The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will file in the docket all comments we receive as well as a report summarizing each substantive public contact with FAA personnel concerning these special conditions. The docket is available for public inspection before and after the comment closing date. If you wish to review the docket in person, go to the address in the ADDRESSES section of this preamble between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

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

On March 20, 2003, Airbus applied for a change to Type Certificate Numbers A46NM and A43NM to permit installation of an LD-MCR compartment in Airbus Model A330, A340-200, and A340-300 series airplanes.

The LD-MCR compartment will be located under the passenger cabin floor in the aft cargo compartment of Airbus Model A330, A340-200 and A340-300 series airplanes. It will be the size of a standard airfreight container and will be removable from the cargo compartment. The LD-MCR compartment will be occupied in flight but not during taxi, takeoff or landing. No more than seven crewmembers at a time will be permitted to occupy it. The LD-MCR compartment will have a smoke detection system, a fire extinguishing system and an oxygen system.

The LD-MCR compartment will be accessed from the main deck via a “stairhouse.” The floor within the stairhouse has a hatch that leads to stairs which occupants use to descend into the LD-MCR compartment. An interface will keep this hatch open when the stairhouse door is open. In addition, there will be an emergency hatch which opens directly into the main passenger cabin. The LD-MCR compartment has a maintenance door which allows access to and from the cargo compartment. This door is intended to be used when the airplane is not in flight for cargo loading through the LD-MCR compartment and for maintenance personnel access to the airplane through the LD-MCR compartment from the cargo compartment.

Under the provisions of § 21.101, Airbus must show that Airbus Model A330, A340-200, and A340-300 series airplanes, as changed, continue to meet (1) the applicable provisions of the regulations incorporated by reference in A46NM (for Airbus Model A330) and in A43NM (for Airbus Model A340-200 and A340-300 series airplanes) or (2) the applicable regulations in effect on the date of application for the change. The regulations incorporated by reference in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in A46NM and A43NM are as follows:

The certification basis for Airbus Models A330-300, A340-200, and A340-300 series airplanes is 14 CFR part 25, as amended by Amendments 25-1 through 25-63; certain regulations at later Amendments 25-65, 25-66, and 25-77; and Amendment 25-64 with exceptions. Refer to Type Certificate Data Sheet (TCDS) A46NM or A43NM, as applicable, for a complete description of the certification basis for these models, including certain special conditions that are not relevant to these proposed special conditions.

The certification basis for Airbus Model A330-200 series airplanes is 14 CFR part 25, as amended by Amendments 25-1 through 25-63, 25-65, 25-66, 25-68, 25-69, 25-73, 25-75, 25-77, 25-78, 25-81, 25-82, 25-84 and 25-85; certain regulations at Amendments 25-72 and 25-74; and Amendment 25-64 with exceptions. Refer to TCDS A46NM for a complete description of the certification basis for that model, including certain special conditions that are not relevant to these proposed special conditions.

If the Administrator finds that the applicable airworthiness regulations ( i.e. , 14 CFR part 25) do not contain adequate or appropriate safety standards for Airbus Model A330, A340 -200, and A340-300 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, Airbus Model A330, A340-200, and A340-300 series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and with the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy pursuant to § 611 of Public Law 92-574, the “Noise Control Act of 1972.”

Special conditions, as defined in § 11.19, are issued in accordance with § 11.38 and become part of the type certification basis in accordance with § 21.101.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same or similar novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same or similar novel or unusual design feature, the special conditions would also apply to the other model under the provisions of § 21.101.

While the installation of a LD-MCR compartment is not a new concept for large transport category airplanes, each crew rest compartment has unique features based on design, location, and use on the airplane. The LD-MCR compartment is novel in regards to part 25 in that it will be located below the passenger cabin floor in the aft cargo compartment of Airbus Model A330, A340-200, and A340-300 series airplanes. Due to the novel or unusual features associated with the installation of a LD-MCR compartment, special conditions are considered necessary to provide a level of safety equal to that established by the airworthiness regulations incorporated by reference in the type certificates of these airplanes. These special conditions do not negate the need to address other applicable part 25 regulations.

These special conditions specify requirements for design approvals ( i.e. , type design changes and supplemental type certificates) of LD-MCR compartments administered by the FAA's Aircraft Certification Service. Prior to operational use of a LD-MCR compartment, the FAA's Flight Standards Service, Aircraft Evaluation Group (AEG), must evaluate and approve the “basic suitability” of the LD-MCR compartment for occupation by crewmembers. If an operator wishes to utilize a LD-MCR compartment as “sleeping quarters,” the LD-MCR compartment must undergo an additional operational evaluation and approval.

To obtain an operational evaluation, the type design holder must contact the AEG within the Flight Standards Service which has operational approval authority for the project. In this instance, it is the Seattle AEG. The type design holder must request a “basic suitability” evaluation or a “sleeping quarters” evaluation of the crew rest.

The results of these evaluations will be documented in the A330, A340-200 and A340-300 Flight Standardization Board (FSB) Report Appendix. In discussions with their FAA Principal Operating Inspector (POI), individual operators may reference these standardized evaluations as the basis for an operational approval, in lieu of an on-site operational evaluation.

An operational re-evaluation and approval will be required for any changes to the approved LD-MCR compartment configuration, if the changes affect procedures for emergency egress of crewmembers, other safety procedures for crewmembers occupying the LD-MCR compartment, or training related to these procedures. The applicant for any such change is responsible for notifying the Seattle AEG that a new crew rest evaluation is required.

All instructions for continued airworthiness (ICAW), including service bulletins, must be submitted to the Seattle AEG for approval acceptance before the FAA issues its approval of the modification.

The following clarifies how proposed Special Condition No. 9 should be understood relative to the requirements of § 25.1439(a). Amendment 25-38 modified the requirements of § 25.1439(a) by adding the following language,

Section 25.1439(a) requires protective breathing equipment (PBE) in isolated separate compartments in which crewmember occupancy is permitted. But the PBE requirements of § 25.1439(a) are not appropriate in this case, because the LD-MCR compartment is novel and unusual in terms of the number of occupants.

In 1976, when Amendment 25-38 was adopted, underfloor galleys were the only isolated compartments that had been certificated, with a maximum of two crewmembers expected to occupy those galleys. Special Condition No. 9 addresses PBE requirements for LD-MCR compartments, which can accommodate up to 7 crewmembers. This number of occupants in an isolated compartment was not envisioned at the time Amendment 25-38 was adopted.

In the event of a fire, the occupant's first action should be to leave the confined space, unless the occupant(s) is fighting the fire. It is not appropriate for all LD-MCR compartment occupants to don PBE. Taking the time to don the PBE would prolong the time for the occupant's emergency evacuation and possibly interfere with efforts to extinguish the fire.

In regards to Special Condition No. 12, the FAA considers that during the one minute smoke detection time, penetration of a small quantity of smoke from the LD-MCR compartment into an occupied area on this airplane configuration would be acceptable based upon the limitations placed in these special conditions. The FAA determination considers that the special conditions place sufficient restrictions in the quantity and type of material allowed in crew carry-on bags that the threat from a fire in this remote area would be equivalent to that experienced on the main cabin.

As mentioned above, these special conditions are applicable to Airbus Model A330, A340-200 and A340-300 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

The authority citation for these special conditions is as follows:

Accordingly, the Federal Aviation Administration (FAA) proposes the following special conditions as part of the type certification basis for Airbus Model A330, A340-200 and A340-300 series airplanes with a lower deck mobile crew rest (LD-MCR) compartment installed under the passenger cabin floor in the aft cargo compartment.

1. Occupancy of the LD-MCR compartment is limited to the total number of installed bunks and seats in each compartment. For each occupant permitted in the LD-MCR compartment, there must be an approved seat or berth able to withstand the maximum flight loads when occupied. The maximum occupancy in the LD-MCR compartment is seven.

(a) There must be appropriate placards displayed in a conspicuous place at each entrance to the LD-MCR compartment indicating the following information:

(1) The maximum number of occupants allowed;

(2) That occupancy is restricted to crewmembers trained in the evacuation procedures for the LD-MCR compartment;

(3) That occupancy is prohibited during taxi, take-off and landing;

(4) That smoking is prohibited in the LD-MCR compartment; and

(5) That the LD-MCR compartment is limited to the stowage of personal luggage of crewmembers and must not be used for the stowage of cargo or passenger baggage.

(b) There must be at least one ashtray located conspicuously on or near the entry side of any entrance to the LD-MCR compartment.

(c) There must be a means to prevent passengers from entering the LD-MCR compartment in an emergency or when no flight attendant is present.

(d) There must be a means for any door installed between the LD-MCR compartment and the passenger cabin to be capable of being quickly opened from inside the LD-MCR compartment, even when crowding occurs at each side of the door.

(e) For all doors installed in the evacuation routes, there must be a means to preclude anyone from being trapped inside a compartment. If a locking mechanism is installed, it must be capable of being unlocked from the outside without the aid of special tools. The lock must not prevent opening from the inside of a compartment at any time.

2. There must be at least two emergency evacuation routes, which could be used by each occupant of the LD-MCR compartment to rapidly evacuate to the main cabin and could be closed from the main passenger cabin after evacuation.

(a) The routes must be located with one at each end of the LD-MCR compartment or with two having sufficient separation within the LD-MCR compartment and between the routes to minimize the possibility of an event (either inside or outside of the LD-MCR compartment) rendering both routes inoperative.

(b) The routes must be designed to minimize the possibility of blockage, which might result from fire, mechanical or structural failure or from persons standing on top of or against the escape route. If an evacuation route utilizes an area where normal movement of passengers occurs, it must be demonstrated that passengers would not impede egress to the main deck. If a hatch is installed in an evacuation route, the point at which the evacuation route terminates in the passenger cabin should not be located where normal movement by passengers or crew occur, such as in a main aisle, cross aisle, passageway or galley complex.

If such a location cannot be avoided, special consideration must be taken to ensure that the hatch or door can be opened when a person who is the weight of a ninety-fifth percentile male is standing on the hatch or door.

The use of evacuation routes must not be dependent on any powered device. If there is low headroom at or near an evacuation route, provision must be made to prevent or to protect occupants of the LD-MCR compartment from head injury.

(c) Emergency evacuation procedures, including the emergency evacuation of an incapacitated crewmember from the LD-MCR compartment, must be established. All of these procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

(d) There must be a limitation in the Airplane Flight Manual or other suitable means requiring that crewmembers be trained in the use of evacuation routes.

3. There must be a means for the evacuation of an incapacitated crewmember who is representative of a 95th percentile male from the LD-MCR compartment to the passenger cabin floor. The evacuation must be demonstrated for all evacuation routes. A flight attendant or other crewmember (a total of one assistant within the LD-MCR compartment) may provide assistance in the evacuation. Additional assistance may be provided by up to three persons in the main passenger compartment. For evacuation routes having stairways, the additional assistants may descend down to one half the elevation change from the main deck to the LD-MCR compartment or to the first landing, whichever is higher.

4. The following signs and placards must be provided in the LD-MCR compartment:

(a) At least one exit sign which meets the requirements of § 25.812(b)(1)(i) at Amendment 25-58 must be located near each exit. However, a sign with reduced background area of no less than 5.3 square inches (excluding the letters) may be utilized, provided that it is installed such that the material surrounding the exit sign is light in color ( e.g. , white, cream, light beige). If the material surrounding the exit sign is not light in color, a sign with a minimum of a one-inch wide background border around the letters would also be acceptable;

(b) An appropriate placard which defines the location and the operating instructions for each evacuation route must be located near each exit;

(c) Placards must be readable from a distance of 30 inches under emergency lighting conditions; and

(d) The exit handles and the placards with the evacuation path operating instructions must be illuminated to at least 160 microlamberts under emergency lighting conditions.

5. There must be a means for emergency illumination to be automatically provided for the LD-MCR compartment in the event of failure of the main power system of the airplane or of the normal lighting system of the LD-MCR compartment.

(a) This emergency illumination must be independent of the main lighting system.

(b) The sources of general cabin illumination may be common to both the emergency and the main lighting systems, if the power supply to the emergency lighting system is independent of the power supply to the main lighting system.

(c) The illumination level must be sufficient for the occupants of the LD-MCR compartment to locate and transfer to the main passenger cabin floor by means of each evacuation route.

(d) The illumination level must be sufficient to locate a deployed oxygen mask with the privacy curtains in the closed position for each occupant of the LD-MCR compartment.

6. There must be means for two-way voice communications between crewmembers on the flight deck and crewmembers in the LD-MCR compartment. Section 25.785(h) at Amendment 25-51 requires flight attendant seats near required floor level emergency exits. Each such exit seat on the aircraft must have a public address system microphone that allows two-way voice communications between flight attendants and crewmembers in the LD-MCR compartment. One microphone may serve more than one such exit seat, provided the proximity of the exits allows unassisted verbal communications between seated flight attendants.

7. There must be a means for manual activation of an aural emergency alarm system, audible during normal and emergency conditions, to enable crewmembers on the flight deck and at each pair of required floor-level emergency exits to alert crewmembers in the LD-MCR compartment of an emergency. Use of a public address or crew interphone system will be acceptable, provided an adequate means of differentiating between normal and emergency communications is incorporated. The system must be powered in flight for at least ten minutes after the shutdown or failure of all engines and auxiliary power units (APU) or the disconnection or failure of all power sources which are dependent on the continued operation of the engines and APUs.

8. There must be a means'readily detectable by seated or standing occupants of the LD-MCR compartment'which indicates when seat belts should be fastened. If there are no seats, at least one means, such as sufficient handholds, must be provided to cover anticipated turbulence. Seat belt-type restraints must be provided for berths and must be compatible with the sleeping attitude during cruise conditions. There must be a placard on each berth indicating that seat belts must be fastened when the berth is occupied. If compliance with any of the other requirements of these special conditions is predicated on specific head location, there must be a placard specifying the head position.

9. To provide a level of safety equivalent to that provided to occupants of a small isolated galley—in lieu of the requirements of § 25.1439(a) at Amendment 25-38 that pertain to isolated compartments—the following equipment must be provided in the LD-MCR compartment:

(a) At least one approved hand-held fire extinguisher appropriate for the kinds of fires likely to occur;

(b) Two Personal Breathing Equipment (PBE) units approved to Technical Standard Order (TSO)-C116 or equivalent, which are suitable for fire fighting, or one PBE for each hand-held fire extinguisher, whichever is greater; and

(c) One flashlight.

10. A smoke or fire detection system or systems must be provided to monitor each occupiable area within the LD-MCR compartment, including those areas partitioned by curtains. Flight tests must be conducted to show compliance with this requirement. Each smoke or fire detection system must provide the following:

(a) A visual indication to the flight deck within one minute after the start of a fire;

(b) An aural warning in the LD-MCR compartment; and

(c) A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the positioning of flight attendants throughout the main passenger compartment during various phases of flight.

11. The LD-MCR compartment must be designed such that fires within it can be controlled without a crewmember having to enter the compartment or be designed such that crewmembers equipped for fire fighting have unrestricted access to the compartment. The time for a crewmember on the main deck to react to the fire alarm, don the fire fighting equipment, and gain access must not exceed the time for the compartment to become smoke-filled, making it difficult to locate the source of the fire.

12. There must be a means provided to exclude hazardous quantities of smoke or extinguishing agent originating in the LD-MCR compartment from entering any other compartment occupied by crewmembers or passengers. This means must include the time periods during the evacuation of the LD-MCR compartment and, if applicable, when accessing the LD-MCR compartment to manually fight a fire. Smoke entering any other compartment occupied by crewmembers or passengers when the LD-MCR compartment is opened during an emergency evacuation must dissipate within five minutes after the LD-MCR compartment is closed.

Hazardous quantities of smoke may not enter any other compartment occupied by crewmembers or passengers during subsequent access to manually fight a fire in the LD-MCR compartment. (The amount of smoke entrained by a firefighter exiting the LD-MCR compartment through the access is not considered hazardous). During the one-minute smoke detection time, penetration of a small quantity of smoke from the LD-MCR compartment into an occupied area is acceptable. Flight tests must be conducted to show compliance with this requirement.

If a built-in fire extinguishing system is used in lieu of manual fire fighting, the fire extinguishing system must be designed so that no hazardous quantities of extinguishing agent will enter other compartments occupied by passengers or crewmembers. The system must have adequate capacity to suppress any fire occurring in the LD-MCR compartment, considering the fire threat, the volume of the compartment and the ventilation rate.

13. For each seat and berth in the LD-MCR compartment, there must be a supplemental oxygen system equivalent to that provided for main deck passengers. The system must provide an aural and visual warning to alert the occupants of the LD-MCR compartment of the need to don oxygen masks in the event of decompression. The warning must activate before the cabin pressure altitude exceeds 15,000 feet. The aural warning must sound continuously for a minimum of five minutes or until a reset push button in the LD-MCR compartment is depressed. Procedures for crewmembers in the LD-MCR compartment to follow in the event of decompression must be established. These procedures must be transmitted to the operator for incorporation into their training programs and appropriate operational manuals.

14. The following requirements apply to LD-MCR compartments that are divided into several sections by the installation of curtains or doors:

(a) To warn crewmembers who may be sleeping, there must be an aural alert that accompanies automatic presentation of supplemental oxygen masks. The alert must be able to be heard in each section of the LD-MCR compartment. A visual indicator that occupants must don an oxygen mask is required in each section where seats or berths are not installed. A minimum of two supplemental oxygen masks are required for each seat or berth. There must also be a means to manually deploy the oxygen masks from the flight deck.

(b) A placard is required adjacent to each curtain that visually divides or separates the LD-MCR compartment into small sections for privacy purposes. The placard must indicate that the curtain is to remain open when the private section it creates is unoccupied.

(c) For each section created by the installation of a curtain, the following requirements of these special conditions must be met both with the curtain open or the curtain closed:

(1) Emergency illumination (Special Condition No. 5);

(2) Aural emergency alarm (Special Condition No. 7);

(3) Fasten seat belt signal or return to seat signal as applicable (Special Condition No. 8); and

(4) Smoke or fire detection (Special Condition No. 10).

(d) Crew rest compartments visually divided to the extent that evacuation could be affected must have exit signs that direct occupants to the primary stairway exit. The exit signs must be provided in each separate section of the LD-MCR compartment and must meet the requirements of § 25.812(b)(1)(i) at Amendment 25-58. An exit sign with reduced background area, as described in Special Condition No. 4.(a), may be used to meet this requirement.

(e) For sections within a LD-MCR compartment that are created by the installation of a partition with a door separating the sections, the following requirements of these special conditions must be met with the door open and with the door closed:

(1) There must be a secondary evacuation route from each section to the main deck, or it must be shown that any door between the sections has been designed to preclude anyone from being trapped inside the compartment. Removal of an incapacitated crewmember from this area must be considered. A secondary evacuation route from a small room designed for only one occupant for a short period of time, such as a changing area or lavatory, is not required. However, removal of an incapacitated occupant from this area must be considered.

(2) Any door between the sections must be shown to be openable when crowded against, even when crowding occurs at each side of the door.

(3) There may be no more than one door between any seat or berth and the primary stairway exit.

(4) There must be exit signs in each section which meet the requirements of § 25.812(b)(1)(i) at Amendment 25-58 that direct occupants to the primary stairway exit. An exit sign with reduced background area, as described in Special Condition No. 4.(a), may be used to meet this requirement.

(5) Special Conditions No. 5 (emergency illumination), No. 7 (aural emergency alarm), No. 8 (fasten seat belt signal or return to seat signal as applicable) and No. 10 (smoke and fire detection) must be met both with the door open and the door closed.

(6) Special Conditions No. 6 (two-way voice communication) and No. 9 (PBE and other equipment) must be met independently for each separate section, except in lavatories or other small areas that are not intended to be occupied for extended periods of time.

15. Where a waste disposal receptacle is fitted, it must be equipped with a built-in fire extinguisher designed to discharge automatically upon occurrence of a fire in the receptacle.

16. Materials, including finishes or decorative surfaces applied to the materials, must comply with the flammability standards of § 25.853 at Amendment 25-66. Mattresses must comply with the flammability standards of § 25.853(b) and (c) at Amendment 25-66.

17. A lavatory within the LD-MCR compartment must meet the same requirements as a lavatory installed on the main deck, except with regard to Special Condition No. 10 for smoke detection.

18. When a LD-MCR compartment is installed or enclosed as a removable module in part of a cargo compartment or is located directly adjacent to a cargo compartment without an intervening cargo compartment wall, the following conditions apply:

(a) Any wall of the LD-MCR compartment—which forms part of the boundary of the reduced cargo compartment and is subject to direct flame impingement from a fire in the cargo compartment—and any interface item between the LD-MCR compartment and the airplane structure or systems must meet the applicable requirements of § 25.855 at Amendment 25-60.

(b) Means must be provided to ensure that the fire protection level of the cargo compartment meets the applicable requirements of §§ 25.855 at Amendment 25-60; 25.857 at Amendment 25-60; and 25.858 at Amendment 25-54 when the LD-MCR compartment is not installed.

(c) Use of each emergency evacuation route must not require occupants of the LD-MCR compartment to enter the cargo compartment in order to return to the passenger compartment.

(d) The aural emergency alarm specified in Special Condition No. 7 must sound in the LD-MCR compartment in the event of a fire in the cargo compartment.

19. Means must be provided to prevent access into the Class C cargo compartment during all airplane operations and to ensure that the maintenance door is closed during all airplane flight operations.

20. All enclosed stowage compartments within the LD-MCR compartment—that are not limited to stowage of emergency equipment or airplane supplied equipment ( i.e. , bedding)—must meet the design criteria given in the table below. As indicated in the table, enclosed stowage compartments larger than 200 ft  3 in interior volume are not addressed by this Special Condition. The in-flight accessibility of very large enclosed stowage compartments and the subsequent impact on the crewmembers' ability to effectively reach any part of the compartment with the contents of a hand fire extinguisher will require additional fire protection considerations similar to those required for inaccessible compartments such as Class C cargo compartments.

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2004-19001; Directorate Identifier 2004-NM-98-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of our docket Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you may visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You may examine the AD docket in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is in the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

The Luftfartsverket (LFV), which is the airworthiness authority for Sweden, notified us that an unsafe condition may exist on certain Saab Model SAAB SF340A and SAAB 340B series airplanes. The LFV advises that it has received reports from operators regarding improperly installed rivets in the retainers located in the elevator trim-tab fittings. The retainers hold the elevator trim-tab bearings. Improperly installed rivets, if not corrected, could result in loose elevator trim-tab bearings, which could result in excessive play in the elevator control system, severe oscillations, and reduced controllability of the airplane.

The aileron trim-tab system is similar in design to the elevator trim-tab system. The aileron trim-tabs may be subject to a similar unsafe condition. If the rivets that hold the retainers for the aileron trim-tab bearings are improperly installed, the aileron trim-tab bearing could become loose. This condition, if not corrected, could result in excessive play in the aileron control system, severe oscillations, and reduced controllability of the airplane. Because of the similar design, the LFV advises that both the elevator and aileron trim-tab fittings be inspected.

Saab has issued Service Bulletin 340-51-025, Revision 01, dated October 21, 2003. The service bulletin describes procedures for visual inspections of the elevator and aileron trim-tab fittings to determine if riveted, greasable bearings are installed, and related investigative and corrective actions. The related investigative and corrective actions include:

• Inspecting for damage and acceptance limits (as specified in the Saab 340 Structural Repair Manual (SRM) 51-40-20, paragraph “Solid Rivet Inspection”) the rivets and retainers that attach the elevator and aileron trim-tabs to the airplane structure.

• Replacing damaged rivets with new rivets and installing new bearings.

• Inspecting the elevator and aileron trim mechanical installations ( e.g. , pushrods and levers) for damage (as specified in the SRM) and loose fasteners.

• Replacing damaged parts and tightening loose fasteners.

• Inspecting the axial play of the elevator trim-tab bearings.

• Inspecting the axial play of the aileron trim-tab bearings and the movement of the third hinge.

• Doing a backlash inspection after all of the necessary corrective actions have been done.

• Reporting to the manufacturer any major damage found to any retainer.

• Marking the lower right corner of each elevator and aileron trim-tab identification plate with three in-line punch marks.

We have determined that accomplishing the actions specified in the service information will adequately address the unsafe condition. The LFV mandated the service information and issued Swedish airworthiness directive 1-194, dated October 14, 2003, to ensure the continued airworthiness of these airplanes in Sweden.

These airplane models are manufactured in Sweden and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. According to this bilateral airworthiness agreement, the LFV has kept the FAA informed of the situation described above. We have examined the LFV's findings, evaluated all pertinent information, and determined that we need to issue an AD for products of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require inspections of the elevator and aileron trim-tab fittings, and related investigative/corrective actions if necessary. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Differences Between the Proposed AD and Service Information.”

Although the Accomplishment Instructions of the referenced service bulletin describe procedures for reporting certain damage to the manufacturer, this proposed AD would not require that action.

The service bulletin specifies to do a “visual inspection” to determine if riveted greasable bearings are installed on the elevator and aileron trim-tab fittings. The service bulletin also specifies to do an “inspection” for damage to the rivets that attach the retainers to the elevator and aileron trim-tab fittings. This proposed AD would require “detailed inspections” for these actions. We have included the definition for a detailed inspection in a note in this proposed AD.

The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-18998; Directorate Identifier 2003-NM-253-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of our docket Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

On July 2, 2003, we issued AD 2003-14-04, amendment 39-13223 (68 FR 41063, July 10, 2003), for certain Boeing Model 737-200, 737-300, 737-400, 737-500, 737-600, 737-700, 737-800, 737-900, 757-200, and 757-300 series airplanes; and McDonnell Douglas Model DC-10-10F, DC-10-30, DC-10-30F, DC-10-40, MD-10-30F, MD-11, and MD-11F airplanes. That AD requires modification of the reinforced flight deck door installed on the airplane. That AD was prompted by several reports of incidents involving the reinforced flight deck door on certain Boeing Model 737-300, 737-500, 737-800, and 757-200 series airplanes. We issued that AD to prevent inadvertent release of the decompression latch and consequent opening of the decompression panel in the flight deck door. If an airplane crewmember is in close proximity to the flight deck door when the decompression panel opens, the decompression panel could hit and injure the crewmember.

Since we issued AD 2003-14-04, we have made these determinations:

• Some subject airplanes may have been excluded from AD 2003-14-04's applicability. The requirements of that AD should apply to any airplane that has an affected reinforced flight deck door installed under certain supplemental type certificates (STC), not just those airplanes listed in the service bulletins that AD 2003-14-04 references.

• For Model DC-10, MD-11, and MD-11F series airplanes, the currently required modifications may not prevent inadvertent release of the decompression latch and consequent opening of the decompression panel in the flight deck door. Installing new, improved latch straps on the upper and lower decompression panels on the flight deck door will better ensure that a decompression panel does not open inadvertently.

• Based on post-certification testing, other modifications are necessary to the reinforced flight deck door. These modifications are included in the service information we reference in AD 2003-14-04, but we did not previously require them (as explained in the “Differences Between This AD and the Service Bulletins” section of AD 2003-14-04). Installing an armor plate over the deadbolt area of the flight deck door will better protect the door edge and door lip extrusion against penetration by bullets. Although the door as certified meets the ballistics and intrusion resistance security requirements of Section 25.795 (“Security Considerations”) of the Federal Aviation Regulations (14 CFR 25.795) (when the door is properly closed, latched, and locked), fragments caused by a bullet striking the door latch area could enter the flight deck and cause injury to a member of the flightcrew. Also, strengthening the smoke screens will allow the smoke screens to close properly and prevent smoke from entering the flight deck in the event of a fire in the airplane. Smoke in the flight deck could hinder the flightcrew's ability to continue to fly the airplane safely.

• For certain Model 737 and 757 series airplanes, the interval for the repetitive functional test of the decompression panels of the reinforced flight deck doors, as established in the original issue of the Certification Maintenance Requirements (CMR) document, is not conservative enough. More frequent inspections are needed to ensure that any failure is found in a timely manner.

• Certain wiring in the area of the flight deck door on Model 737-200 series airplanes could be damaged due to, for example, chafing against a connector bracket for the flight deck door wiring and the flight deck door post. This damage could result in arcing, fire, and/or reduced controllability of the airplane.

These determinations have prompted us to propose the new AD.

We have reviewed these service bulletins:

• C & D Aerospace Report B22-69, Revision E, dated November 8, 2002, which applies to certain McDonnell Douglas Model 737 and 757 series airplanes. That report summarizes the CMRs for the reinforced flight deck doors installed on those airplanes. Revision E of that report reduces the repetitive interval for functional tests of the decompression panels of the flight deck door.

• C & D Aerospace Service Bulletin B211200-52-02, Revision 2, dated September 29, 2003, which applies to certain flight deck door assemblies installed on certain McDonnell Douglas Model DC-10, MD-10, and MD-11 airplanes. (AD 2003-14-04 refers to Revision 1 of that service bulletin, dated June 3, 2003, as the appropriate source of service information for installing spacers in the upper and lower pressure relief latch assemblies.) In addition to the procedures for installing spacers in the upper and lower pressure relief latch assemblies, that service bulletin describes procedures for installing an armor plate in the area of the deadbolt for ballistics reinforcement, and installing stiffeners to strengthen the smoke screen on the decompression panels.

• C & D Aerospace Service Bulletin B211200-52-01, Revision 3, dated September 18, 2003, which applies to certain flight deck door assemblies installed on certain McDonnell Douglas Models DC-10, MD-11, and MD-11F airplanes. That service bulletin describes procedures for modifying the upper and lower pressure relief latch assemblies by installing new latch straps.

• C & D Aerospace Alert Service Bulletin B221001-52A02, dated November 5, 2002, which applies to certain flight deck door assemblies installed on certain Boeing Model 737-200 series airplanes. That service bulletin describes procedures for inspecting for chafing of wire bundles in the area of the flight deck door, and corrective actions if necessary. The corrective actions involve rerouting certain wiring or reorienting certain brackets, as applicable.

• C & D Aerospace Alert Service Bulletin B221001-52A05, Revision 2, dated June 19, 2003, which applies to certain flight deck door assemblies installed on certain Boeing Model 737-200 series airplanes. That service bulletin describes procedures for reworking certain wiring for the flight deck door to relocate a power wire for the flight deck door.

• C & D Aerospace Service Bulletin B221200-52-01, Revision 1, dated June 27, 2003, which applies to certain flight deck door assemblies installed on certain Boeing Model 737 and 757 series airplanes. That service bulletin describes procedures for installing an armor plate in the area of the flight deck door deadbolt for ballistics reinforcement.

• C & D Aerospace Alert Service Bulletin B251200-52-01, dated April 30, 2003, which applies to certain flight deck door assemblies installed on certain Model MD-11 airplanes. That service bulletin describes procedures for modifying the flight deck door by installing stiffeners to strengthen the smoke screen on the flight deck door's decompression panels.

Doing the actions specified in the applicable service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other products of this same type design. Therefore, we are proposing this AD, which would supersede AD 2003-14-04. This proposed AD would continue to require modification of the reinforced flight deck door. This proposed AD would expand the applicability of the existing AD to include all airplanes modified under certain STCs. This proposed AD would require you to do the actions in the applicable service information described previously, using that same service information, except as discussed under “Differences Between the Proposed AD and Service Information.” This proposed AD would also require you to revise the airplane's maintenance program to require repetitive functional testing of the decompression panels of the flight deck door at the intervals specified in C & D Aerospace Report B22-69, Revision E.

Although the service bulletins recommend accomplishing the modification “as soon as manpower, facilities, and retrofit kits become available,” or “as soon as possible,” we have determined that a more specific compliance time is necessary to ensure an adequate level of safety for the affected fleet. In developing an appropriate compliance time for this AD, we considered the flight deck door manufacturer's recommendation, the degree of urgency associated with the subject unsafe conditions, the number of affected airplanes in the fleet, and the time necessary to perform the modifications. In light of all of these factors, we find that 6 months to 18 months, depending on the action, represents an appropriate interval of time for affected airplanes to continue to operate without compromising safety.

C & D Aerospace Alert Service Bulletin B221001-52A02 specifies inspecting for chafing of wire bundles in the area of the flight deck door, but does not specify the type of inspection. Paragraph (l)(2) of this proposed AD identifies this inspection as a general visual inspection, and Note 2 of this proposed AD defines this inspection.

Table 3 of this proposed AD specifies that the actions in C & D Aerospace Service Bulletin B211200-52-01 must be done on McDonnell Douglas Model DC-10-10, DC-10-10F, DC-10-30, DC-10-30F, DC-10-40, MD-10-10F, MD-10-30F, MD-11, and MD-11F airplanes that are equipped with a flight deck door assembly having part number B211200. Though the effectivity listing of C & D Aerospace Service Bulletin B211200-52-01 does not identify all of these models, we find that the subject flight deck door assembly is type certificated for all of these models. Thus, listing all affected models will ensure that the applicable actions are done on all affected airplanes.

This proposed AD would retain all requirements of AD 2003-14-04. Since AD 2003-14-04 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

Also, we have revised paragraph (f)(3) of this proposed AD (which was paragraph (a)(3) of the existing AD) to remove the last sentence of the paragraph. We have determined that this sentence does not apply to the airplanes listed in paragraph (f)(3).

This proposed AD would affect about 3,423 airplanes worldwide.

The following table provides the estimated costs for U.S. operators to comply with the currently required actions that this proposed AD would continue to require, at an average labor rate of $65 per work hour.

The following table provides the estimated costs for U.S. operators to comply with the new actions that would be required by this proposed AD, at an average labor rate of $65 per work hour.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-18994; Directorate Identifier 2003-NM-210-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that Web site, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received several reports of cracking of the upper cap of the center wing rear spar at station Xcw=58.500 on certain McDonnell Douglas Model DC-9 airplanes. These airplanes had accumulated 20,100 to 76,183 total flight hours, and 25,150 to 88,029 total flight cycles. Investigation revealed that the cracks resulted from stress corrosion. This cracking of the left or right upper cap of the center wing rear spar, if not detected and corrected in a timely manner, could cause a possible fuel leak and structural failure of the upper cap, and result in reduced structural integrity of the airplane.

We have reviewed McDonnell Douglas Service Bulletin DC9-57-223, dated July 21, 2003. The service bulletin describes procedures for doing repetitive high frequency eddy current inspections of the left and right upper caps of the center wing rear spar at station Xcw=58.500, and contacting Boeing for repair instructions if any crack is found during the inspections. Accomplishing the actions specified in the service bulletin is intended to adequately address the identified unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require high frequency eddy current inspections, and corrective actions if necessary, in accordance with the FAA. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Difference Between the Proposed AD and the Service Bulletin.”

Although the service bulletin specifies that operators may contact the manufacturer for disposition of repair conditions, this proposed AD would require operators to repair those conditions per a method approved by the FAA.

This proposed AD would affect about 396 airplanes of U.S. registry and 963 airplanes worldwide. The proposed inspection would take about 3 work hours per airplane, per inspection cycle, at an average labor rate of $65 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $77,220, or $195 per airplane, per inspection cycle.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES. Include “Docket No. FAA-2004-18996; Directorate Identifier 2004-NM-40-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received a report indicating that localized pitting in the lower skin panels was found during production on a limited number of Boeing Model 737-700 and -800 series airplanes. The pitting was caused by chemical milling solution leaking through sealer at a maskant line. The leakage caused local pits to form on the surface of the skin. Testing and analysis revealed that the chemical mill pitting does not reduce the ultimate strength of the effected skin panels, but chemical mill pitting greater than the allowable limit may reduce the fatigue performance and damage tolerance capability of the lower skin panels. This condition, if not corrected, could result in premature fatigue cracking at certain lap splice locations and consequent rapid decompression of the airplane.

We have reviewed Boeing Service Bulletin 737-53-1256, dated September 18, 2003, which describes the following procedures depending on the airplane configuration:

• Doing an initial external ultrasonic inspection for pitting and cracks of the lower skin panel at the lap joint;

• Trimming the inner skin and installing two exterior doublers (including an internal high frequency eddy current inspection of the edge of the trim for cracks) or installing three exterior doublers, as applicable;

• Replacing the fuselage skin assembly with a new assembly;

• Doing supplemental repetitive inspections; and

• Contacting Boeing for repair of discrepancies.

The service bulletin recommends compliance times at the following approximate intervals, depending on the lap splice location:

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require you to use the service information described previously to perform the required actions, except as discussed under “Difference Between the Proposed AD and Service Bulletin.”

The service bulletin specifies that you may contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require you to repair those conditions in one of the following ways:

• Using a method that we approve; or

• Using data that meet the type certification basis of the airplane, and that have been approved by a Boeing Company Designated Engineering Representative who has been authorized by the FAA to make those findings.

This proposed AD would affect about 4 airplanes worldwide and 2 airplanes of U.S. registry. The following table provides the estimated costs to comply with this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The FAA has implemented new procedures for maintaining AD dockets electronically. As of May 17, 2004, new AD actions are posted on DMS and assigned a docket number. We track each action and assign a corresponding directorate identifier. The DMS AD docket number is in the form “Docket No. FAA-2004-99999.” The Transport Airplane Directorate identifier is in the form “Directorate Identifier 2004-NM-999-AD.” Each DMS AD docket also lists the directorate identifier (“Old Docket Number”) as a cross-reference for searching purposes.

We invite you to submit any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under ADDRESSES1 . Include “Docket No. FAA-2004-18997; Directorate Identifier 2004-NM-19-AD” in the subject line of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments submitted by the closing date and may amend the proposed AD in light of those comments.

We will post all comments we receive, without change, to http://dms.dot.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of that website, anyone can find and read the comments in any of our dockets, including the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc. ). You can review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78), or you can visit http://dms.dot.gov.

We are reviewing the writing style we currently use in regulatory documents. We are interested in your comments on whether the style of this document is clear, and your suggestions to improve the clarity of our communications that affect you. You can get more information about plain language at http://www.faa.gov/language and http://www.plainlanguage.gov.

You can examine the AD docket on the Internet at http://dms.dot.gov, or in person at the Docket Management Facility office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Management Facility office (telephone (800) 647-5227) is located on the plaza level of the Nassif Building at the DOT street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after the DMS receives them.

We have received reports of fatigue cracks in the web of the Body station 291.5 frame near the forward galley door of a Model 737-200 series airplane. The cracks initiate at the frame web cutout for the stringer 16R doorstop intercostal strap. Fatigue cracking of the aft frame and frame support structure of the forward galley door, if not detected and corrected, could result in a severed fuselage frame web, rapid decompression of the airplane, and possible loss of the forward galley door.

The subject area on certain Boeing Model 737-100, -200C, -300, -400, and -500 series airplanes is similar to that on the affected Model 737-200 series airplanes. Therefore, those airplanes may be subject to the unsafe condition revealed on the Model 737-200 series airplanes.

We have reviewed Boeing Alert Service Bulletin 737-53A1241, dated June 13, 2002. The alert service bulletin describes procedures for performing repetitive detailed and eddy current inspections to detect cracking of the frame web around the cutout for the doorstop intercostal strap at the aft side of the Body station 291.5 frame at stringer 16R, and corrective action if necessary. The alert service bulletin also specifies to contact Boeing for repair instructions if any crack is found. Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition.

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. Therefore, we are proposing this AD, which would require repetitive detailed and eddy current inspections to detect cracking of the frame web around the cutout for the doorstop intercostal strap at the aft side of the Body station 291.5 frame at stringer 16R, and corrective action if necessary. The proposed AD would require you to use the service information described previously to perform these actions, except as discussed under “Differences Between the Proposed AD and Service Bulletin.”

The alert service bulletin states that the threshold for the inspections is 50,000 total flight cycles or 2,250 flight cycles after the release date of the service bulletin, whichever is later. This proposed AD would require a threshold of 40,000 total flight cycles or 2,250 flight cycles after the effective date of the AD, whichever is later. The threshold for the proposed AD is based upon service history reported after the release of the service bulletin. The manufacturer intends to issue a revised service bulletin that includes a threshold of 40,000 total flight cycles.

Although the alert service bulletin specifies that operators may contact the manufacturer for disposition of certain cracking conditions, this proposed AD would require operators to repair those conditions per a method approved by the FAA, or per 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.

This proposed AD would affect about 3,113 airplanes worldwide. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD. See the ADDRESSES section for a location to examine the regulatory evaluation.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2004-18734 and Airspace Docket No. 03-AAL-03) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://dms.dot.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2004-18734 and Airspace Docket No. 03-AAL-03.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://dms.dot.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov, or the Federal Register 's Web page at http://www.gpoaccess.gov/fr/index.html.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Regional Air Traffic Division, Federal Aviation Administration, 222 West 7th Avenue, #14, Anchorage, AK 99533.

Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

Presently there is an uncharted non-regulatory part 95 route that uses the same routing as the proposed colored Federal airway. The uncharted non-regulatory route is used daily by commercial and general aviation aircraft. However, the air traffic control (ATC) management of aircraft operations is limited on this route. The FAA is proposing to convert this uncharted non-regulatory route to a colored Federal airway. This action would add to the IFR airway and route structure in Alaska. The route conversion would provide an airway structure to support existing commercial services in Alaska.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (CFR) part 71 (part 71) to extend G-16 from the Put River, NDB, to the Barter Island, NDB in Alaska. This action would add to the IFR airway and route structure in Alaska. The FAA is taking this action to enhance the safety and management of aircraft operations in Alaska.

Adoption of this Federal airway would: (1) Provide pilots with minimum en route altitudes and minimum obstruction clearance altitudes information; (2) establish controlled airspace thus eliminating some of the commercial IFR operations in uncontrolled airspace; and (3) improve the management of air traffic operations and thereby enhance safety.

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

On August 28, 2003, a notice was published in the Federal Register proposing to amend 14 Code of Federal Regulations (14 CFR) part 71 (part 71) to establish V-584 between the Helena, MT, VORTAC, and the Missoula, MT, VORTAC. With the decommissioning of the Drummond VOR in January 2004 there is no longer a requirement for the proposed V-584. Several airways in the state of Montana will be revised in a subsequent NPRM.

In consideration of the foregoing, the Notice of Proposed Rulemaking, FAA Docket No. FAA-2003-15529/Airspace Docket No. 03-ANM-03, as published in the Federal Register on August 28, 2003 (68 FR 51737), is hereby withdrawn.

This document contains proposed regulations under sections 2651(e) and (f)(1) of the Internal Revenue Code (Code). Section 2651(e) was added to the Code by section 511(a) of the Taxpayer Relief Act of 1997 (Public Law 105-34; 111 Stat. 778; 1997-4 C.B. 1, vol. 1) (the 1997 Act) and expands the predeceased parent exception from GST tax previously contained in former section 2612(c)(2).

Under chapter 13 of the Code, a GST tax is imposed on all transfers, whether made directly or indirectly, to skip persons. Generally, a skip person is a person who is two or more generations below the generation of the transferor, or a trust if all of the interests are held by skip persons. The transferor is the individual who transferred property in a transaction subject to the gift or estate tax. Transfers that are subject to the GST tax are direct skips, taxable terminations, and taxable distributions. A direct skip is a transfer subject to gift or estate tax of an interest in property to a skip person. A taxable termination is the termination by death, lapse of time, release of power, or otherwise, of an interest in property held in a trust unless, immediately after the termination, a non-skip person has an interest in the property or at no time after the termination may a distribution be made from the trust to a skip person. A taxable distribution is any distribution (other than a direct skip or taxable termination) from a trust to a skip person.

For transfers before 1998, former section 2612(c)(2) provided an exception to the general rule that a transfer, either outright or in trust, to a grandchild of the transferor was a direct skip. Under former section 2612(c)(2), if a parent of the transferor's grandchild was a lineal descendant of the transferor and that parent was deceased at the time of the transfer, the grandchild was treated as the child of the transferor for purposes of determining whether a transfer was a direct skip. This rule also applied to a transfer made to a grandchild of the transferor's spouse or former spouse if a parent of the grandchild was a lineal descendant of the transferor's spouse or former spouse and that parent was deceased at the time of the transfer.

Former section 2612(c)(2) further provided that, if a transferor's grandchild was treated as the transferor's child, the lineal descendants of that grandchild also moved up one generation level. Furthermore, if any transfer of property to a trust would be a direct skip but for the application of the exception, any generation assignment determined under this exception also applied for purposes of applying chapter 13 of the Code to transfers from the portion of the trust attributable to the property. Therefore, a subsequent distribution of property from a trust to a grandchild treated as a child of the transferor was not treated as a taxable distribution.

Section 511(a) of the 1997 Act repealed former section 2612(c)(2) and replaced it with new subsection (e) of section 2651, which contains the rules for assigning individuals to generations for purposes of the GST tax. Section 2651(e) broadens the predeceased parent rule by expanding its application to: (1) Transfers that would be taxable distributions or taxable terminations; and (2) transfers to collateral heirs (lineal descendants of the transferor's parents, or the parents of the transferor's spouse or former spouse), provided that the transferor (or the transferor's spouse or former spouse) has no living lineal descendants at the time of the transfer. Section 2651(e) applies to terminations, distributions, and transfers occurring after December 31, 1997.

Section 2651(e) applies if an individual is a descendant of a parent of the transferor (or the transferor's spouse or former spouse) and if the individual's parent, who also is a lineal descendant of the parent of the transferor (or the transferor's spouse or former spouse), died prior to the time the transferor is subject to estate or gift tax on the transfer from which an interest of that individual is established or derived. If these criteria are satisfied, then the individual is treated under section 2651(e) as if the individual is a member of the generation that is one generation below the lower of either the transferor's generation or the generation of the individual's youngest living lineal ancestor who is also a descendant of the parent of the transferor (or the transferor's spouse or former spouse). Section 2651(e) does not apply, however, to a transfer to an individual who is not a lineal descendant of the transferor (or the transferor's spouse or former spouse) if, at the time of the transfer, the transferor (or the transferor's spouse or former spouse, if applicable) has any living lineal descendant.

The proposed regulations provide rules and examples regarding the predeceased parent rule of section 2651(e). One issue addressed in these proposed regulations is the time when an interest is established or derived. The proposed regulations provide that, for purposes of section 2651(e), an individual's interest in property or a trust is established or derived at the time the transferor is subject to transfer tax under chapter 11 or 12 of the Code. If a transferor is subject to transfer tax under chapter 11 or 12 of the Code on the property transferred on more than one occasion, then the individual's interest will be considered established or derived on the earliest of those occasions.

However, the proposed regulations provide an exception to this general rule for remainder interests in trusts for which an election under section 2056(b)(7) (QTIP election) has been made to treat all or part of the trust as qualified terminable interest property (QTIP). Specifically, to the extent of the QTIP election, the remainder beneficiary's interest will be deemed to have been established or derived on the death of the transferor's spouse (the income beneficiary), rather than on the transferor's earlier death. Absent this exception, a remainder beneficiary of a QTIP trust would not benefit from the predeceased parent rule if the remainder beneficiary's parent is alive when the QTIP trust is established, but is deceased when the income beneficiary's interest terminates. Without this exception, the rule under section 2651(e) would be more restrictive than the previous rule under former section 2612(c)(2) which, by referring to the transfer from the transferor ( i.e. , the surviving spouse, in the case of a QTIP trust), would have made the predeceased parent rule available to the remainder beneficiary. The rule under section 2651(e), however, does not apply to any trust for which the election under section 2652(a)(3) (reverse QTIP) is made. If a reverse QTIP election is made, the grantor remains the transferor of the trust for purposes of chapter 13 of the Code. In most cases in which the reverse QTIP election has been made for a trust, the transferor's GST exemption has been allocated to the trust. Thus, the trust will be exempt from GST tax.

Solely for purposes of section 2651(e), these proposed regulations limit the term ancestor to a lineal ancestor. No inference should be drawn with respect to the definition of ancestor for purposes of any other section of the Code.

Under section 2651(f)(1), an individual who would be assigned to more than one generation is assigned to the youngest of those generations. This rule prevents the avoidance of the GST tax through adoption or marriage. Thus, for example, a transferor cannot avoid GST tax by adopting the transferor's adult grandchild. The Treasury Department and IRS believe, however, that it is reasonable to presume that tax avoidance is not a primary motive when a transferor adopts a descendant of a parent of the transferor (or the transferor's spouse or former spouse) who is a minor. Thus, under the proposed regulations, if an adoptive parent legally adopts an individual who is: (1) A descendant of a parent of the adoptive parent (or the adoptive parent's spouse or former spouse); and (2) under the age of 18 at the time of the adoption, then the adopted individual will be treated as a member of the generation that is one generation below the adoptive parent for purposes of determining whether a transfer from the adoptive parent (or the spouse or former spouse of the adoptive parent, or a lineal descendant of a grandparent of the adoptive parent) to the adopted individual is subject to GST tax.

In addition, the proposed regulations provide that if an individual's generation assignment is adjusted with regard to a transfer under either section 2651(e) or as a result of an adoption described above, a corresponding adjustment with respect to that transfer is made to the generation assignment of that individual's spouse or former spouse, that individual's descendants, and the spouse or former spouse of each of that individual's descendants.

It has been determined that these proposed regulations are not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations and because these regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Therefore, a Regulatory Flexibility Analysis is not required. Pursuant to section 7805(f) of the Code, these regulations will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department also request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.

A public hearing has been scheduled for December 14, 2004, beginning at 10 a.m., in the Auditorium of the Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by December 2, 2004. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these proposed regulations is Lian A. Mito of the Office of Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury Department participated in their development.

You may be potentially affected by this action if you are a Federal, State, or Territorial government agency that petitions EPA for an emergency use authorization under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Regulated categories and entities may include, but are not limited to:

• Federal Government (NAICS Code 9241), i.e., Federal agencies that petition EPA for section 18 use authorization.

• State or Territorial governments (NAICS Code 9241), i.e., States, as defined in FIFRA section 2(aa), that petition EPA for section 18 use authorization.

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. To determine whether you or your business may be affected by this action, you should carefully examine the summary of the applicability provisions as found in Unit III.B. of this proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In addition to using EDOCKET ( http://www.epa.gov/edocket/ ), you may access this Federal Register document electronically through the EPA Internet under the “ Federal Register ” listings at http://www.epa.gov/fedrgstr/ . A frequently updated electronic version of 40 CFR part 166 is available at E-CFR Beta Site Two at http://www.gpoaccess.gov/ecfr/ .

1. Submitting CBI . Do not submit this information to EPA through EDOCKET, regulations.gov or e-mail. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for preparing your comments . When submitting comments, remember to:

i. Identify the rulemaking by docket ID number and other identifying information (subject heading, Federal Register date, and page number).

ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

iv. Describe any assumptions and provide any technical information and/or data that you used.

v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

vi. Provide specific examples to illustrate your concerns, and suggest alternatives.

vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

viii. Make sure to submit your comments by the comment period deadline identified.

The primary purpose of this notice of proposed rulemaking is to simplify the process of applying for emergency exemptions, and allow for quicker responses to emergency pest conditions, without affecting current protections for human health and the environment. This document proposes several revisions to the regulations at 40 CFR part 166, in an effort to make a variety of improvements to the pesticide emergency exemption program and process. The two most significant of the revised practices being proposed are streamlining provisions intended to reduce the burden to both applicants and the Agency, and expedite decisions on exemption requests. The first of these revisions would expressly authorize applicants for certain repeat exemptions to re-certify that an emergency condition continues in the second and third years, and to incorporate by reference all information submitted in a previous application rather than annually submit complete applications. The second revision would pertain to the determination of “significant economic loss,” shifting the emphasis from the historical profit variability to the potential loss relative to yields and/or revenues without the emergency, and establishing a tiered analysis that will in many cases substantially reduce applicants' data burden related to substantiating the significance of losses. Each of these revisions would streamline the application and review process for emergency exemptions. In addition, the proposed economic assessment approach would directly result in more consistently equitable determinations of whether a significant economic loss is expected than does the current approach. These two streamlining proposals are currently being employed in limited pilot projects.

EPA also intends to achieve several other objectives in this proposed rule. First, revisions are proposed to correct or update several minor administrative aspects of the emergency exemption regulations, which have not been revised since 1986. The reason for each of these minor administrative revisions falls into one of the following categories: Correction of typographical or administrative errors; conformance with requirements of the Food Quality Protection Act of 1996 (FQPA); and codification of improved practices that have been voluntarily but widely followed by applicants. Second, the Agency is proposing to add specific language to the regulations to clarify that treatment of “invasive species” is a valid basis for issuing a quarantine exemption. Third, this proposed rule includes a discussion of how the Agency protects endangered and threatened species, and ensures compliance with the Endangered Species Act, through its implementation of the emergency exemption program. No regulatory proposals are included relative to endangered species measures. Finally, this proposed rule informs the public that EPA has revised its tentative plan to include in this proposed rule a proposal to allow exemptions for the purpose of pest resistance management. An explanation of why resistance management exemptions are not being proposed at this time, and a discussion of what alternative plans the Agency has for addressing resistance management, are included.

The Agency encourages interested parties to submit comments on any of the proposed regulatory revisions by following the instructions under ADDRESSES . Commenters should explain any modifications they suggest for the proposed revisions, along with their rationale. EPA would like applicants for emergency exemptions to submit comments concerning their experience with the pilot for the two streamlining provisions being proposed. Applicants who have participated in the pilot are asked to submit comments explaining the pros and cons of the revised practices. Applicants who were eligible for, but elected not to participate in, the pilot are asked to submit comments explaining why they did not participate. Units V. and VI. outline the specific revisions being proposed, but also include discussion asking potential commenters to consider alternative approaches for particular aspects of the proposal. In addition to inviting public comments on this proposed rule, EPA plans to consult the Pesticide Program Dialogue Committee (PPDC) on these proposed revisions, as it has prior to initiating the pilot for the streamlining proposals. Input from the public comments received in response to this proposed rule, and experience from the pilot will be carefully considered, when deciding whether to modify these proposed revisions for the final rule.

EPA regulates the use of pesticides under the authority of two federal statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and the Federal Food, Drug, and Cosmetic Act (FFDCA).

FIFRA provides the basis for regulation, sale, distribution and use of pesticides in the United States. FIFRA generally prohibits the sale and distribution of any pesticide product, unless it has been registered by EPA in accordance with section 3. (7 U.S.C. 136a.). Section 18 of FIFRA gives the Administrator of EPA broad authority to exempt any Federal or State agency from any provision of FIFRA if the Administrator determines that emergency conditions exist which require such an exemption. (7 U.S.C. 136p). Under section 2(aa) of FIFRA, the term “State” is defined to include a “State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Trust Territory of the Pacific Islands, and America Samoa.” (7 U.S.C. 136(aa)).

Section 408 of FFDCA authorizes EPA to set maximum residue levels, or tolerances, for pesticides used in or on foods or animal feed, or to exempt a pesticide from the requirement of a tolerance, if warranted. (21 U.S.C. 346a).

Regulations governing FIFRA section 18 emergency exemptions are codified in 40 CFR part 166. Generally, these regulations set forth information requirements, procedures, and standards for EPA's approval or denial of a request from a Federal or State agency for an exemption to allow a use of a pesticide that is not registered when such use is necessary to alleviate an emergency condition.

Federal and State agencies may apply for an emergency exemption due to a public health emergency, a quarantine emergency, or a “specific” emergency. Most emergency exemptions requested or approved fall under the category of “specific exemptions” and are requested in order to avert an economic emergency for an agricultural activity. Typical justifications for specific exemptions include, but are not limited to, the expansion of the range of a pest; the cancellation or removal from the market of a previously registered and effective pesticide product; and the development of resistance in pests to a registered product, or loss of efficacy of available products for any reason. Additionally, an emergency situation is generally considered to exist when no other viable (chemical or non-chemical) means of control exist, and where the emergency situation will cause significant economic losses to affected individuals if the exemption is not approved.

A Federal or State agency must submit an emergency exemption request in writing that documents the emergency situation, the pesticide proposed for the use, the target pest, the crop, the rate and number of applications to be made, the geographical region where the pesticide would be applied, and a discussion of risks that may be posed to human health or to the environment as a result of the pesticide use (40 CFR 166.20). EPA reviews the request, verifying the existence of the emergency, assessing risks posed to human health through food, drinking water, and residential exposure, assessing risks posed to farmworkers and other handlers of the pesticide, assessing any adverse effects on non-target organisms (including Federally listed endangered species), and assessing the potential for contamination of ground water and surface water. If an application for the requested use has been made in previous years, EPA also does an assessment of the progress toward registration for the use of the requested chemical on the requested crop, and considers this status in the final determination to approve or deny the exemption. If EPA concludes that the situation is an emergency, and that the use of the pesticide under the exemption will be consistent with the standards of section 18 and 40 CFR part 166, and, for food uses, section 408 of FFDCA, then EPA may authorize emergency use of the pesticide.

Use under specific and public health exemptions can be authorized for periods not to exceed 1 year, and uses under quarantine exemptions can be authorized for up to 3 years (40 CFR 166.28). Public health exemptions are for the control of pests that will cause a significant risk to human health, while quarantine exemptions are intended to control the introduction or spread of pests that are new or not known to be widely prevalent or distributed within and throughout the United States and its territories. Emergency exemptions should not be viewed as an alternative to registering the use(s) needed for longer periods. If the situation addressed with the section 18 exemption persists, or is expected to persist, affected entities must take the proper steps to amend the existing registration or seek a new registration to address that future need.

EPA published a Notice in the Federal Register on April 24, 2003 (68 FR 20145) (FRL-7293-6), announcing the initiation of a limited pilot program to test two potential improvements to the emergency exemption process. The two potential improvements currently being piloted are: (1) Allowing applicants for certain repeat exemptions to re-certify that the emergency condition still exists in the second and third years, and to incorporate by reference all information submitted in a previous application rather than annually submit complete new applications and, (2) a new approach to documenting a significant economic loss that focuses on the significance of the potential loss relative to yields and/or revenues without the emergency rather than comparison to historical profit variation. The April 2003 Notice also discussed whether exemptions for the purpose of pest resistance management might be allowed. Finally, the Notice solicited public comment on all three potential changes, and announced EPA's plan to issue a proposed rule addressing them. The two revised practices included in the pilot are also included in this proposed rule, without the restriction to reduced-risk pesticides that limits the scope of the pilot.

Anyone interested in the background leading up to the pilot program, or other related documents, may wish to review the Federal Register Notice announcing the pilot, and the related documents. A public docket was established for that Notice under docket ID number OPP-2002-0231. Interested parties should follow instructions under ADDRESSES for accessing the docket, but use docket ID number OPP-2002-0231 to access the docket for the April 24, 2003 Notice.

The pilot program is limited to requests for a specific set of “reduced-risk” pesticides, which significantly limits the number of potentially eligible exemption requests. The summary of participation in the pilot focuses on the 2003 growing season, since the 2004 season was still underway at this time.

The first part of the pilot allowed applicants for eligible repeat exemptions to re-certify the existence of their emergency condition. The re-certification pilot involves exemptions that meet all of the following eligibility criteria: (1) EPA approved the same exemption the previous year, and it is the second or third year of the request by that applicant, (2) the emergency situation can reasonably be expected to continue for longer than 1 year, (3) the exemption is not for a new chemical, a first food use, or for a chemical under Special Review, and (4) the exemption is for a chemical previously identified by EPA as reduced-risk. For the 2003 growing season, 16 exemptions were identified by EPA as eligible for re-certification and the list was made available to States and the public. Of the 16 exemptions eligible to repeat by re-certification, 7 submitted applications using re-certification. Of the nine exemptions that were eligible but for which no re-certification was submitted, three were for pesticide uses that had obtained federal registration under FIFRA section 3 since the 2002 exemption; three were not requested at all in 2003; and the remaining three were requested using conventional emergency exemption requests. In the seven instances of a re-certification, EPA staff was able to make expedited decisions with an average of 9 days from receipt of the request until the decision was made.

The second part of the pilot, for the loss-based approach for determining a significant economic loss, is limited only by the restriction to reduced-risk pesticides. Unlike the re-certification part of the pilot, there is no specific list of eligible exemptions, only eligible pesticide active ingredients to be requested. Therefore, there is no fixed number of eligible exemptions for the loss-based economic approach. EPA did not receive any submissions using the loss-based approach for determining a significant economic loss under the terms of the pilot during the 2003 growing season, although we have already received some in 2004. For the past year, the Agency has routinely prepared side-by-side assessments that evaluate the data under the traditional method, as well as the loss-based approach outlined in the pilot, to gain a better understanding and compare the ways of measuring whether pest situations represent emergencies. The loss-based approach is considered to measure more accurately the significance of losses associated directly with the pest problem, and is less influenced by other factors such as market fluctuations. In addition, cursory assessments of available past submissions have been done using the loss-based approach.

Both of these proposed revisions offer a cost saving and reduce the burden on States as well as on EPA. The Agency expects that the level of participation in both areas of the pilot will increase as the level of familiarity and understanding among State agencies increases. Efforts to facilitate the understanding and use of the pilot initiatives are currently underway.

The two revisions discussed below are currently being employed in limited pilot programs that were initiated by a Federal Register Notice in April 2003. A guidance document was prepared for use by applicants to participate in the pilot programs. After reviewing this Unit V., interested parties may find it useful to review that guidance document for the Agency's detailed plans for implementation of these revisions. A final guidance document will be made available when a final rule is published. In the meantime, the guidance document for the pilot would be particularly helpful in understanding what information would be required to be submitted by applicants under the proposed revisions. The pilot guidance document for the 2004 growing season is available in the public docket. Interested parties should follow instructions under ADDRESSES .

1. What is our current practice ? EPA authorizes emergency exemptions (except quarantine exemptions) for no longer than 1 year. However, depending on the nature of the non-routine condition that caused the emergency, some exemptions may subsequently be approved again, 1 year at a time. Currently, EPA conducts a full review of an application for the first year of an exemption, to determine whether an emergency condition exists, to ensure the use will not result in unreasonable adverse effects to human health or the environment, and, if the use will result in pesticide residues in food or feed, to make a safety finding consistent with section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA).

If the emergency condition continues in subsequent years, applicants may submit a similar application, in which case the Agency must again confirm the emergency condition and acceptability of the risk. For requests after the first year, the applicant again submits information to support the emergency finding, with a full application, including updated economic data. For these repeat requests EPA reevaluates the situation to determine, relative to the first year, whether: (1) The emergency condition has changed; (2) any alternative products have been newly registered for the use, or other effective pest control techniques are now available; (3) any changes have occurred in the status of the chemical's risk assessment; (4) the requested conditions of use have changed; and (5) the pesticide for the requested use has made sufficient progress towards registration.

2. How would re-certification work under the proposed approach ? This proposed revision would reduce the burden on applicants who seek re-approval of certain emergency exemptions in subsequent years. EPA proposes to add a new paragraph (b)(5) to 40 CFR 166.20, which would allow applicants for eligible repeat exemptions to submit applications that rely on the preceding year's submission to document the economic impact of the pest emergency. This re-certification approach would allow applicants to incorporate by reference all information submitted in a previous application, instead of submitting a complete re-application and supporting documentation. The re-certification of the emergency condition by the applicant combined with the materials already in EPA's files would serve as the basis for EPA's determination as to whether an emergency condition continues to exist.

Upon approval of any emergency exemption, EPA would make an up-front, separate, additional determination regarding eligibility for a streamlined re-certification application the following year, in the event that the applicant reapplies the next year. Eligibility for a re-certification application would not determine whether an emergency exemption application could be approved. Rather eligibility would affect the information that should be submitted in the application. EPA would consider several factors in determining eligibility to use a streamlined re-certification application:

1. Whether the emergency situation could reasonably be expected to continue for longer than 1 year . An emergency situation could reasonably be expected to continue where, for example, a registered product relied upon by growers becomes permanently unavailable, a pest expands its range, or a registered product ceases to be effective against a pest. Situations that would not be expected to continue would include a temporary supply problem of a registered product, an isolated weather event, or a sporadic pest outbreak.

2. Whether an emergency exemption has been approved more than twice for the same pesticide at the same site . EPA recognizes that some emergency situations can continue for more than 1 year, however, pesticide registration pursuant to FIFRA section 3 is the appropriate long-term response, rather than the section 18 emergency exemption. According to the regulations and EPA policy, a failure to request registration of a use requested under section 18 for more than 3 years may indicate that adequate progress toward registration is not being made. Therefore, EPA carefully examines all exemption submissions submitted for more than 3 years.

3. Whether the pesticide product, owing to its regulatory status, warrants heightened review before any additional use is approved . EPA will rely on the same criteria used in the existing regulations at 40 CFR 166.24(a), which identifies a number of different situations where, upon receipt of an application for an emergency exemption, the regulatory status of a pesticide product calls for public notice and comment:

(1) The application proposes use of a new chemical.

(2) The application proposes the first food use of an active ingredient.

(3) The application proposes any use of a pesticide if the pesticide has been subject to a suspension notice under section 6(c) of the Act.

(4) The application proposes use of a pesticide which:

(i) Was the subject of a notice under section 6(b) of the Act and was subsequently canceled.

(ii) Is intended for a use that poses a risk similar to the risk posed by any use of the pesticide which was the subject of the notice under section 6(b).

(5) The application proposes use of a pesticide which:

(i) Contains an active ingredient which is or has been the subject of a Special Review.

(ii) Is intended for a use that could pose a risk similar to the risk posed by any use of the pesticide which is or has been the subject of the Special Review.

In instances where EPA determines that the emergency situation could reasonably be expected to continue, where an emergency exemption has been approved not more than twice for the same pesticide at the same site, and where the pesticide product's regulatory status does not warrant heightened review, EPA would notify the successful applicant that, should it re-apply the following year, it is eligible to use a re-certification application. EPA anticipates that this notification would be included in the notice of approval of the current year's application. However, if an exemption is not classified as a candidate for re-certification in the approval notice, and an applicant believes that subsequent information would make it eligible, the applicant may contact the Agency to request an eligibility determination. In some instances, EPA may determine that an emergency condition exists, and that the exemption is eligible for a re-certification application the following year, yet conclude that additional information should be gathered in order to support approval in future years. In such instances, EPA may indicate in the approval notice that the exemption is eligible for re-certification upon submission of the specified information.

Under the proposed rule, an eligible re-certification applicant would be exempted from the information requirements of 40 CFR 166.20(a)(1) through (a)(10), and of the existing 40 CFR 166.20(b), where the applicant certifies that:

(i) The emergency condition described in the preceding year's application continues to exist.

(ii) Except as expressly identified, all information submitted in the preceding year's application is still accurate.

(iii) Except as expressly identified, the proposed conditions of use are identical to the conditions of use EPA approved for the preceding year.

(iv) Any conditions or limitations on the eligibility for re-certification identified in the preceding year's notice of approval of the emergency exemption have been satisfied.

Applicants meeting the above requirements would not need to submit new, updated documentation that the emergency condition continues or the additional data elements generally required under 40 CFR 166.20, except that the interim report specified in 40 CFR 166.20(a)(11) would still be required where a re-certification is filed before the final report on the previous exemption is available.

Eligibility for re-certifying the emergency condition would not determine whether an emergency exemption application could be approved. For applications that are eligible and include a proper re-certification of the emergency condition, EPA would again determine whether the requested use poses a risk to human health or the environment that exceeds statutory and regulatory standards. If the risks posed by the requested use are determined to be unacceptable, the exemption request would be denied unless the risks could be mitigated. Where an application re-certifies that the emergency condition and requested use are the same as in the initial year of the exemption, EPA would only re-evaluate the situation to determine, relative to the first year, whether: (1) Any alternative products have been newly registered for the use; (2) any changes have occurred in the status of the chemical's risk assessment; (3) the requested conditions of use have changed; and, (4) the pesticide for the requested use has made sufficient progress towards registration. If an effective product has been registered for the requested use since the previous exemption was approved, then an emergency condition may no longer exist. If the Agency has received new risk information since approving the previous exemption, then the risk would be re-evaluated. Likewise, if the request includes any change in the conditions of use that may increase exposure (application rate, number of applications, type of application, pre-harvest interval, re-entry interval, total number of acres, and all other directions for use) then the risk would also be re-evaluated. Because some applicants may start their 3-year re-certification period in later years than others, it is possible that EPA may determine that sufficient progress towards registration has not been made for a pesticide requested by an applicant eligible for re-certification.

For eligible requests where the applicant has certified a continuing emergency, if the three remaining review factors (product registrations, risk assessment status, and requested conditions of use) have not changed, the Agency's review time is expected to be significantly reduced. In such cases, applicants are expected to benefit by expedited decisions, in addition to the reduced burden due to the certification of the emergency. Applicants would be permitted to modify the conditions of the emergency use in an application in which they re-certify the emergency. However, EPA would need to determine whether, and how, such changes impact exposure and risk to human health or the environment. Therefore, such changes may undercut the Agency's ability to make an expedited decision. If the conditions of use are the same as the conditions of use in the exemption approved by EPA in the previous year, applicants may include a separate certification that their requested conditions of use have not changed, and incorporate by reference all conditions of use submitted in a previous application or applications. This certification that the conditions of use are unchanged would aid in expediting the Agency's decision.

If the Agency determines that there has been insufficient progress towards registration of the requested chemical on the requested crop, a request could be denied, consistent with current regulations and practice, regardless of eligibility for submitting a re- certification application. Registrant progress toward registration is determined for a pesticide-crop combination, whereas the year-count (first, second, third) in the eligibility cycle for re-certification would be determined separately for each State/Federal applicant, and could often differ among section 18 applicants in a given year. Lack of progress towards registration would not cause denials during the first 3 years of exemptions for a chemical-crop combination. However, since some applicants may apply for the first time in a year subsequent to the first request for a chemical-crop combination by another applicant, lack of progress towards registration could potentially interrupt the eligibility cycle for some applicants.

It is EPA's view that section 18 applies to non-routine conditions, and thus the Agency does not expect to re-approve emergency exemptions indefinitely. Under this proposal EPA would not allow submission of re-certification applications where exemptions have been previously granted for 3 or more years. As provided in 40 CFR 166.25(b)(2)(ii), an applicant for an emergency exemption for a use that has been subject to an emergency exemption in 3 previous years will be required to demonstrate reasonable progress towards registering the product for the use, as part of a full application.

3. Why propose this change ? Allowing applicants for certain eligible exemption requests to re-certify the existence of an ongoing emergency condition and to incorporate by reference all information submitted in a previous application is expected to reduce the burden to both applicants and EPA as well as allow for quicker decisions. When an applicant certifies the continuation of the emergency condition and incorporates previously submitted materials by reference, a complete new application sufficient to characterize the situation in accordance with 40 CFR 166.20 will not be required. This will save applicants time and effort in gathering data and preparing their submissions. The Agency will save time and resources by not having to annually repeat each step of its review of the documents supporting the exemption requests. If no pesticides that could avert the emergency have been newly registered, and nothing has changed to affect the assessment of risk, then re-certification of an emergency will lead to significantly shorter Agency review.

EPA's experience indicates that emergency situations that continue after the initial year generally are projected to cause comparable yield losses in succeeding years. Therefore, with the certification of a continuing emergency, reliance on the previously submitted data and other supporting information should be adequate to support a decision to approve or deny an emergency exemption application.

1. What is our current practice ? In determining whether a pest emergency is likely to result in “significant economic loss,” EPA ordinarily compares the affected growers' projected per-acre “profits” (gross revenue less expenses, where expenses have often been poorly defined) for the affected crop, based on anticipated yield losses, to the historical variation in their “profits” for that crop in that region. Applicants are required under 40 CFR 166.20(b)(4) to submit economic information necessary to make this determination. In addition to information used to estimate the amount of the anticipated yield and profit losses, EPA generally asks for annual data for 5 years of average yields, prices, and production costs to establish profit variability.

Under the current approach, EPA and applicants estimate expected net revenues under the emergency conditions and compare them to the variation in annual profitability during the previous 5 years. If the expected net revenues under the emergency are less than the smallest net revenues of the previous 5 years, then the Agency would typically conclude that a significant economic loss will occur. Some crops have very wide fluctuations in net revenues (that in many cases are the result of market forces entirely unrelated to pest pressure). For such crops, growers may experience a large economic loss due to non-routine pest-related conditions, without a significant economic loss finding by EPA under strict adherence to the current approach. Other crops may have very little variation in historical net revenues, which could lead to a very small economic loss being found significant under the current approach.

2. How would the proposed approach work ? This second proposed improvement would focus EPA's analysis on the economic impact of the pest emergency relative to yields and/or revenues without the pest emergency, rather than comparing it to historical profit variation for the crop and region. Moreover, the new approach would allow applicants to document economic losses with a less burdensome methodology where appropriate.

The proposed loss-based approach would use the existing methodology to calculate the economic consequences of an unusual pest outbreak, although the calculation would be done in steps (tiers) and sometimes the later steps would be unnecessary. States would still have to submit data to demonstrate the emergency nature of the outbreak including the expected losses in quantity, and sometimes quality and/or additional production costs. However, the proposed approach would impose standard criteria for determining the significance of that loss, rather than comparing losses to past variations in revenue or profit. The goal of the criteria is to compare losses to farm or firm income in the absence of the emergency in a manner that can be easily and consistently measured. Further, successive screening levels (tiers) have been chosen that will permit situations that clearly qualify to be resolved quickly, with a minimum of data. Each tier has a quantitative threshold that would generally apply to all eligible emergency exemption applications. If the pest situation does not appear likely to result in a significant economic loss based on the first tier analysis, it might qualify based on further analysis in succeeding tiers. Each additional tier would require more data and involve more analysis on how the emergency affects revenues. Where conditions do not neatly fit into the tiered approach, for example long-term losses in orchard crops, the Agency would make its significant economic loss determinations based on other criteria, such as changes in the net present value of an orchard, if these losses are demonstrated by the applicant.

Tier 1: Yield loss . Tier 1 is based on crop yield loss. If the projected yield loss due to the emergency condition is sufficiently large, EPA would conclude that a significant economic loss will occur, due to the magnitude of the expected revenue loss. The yield loss threshold in Tier 1 would be 20% for all crops. This threshold is set at a sufficiently high level such that a loss that exceeded the threshold would also meet the thresholds in Tiers 2 and 3, if the additional economic data were submitted and analyzed. Therefore, for such large yield losses it would not be necessary to separately estimate economic loss, which would require detailed economic data.

Tier 2: Economic loss as a percentage of gross revenues . A yield loss that does not satisfy the threshold in Tier 1 may nonetheless cause a significant economic loss because yield loss alone may not reflect all economic losses. In addition to yield losses, there may be other impacts that contribute to economic loss. Quality losses may result in reductions in prices received and/or there may be changes in production costs, such as pest control costs and harvesting costs. For situations with yield losses that do not meet the significant economic loss criterion for Tier 1, EPA would evaluate estimates of economic loss as a percent of gross revenue in Tier 2, to determine if the loss meets that threshold for a significant economic loss. The economic loss threshold in Tier 2 would be 20% of gross revenue for all crops. Again, this threshold in Tier 2 is set with the intention that losses exceeding the threshold would also meet the threshold in Tier 3, if the additional Tier 3 analysis were performed.

Tier 3: Economic loss as a percentage of net revenues . If neither yield or economic losses were above the required thresholds in Tiers 1 and 2, EPA would compare impacts to net revenues. Net revenues are defined for the purposes of this proposed rule as gross revenues minus operating costs. The loss threshold in Tier 3 would be 50% of net revenues for all crops. Some emergency conditions that would fall short of the thresholds in Tiers 1 and 2 may qualify as a significant economic loss in Tier 3, particularly for crops with narrow profit margins (net revenues as a percentage of gross revenues). Even if economic loss seems small in comparison to gross revenues, the situation could still be a significant economic loss if the profit margin is narrow.

EPA selected the sizes of the proposed thresholds (20%, 20%, and 50%) based on average farm income and production expenses in the U.S., and an analysis of past requests showing what results the proposed method would provide with various thresholds. Data on farm income in “USDA Agricultural Statistics, 2003” shows that net farm income averages about 20% of gross revenue. Therefore, an economic loss of 20% of gross revenue would be sufficient to eliminate net farm income. A yield loss of 20% results in economic loss of 20% or higher. Also, since average net farm income is a little less than 50% of net revenue, an economic loss that is 50% of net revenue would be sufficient to eliminate net farm income. The analysis of past requests indicated that the average and median economic losses that qualified as a significant economic loss were about 18% and 15% of gross revenue, respectively. Since the first 2 tiers are screening thresholds, these thresholds were rounded up to 20% to be a little more stringent, with the intention that if a request did not pass Tiers 1 or 2, it could qualify with Tier 3. The analysis of past requests also showed that the median economic loss that qualified as a significant economic loss was about 51% of net revenue. The analysis also showed that these thresholds collectively result in about the same overall likelihood of an application qualifying for a significant economic loss. That is, approximately the same total number of emergency requests that qualified for a significant economic loss using the current approach would qualify using the proposed loss-based approach, although there would be some differences in individual cases.

The regulatory revisions in this proposed rule include the quantitative thresholds for the three tiers, presented above, as this is EPA's preferred approach. Commenters are asked to consider whether the actual thresholds should be included in the revised regulations, or whether more flexibility should be preserved to refine that aspect of the proposed approach in the future. Commenters should also consider whether the levels of the proposed thresholds are appropriate, and if not, what the levels should be and why.

For specific emergency exemptions (the only ones in which significant economic loss is a qualifying factor), EPA anticipates that applicants would first determine whether their projected loss meets the Tier 1 yield loss threshold of 40 CFR 166.3(h)(1)(i), analytically the least burdensome criterion. The associated data requirements are proposed in 40 CFR 166.20(b)(4)(i). If the projected loss does not meet this threshold, EPA expects that applicants would determine whether their projected loss meets the Tier 2 gross revenue threshold of 40 CFR 166.3(h)(1)(ii), providing additional data as noted in 40 CFR 166 20(b)(4)(ii). Failing to meet that threshold, applicants would submit the data to perform the analysis necessary for the Tier 3 net revenue threshold of 40 CFR 166.3(h)(1)(iii) as given in 40 CFR 166.20(b)(4)(iii). The three tiers established in 40 CFR 166.3(h)(1)(i), (ii) and (iii) are designed such that when an emergency condition qualifies for significant economic loss under a lower tier, data for higher tiers are not required, and the burden and cost of preparing the emergency exemption application are reduced. Each successive tier builds upon the previous one. That is, the information required for estimating a lower tier is also necessary in estimating each higher tier. This would allow an applicant to collect data, and build a case for significant economic loss, as needed and determined by the conditions, without requiring additional unnecessary data.

This loss-based approach is designed to capture the economic impact of pest activity as it affects the current growing season, which will be sufficient for most emergency exemption applications. Although the loss-based approach appears in a proposed revision to the definition of significant economic loss at 40 CFR 166.3(h)(1), EPA is not attempting to revise the approach for other types of losses, at the proposed 40 CFR 166.3(h)(2). Where losses affect more than the current growing season, for example long-term losses in orchard crops, the Agency would continue to make its significant economic loss determinations based on other criteria, such as changes in the net present value of an orchard, if these losses are demonstrated by the applicant. In situations where the simple methods of the loss-based approach would not adequately reflect the likely extent of the economic loss, EPA would still attempt to determine, on a case-by-case basis, whether the pest emergency is likely to result in a substantial loss or impairment of capital assets, or a loss that would affect the long-term financial viability expected from the productive activity.

3. Why propose this change ? This proposed methodology for determining a significant economic loss is intended to streamline the data and analytical requirements for emergency exemption requests, and allow for quicker decisions by EPA. In addition, the methodology is designed to reflect more accurately the significance of an anticipated economic loss. Specifically, this approach makes a more direct comparison between the losses anticipated owing to the emergency situation and the yield and/or revenues without the pest emergency, rather than a comparison to the historical range of profit variability. Year-to-year profit variability often reflects market forces entirely unrelated to pest pressure. Although EPA has attempted to make allowances for crops' differing profit variability when determining the economic significance of losses under the current approach, EPA now believes that the loss-based approach better and more directly permits EPA to evaluate the significance of economic losses.

An analysis of past section 18 requests suggests that this proposed approach would not cause a significant change in the overall likelihood of a significant economic loss finding, although findings may differ in individual cases. Further, it is expected to lead to savings to both applicants and EPA from reduced data and analytical burdens. Under the proposed procedure, applicants could elect to submit the minimum amount of data necessary to demonstrate a significant economic loss in one of three increasingly refined tiers. If the first tier is sufficient, the burden is reduced most significantly. Even in the highest tier, the burden may be reduced relative to the current approach as the analysis focuses on the current year rather than historical data. Like re-certification of emergencies, this would save applicants time and resources in gathering data and preparing submissions. The Agency's burden would be reduced due to streamlined reviews.

An analysis of available past requests for emergency exemptions submitted by States, including requests for which significant losses were not found, shows that in many cases significant economic loss can be adequately demonstrated in a more flexible manner without loss of reliability through the proposed methodology. The loss-based approach would require less data from applicants in cases that qualify under Tier 1, where the same conclusion of a significant economic loss would be made with the additional data and analysis under the higher tiers.

Because the proposed approach shifts the focus from annual price variability to actual pest-related losses, while still considering typical net revenues for the crop and State, it leads to more consistently accurate findings of the significance of economic losses. Under the current approach, producers of crops that have very wide fluctuations in net revenues, even if due to price variability, may experience a large economic loss due to non-routine pest-related conditions, without a significant economic loss finding by EPA under strict adherence to the current approach. Other crops and cases may have very little variation in historical net revenues, which could lead to a small economic loss being found significant under the current approach. Again, the proposed approach is designed so that it would not cause a significant change in the overall likelihood of a significant economic loss finding, but it may change the findings in individual cases so that determinations of significance are more accurate, appropriate and equitable.

Current regulations list certain information that must be included, as appropriate, in an application for a specific exemption: 40 CFR 166.20(b) Information required for a specific exemption. An application for a specific exemption shall provide all of the following information, as appropriate, concerning the nature of the emergency:

The existing regulations state that all of the above information must be included “as appropriate.” EPA recognizes that each pest emergency has individual characteristics, and exercises judgement based on experience, in determining what information is appropriate. For example, under the current approach, the Agency typically considers 5 years of annual data on historical net and gross revenues to be appropriate, and has suggested in guidance materials that applicants submit revenue data for the preceding 5 years. However, in some cases, such as a very minor or new crop for which less data are available, the Agency may rely on other credible information. Further, EPA does not compare the emergency situation to the situation with the proposed pesticide, but to the situation without the emergency. Therefore, EPA believes that the proposed approach would allow applicants to focus their applications on the most “appropriate” information for determining whether or not a significant economic loss will occur.

Because the analysis of past exemption requests, on which the proposed approach is based, demonstrates that the likelihood of approval of some requests is not significantly changed by the loss-based approach, EPA believes that the current requirement of those additional data in those cases can be improved. However, even when annual historical data are not required, applicants would sometimes continue to utilize historical data under the proposed approach, albeit in a different way. This is because each tier requires a quantitative threshold to be met, that is a certain percentage of a baseline of either crop yield, gross revenues, or net revenues. The best approach to determine the baseline in some cases may be to use the average of historical data, including yield and price data.

Current regulations describe four types of exemptions, one of which is a quarantine exemption. The purpose of a quarantine exemption is stated in the regulations as follows:

Quarantine exemptions are not directly for the purpose of, or approved on the basis of, averting a significant economic loss, although they may ultimately help prevent large economic losses. In addition to being for the control of pests that are not widely prevalent or distributed in the U.S., quarantine exemptions are intended to control recently-introduced, non-native species. In recent years such species have come to be commonly known as “invasive species.” Because of the potentially widespread and devastating impacts of invasive species to ecosystems, the environment, and the economy, the challenge of preventing their introduction, and when necessary controlling them, has garnered increasing attention in recent years. Although invasive species implicitly fall within the scope of quarantine exemptions, the now widely-recognized term does not appear in the regulations, probably because it was not widely used at the time 40 CFR part 166 was promulgated. EPA is proposing to add the term “invasive species” to 40 CFR 166.2(b) and to 166.3(d)(3)(i), to clarify that the intent of making quarantine exemptions available includes the control of invasive species. EPA also proposes to add, at 40 CFR 166.3(k), a definition of “invasive species” that is derived from that used in Executive Order 13112 (64 FR 6183, February 3, 1999).

A number of minor revisions to 40 CFR part 166 are being proposed to correct errors or update administrative aspects of the emergency exemption regulations, particularly in light of the fact that FQPA was enacted since the regulations under part 166 were last revised. Each of these revisions is being proposed for one of the following reasons: (1) To correct typographical or administrative errors or inaccuracies, (2) to bring the regulations into agreement with current requirements put in place by the FQPA, or (3) to reflect improvements to the process that have been identified since 40 CFR part 166 was last revised, and that have been voluntarily practiced by applicants. Each of these revisions would be non-substantive or reflect minor changes to the regulatory requirements, but all would correct, improve, or update the regulations. The corrections of typographical or administrative errors or inaccuracies are self-explanatory. The proposed revisions for the other reasons are discussed below.

Under FFDCA section 408(l)(6), as amended by FQPA, EPA is required to establish time-limited tolerances, or exemptions from the requirement of a tolerance, for pesticide residues in food or feed resulting from uses under emergency exemptions. The current regulations predate FQPA and therefore do not reflect this requirement. Four revisions are being proposed to bring 40 CFR part 166 into agreement with current practices as required by the FFDCA. Inasmuch as section 408(l)(6) applies to all food-use emergency exemptions, regardless of whether its requirements are reflected in 40 CFR part 166, these proposed changes to 40 CFR part 166 do not substantively change the applicable law. For ease of discussion, below, “tolerance” is used to refer to a tolerance or exemption from the requirement of a tolerance.

First, EPA proposes to amend 40 CFR 166.3(e) to revise the definition of “first food use,” which reads “The term first food use refers to the use of a pesticide on a food or in a manner which otherwise would be expected to result in residues in a food, if no permanent tolerance, exemption from the requirement of a tolerance, or food additive regulation for residues of the pesticide on any food has been established for the pesticide under section 408(d) or (e) or 409 of the Federal Food, Drug, and Cosmetic Act.” EPA is proposing to change this definition by removing the word “permanent,” so that the establishment of any tolerance, including a time-limited tolerance, would be considered when determining whether a use was the first food use, and by removing the reference to “food additive regulation,” because, owing to the FQPA amendments, EPA no longer issues food additive regulations.

Second, under 40 CFR 166.25, Agency review , the regulations state that the review enables EPA to make a determination with respect to several items, including in 40 CFR 166.25(a)(2) the level of residues in or on all food resulting from the proposed use. The proposed revision would add to this list the establishment of a time-limited tolerance for such residues, where necessary.

The third proposed revision made necessary by FQPA is to add, under 40 CFR 166.40, an additional limitation to the authority of a State to issue a crisis exemption, namely, that a State may issue a crisis exemption for a food use only where a tolerance or exemption is already in effect, or where EPA has provided verbal confirmation that a time-limited tolerance for the proposed use can be established in a timely manner. It is in the best interests of applicants and potential users of the pesticide under the crisis exemption that there is some assurance that an exemption can be established in a timely manner before use of the pesticide begins. EPA also proposes that all crisis exemptions be conditioned upon EPA confirming that it has no other risk-based objection to the use of the pesticide under the crisis provisions.

The fourth proposed change, which arises because EPA now establishes formal tolerances under FQPA, is to remove the requirement under 40 CFR 166.30(b) and 40 CFR 166.47 to directly notify the U.S. Food and Drug Administration (FDA), the U.S. Department of Agriculture (USDA), and the State health officials. The purpose of this requirement was to notify these agencies of levels of pesticides that may occur in food and feed items as a result of an emergency exemption use. However, with the requirement that time-limited tolerances be established in accordance with FFDCA section 408(l)(6), such levels are published in the Federal Register , as well as the 40 CFR part 180, and detailed background is given regarding safety of these tolerances. Therefore, notifying the other regulatory organizations (FDA, USDA, and State health officials) on an individual basis is considered redundant to the Federal Register notice and incorporation of the regulatory decision in the appropriate section of 40 CFR part 180.

Several proposed revisions are to codify minor improvements to the process that have been identified since the current regulations became effective. Applicants have been generally following these practices, in most cases for several years, and EPA believes that the public will generally agree that these are improvements to the regulatory requirements. First, under 40 CFR 166.20, Application for a specific, quarantine, or public health exemption , EPA is proposing to revise 40 CFR 166.20(a)(2)(i)(A) so that an application must include a copy of the registered label(s) if a specific pesticide product(s) is/are requested, instead of the current requirement to include the registration number and name of the product. This is practical because emergency exemption requests are generally for pesticide products that are already registered for other uses, but not for the requested use.

Next, under 40 CFR 166.20(a)(3), EPA is proposing to add a new item and revise several of the others, to specify that the conditions of use in an application must state the maximum number of applications, the period of time for which the use is proposed, and to specify the earliest possible harvest dates of the treated crop. Such information is clearly necessary for both risk assessment and tolerance setting, and in those rare occasions where it is not apparent from the application, EPA must contact the applicant to obtain the information. Expressly requiring this information in 40 CFR 166.20(a)(3) would expedite review of applications and allow tolerances to be established in a timely fashion.

Additionally, EPA is proposing that 40 CFR 166.20(a)(9) be revised to specify that in addition to the registrant or manufacturer being notified of the application submission, the application must also include a statement of support from the registrant or manufacturer, and the expectation that supplies of the requested material will be adequate to meet the needs under the proposed emergency use.

The existing regulations establish a measure of whether adequate progress toward the registration of a requested use is being made. Existing regulations suggest that the lack of a request for registration, within 3 years of an emergency exemption first being requested for the use, suggests that adequate progress is not being made. EPA proposes to revise 40 CFR 166.24(a)(6)(i) and 40 CFR 166.25(b)(2)(ii) to relax this presumption for repeat emergency exemption applications for uses being supported by the Interregional Research Project No. 4 (IR-4). The IR-4 program is a cooperative effort of the state land grant universities, USDA and EPA, to address the chronic shortage of pest control options for minor crops. Generally, the crop protection industry lacks economic incentive to pursue registrations on minor crops because of low acreage. IR-4 generates and supplies research data needed by EPA in order to register compounds for use on minor crops. Owing to the limited pest control options available for minor use crops, the significance of the need evidenced by IR-4 action, and the limits on IR-4 resources, EPA believes that a somewhat slower rate of progress towards registration should be accepted for emergency exemptions for uses being supported by the IR-4 program. Accordingly, EPA is proposing that 40 CFR 166.24(a)(6)(i) and 40 CFR 166.25(b)(2)(ii) be revised so that the presumption against adequate progress toward registration of repeat emergency exemptions for uses being supported by the IR-4 program would begin after 5 years, 2 years more than allowed for uses supported by the registrant. For such major crop uses, the 3-year presumption in the current regulations would remain in effect.

EPA is proposing that 40 CFR 166.30(a)(1) be revised to reflect that EPA will not process incomplete applications, and that action on such submissions will be halted until required additional information is submitted.

EPA is proposing to clarify 40 CFR 166.32(b) to ensure that applicants submit interim use reports for exemptions if requesting a repeated emergency exemption prior to the due date of the final report.

EPA proposes clarifying the authority of an applicant to issue a crisis exemption by specifying in 40 CFR 166.40(a) that crisis exemptions are to be used only for unpredictable emergency conditions. This proposed change is strictly for purposes of clarification, as the term “unpredictable” already appears in the introductory language of 40 CFR 166.40, and does not represent any intention by EPA to change the circumstances that are acceptable for crisis exemptions.

EPA is proposing that 40 CFR 166.43(a)(1) be revised to improve the notification process for crisis exemptions, reflect the standard practice of the state agencies, and provide for advance notice so that EPA may make a determination of whether a tolerance may be supported in accordance with FFDCA section 408 requirements. EPA is proposing that 40 CFR 166.43(a)(1) be revised to require advance notification for crisis exemptions by applicants. The state's authority to exercise the crisis exemption would be stayed for up to 36 hours pending verbal confirmation by EPA that a tolerance can be established in a timely manner and that the Agency has no other risk-based objections. This would replace the currently ambiguous requirement that notification must be made at least 36 hours in advance, or no later than 24 hours after the decision of a State to avail itself of a crisis exemption. Notification after the crisis has been declared does not allow EPA to evaluate whether a crisis use can be supported with a section 408 safety finding, or whether other potential risks are unacceptable, before use of the pesticide begins. In any case, EPA would continue to provide the necessary verbal confirmations as quickly as possible, thereby often allowing use of the crisis exemption in less than 36 hours. The Agency recognizes that speed is important for all crisis exemptions, and that certain situations may be particularly urgent, including, but not necessarily limited to, national security threats and some requests under USDA's Animal and Plant Health Inspection Service quarantine program.

To clarify necessary information for a crisis exemption, EPA is proposing that 40 CFR 166.43(b)(1) and (b)(4), be revised to specify submission of the registered label(s) for the pesticide product(s) proposed for crisis use, as well as proposed use directions specific to the crisis use, and the timeframe for anticipated use, including end date.

To bring the reporting requirements for crisis exemption requests into agreement with those for specific, quarantine, and public health exemption requests, EPA is proposing that 40 CFR 166.49(a)(1) through (a)(4) be revised and 40 CFR 166.49(a)(5) deleted, to clarify information requirements, such as applicant, product used, site treated, and contact information.

The EPA-USDA Committee to Advise on Reassessment and Transition (CARAT) is a diverse group of stakeholders formed to make recommendations to EPA and USDA regarding strategic approaches for pest management planning, transition to safer pesticides for agriculture, and tolerance reassessment for pesticides. In October 2003, CARAT provided draft recommendations, including one that “EPA and USDA need to recognize that any transition program has to consider efficacy, economics, resistance management, and impact on non-targets.” EPA agrees with the CARAT on the importance of resistance management and is exploring how to use its regulatory and non-regulatory initiatives to support and facilitate effective resistance management.

Although the April 2003 Federal Register Notice indicated that EPA was considering addressing resistance management in this proposed rule, EPA now plans to pursue opportunities to address pest resistance management as it implements the Pesticide Registration Improvement Act (PRIA) enacted January 23, 2004. This Act requires the Agency to establish a registration service fee system for applications for pesticide registration and amended registration. Under this new system, fees will be charged for new applications for registration received on or after the effective date of the statute (March 23, 2004) and EPA is required to make a decision on the application within prescribed decision timeframes. Under PRIA, EPA will eliminate its backlog of registration actions and make more timely decisions. This will accelerate the registration of many products that will be beneficial to resistance management, including reduced risk products. EPA's reduced risk process considers resistance management as an important factor. New products that would address significant resistance management needs would reach the market sooner, thereby providing a strong incentive to registrants to incorporate resistance management in their registration submissions.

In addition, EPA will continue to promote the implementation of its voluntary resistance management labeling guidelines based on rotation of mode of action described in Pesticide Registration Notice 2001-5 (PR Notice 2001-5). These guidelines are part of a North American Free Trade Agreement (NAFTA) effort to harmonize resistance management guidelines. The Agency supports incorporating resistance management considerations into pesticide labeling (i.e., PR Notice 2001-5), resistance management education programs, crop management and stewardship programs, and outreach efforts with stakeholders. EPA will continue working with stakeholder groups on sustainable resistance management strategies that protect human health and the environment including the various Resistance Action Committees (RACs), registrants, consultants, academia, USDA, States, and public interest groups.

Like all federal agencies, EPA must comply with the requirements of the Endangered Species Act (ESA), which requires that an agency ensure, in consultation with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (jointly referred to as “the Services”), that its actions are not likely to jeopardize the continued existence of threatened or endangered (listed) species or destroy or adversely modify their critical habitat. This requirement applies, among others, to EPA actions approving emergency exemptions under FIFRA section 18. Under current ESA consultation regulations, an agency must consult with FWS and NMFS if an action “may affect” a listed species or its critical habitat.

FWS and NMFS, in collaboration with EPA and USDA, have developed a counterpart regulation (69 FR 48115, August 6, 2004), that would make the process of consultation about EPA actions involving pesticides more efficient, effective, and timely, thereby strengthening the protections for endangered and threatened species. As part of the work supporting the counterpart rule, the Services and EPA reviewed the Agency's approach to the assessment of potential risks to listed species resulting from pesticide use. A January 26, 2004, letter from the Services to EPA includes a quote stating that EPA's approach to ecological risk assessment “will produce effects determinations that reliably assess the effects of pesticides on . . . listed species and critical habitat pursuant to the ESA and implementing regulations.” That letter is in the public docket for this proposed rule, and interested parties may access it by following the instructions under ADDRESSES .

As a result of the Services' review of the Agency's ecological risk assessment methodology, EPA intends to look more closely at potential risks of pesticide use in connection with decisions on requests for emergency exemptions. EPA currently requires, under 40 CFR 166.20(a)(7), information to be included in applications for emergency exemption that addresses potential risks of the requested use to endangered and threatened species. Although EPA, under existing requirements, routinely considers the impacts of emergency exemptions on endangered and threatened species, the Agency seeks to improve the guidance it gives to applicants concerning data on endangered and threatened species. EPA will need to rely on States and federal agencies to supply information as part of their requests for emergency exemptions that will enable EPA to assess the potential impacts on listed species and critical habitat of pesticide use under the proposed exemption. EPA also plans to work with the Association of American Pest Control Officials (AAPCO) and with individual States, as the primary applicants for emergency exemptions, to improve the quality of their submissions as they try to frame the potential impact of a requested pesticide use on endangered and threatened species. EPA believes these measures fall within existing requirements but should increase the availability of essential information needed to make a timely and substantive determination of the potential impact to endangered and threatened species. EPA also plans through its reevaluation, to refocus and possibly increase consideration of these impacts in its decision process for exemption requests, including any need to consult with USFWS and NMFS.

In accordance with FIFRA section 25(a), this proposed rule was submitted to the FIFRA Science Advisory Panel (SAP), the Secretary of Agriculture (USDA), and appropriate Congressional Committees. The SAP has waived its review of this proposed rule, and no comments were received from any of the Congressional Committees or USDA.

Pursuant to Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), the Office of Management and Budget (OMB) has designated this proposed rule as a “significant regulatory action” under section 3(f) of the Executive Order because it may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This action was therefore submitted to OMB for review under this Executive Order, and any changes to this document made at the suggestion of OMB have been documented in the public docket for this rulemaking.

In addition, EPA has prepared an economic analysis of the potential regulatory impacts of this proposed action on those affected, which is contained in a document entitled Economic Analysis of the Proposed Pesticides Emergency Exemption Process Revisions. A copy of this Economic Analysis is available in the public docket for this action and is briefly summarized here.

EPA is considering these improvements in an effort to reduce the burden to both the applicants and EPA, and to allow for quicker decisions by the Agency, while maintaining health and safety requirements. As such, this proposed action is not expected to cause any significant adverse economic impacts if implemented as proposed. This proposed action would only potentially affect Federal, State, or Territorial government agencies that can petition EPA for an emergency use authorization under FIFRA section 18. It would therefore have no direct impacts on local governments, small entities, pesticide producers or on government entities that may be registrants of pesticide products, and would have no direct impacts on any other sector of the economy.

The only significant impacts expected would be burden reductions to States and Federal agencies in the application process for emergency exemptions, and to EPA in the review process, as well as quicker responses to emergency conditions. As detailed in the economic analysis prepared for this proposed rule, based on predicted future applications affected by the proposed revisions, EPA estimates the annual combined savings for applicants and EPA of around $0.94 million, a little over $0.6 million from re-certification, and about $0.33 million from changing to the loss-based method of determining significant economic loss.

This action does not impose any new information collection burden that would require additional approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq . This proposed rule is expected to reduce the existing burden that is approved under OMB Control No. 2070-0032 (EPA ICR No. 596), which covers the information collection activities contained in the existing regulations at 40 CFR part 166, and under the pilot program announced April 23, 2003 (68 FR 20145). A copy of the OMB approved Information Collection Request (ICR) has been placed in the public docket for this rulemaking, and the Agency's estimated burden reduction is presented in the economic analysis that has been prepared for this proposed rule.

Under the PRA, “burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to an information collection request unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR, after appearing in the preamble of the final rule, are listed in 40 CFR part 9 and included on any related collection instrument (e.g., form or survey).

Submit any comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, along with your comments on the proposed rule. The Agency will consider any comments related to the information collection requirements contained in this proposed rule as it develops a final rule. Any changes to the burden estimate for the ICR will be effectuated with the final rule.

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq. , the Agency hereby certifies that this proposed rule will not have a significant adverse economic impact on a substantial number of small entities. This action will only directly impact State and Federal agencies, neither of which qualify as a small entity under the RFA. This proposed rule does not have any direct adverse impacts on small businesses, small non-profit organizations, or small local governments. Section 18 only applies to Federal and State governments.

Under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4), EPA has determined that this action does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and tribal governments, in the aggregate, or the private sector in any 1 year. This proposed rule only applies to Federal and State government agencies, the only entities that can petition the EPA under FIFRA section 18. As described in Unit IX.A., this proposed rule is expected to result in an overall reduction of existing costs for applicants and EPA of around $0.94 million. As such, this action will not impact local or tribal governments or the private sector, and will not significantly or uniquely affect small governments. Accordingly, this rule is not subject to the requirements of sections 202, 203, 204, and 205 of UMRA.

Pursuant to Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 1999), EPA has determined that this proposed rule does not have “federalism implications,” because it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in the Order. As indicated above, this proposed rule is expected to reduce burden on Federal and State government agencies that petition EPA under FIFRA section 18, and on EPA in processing the applications. Thus, Executive Order 13132 does not apply to this proposed rule. In the spirit of the Order, and consistent with EPA policy to promote communications between the Agency and State governments, EPA has specifically solicited comment from State officials.

As required by Executive Order 13175, entitled Consultation and Coordination with Indian Tribal Governments (65 FR 67249, November 6, 2000), EPA has determined that this proposed rule does not have tribal implications because it will not have any affect on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. As indicated above, this proposed rule only applies to State and Federal government agencies. FIFRA section 18 does not apply to tribal governments. Thus, Executive Order 13175 does not apply to this proposed rule.

This proposed rule is not subject to Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) because it is not designated as an “economically significant” regulatory action as defined by Executive Order 12866 (see Unit XI.A.), nor is it likely to have any significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997) does not apply to this proposed rule because this action is not designated as an “economically significant” regulatory action as defined by Executive Order 12866 (see Unit XI.A.), nor does it establish an environmental standard, or otherwise have a disproportionate effect on children.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, and sampling procedures) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not impose any technical standards that would require EPA to consider any voluntary consensus standards.

This proposed rule does not have an adverse impact on the environmental and health conditions in low-income and minority communities. Therefore, under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994), the Agency has not considered environmental justice-related issues.