On June 12, 2002, the President signed into law the Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (Pub. L. 107-188). Title II of Public Law 107-188, “Enhancing Controls on Dangerous Biological Agents and Toxins” (sections 201 through 231), provides for the regulation of certain biological agents and toxins by the Department of Health and Human Services (subtitle A, sections 201-204) and the Department of Agriculture (subtitle B, sections 211-213), and provides for interagency coordination between the two departments regarding overlap agents and toxins (subtitle C, section 221). For the Department of Health and Human Services, the Centers for Disease Control and Prevention (CDC) has been designated as the agency with primary responsibility for implementing the provisions of the Act; the Animal and Plant Health Inspection Service (APHIS) is the agency fulfilling that role for the Department of Agriculture (USDA).

In subtitle B (which is cited as the “Agricultural Bioterrorism Protection Act of 2002,” referred to below as the Act), section 212(a) provides, in part, that the Secretary of Agriculture (the Secretary) must establish by regulation a list of each biological agent and each toxin that she determines has the potential to pose a severe threat to animal or plant health, or to animal or plant products. In determining whether to include an agent or toxin on the list, the Act requires the Secretary to consider:

1. The effect of exposure to the agent or toxin on animal or plant health, and on the production and marketability of animal or plant products;

2. The pathogenicity of the agent or the toxicity of the toxin and the methods by which the agent or toxin is transferred to animals or plants;

3. The availability and effectiveness of pharmacotherapies and prophylaxis to treat and prevent any illness caused by the agent or toxin; and

4. Any other criteria that the Secretary considers appropriate to protect animal or plant health, or animal or plant products.

In accordance with these statutory requirements, on August 12, 2002, we published in the Federal Register (67 FR 52383-52389, Docket No. 02-082-1) an interim rule that established the initial lists of biological agents and toxins. To accomplish this, we established new parts in the Code of Federal Regulations (CFR), one part in the plant-related provisions of title 7, chapter III, and one part in the animal-related provisions of title 9, chapter I. Then, on December 13, 2002, we published in the Federal Register (67 FR 76908-76938, Docket No. 02-088-1) an interim rule that amended the initial lists of biological agents and toxins in both 7 CFR 331.3 and 9 CFR 121.3.

The Act requires that the lists of biological agents and toxins be reviewed and republished biennially, or more often as needed, and revised as necessary. In addition, the Act requires that, when determining whether to include an agent or toxin, the Secretary shall consult with appropriate Federal departments and agencies and with scientific experts representing appropriate professional groups.

In preparation for the biennial review of the list required by the Agricultural Bioterrorism Protection Act of 2002, APHIS' Plant Protection and Quarantine program intends to reevaluate and further develop the criteria used to determine whether an agent has the potential to pose a severe threat to plant health or products. Accordingly, we are holding a series of public meetings to provide a forum for discussion of the criteria that should be used.

The meetings will be held on August 12, 2003, from 5:30 to 8:30 p.m. in Charlotte, NC; on August 19, 2003, from 9 a.m. to 3 p.m. in Riverdale, MD; and on August 21, 2003, from 9 a.m. to 3 p.m. in Sacramento, CA. Information regarding the meetings may be obtained from the person listed under FOR FURTHER INFORMATION CONTACT .

If you cannot attend the meeting, you may submit written comments on the topics outlined in this notice. To submit written comments, please follow the instructions listed under the heading ADDRESSES near the beginning of this document.

User fees to reimburse the Animal and Plant Health Inspection Service (APHIS) for the costs of providing veterinary diagnostic services and import and export related services for live animals and birds and animal products are contained in 9 CFR part 130 (referred to below as the regulations). These user fees are authorized by section 2509(c) of the Food, Agriculture, Conservation and Trade Act of 1990, as amended (21 U.S.C. 136a), which provides that the Secretary of Agriculture may, among other things, prescribe regulations and collect fees to recover the costs of veterinary diagnostics relating to the control and eradication of communicable diseases of livestock or poultry within the United States.

In this document, we are proposing to amend the regulations by increasing the user fees for certain veterinary diagnostic services, including certain diagnostic tests, reagents, and other veterinary diagnostic materials and services. Operating costs have increased since these user fees were established in a final rule published in the Federal Register on October 7, 1998 (63 FR 53783-53798, Docket No. 94-115-2). Therefore, the user fees need to be updated to reflect those increases. However, the main reason for the increase in the fees is due to new cost-finding techniques employed by APHIS. The Statement of Federal Financial Accounting Standards (SFFAS) No. 4, “Managerial Cost Accounting Standards and Concepts,” issued by the Office of Management and Budget, mandated that APHIS capture cost accounting data in its program costs. We were required to accumulate and report the costs of veterinary diagnostic activities on a regular basis through the use of cost accounting systems and cost finding techniques. In order to comply with SFFAS No. 4, APHIS conducted an Activity Based Costing (ABC) project at the National Veterinary Services Laboratories (NVSL) in Ames, IA, which identified the sources of all costs for veterinary diagnostic services. As a result of that project, we determined that costs for user fee-related services were not adequately being recovered through user fee collections. Based on this determination, we are proposing new fees to recover these newly identified costs. Each of the updated user fees contains a proportionate share of the costs identified in the ABC study.

The user fees that we are proposing for veterinary diagnostic goods and services would cover multiple fiscal years (2004 through 2007 and beyond). Establishing annual user fee changes in advance would allow users to incorporate the fees into their budget planning.

Veterinary diagnostics is the work performed in a laboratory to determine if a disease-causing organism or chemical agent is present in body tissues or cells and, if so, to identify those organisms or agents. Services in this category include: (1) Performing laboratory tests and providing diagnostic reagents and other veterinary diagnostic materials and services at the NVSL Foreign Animal Disease Diagnostic Laboratory (NVSL FADDL) in Greenport, NY; and (2) performing identification, serology, and pathobiology tests and providing diagnostic reagents and other veterinary diagnostic materials and services at NVSL in Ames, IA.

APHIS veterinary diagnostic user fees fall into six categories:

(1) Laboratory tests, reagents, and other veterinary diagnostic services performed at NVSL FADDL;

(2) Laboratory tests performed as part of isolation and identification testing at NVSL in Ames;

(3) Laboratory tests performed as part of serology testing at NVSL in Ames;

(4) Laboratory tests performed at the pathobiology laboratory at NVSL in Ames;

(5) Diagnostic reagents produced at NVSL in Ames or other authorized sites; and

(6) Other veterinary diagnostic services or materials provided at NVSL in Ames.

User fees recover the cost of operating a public system by charging those members of the public who use the system, rather than the public as a whole, for its operation. Financing veterinary diagnostic services and products by charging for the right to use the incremental service internalizes those costs to those who require the service and benefit from it.

Veterinary diagnostic services and products enhance livestock production, trade, and research. The socially optimal prices for such commodities, of which veterinary diagnostics are inputs, are those price levels that induce the output level where the marginal benefit (what people are willing to pay for the good) is exactly equal to the marginal social cost (all costs associated with the production of the final output, including veterinary diagnostics). As it stands now, veterinary diagnostic services and products are provided at levels below their full cost to APHIS. These costs are, therefore, only partly incorporated into producers' costs of production. Our proposed revisions of the fee-for-service charges to recover the costs incurred by APHIS would move the private costs of individuals closer to the true cost of producing their outputs. The proposed annual increases, which would span fiscal years 2004 through 2007, would help ensure that the fees accurately reflect the cost of providing the service.

User fee components. The user fees proposed in this document are based on average laboratory employee salaries and benefits in each of the fiscal years 2004 through 2007, and estimates of the number of direct labor hours required to provide each service. The proposed user fees have been calculated to recover the full costs for tests, diagnostic reagents, and other veterinary diagnostic services. These costs include direct labor costs, administrative support costs, premium costs (if any), agency overhead costs, and departmental charges. These components are described below; the user fee calculation for the proposed virus isolation fee for fiscal year (FY) 2004 is used throughout as an example.

We are proposing to charge a specific dollar amount for each service we provide ( i.e. , for each test we perform or each diagnostic reagent or other veterinary diagnostic service we provide). We have attempted to minimize the costs of our services, thereby keeping APHIS user fees at the lowest possible level. If, in the future, a user requests a test, diagnostic reagent, or other veterinary diagnostic material or service that is not specifically listed in our regulations, we would charge the proposed hourly user fee set forth in proposed § 130.19 for the amount of time required to perform the service, calculated to the nearest quarter of an hour.

Each user fee varies based on the direct labor hours required to perform the test or provide the diagnostic reagent or other veterinary diagnostic material or service. For example, the time spent by laboratory personnel to prepare a sample, conduct the test, and read the test would be part of the direct labor hours for testing a tissue sample for disease-causing organisms. In cases where a test is performed for more than one disease, it may take different amounts of time for each disease. Those times have been averaged to calculate the user fee for the test. We have carefully calculated all of our proposed user fees to correctly reflect the direct labor hours required for each test, reagent, or service. We took into account variations in the time needed to provide a service by determining the average time necessary to provide the service; similar user fee components are used for other agency user fees throughout the regulations.

Direct labor costs. Direct labor costs are the average salary and benefit costs of the laboratory employees performing the service multiplied by the estimated direct labor hours required. Average laboratory costs were used to calculate direct labor costs because we have determined that it is more accurate to use the average salary for laboratory employees to calculate the user fee. For example, the estimated average laboratory salary at the Diagnostic Virology Lab for FY 2004 is $28.85 per hour. On average, it takes 0.295 hours per virus isolation test, leading to direct labor costs of $8.51.

Administrative support costs. Administrative support costs are incurred at the laboratories. They include clerical and administrative activities; direct materials; indirect labor hours; rent; billing and collection costs; travel and transportation for personnel, supplies, equipment, and other necessary items; training; legal counsel; capital equipment costs; general supplies for offices, washrooms, and cleaning; contractual services; grounds maintenance; and utilities. Direct materials include the cost of any materials needed to conduct the test or to provide the diagnostic reagent, slide set, tissue set, or service. For example, direct materials for conducting a laboratory test include, but are not limited to, glassware, chemicals, and other supplies necessary to perform the test. Indirect labor hours include supervision of personnel and time spent doing necessary work, such as repairing equipment, that is not directly connected with a specific test, diagnostic reagent, or other veterinary diagnostic material or service. Contractual services may include, but are not limited to, guard service, trash pickup, and maintenance. Utilities include water, telephone, electricity, natural and propane gas, and heating and diesel oil.

The costs of administrative support are applied as a percentage of the base direct labor amount; at NVSL in Ames, administrative support is 296 percent of direct labor, and at NVSL FADDL, administrative support is 1,638 percent of direct labor. For example, the administrative support costs for the virus isolation test are calculated at 296 percent of its direct labor costs of $8.51 to be $25.19. The total direct labor and administrative support costs for one virus isolation test are $33.70.

NVSL FADDL administrative support costs compared to NVSL in Ames costs. Readers may note that our proposed user fees for tests performed at NVSL FADDL are higher than our proposed user fees for the same tests performed at NVSL in Ames. Both NVSL FADDL and NVSL in Ames work with infectious and contagious disease agents. However, NVSL FADDL, which is isolated from the U.S. mainland, is designed to work specifically with highly infectious diseases exotic to the United States. Because of this, special biosecurity measures are required at NVSL FADDL that are not required at NVSL in Ames. As a result, NVSL FADDL operating costs are higher than NVSL in Ames' operating costs. The user fees we are proposing reflect this difference in costs.

Premium costs. Premium costs are expenses that are incurred solely for a specific test or service. For example, certain tests require expensive reagents in addition to the direct labor time and laboratory materials included in administrative support costs. Premium costs for the proposed flat rate user fees have been included in the proposed calculated fees. For example, each sterilization by gamma radiation at NVSL FADDL requires special radioactive materials, irradiation costs, and travel costs for an APHIS employee to hand-carry the material. Based on the high amount of costs involved, these premium costs have been added to the proposed specific fee involved rather than included as an administrative support cost that is spread among all fees for tests, reagents, and other services.

Agency overhead. Agency overhead is the pro rata share, attributable to a particular diagnostic reagent, material, or veterinary diagnostic service, of the management and support costs for all Agency activities at the regional level and above. Included are the costs of providing budget and accounting services, management support at the headquarters and regional levels, including the Administrator's office, and personnel services, public information services, and liaison with Congress. Agency overhead is calculated at 16.15 percent of total direct labor and support costs. For example, the agency overhead for one virus isolation test is $5.44, which is the product of virus isolation direct labor and administrative support costs of $33.70 multiplied by 16.15 percent.

Departmental charges. Departmental charges are APHIS's share, expressed as a percentage of the total cost, of services provided centrally by the U.S. Department of Agriculture. Services the Department provides centrally include the Federal telephone service; mail; National Finance Center processing of payroll, billing, collections, and other money management; unemployment compensation; Office of Workers Compensation Programs; and central supply for storing and issuing commonly used supplies and departmental forms. The Department notifies APHIS how much the agency owes for these services.

We have included a pro rata share of these departmental charges, as attributed to a particular test, diagnostic reagent, or other veterinary diagnostic material or service, in our user fee calculations at the rate of 5.23 percent. For example, departmental charges to perform one virus isolation test are $2.05. This amount equals 5.23 percent of total direct labor costs, administrative support costs, and Agency overhead costs of $39.14 described above.

Reserve. We are proposing to add an amount that would provide for a reasonable balance, or reserve, in the veterinary diagnostics user fee account. All user fees would contribute to the reserve proportionately. The reserve would ensure that we have sufficient operating funds in cases of fluctuations in activity volumes, bad debt, program shutdown, or customer insolvency. We intend to monitor the reserve balance closely and propose adjustments in our fees as necessary to ensure a reasonable balance. For example, the reserve amount included in the calculation for one virus isolation test is $2.06 per test. The total costs in this example thus far equal $43.25.

Calculation of proposed user fees. The basic steps in the calculation for each particular service are: (1) Calculate direct labor costs by determining the average amount of direct labor required to perform the service and multiply the average direct labor hours by the average salary and benefit costs for laboratory employees; (2) calculate the pro rata share of administrative support costs; (3) determine the premium costs (if any); (4) calculate the pro rata share of agency overhead and departmental charges, respectively; (5) add all costs; and (6) round up to the next $0.25 for all fees less than $10 or round up or down to the nearest dollar for all fees greater than $10. For example, the total virus isolation cost per test for FY 2004 of $43.25 is rounded down to $43 per test. The result of these calculations is a user fee that covers the total cost to perform a particular test or provide a particular veterinary diagnostic material or service one time. As is the case with all APHIS user fees, we intend to review, at least annually, the user fees proposed in this document. We will publish any necessary adjustments in the Federal Register .

In addition, we would remove the following tests because they are either obsolete, no longer being performed at NVSL in Ames or NVSL FADDL, or are being performed but being incorporated into another published rate:

We would also remove a footnote that appears in the tables in §§ 130.15(a) and 130.16(a) and (b). The footnote describes a discount that applies to all diagnostic, non-import-related complement fixation, hemagglutination inhibition, fluorescent antibody, indirect fluorescent antibody virus neutralization, and peroxidase linked antibody tests. The discount applies to the 11th and subsequent tests on the same submission by the same submitter for the same test and antigen. We have reevaluated the time it takes to conduct these additional tests and have determined that it is no longer cost effective to perform the tests at a discount. Therefore, we would remove the footnote from those tables.

Finally, in §§ 130.15(a), 130.16(a), and 130.18, we would amend the tables by updating several of the entries to reflect the designations currently used by NVSL to refer to the particular test or service. There would be no change in the services or tests themselves; the names would simply be changed to be consistent with the terminology used by NVSL.

This proposed rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

We are proposing to increase the user fees for veterinary diagnostic services to reflect changes in operating costs and changes in calculating our costs. These proposed actions are necessary to ensure that we recover the actual costs of providing these services. We are also proposing to provide for a reasonable balance, or reserve, in the veterinary diagnostics user fee account. The reserve would ensure that we have sufficient operating funds in cases of fluctuations in activity volumes, bad debt, program shutdown, or customer insolvency. The Food, Agriculture, Conservation, and Trade Act of 1990, as amended, authorizes us to set and collect these user fees.

The calculation of impacts of the revision of veterinary diagnostic user fees is hindered by the difficulty in determining the elasticities of demand for the covered services and products. Therefore, Government savings are assumed equivalent to the total additional user fee collections for each category addressed in this proposed rule. Projections of changes in collections are based on estimates of the annual volume of the affected services and products. Estimates of the annual volumes were made by the Financial Management Division of APHIS using actual volumes from prior years and input from the laboratories.

Table 1 summarizes the estimated changes in user fee collections for FY 2004 through FY 2007 that are necessary to recover fully the costs of performing these services. These proposed changes would result in a total increase in annual user fee collections of about $2.9 million over the period discussed in the proposed rule (from $2.7 million at current fee levels to $5.6 million in FY 2007). There would be increases in each year from FY 2004 to FY 2007. There would be an increase of about $2.4 million in FY 2004, about an additional increase of $101,200 increase in FY 2005, about a $231,500 increase in FY 2006, and about a $98,100 increase in FY 2007. If APHIS were to continue to collect user fees at the current rates over this time period, total collections would be approximately $10.8 million. At the proposed rates, the total would be about $21.4 million. Because the proposed changes in user fees are intended to cover cost changes that have already occurred and that are projected to occur over the period covered in the proposed rule, this difference of about $10.6 million demonstrates the shortfall in cost recovery that would occur absent the changes, and, conversely, the savings to taxpayers associated with this proposal.

The largest increase in collections would occur in FY 2004. The fee increases in FY 2004 cover cost increases that have occurred since the last revision of these fees, in addition to cost increases expected to occur in FY 2004. The increase of about $2.4 million in veterinary diagnostic user fee collections in FY 2004 would be accounted for in the following manner. Collections from laboratory tests, reagents, and other veterinary services preformed at NVSL FADDL would increase by about $141,000; user fee collections for veterinary diagnostic isolation and identification tests performed at NVSL in Ames would increase by about $305,000; user fee collections for serology tests performed at NVSL in Ames would increase by about $948,000; user fee collections for veterinary diagnostic tests performed at the pathobiology laboratory at NVSL in Ames would increase by about $29,000; user fee collections for reagents produced at NVSL in Ames would increase by about $592,000; and user fee collections for other veterinary diagnostic services performed at NVSL in Ames would increase by about $409,000.

Veterinary diagnostic services and products are provided to animal importers and exporters, veterinarians, State and Federal agencies and laboratories, commercial laboratories, educational institutions, and foreign governments. To the extent that the proposed changes in user fees would impact operational costs, any entity that utilizes APHIS veterinary diagnostic products or services subject to user fees could be affected by the proposed fee increases. The degree to which any entity could be affected depends on its market power (the extent to which costs can be either absorbed or passed on to its buyers). While the lack of information on profit margins and operational expenses of the affected entities, or the supply responsiveness of the affected industry, prevents the precise prediction of the scale of impacts, some conclusions on overall impacts to domestic and international commerce can be drawn.

The increases in user fees in this proposal represent significant percentages, primarily in the first year covered by this proposed rule. In all six categories, the average proposed fee change exceeds 80 percent in the first year and 100 percent in total over the period covered in the proposed rule. If the user fees cannot be passed on to their customers, the profit margins of some entities may decline as user fees are increased. However, new techniques now allow APHIS to better identify the true costs of providing the veterinary diagnostic services and products covered by user fees. These techniques have shown that there are considerable differences between those true costs and the user fees APHIS has been charging. Operating costs have increased since the last time these fees were adjusted. In addition, it has been shown that the direct labor portion of the fee calculations was vastly underestimated for many of the fees in previous calculations. When a user fee does not cover all associated costs, those costs are shifted away from those receiving and benefitting from the service and onto APHIS, and thus ultimately to the taxpayer.

There is also reason to believe that the economic effects of the proposed changes on most users would be small. The majority of the user fees would increase by $50 or less. The majority of the proposed fees should also make only a small contribution to the total additional collections and, therefore, would have a minor impact on the users of those services. This is either because the proposed change is small or the projected volume associated with the user fee is small, or both. In addition, user fees are not charged when tests are provided in the United States in association with a Federal or cooperative disease control program. Also, in addition to the role they play in protecting American agriculture, the veterinary diagnostic services and products we provide facilitate international trade and thereby enhance the business interests of many of those requesting these services.

Nearly 59 percent of the total projected change in collections would come from changes in only 9 of the 190 fees, and more than 93 percent of the change would come from changes in just 43 of the fees covered in this proposed rule. These 43 proposed fee changes are projected to generate $10,000 or more each in additional annual collections by the end of the period covered by the proposed rule. Several factors suggest, however, that these fee increases should not have a significant impact on users. These fees include small fees applied to a large annual volume of users, large fees applied to a very small volume of users, fees that represent a small percentage of the overall costs associated with a user's output, single fees for reagents with numerous final users, and fees that enhance the marketability of the users' final outputs.

The majority of the individual user fee changes in this proposal would make only small contributions to the total additional collections, and, therefore, would have a minor effect on the users of those services. This is either because the change in the fee is small or the projected volume associated with the user fee is small, or both (see Table 2).

1. More than 60 percent of the user fees would change by less than $50, and nearly 16 percent by less than $10.

2. Nearly 50 percent of the user fees are projected to have an annual volume of 10 or fewer users, and about 65 percent fewer than 90.

3. More than 31 percent of the user fees would change by $50 or less and have a projected annual volume of 50 or fewer users.

4. More than 62 percent of the fees with more than 100 annual users would change by $25 or less, and about 62 percent of the fees that would change by more than $50 have an estimated annual volume of 10 or fewer users.

When considering the proposed user fee changes, it is important to realize that user fees are not charged for tests and diagnostic reagents provided in the United States required in connection with current Federal or cooperative programs to control or eradicate various domestic diseases or pests, known as “program diseases.” Examples of program diseases are tuberculosis, brucellosis, and pseudorabies. In those situations, no user fee would be charged for veterinary diagnostics.

The following factors suggest that even those proposed user fee changes that would generate more than $10,000 in additional annual collections may have a minimal impact on users.

Thirty-six of the 43 proposed user fees that we expect would generate more than $10,000 each in additional annual collections would change by less than $75 each, and 14 would change by less than $25 each. In addition, most of the user fees covered in this proposal are collected in association with imports or exports. While those user fees would increase under this proposed rule, the fees continue to represent only a small fraction of the typical costs of purchasing and importing breeding grade registered animals into the United States, which can be between $1,500 and $5,000 per head. Purchase and import costs for feeder and slaughter animals are often significantly lower per animal but can easily exceed $1,500 per shipment depending on the number and type of animals in the shipment. About 18 percent of the total change in collections would come from a single user fee, that for complement fixation (CF) tests. About 90 percent of the CF test user fees are collected for import and export. The $5 change in the first year under the proposed fees and the $7 total change in the user fee for CF tests in § 130.16 would be very small in relation to the value of the animals involved and to the costs associated with importing and exporting animals. By providing the tests, this movement is facilitated.

A number of the proposed reagent user fees should generate considerable additional annual collections under this proposal. However, while these proposed changes represent considerable percentage increases in those fees, each purchasing laboratory can use the reagents to perform several hundred tests. Therefore, the purchasing laboratory can spread its costs across those several hundred tests for its customers. In addition, provision of the reagents enhances the purchasing laboratory's business, for without the reagents the tests would not be possible.

Along this same line, the fact that check tests would generate considerable additional collections under this proposal should have only a small impact. By passing (getting the correct results on a check test kit), the laboratory is certified to conduct the particular test on samples that are received by the laboratory. Being certified by APHIS to conduct a test enhances a laboratory's ability to attract customers.

The proposed user fee changes for NVSL FADDL veterinary diagnostic services and products could generate additional annual collections of about $141,000 in the first year and about $172,000 after all increases covered in this proposal have been implemented. These user fees cover veterinary diagnostic services and products associated with foreign animal diseases, including the diagnosis of foreign animal diseases, training in foreign animal disease recognition, reagent production, and vaccine testing. It should be noted that the NVSL FADDL laboratory is isolated from the mainland United States. Because the laboratory works with diseases exotic to the United States, special biosecurity measures are required at NVSL FADDL that are not required at NVSL in Ames, IA. The proposed user fees reflect the higher operating costs at NVSL FADDL.

Most of the user fees in this category would increase substantially under this proposed rule. The average increase in the first year would be about 89 percent. However, the total impact of the proposed changes should be small. Of the 35 fees in this category, only 4 are associated with increased annual collections of more than $10,000 each over the entire time period covered in the proposal. These four fees would account for more than 86 percent of the additional collections in this category. By the end of FY 2007, collections from hourly fees would have increased by about $64,000 annually, collections for virus neutralization tests would have increased by about $55,000 annually, collections for enzyme linked immunosorbent assay tests would have increased by about $17,000, and collections for indirect fluorescent antibody tests would have increased by about $12,000. In addition, the nature of the work at NVSL FADDL should limit the impact of the proposed changes in the user fees. The user fee work at NVSL FADDL is restricted to work associated with foreign animal diseases, and this limits the volume of user fee work at the laboratory. The majority of the user fee work is associated with imports. For example, the virus neutralization test is often used as a prescreening test for foot-and-mouth disease prior to an animal leaving its country of origin to ensure that the animal will not be refused entry into the United States and reexported. Also, a good deal of the user fee work at NVSL FADDL is performed in conjunction with the import of master seeds/cells for vaccines. The overall cost of developing and importing these vaccines is very high. Because of this, the user fees and the proposed increases in those fees represent a very small portion of an importer's costs.

The proposed user fee changes for veterinary diagnostic isolation and identification tests performed at NVSL in Ames could generate additional annual collections of about $305,000 in FY 2004 and about $380,000 by the end of FY 2007. The average proposed increase in the fees in this category is more than 100 percent in the first year. However, the total impact of the changes should be small. The average increase in the first year would be less than $36, and 12 of the 20 fees in this category would change in total by less than $30 each. Only six of these fees should generate $10,000 or more in additional annual collections. Two of these fees are primarily associated with required testing at poultry slaughtering facilities, and are paid for by the Food Safety and Inspection Service (FSIS): Bacterial serotyping (Salmonella), which is projected to generate a total of about $119,000 in additional annual collections, and phage typing (all other), which is projected to generate a total of about $14,000 in additional annual collections. User fees for these tests are only charged for research and for confirming the FSIS tests. The proposed changes in the user fee for virus isolation tests are projected to generate total additional collections of $75,000. However, the change in this fee would be only $11.50 in the first year and $16.50 in total for virus isolations other than for Newcastle disease.

The proposed user fee changes for veterinary diagnostic serology tests performed at NVSL in Ames could generate additional annual collections of about $948,000 in FY 2004 and about $1.1 million by the end of FY 2007. The average total increase in the fees in this category would be more than 100 percent. However, the total impact of these proposed changes should be small. The average increase in the first year would be less than $9 and would increase by less than $10 in total. Only three of the fees in this category would increase in total by more than $20, and 16 would increase by less than $10. The proposed user fee for CF tests should generate about $509,000 in total additional annual collections, but the increase in this fee would be only $6 in the first year and $7 in total. About 90 percent of the CF test user fees are collected for import and export. The increases in this user fee would be very small in relation to the value of the animals involved and the costs associated with importing and exporting animals. For example, moving horses into or out of the United States generally requires four CF tests. Breeding stallions move between the northern and southern hemispheres to double the number of annual breeding seasons. These stallions, valued on average at approximately $400,000 and reaching $2 to $4 million, can command breeding fees of at minimum $10,000 per mare covered. Moving horses by air can cost between $6,000 and $9,000 per horse. The user fees represent a tiny portion of the total cost of moving these animals into the country, and by providing the tests, this movement is facilitated.

The proposed changes in the user fees for veterinary diagnostic tests performed at the pathobiology laboratory at NVSL in Ames could generate additional annual collections of about $29,000 in FY 2004 and about $43,000 by the end of FY 2007. The average increase in the fees in this category would be less than $30 in the first year and $35 in total. Only two of the proposed fees in this category are projected to generate more than $10,000 each in additional total annual collections, and the rest less than $1,000 each. Both of these two fees would change by less than $10 each in the first year, and by less than $15 each in total.

The proposed changes in user fees for veterinary diagnostic reagents produced at NVSL in Ames could generate additional annual collections of about $592,000 in FY 2004 and about $697,000 by the end of the FY 2007. The proposed changes to 16 of these fees should generate a total of more than $10,000 each in additional annual collections. The average increase in this category is less than $60 in the first year and $70 in total. Thirty-one of the fees increase by less than $50 each in total, and 20 by $25 or less each. While these proposed changes represent considerable percentage increases in those fees, the reagents are the basis for doing tests. The purchasing laboratory can use the reagent to perform several hundred tests. Therefore, the purchasing laboratory can spread its costs across those several hundred tests for its customers. In addition, the ability to obtain these reagents from APHIS enhances the purchasing laboratory's business, for without the reagents the tests would not be possible.

The proposed changes in user fees for other veterinary diagnostic services or materials provided at NVSL in Ames could generate additional annual collections of about $409,000 in FY 2004, and about $471,000 by the end of FY 2007. Providing check tests could account for about 47 percent of the total additional collections in this category, about $221,000. NVSL in Ames certifies laboratories to conduct certain tests, employing “check test kits” to perform the certification. The kits consist of about 20 sera (or live organisms if it is for culture), and the laboratory conducts the test it wants to be certified to perform using the sera in the check test kit. The laboratory must get a predetermined number of the sera right (positive or negative) in order to pass and be certified to run the tests. The proposed user fees for this service should not have a significant impact on the laboratories because being certified by APHIS to conduct a test enhances their ability to attract customers who pay the laboratory to conduct tests. Another large portion of the additional annual collections would be from the proposed fee for fetal bovine serum safety test. The proposed changes to this fee are projected to generate total additional annual collections of about $131,000 by the end of FY 2007. This fee is for testing fetal bovine serum to be sure it is free of foreign viruses. This serum is needed to grow viruses and is used by biologics manufacturers and diagnostic laboratories. Its value is high even relative to the large fee for the test.

The Regulatory Flexibility Act requires that agencies specifically consider the economic impact associated with their rules on small entities. The Small Business Administration (SBA) has set size criteria according to the categories of the North American Industrial Classification System (NAICS), which is used as a guide in determining which economic entities meet the definition of a small business.

The veterinary diagnostic services provided by APHIS at NVSL FADDL and NVSL in Ames are provided to determine if a disease-causing organism or chemical agent is present in body tissues or cells and to identify those organisms or agents. As such, the users of these services and products include importers, exporters, non-APHIS veterinarians, commercial laboratories and pharmaceutical manufacturers, State laboratories, universities, and foreign governments. These users may be affected by the proposed changes to user fees for veterinary diagnostic services and products.

The SBA's criterion for a small entity engaged in importing and exporting live animals, poultry, and birds is 100 or fewer employees. The criterion for a small veterinary testing laboratory is $6 million or less in annual sales. The criterion for a small pharmaceutical manufacturing company is 750 or fewer employees.

The number of entities specifically using the veterinary diagnostic products and services covered in this proposal that would qualify as a small entity under SBA criteria cannot be determined at this time. However, more than 99 percent  1 of the entities in livestock wholesale, poultry wholesale, and other farm product raw material wholesale (including horses and mules) can be considered small. Under NAICS, import and export merchants, agents, and brokers are included in the wholesale trade sector. According to the latest available information, 2 94 percent of all testing laboratories, including veterinary testing laboratories, can be considered small. According to the 1997 Economic Census, at least 97.9 percent  3 of all chemical manufacturers can be considered small. Pharmaceutical manufacturing is included in this category under NAICS. It is, therefore, likely that the majority of users affected can be considered small. However, because the overall impacts of the proposal are expected to be limited, the impacts on small entities should be limited as well.

User fees for veterinary diagnostic services and products are intended to meet broad economic objectives. User fees promote the internalization of the real cost of providing veterinary diagnostic services and products in consumer transaction decisions. User fees also achieve savings in Government expenditures, and, therefore, reduce the tax support necessary for the system to operate at a given level. These tax funds can then be used in other programs or to reduce taxes overall and, thus, diminish the efficiency losses associated with the generation of taxes (deadweight loss plus collection costs).

User fees reduce Government expenditures for fee-based services by shifting the burden of financing Federal services from general taxpayers to users and by curtailing the amount demanded for veterinary diagnostic service-related products. The consumer response to user fees is a movement toward a more socially optimal level of demand where users incorporate the cost of veterinary diagnostic services and products into their private costs.

As circumstances affecting the cost of providing services and products change, the amount of the user fees must be reevaluated to ensure that the user fee accurately reflects the cost of providing the services at that point in time. The socially optimal level of output, where the true cost is more fully incorporated into the transaction, is therefore maintained.

The net gain associated with the adjustment in consumer demand is quantified by subtracting the consumer welfare losses from the savings in Government expenditures. The magnitude of this gain depends on the elasticities of demand for each particular service or product (consumer responsiveness to changes in user fees). These elasticities are unknown. The demand for veterinary diagnostic services and products is intertwined with the demand for the commodities of which the products and services are inputs. However, there is no evidence to suggest that a significant change in demand for veterinary diagnostics has occurred due to the imposition or alteration of user fees in the past. When consumer adjustment is small, there is a correspondingly low net social gain.

Additional social gain can be expected from the reduction in losses associated with collecting and apportioning taxes to finance the veterinary diagnostic products and services. This reduction in losses arises from the internalization by consumers of the social cost of obtaining veterinary diagnostic products and services, and from the reduction in deadweight losses due to taxation.

To evaluate the overall costs and benefits of the user fee program, the two types of net benefits must be compared with the cost of the user fees. Because the demand elasticities for the veterinary diagnostic service-related products are unknown, the only measures are the savings in Government expenditures and the administrative cost involved in obtaining these savings. APHIS already has a user fee program and a mechanism for collecting these fees in place. This proposal would update existing fees. Therefore, increases in administrative costs would be very small. Differences between the level of the user fees and actual cost of performing the services have become considerable. Therefore, the Government savings associated with this proposal should be substantial. It is likely that the net gain in reducing the burden on taxpayers as a whole would outweigh the cost of administering the revisions of the user fees.

The proposed user fee increases are needed to move toward economic efficiency. From the point of view of society, the optimal level of output is where the marginal benefit to society equals the marginal cost to society. User fees help to internalize the cost of performing the veterinary diagnostic services into the private transaction, and their revision helps ensure that the user fees adequately reflect the cost of performing the services over time.

The impacts of the proposed increases in veterinary diagnostic user fees in this proposal are expected to be muted. The majority of the proposed changes to the user fees are either small, associated with few users, or both. Over the period covered by the proposed rule, more than 60 percent of the individual increases are less than $50, nearly 16 percent increase by less than $10, and about 65 percent are associated with 100 or fewer users. The majority of the proposed fees should also make only small contributions to the total additional collections and, therefore, would have a minor impact on the users of those services. This is either because the proposed change is small or the projected volume associated with the user fee is small, or both. Even in those instances in which the change in a user fee would generate a larger total increase in collections, the impact should not be significant because they are small fees applied to a large annual volume of users, large fees applied to a very small volume of users, fees that represent a small percentage of the overall costs associated with a user's output, single fees for reagents with numerous final users, or fees that enhance the marketability of the user's final outputs. Therefore, the increases are not generally expected to substantially reduce profits or impede exports or imports. Indeed, the full burden of the proposed user fee changes is not likely to be borne entirely by the purchasers of products and services.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action would not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 7 CFR part 3015, subpart V.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we propose to amend 9 CFR part 130 as follows:

The Commission is proposing to make two changes to its emergency preparedness regulations contained in 10 CFR part 50, Appendix E. The first proposed amendment relates to the NRC approval of licensee changes to Emergency Action Levels (EALs), paragraph IV.B and the second proposed amendment relates to exercise requirements for co-located licensees, paragraph IV.F.2. A discussion of each of these proposed revisions follows.

NRC approval of licensee changes to EALs, 10 CFR part 50, Appendix E, Paragraph IV.B.

EALs are part of a licensee's emergency plan. There appears to be an inconsistency in the emergency planning regulations regarding the NRC approval of nuclear power plant licensee changes to EALs. Section 50.54(q) states that licensees may make changes to their emergency plans without Commission approval only if the changes “do not decrease the effectiveness of the plans and the plans, as changed, continue to meet the standards of § 50.47(b) and the requirements of Appendix E” to 10 CFR part 50. By contrast, Appendix E states that “EAL's shall be * * * approved by NRC.” However, the current industry practice, in general, has been to make revisions to EALs and to implement them without requesting NRC approval after determining that the changes do not reduce the effectiveness of the emergency plan, in accordance with § 50.54(q). When the determination is made that a proposed change constitutes a decrease in effectiveness, licensees submit the changes to NRC for review and approval. If a change involves a major change to the EAL scheme, for example, changing from an EAL scheme based on NUREG-0654 guidance to an EAL scheme based on NUMARC/NESP-007 guidance, it has been the industry practice to seek NRC approval before implementing the change. The NRC has been aware of the industry practice and has not objected to it. The Commission believes that the current regulations are unclear and can be interpreted to require prior NRC approval for all changes to a licensee's EALs.

The Commission believes that NRC review and approval of every EAL change is not necessary to provide reasonable assurance that EALs will continue to provide an acceptable level of safety. The Commission's regulatory review should be focused on EAL changes that are of sufficient significance that a safety review by the NRC is appropriate before the licensee may implement the change. The Commission believes that EAL changes which have the potential to reduce the effectiveness of the emergency plan are of sufficient regulatory significance that prior NRC review and approval is warranted. This proposed standard is the same standard that the current regulations provide for determining whether changes to emergency plans (except EALs) require NRC review and approval. As such, this regulatory threshold has a long history of successful application, and this standard should also be used for EAL changes. Based upon the NRC's inspections of emergency plans, including EAL changes the Commission believes that licensees have been, in general, making appropriate determinations regarding whether an EAL change may potentially reduce the effectiveness of the emergency plan and have the capability to continue to do so. Limiting the NRC's review and approval to EAL changes which may reduce the effectiveness of emergency plans will ensure adequate NRC oversight of licensee-initiated EAL changes, while both increasing regulatory effectiveness (through use of a single consistent standard for evaluating all emergency plan changes) and reducing unnecessary regulatory burden on licensees (who would not be required to submit for approval EAL changes that do not decrease the effectiveness of the emergency plan).

The Commission believes a licensee proposal to convert from one EAL scheme ( e.g. , NUREG-0654-based) to another EAL scheme ( e.g. , NUMARC/NESP-007-based) will always involve a potential reduction in effectiveness. While the new EAL scheme may, upon review, be determined by the NRC to provide an acceptable level of safety and be in compliance with applicable NRC requirements, the potential safety significance of a change from one EAL scheme to another is such that prior NRC review and approval is appropriate to ensure that there is reasonable assurance that the proposed EAL change will provide an acceptable level of safety or otherwise result in non-compliance with applicable Commission requirements on emergency preparedness.

Accordingly, the Commission proposes to revise Appendix E to 10 CFR part 50 to provide that NRC approval of EAL changes would be necessary for all EAL changes that decrease the effectiveness of the emergency plan and for changing from one EAL scheme ( e.g. , NUREG-0654-based) to another EAL scheme ( e.g. , NUMARC/NESP-007-based).

(2) Exercise Requirements for Co-Located Licensees, 10 CFR part 50, Appendix E, Paragraph IV.F.

A. Rulemaking addressing exercise requirements for co-located licensees. The emergency planning regulations were significantly upgraded in 1980 after the accident at Three Mile Island (45 FR 55402; August 19, 1980). The 1980 regulations required an annual exercise of the onsite and offsite emergency plans. In 1984, the regulations were amended to change the frequency of participation of State and local governmental authorities in nuclear power plant offsite exercises from annual to biennial (49 FR 27733; July 6, 1984). In 1996, the regulations were amended to change the frequency of exercising the licensees' onsite emergency plan from annual to biennial (61 FR 30129; June 14, 1996). 10 CFR part 50, Appendix E to part 50, Paragraph IV.F.2, currently provides that the “offsite plans for each site shall be exercised biennially” with the full (or partial) participation of each offsite authority having a role under the plans, and that “each licensee at each site” shall conduct an exercise of its onsite emergency plan every 2 years, an exercise that may be included in the full participation biennial exercise (emphasis added). 1 Thus, Paragraph IV.F.2 is ambiguous about the emergency preparedness exercise requirements where multiple nuclear power plants, each licensed to different licensees, are co-located at the same site: whether each licensee must participate in a full-participation exercise of the off-site plan every two years, or whether the licensees may alternate their participation such that a full-participation exercise is held every two years and each licensee (at a two-licensee site) participates in a full-participation exercise every four years.

Upon consideration of the language of the current regulation and the legislative history of the exercise requirements, the Commission believes that the ambiguity in the current regulation can be interpreted such that each nuclear power plant licensee co-located on the same site must participate in a full-participation offsite exercise every two years (and that each offsite authority is to participate on either a full or partial participation basis in each licensee's biennial offsite exercise). Upon consideration of the matter, the Commission believes that requiring each licensee on a co-located site to participate in a full-participation exercise every two years, and for the offsite authorities to participate in each licensee's full-participation exercise is not necessary to provide reasonable assurance that each licensee and the offsite authorities will be able to fulfill their responsibilities under the emergency plan should the plan be required to be implemented. Furthermore, the Commission believes that such an interpretation could impose an undue regulatory burden on offsite authorities. Currently, there is only one nuclear power plant site with two power plants licensed to two separate licensees: the James A. FitzPatrick and Nine Mile Point site. Although the ambiguity in Paragraph IV.F.2 has limited impact today, the Commission understands that future nuclear power plant licensing concepts currently being considered by the industry include siting multiple nuclear power plants on a single site. These plants may be owned and/or operated by different licensees. Therefore, the Commission believes that this rulemaking is necessary to remove the ambiguity in Paragraph IV.F.2 and clearly specify the emergency preparedness training obligations of co-located licensees.

The Commission proposes that where two nuclear power plants licensed to separate licensees are co-located on the same site, reasonable assurance of emergency preparedness exists where:

(1) The co-located licensees would exercise their onsite plans biennially;

(2) The offsite authorities would exercise their plans biennially;

(3) The interface between offsite plans and each of the onsite plans would be exercised biennially in a full or partial participation exercise alternating between each licensee.

Thus, each co-located licensee would participate in a full or partial participation exercise quadrennially. In addition, in the year when one of the co-located licensees is participating in a full or partial participation exercise, the proposed rule would require the other co-located licensees to participate in activities and interaction with offsite authorities. For the period between exercises the proposed rule would require the licensees to conduct emergency preparedness activities and interactions (A&I). The purpose of A&I would be to test and maintain interface functions among the affected State and local authorities and the licensees.

The Commission concludes that biennial full or partial participation exercises for each co-located licensee is not warranted and that the proposed regulation would provide a sufficient level of assurance of emergency preparedness for the following reasons. First, the proposed rule is consistent with the current licensees' practice for the James A. Fitizpatrick/Nine Mile Point plants. This practice has been reviewed periodically by the NRC, the Federal Emergency Management Agency (FEMA), and the State of New York. NRC has continued to find that there is reasonable assurance that appropriate measures could be taken to protect the public health and safety in the event of a radiological emergency, based on NRC's assessment of the adequacy of the licensee's onsite Emergency Planning (EP) program, FEMA's assessment of the adequacy of the offsite EP program, and the current level of interaction between the onsite and offsite emergency response organizations in the period between full (or partial) participation exercises.

Second, the central requirement of a “partial participation” exercise under the current regulations is to test the “direction and control functions” between the licensee and the offsite authorities ( i.e. , protective action decision making related to emergency action levels, and communications capabilities among affected State and local authorities and the licensee). See 10 CFR part 50, Appendix E, Paragraph IV.F, footnote 5 of the current regulations. The proposed rule would contain a requirement that, in each of the three years between a licensee's participation in a full participation exercise, each licensee shall participate in activities and interactions (A&I) with offsite authorities to test and maintain interface functions. By requiring that the licensee's emergency preparedness organization engages in activities with offsite authorities to exercise and test effective communication and coordination, the proposed rule would provide the functional equivalent of a biennial exercise which tests the “direction and control functions” between the licensee and the offsite authorities. Id.

Third, the burden of requiring each licensee to participate biennially in a full or partial participation exercise with offsite participation falls most heavily on the offsite authorities ( i.e. , the State and local authorities). The Commission's 1984 and 1996 rulemakings were specifically intended to reduce the schedule for offsite exercises, to remove unnecessary burden on offsite authorities. However, the Commission did not explicitly address the unique circumstance of two plants located on a single site, with each plant owned by different licensees. This proposed rulemaking would address the undue burden placed upon offsite authorities in these circumstances.

The proposed rule would define co-located licensees as licensees that share many of the following emergency planning and siting elements:

a. Plume exposure and ingestion emergency planning zones,

b. Offsite governmental authorities,

c. Offsite emergency response organizations,

d. Notification system, and/or

e. Emergency facilities.

The Commission requests public comments on whether the “alternating participation” concept should be extended to the situation where three or more nuclear power plants are co-located at a single site. For example, if there were five nuclear power plants each owned by separate licensees, co-located on a single site, should the final rule include a provision which would require each licensee to participate in a full offsite exercise once every 10 years with co-located licensees required to participate in activities and interactions with offsite authorities between exercises? If this is not considered appropriate, what alternative concept for the conduct of full-participation offsite exercises should the regulation specify?

The Commission also requests public comment on the elements of the definition of “co-located” licensees.

B. Proposed Guidance on Acceptable Emergency Planning Activities and Interactions for Co-Located Licensees. Currently, guidance on the conduct of training, including onsite and offsite exercises, is contained in Regulatory Guide (RG) 1.101, “Emergency Planning and Preparedness for Nuclear Power Reactors.” The NRC intends to modify RG 1.101 to set forth guidance on the conduct of exercises, and activities and interactions, to reflect the provisions of any final rule addressing co-located licensees, as part of the final rulemaking package. The substance of the proposed guidance to be set forth in the revised version of RG 1.101 is set forth below. The Commission requests public comment on the following guidance for co-located licensees:

1. When one licensee hosts the two year full or partial participation exercise, the other licensee is involved in the following activities:

a. Scenario preparation;

b. Meetings with State, and local governmental personnel to develop extent of play document;

c. Licensee to conduct training at Reception Centers, Congregate Care Centers, and County Emergency Operations Centers; and

d. Provide controllers and observers for the full participation exercise.

2. Provide for the staffing of the State and County Emergency Operations Centers (EOC) with dose assessment and communications personnel as well as the staffing of the Joint News Center (JNC).

3. Hospital drills are conducted twice a year with alternating counties; if applicable.

4. The Notification Process and the Emergency Action Level Scheme shall be exercised.

5. Protective Action Recommendations (PAR) Methodology for the 10 and 50-mile Emergency Planning Zones (EPZs) and the Dose Assessment Methodology shall be exercised.

6. Licensee/Offsite training:

• Annual State County training (Examples: Reactor Systems, Dry Cask Storage, EALs).

• Licensee provided Fire Service Training (County).

• Licensee provided Ambulance Training (County).

• Licensee provided Hospital Training (County).

• Licensee provided Dose Assessment training, including dose assessment software (State and County).

7. Licensee/Offsite Meetings and Conferences:

• Quarterly Nuclear Safety Subcommittee (State and County).

• Ad hoc meetings with County Emergency Management staff.

• County and local government Emergency Planning Committee meetings.

• Licensee security meetings with offsite law enforcement and U.S. Coast Guard.

• Licensee assistance in the development of the County Emergency Planning public information booklet.

8. Licensee/Offsite drills and exercises:

• County and/or State partial participation in licensee quarterly drills and biennial exercises.

• Participation in County/State FEMA evaluated drills.

• Local fire department support during licensee on-site fire drills.

• Licensee participation at Hospital drills.

9. Licensee/Offsite support services:

• Licensee support at local government Reception Center training and practice drills.

• Licensee provides dosimeters and processing services to local government.

• Licensee provide radiological instrument calibration services to local government.

• Licensee support of local government during annual Public Notification System (PNS) system test.

• Licensee provides use of weapons firing range to local and state law enforcement (Sheriff, State Police).

A. Paragraph IV. B—Assessment Actions. This paragraph would be amended by adding new language governing the type and scope of EAL changes that must receive NRC approval prior to implementation. The proposed amendment would clarify that NRC approval of EAL changes would be required for changes that decrease the effectiveness of the emergency plan or for changes to convert from one EAL scheme ( e.g. , NUREG-0654-based) to another EAL scheme ( e.g. , NUMARC/NESP-007-based). The proposed language would also clarify the existing requirement that applicants for initial reactor operating licenses and initial combined licenses (COL) must obtain NRC approval of initial proposed EALs.

Language would be added to the last sentence of 10 CFR 50.54(q), to clearly state that EAL changes that are made without NRC review and approval, as well as licensee requests for review and approval of EAL changes under the proposed language, must be submitted in accordance with the requirements of § 50.4. The Commission proposes to follow the current practice of approving EAL changes without the use of a license amendment.

B. Paragraph IV.F.2.—Training. This paragraph would be amended to articulate the emergency planning exercise requirements for co-located licensees. Under the proposed amendment, co-located licensees would be required to exercise their onsite plans biennially. The offsite authorities would exercise their plans biennially. The interface between offsite plans and each of the onsite plans would be exercised biennially in a full or partial participation exercise alternating between each licensee. Thus, each co-located licensee would participate in a full or partial participation exercise quadrennially. In addition, in the year when one of the co-located licensees is participating in a full or partial participation exercise, the proposed rule requires the other co-located licensee to participate in activities and interactions with offsite authorities. For the period between exercises the proposed rule requires the licensee to conduct emergency preparedness activities and interactions (A&I). The purpose of A&I would be to test and maintain interface functions among the affected State and local authorities and the licensee. Table 1 provides a graphical description of one possible way of meeting the requirements of the proposed rule.

This paragraph would also be amended to provide a definition of co-located licensees as licensees that share many of the following emergency planning and siting elements.

a. Plume exposure and ingestion emergency planning zones,

b. Offsite governmental authorities,

c. Offsite emergency response organizations,

d. Public notification system, and/or

e. Emergency facilities.

On October 7, 1992, the Commission published its final Policy Statement on Metrication. According to that policy, after January 7, 1993, all new regulations and major amendments to existing regulations were to be presented in dual units. The proposed amendments to the regulations contain no units.

The Presidential memorandum dated June 1, 1998, entitled “Plain Language in Government Writing” directed that the Government's writing be in plain language. This memorandum was published on June 10, 1998 (63 FR 31883). In complying with this directive, editorial changes have been made in these proposed revisions to improve the organization and readability of the existing language of the paragraphs being revised. These types of changes are not discussed further in this document. The NRC requests comments on the proposed rule changes specifically with respect to the clarity of the language used. Comments should be sent to the address listed under the ADDRESSES caption of the preamble.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. The proposed rulemaking addresses two matters: (1) The circumstances under which a licensee may modify an existing EAL without prior NRC review and approval; and (2) the nature and scheduling of emergency preparedness exercises for two different licensees of nuclear power plants which are co-located on the same site (co-located licensees). These are not matters which are appropriate for addressing in industry consensus standards, and have not been the subject of such standards. Accordingly, this proposed rulemaking is not within the purview of the National Technology Transfer and Advancement Act of 1995, Public Law 104-113.

The Commission is proposing to amend its emergency preparedness regulations contained in 10 CFR part 50, Appendix E. The first proposed revision relates to the NRC approval of changes to the EALs, Appendix E to 10 CFR part 50, paragraph IV.B. The second proposed revision relates to exercise requirements for co-located licensees (Appendix E, paragraph IV.F).

(1) NRC Approval of Changes to Emergency Action Levels. 10 CFR 50.54(q) states that licensees may make changes to their emergency plans without Commission approval only if the changes “do not decrease the effectiveness of the plans and the plans, as changed, continue to meet the standards of 10 CFR 50.47(b) and the requirements of Appendix E” to 10 CFR part 50. By contrast, Appendix E states that “EAL's shall be * * * approved by NRC.” The industry practice, in general, has been to revise EALs that do not reduce the effectiveness of the emergency plan and to implement them in accordance with § 50.54(q), without requesting NRC approval. The Commission believes that the current regulations are unclear, and can be interpreted to require prior NRC approval for all licensee EAL changes. The Commission has determined that NRC approval of all EAL changes are not necessary to ensure an adequate level of safety. Thus, the current regulation imposes an unnecessary burden on licensees and the NRC.

2. Exercise Requirements for Co-Located licensees, (paragraph IV.F.2.). 10 CFR part 50, Appendix E, requires that the offsite emergency plans for each site shall be exercised biennially with the full (or partial) participation of each offsite authority having a role under the plans, and that each licensee at each site shall conduct an exercise of its onsite emergency plan every two years, an exercise that may be included in the full participation biennial exercise. Paragraph IV.F.2 is ambiguous about the emergency preparedness exercise requirements where multiple nuclear power plants, each licensed to different licensees, are co-located at the same site: whether each licensee must participate in a full-participation exercise of the off-site plan every two years, or whether the licensees may alternate their participation such that a full-participation exercise is held every two years and each licensee (at a two-licensee site) participates in a full-participation exercise every four years.

Upon consideration of the language of the current regulation and the legislative history of the exercise requirements, the Commission believes that the ambiguity in the current regulations can be interpreted that each nuclear power plant licensee co-located on the same site must participate in a full-participation offsite exercise every two years (and that each offsite authority is to participate on either a full or partial participation basis in licensee's biennial offsite exercise).

The Commission believes that requiring each licensee on a co-located site to participate in a full-participation exercise every two years, and for the offsite authorities to participate in each licensee's full-participation exercise is not necessary to provide reasonable assurance that each licensee and the offsite authorities will be able to fulfill their responsibilities under the emergency plan should the plan be required to be implemented. Furthermore, the Commission believes that this interpretation could impose an undue regulatory burden on offsite authorities. Therefore, the Commission believes that rulemaking is necessary to make clear that each co-located licensee need not participate in a full-participation offsite exercise every two years.

The Commission proposes that where two nuclear power plants licensed to separate licensees are co-located on the same site, reasonable assurance of emergency preparedness exists where; (1) The co-located licensees would exercise their onsite plans biennially; (2) The offsite authorities would exercise their plans biennially; and (3) The interface between offsite plans and each of the onsite plans would be exercised biennially in a full or partial participation exercise alternating between each licensee.

Thus, each co-located licensee would participate in a full or partial participation exercise quadrennially. In addition, in the year when one of the co-located licensees is participating in a full or partial participation exercise, the proposed rule would require the other co-located licensees to participate in activities and interaction with offsite authorities. For the period between exercises the proposed rule would require the licensees to conduct emergency preparedness activities and interactions. The purpose of A&I would be to test and maintain interface functions among the affected State and local authorities and the licensees.

The NRC believes that the environmental impact for the proposed rule is negligible. The proposed rule would not require any changes to the design, or the structures, systems and components of any nuclear power plant. Nor would the proposed rule require any changes to licensee programs and procedures for actual operation of nuclear power plants. Thus, there would be no change in radiation dose to any member of the public which may be attributed to the proposed rule, nor will there be any changes in occupational exposures to workers. Furthermore, the proposed rule will not result in any changes that would increase or change the nature of nonradiological effluents from nuclear power plants.

The alternative to the proposed action is to not revise the regulations ( i.e. , the no action alternative). No environmental impacts are associated with the no action alternative.

Cognizant personal from the Federal Emergency Management Agency and New York State (for the co-located licensee part of the rule change), were consulted as part of this rulemaking activity.

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that the proposed amendments are not major Federal actions significantly affecting the quality of human environment, and therefore, an environmental impact statement is not required. These amendments would revise the emergency planning regulations to be consistent with current staff and licensee practices. Comments on any aspect of the environmental assessment may be submitted to the NRC as indicated under the ADDRESSES heading.

This proposed rule increases the burden on co-located licensees to log activities and interactions with offsite agencies during the years that full or partial participation emergency preparedness exercises are not conducted and to prepare a one-time change to procedures to reflect the revised exercises requirements. The public burden for this information is estimated to average 30 hours per year. Because the burden for this information collection is insignificant, Office of Management and Budget (OMB) clearance is not required. Existing requirements were approved by the Office of Management and Budget, approval number 3150-0011.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

The NRC has prepared a regulatory analysis for the proposed amendments. This analysis examines the costs and benefits of the alternatives considered by the Commission. The regulatory analysis is provided below and is also available for inspection in the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room 01-F21, Rockville, Maryland. Single copies of the analysis are available as indicated in the ADDRESSES heading.

The Commission is proposing to make two changes to its emergency preparedness regulations contained in 10 CFR part 50, Appendix E. The first proposed amendment relates to the NRC approval of licensee changes to Emergency Action Levels, paragraph IV.B and the second proposed amendment relates to exercise requirements for co-located licensees, paragraph IV.F.2. A discussion of each of these proposed revisions follows.

(1) NRC approval of licensee changes to Emergency Action Levels, 10 CFR part 50, Appendix E, Paragraph IV.B. EALs are part of a licensee's emergency plan. There appears to be an inconsistency in the emergency planning regulations regarding the NRC approval of nuclear power plant licensee changes to emergency action levels. § 50.54(q) states that licensees may make changes to their emergency plans without Commission approval only if the changes “do not decrease the effectiveness of the plans and the plans, as changed, continue to meet the standards of 10 CFR 50.47(b) and the requirements of Appendix E” to 10 CFR part 50. By contrast, Appendix E states that “EAL's shall be * * * approved by NRC.” However, the current industry practice, in general, has been to make revisions to EALs and to implement them without requesting NRC approval, after determining that the changes do not reduce the effectiveness of the emergency plan in accordance with § 50.54(q). When the determination is made that a proposed change constitutes a decrease in effectiveness, licensees submit the changes to NRC for review and approval. If a change involves a major change to the EAL scheme, for example, changing from an EAL scheme based on NUREG-0654 guidance to an EAL scheme based on NUMARC/NESP-007 guidance, it has been the industry practice to seek NRC approval before implementing the change. The NRC has been aware of the industry practice and has not objected to it. The Commission believes that the current regulations are unclear and can be interpreted to require prior NRC approval for all changes to a licensee's EALs.

(2) Exercise Requirements for Co-Located Licensees, 10 CFR part 50, Appendix E, Paragraph IV.F. The emergency planning regulations were significantly upgraded in 1980 after the accident at Three Mile Island (45 FR 55402; August 19, 1980). The 1980 regulations required an annual exercise of the onsite and offsite emergency plans. In 1984, the regulations were amended to change the frequency of participation of State and local governmental authorities in nuclear power plant offsite exercises from annual to biennial (49 FR 27733; July 6, 1984). In 1996, the regulations were amended to change the frequency of exercising the licensees' onsite emergency plan from annual to biennial (61 FR 30129; June 14, 1996). Appendix E, to 10 CFR part 50, Paragraph IV.F.2, currently provides that the “offsite plans for each site shall be exercised biennially” with the full (or partial) participation of each offsite authority having a role under the plans, and that “each licensee at each site” shall conduct an exercise of its onsite emergency plan every two years, an exercise that may be included in the full participation biennial exercise (emphasis added). Thus, Paragraph IV.F.2 is ambiguous about the emergency preparedness exercise requirements where multiple nuclear power plants, each licensed to different licensees, are co-located at the same site: whether each licensee must participate in a full-participation exercise of the off-site plan every two years, or whether the licensees may alternate their participation such that a full-participation exercise is held every two years and each licensee (at a two-licensee site) participates in a full-participation exercise every four years.

Upon consideration of the language of the current regulation, and the legislative history of the exercise requirements, the Commission believes that the ambiguity in the current regulations can be interpreted that each nuclear power plant licensee co-located on the same site must participate in a full-participation offsite exercise every two years (and that each offsite authority is to participate on either a full or partial participation basis in each licensee's biennial offsite exercise). Upon consideration of the matter, the Commission believes that requiring each licensee on a co-located site to participate in a full-participation exercise every two years, and for the offsite authorities to participate in each licensee's full-participation exercise is not necessary to provide reasonable assurance that each licensee and the offsite authorities will be able to fulfill their responsibilities under the emergency plan should the plan be required to be implemented. Furthermore, the Commission believes that this interpretation could impose an undue regulatory burden on offsite authorities. Currently, there is only one nuclear power plant site with two power plants licensed to two separate licensees: The James A. FitzPatrick and Nine Mile Point site. Although the ambiguity in Paragraph IV.F.2 has limited impact today, the Commission understands that future nuclear power plant licensing concepts currently being considered by the industry include siting multiple nuclear power plants on a single site. These plants may be owned and/or operated by different licensees. Therefore, the Commission believes that this rulemaking is necessary to remove the ambiguity in Paragraph IV.F.2 and clearly specify the emergency preparedness training obligations of co-located licensees.

The Commission proposes that where two nuclear power plants licensed to separate licensees are co-located on the same site, reasonable assurance of emergency preparedness exists where: (1) The co-located licensees would exercise their onsite plans biennially; (2) The offsite authorities would exercise their plans biennially; and (3) The interface between offsite plans and each of the onsite plans would be exercised biennially in a full or partial participation exercise alternating between each licensee.

Thus, each co-located licensee would participate in a full or partial participation exercise quadrennially. In addition, in the year when one of the co-located licensees is participating in a full or partial participation exercise, the proposed rule would require the other co-located licensees to participate in activities and interaction with offsite authorities. For the period between exercises the proposed rule would require the licensees to conduct emergency preparedness activities and interactions. The purpose of A&I would be to test and maintain interface functions among the affected State and local authorities and the licensees.

The proposed rule defines co-located licensees as licensees that share many of the following emergency planning and siting elements.

a. Plume exposure and ingestion emergency planning zones,

b. Offsite governmental authorities,

c. Offsite emergency response organizations,

d. Public notification system, and/or

e. Emergency facilities.

(1) Emergency Action Levels (paragraph IV.B). EALs are thresholds of plant parameters (such as containment pressure and radiation levels) used to classify events at nuclear power plants into one of four emergency classes (Notification of Unusual Event, Alert, Site Area Emergency, or General Emergency). EALs are required by Appendix E to 10 CFR part 50 and § 50.47(b)(4), and are contained in licensees' emergency plans and emergency plan implementing procedures.

Section 50.54(q) states that licensees can make changes to their emergency plans without Commission approval only if the changes “do not decrease the effectiveness of the plans and the plans, as changed, continue to meet the standards of § 50.47(b) and the requirements of Appendix E” to 10 CFR part 50. However, Appendix E to 10 CFR part 50 states that “EALs shall be discussed and agreed on by the applicant and State and local governmental authorities and approved by NRC.” Because EALs are required to be included in the emergency plan, the issue is whether changes to EALs incorporated into the emergency plan are subject to the change requirements in 10 CFR 50.54(q), or to the more restrictive requirement in Appendix E.

(2) Exercise Requirements for Co-Located Licensees (paragraph IV.F.2). The NRC's current regulations contained in Appendix E, to 10 CFR part 50, require that the offsite emergency plans for each site shall be exercised biennially with the full (or partial) participation of each offsite authority having a role under the plans, and that each licensee at each site shall conduct an exercise of its onsite emergency plan every two years, an exercise that may be included in the full participation biennial exercise. This exercise requirement, though straight forward on its face, has implementation and compliance problems when two licensees occupy the same site thereby requiring the same state to conduct a full participation exercise with each co-located licensee every year.

There is currently only one site with two licensees, Nine Mile Point and James A. FitzPatrick site. However, the current trend in the nuclear industry is to locate new plants on currently approved sites, possibly with different licenses, thus the need for this proposed rule change.

Option 1—revise the regulations to reflect current staff and licensee practices.

Option 2—not to revise the regulations.

Option 1 for the EAL revisions would amend the existing regulations to eliminate the inconsistency between the requirements of Appendix E and § 50.54(q) relating to approval of changes to EALs and reflect current staff and licensee practice. This would be done by amending Appendix E to 10 CFR part 50, to require NRC to review for approval new EAL schemes or revisions to EALs that diminish the effectiveness of the emergency plans (§ 50.54(q) criteria). The rulemaking would provide a means for licensees to improve their EALs while reducing unnecessary regulatory burden. Once the rule is revised, licensees could make EAL changes that do not decrease the effectiveness of the emergency plan without prior NRC approval. This approach would reduce the unnecessary regulatory burden on licensees.

Option 2 for EAL changes would retain the inconsistency in the regulations, thereby increasing the unnecessary burden on licensees and the NRC staff in addressing questions on a case-by-case basis.

Option 1 for co-located licensees would maintain safety because EP exercises would continue to be required at the frequency which has provided reasonable assurance that the emergency plans can be implemented. The impact of Option 1 on the resources of licensees and offsite authorities would be minimal. Option 1 would reflect what licensees are currently doing and, therefore, there would not be a change in existing acceptable practices. Clarification of the regulatory requirements would modify wording that has resulted in ambiguous understanding of the requirements. This option would require NRC resources to conduct the rulemaking. The activities and interactions that would test and maintain interface functions for co-located licensees and offsite authorities in the period between exercises (outlined in this proposed rule) will provide a consistent expectation and basis for such activities. The level of activities and interactions adequate to maintain an appropriate level of preparedness would be ensured.

The impact of the no rulemaking option (option 2) for the co-located licensee exercise revision on the resources of staff, licensees and offsite authorities would be minimal. However, without clarification of the regulatory requirements, there would be the continued ambiguity in the requirements for future licensee situations. The impact of these continued ambiguities is that potential confusion over requirements would have to be resolved on a case-by-case basis by the staff. This option would not require NRC resources for conducting a rulemaking.

The proposed amendments would modify current requirements in the NRC's approval of changes to Emergency Action Levels (EALs) and the participation in emergency preparedness exercises for co-located licensees. The change in the requirement for NRC approval of EALs is being made solely for consistency, and that because it reflects current practice, as well as the Commission's original intent it does not impose a burden on licensees. However, the second change does modify the information collection requirements and impacts future co-located licensee burden. Current co-located licensees have implemented an emergency planning training regime consistent with the proposed rule.

The proposed amendment would require that future co-located licensees incorporate in their emergency planning procedures that each co-located licensee would hold a full participation emergency preparedness exercise with the offsite agencies once every four years. In addition, the licensee that does not conduct the full participation exercise with the offsite agencies will conduct a partial participation exercise with the offsite agencies every two years. Likewise each co-located licensee would log the activities and interactions with offsite authorities that are also conducted in the period between exercises. This proposed rule does not increase the burden on current co-located licensees because they have an emergency planning training regime consistent with the proposed rule. Future co-located licensees would keep a log of the activities and interactions with offsite authorities which is estimated to average 30 hour(s) per co-located licensee per year.

As noted, the impact on a co-located licensee to implement the proposed rule change is a modest 30 hour(s) per year per co-located licensee. This time would be used to maintain a log of the activities and interactions with offsite authorities. At an assumed average hourly rate of $156/hour, the total industry implementation cost is estimated at $9,360. The cost for an individual co-located licensee is $4,680 per year.

With respect to the EAL rule change, licensees would save staff time by having explicit NRC requirements and guidance that should assist the licensees in the proper submittal of EAL changes. The impact of improved regulations on the NRC is a decrease in the amount of staff time needed to approve license EAL changes. This is estimated to be about a 100 staff-hour reduction or a $8,000 savings to the NRC per year (assuming a $80 hourly rate for NRC staff time). However, it is uncertain as to how many EAL changes might have been received by the NRC for review and approval.

There would be several additional benefits associated with these amendments. The greatest would be the increased assurance that the Commissions regulations are consistent and not ambiguous. Further, by addressing these issues generically, through rulemaking, rather than continuing the current case-by-case approach, it is expected that the burden on the NRC staff would be reduced by several hours for each license EAL change as well as future co-located licensee's exercise requirements that NRC would need to approve. Another beneficial attribute to this proposed action is regulatory efficiency resulting from the expeditious handling of future licensing actions by providing regulatory predictability and stability for the EAL changes as well as the exercise requirements for co-located licensees.

As previously discussed, the additional burdens on a licensee and the NRC are expected to be modest. However, a revision of the requirements is desirable to remove ambiguities in the current regulations, while maintaining safety and reducing unnecessary regulatory burden.

The NRC staff proposes that any Federal rulemaking take effect 90 days after publication of the final rule in the Federal Register .

The Commission requests public comment on the draft regulatory analysis. Comments on the draft analysis may be submitted to the NRC as indicated under the ADDRESSES heading.

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that the proposed rule if issued, will not have a significant economic impact on a substantial number of small entities. The proposed rule would affect only States and licensees of nuclear power plants. These States and licensees do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act, or the size standards established by the NRC (10 CFR 2.810).

The proposed rule, which eliminates the need for NRC review and approval for certain EAL changes, does not constitute a backfit as defined in 50.109(a)(1). Although 10 CFR 50.54(q) permits licensees to make changes to the emergency plan which do not decrease the effectiveness of the plan, 10 CFR part 50, Appendix E currently requires that EALs shall be approved by NRC. The proposed rulemaking would clarify the Appendix E requirement to clearly permit licensee changes to EALs without NRC review and approval if the changes do not decrease the effectiveness of the emergency plan. The proposed rule requires NRC review and approval for those EAL changes which decrease the effectiveness of the emergency plan, or constitute a change from one EAL scheme to another. The proposed rulemaking clarifies the requirements and represents the current practice of making changes under 50.54 (q) requirements and is therefore not a backfit.

In addition, the proposed change applies prospectively to changes initiated by licensees. The Commission has indicated in various rulemakings that the Backfit Rule does not protect the prospects of a potential applicant nor does the Backfit Rule apply when a licensee seeks a change in the terms and conditions of its license. A licensee-initiated change in an EAL does not fall within the scope of actions protected by the Backfit Rule, and therefore the Backfit Rule does not apply to this proposed rulemaking.

The proposed rulemaking, which addresses the regulatory ambiguity regarding exercise participation requirements for co-located licensees, applies only to the existing co-located licensees for the Nine Mile Point and James A. Fitzpatrick site, and prospectively to future co-located licensees.

With respect to the Nine Mile Point and James A. FitzPatrick licensees, the proposed rule would arguably constitute a backfit, inasmuch as there is some correspondence between the licensees and the NRC which may be interpreted as constituting NRC approval of “alternating participation” by each licensee in a full-or partial-participation exercise every two years. The backfit may not fall within the scope of the compliance exception,10 CFR 50.109(a)(4)(i), in view of the lack of new information showing that the prior NRC approval of “alternating participation” was based upon a factual error or new information not known to the NRC at the time that the NRC approved “alternating participation.” However, these licensees have informally been implementing an emergency planning training regime since year 2000 that is consistent with the proposed rule. Accordingly, the NRC does not propose to prepare a backfit analysis addressing the Nine Mile Point and James A. FitzPatrick licensees.

With respect to future holders of operating licenses (including combined licenses under part 52) for nuclear power plants which are co-located at the same site, the Commission has indicated in various rulemakings that the Backfit Rule does not protect the prospects of a potential applicant.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act for 1954, as amended, the Energy Reorganization Act of 1974, as amended, the National Environmental Policy Act of 1969, as amended, and 5 U.S.C. 553, the NRC is proposing to adopt the following amendment to 10 CFR part 50.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-167-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-167-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

As part of its practice of re-examining all aspects of the service experience of a particular aircraft whenever an accident occurs, the FAA has become aware of incidents of arcing and smoke from the electrical connectors of the ceiling lights on McDonnell Douglas Model MD-11 and -11F airplanes. It was determined that the cause of the connector failure was due to moisture intrusion into the mated connectors through the backshell. This condition, if not corrected, could result in arcing of the wire assembly connectors of the overhead storage bin, and service module and bin extension assemblies, and consequent smoke/fire in the cabin.

The FAA, in conjunction with Boeing and operators of Model MD-11 and -11F airplanes, has reviewed all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This proposed airworthiness directive (AD) is one of a series of corrective actions identified during that process. We have previously issued several other ADs and may consider further rulemaking actions to address the remaining identified unsafe conditions.

We have reviewed and approved Boeing Alert Service Bulletin MD11-33A064, dated March 6, 2002, which describes procedures for replacement of the wire assembly connectors of the bag rack lighting with new, moisture-resistant connectors and reidentification of the bag racks. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.

There are approximately 111 Model MD-11 and -11F airplanes of the affected design in the worldwide fleet. The FAA estimates that 26 airplanes of U.S. registry would be affected by this proposed AD.

For Group 1 airplanes identified in the referenced service bulletin, it would take approximately 11 work hours per airplane to accomplish the proposed actions, at an average labor rate of $65 per work hour. Required parts would cost between $1,140 and $1,406 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,855 and $2,121 per airplane.

For Group 2 airplanes identified in the referenced service bulletin, it would take approximately 13 work hours per airplane to accomplish the proposed actions, at an average labor rate of $65 per work hour. Required parts would cost between $1,140 and $1,406 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $1,985, and $2,251 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed 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 manufacturer may cover the cost of replacement parts associated with this proposed AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this proposed AD.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-52-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-52-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD-11 and -11F airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on October 5, 2001 (66 FR 50897). That NPRM would have required an inspection to detect arcing damage of the terminal strips, surrounding structure, and electrical cables in the forward cargo compartment; and repair or replacement of any damaged part with a new part. That NPRM also would have required modification of the applicable terminal strip installation in the cargo compartment, and replacement of the applicable terminal strips in the cargo compartment with new strips. That NPRM was prompted by an incident in which arcing occurred between the power feeder cables and terminal strip support brackets. That condition, if not corrected, could result in arcing and consequent damage to the terminal strips and adjacent structure and smoke/fire in the forward cargo compartment.

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 request that the proposed AD be revised to reference Revision 01 of Boeing Alert Service Bulletin MD11-24A174, dated April 24, 2001 (the original issue of the service bulletin was referenced in the NPRM as the appropriate source of service information for accomplishment of the proposed actions). One commenter states that this revision corrects an incorrect part number and part quantity.

The FAA does not agree. Since issuance of the NPRM, the FAA has reviewed and approved Revision 03 of Boeing Alert Service Bulletin MD11-24A174, including Evaluation Form, dated July 25, 2002. This revision constitutes a complete reissue. More work is necessary for Group 2 airplanes changed per prior issues of this service bulletin.

Revision 03 of the service bulletin describes procedures for a general visual inspection to detect arcing damage of the terminal strips, surrounding structure, and electrical cables in the forward cargo compartment; and repair or replacement of the damaged part with a new part. The service bulletin also describes procedures for modification of the applicable terminal strip installation in the cargo compartment (including inspection for damaged cables and repair of any damaged cable) if necessary, and replacement of the applicable terminal strips in the cargo compartment with new strips (including inspection for damaged cables and repair of any damaged cable).

Therefore, we have revised this supplemental NPRM to reference Revision 03 of the service bulletin as the appropriate source of service information for accomplishing the proposed actions. However, although the service bulletin recommends completion and submission of an inspection report and an Evaluation Form that provides input on the quality of the service bulletin to the airplane manufacturer, this proposed AD does not include such requirements.

One commenter notes that the original NPRM states, “The manufacturer has committed previously to its customers that it will bear the cost of replacement parts.” The commenter states that this is not quite accurate, and that “operators of affected airplanes within the warranty period of April 1, 1995, as specified by their purchase agreement, must submit a no change purchase order.”

From this comment, we infer that the commenter is requesting that the Cost Impact section of the original NPRM be revised. We concur and have revised this supplemental NPRM accordingly.

In addition, we have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

We find that Model MD-11F airplanes were not specifically identified by model name in the applicability of the original NPRM. However, those airplanes are identified by manufacturer's fuselage numbers in the effectivity listing of McDonnell Douglas Alert Service Bulletin MD11-24A174, dated January 31, 2001; and Boeing Alert Service Bulletin MD11-24A174, Revision 03, dated July 25, 2002. Therefore, we have revised this supplemental NPRM to specifically reference Model MD-11 and -11F airplanes where appropriate, and have revised the applicability to reference the Revision 03 of the service bulletin. In addition, we have specified model designations in the applicability of this supplemental NPRM as published in the most recent type certificate data sheet for the affected models.

For clarification purposes, the FAA has revised the definition of a “general visual inspection” in Note 2 of this supplemental NPRM.

Since certain of these changes expand the scope of the originally proposed rule, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD. Therefore, in this supplemental NPRM, Note 1 and paragraph (c) of the original NPRM have been removed, and paragraph (b) of the original NPRM has been revised.

There are approximately 154 Model MD-11 and -11F airplanes of the affected design in the worldwide fleet. The FAA estimates that 59 airplanes of U.S. registry will be affected by this AD, that it will take approximately between 1 and 6 work hours per airplane depending on the airplane configuration to accomplish the required actions, and that the average labor rate is $65 per work hour. Required parts would cost between $133 and $474 depending on the airplane configuration. Based on these figures, the cost impact of the AD on U.S. operators is estimated to be between $198 and $864 per airplane depending on the airplane configuration.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed 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 manufacturer may cover the cost of replacement parts associated with this proposed AD, subject to warranty conditions.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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 .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-57-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-57-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD-11 airplanes, was published as a notice of proposed rulemaking (NPRM) (hereafter referred to as “the original NPRM”) in the Federal Register on October 5, 2001 (66 FR 50917). The original NPRM would have superseded AD 2000-03-13, amendment 39-11572 (65 FR 8028, February 17, 2000) to require a one-time detailed visual inspection of the wire bundle installation behind the first observer's station to detect damaged or chafed wires, and repair, if necessary. The original NPRM also would have required installing a grommet around the lower edge of the feed-through; replacing the support bracket with a new bracket; and relocating the support clamp of the wire bundle; as applicable. The original NPRM also expanded the applicability of the existing AD to include additional airplanes. The original NPRM was prompted by the FAA's determination that the existing support bracket and the location of the support clamp of the wire bundle may not adequately preclude the wire bundle contained in the feed-through behind the first observer's station from contacting the bottom portion of the feed-through. That condition, if not corrected, could cause cable chafing, electrical arcing, smoke, or fire in the cockpit.

Since the issuance of the original NPRM, the FAA has reviewed and approved Revision 03 of Boeing Alert Service Bulletin MD11-24A041, dated September 11, 2002. This revision incorporate engineering procedures released subsequent to the issuance of Revision 02 of the service bulletin, which was referenced in the original NPRM as the appropriate source of service information for accomplishing the proposed actions. The revised procedures involve installing and relocating a new bracket due to interference of existing potted inserts when installing the bracket per Revision 02 of the service bulletin. We have revised this supplemental NPRM to specify these new procedures and to include reference to Revision 03 of the service bulletin as the appropriate source of service information.

Due consideration has been given to the single comment received in response to the original NPRM:

One commenter notes that the original NPRM states, “The manufacturer has committed previously to its customers that it will bear the cost of replacement parts.” The commenter states that this is not quite accurate, and that Boeing warranty remedies are available for MD-11 airplanes in warranty as of September 1, 1992.

From this comment, we infer that the commenter is requesting that the Cost Impact section of the original NPRM be revised. We concur and have revised the supplemental NPRM accordingly.

We have revised the applicability of the original NRPM to identify model designations as published in the most recent type certificate data sheet for the affected models.

Since the change to include the revised procedures expands the scope of the original NPRM, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's AD system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). However, for clarity and consistency in this final rule, we have retained the language of the NPRM regarding that material.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 193 Model MD-11 airplanes of the affected design in the worldwide fleet. We estimate that 62 airplanes of U.S. registry would be affected by this supplemental NPRM.

The new actions that are proposed in this AD action would take approximately 2 work hours per airplane to accomplish, at an average labor rate of $65 per work hour. Required parts would cost $407. Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be $33,294, or $537 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed 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 manufacturer may cover the cost of replacement parts associated with this proposed AD, subject to warranty conditions. Manufacturer warranty remedies may also be available for labor costs associated with this proposed AD. As a result, the costs attributable to the proposed AD may be less than stated above.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-278-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-278-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The FAA has received a report of fatigue cracking of the station (STA) 340 upper deck floor beam on a Boeing Model 747-200F series airplane. The upper chord and web were completely severed by a crack which originated at a floor panel attachment fastener hole. A previous blend-out repair for corrosion was found at the crack location, and corrosion pitting was found in the fastener hole. Additionally, a 0.3-inch-long crack was found at an adjacent fastener hole. On certain Boeing Model 747-200C and -200F series airplanes, the upper chords of the floor beams at body station (BS) 340 through BS 440, and BS 500 through BS 520, are made from 7075 aluminum, which is more susceptible to fatigue cracking. BS 460 and BS 480 upper deck floor beams on these models are made from 2024 aluminum, which is known to be more durable than 7075 aluminum against fatigue. Cracking of the upper deck floor beam, if not corrected, could extend and sever floor beams adjacent to the body frame, which could result in rapid decompression and consequent loss of controllability of the airplane.

On February 22, 2000, we issued AD 2000-04-17, amendment 39-11600 (65 FR 10695, February 29, 2000). That AD applies to certain Boeing Model 747-100, -200, and -300 series airplanes, and requires repetitive inspections to detect fatigue cracking in the upper deck floor beams located at certain body stations, and repair if necessary.

We have reviewed and approved Boeing Alert Service Bulletin 747-53A2439, dated July 5, 2001, which describes procedures for repetitive inspections to find fatigue cracking in the upper chord of the upper deck floor beams, and repair if necessary, as follows:

• If access is gained from above, the procedures specify an open-hole high frequency eddy current (HFEC) inspection of the attachment fastener holes of the floor panel for cracks in the upper chord.

• If access is gained from below, the procedures specify modification of the clip nuts of the attachment fastener holes of the floor panel, and surface HFEC inspections of the forward and aft horizontal flanges of the floor beam upper chord for cracks.

• If any crack is found, the procedures specify accomplishment of the repair in the service bulletin or contacting Boeing for repair instruction, and repetitive inspections of the repaired area. If no crack is found, repeat the applicable inspection.

The service bulletin also describes procedures for an optional repair/modification, which would extend certain repetitive inspection intervals.

Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as discussed below.

Although the alert service bulletin specifies that the manufacturer may be contacted for disposition of certain repair conditions, this proposed AD would require the repair of those conditions to be accomplished in accordance with a method approved by the FAA, or in accordance with data meeting the type certification basis of the airplane approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make such findings.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance. Because we have now included this material in part 39, we no longer need to include it in each individual AD; however, this AD identifies the office authorized to approve alternative methods of compliance.

There are approximately 78 airplanes of the affected design in the worldwide fleet. The FAA estimates that 21 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 30 work hours per airplane to accomplish the proposed inspections, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the inspections proposed by this AD on U.S. operators is estimated to be $37,800, or $1,800 per airplane, per inspection cycle.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed 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 proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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-NM-150-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-150-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to all McDonnell Douglas Model DC-9-81 (MD-81), DC-9-82 (MD-82), DC-9-83 (MD-83), DC-9-87 (MD-87), and MD-88 airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on September 5, 2002 (67 FR 56768). That NPRM would have required one-time inspections to detect discrepancies of electrical wiring installations in various areas of the airplane, and corrective action if necessary. That NPRM was prompted by reports of damaged wiring insulation and chafed wiring in various areas on the affected airplanes. Investigation revealed that the damage and chafing might be attributed to improper wire installations and/or maintenance practices. This condition, if not corrected, could lead to heat damage and/or electrical arcing of the wiring, which could result in fire and smoke in various areas of the airplane.

Due consideration has been given to the comments received in response to the original NPRM.

The Air Transport Association of America reports that its members generally support the intent of the original NPRM.

Boeing asserts that the list of service bulletins cited in the original NPRM is incomplete and requests that the original NPRM be revised to expand the area of inspection to include the flight compartment and forward drop ceiling and the electrical/electronic (E/E) compartment, which may also be subject to the identified unsafe condition.

The FAA agrees. Boeing Service Bulletins MD80-24-176 and MD80-24-177, both Revision 02, both dated January 21, 2003, describe procedures for one-time nonintrusive inspections to detect discrepancies of exposed wiring in the flight compartment and forward drop ceiling and the E/E compartment, and, if necessary, corrective action (including replacing too-large clamps with smaller clamps, repositioning wires and clamps, replacing torn or broken clamps with new clamps, tightening loose wire terminations, and installing protective sleeving over wiring, as applicable). Those actions are intended to address the identified unsafe condition. This supplemental NPRM has been revised to add wiring inspections in those areas.

One commenter asserts that the serviceability of the wiring grommets (proposed to be inspected per the original NPRM) is subject to interpretation. The commenter states that Boeing has recognized that it would be impossible to nonintrusively verify the integrity of the grommets. Boeing plans to revise the service bulletins to remove the grommet inspection. Therefore, the commenter requests that we delay issuance of the AD until the service bulletins have been revised.

We agree. Boeing Service Bulletins MD80-24-178, MD80-24-179, MD80-24-180, MD80-24-181, and MD80-24-182, all Revision 01, including Appendix, dated June 12, 2001, were cited in the original NPRM as the appropriate sources of service information for the inspections. Those service bulletins were revised (Revision 02 was issued January 21, 2003) to remove the electrical component grommet inspection procedures. The remaining procedures were essentially unchanged. Therefore, this supplemental NPRM has been revised to cite Revision 02 of the service bulletins, but would provide credit for applicable inspections already done per the original issue or Revision 01 of the service bulletins.

One commenter recommends that the compliance time be extended from 5 years to 6 years to accommodate accomplishment of the inspections at heavy maintenance visits, since extensive access is necessary to reach the inspection areas.

We agree with the request. We find that extending the compliance time to 6 years for the inspections will better accommodate operators' schedules and still maintain an adequate level of safety. This supplemental NPRM has been revised accordingly.

One commenter claims that the original NPRM understates the labor hours necessary to accomplish the detail of inspection specified in the service bulletins. Based on experience, the commenter suggests that the work hours for the proposed inspections is 66 work hours per airplane, not 33 work hours as stated in the original NPRM. The commenter states that the inspections alone on its fleet would take 23,892 work hours. The commenter asserts that material and labor costs to restore any condition that does not conform to the service bulletin requirements cannot be estimated due to the extent of possible deviations/differences from airplane to airplane.

We infer that the commenter is requesting that the Cost Impact section of the original NPRM be revised. We partially agree with the commenter's rationale. We agree that the specified work hours may not always accurately reflect the amount of time necessary to complete the required work for every airplane or for every operator. We also recognize that material and labor costs to fix any discrepancy cannot be accurately estimated for each airplane. However, as explained in the Cost Impact section of the original NPRM, the economic analysis of the AD is limited to the cost of actions that would actually be required by the AD. The economic analysis does not consider the costs of conditional actions, such as repairing discrepancies found during a required inspection. Such conditional actions would be required to be accomplished—regardless of AD direction—to correct an unsafe condition identified in an airplane and to ensure operation of that airplane in an airworthy condition, as required by the Federal Aviation Regulations. No change to this supplemental NPRM is necessary regarding this issue.

Since certain changes expand the scope of the original NPRM, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

On July 10, 2002, we issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. This regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Therefore, in this supplemental NPRM, Note 1 and paragraph (c) of the original NPRM have been removed, paragraph (b) of the original NPRM has been revised to identify the office authorized to approve AMOCs, and the remaining notes and paragraphs have been reidentified accordingly.

We have reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $60 per work hour to $65 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are approximately 1,191 airplanes of the affected design in the worldwide fleet. Estimates of the costs of the proposed actions are provided in the following table:

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed 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. Manufacturer warranty remedies may be available for labor costs associated with this supplemental NPRM. As a result, the costs attributable to the supplemental NPRM may be less than stated above.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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 .

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-161-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-161-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

As part of its practice of re-examining all aspects of the service experience of a particular aircraft whenever an accident occurs, the FAA has become aware of an incident in which arcing occurred between the power feeder cables and support bracket of the terminal strips on a McDonnell Douglas Model MD-11 airplane. Investigation revealed that inadequate clearance exists between the terminal strips and associated support brackets in the center and aft cargo compartments. This condition, if not corrected, could result in arcing damage to the terminal strips and damage to the adjacent structure, which could result in smoke and/or fire in the center and/or aft cargo compartments.

The terminal strips and associated support brackets in the center and aft cargo compartments on certain McDonnell Douglas Model MD-11F airplanes are identical to those on the affected Model MD-11 airplanes. Therefore, both of these models may be subject to the same unsafe condition.

The FAA, in conjunction with Boeing and operators of Model MD-11 and -11F airplanes, has reviewed all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This proposed airworthiness directive (AD) is one of a series of corrective actions identified during that process. We have previously issued several other ADs and may consider further rulemaking actions to address the remaining identified unsafe conditions.

We have reviewed and approved McDonnell Douglas Alert Service Bulletin MD11-24A173, Revision 02, dated May 2, 2002, including Evaluation Form. The service bulletin describes procedures for revising the wire connection stackups for the terminal strip of the generator feeder tail compartment of the auxiliary power unit (APU), and removing a nameplate, as applicable. For certain airplanes, the service bulletin also describes procedures for replacing the terminal strips and revising the terminal hardware stackup for the feeder of the center cargo loading system. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the applicable actions specified in the service bulletin described previously, except as discussed below.

Operators should note that the service bulletin specifies to repair damaged structure per the Structural Repair Manual (SRM). However, the SRM does not provide procedures for repair of certain structural material. Therefore, this proposed AD would require the repair of damaged structure that is not covered in the SRM to be accomplished per a method approved by us.

Although the referenced service bulletin describes procedures for completion and submission of an inspection report and service bulletin evaluation, this proposed AD would not require those actions.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.

There are approximately 154 Model MD-11 and -11F airplanes of the affected design in the worldwide fleet. We estimate that 67 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately between 1 and 2 work hours per airplane (depending on the airplane configuration) to accomplish the proposed actions, and that the average labor rate is $65 per work hour. Required parts would cost approximately $102 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to between $11,189 and $15,544, or between $167 and $232 per airplane (depending on the airplane configuration).

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed AD were not adopted. However, for affected airplanes within the period under the warranty agreement, we have been advised that the manufacturer has committed previously to its customers that it will bear the cost of replacement parts. We also have been advised that manufacturer warranty remedies are available for labor costs associated with accomplishing the actions required by this proposed AD. Therefore, the future economic cost impact of this AD may be less than the cost impact figure indicated above.

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 proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-163-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-163-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

On November 22, 2000, the FAA issued airworthiness directive (AD) 2000-24-12, amendment 39-12019 (65 FR 75615, December 4, 2000), applicable to certain McDonnell Douglas Model MD-11 series airplanes, to require an inspection to detect chafing or damage of the electrical wires leading to the terminal strips in the center accessory compartment (CAC) area, and corrective actions if necessary. That AD also requires revising the wire connection stack up of certain cable terminals at the electrical power center bays in the CAC, and replacing certain terminal strips with new strips and removing applicable nameplates at electrical power center bays. That action was prompted by an incident of arcing between a power feeder cable and terminal strip support bracket. The requirements of that AD are intended to prevent arcing and sparking damage to the power feeder cables, terminal strips, and adjacent structure, and consequent smoke and fire in the CAC.

We, in conjunction with Boeing and operators of Model MD-11 and -11F airplanes, have reviewed all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This proposed AD is one of a series of corrective actions identified during that process. We have previously issued several other ADs and may consider further rulemaking actions to address the remaining identified unsafe conditions.

Since the issuance of AD 2000-24-12, we have reviewed and approved Revision 02 of Boeing Alert Service Bulletin MD11-24A097, including Evaluation Form, dated December 4, 2002 (the original issue of the service bulletin was referenced in AD 2000-24-12 as the appropriate source of service information for accomplishing the required actions). Revision 02 provides additional terminal strip information; adds airplanes to the effectivity; and corrects part numbers for the terminal stud stack up washers, which were inadvertently called out incorrectly in the original issue of this service bulletin. More work is necessary on all airplanes changed per the original issue and Revision 01 of the service bulletin.

For certain airplanes, Revision 02 of the service bulletin describes procedures for:

• Revising the wire connection stack up of the cable terminals at the electrical power center bays in the CAC, as applicable, and doing a one-time general visual inspection of the surrounding structure and electrical cables for chafing or damage;

• Replacing terminal strips, removing the applicable nameplate at the electrical power center bays 1, 2, and 3 in the CAC, and doing a general visual inspection of the surrounding structure and electrical cables for arcing damage.

For certain other airplanes, Revision 02 of the service bulletin also describes procedures for relocating the terminal strip, and doing a general visual inspection of the surrounding structure and electrical cables for arcing damage.

If any chafing or damage is detected during any general visual inspection, Revision 02 of the service bulletin describes procedures for repairing or replacing the damaged or chafed component with new or serviceable components.

Accomplishment of the actions specified in Revision 02 of the service bulletin is intended to adequately address the identified unsafe condition.

The applicability of this notice of proposed rulemaking (NRPM) differs from AD 2000-24-12 in that it identifies model designations as published in the most recent type certificate data sheet for the affected models, and references Revision 02 of the service bulletin, which includes additional airplanes that are subject to the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would supersede AD 2000-24-12 to require accomplishment of the applicable actions specified in Revision 02 of the service bulletin described previously; except as discussed below.

Operators should note that Revision 02 of the service bulletin specifies to repair damage or chafed structure per the Structural Repair Manual (SRM). However, the SRM does not provide adequate procedures for repair of certain structural material. Therefore, this proposed AD would require the repair of damaged or chafed structure that is not covered in the SRM to be accomplished per a method approved by the FAA.

In addition, Revision 02 of the service bulletin specifies to use the form located in the Appendix for reporting inspection findings to the airplane manufacturer. Although the service bulletin references a reporting requirement, such reporting is not required by this AD. The airplane manufacturer has also informed us that it inadvertently published the service bulletin without the Appendix.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.

There are approximately 163 Model MD-11 and -11F airplanes of the affected design in the worldwide fleet. The FAA estimates that 73 airplanes of U.S. registry would be affected by this proposed AD.

The new actions that are proposed in this AD action would take approximately between 1 and 7 work hours per airplane (depending on the airplane configuration) to accomplish, at an average labor rate of $65 per work hour. Required parts would cost approximately between $721 and $2,035 per airplane (depending on the airplane configuration). Based on these figures, the cost impact of the proposed requirements of this AD on U.S. operators is estimated to be between $786 and $2,490 per airplane (depending on the airplane configuration).

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the current or proposed 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 proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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 .

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Comments Invited

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed 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 summarizing each FAA-public contact concerned with the substance of this proposal 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 2001-NM-165-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2001-NM-165-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

As part of its practice of re-examining all aspects of the service experience of a particular aircraft whenever an accident occurs, the FAA has become aware of several instances of burned/overheated mod blocks in the terminal strips located above the right forward cabin drop ceiling and right mid cabin drop ceiling on McDonnell Douglas Model MD-11 and -11F airplanes. Investigation revealed that the mod blocks developed high heat due to the high current transmitted through the vent fan wiring of the forward cargo compartment. This condition, if not corrected, could result in fire and/or smoke in the right forward cabin drop ceiling, right mid cabin drop ceiling, or right forward cargo compartment.

The FAA, in conjunction with Boeing and operators of Model MD-11 and -11F airplanes, has reviewed all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This proposed airworthiness directive (AD) is one of a series of corrective actions identified during that process. We have previously issued several other ADs and may consider further rulemaking actions to address the remaining identified unsafe conditions.

We have reviewed and approved Boeing Alert Service Bulletin MD11-24A196, including Evaluation Form, Revision 01, dated November 20, 2002, which describes procedures for revising the vent fan wiring in the right forward cabin drop ceiling, right mid cabin drop ceiling, and right forward cargo compartment, as applicable. Accomplishment of the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

Since an unsafe condition has been identified that is likely to exist or develop on other products of this same type design, the proposed AD would require accomplishment of the actions specified in the service bulletin described previously, except as described below.

Operators should note that, although the referenced service bulletin describes procedures for the completion and submission of an Evaluation Form that provides input on the quality of the service bulletin to the airplane manufacturer, this AD does not include such a requirement.

On July 10, 2002, the FAA issued a new version of 14 CFR part 39 (67 FR 47997, July 22, 2002), which governs the FAA's airworthiness directives system. The regulation now includes material that relates to altered products, special flight permits, and alternative methods of compliance (AMOCs). Because we have now included this material in part 39, only the office authorized to approve AMOCs is identified in each individual AD.

There are approximately 195 Model MD-11 and -11F airplanes of the affected design in the worldwide fleet. We estimate that 67 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed actions, and that the average labor rate is $65 per work hour. Required parts would cost between $14 and $113 (depending on the airplane configuration). Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be between $79 and $180 per airplane (depending on the airplane configuration).

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this proposed 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. Manufacturer warranty remedies may be available for labor costs associated with this proposed AD. Manufacturer warranty remedies may also be available for labor costs associated with this proposed AD. As a result, the costs attributable to the proposed AD may be less than stated above.

The regulations proposed herein 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. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, 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 draft regulatory 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.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (COTP Los Angeles-Long Beach 03-006), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them. If as we anticipate, we make the final rule effective less than 30 days after publication in the Federal Register, we will explain our good cause for doing so, as required by 5 U.S.C. 553(d)(3).

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Waterways Management Division at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

Pacific Offshore Powerboat Racing Association is sponsoring its annual Ventura Offshore Gran Prix in the navigable waters of Pierpont Bay near Ventura, California, from 12 a.m. (noon) to 3 p.m. (PDT) on September 28, 2003. Course description and coordinates are provided in the regulatory text section below.

This proposed safety zone is needed to provide for the safety of both the 25 participants and the estimated 125 spectators expected to attend this event. During this event, offshore powerboats designed for open ocean rough water racing may reach speeds of 125 miles per hour. Due to the high-speed nature of this event as well as the potential for loss of life and damage to property, the Coast Guard is proposing to close the waterway to all vessels and persons 30 minutes prior to the start of the race and will reopen the waterway approximately 30 minutes after the conclusion of the race if the Patrol Commander determines that it is safe to do so. A broadcast notice to mariners will be issued for this event.

The description and coordinates for the racecourse are provided in the regulatory text section below.

Persons and vessels will be prohibited from entering into or transiting through this proposed safety zone unless authorized by the Captain of the Port. By prohibiting persons and vessels from entering this temporary safety zone the risk of loss of life and damage to property will be significantly reduced. Without this safety zone the Offshore Gran Prix would be cancelled.

U.S. Coast Guard personnel will enforce this proposed safety zone. The Coast Guard may be assisted by other Federal, State, or local agencies, which during this event may include the Coast Guard Auxiliary, Ventura Harbor Patrol, and Ventura Police Department.

Section 165.3 of Title 33, Code of Federal Regulations, prohibits any unauthorized person or vessel from entering or remaining in a Safety Zone. Vessels or persons violating this section will be subject to the penalties set forth in 33 U.S.C. 1232. Pursuant to 33 U.S.C. 1232, any violation of the proposed safety zone described herein, will be punishable by civil penalties (not to exceed $27,500 per violation, where each day of a continuing violation is a separate violation), criminal penalties (imprisonment up to 6 years and a maximum fine of $250,000), and in rem liability against the offending vessel. Any person who violates this section, using a dangerous weapon, or who engages in conduct that causes bodily injury or fear of imminent bodily injury to any officer authorized to enforce this regulation, also faces imprisonment up to 12 years.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS).

Due to the limited scope of the proposed safety zone, the fact that vessel traffic can pass safely around the zone, and the short duration of the zone, the Coast Guard expects the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This rule will possibly affect the following entities, some of which may be small entities: the owners and operators of private and commercial vessels intending to transit or anchor in the affected area. The impact to these entities would not, however, be significant since this zone will encompass only a small portion of the waterway for a limited period of time and vessels can safely navigate around the safety zone.

For these reasons and the reasons stated in the Regulatory Evaluation section above, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment ( see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Lieutenant Junior Grade Rob Griffiths, Assistant Chief of Waterways Management Division, at (310) 732-2020.

This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation because we are establishing a safety zone.

A draft “Environmental Analysis Check List” and a draft “Categorical Exclusion Determination” are available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision on whether the rule should be categorically excluded from further environmental review.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

This is a synopsis of the Commission's Further Notice of Proposed Rule Making, MM Docket No. 00-104, adopted July 11, 2003, and released July 18, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-161, adopted July 9, 2003, and released July 14, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, or via e-mail qualexint@aol.com.k

Provisions of the Regulatory Flexibility Act of l980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-162, adopted July 9, 2003, and released July 14, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC. The complete text of this decision may also be purchased from the Commission's copy contractor, Qualex, International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20054.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts. For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-164, adopted July 9, 2003, and released July 14, 2003. The full text of this Commission decision is available for inspection and copying during regular business hours in the FCC's Reference Information Center at Portals II, 445 12th Street, SW., CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com .

The provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, See 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

This is a synopsis of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-160, adopted July 9, 2003, and released July 14, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 Twelfth Street, SW., Washington, DC. This document may also be purchased from the Commission's duplicating contractors, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, or via e-mail qualexint@aol.com

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR Part 73 as follows:

This is a summary of the Commission's Notice of Proposed Rule Making, MB Docket No. 03-163, adopted July 9, 2003, and released July 14, 2003. The full text of this Commission decision is available for inspection and copying during normal business hours in the Commission's Reference Center 445 Twelfth Street, SW., Washington, DC 20554. The complete text of this decision may also be purchased from the Commission's duplicating contractor, Qualex International Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 202-863-2893, facsimile 202-863-2898, or via e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a Notice of Proposed Rule Making is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contact.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

The scimitar-horned oryx ( Oryx dammah ), addax ( Addax nasomaculatus ), and dama gazelle ( Gazella dama ) originally occupied the same general region of North Africa. The reasons for the decline of all three antelope species are similar. Desertification, coupled with severe droughts, has dramatically reduced available habitat. The growth of permanent farming has brought additional pressures, such as human habitat disturbance and competition from domestic livestock, which have restricted these antelopes to marginal habitat. Additional pressures from the civil wars in Chad and the Sudan have resulted in increased military activity, construction, and uncontrolled hunting.

The range of the scimitar-horned oryx in North Africa once covered semi-deserts and steppes north of the Sahara, from Morocco to Egypt. Over-hunting and habitat loss have been the main reasons for the decline of the wild population of this antelope according to the World Conservation Union (IUCN 2002). Competition with domestic livestock has also contributed to the species' decline. During the 1970s and 1980s, the scimitar-horned oryx was first classified as vulnerable and then as endangered by the IUCN. In 1975, the scimitar-horned oryx was listed in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

The addax once occurred throughout the deserts and sub-deserts of North Africa, from the Atlantic Ocean to the Nile River. Motorized illegal hunting following World War II has been noted as the primary reason for decline of the addax (Antelope Taxon Advisory Group 2002), and hunting continues to threaten this species (IUCN 2002). Habitat degradation as a result of overgrazing by domestic livestock has also played an important role in the decline of the addax. Similar to the scimitar-horned oryx, during the 1970s and 1980s, the addax was first classified as vulnerable and then as endangered by the IUCN. In 1975, the addax was also listed in Appendix II of CITES.

The dama gazelle, the largest of the gazelles, was once common and widespread in arid and semi-arid regions of the Sahara. It has suffered greatly from uncontrolled hunting and overgrazing by domestic livestock (Mallon and Kingwood 2001). Habitat destruction and hunting are still the most serious threats facing dama gazelles today (Antelope Taxon Advisory Group 2002; IUCN 2002). Two subspecies of the dama gazelle, Gazella dama lozanoi and Gazella dama mhorr , were designated as endangered, and then the entire species of G. dama was designated by the IUCN as vulnerable and then endangered. In 1983, these two subspecies and G. dama were listed in CITES Appendix I. Two subspecies of dama gazelle, G. d. lozanoi and G. d. mhorr , have been listed as endangered under the ESA since 1970. A third subspecies, G. d. ruficollis was not included in this original listing. However, there is currently a taxonomic debate over the validity of G. d. lozanoi as a subspecies.

Of the three antelope species, the scimitar-horned oryx was the most susceptible to the threats it faced. By the mid-1980s, it was estimated that only a few hundred were left in the wild, with the only viable populations known to be in Chad. There have been no reported sightings of this species in the wild since the late 1980s, and the 2002 Red List status of the scimitar-horned oryx is “extinct in the wild” (IUCN 2002). However, this antelope has been reintroduced into Tunisia, and once the reintroduced population breeds, especially to the second generation, it is anticipated that the status of “extinct in the wild” will change.

The addax is better able to utilize waterless areas in the heart of the Sahara Desert and is less susceptible to human disturbance and livestock competition. It is believed that the addax was extirpated from Tunisia during the 1930s, and the last animals were killed in Libya and Algeria in 1966 and 1970, respectively. Remnant populations may still exist in the remote desert areas of Chad, Niger, and Mali, and occasionally move north into Libya and Algeria during times of good rainfall. In the Antelope Specialist Group's Global Survey of Antelopes , the addax is considered to be “regionally extinct” (Mallon and Kingwood 2001). Addax are listed as critically endangered in the 2002 Red List and probably number fewer than 250 in the wild.

The dama gazelle is able to utilize both semi-desert and desert habitats, and is smaller than either the oryx or addax. Although the dama gazelle is the least susceptible of these three antelopes to pressures from humans and domestic livestock, it is estimated that only small numbers survive in most of the eight countries within its historical range. It was previously extinct in Senegal, but has since been reintroduced, and in 1997, at least 25 animals existed there as part of a semi-captive breeding program (IUCN 2002). The IUCN lists all forms of dama gazelles as endangered. The dama gazelle has declined rapidly over the last 20 years, and recent estimates show numbers fewer than 2,500 and declining (Mallon and Kingwood 2001). G. d. mhorr may be extinct in the wild and only found in captive collections or reintroduced populations (Antelope Taxon Advisory Group 2002; IUCN 2002).

We will accept written comments and information during this re-opened comment period from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party. Comments particularly are sought concerning;

(1) Biological, commercial trade, or other relevant data concerning any threat (or lack thereof) to the scimitar-horned oryx, addax, and dama gazelle;

(2) Additional information concerning the range, distribution, and population size of the scimitar-horned oryx, addax, and dama gazelle;

(3) Current planned activities in the species' range and their possible impacts on the scimitar-horned oryx, addax, and dama gazelle;

(4) Information on the validity of G. d. lozanoi as a subspecies;

(5) Alternatives to the treatment of captive populations of scimitar-horned oryx, addax, and dama gazelle; and

(6) Information on the genetic integrity of captive populations of scimitar-horned oryx, addax, and dama gazelle, and particularly whether any captive populations are likely to have been hybridized.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Any person commenting may request that we withhold their home address, which we will honor to the extent allowable by law. In some circumstances, we may also withhold a commenter's identity, as allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comment. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, from 8 a.m. to 4 p.m. at the Division of Scientific Authority ( see ADDRESSES section).

The primary author of this notice is Eleanora Babij, Division of Scientific Authority, U.S. Fish and Wildlife Service ( see ADDRESSES section).