should be, or redrilled out of limits. The function of the retainer is to maintain the spacer in position in case of rupture or loss of the bolt which links the tab control rod to the bellcrank assembly. If the diameter of the retainer hole is out of limit, the retainer function is lost and fail-safe installation is no longer ensured. This condition, if not corrected, could lead to loss of the aileron tab bellcrank functionality, resulting in diminished control of the aircraft. For the reasons stated above, this Airworthiness Directive
(AD)requires the inspection [for proper hole diameter] of the aileron tab bellcrank retainer and, if necessary, the restoration of a proper installation [replacing any retainer which does not meet specified limits with a new retainer]. Corrective actions also include doing a general visual inspection
(GVI)for discrepancies (corrosion, deformation, scratches, or other defects) of the bolt and fasteners of the bellcrank assembly. Actions and Compliance
(f)Within 90 days after the effective date of this AD, unless already done, do the following actions.
(1)Measure the hole diameter of the retainer of the aileron automatic tab bellcrank assembly, in accordance with the Accomplishment Instructions of Avions de Transport Regional Service Bulletin ATR42-27-0098 or ATR72-27-1060, both dated December 19, 2006, as applicable. If the hole diameter is within specified limits, no further actions are required by paragraph
(f)of this AD for that retainer.
(2)If any retainer exceeds the hole diameter limits specified in Avions de Transport Regional Service Bulletin ATR42-27-0098 or ATR72-27-1060, both dated December 19, 2006, as applicable, before further flight, replace the retainer with a retainer that meets hole diameter limits, in accordance with the Accomplishment Instructions of the applicable service bulletin. For any airplane for which a replacement retainer is not available, before further flight, do a GVI for discrepancies of the bolt and fasteners of the bellcrank assembly. If any discrepancies of the bolt and fasteners are found, replace the retainer before further flight, in accordance with the Accomplishment Instructions of the applicable service bulletin. If no discrepancies are found, replace the retainer no later than 2 flight days after the hole measurement, in accordance with the Accomplishment Instructions of the applicable service bulletin. Note 1: For the purposes of this AD, a GVI is: “A visual examination of an interior or exterior area, installation, or assembly to detect obvious damage, failure, or irregularity. This level of inspection is made from within touching distance unless otherwise specified. A mirror may be necessary to ensure visual access to all surfaces in the inspection area. This level of inspection is made under normally available lighting conditions such as daylight, hangar lighting, flashlight, or droplight and may require removal or opening of access panels or doors. Stands, ladders, or platforms may be required to gain proximity to the area being checked.” FAA AD Differences Note 2: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1137; fax
(425)227-1149. 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.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency
(EASA)Airworthiness Directive 2006-0376, dated December 19, 2006, and Avions de Transport Regional Service Bulletins ATR42-27-0098 and ATR72-27-1060, both dated December 19, 2006, for related information. Issued in Renton, Washington, on April 3, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-7658 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-27785; Directorate Identifier 2006-NM-267-AD] RIN 2120-AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 Airplanes and Model ERJ 190 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of comment period. SUMMARY: We are revising an earlier supplemental NPRM for the products listed above. This action revises the earlier supplemental NPRM by expanding the scope. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with [certain] EPIC software load[s] * * *. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected * * *. If another failure occurs on the second FGCS channel, the result may be a hardover command by the autopilot. An unexpected hardover command may cause a sudden roll, pitch, or yaw movement, which could result in reduced controllability of the airplane. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 6, 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 W12-40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office 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 Operations 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: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425)227-1175; fax
(425)227-1149. SUPPLEMENTARY INFORMATION: 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-2007-27785; Directorate Identifier 2006-NM-267-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 based on 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 proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in the **Federal Register** on October 25, 2007 (72 FR 60593). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above. Since that earlier NPRM was issued, we determined that the NPRM must be revised to require the terminating action (installing certain Primus field-loadable software) and to revise the applicability to specify the software load versions. We have also revised paragraph
(f)of this supplemental NPRM to cite the latest service information discussed below, and added new paragraph (f)(3) to give credit for use of earlier revisions of that service information to do the functional check described in paragraph (f). The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directives 2006-11-02R2 and 2006-11-03R2, both effective October 30, 2007 (referred to after this as “the MCAI”). You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Embraer has issued Service Bulletins 170-22-0003 and 190-22-0002, both Revision 01, both dated November 5, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD. Differences Between This AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 98 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $15,680, or $160 per product. 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. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it 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: **Empresa Brasileira de Aeronautica S.A. (EMBRAER)** : Docket No. FAA-2007-27785; Directorate Identifier 2006-NM-267-AD. Comments Due Date
(a)We must receive comments by May 6, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to EMBRAER Model ERJ 170-100 LR, -100 STD, -100 SE, -100 SU, -200 LR, -200 STD, and -200 SU airplanes, certificated in any category, equipped with Primus EPIC software load version 17.3, 17.4, 17.5, 17.6, or 17.7; and Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes, certificated in any category, equipped with Primus EPIC software load version 4.3, 4.4, 4.5, 4.6, or 4.7. Subject
(d)Air Transport Association
(ATA)of America Code 22: Auto Flight. Reason
(e)The mandatory continuing airworthiness information
(MCAI)for Model ERJ 170 airplanes states: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with EPIC software load 17.3, 17.4, 17.5, 17.6, or 17.7. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected or latent in subsequent flights. If another failure occurs on the second FGCS channel, the result may be a hardover command by the autopilot. The MCAI for Model ERJ 190 airplanes states: It has been found that some “caution” messages issued by the Flight Guidance Control System
(FGCS)are not displayed on aircraft equipped with EPIC software load 4.3, 4.4, 4.5, 4.6, or 4.7. Therefore, following a possible failure on one FGCS channel during a given flight, such a failure condition will remain undetected or latent in subsequent flights. If another failure occurs on the second FGCS channel, the result may be a hardover command by the autopilot. An unexpected hardover command may cause a sudden roll, pitch, or yaw movement, which could result in reduced controllability of the airplane. The MCAI mandates a functional check of the FGCS channels engagement and installation of an upgrade to the PRIMUS EPIC Field-Loadable Software. Corrective actions include replacing the actuator input-output processor, if necessary. Actions and Compliance
(f)Unless already done, do the following actions.
(1)Within 300 flight hours after the effective date of this AD, do a functional check of the FGCS channels engagement, in accordance with EMBRAER Service Bulletin 170-22-0003 or Service Bulletin 190-22-0002, both Revision 01, both dated November 5, 2007, as applicable. Repeat the functional check thereafter at intervals not to exceed 600 flight hours, until the terminating action described by paragraph (f)(2) of this AD has been done. If any malfunction of the FGCS is discovered during any functional check required by this paragraph, before further flight, do all applicable replacements of the actuator input-output processor in accordance with the applicable service bulletin. Note 1: For the purpose of this AD, a functional check is: “A quantitative check to determine if one or more functions of an item perform within specified limits.”
(2)Within 8 months after the effective date of this AD, install PRIMUS EPIC Field-Loadable Software Version 19.3 or higher, in accordance with EMBRAER Service Bulletin 170-31-0019, Revision 01, dated June 25, 2007; or Service Bulletin 190-31-0009, Revision 02, dated June 29, 2007; as applicable. Doing this installation ends the repetitive functional checks required by paragraph (f)(1) of this AD.
(3)Any functional check done before the effective date of this AD in accordance with EMBRAER Service Bulletin 170-22-0003 or 190-22-0002, both dated November 9, 2006, as applicable, is considered acceptable for compliance with the requirements of paragraph (f)(1) of this AD. FAA AD Differences Note 2: This AD differs from the MCAI and/ or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: 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. 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.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to assure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, under the provisions of the Paperwork Reduction Act, the Office of Management and Budget
(OMB)has approved the information collection requirements and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI Brazilian Airworthiness Directives 2006-11-02R2 and 2006-11-03R2, both effective October 30, 2007; EMBRAER Service Bulletins 170-22-0003 and 190-22-0002, both Revision 01, both dated November 5, 2007; EMBRAER Service Bulletin 170-31-0019, Revision 01, dated June 25, 2007; and EMBRAER Service Bulletin 190-31-0009, Revision 02, dated June 29, 2007; for related information. Issued in Renton, Washington, on April 3, 2008. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-7667 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0051; Directorate Identifier 2007-NE-37-AD] RIN 2120-AA64 Airworthiness Directives; Teledyne Continental Motors
(TCM)IO-520, TSIO-520, and IO-550 Series Engines with Superior Air Parts, Inc.
(SAP)Cylinder Assemblies Installed AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: The FAA proposes to adopt a new airworthiness directive
(AD)for certain TCM IO-520, TSIO-520, and IO-550 reciprocating engines with certain SAP cylinder assemblies installed. This proposed AD would require initial and repetitive inspections and compression tests to detect cracks in those cylinders with more than 750 flight hours time-in-service (TIS). This proposed AD results from reports of cracks in the area of the exhaust valve and separation of cylinder heads from the barrels of SAP cylinder assemblies with certain part numbers. We are proposing this AD to prevent separation of the cylinder head, which could result in immediate loss of engine power, possible structural damage to the engine, and possible fire in the engine compartment. DATES: We must receive any comments on this proposed AD by June 10, 2008. ADDRESSES: Use one of the following addresses to comment on this proposed AD. • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. FOR FURTHER INFORMATION CONTACT: Tausif Butt, Aerospace Engineer, Special Certification Office, FAA, Rotorcraft Directorate, 2601 Meacham Blvd, Fort Worth, TX 76137-4298; e-mail: *tausif.butt@faa.gov* ; telephone
(817)222-5195; fax
(817)222-5785. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send us any written relevant data, views, or arguments regarding this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2007-0051; Directorate Identifier 2007-NE-37-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov,* including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov;* or in person at the Docket Operations office 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 Operations office (telephone
(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. Discussion Superior Air Parts and operators in the field have reported 24 SAP cylinder assemblies with cracks or separation in the area of the exhaust valves. Some instances resulted in forced landings of the airplanes. The reported failures were cylinder assemblies in the naturally-aspirated and turbocharged engines. Most of the failures were on airplanes that have a high ratio of takeoffs and landings per flight hour. Most of the failures also occurred on airplanes that are operated predominantly at low altitude. SAP first informed us on July 12, 2006, that at least 14 SAP investment cast cylinder assemblies, P/Ns SA52000-A1, SA52000-A20P, SA52000-A21P, SA52000-A22P, SA52000-A23P, SA55000-A1, SA55000-A20P, had cracked in the area of the exhaust valve of the cylinder head since the year 2000. We received reports of 10 additional failures since that time, and the total number of reported failures is currently 24. We determined that the minimum wall thickness of the SAP cylinder assemblies, P/Ns SA52000-A1, SA52000-A20P, SA52000-A21P, SA52000-A22P, SA52000-A23P, SA55000-A1, SA55000-A20P, is significantly thinner in the failure location than the original equipment manufacturer
(OEM)cylinders. We certified the SAP cylinders as equivalent replacement Parts Manufacturer Approval
(PMA)parts for TCM 520 and 550 series engines, however, this design discrepancy results in stresses in the cylinder wall that are much higher in the SAP cylinder assemblies than in the OEM cylinder assemblies when subjected to identical loading. These higher stresses result in a lower fatigue life for the SAP cylinder assemblies relative to that of the OEM parts. The time-to-cracking or separation for this failure mode ranges between 823 hours time-since-new
(TSN)and 1,985 TSN. The thin-wall thickness condition in the area of the exhaust valve seat of the cylinder head has been present since the initial SAP design, and it is present in all SAP cylinders of that design that have been manufactured to date. This condition, if not corrected, could result in immediate loss of engine power, possible structural damage to the engine, and possible fire in the engine compartment. FAA's Determination and Requirements of the Proposed AD We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. We are proposing this AD, which would require inspecting or replacing, or both, certain SAP cylinder assemblies within 25 flight hours TIS after the effective date of the proposed AD for cylinders that are at their respective time-before-overhaul
(TBO)TIS flight hours or have exceeded their respective TBO TIS flight hours. Costs of Compliance We estimate that this proposed AD could affect 8,000 engines installed on airplanes of U.S. registry. We also estimate that it would take about 5 work-hours per cylinder to perform the proposed actions, and that the average labor rate is $80 per work-hour. Required parts would cost about $1,150 per cylinder. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $12,400,000. 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 have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed AD: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. You may get a copy of this summary at the address listed under ADDRESSES . List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Under the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new airworthiness directive: **Superior Air Parts, Inc. (SAP)** : Docket No. FAA-2007-0051; Directorate Identifier 2007-NE-37-AD. Comments Due Date
(a)The Federal Aviation Administration
(FAA)must receive comments on this airworthiness directive
(AD)action by June 10, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Teledyne Continental Motors
(TCM)IO-520, TSIO- 520, and IO-550 series engines with SAP cylinder assemblies, part numbers (P/Ns) SA52000-A1, SA52000-A20P, SA52000-A21P, SA52000-A22P, SA52000-A23P, SA55000-A1, or SA55000-A20P, installed. These engines are installed on, but not limited to, the airplanes listed in Table 1 of this AD. Table 1.—Teledyne Continental Motors-Related Aircraft Models Engine model Aircraft manufacturer Aircraft model designation IO-520-A Cessna 210 D, E, F, G, & H IO-520-A Cessna 206 IO-520-A Cessna P206 IO-520-A Rockwell 200 D IO-520-B Beechcraft 36 Bonanza IO-520-B Beechcraft A36 IO-520-B Navion Range Master IO-520-BA Beechcraft A36 IO-520-BA Beechcraft S & V35, V35A, V35B IO-520-BA Beechcraft C33 A IO-520-BA Beechcraft E33 A & C IO-520-BA Beechcraft F33 A & C IO-520-BA Navion Range Master IO-520-BB Beechcraft A36 IO-520-BB Beechcraft V35B IO-520-BB Beechcraft F33 A IO-520-C & CB Beechcraft C55—E55 Baron IO-520-D Bellanca 17-30 Viking IO-520-D Cessna A188-300 AG Truck IO-520-D Cessna 185 IO-520-E (Cessna 310) Exec 600 IO-520-E (Beech Baron) Pres 600 IO-520-F Cessna 207 IO-520-F Cessna U206 IO-520-K Bellanca 17-30A IO-520-L Cessna 210 K, L, M, N & R IO-520-L Cessna 210N II IO-520-L Cessna 210R IO-520-M Cessna 310R IO-520-MB Cessna 310R IO-550-A Cessna 310 Conversion IO-550-B Beechcraft A36 IO-550-B (Beech Bonanza) Foxstar IO-550-C Beechcraft 58 Baron IO-550-D Cessna 185/188 Conversion IO-550-E Cessna 310 Conversion IO550-F Cessna 206/207 Conversion IO-550-L Cessna 210 Conversion Unsafe Condition
(d)This AD results from reports of cracks in the area of the exhaust valve and separation of cylinder heads from the barrels of SAP cylinder assemblies with certain part numbers. We are issuing this AD to prevent separation of the cylinder head, which could result in immediate loss of engine power, possible structural damage to the engine, and possible fire in the engine compartment. Compliance
(e)You are responsible for having the actions required by this AD performed within the compliance times specified unless the actions have already been done. Inspecting SAP Cylinder Assemblies
(f)For TCM IO-520, TSIO-520, and IO-550 series engines with SAP cylinder assemblies, P/Ns SA52000-A1, SA52000-A20P, SA52000-A21P, SA52000-A22P, SA52000-A23P, SA55000-A1, or SA55000-A20P, installed, with over 750 flight hours time-in-service (TIS), do the following within 25 flight hours TIS after the effective date of this AD:
(1)Inspect each cylinder head around the exhaust valve side for visual cracks or any signs of black combustion leakage.
(2)Replace any cracked or leaking cylinders.
(3)Perform a standard cylinder compression test using paragraph 8-14., Compression Testing of Aircraft Engine Cylinders, in Advisory Circular 43.13-1B, Change 1, dated September 27, 2001. Also, SAP Service Bulletin B08-01, dated January 10, 2008, contains information on cylinder differential pressure tests.
(i)If the cylinder pressure gage reads below 60 pounds per-square inch, apply a 2 percent soapy solution to the side of the leaking cylinder.
(ii)If you see air leakage and bubbles on the side of the cylinder, near the head-to-cylinder interface, replace the cylinder assembly.
(g)Thereafter, repeat the cylinder visual inspections and compression tests within 50 flight hours time-since-last inspection
(TSLI)until the cylinders reach their time-before-overhaul
(TBO)limits. Replacing SAP Cylinder Assemblies
(h)For TCM IO-520, TSIO-520, and IO-550 series engines with SAP cylinder assemblies, P/Ns SA52000-A1, SA52000-A20P, SA52000-A21P, SA52000-A22P, SA52000-A23P, SA55000-A1, or SA55000-A20P, installed, that have accumulated or exceeded their respective TBO hours, replace the cylinder assembly within 25 flight hours TIS after the effective date of this AD. Prohibition Against Installing Certain P/N SAP Cylinder Assemblies
(i)After the effective date of this AD, do not install any SAP cylinder assembly, P/Ns SA52000-A1, SA52000-A20P, SA52000-A21P, SA52000-A22P, SA52000-A23P, SA55000-A1, or SA55000-A20P, in any engine. Alternative Methods of Compliance
(j)The Manager, Special Certification Office, has the authority to approve alternative methods of compliance for this AD if requested using the procedures found in 14 CFR 39.19. Related Information
(k)FAA Advisory Circular 43.13-1B, Change 1, dated September 27, 2001, and SAP service bulletin B08-01, dated January 10, 2008, contain information on cylinder differential pressure tests.
(l)Contact Tausif Butt, Aerospace Engineer, Special Certification Office, FAA, Rotorcraft Directorate, 2601 Meacham Blvd., Fort Worth, TX 76137-4298; e-mail: *tausif.butt@faa.gov* ; telephone
(817)222-5195; fax
(817)222-5785, for more information about this AD. Issued in Burlington, Massachusetts, on April 4, 2008. Peter A. White, Assistant Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E8-7711 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2008-0423; Directorate Identifier 2008-CE-010-AD] RIN 2120-AA64 Airworthiness Directives; GENERAL AVIA Costruzioni Aeronatiche Models F22B, F22C, and F22R Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: ENAC Italy AD 2004-376 was issued in response to two separate reports of cracks found in the Firewall-to-Engine mounting attachments. Detachment of the engine mounts from the structure is the possible consequence. Although the actual cause has not been finally determined, some repairs have been approved to address and correct the unsafe condition. This new AD, which supersedes ENAC Italy AD 2004-376, retains the initial inspection requirement, adds repetitive inspections and clarifies the conditions under which aircraft that have been repaired by an approved method can be allowed to return to service. The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by May 12, 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. 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: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4145; fax:
(816)329-4090. 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-2008-0423; Directorate Identifier 2008-CE-010-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2008-0015, dated January 18, 2008 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states: ENAC Italy AD 2004-376 was issued in response to two separate reports of cracks found in the Firewall-to-Engine mounting attachments. Detachment of the engine mounts from the structure is the possible consequence. Although the actual cause has not been finally determined, some repairs have been approved to address and correct the unsafe condition. This new AD, which supersedes ENAC Italy AD 2004-376, retains the initial inspection requirement, adds repetitive inspections and clarifies the conditions under which aircraft that have been repaired by an approved method can be allowed to return to service. The MCAI requires you to repetitively inspect the structure surrounding the heads of the four bolts of the engine mount attachment bracket for cracks or damage and repair any cracks or damage found as a result of the inspection. You may obtain further information by examining the MCAI in the AD docket. Relevant Service Information Gomolzig Flugzeug-und Maschinenbau GmbH has issued General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI. FAA's Determination and Requirements of the Proposed AD This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future. Differences Between This Proposed AD and the MCAI or Service Information We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information. We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD. Costs of Compliance We estimate that this proposed AD would affect no products of U.S. registry. We also estimate that it would take about 100 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $740 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $0, or $8,740 per product. We have no way of determining the number of products that may need any necessary follow-on actions. 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. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it 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: **General Avia Costruzioni Aeronatiche:** Docket No. FAA-2008-0423; Directorate Identifier 2008-CE-010-AD. Comments Due Date
(a)We must receive comments by May 12, 2008. Affected ADs
(b)None. Applicability
(c)This AD applies to Models F22B, F22C, and F22R airplanes, all serial numbers, certificated in any category. Subject
(d)Air Transport Association of America
(ATA)Code 71: Power Plant—General. Reason
(e)The mandatory continuing airworthiness information
(MCAI)states: ENAC Italy AD 2004-376 was issued in response to two separate reports of cracks found in the Firewall-to-Engine mounting attachments. Detachment of the engine mounts from the structure is the possible consequence. Although the actual cause has not been finally determined, some repairs have been approved to address and correct the unsafe condition. This new AD, which supersedes ENAC Italy AD 2004-376, retains the initial inspection requirement, adds repetitive inspections and clarifies the conditions under which aircraft that have been repaired by an approved method can be allowed to return to service. The MCAI requires you to repetitively inspect the structure surrounding the heads of the four bolts of the engine mount attachment bracket for cracks or damages and repair any cracks or damages found as a result of the inspection. Actions and Compliance
(f)Do the following actions:
(1)Unless already done within the last 100 hours time-in-service
(TIS)before the effective date of this AD, before further flight and repetitively thereafter at intervals not to exceed 100 hours TIS, inspect the structure surrounding the heads of the four bolts of the engine mount attachment bracket, approaching from the cabin of the aircraft in the zone below the instrument panel. In case the indicated area (in particular for the upper bolts) is not visible due to equipment presence (relay, cooling fan, and so forth), remove all of the upper right-hand panel and part of the left-hand panel of the fireproof bulkhead to approach the area to be inspected through the engine compartment. In this case the use of a small mirror is necessary.
(2)If as a result of any inspection required by paragraphs (f)(1) of this AD you find any discrepancies (for example, cracked or broken parts), do one of the following actions before further flight:
(i)Repair the aircraft following Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007; or
(ii)Repair the aircraft following a repair method approved by the FAA for this AD.
(3)If you repair the aircraft as specified in paragraph (f)(2)(i) of this AD, repetitively thereafter inspect the aircraft at intervals not to exceed 500 hours TIS following the instructions in paragraph (f)(1) of this AD. If as a result of these repetitive inspections you find any discrepancies, prior to further flight, repair the aircraft following Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007.
(4)If you repair the aircraft as specified in paragraph (f)(2)(ii) of this AD, repetitively thereafter inspect the aircraft using the repetitive inspection interval established by the FAA-approved repair method used. Follow the inspection instruction in paragraph (f)(1) of this AD. If as a result of the inspection you find any discrepancies, repair before further flight following a repair method approved by the FAA for this AD. FAA AD Differences Note: This AD differs from the MCAI and/or service information as follows: No differences. Other FAA AD Provisions
(g)The following provisions also apply to this AD:
(1)*Alternative Methods of Compliance (AMOCs):* The Manager, Standards Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Sarjapur Nagarajan, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone:
(816)329-4145; fax:
(816)329-4090. 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.
(2)*Airworthy Product:* For any requirement in this AD to obtain corrective actions from a manufacturer or other source, use these actions if they are FAA-approved. Corrective actions are considered FAA-approved if they are approved by the State of Design Authority (or their delegated agent). You are required to ensure the product is airworthy before it is returned to service.
(3)*Reporting Requirements:* For any reporting requirement in this AD, 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 and has assigned OMB Control Number 2120-0056. Related Information
(h)Refer to MCAI European Aviation Safety Agency
(EASA)AD No. 2008-0015, dated January 18, 2008; and Gomolzig Flugzeug-und Maschinenbau GmbH General Avia F22 Modification 15328 Repair Instructions, dated September 10, 2007, for related information. Issued in Kansas City, Missouri, on April 3, 2008. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E8-7657 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2008-0204; Airspace Docket No. 08-AWP-5] Revocation of Class E Airspace; Luke AFB, Phoenix, AZ AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking. SUMMARY: This action proposes to revoke Class E airspace at Luke AFB, Phoenix, AZ. The United States Air Force
(USAF)is closing the airport to Instrument Flight Rules
(IFR)operations when the control tower is not open. DATES: Comments must be received on or before May 27, 2008. ADDRESSES: Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building ground floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. Telephone
(202)366-9826. You must identify FAA Docket No. FAA-2008-0204; Airspace Docket No. 08-AWP-5, at the beginning of your comments. You may also submit comments through the Internet at *http://www.regulations.gov.* FOR FURTHER INFORMATION CONTACT: Eldon Taylor, Federal Aviation Administration, Western Service Area Office, System Support Group, 1601 Lind Avenue, SW., Renton, WA 98057; telephone
(425)203-4537. SUPPLEMENTARY INFORMATION: Comments Invited Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, 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 (FAA Docket No. FAA-2008-0204 and Airspace Docket No. 08-AWP-5) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at *http://www.regulations.gov.* Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2008-0204 and Airspace Docket No. 08-AWP-5.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket. Availability of NPRM's 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.* You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) 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 Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Area, System Support Group, 1601 Lind Avenue, SW., Renton, WA 98057. Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking,
(202)267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure. History On January 16, 2008, the FAA received a letter from Luke's Airfield Operations Flight Commander, Captain Ernesto Verger at Luke Air Force Base requesting removal of Class E2 airspace, as depicted on the Phoenix Sectional Chart. The USAF is closing the control tower to IFR operations, when the air traffic control tower is closed, landings and takeoffs are not allowed. The Proposal The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to revoke Class E2 airspace at Luke Air Force Base, Phoenix, AZ. The air traffic control tower will be closed to IFR aircraft operations at Luke AFB. Class E airspace designations 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 will be published subsequently in that 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. Therefore, this proposed regulation:
(1)Is not a “significant regulatory action” under Executive Order 12866;
(2)is not a “significant rule” under Department of Transportation
(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 proposed 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 the 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 removes Class E2 airspace at Luke Air Force Base, Phoenix, AZ. 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, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE 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 FAA Order 7400.9R, Airspace Designations and Reporting Points, signed August 15, 2007, and effective September 15, 2007, is amended as follows: Paragraph 6002 Class E Airspace Designated as Surface Areas. **AWP AZ E2 Phoenix, Luke AFB, AZ [Revoked]** Issued in Washington, on March 27, 2008. Clark Desing, Manager, System Support Group, Western Service Center. [FR Doc. E8-7663 Filed 4-10-08; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF STATE 22 CFR Part 121 [Public Notice 6187] RIN 1400-AC47 Amendment to the International Traffic in Arms Regulations: The United States Munitions List AGENCY: Department of State. ACTION: Proposed Rule. SUMMARY: The Department of State is proposing to amend the text of the International Traffic in Arms Regulations (ITAR), Part 121, to add language clarifying how the criteria of Section 17(c) of the Export Administration Act of 1979 (“EAA”) are implemented in accordance with the Department of State's obligations under the Arms Export Control Act (“AECA”), and restating the Department's longstanding policy and practice of implementing the criteria of this provision. DATES: *Effective Date:* The Department of State will accept comments on this proposed rule until May 12, 2008. ADDRESSES: Interested parties may submit comments within 30 days of the date of publication by any of the following methods: • *E-mail: DDTCResponseTeam@state.gov* with an appropriate subject line. • *Mail:* Department of State, Directorate of Defense Trade Controls, Office of Defense Trade Controls Policy, ATTN: Regulatory Change, ITAR Section 121, SA-1, 12th Floor, Washington, DC 20522-0112. Persons with access to the Internet may also view this notice by going to the regulations.gov Web site at *http://regulations.gov/index.cfm* . FOR FURTHER INFORMATION CONTACT: Director Ann Ganzer, Office Defense Trade Controls Policy, Department of State, Telephone
(202)663-2792 or Fax
(202)261-8199; E-mail *DDTCResponseTeam@state.gov* . ATTN: Regulatory Change, ITAR Part 121. SUPPLEMENTARY INFORMATION: There have been an increasing number of Commodity Jurisdiction
(CJ)requests for certain basic parts and components having a long history of use on both civil and military aircraft. The intent of this notice is to make it clear that these parts and components are not subject to the jurisdiction of the Department of State and to restate the Department's longstanding practice of using the CJ process to determine the applicability of the criteria of Section 17(c) of the EAA (“Section 17(c)”) in cases where there is uncertainty. Specifically, Section 17(c) states that any product
(1)which is standard equipment, certified by the Federal Aviation Administration (“FAA”), in civil aircraft and is an integral part of such aircraft, and
(2)which is to be exported to a country other than a controlled country, shall be subject to export controls exclusively under the EAA. Although the EAA expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, as extended by the notice of August 15, 2007, directed that the provisions of the EAA be carried out to the extent permitted by law. Since its passage, the Department has implemented Section 17(c) through various regulatory amendments and notices consistent with the aims of the EAA and the AECA. While Section 17(c) criteria apply to certain parts and components for civil aircraft, there have been recurring questions regarding its scope and meaning, and the Department's interpretation of its provisions. For example, while the language of Section 17(c) referred specifically to certain products that are standard equipment in civil aircraft, some exporters have mistakenly believed this provision applied to complete aircraft. Exporters have also suggested that FAA “certification” should by itself be sufficient to determine whether an article is subject to the controls of the USML. While FAA certification is one of the factors in the Section 17(c) criteria, FAA certifications serve a different purpose (safety of flight), and the FAA may issue a civil certification for military aircraft and their parts and components (e.g., the C-130J). Shortly after the enactment of Section 17(c), the Department requested, through a proposed rule in the **Federal Register** on December 19, 1980, the opinions of the public as well as other agencies regarding the implementation of Section 17(c). The Department received many comments from the public, the Department of Commerce, and several other agencies. The Department noted that certain inertial navigation systems destined for specific countries would be deleted from the USML, due primarily to the enactment of Section 17(c). In 1981, the Department conducted a review of the USML consistent with the AECA and Section 17(c) to determine whether any articles should be removed. The results were formally reported in a congressionally mandated report to Congress. This report came soon after Congress rejected a House bill that would have removed from the USML certain defense articles having a “direct civilian application.” Several years later, after taking into consideration the comments received from the public and other agencies on its proposed rule, the Department published a final rule in the **Federal Register** on December 6, 1984. In this rule, the Department noted there had been confusion on the relationship of the ITAR to the export regulations administered by the Department of Commerce. In an effort to provide clarity, the Department provided some general guidance by adding the then new Part 120 (at the time titled: Purpose, background and definitions), and the Department also referenced certain notable deletions to the USML, including certain trainer aircraft and certain inertial navigation systems. However, some questions on this issue remained, so on April 7, 1988, the Department published a final rule in the **Federal Register** . Consistent with the Department's long established practice at that time of implementing Section 17(c), the Department added language to the ITAR requiring that a CJ review take place to determine whether any FAA-certified developmental aircraft or components thereof would be removed from the USML. The Department noted this change helped to conform the ITAR to the Department's current practice of requiring CJ's to address such uncertainties, and that this change would ensure the items excluded under Section 17(c) were properly identified. The Department again obtained comments from the public regarding this change. In the years since the 1988 **Federal Register** Notice described above was published, the ITAR has consistently required a CJ review take place where there are uncertainties regarding whether an item is covered by the USML, including whether the item falls within the criteria of Section 17(c). In 1991, the Department undertook a comprehensive review of the USML to address jurisdiction over articles seemingly subject to both the USML and the Commerce Control List. This large interagency review was conducted consistent with the AECA and Section 17(c), and resulted in the removal of certain items from USML control. In 1996, based on interagency discussions, the specific reference to Section 17(c) in the ITAR was removed, but the Department's policy and practice of applying the criteria of Section 17(c) remained. We note that the removal of the reference to Section 17(c) may have caused some of the current confusion as to the Department's policy and procedures for applying Section 17(c). This proposed rule reinstates the Section 17(c) reference in the ITAR to assist exporters in understanding the scope and application of the Section 17(c) criteria to parts and components for civil aircraft. It also clarifies that any part or component that
(a)is standard equipment;
(b)is covered by a civil aircraft type certificate (including amended type certificates and supplemental type certificates) issued by the Federal Aviation Administration for civil, non-military aircraft (this expressly excludes military aircraft certified as restricted and any type certification of Military Commercial Derivative Aircraft); and
(c)is an integral part of such civil aircraft, is subject to the Export Administration Regulations. Where such part or component is not Significant Military Equipment (“SME”), no CJ determination is required to determine whether the item meets these criteria for exclusion under the USML, unless doubt exists as to whether these criteria have been met. However, where the part or component is SME, a CJ determination is always required, except where an SME part or component was integral to civil aircraft prior to the effective date of this rule. Additionally, this proposed rule adds language in a new Note after Category VIII(h) to provide guidelines concerning the parts or components meeting these criteria. The change to Category VIII(b) also identifies and designates certain sensitive military items, heretofore controlled under Category VIII(h), as SME in order to simplify the implementation of the criteria of Section 17(c) consistent with the aims of the AECA. Previous and current licenses and other authorizations concerning these items will not require notification in accordance with § 124.11, and will not require a DSP-83, unless they are amended, modified, or renewed. This requirement for a CJ determination by the Department of State helps ensure the U.S. Government is made aware of, and can reach an informed decision regarding, any sensitive military item proposed for standardization in the commercial aircraft industry before the item or technology is actually applied to a commercial aircraft program, whether such item is integral to the aircraft, and, if so, whether the development, production, and use of the technology associated with the item should nevertheless be controlled on the USML. It will also ensure the Department of State fulfills the requirements of section 38(f) of the Arms Export Control Act. This regulation is intended to clarify the control of aircraft parts and components, and does not remove any items from the USML, nor does it change any CJ determinations. Should there be an apparent conflict between this regulation and a CJ determination issued prior to this date, the holder of the determination should seek reconsideration, citing this regulation. Regulatory Analysis and Notices Administrative Procedure Act This amendment involves a foreign affairs function of the United States and, therefore, is not subject to the procedures contained in 5 U.S.C. 553 and 554. Regulatory Flexibility Act Since this amendment involves a foreign affairs function of the United States, it does not require analysis under the Regulatory Flexibility Act. Unfunded Mandates Reform Act of 1995 This amendment does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996. Executive Orders 12372 and 13132 This amendment will not have substantial 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. Therefore, in accordance with Executive Order 13132, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this amendment. Executive Order 12866 This amendment is exempt from the review under Executive Order 12866, but has been reviewed internally by the Department of State to ensure consistency with the purposes thereof. Paperwork Reduction Act This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. List of Subjects in 22 CFR Part 121 Arms and munitions, Exports, U.S. Munitions List. Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 121 is proposed to be amended as follows: PART 121—THE UNITED STATES MUNITIONS LIST 1. The authority citation for part 121 continues to read as follows: Authority: Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); E.O. 11958, 42 FR 4311; 3 CFR, 1977 Comp, p. 79; 22 U.S.C. 2658; Pub L. 105-261, 112 Stat.1920. 2. Section 121.1, paragraph
(c)Category VIII is amended by revising Category VIII paragraphs
(b)and
(h)to read as follows: § 121.1 General. The United States Munitions List. Category VIII—Aircraft and Associated Equipment
(b)Military aircraft engines, except reciprocating engines, specifically designed or modified for the aircraft in paragraph
(a)of this category, and all specifically designed military hot section components (i.e., combustion chambers and liners; high pressure turbine blades, vanes, disks and related cooled structure; cooled low pressure turbine blades, vanes, disks and related cooled structure; cooled augmenters; and cooled nozzles) and digital engine controls (e.g., Full Authority Digital Engine Controls (FADEC) and Digital Electronic Engine Controls (DEEC)).
(h)Components, parts, accessories, attachments, and associated equipment (including ground support equipment) specifically designed or modified for the articles in paragraphs
(a)through
(d)of this category, excluding aircraft tires and propellers used with reciprocating engines. Note: The Export Administration Regulations
(EAR)administered by the Department of Commerce control any part or component (including propellers) designed exclusively for civil, non-military aircraft (see § 121.3 for the definition of military aircraft) and civil, non-military aircraft engines. Also, a non-SME component or part (as defined in § 121.8(b) and
(d)of this subchapter) that is not controlled under another category of the USML, that:
(a)Is standard equipment;
(b)is covered by a civil aircraft type certificate (including amended type certificates and supplemental type certificates) issued by the Federal Aviation Administration for a civil, non-military aircraft (this expressly excludes military aircraft certified as restricted and any type certification of Military Commercial Derivative Aircraft); and
(c)is an integral part of such civil aircraft, is subject to the control of the EAR. In the case of any part or component designated as SME in this or any other USML category, a determination that such item may be excluded from USML coverage based on the three criteria above always requires a commodity jurisdiction determination by the Department of State under § 120.4 of this subchapter. The only exception to this requirement is where a part or component designated as SME in this category was integral to civil aircraft prior to [effective date of the final rule]. For such part or component, U.S. exporters are not required to seek a commodity jurisdiction determination from State, unless doubt exists as to whether the item meets the three criteria above (See § 120.3 and § 120.4 of this subchapter). Also, U.S. exporters are not required to seek a commodity jurisdiction determination from State regarding any non-SME component or part (as defined in § 121.8(b) and
(d)of this subchapter) that is not controlled under another category of the USML, unless doubt exists as to whether the item meets the three criteria above (See § 120.3 and § 120.4 of this subchapter). These commodity jurisdiction determinations will ensure compliance with this section and the criteria of Section 17(c) of the Export Administration Act of 1979. In determining whether the three criteria above have been met, consider whether the same item is common to both civil and military applications without modification. Some examples of parts or components that are not common to both civil and military applications are tail hooks, radomes, and low observable rotor blades. “Standard equipment” is defined as a part or component manufactured in compliance with an established and published industry specification or an established and published government specification (e.g., AN, MS, NAS, or SAE). Parts and components that are manufactured and tested to established but unpublished civil aviation industry specifications and standards are also “standard equipment,” e.g., pumps, actuators, and generators. A part or component is not standard equipment if there are any performance, manufacturing or testing requirements beyond such specifications and standards. Simply testing a part or component to meet a military specification or standard does not in and of itself change the jurisdiction of such part or component unless the item was designed or modified to meet that specification or standard. Integral is defined as a part or component that is installed in the aircraft. In determining whether a part or component may be considered as standard equipment and integral to a civil aircraft (e.g., latches, fasteners, grommets, and switches) it is important to carefully review all of the criteria noted above. For example, a part approved solely on a non-interference/provisions basis under a type certificate issued by the Federal Aviation Administration would not qualify. Similarly, unique application parts or components not integral to the aircraft would also not qualify. Dated: April 2, 2008. John C. Rood, Acting Under Secretary for Arms Control and International Security, Department of State. [FR Doc. 08-1122 Filed 4-9-08; 1:48pm]
Connectionstraces to 43
Traces to 43 documents
U.S. Code
36 references not yet in our index
  • 7 CFR 985
  • 7 USC 601-674
  • 14 CFR 23
  • 33 CFR 117
  • 38 CFR 75
  • Pub. L. 109-461
  • 44 USC 3501-3521
  • 5 USC 601-612
  • 5 USC 603-604
  • 50 CFR 679
  • 50 CFR 600
  • 10 CFR 20
  • 10 CFR 110
  • Pub. L. 104-113
  • 10 CFR 32
  • 68 Stat. 930
  • 106 Stat. 2951
  • 88 Stat. 1242
  • 112 Stat. 2750
  • Pub. L. 109-58
  • 119 Stat. 806
  • 68 Stat. 935
  • 10 CFR 820
  • 10 CFR 824
  • 10 CFR 851
  • 48 CFR 952.204-76
  • 48 CFR 952.223-77
  • 10 CFR 1021
  • Pub. L. 104-4
  • Pub. L. 105-277
  • 14 CFR 39
  • 14 CFR 71
  • 22 CFR 121
  • Pub. L. 90-629
  • 90 Stat. 744
  • Pub. L. 105-261
Citation graph
cites case law
Unknown
Final rule
Fed. Reg.Notices
Fed. Reg.Notices
C.F.R.§ 121.201
U.S.C.§ 553
U.S.C.§ 106
C.F.R.§ 117.217
C.F.R.§ 117.35
U.S.C.§ 5724
U.S.C.§ 1532
Cite7 CFR 985
Cite7 USC 601-674
Cite14 CFR 23
Cites 79 · showing 12Cited by 0 across 0 sources
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