The FAA has determined that notice and opportunity for prior public comment hereon is impracticable, because these procedures would significantly delay certification of the airplane, which is imminent. In addition, as the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting such written comments, data, or views, as they may desire. The most helpful commits reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the commit closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On September 6, 2002, Garrett Aviation Services, 1200 North Airport Drive, Capital Airport Springfield, IL 62707, applied for a Supplemental Type Certificate (STC) to modify the Avions Marcel Dassault—Breguet Aviation Falcon 10 airplane approved under Type Certificate No. A33EU. The AMD/BA Falcon 10 is a transport category airplane. The AMD/BA Falcon 10 airplane is powered by two Airesearch Manufacturing Company TFE731-2-1C turbofans with a maximum takeoff weight of 18,300 pounds. This airplane operates with a 2-pilot crew and can hold up to 9 passengers. The modification incorporates the installation of dual Universal Avionics EFI-550 Flat Panel Flight Displays. The EFI-550 Display System is installed as a replacement for the existing mechanical ADI and HSI display instruments, while also providing additional functional capability and redundancy. The EFI-550 Display System is microprocessor based digital, flat panel display which adapts analog input signals to digital information when interfaced with the existing flight director and flight guidance system. The avionics/electronics and electrical systems installed in this airplane have the potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Amendment 21-69, effective September 16, 1991, Garrett Aviation Services must show that the AMD/BA Falcon 10 airplane, as changed, continues to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A33EU, or the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The certification basis for the modified AMD/BA Falcon 10 airplane includes 14 CFR part 25, dated February 1, 1964, as amended by Amendments 25-1 through 25-20, except for special conditions and exceptions noted in Type Certificate Data Sheet (TDCS) A33EU.

If the Administrator finds that the applicable airworthiness regulations (that is, part 25, as amended) do not contain adequate or appropriate safety standards for the AMD/BA Falcon 10 airplane because of novel or unusual design features, special conditions are prescribed under the provisions § 21.16

In addition to the applicable airworthiness regulations and special conditions, the AMD/BA Falcon 10 airplane must comply with the noise certification requirement of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101(b)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should Garrett Aviation Services apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

As noted earlier, the AMD/BA Falcon 10 airplane modified by Garrett Aviation Services will incorporate Universal Avionics EFI-550 Flat Panel Flight Displays that will perform critical functions. These systems have to potential to be vulnerable to HIRF external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards that address the protection of this equipment from the adverse effect of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the AMD/BA Falcon 10 airplane modified by Garrett Aviation Services. These special conditions require that new avionics/electronics and electrical systems that perform critical functions be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1, OR 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10KHz to 18GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the following field strengths for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

Applicability: As discussed above, these special conditions are applicable to the AMD/BA Falcon 10 airplane modified by Garret Aviation Services. Should Garrett Aviation Services apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(2), Amendment 21-69, effective September 16, 1991.

This action affects only certain novel or unusual design features on the AMD/BA Falcon 10 airplanes modified by Garrett Aviation Services. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and that good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above. 3

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Avions Marcel Dassault—Breguet Aviation, Falcon 10 airplanes modified by Garrett Aviation Services.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields.

2. For the purpose of these special conditions, the following definition applies:

Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay certification, and thus delivery, of the affected airplane. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On July 31, 2002, Gulfstream Aerospace Corporation, Dallas, Texas, applied for a supplemental type certificate (STC) to modify Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes. These airplanes are low-wing, pressurized transport category airplanes with two fuselage-mounted jet engines. They are capable of seating a maximum of 19 passengers, depending upon the configuration. The modification incorporates the installation of a Rockwell Collins FDS-2000 five “tube” Electronic Display System consisting of the following major components:

• Five (5) AFD-2000A Adaptive Flight Displays: Pilot Electronic Attitude Indicator (EADI), Pilot Electronic Horizontal Situation Indicator (EHSI), Multi-Function Display (MFD), Copilot EADI, Copilot EHSI.

• Three (3) DCP-2000 Display Control Panels: Pilot, MFD, Copilot.

• Two (2) DCU-2000 Data Concentrator Units.

This system has a potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Amendment 21-69, effective September 16, 1991, Gulfstream Aerospace Corporation must show that Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes, as modified to include installation of the Rockwell Collins FDS-2000 Electronic Display System, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A21EA or the applicable regulations in effect on the date of application for the change. Subsequent changes have been made to § 21.101 as part of Amendment 21-77, but those changes do not become effective until June 10, 2003. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The specific regulations included in the certification basis for Bombardier Model CL-600-1A11 and CL-600—A12 airplanes include 14 CFR part 25, dated February 1, 1965, including amendments 25-1 through 25-37, and sections 25.675(a), 25.685(a), 25.733(c), 25.775(e), 25.787(c), 25.815, 25.841(b), 25.951(a), 25.979(d) and (e), 25.1041, 25.1143(e), 25.1303(a), 25.1322, 25.1385(c), 25.1557(b), and 25.1583(a) of Amendment 25-38; sections 25.901(b) and (c), 25.903(c) and (e), 25.933(a), 25.943, 25.959, 25.1091(a) and (d), 25.1145(c), 25.1199(b) and (c), 25.1207, 25.1549, and 25.1585(a)(9) of Amendment 25-40; and section 25.1309 of Amendment 25-41; section 25.1353(c) of Amendment 25-42; section 25.571 and 25.629(d)(4)(v) of Amendment 25-45; and sections 25.351 and 25.603 of Amendment 25-46.

If the Administrator finds that the applicable airworthiness regulations ( i.e., 14 CFR part 25, as amended) do not contain adequate or appropriate safety standards for the Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the airplane's type certification basis in accordance with § 21.101(b)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should Gulfstream Aerospace Corporation apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

As noted earlier, Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes modified by Gulfstream Aerospace Corporation will incorporate the Rockwell Collins FDS-2000 Electronic Display System that will perform critical functions. This system may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain safety standards adequate or appropriate to protect this equipment from the adverse effects of HIRF. Accordingly, this system is considered to be a novel or unusual design feature.

There is no specific regulation that addresses protection requirements for electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide such protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations which are incorporated by reference, special conditions are needed for Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes modified by Gulfstream Aerospace Corporation. These special conditions will require that the Rockwell Collins FDS-2000 Electronic Display System, which perform critical functions, be designed and installed to preclude component damage and interruption of function due to the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root mean square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the table below for the frequency ranges indicated. Both peak and average field strength components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

Applicability: As discussed above, these special conditions are applicable to Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes modified by Gulfstream Aerospace Corporation to incorporate the Rockwell Collins FDS-2000 Electronic Display System. Should Gulfstream Aerospace Corporation apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate A21EA to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

This action affects only certain design features on Bombardier Model CL-600-1A11 and CL-600-A12 airplanes modified by Gulfstream Aerospace Corporation to incorporate a Rockwell Collins FDS-2000 Electronic Display System. It is not a rule of general applicability and affects only the applicant which applied to the FAA for approval of these features on the airplanes.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for Bombardier Model CL-600-1A11 and CL-600-2A12 airplanes as modified by Gulfstream Aerospace Corporation.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF). Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capability of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields external to the airplane.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to or cause a failure that would prevent the continued safe flight and landing of the airplane.

The FAA has determined that notice and opportunity for prior public comment hereon are impracticable because these procedures would significantly delay certification, and thus delivery, of the affected airplane. In addition, the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance; however, the FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 7:30 a.m. and 4 p.m., Monday through Friday, except Federal holidays.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions in light of the comments we receive.

If you want the FAA to acknowledge receipt of your comments on this proposal, include with your comments a pre-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it back to you.

On June 19, 2002, Aircraft Systems & Manufacturing, Inc., Georgetown, Texas, applied for a supplemental type certificate (STC) to modify Boeing Model 727-100 and -200 series airplanes. These airplanes are low-wing, pressurized transport category airplanes with three fuselage-mounted jet engines. They are capable of seating between 120 and 189 passengers, depending upon the model and configuration. The modification incorporates the installation of dual IS&S Mach Airspeed Indicators, replacing the existing Mach Airspeed Indicators. The Mach Airspeed Indicators have two modes, normal and standby, which incorporate both a repeater function and a pneumatic function. These systems have a potential to be vulnerable to high-intensity radiated fields (HIRF) external to the airplane.

Under the provisions of 14 CFR 21.101, Amendment 21-69, effective September 16, 1991, Aircraft Systems & Manufacturing, Inc. must show that the Boeing Model 727-100 and -200 series airplanes, as modified to include the new dual IS&S Mach Airspeed Indicators, continue to meet the applicable provisions of the regulations incorporated by reference in Type Certificate No. A3WE or the applicable regulations in effect on the date of application for the change. Subsequent changes have been made to § 21.101 as part of Amendment 21-77, but those changes do not become effective until June 10, 2003. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The specific regulations included in the certification basis for the Boeing Model 727-100 and -200 series airplanes include Civil Air Regulations (CAR) 4b, as amended by amendments 4b-1 through 4b-12.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , CAR 4b, as amended) do not contain adequate or appropriate safety standards for the Boeing Model 727-100 and -200 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Boeing 727-100 and “200 series airplanes must comply with fuel vent and exhaust emissions requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

Special conditions, as defined in 14 CFR 11.19, are issued in accordance with § 11.38 and become part of the airplane's type certification basis in accordance with § 21.101(b)(2), Amendment 21-69, effective September 16, 1991.

Special conditions are initially applicable to the model for which they are issued. Should Aircraft Systems & Manufacturing, Inc. apply at a later date for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

Boeing Model 727-100 and -200 airplanes modified by Aircraft Systems & Manufacturing, Inc. will incorporate new dual IS&S Mach Airspeed Indicators that will perform critical functions. These systems may be vulnerable to high-intensity radiated fields external to the airplane. The current airworthiness standards of part 25 do not contain adequate or appropriate safety standards that address the protection of this equipment from the adverse effects of HIRF. Accordingly, these systems are considered to be novel or unusual design features.

There is no specific regulation that addresses protection requirements of electrical and electronic systems from HIRF. Increased power levels from ground-based radio transmitters and the growing use of sensitive avionics/electronics and electrical systems to command and control airplanes have made it necessary to provide adequate protection.

To ensure that a level of safety is achieved that is equivalent to that intended by the regulations incorporated by reference, special conditions are needed for the Boeing Model 727-100 and -200 series airplanes modified by Aircraft Systems & Manufacturing, Inc. These special conditions require that the new dual IS&S Mach Airspeed Indicators, which perform critical functions, be designed and installed to preclude component damage and interruption of function due to both the direct and indirect effects of HIRF.

With the trend toward increased power levels from ground-based transmitters and the advent of space and satellite communications, coupled with electronic command and control of the airplane, the immunity of critical digital avionics/electronics and electrical systems to HIRF must be established.

It is not possible to precisely define the HIRF to which the airplane will be exposed in service. There is also uncertainty concerning the effectiveness of airframe shielding for HIRF. Furthermore, coupling of electromagnetic energy to cockpit-installed equipment through the cockpit window apertures is undefined. Based on surveys and analysis of existing HIRF emitters, an adequate level of protection exists when compliance with the HIRF protection special condition is shown with either paragraph 1 or 2 below:

1. A minimum threat of 100 volts rms (root-mean-square) per meter electric field strength from 10 KHz to 18 GHz.

a. The threat must be applied to the system elements and their associated wiring harnesses without the benefit of airframe shielding.

b. Demonstration of this level of protection is established through system tests and analysis.

2. A threat external to the airframe of the field strengths indicated in the table below for the frequency ranges indicated. Both peak and average field strengths components from the table are to be demonstrated.

The threat levels identified above are the result of an FAA review of existing studies on the subject of HIRF, in light of the ongoing work of the Electromagnetic Effects Harmonization Working Group of the Aviation Rulemaking Advisory Committee.

Applicability: As discussed above, these special conditions are applicable to the Boeing Model 727-100 and -200 airplanes modified by Aircraft Systems & Manufacturing, Inc. to install new dual IS&S Mach Airspeed Indicators. Should Aircraft Systems & Manufacturing, Inc. apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate A3WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well under the provisions of § 21.101(a)(1), Amendment 21-69, effective September 16, 1991.

This action affects only certain design features on the Boeing Model 727-100 and -200 series airplanes modified by Aircraft Systems & Manufacturing, Inc. to include the new dual IS&S Mach Airspeed Indicators. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplanes.

The substance of the special conditions for these airplanes has been subjected to the notice and comment procedure in several prior instances and has been derived without substantive change from those previously issued. Because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the supplemental type certification basis for the Boeing Model 727 -100 and -200 series airplanes as modified by Aircraft Systems & Manufacturing, Inc.

1. Protection from Unwanted Effects of High-Intensity Radiated Fields (HIRF) . Each electrical and electronic system that performs critical functions must be designed and installed to ensure that the operation and operational capabilities of these systems to perform critical functions are not adversely affected when the airplane is exposed to high-intensity radiated fields external to the airplane.

2. For the purpose of these special conditions, the following definition applies: Critical Functions: Functions whose failure would contribute to or cause a failure condition that would prevent the continued safe flight and landing of the airplane.

On October 17, 1997, FAA issued a Special Airworthiness Information Bulletin (SAIB) to recommend an inspection of the horizontal stabilizer attachment on EXTRA Models EA-300, EA-300L, and EA-300S airplanes. The SAIB recommended compliance with EXTRA Service Bulletin SB-300-2-95.

The Luftfahrt-Bundesamt (LBA), which is the airworthiness authority for Germany, did not consider the actions of the service bulletin mandatory and consequently did not issue an AD against airplanes on the German register. The FAA also did not issue an AD at this time because the service history did not warrant such action.

Since that time, FAA has received information that indicates fatigue cracks at the horizontal stabilizer attachment are occurring on the above-referenced airplanes. These airplanes are utilized in aerobatic maneuvers and the stress in the area of the horizontal stabilizer can lead to cracks in this area, as well as in the upper longerons and diagonal braces.

This condition, if not corrected, could lead to structural failure of the aft fuselage with consequent loss of control of the airplane.

We issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain EXTRA Models EA-300, EA-300L, and EA-300S airplanes. This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on September 26, 2001 (66 FR 49148). The NPRM proposed to require:

The FAA encouraged interested persons to participate in the making of this amendment. One person responded. The following presents the comments received on the proposal from this person and FAA's response to each comment:

The commenter states that FAA has no justification for issuing the proposed AD. These concerns include:

1. The service bulletin adequately addresses the problem.

2. The manufacturer was unaware of FAA's intent to propose an AD.

3. The LBA never even considered issuing an AD.

4. The accident Model EA-300S airplane was used for competition and was operated outside the design envelope.

We infer that the commenter wants the NPRM withdrawn.

We do not concur that the NPRM should be withdrawn. The following addresses each of the issues specified above:

1. The only way FAA can enforce the actions of a service bulletin on airplanes registered for operation in the United States is by issuing an AD.

2. We notified the LBA, which is the airworthiness authority for Germany (the State of Design of the affected airplanes), of our intent to issue an AD. This is in accordance with the bilateral agreement between the United States and Germany.

3. According to our correspondence, the LBA believed that this condition was only isolated to those aircraft in the United States, and thus LBA was not planning on initiating AD action.

4. We agree that the correct use of an AD is not to address a structural failure when the airplanes are flown outside of their certificated limits. However, we are not aware of any crew statements or other information that the failures of the aft fuselage structure were due to airplanes flying outside the design envelope.

We are not changing the final rule AD action as a result of these comments.

The commenter states that we have not shown how the condition on the Model EA-300S airplanes is likely to exist or develop on the Models EA-300 and EA-300L airplanes. The commenter points out that no service history exists on fatigue failure of the aft fuselage structure for the Models EA-300 and EA-300L airplanes. The commenter also states that EXTRA has said that only the Model EA-300S airplanes are conducive to this condition.

We concur that no service history exists on the fatigue failures of the aft fuselage structure for the Models EA-300 and EA-300L airplanes. While EXTRA may have made statements that only the Model EA-300S airplanes were affected by this condition, EXTRA has included the Models EA-300 and EA-300L airplanes in every service bulletin revision level related to this subject.

We have re-evaluated all information related to this subject and have decided to only apply the AD to the Model EA-300S airplanes. We will continue to monitor this subject on the Models EA-300 and EA-300L airplanes and may implement future rulemaking action if necessary.

We are changing the final rule AD action so that only the Model EA-300S airplanes are contained in the Applicability.

The commenter states that we underestimated the cost impact that the proposed AD would have upon the public. The commenter estimates that the proposed AD costs three times more than what we estimated, but the commenter does not provide any specific labor and parts costs.

Due to the unavailability of cost information on this subject, we estimated the labor and parts cost to accomplish the inspection and any repairs. As in any aircraft modification or repair, there is chance of variation in cost estimates from airplane to airplane.

We have determined that our cost estimate is as accurate as possible at this time. No substantiating information was presented to show that it is in error. Therefore, we are not changing the final rule as a result of this comment.

After careful review of all available information related to the subject presented above, we have determined that air safety and the public interest require the adoption of the rule as proposed except for removing the Models EA-300 and EA-300L airplanes from the Applicability and minor editorial corrections. We have determined that this removal and the minor corrections:

We estimate that this AD affects 21 airplanes in the U.S. registry.

We estimate the following costs to accomplish the inspection:

We estimate the following costs to accomplish any necessary repair or replacement that will be required based on the results of the inspection. We have no way of determining the number of airplanes that may need such repair or replacement:

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the final evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) by superseding AD 2001-25-11, Amendment 39-12564 (67 FR 1, January 2, 2002), which is applicable to Pratt and Whitney (PW) model 4000 series turbofan engines, was published in the Federal Register on July 23, 2002. That action proposed to establish requirements similar to those in AD 2001-25-11, to introduce rules-based criterion to determine the engine category classification for engines installed on Airbus A300 airplanes, and to add requirements to manage the engine configurations installed on Boeing 747 airplanes. That action also proposed to require repetitive Testing-21 be performed on certain configuration engines. That action also proposed to establish criteria which would require Testing-21 on certain engines with Phase 0 or Phase 1, FB2T or FB2B fan blade configurations. In addition, that action proposed to re-establish HPC-to-HPT cycles-since-overhaul cyclic mismatch criteria, and add criteria to address engine installation changes, engine transfers, and thrust rating changes. Also, that action proposed to establish criteria to allow engine stagger without performing Testing-21 for engines over their respective limits.

This final rule; request for comments supersedes AD 2001-25-11 by requiring the same actions as the proposal, and in addition, introduces new requirements for the Phase 3, first run subpopulation engines that were identified after the issuance of the proposal.

The FAA has reviewed and approved the technical contents of the following Pratt & Whitney service information:

• Service Bulletin PW4ENG72-714, Revision 1, dated November 8, 2001.

• Service Bulletin PW4ENG72-749, dated June 17, 2002.

• Internal Engineering Notice IEN 96KC973D, dated October 12, 2001.

• Temporary Revision (TR) TR 71-0018, dated November 14, 2001.

• TR 71-0026, dated November 14, 2001.

• TR 71 71-0035, dated November 14, 2001.

• Cleaning, Inspection, and Repair (CIR) procedure CIR 51A357, Section 72-35-68, Inspection/Check-04, Indexes 8-11, dated September 15, 2001.

• CIR 51A357, Section 72-35-68, Repair 16, dated June 15, 1996.

• PW4000 PW engine manual (EM) 50A443, 71-00-00, TESTING-21, dated March 15, 2002.

• PW4000 PW EM 50A822, 71-00-00, TESTING-21, dated March 15, 2002.

• PW 4000 PW EM 50A605, 71-00-00, TESTING-21, dated March 15, 2002.

The FAA has reviewed and approved the technical contents of Chromalloy Florida Repair Procedures, 00 CFL-039-0, dated December 27, 2000 and 02 CFL-024-0, dated September 15, 2002.

Since an unsafe condition has been identified that is likely to exist or develop on other Pratt & Whitney PW4000 series turbofan engines of this same type design, the AD is issued to prevent engine takeoff power losses due to HPC surges, and supersedes AD 2001-25-11 to require:

• Establishing requirements similar to those in the existing AD, and use of a rules-based criterion to determine the engine category classification for engines installed on Airbus A300 airplanes.

• Adding requirements to manage the engine configurations installed on Boeing 747 airplanes. This engine and airplane combination would allow, for certain engine configurations, one of the four installed engines to remain on-wing until the HPC has accumulated up to 2,600 CSN or CSO before Testing-21 or until an HPC overhaul is required.

• Configuration F engines to repeat Testing-21 every 800 CST.

• Establishing criteria which would require Testing-21 on engines with Phase 0 or Phase 1, FB2T or FB2B fan blade configurations complying with the requirements of AD 2001-09-05, (66 FR 22908, May 7, 2001); AD 2001-09-10, (66 FR 21853, May 2, 2001), or AD 2001-01-10, (66 FR 6449, January 22, 2001).

• Re-establishing HPC-to-HPT CSO cyclic mismatch criteria.

• Establishing criteria to address engine installation changes, engine transfers, and thrust rating changes.

• Establishing criteria to allow an engine to be removed from service and reinstalled on an airplane, without requiring Testing-21, if this engine is the unmanaged engine for that airplane.

• Adding Configuration G engines, which represents the Phase 3, first run subpopulation engines and establishes requirements that reduces stagger limits.

• Adding Configuration H engines, which represents the Phase 3, first run subpopulation engines to repeat Testing-21 every 600 CST.

The actions are required to be done in accordance with the service information described previously, and have been coordinated with the Transport Airplane Directorate.

Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.

Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption ADDRESSES . All communications received on or before the closing date for comments will be considered, and this rule may be amended in light of the comments received. Factual information that supports the commenter's ideas and suggestions is extremely helpful in evaluating the effectiveness of the AD action and determining whether additional rulemaking action would be needed.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NE-47-AD.” The postcard will be date stamped and returned to the commenter.

The FAA received several comments to NPRM, Docket No. 2000-NE-47. Even though this amendment is a final rule; request for comments, the FAA has chosen to address all comments received. Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received, from the nine commenters.

One commenter states that there is no reason why 200,000 cycles and 1.45 exhaust pressure ratio (EPR) should be the threshold values used in the AD to determine A300 4158 engine category 1, 2, or 3 limits, and asks for a technical reason for these values. The FAA disagrees. The FAA asked the original equipment manufacturer (OEM) to establish a rules-based criterion in which to determine the engine category classification for engines installed on Airbus A300 airplanes. The OEM chose a statistical approach and derived the values of 200,000 cycles and 1.45 EPR to represent the boundary conditions in determining the categories. The FAA has reviewed and concurs with this approach. This commenter also states that parameters in addition to EPR could better define the categorization. This commenter suggests using parameters such as rear hook wear and heat shield wear. The FAA disagrees. Although the FAA would support using additional parameters, there is not enough data to do so. Currently, data supports EPR as a parameter to correlate takeoff EPR values to a possible group 3 surge event. While the FAA agrees that rear hook wear may contribute to surge events, there is not enough data to develop a correlation of rear hook wear and heat shield wear to a surge event. The OEM indicates and the FAA agrees, that the heat shield wear is a third-order effect. This commenter also states that the definition of surge is unclear and that noise alone is insufficient to justify a Group 3 surge event. The FAA agrees. It was never the intent to imply that noise alone would classify an event as a Group 3 surge. The FAA also agrees with this first commenter that noise is a good reason to check the DFDR data and follow the trouble shooting process. The FAA has reviewed the definition of surge and has added words to the Group 3 surge definition for clarification.

One commenter questions if it is the FAA's intent to approve the “on-wing” version of Testing-21 and include it into proposed paragraph (h)(1) as an equivalent to the “test cell” version. The FAA is reviewing the data for “on wing” version of Testing-21 but has yet to approve it. Therefore, “on wing” version of Testing-21 is not included in this paragraph of the AD. The FAA agrees with the commenter that, if approved, the FAA would have added this as an option into the paragraph, thereby eliminating the need for alternative methods of compliance (AMOC's). Unfortunately adequate data does not yet exist to approve the “on wing” version of Testing-21. If, at a later date, the FAA makes a finding of equivalence, the operator or the OEM can request an alternate method of compliance to use the “on-wing” version of Testing-21 in place of the “test cell” Testing-21.

This commenter also states that the following text of AD paragraph, under the heading Engines That Surge, “* * * or before further flight if airplane-level troubleshooting procedures require immediate engine removal” is unnecessary and may create confusion. The FAA disagrees. It is implied that the airplane level troubleshooting is surge related troubleshooting, because the paragraph states “airplane-level surge”. However, to prevent possible confusion, wording in the paragraph has been changed to “airplane level surge troubleshooting.” This commenter also requests that any regulatory action on the Phase 3, fist run subpopulation engines be incorporated within this AD. The FAA agrees. This AD adds Configurations G and H engines, which represent these Phase 3, first run subpopulation engines requiring reduced limits. This subpopulation was identified after the issuance of the NPRM. Since an unsafe condition has been identified, immediate actions are required on these Phase 3, first run subpopulation engines.

Another commenter suggests that the effective date of this AD should coincide with the availability of the ring style HPC case, since this new HPC case is the terminating action. The FAA disagrees. Although we agree that the terminating action to this AD requires a hardware change to a ring style HPC case, the current rate of risk accumulation indicates corrective action must be initiated before hardware availability. The ring style HPC case will complete its certification within the first quarter of 2003, with Service Bulletins issuance expected shortly thereafter. However, AD action is required now to minimize the risk. This AD implements action necessary to ensure the risk remains at acceptable levels. This commenter also requests clarification of the requirements on engines which have passed Testing-21. The FAA confirms that once an engine has passed Testing-21, it becomes a Configuration F or H engine and will remain a Configuration F or H engine until the HPC is overhauled, or is replaced with a new or overhauled HPC. Configuration F and H engines are required to repeat Testing-21 within 800 cycles and 600 cycles respectively, since last test or be removed for HPC overhaul, unless it will be used as a single unmanaged engine as permitted by this AD. This commenter also requests that the FAA consider increasing the hard-time limit for HPC overhaul to 2,900 cycles so that any engine which is removed for stagger at HPC 2,100 cycles since overhaul (CSO) in accordance with the AD, can be used up to 2,900 cycles after passing Testing-21. The FAA partially agrees. The 2,100 cycles is not a hard-time limit, but a stagger limit for PW 4056 Configuration B or C engines installed on Boeing 747 airplanes in accordance with Table 3 of the NPRM. Unless designated as the unmanaged engine, these engines on the Boeing 747 must be removed from service before accumulating 2,100 CSN or CSO and perform Testing-21 or complete an HPC overhaul. If Testing-21 is successful, the engine is returned to service as a Configuration F engine. As a Configuration F engine, Testing-21 is required within 800 cycles since last test. In the commenter's example, 800 cycles since last test would be 2,900 CSO. As additional clarification, one of the four installed engines may remain on-wing until the HPC has accumulated up to 2,600 CSN or CSO before Testing-21 or until an HPC overhaul is required.

Another commenter questions why the new unmanaged engine concept of the Boeing 747/PW4056 fleet is limited to 2,600 HPC cycles since new or since overhaul. Since the Phase 3, first run engine configuration's stagger limit is already at 2,600 cycles, this commenter asks the FAA to consider similar manageable time allowance for these engines over its stagger limit. The FAA disagrees. In order to safely manage the fleet risk, PW and Boeing needed to adjust the B747/PW4056 fleet risk. It is a coincidence that the Phase 3, first run engine's stagger limit is also 2,600 cycles. To safely manage the overall program risk, the FAA must maintain the stagger limits and add cycle limits on the unmanaged engine configuration installed on the Boeing 747 airplane. In addition, since the NPRM was issued, a subpopulation of the Phase 3, first run engines has been identified which requires a further limit reduction.

This commenter also states that operators who have been initially categorized as an A300 PW4158 category 2 operator should not have to reassess their category. The commenter states that since the low surge rate of category 2 operators has been proven through their surge experience for a dedicated period of time with respective fleet takeoff EPR application, it is felt that reevaluation is unnecessary. The commenter requests the FAA allow initial category 2 operators to retain the same category throughout the field management plan. The FAA agrees that if takeoff EPR application does not change, the operator will likely remain a category 2 operator. However, additional data suggests that an operator may have a shift in its takeoff EPR values due to various reasons, like route changes. Since the possibility exists of an operator changing their takeoff EPR application, the FAA requires a takeoff EPR re-assessment to ensure proper categorization of the operator. This commenter objects to the retest requirement of Testing-21 on any shop-visited engine. This commenter states that without detailed analysis on the effect of module separation, retest requirement against every engine that has module separation for shop minor maintenance would result in an unnecessary burden to the operator without any benefit on surge risk reduction. The FAA agrees. However, to identify the workscopes that may be exempt from Testing-21 would require knowledge of the specific details of each workscope. By using the AMOC process, each workscope can be evaluated on a case-by-case basis to ensure continued stability of the engine.

Another commenter requests that the FAA change the limitation for Configuration F engines from 800 cycles to an option of either 800 cycles or the applicable threshold in Table 2 or Table 3 in the NPRM, whichever is greater. The FAA disagrees. The cyclic limit threshold manages overall risk, taking into account the HPC surge margin deterioration. Using the commenter's example, this AD requires that if a Configuration C engine is in the shop at 300 cycles and performs Testing-21, it becomes a Configuration F engine and must repeat Testing-21 within 800 cycles. Allowing it to continue in-service until its stagger limit of 2,100 cycles before requiring Testing-21, as the commenter suggests, doesn't take into account the possible HPC surge margin deterioration effects created due to the malfunction that brought the engine into the overhaul shop. Depending upon the workscope of this engine, a technical argument could be developed to support the engine remaining on-wing longer than the 800 cycles. However, this must be done on a case-by-case basis to fully evaluate the workscope and its effect on engine stability. If the workscope was non-evasive to the engine's HPC surge margin, the AMOC process could be used by the operator. This commenter also states that the most current published dates of the PW4000 engine manual (EM) 50A605, 71-00-00, TESTING-21 procedure, and PW4000 CIR Manual 51A357, Section 72-35-68 Inspection/Check-04, are March 15, 2002. The FAA agrees and the appropriate changes have been made to the AD.

This commenter also questions if proposed paragraph (i)(1) is applicable to both on-wing and off-wing maintenance. Proposed paragraph (i)(1) is only applicable during a shop visit when the HPC is not overhauled and a major engine flange separation does not take place. If complying with the listed AD's in proposed paragraph (k) Testing-21 is required whenever any quantity of fan blades are replaced with new blades, overhauled or have the leading edges recontoured. This commenter also requests that the FAA consider the following as an exception to proposed paragraph (m)(3): Testing-21 would not be required on engines with more than 800 cycles remaining to the thresholds listed in Tables 2 and 3, when separating a major flange if the purpose of the workscope was to repair oil leaks in the forward sump, 2.5 bleed system, exhaust case cracks, or to replace fan exit vanes, provided no other work was done to the gas path. The commenter also states that the exception should also permit the removal of gas path items provided they are returned to the same engine. The FAA agrees that depending upon the workscope, some exceptions to this paragraph can be made. However, specific details of the entire workscope would have to be identified to assess the possible effects of HPC surge margin. The AMOC process allows for a case-by-case review of the overall workscope. Those that do not affect HPC surge margin could be candidates for an AMOC. This commenter also suggests an additional requirement be added to proposed paragraph (r)(2)(ii). This paragraph currently states that Configuration E engines require removal within 25 cycles, or immediately, based on troubleshooting. But it does not state what to do with the engine. The commenter suggests adding a requirement to remove the cutback stator configuration from the engine. The FAA understands the concern. After the engine removal, HPC overhaul is required before return to service. Although not economically practical, an HPC overhaul could occur without replacing the cutback stators and this engine could be returned to service until it reaches 1,300 cycles-since-new limit. As long as this engine is removed from service before accumulating 1,300 CSN, it meets the risk criteria of the field management plan that is acceptable to the FAA. Therefore, this paragraph has not been modified but now appears as paragraph (q)(2)(ii).

A commenter disagrees with the economic analysis as noted in the NPRM. The increased restrictions on the Boeing 747 fleet in addition to PW's projected Testing-21 failure rate of 30% increased the number of Testing-21 performed and increased the required HPC overhauls for the years 2002 and 2003. The FAA agrees. The economic analysis also needs to include the effects of the reduced limits on the Phase 3, first run subpopulation engines. The economic analysis has been revised. Based on field data, the non-subpopulation engine Testing-21 failure rate is 12% and not 30%. In addition, the subpopulation engine Testing-21 failure rate is 20%. The economic analysis has been revised to include these failure rates, the increased restrictions on the Boeing 747 fleet, and the reduced limits on the Phase 3, first run subpopulation engines. Although the FAA recognizes that the subpopulation fleet management plan and the added restrictions on the Boeing 747 fleet have increased the economic burden to some of the operators, the FAA believes these actions are necessary to safely manage the Boeing 747 fleet risk.

A commenter is concerned that newly overhauled engines which are split at flange E for split shipment transportation reasons must perform Testing-21 based on the stability testing requirements of the AD. This would become an open loop if the customer had no test cell. The FAA agrees, and has added a paragraph to exempt split-shipped engines from Testing-21, if the engine's HPC was overhauled or Testing-21 was successfully passed following the engine shop visit.

One commenter is currently operating to the category 2 limits in accordance with AD 2001-25-11. Under the requirements of the proposal, this operator, who has a small fleet, will not have accumulated 200,000 cycles and, therefore, will no longer be a category 2 operator. In addition, because they will not have enough EPR data to support operation to category 1 limits, they will be required to operate to the category 3 limits. This operator has asked the FAA to reconsider their fleet categorization. The FAA has reviewed this situation with the OEM. The OEM has suggested it may be feasible for the operator to obtain a sufficient amount of EPR data that can be used as the basis for an AMOC to operate to Category 1 limits. By using the AMOC process, the feasibility of an alternate method can be evaluated on a case-by-case basis.

One commenter has no objections to the rule as proposed.

In addition, the FAA has reviewed additional data from the OEM regarding changes to the A300 Category 1, 2, 3 Takeoff EPR criteria based on further assessment of A300 operator takeoff data. The OEM data suggests a need to change the limits of the percentage of takeoffs greater than 1.45 takeoff EPR data to values that are less conservative relative to the original limits in the NPRM. The original NPRM values were conservative to allow additional time to access the takeoff EPR field data. The FAA has reviewed the data and agrees that changes are necessary. Therefore, the limits in paragraphs (f)(9), (h)(1), and (h)(2) in this AD have been revised. Also, the FAA has reviewed and approved PW SB PW4ENG-72-749 and Chromalloy Florida Repair Procedure 02 CFL-024-0 as acceptable methods to repair the HPC inner case mid hook. Therefore, these procedures are incorporated by reference and are added as additional methods of compliance to paragraph (k)(2)(i) of this AD.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will not increase the scope of the AD. The FAA has determined, however, that an additional opportunity for comment should be afforded because of the changes made to this AD.

There are approximately 2,115 engines of the affected design in the worldwide fleet. The FAA estimates that 711 engines installed on airplanes of U.S. registry would be affected by this AD. The economic analysis estimates an annual cost from November 2002 through the end of March 2007, (4.4 years or 53 months) at which time the ring style HPC case is predicted to be 100% incorporated into the fleet. However, the cost of the ring case incorporation is not being assessed within this analysis. The FAA estimates 30 test cell stability tests per month based on the latest Testing-21 reports from the total fleet. Over 4.4 years (or 53 months), the FAA estimates a fleetwide total of 1590 test cell stability tests or on average 361 test cell stability tests per year. For the domestic fleet (33.6% of worldwide fleet), a yearly rate of 121 test cell stability tests per year is estimated. Assuming a 12% Testing-21 failure rate using the latest statistics, 14 engines per year for the domestic fleet would require an HPC overhaul. In addition, the FAA estimates 2 surges per month based on April 2001 through September 2002 actual Group 3 surge events. Over 4.4 years (or 53 months), the FAA estimates a total of 106 HPC surges and on average 24 fleetwide surges per year. For the domestic fleet, the FAA estimates 8 surges per year. Therefore, the FAA estimates for the domestic fleet 121 test cell stability tests per year and 22 HPC overhauls per year. It is estimated that the cost to industry of a test cell stability test will average $15,000 and an HPC overhaul will cost approximately $400,000. Based on these figures, the total average annual cost of the AD to U.S. operators is estimated to be $10,615,000.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an airworthiness directive (AD) that is applicable to certain Boeing Model 757-200, -200CB, and -300 series airplanes was published in the Federal Register on February 26, 2002 (67 FR 8741). That action proposed to require determining the part numbers of the master control valve on the pressure bottles that activate the off-wing escape slides, and corrective action, if necessary.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

Two commenters concur with the proposed AD. One additional commenter states that it does not operate any affected airplanes.

One commenter requests that the FAA revise the applicability statement to specify “Model 757-200, -200CB, and -300 series airplanes, line numbers 1 through 905, equipped with an off-wing escape slide system, . . . .” The applicability statement of the proposed AD specifies “Model 757-200, -200CB, and -300 series airplanes, as listed in Boeing Special Attention Service Bulletin 757-25-0214 or 757-25-0216, both dated April 6, 2000, . . . .” The commenter states that revising the applicability statement would make it easier to identify affected airplanes without referring to the service information.

The FAA concurs and has revised the applicability statement of this final rule accordingly.

One commenter requests that we revise paragraphs (a)(1), (a)(2), and (b) of the proposed AD to identify the manufacturers associated with each of the part numbers listed in those paragraphs. The commenter states that this change would eliminate any confusion about the correct part number of the airplane manufacturer or vendor.

We concur and have revised paragraphs (a)(1), (a)(2), and (b) of this final rule accordingly.

One commenter requests that Boeing Special Attention Service Bulletin 757-25-0216, dated April 6, 2000, include instructions to deactivate the aft cargo loading system on Boeing Model 757-300 series airplanes, if such a system is installed, before doing the proposed inspections and corrective actions.

Though the commenter provides no justification for the change, we infer that the commenter makes this recommendation in the interest of the safety of maintenance personnel. While this AD is not intended to address safety concerns related to cargo loading systems, we find that the commenter's recommendation represents a sound precaution that operators may want to consider when accomplishing the actions required by this AD. Therefore, we have added Note 2 to this final rule (and renumbered a subsequent note accordingly) to state that operators may want to deactivate any installed cargo handling system before undertaking the actions required by paragraph (a) of this AD.

One commenter, the airplane manufacturer, requests that we extend the proposed compliance time from 18 months to 36 months. The commenter states that a 36-month compliance time would allow operators to accomplish the necessary actions at a regularly scheduled maintenance interval. The commenter justifies its request by stating that, in the unlikely event an off-wing escape slide fails to automatically inflate, the escape slide can still be inflated using the manual inflation handle. Thus, the escape slide would still be available if needed for an emergency evacuation. The FAA acknowledges that the manual inflation handle provides a reduction of risk. Therefore, we concur that the compliance time for paragraph (a) of this AD may be extended to 36 months and yet still maintain an adequate level of safety in the fleet. We have revised paragraph (a) of this final rule accordingly.

One commenter disagrees with our estimate of the cost impact of the proposed AD. The commenter notes that the estimate only considers direct labor costs for removal and reinstallation of the valves and does not assess the costs that operators may incur for replacement or modification of the valves. The commenter states that, while the parts manufacturer has been exchanging the subject valves at no cost to operators, once the exchange program ends, operators will be charged for valve modification or exchange.

We infer that the commenter is requesting that we revise the cost estimate in this final rule to include an estimate of the cost of required parts if the parts are not covered by the parts manufacturer's exchange program. We concur. If an operator must purchase a replacement valve, we estimate that it will cost $15,000. We have revised the Cost Impact section of this final rule accordingly. We also have included a statement that the “parts manufacturer may cover the cost of replacement parts associated with this AD, subject to the conditions of its exchange program,” and, thus, the costs attributable to this AD may be less than stated.

After careful review of the available data, including the comments noted above, we have determined that air safety and the public interest require the adoption of the rule with the changes previously described. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 435 Model 757-200, -200CB, and -300 series airplanes of the affected design in the worldwide fleet. We estimate that 360 airplanes of U.S. registry will be affected by this AD, that it will take approximately 1 work hour per airplane to accomplish the required inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspection required by this AD on U.S. operators is estimated to be $21,600, or $60 per airplane.

Should an operator be required to accomplish the replacement of the valve and placard, it will take approximately 2 work hours per airplane to accomplish, at an average labor rate of $60 per work hour. Required parts will cost approximately $15,000. Based on these figures, the cost impact of the replacement is estimated to be $15,120 per airplane. The parts manufacturer may cover the cost of replacement parts associated with this AD, subject to the conditions of its exchange program. As a result, the costs attributable to this AD may be less than stated above.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this action (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained from the Rules Docket at the location provided under the caption ADDRESSES .

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that is applicable to Pratt & Whitney (PW) JT8D-200 series turbofan engines was published in the Federal Register on July 10, 2002 (67 FR 45680). That action proposed to require the installation of stops on the fan exit guide vane case in accordance with Pratt & Whitney (PW) service bulletin No. 6100, Revision 2, dated December 9, 1998.

Interested persons have been afforded an opportunity to participate in the making of this amendment. Due consideration has been given to the comments received.

One commenter states that the fan exit guide vane case stops should not be required for engines that incorporate the improved fan blades required by AD 99-10-11. The commenter states that the installation of the improved fan blades prevents fan blade failures which cause fan case failures; therefore, the stops should not be required once the improved fan blades are incorporated.

The FAA does not agree. It is true that the fan blade modification mandated by AD 99-10-11 greatly improves the durability of the fan blades. However, the modifications cannot guarantee that a fan blade will never be released for any cause. Further, airworthiness standards for engines require that the design and construction of engines be such that failure of the most critical fan blade does not lead to an unsafe condition. Separation of the fan exit guide vane case from the fan duct assembly can lead to a number of unsafe conditions that hazard the aircraft. The intent of this AD is to return the engine to the level of safety prescribed by the airworthiness standards in the Code of Federal Regulations.

Two commenters state that the definition of shop visit should be changed to exclude line-maintenance type shop visits.

The FAA agrees. The shop visit definition has been changed in this final rule.

One commenter states that the installation of the stops will add additional weight that will increase the operational costs associated with increased annual fuel requirements and therefore this AD should not be issued.

The FAA does not agree. While the annual fuel burn requirements may increase due to additional weight, the FAA has determined that this potential cost increase is outweighed by the increase in safety that will result from the lower risk of aircraft damage after the installation of the stops.

One commenter states that the applicability section needs clarification to indicate which case and duct part numbers the stops must be installed on.

The FAA agrees. The applicability has been changed to state the part numbers for the cases and the ducts that will require the installation of the stops in the AD.

One commenter states that the AD should allow additional options for rubber strips on the forward ID of each stop to prevent vibration instead of using silicone and allow bolt hole clocking options for the stops. The commenter states that the silicone is cumbersome to apply and difficult to remove, and the clocking options are requested to prevent interference with brackets or case repairs.

The FAA does not agree. The FAA is not familiar with the details of the design changes being requested, however, we will evaluate them as an alternate method of compliance if submitted in accordance with paragraph (d) of this AD.

One commenter requests that compliance with the previous SB's PW ASB 6100, Original and Revision 1, constitute compliance with the AD. Many of the commenter's engines have already complied to the earlier SB's.

The FAA agrees. Credit for compliance to earlier revisions of PW ASB 6100 has been added to this final rule.

The National Transportation Safety Board agrees with the proposal as written.

After careful review of the available data, including the comments noted above, the FAA has determined that air safety and the public interest require the adoption of the rule with the changes described previously. The FAA has determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are approximately 1,346 PW JT8D-200 series engines of the affected design in the worldwide fleet. The FAA estimates that 821 engines installed on airplanes of U.S. registry would be affected by this AD. The FAA also estimates that it would take approximately 1.5 work hours per engine to perform the actions, and that the average labor rate is $60 per work hour. Required parts would cost approximately $5,200 per engine. Based on these figures, the total cost of the AD to U.S. operators is estimated to be $4,343,090.

This final rule does not have federalism implications, as defined in Executive Order 13132, because it 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. Accordingly, the FAA has not consulted with state authorities prior to publication of this final rule.

For the reasons discussed above, I certify that this action (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. A final evaluation has been prepared for this action and it is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES .

On August 27, 2002, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by amending Class D airspace at Titusville, FL, (67 FR 54976). Class D airspace designations for airspace areas extending upward from the surface of the earth are published in Paragraph 5000 of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR Part 71) amends Class D airspace at Titusville, FL.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On Wednesday, August 28, 2002, the FAA proposed to amend 14 CFR part 71 to modify Class D and Class E airspace at Knob Noster, Whiteman AFB, MO (67 FR 21136). The proposal was to modify Class D airspace and Class E airspace designated as a surface area to contain instrument approach procedures and to eliminate the extension to Class E airspace extending upward from 700 feet above the surface of the earth. Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received. Class D airspace designations are published in paragraph 5000, Class E airspace areas extending upward from the surface of the earth in paragraph 6002, and Class E airspace areas extending upward from 700 feet or more above the surface of the earth in paragraph 6005, of FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document would be published subsequently in the Order.

This amendment to Part 71 of the Federal Aviation Regulations (14 CFR Part 71) modifies Class D and Class E airspace at Knob Noster, Whiteman AFB, MO to provide adequate controlled airspace for aircraft executing instrument flight procedures. It also removes from Class E airspace designation airspace no longer required to be identified as controlled airspace. The areas will be depicted on appropriate aeronautical charts.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA published this direct final rule with a request for comments in the Federal Register on August 20, 2002 (67 FR 53877). The FAA uses the direct final rulemaking procedure for a non-controversial rule where the FAA believes that there will be no adverse public comment. This direct final rule advised the public that no adverse comments wee anticipated, and that unless a written adverse comment, or a written notice of intent to submit such an adverse comment, were received within the comment period, the regulation would become effective on November 28, 2002. No adverse comments were received, and thus this notice confirms that this direct final rule will become effective on that date.

On August 20, 2002, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR part 71) by establishing Class E5 airspace at Spruce Pine, NC, (67 FR 53895). This action provides adequate Class E5 airspace for IFR operations at Avery County Airport, Spruce Pine, NC. Designations for Class E airspace extending upward from 700 feet or more above the surface are published in FAA Order 7400.9K, dated August 30, 2002, and effective September 16, 2002, which is incorporated by reference in 14 CFR part 71.1. The Class E designation listed in this document will be published subsequently in the Order.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments objecting to the proposal were received.

This amendment to part 71 of the Federal Aviation Regulations (14 CFR part 71) establishes Class E5 airspace at Spruce Pine, NC.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation, as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

On August 22, 2002, the Postal Service published for public comment in the Federal Register a proposed rule (FR 67 54397-54399) that expanded provisions for mailers using the simplified address format. The Postal Service also invited comments on the proposed rule from interested parties and accepted comments until September 23, 2002. No comments were received during the comment period. This final rule contains the DMM standards adopted by the Postal Service after the comment period ended.

Some mailers elect to use the simplified form of address for their mass mailings. Simplified address is an alternate-addressing format that allows mailers to prepare mailpieces without using individual names and addresses within very specific requirements. Instead of using individual addresses, the mailpieces are simply addressed as “Postal Customer” (or a similar designation as permitted). Eligibility to use the simplified address format is determined by the type of route selected for distribution, and in some instances by the type of mailer, as follows:

• Rural Routes, Highway Contract Routes, and Post Office Boxes. Any mailer may use simplified address format for the distribution of mail to rural routes, highway contract routes, and Post Office boxes at offices without city carrier service. Distribution of such mail is made to each boxholder on a rural route or highway contract route, each family on a rural route or highway contract route (at any Post Office), or all Post Office boxholders at a Post Office without city carrier service.

• City Routes and Post Office Boxes. Only certain authorized governmental entities may use the simplified address format for the distribution of mail to city routes or to Post Office boxes at Post Offices with city carrier service. Authorized governmental entities include U. S. Congress and Federal Government agencies or state, county, or municipal governments, and the governments of the District of Colombia, the Commonwealth of Puerto Rico, and any U.S. territory or possession listed in Domestic Mail Manual (DMM) G010. Distribution of such mail must be made to each stop or possible delivery on city carrier routes, or to each Post Office box at Post Offices with city carrier service.

Domestic Mail Manual (DMM) A040 is revised to clarify the preparation requirements for letters and flats that use the simplified address format. Additionally, all congressional mailings using the simplified address format will use PS Tag 11, Congressional Mail, “Postmaster—Open and Distribute” on all containers to ensure appropriate handling through downstream postal processes. This tag, which will help identify congressional mail as it moves through the mailstream, will be firmly attached to the mailing container.

This revision is a result of recommendations and suggestions from mailers and Postal Service personnel and will ensure that customer expectations for accurate processing and timely delivery are met. This will be achieved by clarifying and reinforcing procedures that will increase the identification of containers used in preparation of this type of mail. The Postal Service and mailers who use this mail format believe that clarifying and reinforcing the preparation and container labeling requirements will enable more accurate processing of the mail. It will also help maintain the integrity of mail using the simplified address format and prevent potential service breakdowns that may occur when such mail is inadvertently separated from the container identifying its destination as a result of inadequate preparation and container labeling. These discrepancies can cause unnecessary delays during postal handling and may increase postal processing costs.

The Domestic Mail Manual is revised as follows. These changes are incorporated by reference in the Code of Federal Regulations. See CFR part 111.

Throughout this document, “we,” “us” and “our” refer to EPA.

Table 1 lists the rule addressed by this proposal with the dates that it was revised by the local air agency and submitted to EPA by the California Air Resources Board (CARB).

On July 20, 2001, this rule submittal was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

The previous version of VCAPCD Rule 74.9 is SIP Rule 74.9, Stationary Internal Combustion Engines, approved into the SIP on August 23, 1995 (60 FR 43713).

Rule 74.9 regulates NO X and CO emissions from stationary internal combustion engines with a brake horsepower rating of 50 or greater located at a major stationary source. The SIP rule applies to such engines throughout VCAPCD, which includes the mainland severe ozone nonattainment area plus two Channel Islands designated unclassifiable. 40 CFR 81.305. The purpose of changing Rule 74.9 relative to the SIP Rule is to include an exemption to the rule for engines operated on the two Channel Islands, San Nicolas Island (SNI) and Anacapa Island (AI). The TSD has more information about this rule.

Generally, SIP rules must be enforceable (see section 110(a) of the CAA), must require Reasonably Available Control Technology (RACT) for major sources in nonattainment areas (see section 182(a)(2)(A)), must not interfere with applicable requirements including requirements concerning attainment (see section 110(l)), and must not relax existing requirements in effect prior to enactment of the 1990 CAA amendments (see section 193). The VCAPCD regulates sources within a severe ozone nonattainment area. 40 CFR 81.305. Therefore Rule 74.9 must fulfill RACT requirements for such sources.

Guidance and policy documents that we used to define specific enforceability and RACT requirements include the following:

• Requirements for Preparation, Adoption, and Submittal of Implementation Plans, U.S. EPA, 40 CFR part 51.

• Issues Relating to VOC Regulation, Cutpoints, Deficiencies, and Deviations (the “Blue Book”), U.S. EPA, OAQPS (May 25, 1988).

• State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 (the “NO X Supplement to the General Preamble”), U.S. EPA, 57 FR 55620 (November 25, 1992).

• Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Stationary Spark-Ignited Internal Combustion Engines, California Air Resources Board (November 2001).

The revised Rule 74.9 includes an exemption for engines used on the offshore SNI and AI. The exemptions to Rule 74.9 are reasonable, because the VCAPCD federal ozone nonattainment area does not include SNI and AI and the 1994/1995 ozone Air Quality Management Plan does not rely on decreasing NO X emission controls on SNI and AI. Therefore there will be no interference with the requirements concerning attainment of the ozone National Ambient Air Quality Standards in the VCAPCD nonattainment area and the rule complies with section 110(l) of the CAA.

The revisions to Rule 74.9 do not affect the requirements for sources within the nonattainment area. For these sources, Rule 74.9 exceeds RACT requirements for NOX emission standards and meets the more stringent NOX and CO emission standards for Best Available Retrofit Control Technology (BARCT).

We believe the rule is consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. The TSD has more information on our evaluation.

The VCAPCD Rule 74.9 TSD describes additional rule revisions that do not affect EPA's current action but are recommended for the next time the local agency modifies the rule.

As authorized in section 110(k)(3) of the CAA, EPA is fully approving the submitted rule because we believe it fulfills all relevant requirements. We do not think anyone will object to this approval, so we are finalizing the approval without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by November 25, 2002, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on December 24, 2002. This will incorporate the rule into the federally-enforceable SIP.

NO X helps produce ground-level ozone, smog, and particulate matter which harm human health and the environment. EPA has established National Ambient Air Quality Standards (NAAQS) for ozone. Section 110(a) of the CAA requires states to submit regulations in order to achieve and maintain the NAAQS. Table 2 lists some of the national milestones leading to the submittal of these local agency NO X rules.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4).

This rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 24, 2002. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

In FR Doc. 02-14747 of June 14, 2002, (67 FR 40989), we published final regulations that implemented the statutory provisions from the Balanced Budget Act of 1997 (BBA) related to Medicaid managed care. As published, a provision of § 431.220, and several provisions of the new part 438, contained technical errors. The errors included typographical errors, incorrect cross-references, incorrectly designated paragraphs, and contradictions. We are in this final rule correcting the identified errors.

Section 431.220 identifies when the State agency must grant a fair hearing to a beneficiary, and was amended by the June 14, 2002 final rule to add new reasons or circumstances under which a State fair hearing must be granted. Section 438.56(f)(2) specifies that an enrollee may request a State fair hearing, for example, if the enrollee is dissatisfied with the State agency's determination that there is not good cause for disenrollment. The preamble to the final rule makes clear that it was CMS” intent that these new rights be provided.

However, we inadvertently neglected to include a cross-reference to this new right in § 431.220, under the heading “ When a hearing is required ”. This is corrected by adding a new item (7) to § 431.220, identifying the new circumstance when a State fair hearing must be granted as related to disenrollment.

In § 438.8, which identifies provisions that apply to PIHPs and PAHPs, paragraph (b) identifies provisions of part 438 that apply to prepaid ambulatory health plans (PAHPs). In this provision, we inadvertently omitted a reference to prohibitions against affiliations with individuals debarred by Federal agencies in § 438.610. Again, it is clear from the preamble, and from the text of § 438.610, that this provision was intended to apply to PAHPs. This error is corrected by adding a new item (8) to § 438.8(b) to reference prohibited affiliations with individuals debarred by Federal agencies in § 438.610.

In § 438.10, which sets forth requirements relating to information, in subparagraph (e)(1)(ii) the term “PIHP” and in subparagraph (i)(3) the term “potential enrollee,” are in the singular form, but should be plural to conform with other nouns that are plural in the provision. These grammatical errors are corrected by making the terms plural.

In several paragraphs, there were inaccurate cross-references to other provisions of the regulations text. In § 438.10(f)(6)(iv), the reference to “§ 438.10(h)” should be “§ 438.10(h)(1)”. In § 438.52(d), the reference to paragraphs “(b)(2) or (b)(3)” should be “(b) or (c)”. In § 438.100(b)(iii), the reference to “§ 438.10(f)(6)(xiii)” should be “§ 438.10(f)(6)(xii)”. In § 438.102(c), the reference to “§ 438.10(e)(2)(ii)” should be “§ 438.10(e)(2)(ii)(E)”. These are corrected in this final rule by inserting the correct regulatory citations.

In both subparagraph (b)(2) and paragraph (c) in § 438.102, which addresses provider-enrollee communications, we added the clarifying term “paragraphs” following “§ 438.102'.

In § 438.114, governing emergency and post-stabilization services, the requirements in paragraphs (a) through (e) were intended to apply to all types of managed care programs. It is clear from the preamble to the final rule that this was CMS's intent. However, in paragraph (d)(ii), “PIHP” and “PAHP” inadvertently were omitted.

This is corrected in this final rule by including a reference to “PIHP” and “PAHP”.

Paragraph (b)(2)(i) of § 438.116, which sets forth solvency standards, creates an exception to the solvency standard in paragraph (b) for entities that do not provide both inpatient hospital and physician services. By definition, PAHPs would not provide inpatient services. Therefore, the references to PAHPs in paragraph (b) are extraneous. This is corrected in this final rule by removing the two references to PAHPs in paragraphs (b)(1) and (2).

In two places, paragraphs are incorrectly designated. In § 438.214, on provider selection, there are two paragraphs designated “(a)”. This is corrected in this final rule by redesignating the second paragraph as “(b)”. In § 438.810, on expenditures for enrollment broker services, the last paragraph (c) is actually a continuation of paragraph (b) specifying conditions that enrollment brokers must meet. This is corrected in this final rule by redesignating paragraph “(c)” as “(b)(3)”.

In § 438.730, on sanctions by CMS, subparagraphs (e)(1) and (e)(2), the term “HMO” is used. The BBA replaced the term “Health Maintenance Organization (HMO)” with “Managed Care Organization (MCO)”. The obsolete references to HMO in paragraph (e) of § 438.730 are corrected in this final rule by removing “HMO” and replacing it with the new acronym “MCO”.

In § 438.810, governing expenditures for enrollment broker services, a reference to PAHPs was inadvertently omitted from the definition of “Choice counseling” in paragraph (a), even though the text in the remainder of the provisions in § 438.810 includes such a reference. This is corrected in this final rule by including the term “PAHP” in the definition of “Choice counseling”.

Ordinarily, a final rule is first published in the Federal Register in proposed form to provide a period for public comment before the provisions of the final rule take effect. We can waive this procedure, however, if we find good cause that a notice and comment procedure is impracticable, unnecessary, or contrary to the public interest, and incorporate a statement of finding in the final rule.

We find that it is unnecessary to undertake notice and public comment procedures in this case because the technical corrections made in this final rule do not make any substantive policy changes. This document merely makes technical corrections and conforming changes designed to clarify the provisions of the June 14, 2002 final rule, which was subjected to notice and comment. Therefore, for good cause, we waive notice and public comment procedures under 5 U.S.C. 553(b)(B).

In FR Doc. 02-14747 of June 14, 2002, (67 FR 4089), we are making the following corrections:

Notification of training opportunities: DoD and civilian agency contracting professionals that place orders under multiple award contracts using DoD funds, and contractors that sell services on multiple award contracts, should receive training on the new procedures for placing orders over $100,000 for services. DoD has developed many training tools on Section 803 and will be providing training in the DC metro area. Please visit the Defense Procurement Home Page, “Interest Items” drop-down box, for Section 803 training materials and lists of training opportunities at http://www.acq.osd.mil/dp. Additional questions regarding training should be directed to Melissa Rider at melissa.rider@osd.mil or (703) 695-1098.

This rule amends DFARS Parts 208 and 216 to implement Section 803 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107). Section 803 requires DoD to issue DFARS policy requiring competition in the purchase of services under multiple award contracts. Multiple award contracts include the Multiple Award Schedules (MAS) Program operated by the General Services Administration (GSA) and multiple award indefinite-quantity (task and delivery) order contracts issued pursuant to FAR 16.504. Competition requirements for the MAS are set forth in DFARS 208.404-70. Competition requirements for multiple award indefinite-quantity contracts other than the MAS are covered in DFARS 216.505-70.

While DFARS 208.404-70, addressing MAS ordering, focuses on competition, DoD recognizes that additional regulatory coverage is needed to improve practices related to the acquisition of services under the MAS. In this regard, the Director of Defense Procurement is working with the other members of the Federal Acquisition Regulatory Council on separate revisions to FAR Subpart 8.4 that will provide Governmentwide guidance on considerations, in addition to competition, that must be taken into account to ensure sound MAS purchasing. These considerations include, among others, use of statements of work, effective pricing of orders, and proper documentation of award decisions.

In addition, the Administrator of the Office of Federal Procurement Policy (OFPP) has determined that additional clarification is necessary with respect to the structuring of orders under the MAS. FAR 12.207 currently requires that agencies use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial items. FAR 12.207 further states that use of any other contract type to acquire commercial items is prohibited. However, GSA's non-regulatory special ordering procedures for services permit use of additional contract types for commercial item acquisitions, which is the sole focus of the MAS. In particular, GSA's special ordering procedures permit orders to be priced on a time-and-materials or labor-hour basis under limited circumstances, i.e. , when the ordering office makes a determination that it is not possible at the time of placing the order to estimate accurately the extent or duration of the work or to anticipate cost with any reasonable degree of confidence. The special ordering procedures rely on somewhat different and less stringent safeguard provisions than those that the FAR imposes when time-and-materials and labor-hour contracts are used.

The OFPP Administrator intends to work with the other FAR Council members to develop appropriate revisions to current FAR coverage to address the use of time-and-materials and labor-hour contracts for commercial item acquisitions, including safeguards that are needed to effectively protect taxpayer interests when these contractual arrangements are used under FAR Part 12.

DoD published a proposed rule at 67 FR 15351 on April 1, 2002, and held a public meeting on April 29, 2002. Seventy-one sources submitted written comments on the proposed rule. DoD considered all comments in the development of the final rule. A summary of the comments grouped by subject area is provided below:

Comment: The rule, as applied to the Federal Supply Schedules, could harm the small business community, as the requirement to provide all contractors a fair notice of the intent to make a purchase will dramatically increase the number of competitors for each task, which will likely reduce the odds of winning an award and which will increase bid and proposal costs. The additional procedural burden imposed by this rule will encourage contracting officers to bundle requirements, thereby making it less likely that DoD's small business goals will be met.

DoD Response: The intent of the rule is to ensure fairness and enhance competition. The rule requires the Government to provide fair notice and opportunity. Because the rule does not require the contractor to respond to every notice—leaving the decision to respond to the contractor “ the fair notice requirement, as imposed by this rule, should not increase bid and proposal costs. In addition, the final rule has taken into account the resource burdens associated with the fair notice process that might precipitate efforts to bundle. With respect to Federal Supply Schedule purchases, for example, DoD has revised the rule to shift the emphasis from providing fair notice to all contractors to providing fair notice to as many contractors as practicable based on effective market research. The final rule should increase competition while minimizing burden (otherwise associated with notifying all contractors) by allowing contracting officers to provide notice to a reasonable number of offerors that can do the required work. DoD does not believe the rule will negatively affect the ability of DoD to meet its small business goals. However, a reminder that orders placed against Federal Supply Schedules may be credited toward the ordering agency's small business goals has been added to the rule.

Comment: It is unclear whether small business participation will be significantly affected and whether DoD will be allowed to continue with the practice of setting aside a portion of the work under multiple award contracts exclusively for small business concerns.

DoD Response: The rule does not change the policies associated with small business considerations. The preferences afforded small business concerns under FAR 8.404(b)(6) still apply.

Comment: The rule should not apply to architect-engineer services. Acquisitions of architect-engineer services are governed by the Brooks Act (40 U.S.C. 541-544), as implemented in FAR Subpart 36.6.

DoD Response: Concur. The final rule has been amended to clarify that acquisitions of architect-engineer services are subject to the Brooks Act and the procedures in FAR Subpart 36.6.

Comment: Sufficient training for contracting, program management, and requirements personnel is needed to ensure that services are acquired in accordance with regulatory requirements. Industry should have access to the same tools as Government personnel.

DoD Response: Concur. DoD has developed training packages that will be released with this DFARS rule and has revised the Defense Acquisition University contracting coursework to focus on the proper way to make awards under Federal Supply Schedules, Governmentwide acquisition contracts, multi-agency contracts and multiple award contracts. Additionally, DoD is exploring ways to best reach the program management community and has asked the Defense Acquisition University to insert material in its program management courses. DoD intends to make the Government training tools available to industry. An information briefing on this DFARS rule is available on the Defense Procurement Web site at http://www.acq.osd.mil/dp under “Special Interest Items” in the dropdown box entitled “Section 803.”

Comment: DoD should revise the rule to clarify that the scope of the term “services” for purposes of the rule does not apply to product-like solutions, ancillary services, and transaction-based services. For example, the regulations that implement the Service Contract Act exempt contracts principally for the maintenance, calibration, or repair of many types of equipment, including automatic data processing equipment.

DoD Response: Do not concur. Section 803 provides no authority for DoD to limit the scope of the term “services” in the manner recommended by the respondent.

Comment: DoD should post the notice of fair opportunity to a specific web page or FedBizOpps.

DoD Response: Do not concur. The notice requirement is sufficiently addressed in the rule. The method of meeting that requirement is a management decision more appropriately made at the contracting office level. It should be noted that steps are being taken to improve transparency through electronic means. For example, GSA recently introduced “e-buy”, among other things, to assist MAS customers in providing fair notice to MAS contractors. The availability of e-buy is highlighted in the rule.

Comment: Clarification is needed regarding the applicability of Section 803 to civilian agencies and interagency acquisitions made under the Economy Act.

DoD Response: Section 803 applies to all DoD requirements for services, regardless of which agency acquires the services. The final rule addresses this issue by adding a statement to clarify that the rule also applies to orders placed by non-DoD agencies on behalf of DoD.

Comment: Clarification is needed regarding the timing for applicability of the rule.

DoD Response: Section 803 applies to all purchases of services made under multiple award contracts, regardless of whether the multiple award contracts were entered into before, on, or after the effective date of this rule. This DFARS rule contains the same effective date and applicability requirements. Contracting officers must review the terms and conditions of existing contracts to determine if modifications to the contracts are needed.

Comment: The rule should provide an exception that allows a sole-source follow-on to an initially placed sole-source order with adequate justification and legal review.

DoD Response: The statute does not provide this authority. Section 803 authorizes use of the exceptions in 2304c(b) which allow for a logical follow-on to a task or delivery order already issued on a competitive basis.

Comment: The rule is difficult to understand; the notification requirement will unnecessarily slow down the acquisition process and increase acquisition costs; and it will be burdensome for each company to continuously receive solicitations for work they have no interest in performing.

DoD Response: The intent of the rule is to ensure fairness by requiring a fair notice, fair opportunity to respond, and fair consideration of offers. The value added by the fairness component should outweigh any burdens associated with the rule. The final rule was drafted to provide as much flexibility as permitted by Section 803.

Comment: The rule should be revised to delete the overly restrictive requirement that single award BPA tasks or services be firm-fixed-price, as this is not required by statute or policy. The BPA competition requirements in 208.404-70(d) should apply only to the initial establishment of the BPA, and thereafter the traditional Federal Supply Schedule rules for the placement of orders should apply.

DoD Response: DoD does not agree with the respondent's recommendation regarding the use of traditional Federal Supply Schedule rules for placement of orders, as this is contrary to the provisions of Section 803. However, as noted above, the OFPP Administrator intends to work with the other FAR Council members to develop appropriate FAR coverage addressing the use of time-and-materials and labor-hour contracts for commercial item acquisitions, including safeguards that are needed to effectively protect the government's interest when these contractual arrangements are used.

Comment: The ordering procedures in the proposed rule were derived from FAR 16.505(b)(1), which was based upon the fair opportunity requirements of the Federal Acquisition Streamlining Act of 1994 (FASA). Section 803 displaced the ordering procedures under FASA. Therefore, appropriate revisions should be made to the rule, e.g. , the statement in 216.505-70(d)(3)(ii) to “Not use any method (such as allocation or designation of any preferred awardee)” is unnecessary and confuses the issue, because Section 803 now requires that orders be placed on a competitive basis that affords all contractors a fair opportunity to submit an offer. Obviously, an allocation method cannot be used under the Section 803 description of competitive basis, so there is no need to mention this issue.

DoD Response: DoD agrees that language in the proposed rule at 216.505-70(d)(3)(i) through (iv) and 216.505-70(e)(2) and (3) is not essential given that the rule makes competition requirements clear.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The rule clarifies and strengthens existing FAR requirements for competition in the placement of orders under multiple award contracts. The rule makes no change to preferences afforded small business concerns under FAR 8.404(b)(6) for the placement of orders against Federal Supply Schedules. FAR 8.404(b)(6) specifies that contracting officers should (1) consider including one or more small, women-owned small, and/or small disadvantaged business schedule contractor(s) when conducting evaluations and before placing an order; and (2) for orders exceeding the micro-purchase threshold, give preference to the items of small business concerns when two or more items at the same delivered price will satisfy the requirement.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule revises DFARS 201.603-2 to implement Section 824 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107). Section 824 amended 10 U.S.C. 1724 to revise the qualification requirements that a new entrant into the contracting field must meet in order to serve as a contracting officer with authority to award or administer contracts exceeding the simplified acquisition threshold. The revised qualifications include a requirement for a baccalaureate degree and 24 semester credit hours of study in a business-related discipline.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2002-D021.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This rule adds a new DFARS Subpart 208.74 to address the use of enterprise software agreements for the acquisition of commercial software and software maintenance in accordance with the DoD Enterprise Software Initiative. This initiative promotes the use of enterprise software agreements with contractors that offer DoD favorable terms and pricing for commercial software and related services. Associated DFARS changes are made in Parts 208, 239, 251, and 252.

DoD published a proposed rule at 67 FR 4231 on January 29, 2002. Five sources submitted comments on the proposed rule. DoD considered all comments in the development of the final rule. A discussion of the comments is provided below:

Comment: Due to a lack of central budget control, “profit centers” cannot bargain as a unit to establish an Enterprise Software Agreement (ESA), and vendors must contract with each organization individually. DoD Response: The lack of a centralized approach to DoD software budgeting is a prime reason for the existence of the Enterprise Software Initiative (ESI). By consolidating established department and agency requirements for commercial software, ESI gains pricing and terms concessions not normally available to the individual or the small command buyer.

Comment: New vendors may be at a competitive disadvantage. Lack of objective performance criteria will deny new vendors the opportunity to compete on merit versus familiarity. DoD Response: ESI does not eliminate the need for acquisition planning and market research. Use of ESAs is not mandatory, but must be considered only when requirements for products available under the agreements have already been established.

Comment: The term “most favored customer” at 208.7403(e)(2) is vague and should be eliminated from the rule. DoD Response: The intent is to give the software product manager (SPM) the opportunity to adjust the ESA to provide the best value to the customer. The language at 208.7403(e)(2) has been revised to more clearly convey this intent.

Comment: The rule will reduce the number of vendors able to market and sell commercial software products to DoD. DoD Response: Authorized commercial resellers with General Services Administration (GSA) Federal Supply Schedules are eligible to carry ESAs for commercial software products. In this sense, the software manufacturer determines the universe of potentially eligible resellers, and the resellers themselves decide whether or not to apply for and maintain a GSA Schedule, and whether or not to comply with the terms and conditions of a DoD ESA.

Comment: The “nonstandard” methods of the rule may encourage software manufacturers to keep products off ESAs. DoD Response: The use of blanket purchase agreements against GSA Schedules is a standard DoD acquisition practice. There is no evidence to indicate that this rule will discourage manufacturers from seeking ESAs or from placing commercial products on ESAs.

Comment: Industrial funding fees will cancel potential savings of volume purchases. DoD Response: No additional resources are required to manage ESAs. DoD ESAs result in lower overhead for contract maintenance and result in net savings or cost avoidance for the Government.

Comment: Use of BPAs against GSA Schedules for the acquisition of software implies incorporation of the clause at FAR 52.227-14, Rights of Data. This clause may conflict with DoD policy on intellectual property rights and uses. The rule should follow DoD, not GSA, policy. DoD Response: Use of BPAs against GSA Schedules is a standard acquisition practice in DoD and is in accordance with FAR subpart 8.4 and DFARS subpart 208.4.

Comment: Customized terms and conditions must often be negotiated. The 90-day process for allowing the SPM to negotiate on behalf of the purchaser adds needless delay and cost. DoD Response: Many ESAs contain special provisions for pricing and other terms and conditions. Should those provisions not be sufficient, the SPM is given up to 90 days to renegotiate the ESA. Historically, the turn-around time has been much quicker than 90 days. However, purchasers have the option to pursue a waiver to the use of the ESA if the SPM cannot negotiate satisfactory terms and conditions within the purchaser's required timeframe.

Comment: The use of the term “commercial software or related services such as software maintenance” is overly broad. The phrase “related services” should be deleted. DoD Response: The phrase “related services” does address a broad range of services. It is the intent of ESI to address software asset management across the spectrum and throughout the life cycle of enterprise software management, rather than limit its scope to software acquisition and software maintenance.

Comment: The term “software maintenance” should be defined. DoD Response: A definition of “software maintenance” has been added at 208.7401.

Comment: Read literally, the rule could require DoD customers to acquire hardware without preloaded software. DoD Response: The rule is not intended to preclude the acquisition of preloaded software with computers from the original equipment manufacturer. The language at 208.7400(a) has been revised to clarify the intent.

Comment: The rule appears to support the development of software acquisition processes without the benefit of public comment. This may result in processes inconsistent with Federal Acquisition Streamlining Act requirements pertaining to the acquisition of commercial items. DoD Response: DoD policy is to make maximum practical use of GSA Schedules, and ESI has established BPAs against GSA Schedules for DoD use. Software asset management encompasses all aspects of life-cycle management. Should any elements of implementing the software asset management process require public comment, those elements will be published accordingly as has been done for this DFARS rule.

Comment: Software manufacturers and resellers cannot be expected to offer the favorable terms and discounts sought through ESI without DoD's commitment to purchase the quantities that result in the lowest prices. There is no evidence that DoD is willing or is able to make such a commitment. DoD Response: Many manufacturers and resellers have offered favorable terms and conditions without a commitment to specific quantities, for a chance at increased market share or additional DoD exposure.

Comment: The acquisition procedures in 208.7403 should be revised for clarity and for consistency with DoD Chief Information Officer Guidance and Policy Memorandum No. 12-8430 dated July 26, 2000, pertaining to requirements for use of ESAs, rationale for use of alternate sources, and reimbursement of funds to the SPM. DoD Response: This section has been revised to clarify procedures for determining when use of an ESA is appropriate, and to clarify documentation requirements when use of an alternate source is deemed necessary. However, SPM reimbursement of funds is a procedure handled outside of the contracting arena, and, therefore, is not considered appropriate for inclusion in this DFARS rule.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. , because most enterprise software agreements are blanket purchase agreements established under Federal Supply Schedules. Establishment of such agreements is already permitted by section 8.404(b)(4) of the Federal Acquisition Regulation.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This rule revises and finalizes the interim rule published at 66 FR 63335 on December 6, 2001. The rule implements Section 821(b) of the National Defense Authorization Act for Fiscal Year 2001 (Public Law 106-398). Section 821(b) permits DoD to use Federal Acquisition Regulation (FAR) Part 12 (Acquisition of Commercial Items) procedures for performance-based service contracts and task orders, if certain conditions are met.

Four respondents submitted comments on the interim rule. A discussion of the comments is provided below:

Comment: The rule appears to contradict the language in FAR Subpart 13.5, which permits the use of simplified procedures for the acquisition of commercial items in amounts exceeding the simplified acquisition threshold but not exceeding $5 million. Section 212.102 of the rule prohibits the use of FAR Subpart 13.5 procedures when using FAR Part 12 for acquisitions that are performance-based. DoD Response: Do not concur. FAR 12.102 authorizes the use of FAR Part 12 in conjunction with FAR Part 13, 14, or 15, when acquiring supplies or services that meet the definition of commercial item at FAR 2.101. DFARS 212.102 provides additional authority for use of FAR Part 12 to acquire services that do not meet the definition of commercial item, when performance-based contracting methods are used. Therefore, the prohibition against use of FAR Subpart 13.5 in conjunction with FAR Part 12 applies only to performance-based contracts for services that do not meet the definition of commercial item but can be acquired using FAR Part 12 pursuant to the authority in DFARS 212.102.

Comment: The statement in 212.102(a)(i) specifying that the rule applies to contracts or task orders “. . . entered into on or before October 30, 2003” should be changed to apply to contracts or task orders “. . . entered into after October 30, 2000, but before October 30, 2003.” The statute became effective on October 30, 2000, and this new authority is not available to task orders that were awarded prior to that date, but would be applicable to task orders awarded after that date even though the contract was awarded before October 30, 2000. DoD Response: Do not concur. The interim rule became effective on December 6, 2001. Since this date is in the past, there is no need to include it in the DFARS text. In addition, the rule, as written, does not preclude application to task orders issued under contracts that were awarded before the rule became effective.

Comment: The statement in 212.102(a)(i) that requires the use of quality assurance surveillance plans should be deleted from the rule. While such plans are a common best practice for performance-based contracts, this requirement is not part of the statute and, therefore, is not “in accordance with the Act.” DoD Response: Do not concur. While quality assurance surveillance plans are not specifically addressed in the statute, this requirement should be retained, because the plans are an element of performance-based contracting. See FAR Subpart 37.6, which establishes quality assurance as a component of performance-based contracting.

Comment: The statement in 212.102(a)(i) that permits application of the rule if award is made “to an entity that provides similar services at the same time to the general public under terms and conditions similar to those in the contract” should be changed to add, at the end, the phrase “or task order.” Under the law, it is clear that the two similarity tests are appropriately applied at either the contract level or at the task order level. DoD Response: Concur. The statement has been amended to add the phrase “or task order.”

Comment: The cross-reference text at 237.601 should be changed from “See 212.102 for the use of FAR Part 12 procedures with performance-based contracting” to “See 212.102 for additional authority and specific conditions where it is appropriate to use FAR Part 12 procedures with performance-based contracting.” This change is necessary to avoid any misconception that DFARS 212.102 contains the only provisions for use of FAR Part 12 for performance-based contracts. Public Law 106-398 clearly established these conditions as an additional incentive for use of the performance-based service contract under FAR Part 12. DoD Response: Do not concur. The change is not necessary, as the DFARS does not indicate such a limitation.

Comment: The text at 212.102(a)(ii) should be changed from “* * * modify paragraph (a) of the clause at FAR 52.212-4 * * *” to “* * * tailor paragraph (a) of the clause at FAR 52.212-4* * *” DoD Response: Concur. The word “tailor” is consistent with the terminology used in FAR Part 12. This change has been made in the final rule.

Comment: The statement in 212.102(a)(i) that permits application of the rule if award is made “to an entity that provides similar services at the same time to the general public * * *” may exclude some small businesses, including 8(a) and native-owned firms, that focus their efforts on Government contracts. DoD Response: Partially concur. Firms that direct their efforts exclusively toward providing services to the Government will not meet this condition of the rule. However, this condition was established by Section 821(b) of Public Law 106-398 and cannot be deleted.

Comment: The rule reclassifies all service contracts of less than $5 million as subject to FAR Part 12 procedures. DFARS 226.104(1) precludes use of the clause at 252.226-7001, Utilization of Indian Organizations and Indian-Owned Economic Enterprises—DoD Contracts, in any contract that uses FAR Part 12 procedures. Therefore, this rule eliminates all service contracts of less than $5 million from the Indian Incentive Program, thereby causing significant harm to Native American service companies and Indian Tribal Corporations. DoD should remove the Part 12 exclusion from the clause prescription at DFARS 226.104(1). DoD Response: Partially concur. DoD does not agree that the rule reclassifies all service contracts of less than $5 million as subject to FAR Part 12. The rule is limited to performance-based contracting for services that meet specific criteria. DoD does agree that, as the interim rule was written, the Indian Incentive Program could not be used for any performance-based service contracts awarded using FAR Part 12 procedures. The FAR Part 12 exclusion at DFARS 226.104 was established prior to this rule and was intended to apply to the acquisition of supplies and services that meet the definition of commercial item at FAR 2.101. Since this rule permits the use of FAR Part 12 procedures for acquisition of services that do not meet the definition of commercial item, DFARS 226.104 has been amended to clarify that there is no restriction on use of the clause at 252.226-7001 in performance-based contracts for services that either are not commercial items, or are treated as commercial items solely as a result of the authority in 212.102.

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The rule permits the use of FAR Part 12 procedures for the award of certain performance-based service contracts and task orders. While the use of FAR Part 12 procedures will improve the efficiency of contracting for these services, the economic impact on small entities will not be substantial.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

This final rule amends the clauses at DFARS 252.225-7007, Buy American Act-Trade Agreements—Balance of Payments Program, and 252.225-7021, Trade Agreements, to add Honduras to the definition of “Caribbean Basin country.” The rule implements the direction of the United States Trade Representative to treat the products of Honduras as eligible products in acquisitions subject to the Trade Agreements Act (67 FR 46239, July 12, 2002).

This rule was not subject to Office of Management and Budget review under Executive Order 12866, dated September 30, 1993.

This rule will not have a significant cost or administrative impact on contractors or offerors, or a significant effect beyond the internal operating procedures of DoD. Therefore, publication for public comment is not required. However, DoD will consider comments from small entities concerning the affected DFARS subpart in accordance with 5 U.S.C. 610. Such comments should cite DFARS Case 2002-D028.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

The Regional Administrator modified the season for the commercial salmon fishery in the area from the Oregon-California Border to the Humboldt South Jetty, to close at midnight on Friday, September 20, 2002, and then reopen Thursday, September 26, 2002, through midnight on Friday, September 27, 2002. On September 19, 2002, the Northwest Regional Administrator, NMFS (Regional Administrator), determined that available catch and effort data indicated that the quota of 10,000 chinook salmon would be reached by September 20, 2002. However, after reevaluating the available catch and effort data on September 24, 2002, it was found that there was enough salmon left in the chinook quota to allow an additional 2 days of fishing. Automatic season closures based on quotas are authorized by regulations at 50 CFR 660.409(a)(1), and modification of fishing seasons is authorized by regulations at 50 CFR 660.409(b)(1)(i).

In the 2002 annual management measures for ocean salmon fisheries (67 FR 30616, May 7, 2002), NMFS announced the commercial fishery for all salmon except coho in the area from the Oregon-California Border to the Humboldt South Jetty would open August 16, 2002, through the earlier of August 30, 2002, or an 3,000-chinook quota, and September 1, 2002, through the earlier of September 30, 2002, or a 10,000-chinook quota. The area also had a possession and landing limit of 40 fish per day, with all fish required to be landed within the area and within 24 hours of any closure of the fishery.

On September 19, 2002, the Regional Administrator consulted with representatives of the Pacific Fishery Management Council (Council) and the California Department Fish and Game (CDFG) by conference call. Information related to catch to date, the chinook catch rate, and effort data indicated that it was likely that the chinook quota would be reached by Friday, September 20, 2002. As a result, the State of California recommended, and the Regional Administrator concurred, that the area from the Oregon-California Border to the Humboldt South Jetty close effective at midnight on Friday, September 20, 2002. All other restrictions that apply to this fishery remained in effect as announced in the 2002 annual management measures. In addition, the parties agreed to reevaluate the fishery the following week and assess the possibility of further open fishing periods if the catch estimates turned out to be low.

On September 24, 2002, the Regional Administrator again consulted with representatives of the Council and the CDFG by conference call. Information related to catch to date, the chinook catch rate, and effort data indicated that there was enough chinook left in the quota to allow 2 more days of fishing. As a result, the State of California recommended, and the Regional Administrator concurred, that the commercial salmon fishery in the area from the Oregon-California Border to the Humboldt South Jetty should be modified to reopen Thursday, September 26, 2002, through midnight on Friday, September 27, 2002, to access the available chinook left in the quota. In addition, the landing restriction language was modified to a possession and landing limit of 40 fish per day, with no vessel landing or delivering more than 80 chinook for the entire 2 day open period, all fish required to be landed within the area and within 24 hours of the fishery closure. Additionally, salmon caught outside the open area were not allowed to be landed in the area until after midnight on Saturday, September 28, 2002. This final modification was needed to clarify the intent of the landing restriction and minimize complications related to catch accounting that may result from landing salmon from outside the catch area. All other restrictions that applied to this fishery remained in effect as announced in the 2002 annual management measures and subsequent inseason actions.

The Regional Administrator determined that the best available information indicated that the catch and effort data, and projections, supported the above inseason actions recommended by the States. The States manage the fisheries in State waters adjacent to the areas of the U.S. exclusive economic zone in accordance with this Federal action. As provided by the inseason notice procedures of 50 CFR 660.411 (a)(2), actual notice to fishers of the above described actions were given prior to the effective dates by telephone hotline number 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

These actions do not apply to other fisheries that may be operating in other areas.

The Assistant Administrator for Fisheries, NOAA (AA), finds that good cause exists for this notification to be issued without affording prior notice and opportunity for public comment under 5 U.S.C. 553(b)(B), or delaying the effectiveness of this rule for 30 days under 5 U.S.C. 553(d)(3), because such notification and delay is impracticable and contrary to the public interest. As previously noted, actual notice of these actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (67 FR 30616, May 7, 2002) and the West Coast Salmon Plan. Prior notice and opportunity for public comment is impracticable because NMFS and the State agencies have insufficient time to provide for prior notice and the opportunity for public comment between the time the fishery catch and effort data are collected to determine the extent of the fisheries, and the time the limits to which the fishery must be in place. Moreover, such prior notice and the opportunity for public comment is contrary to the public interest because it does not allow fishers appropriately controlled access to the available fish at the time they are available.

The AA finds good cause to waive the 30-day delay in effectiveness required under 5 U.S.C. 553(d)(3). A delay in effectiveness of this action would not allow fishers appropriately controlled access to the available fish at the time they are available.

This action is authorized by 50 CFR 660.409 and 660.411 and is exempt from review under Executive Order 12866.