Background

An interim rule revising the WIC food packages was published in the Federal Register on December 6, 2007 (72 FR 68966). The interim rule revisions largely reflected recommendations made by the IOM of the National Academies in its report, “WIC Food Packages: Time for a Change,” with certain cost containment and administrative modifications found necessary by the Department to ensure cost neutrality.

Based on cost constraints, the Department was not able to provide all women participants fruit and vegetable cash value vouchers at IOM's recommended amount. To be cost neutral, only fully breastfeeding women were provided the IOM recommended amount of $10.00 per month fruit and vegetable cash value vouchers; all other women participants were provided $8.00 per month fruit and vegetable cash value vouchers. This rule amends the interim rule to provide all WIC women participants with $10.00 per month fruit and vegetable cash value vouchers, consistent with IOM's recommendations. The funding for this increase is provided by the Fiscal Year 2010 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriation Act, Public Law 111-80, enacted on October 21, 2009.

The Office of Management and Budget designated this rule as not significant under Executive Order 12866; therefore, no OMB review is required.

The Food, Nutrition and Consumer Services has certified that this rule will not have a significant economic impact on a substantial number of small entities. The provisions of this rule are applicable to all State and local agencies, vendors and farmers and farmers' markets regardless of their size or the volume of WIC business they conduct.

This rule has been designated as not significant by the Office of Management and Budget; therefore, a Regulatory Impact Analysis (RIA) is not necessary.

This action amends the interim rule to provide all women WIC participants with $10.00 per month in cash value vouchers for fruits and vegetables as recommended by the Institute of Medicine. IOM's intent was to move WIC participants toward increased fruit and vegetable consumption.

The increase in the cash value vouchers for women participants will improve their ability to increase their consumption of fruits and vegetables. WIC authorized vendors will also realize increased sales by the implementation of this provision.

The provisions of this interim rule are not expected to increase significantly the administrative burden to the Department or to State agencies, nor will they affect overall program costs since the WIC Program is funded by an annual appropriation.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under Section 202 of the UMRA, FNS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, or tribal governments in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires FNS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

This interim rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Special Supplemental Nutrition Program for Women, Infants and Children (WIC) is listed in the Catalog of Federal Domestic Assistance under No. 10.557. For reasons set forth in the final rule at 7 CFR part 3015, Subpart V and related Notice (48 FR 29115, June 24, 1983), this Program is included in the scope of Executive Order 12372, that requires intergovernmental consultation with State and local officials.

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132.

Over the years FNS has received numerous requests from WIC State and local agencies to modify the current food packages to permit greater substitution of foods or introduction of additional foods. These requests have come from formal and informal discussions with State and local officials on an ongoing basis regarding program implementation and food package policy issues, and from written proposals and comments submitted to FNS by WIC State and local agencies to allow modifications and/or substitutions to the WIC food packages. Requests for revisions to the WIC food packages have also been received from Congress, participants, and organizations with interests in the welfare of WIC participants. FNS commissioned the National Academies' IOM to independently review the WIC Food Packages. IOM solicited public comment on revisions to the WIC food packages, via 3 public hearings, letters and e-mail, throughout its 22-month study period. IOM published its reports of these recommendations on April 27, 2005: “WIC Food Packages: Time for a Change.” Based largely on the recommendations from this report, with certain cost containment and administrative modifications found necessary by the Department to ensure cost neutrality, an interim rule revising the WIC food packages was published in the Federal Register on December 6, 2007 (72 FR 68966).

Based on cost constraints, the Department was not able to provide all women participants fruit and vegetable cash value vouchers at IOM's recommended amount in the December 6, 2007 interim rule. To be cost neutral, only fully breastfeeding women were provided the IOM recommended amount of $10.00 per month fruit and vegetable cash value vouchers; all other women participants were provided $8.00 per month fruit and vegetable cash value vouchers.

This rule amends the December 6, 2007 Interim Rule to provide all WIC women participants with $10.00 per month fruit and vegetable cash value vouchers, consistent with IOM's recommendations.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This rule is not intended to have retroactive effect unless specified in the DATES section of this preamble. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.

FNS has reviewed this rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis”, and 1512-1, “Regulatory Decision Making Requirements.” FNS has determined that this interim rule's intent and provisions will not adversely affect access to WIC services by eligible persons. All data available to FNS indicate that protected individuals have the same opportunity to participate in WIC as non-protected individuals. FNS specifically prohibits State and local agencies operating the WIC Program from discrimination based on race, color, national origin, gender, age, and disability. Discrimination in any aspect of program administration is prohibited by Department of Agriculture regulations on non-discrimination (7 CFR Parts 15, 15a, and 15b), the Age Discrimination Act of 1975 (Pub. L. 94-135), the Rehabilitation Act of 1973 (Pub. L. 93-112, section 504), and title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d). Enforcement action may be brought under any applicable Federal law. Title VI complaints shall be processed in accordance with 7 CFR Part 15.

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35; see 5 CFR part 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.

The Food and Nutrition Service is committed to complying with the E-Government Act, 2002 to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

As discussed above, the Fiscal Year 2010 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act (Pub. L. 111-80), enacted on October 21, 2009, provided the funding for this increase. Therefore, women should be afforded the immediate opportunity to benefit from increased access to fruits and vegetables. As the funding increases fruit and vegetable cash value vouchers to the amount recommended by the IOM to improve the nutrition of women participants, the Department finds that delaying the effective date of this rule would be contrary to the public interest. As such, it has been determined, in accordance with 5 U.S.C. 553(b)(B), that prior notice and comment would be unnecessary, and that good cause exists for making this rule effective without first publishing a proposed rule. However, the Department will consider all comments submitted in response to this interim rule, in addition to the comments received on the interim WIC Food Package rule published on December 6, 2007 (72 FR 68966). The comment period for both rules will end on February 1, 2010.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on July 15, 2009 (74 FR 34272). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 8 products of U.S. registry. We also estimate that it will take about 69 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $193,603 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these parts. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $1,592,984, or $199,123 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify this AD:

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

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

3. 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 AD and placed it in the AD docket.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain McDonnell Douglas Corporation Model MD-11 and MD-11F airplanes. That NPRM was published in the Federal Register on August 19, 2009 (74 FR 41813). That NPRM proposed to require a one-time inspection to determine if wires touch the upper surface of the center upper auxiliary fuel tank and marking the location, if necessary; a one-time inspection of all wire bundles above the center upper auxiliary fuel tank for splices and damage; a one-time inspection for damage to the fuel vapor barrier seal and upper surface of the center upper auxiliary fuel tank; and corrective actions, if necessary. That NPRM also proposed to require installation of nonmetallic barrier/shield sleeving, new clamps, new attaching hardware, and a new extruded channel.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the two commenters.

FedEx requests that Boeing Information Notice MD11-28-126 IN 02, dated July 1, 2009, be incorporated into the final rule. FedEx states that without including the information notice, FedEx will not be able to comply with the AD unless an Alternative Method of Compliance (AMOC) is granted. We partially agree. Boeing issued Information Notice MD11-28-126 IN 02 to clarify the group applicability. The information notice is not approved by the FAA; therefore, we do not require the information notice for accomplishment of work and it is not incorporated into the requirements of this final rule. Note 1 has been added to this AD to explain that the information notice provides clarification of the airplane groups identified in the service bulletin.

KLM requests that we extend the compliance time so that it will fall during regularly scheduled maintenance periods. KLM states that the 60-month compliance time specified in the NPRM does not take into consideration the impact on operators of accessing the area above the center upper auxiliary fuel tank, which is only opened during 72-month intervals. KLM states the work-hours and costs specified in the NPRM are unrealistic because the inspection is not done in the 72-month period.

We do not agree with the commenter's request to extend the compliance time. We have determined that the compliance time, as proposed, represents the maximum interval of time allowable for the affected airplanes to continue to safely operate before the modification is done. Since maintenance schedules vary among operators, there would be no assurance that the airplane would be modified during that maximum interval. However, operators may request an AMOC in accordance with the procedures specified in paragraph (j) of this AD. We have not changed the AD in this regard.

We have revised this AD to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We also determined that these changes will not increase the economic burden on any operator or increase the scope of the AD.

We estimate that this AD affects 111 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

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

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

You can find our regulatory evaluation and the estimated costs of compliance in the AD Docket.

The FAA proposed to amend 14 CFR part 39 by superseding AD 2008-19-05, Amendment 39-15672 (73 FR 53105, September 15, 2008), with a proposed AD. The proposed AD applies to Lycoming Engines (formerly Textron Lycoming) models 320, 360, and 540 series, “Parallel Valve” reciprocating engines, with certain Engine Components, Inc. (ECi) cylinder assemblies, part number (P/N) AEL65102 series “Titan,” installed. We published the proposed AD in the Federal Register on July 30, 2009 (74 FR 37955). That action proposed to require initial and repetitive visual inspections and compression tests to detect cracks at the head-to-barrel interface, replacement of cylinder assemblies found cracked, and replacement of certain cylinder assemblies at new, reduced times-in-service, and for an expanded population of cylinder assemblies.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments received.

Two commenters state that proposed AD paragraphs (m) and (n) are confusing and contradictory. Paragraph (m) allows repair or replacement of cylinders with leakage provided that the cylinder is not cracked, but paragraph (n) prohibits removed cylinders from being re-installed.

We agree. We changed paragraph (m) to state “For Group ‘A’ cylinder assemblies only, repair or replace the engine cylinder assembly before further flight if the cause of the low gauge reading in paragraph (k) of this AD is from leaking intake or exhaust valves, or from leaking piston rings.” We also changed paragraph (n) to state, “After the effective date of this AD, do not install any Group ‘B’ ECi cylinder assembly, P/N AEL65102, onto any engine and do not attempt to repair or reuse Group ‘B’ cylinder assemblies.”

We have carefully reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We estimate that this AD will affect about 18,000 ECi cylinder assemblies installed in aircraft of U.S. registry. The visual inspection and compression tests will take about 4 work-hours for each engine. An individual cylinder replacement will require $1,100 for parts and 6 work-hours. Lycoming engines with a set of 4 ECi cylinders will require 12 work-hours for the cylinder replacement. Lycoming engines with a set of 6 ECi cylinders will require 16 work-hours for the cylinder replacement. We estimate 18 percent of the affected population of cylinders will be replaced. We estimate the total cost of the AD to U.S. operators to be $10,172,000. Our estimate is exclusive of any possible warranty coverage.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a summary of the costs to comply with this AD and placed it in the AD Docket. You may get a copy of this summary at the address listed under ADDRESSES.

On November 30, 2009 (74 FR 62481), we published a final rule AD, FR Doc. E9-28236, in the Federal Register. That AD applies to GE CF34-1A, CF34-3A, and CF34-3B series turbofan engines. We are delaying the effective date to allow us a sufficient amount of time to make corrections to the compliance text of the final rule. Since AD 2009-24-11 was issued, we discovered that when we recodified the compliance section as part of our response to a comment received on the proposed AD, we inadvertently left out of the AD certain fan blade effectivity information from paragraphs (f) and (g) and (j). Paragraphs (f) and (g) are missing information on fan blades, P/Ns 6018T30P14 or 4923T56G08, that have any fan blade S/Ns listed in Appendix A of General Electric Aircraft Engines (GEAE) Service Bulletin (SB) No. CF34-AL S/B 72-0245, Revision 01, dated July 30, 2008. Also, paragraph (j) is missing information on fan blades, P/N 6018T30P14 or P/N 4923T56G08, that have any fan blade S/Ns listed in Appendix A of GEAE SB No. CF34-BJ S/B 72-0229, Revision 01, dated July 30, 2008.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0113, dated May 27, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Mandatory Service Bulletin A380-57-8016, dated May 11, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

There are no products of this type currently registered in the United States. However, this rule is necessary to ensure that the described unsafe condition is addressed if any of these products are placed on the U.S. Register in the future.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the AD.

Since there are currently no domestic operators of this product, notice and opportunity for public comment before issuing this AD are unnecessary.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1211; Directorate Identifier 2009-NM-121-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify this AD:

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

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

3. 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 AD and placed it in the AD docket.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on May 5, 2009 (74 FR 20659). That NPRM proposed to correct an unsafe condition for the specified products. The mandatory continuing airworthiness information (MCAI) 2008-10-04 states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received from Embraer, the manufacturer.

Embraer supports the AD on Model ERJ 190 airplanes due to the system design characteristics of that model. Embraer states that a bird strike could lead to hydraulic fluid leakage associated with damage to the electrical generator power cables, a situation that would be favorable to fire in a section of the airplane that is not equipped with fire detection or suppression systems.

Embraer does not agree that an unsafe condition exists for Model ERJ 170 airplanes. Embraer states that, unlike Model ERJ 190 airplanes, Model ERJ 170 airplanes do not have hydraulic system or electrical generator power cables passing through the pylon forward position, where the aluminum fasteners were installed. The fuel system is installed behind two reinforced structural frames. Embraer states that in the event of a bird strike, the fuel system would unlikely be reached by any part of a bird with sufficient energy to cause any damage. Embraer states that this situation is extremely improbable.

From this comment we infer that Embraer is requesting that we remove Model ERJ 170 airplanes from the applicability of the NPRM. We do not agree. The subject unsafe condition exists for the affected Model ERJ 170 airplanes. We consulted with the issuer of the MCAI, Agência Nacional de Aviação Civil (ANAC). ANAC states that the structure in this region does not have sufficient residual strength for continued safe flight in case of bird impact. We concur with ANAC that an unsafe condition exists for the affected ERJ 170 aircraft models due to the aluminum fasteners installed in the subject area. The purpose of this AD is to ensure that the affected structure has sufficient residual strength for continued safe flight and landing of the airplane following a bird strike, which the manufacturer has not demonstrated. We have not changed the AD in this regard. However, we have clarified the unsafe condition for the Model ERJ 170 airplanes in the Summary, Discussion, and paragraph (e) of this AD.

Embraer requests that we remove Model ERJ 190-ECJ airplanes from the applicability of the NPRM because the model is not included in the effectivity of Embraer Service Bulletin 190-54-0008, dated December 21, 2007.

We agree to remove Model ERJ 190-ECJ from the applicability of this AD. We have confirmed with the manufacturer that this model does not have aluminum fasteners installed in the subject location. Therefore, we have removed that model from paragraph (c) of this AD.

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously. We determined that this change will not increase the economic burden on any operator or increase the scope of the AD.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have required different actions in this AD from those in the MCAI in order to follow our FAA policies. Any such differences are highlighted in a NOTE within the AD.

We estimate that this AD will affect 20 products of U.S. registry. We also estimate that it will take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of this AD to the U.S. operators to be $3,200, or $160 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify this AD:

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

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

3. 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 AD and placed it in the AD docket.

You may examine the AD docket on the Internet at http://www.regulations.gov; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

On April 29, 2008, we issued AD 2008-10-09, Amendment 39-15515 (73 FR 25970, May 8, 2008). That AD applied to all Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. That AD required revising the FAA-approved maintenance program to incorporate new airworthiness limitations (AWLs) for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. That AD also required an initial inspection to phase in certain repetitive AWL inspections, and repair if necessary. That AD resulted from a design review of the fuel tank system. The actions specified in that AD are intended to prevent the potential for ignition sources inside fuel tanks caused by latent failures, alterations, repairs, or maintenance actions, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

Critical design configuration control limitations (CDCCLs) are limitation requirements to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection.

Since we issued that AD, we have determined that it is necessary to clarify the AD's intended effect on spare and on-airplane fuel tank system components, regarding the use of maintenance manuals and instructions for continued airworthiness.

Section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)) specifies the following:

AD 2008-10-09 cites Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, Revision March 2008. Since we issued that AD, Boeing has revised the referenced service information. We have reviewed Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, Revision May 2009 (hereafter referred to as “Revision May 2009 of Document D6-38278-CMR”). Among other actions, the revised service information clarifies certain task descriptions and adds some new AWLs for certain airplanes.

The unsafe condition described previously is likely to exist or develop on other airplanes of the same type design. For this reason, we are issuing this AD to revise AD 2008-10-09. This new AD retains the requirements of the existing AD, and adds a new note to clarify the intended effect of the AD on spare and on-airplane fuel tank system components.

AD 2008-10-09 allowed the use of alternative inspections, inspection intervals, or CDCCLs if they are part of a later revision of Revision March 2008 of Document D6-38278-CMR. AD 2008-10-09 also allowed the use of later revisions of Revision March 2008 of Document D6-38278-CMR. Those provisions have been removed from this AD. Allowing the use of a “later approved” or “later FAA-approved revisions” of specific service documents violates Office of the Federal Register regulations for approving materials that are incorporated by reference. Affected operators, however, may request approval to use a later revision or an alternative inspection, inspection interval, or CDCCL that is part of a later revision of the referenced service document, as an alternative method of compliance, under the provisions of paragraph (k) of this AD.

There are about 2,337 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs, at an average labor rate of $80 per work hour, for U.S. operators to comply with this AD.

This revision merely clarifies the intended effect on spare and on-airplane fuel tank system components, and makes no substantive change to the AD's requirements. For this reason, it is found that notice and opportunity for prior public comment for this action are unnecessary, and good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments before it becomes effective. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-1210; Directorate Identifier 2009-NM-165-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify that the 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 AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA issued a second supplemental notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2006-16-03, Amendment 39-14703 (71 FR 43962, August 3, 2006). The existing AD applies to certain Model DC-10-10, DC-10-10F, DC-10-15, DC-10-30, DC-10-30F (KC-10A and KDC-10), DC-10-40, and DC-10-40F airplanes. The existing AD requires installing or replacing with improved parts, as applicable, the bonding straps between the metallic frame of the fillet and the wing leading edge ribs, on both the left and right sides of the airplane. That second supplemental NPRM was published in the Federal Register on September 1, 2009 (74 FR 45135). That second supplemental NPRM proposed to add a requirement to reposition or replace bonding straps for certain airplanes, and for certain airplanes, a bonding-resistance check and an inspection to determine correct installation of certain bonding straps, and applicable corrective actions. The second supplemental NPRM also proposed to revise the applicability by adding and removing certain airplanes.

We provided the public the opportunity to participate in the development of this AD. We have considered the comments from the sole commenter, FedEx, that have been received on the second supplemental NPRM.

FedEx requests credit for the actions previously accomplished. FedEx notes that under its alternative method of compliance (AMOC) previously approved by the FAA it has already accomplished resistance checks required by paragraphs (i)(2) and (j)(2) of the second supplemental NPRM on its airplanes. FedEx notes that they performed resistance checks in accordance with the AMOC previously granted by the FAA. FedEx states that it will accomplish a resistance check of any bonding straps replaced.

FedEx also requests credit for correctly installing the braided bonding straps mentioned in paragraph (j)(1) of the second supplemental NPRM, which it accomplished in accordance with the AMOC previously granted.

We agree to provide credit for accomplishing the actions required by paragraphs (i)(2), (j)(1), and (j)(2) of this final rule for the reasons that the commenter provided. Paragraph (l)(3) of the second supplemental NPRM already states that AMOCs approved previously in accordance with AD 2006-16-03 are approved as AMOCs for the corresponding provisions of this AD. Therefore, no change to this final rule is necessary.

FedEx requests that we change the identification of airplanes subject to paragraph (h) of the second supplemental NPRM. FedEx notes that paragraph (h) of the second supplemental NPRM specifies “airplanes with fuselage numbers not identified in Table 2 of this AD except for airplanes identified in paragraph (i) or (j) of this AD.” FedEx notes that its fuselage 317 does not appear in the effectivity of either Boeing Service Bulletin DC10-53-111, Revision 6, dated March 3, 2009; or Boeing Service Bulletin DC10-53-109, Revision 7, dated March 3, 2009 (the airplane groups identified in those service bulletins are referenced in paragraphs (i) and (j) of this AD). FedEx assumes that paragraph (h) was added to address this airplane and other airplanes that did not appear in either service bulletin. FedEx notes that the effectivity issues as they pertained to its fleet were sorted out in its AMOC request.

We disagree that it is necessary to address fuselage number 317 and the other airplane fuselage numbers in this final rule because the effectivity has been corrected in the effectivity sections of the Boeing service bulletins listed in Table 1 of this AD and/or previously approved AMOCs. We have not changed the AD in regard to this issue.

FedEx requests that we remove the phrase “and reposition two bonding straps” from paragraph (h) of the second supplemental NPRM. FedEx states that if airplanes have not been modified to comply with the intent of the applicable service bulletin referenced in paragraph (h) of the second supplemental NPRM, then they would not have any bonding straps that require only repositioning.

We agree to remove the phrase “and reposition two bonding straps” from paragraph (h) of the second supplemental NPRM in this final rule for the reason stated by the commenter.

FedEx requests that we clarify paragraph (j)(1) of the second supplemental NPRM to help operators determine the correct braided bonding strap. FedEx suggests changing paragraph (j)(1) to state: “Do a general visual inspection to verify correct installation of two braided bonding straps (one LH wing and one RH wing) as shown [in] Boeing Service Bulletin DC-10-53-111, Revision 6, Figure 3, Sheet 7 of 9.”

We agree that this change provides additional beneficial information to operators. We have revised paragraph (j)(1) of the final AD accordingly.

FedEx requests that we note that the effectivity sections in the service bulletins identified in Table 2 of the second supplemental NPRM have 25 fuselage numbers that appear in both service bulletins. FedEx states that we may wish to address these fuselage numbers in some manner in the proposed rule.

We agree that clarification may be necessary. Boeing has corrected Table 1 in the effectivity sections of the service bulletins referenced in Table 2 of this AD. We have not changed this AD in this regard.

We have carefully reviewed the available data, including the comments that have been received, and determined that air safety and the public interest require adopting the AD with the changes described previously. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

There are about 457 airplanes of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

For the reasons discussed above, I certify that this AD:

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this AD and placed it in the AD docket. See the ADDRESSES section for a location to examine the regulatory evaluation.

The FAA assumed responsibility for the Air Traffic Control Tower at Myrtle Beach AFB from the United States Air Force on December 27, 1992. On February 12, 1997, a final rule published in the Federal Register (62 FR 6698) established Class C airspace, revoked Class D airspace, and changed the airport name to Myrtle Beach International Airport, Myrtle Beach, SC. However, the existing Class E airspace area for Myrtle Beach, SC, was not amended to reflect the airport name change. This action will make that change. There are no changes to the boundaries or altitudes within this airspace area. Designations for Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in FAA Order 7400.9T, signed August 27, 2009, and effective September 15, 2009, which is incorporated by reference in 14 CFR part 71.1. The Class E designations listed in this document will be published subsequently in the Order.

This action amends Title 14, Code of Federal Regulations (14 CFR) part 71 by denoting the renaming of the airport from Myrtle Beach AFB, to Myrtle Beach International Airport, Myrtle Beach, SC. This action also adjusts the geographic coordinates of Myrtle Beach International Airport and Grand Strand Airport to coincide with the FAA's National Aeronautical Charting Office. There are no changes to the boundaries or altitudes within this airspace area.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation in within the scope of that authority as it amends the airspace description for Myrtle Beach, SC, Class E airspace.

Accordingly, since this action merely involves a change in the legal description of the Myrtle Beach, SC, Class E airspace area, and does not involve a change in the dimensions or operating requirements of that airspace, notice and public comment under 5 U.S.C. 553(b) are unnecessary.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, section 106, describes the authority of the FAA Administrator, including the authority to issue, rescind, and revise regulations. Subtitle VII, Aviation Programs, describes, in more detail, the scope of the agency's authority.

This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, chapter 401, section 40103(b), which allows the Administrator to regulate the use of the navigable airspace necessary to ensure the safety of aircraft and the efficient use of airspace. Moreover, subtitle VII, part A, subpart III, chapter 447, section 44701(c) authorizes the Administrator to regulate air commerce in a way that helps to reduce or eliminate the possibility or recurrence of accidents in air transportation. This change is within the scope of our authority and is a reasonable and necessary exercise of our statutory obligations.

Luke Air Force Base (Luke) is home to the 56th Fighter Wing, the United States Air Force's (USAF's) largest fighter wing. Since 1941, Luke has trained pilots and other aircrew members for America's frontline fighter aircraft. Today, over 200 F-16s conduct more than 201,000 annual operations, and most of these operations are for student training.

Situated beneath the Phoenix Class B Airspace Area, the Luke terminal area consists of Class D airspace. The Phoenix Deer Valley Airport (DVT), (the nation's third busiest general aviation (GA) airport in 2004 and second busiest in 2008), is within 5 nautical miles of the Luke terminal airspace. There are two flight schools and two fixed base operators located at DVT, and the flight schools conduct training in the vicinity of Luke.

Alert Area A-231 is located adjacent to, and west of, Luke. Pilots conduct a large volume of jet training operations in Alert Area A-231. The USAF requires military pilots to establish communication with the Luke Radar Approach Control (RAPCON) and to be alert when flying in Alert Area A-231. Pilots of civil aircraft are not required to establish communication with the Luke RAPCON during transit. The USAF Flight Safety Office at Luke points out that reported NMACs are approximately 3 per quarter of a year, and each occurrence affects multiple aircraft in the same formation. The significant number of NMACs between Luke F-16s and VFR aircraft indicates VFR pilots are not avoiding this area of concentrated student jet transition training.

Operational problems affecting safety in the Luke terminal airspace area are acute and include complex and voluminous traffic, aircraft congestion, terrain that constrains aircraft operations, and the uncontrolled mix of instrument flight rules (IFR) and VFR traffic. Luke RAPCON traffic counts show a mix of military F-16 aircraft operations, GA traffic operations, and some civil air carrier operations. F-16 aircraft operate at significantly higher airspeeds than civil GA traffic, normally 200+ knots faster on arrival and 250+ knots faster on departure. This difference in airspeed creates extreme closure rates between converging F-16 and GA aircraft. In addition, complexity is increased because GA pilots often do not detect all the aircraft in a military flight formation. Student pilot training in the F-16 aircraft, combined with student flight training in GA aircraft, also increases the potential for a near midair collision.

The average number of conflicts between controlled and uncontrolled aircraft has increased since 2000. In the five year period from 2000 to 2005, there were 76 NMACs reported. In the two year period from 2006 to 2008, 58 NMACs were reported. Aircraft track data modeling tools indicate a significant volume of GA traffic crossing Luke's primary instrument final approach course. This data indicates a direct correlation between NMAC events and the proximity/flight patterns of GA traffic operating out of DVT. Data track analysis also shows GA traffic from Goodyear Airport (GYR) and Glendale Airport (GEU) crossing the final approach course and departure path for Runway 21 at Luke. For additional information regarding the Luke data track analysis go to: http://www.faa.gov/about/office_org/headquarters_offices/ato/service_units/systemops/aaim/organizations/airspace_rules/.

There are a number of prominent landmarks the GA community uses when operating VFR. Two of these landmarks are the Glendale Arrowhead Mall and the Peoria Power Plant/Substation, which are close to the Luke Runway 21 final approach course. Luke F-16s use the Peoria Power plant as a visual aid for turning to the final approach course when conducting formation landings. Also, many of the flight schools use the Proving Grounds, located approximately 5 miles north of the Luke Auxiliary Field, for conducting practice aircraft operations. Aircraft operations in the vicinity of the Proving Grounds can conflict with the radar pattern for the Luke Auxiliary Field. Use of these prominent VFR landmarks by GA traffic and others results in conflicts with the IFR and VFR patterns of Luke F-16s.

Over the years, the USAF has been educating the local aviation community about serious operational problems, including air traffic congestion, and the uncontrolled mix of IFR and VFR traffic, which impact safety around Luke. At first, the USAF addressed these problems by making pilots at local airports and flight schools aware of the issue and urging aircraft operators to use various traffic services that could make operations in the area safer. Although the ongoing educational efforts had a temporary impact on the number of NMACs and led to a slight reduction of near misses, there continues to be an average of one reported NMAC per month. The USAF finally concluded that safety problems at Luke were so acute they sought a rulemaking solution.

Prior to filing a petition with the FAA, the USAF provided its rulemaking petition to interested airspace user groups, elected officials, and others. The USAF submitted its petition for rulemaking to the FAA on July 21, 2006, along with the comments it received and USAF responses. The USAF petitioned the FAA to establish a SATR in the vicinity of Luke which would require pilots, among other things, to obtain an air traffic clearance to operate in the area (FAA-2006-25459-1). The USAF believed the growing amount of VFR traffic combined with a high volume of military air traffic, as well as the number of NMACs occurring in the Phoenix West Valley, fully justified such an action. Local mayors, Members of Congress, and U.S. Senators, as well as many aviation organizations, such as Pan Am International Flight Academy, Westwind School of Aeronautics, Oxford Airline Training Center, Airline Training Center Arizona, Inc., and WESTMARC (a regional coalition of business, government, education and community organizations), endorsed the petition and strongly supported the action.

The Aircraft Owners and Pilots Association (AOPA) and local pilot associations, including the Deer Valley Pilots Association (DVPA) and the Arizona Pilots Association (APA), responded to the USAF by opposing any action that would require air traffic clearances to operate in the area. The associations maintained the near midair problem could be solved through more education and more robust charting notations about avoiding the Luke area during its peak operational hours.

After analyzing the petition and the initial response of the aviation community it generated, the FAA determined that proposing a SATR in the area had the potential to significantly reduce safety problems in the vicinity of Luke. However, instead of requiring an air traffic clearance to operate in the area, the FAA assessed that a simple two-way radio communication requirement for pilots operating around Luke would reduce the NMAC risk.

On September 26, 2008, a notice of proposed rulemaking (NPRM) was published (73 FR 55788) which proposed establishment of a Special Air Traffic Rule, in the vicinity of Luke Air Force Base (AFB), AZ. A technical correction was issued (73 FR 60996) October 15, 2008, to correct the docket number and extend the comment period. The FAA proposed that operators conducting VFR operations establish two-way radio communication with the Luke RAPCON prior to entering the Luke SATR area, and maintain communication while operating in the area, at certain times, and otherwise by NOTAM. The FAA sought to address reported NMACs in the area around Luke and to reduce the potential for NMACs. Interested parties were invited to participate in the rulemaking effort by submitting written comments on the proposal, and the comment period closed December 15, 2008. An analysis of the comments and the FAA's response are in the “Discussion of the Final Rule” section.

This action establishes a Special Air Traffic Rule in the vicinity of Luke mandating a two-way communication requirement for VFR operators effective upon publication of the Phoenix (PHX) Terminal Area Chart and the PHX VFR Sectional Aeronautical Charts scheduled for May 6, 2010. The FAA has determined that additional safeguards for flight operations are necessary in the vicinity of Luke and this rule is necessary to reduce the potential for midair collisions between military and civilian pilots operating under VFR.

The final rule and the proposed rule are similar except the FAA will move the east boundary of the Luke Terminal area approximately one mile to the west in the vicinity of the Arrowhead Mall to accommodate straight in arrivals for runway 19 at GEU. The FAA is clarifying that only operators of aircraft not equipped with an operational radio may make advance transit arrangements with the air traffic control (ATC) facility at Luke AFB, which is consistent with the NPRM. When discussing the ATIS, and in section 93.176 of this final rule, the FAA has substituted the word “broadcast” for “advertised.” When the Luke NPRM was published (73 FR 55792, September 26, 2008) the FAA proposed to codify it as subpart N to part 93. Subsequently, another final rule was published (73 FR 60544, October 10, 2008) that used Subpart N. Therefore, the Luke subpart is now designated as Subpart O to part 93.

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 93 to establish a SATR in the vicinity of Luke that requires aircraft operating under VFR to establish two-way radio communication with the Luke RAPCON prior to entering the SATR area and maintain communication while operating in the area.

A direct communication requirement is a cost-effective solution and does not impose a significant burden on aircraft operating in, or transiting, the airspace around Luke. It allows the GA community unrestricted access to the area for student pilots enrolled at GA flight schools in the vicinity of Luke. The alternative is to continue to rely on the Air Force's educational and awareness program, which has not resulted in a significant reduction in the number of conflicts and NMACs.

Currently the Luke RAPCON provides radar advisory services to GA aircraft on request, but safety can be significantly heightened with the full participation of all aircraft operating within the vicinity of the Luke terminal area in a communication requirement. A communication requirement provides an additional safety margin and increases the protection of both military and GA operations by providing Luke controllers advance notice of VFR aircraft transiting or operating within the designated area. When pilots operating VFR take advantage of the available advisory services, they are issued timely traffic advisories and assistance while in the area.

Luke will provide continuous information on the status of the SATR for flight crews both in flight and on the ground via landline and ATIS. This rule allows pilots flying VFR to access the active SATR area once communication is established with Luke RAPCON. A clearance is not required. The acceptance of flight following services by VFR aircraft is recommended, but not required. Aircraft not equipped with an operational radio can make alternate arrangements by contacting the ATC facility at Luke AFB in advance of the proposed operation.

The FAA received 95 comments in response to the NPRM. Of the 95 comments received, 78 did not identify any specific issue, but were critical of the NPRM in general. Some commenters had concerns regarding additional airspace complexity, while others felt the SATR created proficiency-training issues and added frequency change requirements. Seventeen commenters, including Members of Congress and local mayors support the proposal as a necessary tool to reduce the potential for NMACs. Below is a more detailed discussion of the rule broken down into issue areas addressed by commenters. It reflects the comments we received and the FAA's response.

The Aircraft Owners and Pilot's Association (AOPA) questioned the currency of the USAF NMAC information. AOPA asserted that the “USAF data was obsolete and stale, and was measured before industry efforts to alleviate the problem.”

The FAA does not agree. Between 2000 and 2005 the aviation community and the USAF were working to alleviate the NMAC problems in the vicinity of Luke and there were 76 reported NMACs. Of these NMACs, 84% of the documented occurrences were between F-16 and GA aircraft and none of the GA aircraft were in communication with the Luke RAPCON. In December 2008, the FAA and the USAF initiated a review of 58 NMAC reports on file at the Luke safety office which occurred during 2006 to 2008. The review disclosed 10 NMACs in 2006, 25 in 2007, and 23 in 2008; 90%, 76% and 86% respectively were between F-16 and GA aircraft. Because of the significant number of NMACs and the high concentration of mixed high performance military and GA aircraft in the same area, the FAA continues to have a safety concern.

AOPA, pilots associations, and others continue to oppose a rulemaking solution and maintain that education, more working groups and additional study should be used. Commenters suggested the FAA form working groups comprised of representatives from government as well as aviation communities, to study problems that the proposed SATR is expected to solve. Most of these commenters believe this group should be actively involved in the development of workable solutions. One aviation organization thought the user forums would pay specific attention to user comments in developing the SATR, better serving the requirements and safety needs of all airspace users.

The FAA does not agree. The FAA reviewed and considered all comments and recommendations in the preparation of the NPRM and this final rule. While developing the proposal, the FAA specifically considered input from AOPA, and other local pilot associations, such as the DVPA and the APA. These organizations stressed pilot education, and more robust charting, with no clearance or flight plan requirements. The FAA agreed that a clearance requirement was too restrictive, and determined that a communication requirement would provide the adequate level of additional safety to increase protection of both military and GA aircraft.

The FAA determined that reliance on nonrulemaking alternatives to provide an acceptable level of safety is no longer appropriate. The FAA does not agree that additional education, outreach, working groups and more robust charting would provide an adequate level of additional safety. As discussed in the NPRM and the background section of this final rule, the USAF has conducted education and outreach activities with the affected aviation users over the years. In the last three years, the USAF has held numerous meetings in the Phoenix Valley informing the public of its growing safety concerns. These concerns center around potential conflicts between military and GA VFR traffic transiting the Luke area and conflicts between aircraft turning on final approach to Runway 21. As discussed previously, the FAA assessed that a rulemaking solution was required to address the number of NMACs, the high volume of military and GA activity in the area, and to reduce the NMAC risk.

The FAA received comments addressing the Luke SATR area. AOPA and the Aviation Safety Advisory Group of Arizona stated that the Luke SATR closely resembles Class C airspace communication requirements for VFR aircraft entry, but may not meet the established criteria to create Class C airspace. Others stated that the airspace is nonstandard or a new category of airspace. One commenter stated that the FAA was creating, in effect, sterile or restricted airspace.

The FAA does not agree. Luke does not meet the enplaned or instrument approach requirements for Class C airspace. The only similarity between the SATR and Class C airspace is the requirement for operators to establish two-way radio contact with ATC prior to entering the area and to maintain contact while in the area. The SATR offers flight following services to pilots on a strictly voluntary basis. Conversely, Class C services include among other things, separation, traffic advisories and safety alerts between IFR and VFR aircraft, and mandatory traffic advisories and safety alerts between VFR aircraft. Class C services are required for all aircraft operating within Class C airspace. The NPRM did not propose to establish, and this final rule does not establish, Class C airspace at Luke or within the SATR area.

The SATR does not define a new category of airspace, it is a procedural requirement for the management of aircraft by ATC. The Luke SATR requires direct communication with Luke RAPCON before entry and while operating in the designated area. The designated area and procedures will be contained in 14 CFR part 93 which prescribes special air traffic rules necessary for the safe and efficient management of air traffic. The SATR area is in no way similar to restricted airspace as defined in 14 CFR part 73. Restricted airspace is established to confine or segregate activities considered hazardous to nonparticipating aircraft, and within which flight is not prohibited, but is subject to restriction. The SATR is not sterile nor does it prohibit or limit aircraft access, so long as the aircraft operator complies with simple communications requirements of this rule. It was developed to enhance safety and awareness within an area where high volumes of military and GA air traffic exist. Both the NPRM and the final rule continue to allow GA access to the SATR area and the FAA neither proposed, nor implemented, restricted or sterile airspace.

AOPA, the APA, and other commenters stated the proposed SATR would derogate rather than improve safety. Specific concerns were pilots concentrating on their instruments and placing too much reliance upon ATC rather than “see and avoid,” and the compression of air traffic into narrow corridors. Commenters claimed that compression may increase the impact of aircraft noise on underlying communities and noise sensitive areas. Commenters stated that the SATR area design is too “chopped up” with the floor varying in altitudes across different sub-areas, and at times, increased “funneling” of aircraft into small vertical corridors at lower, and less safe, altitudes over populated areas and terrain.

The FAA does not agree. Direct and continuous communication requirements for aircraft operating in the vicinity of the Luke terminal airspace area would reduce the number of conflicts and the NMAC potential. Continuous communication provides controllers with the ability to exchange timely and accurate aircraft position information for both military and civil pilots operating in the area thus enhancing the pilots' see and avoid capability.

The SATR area uses prominent geographical landmarks to define the separate sub-areas that comprise the whole configuration. These sub-area boundaries are depicted on both the PHX Terminal Area Chart and the VFR Sectional Aeronautical Chart to assist the pilot with basic navigation. A uniform floor was considered and rejected because it would have required a larger area than was needed to protect aircraft arriving and departing Luke.

Regarding perceived issues of compression or “funneling” of air traffic, pilots have two alternatives. First, pilots may participate in SATR services and thus not be limited to flying below the base of each area. Second, a pilot may deviate 2,000 feet horizontally from the obstacle or populated area. FAA Advisory Circular (AC) 91-36D, Visual Flight Rules (VFR) Flight Near Noise-Sensitive Areas, recommends flights remain above 2,000 feet MSL, but the AC provisions do not apply when they conflict with regulations, ATC instructions, or when a pilot believes operating below 2,000 feet is necessary for the safety of the flight. The SATR area does not require a clearance and was not conceived or designed to force aircraft into circumnavigating the area but pilots can circumnavigate the area if necessary. The area is not restrictive or prohibitive and does not force aircraft into an unsafe operating mode. Pilots who choose not to contact the Luke RAPCON and avoid the SATR area do so voluntarily.

The FAA received comments suggesting changes to the boundaries, floors and ceilings of the Luke SATR. One commenter stated that the northeast corner of the proposed SATR area is likely to cause unintentional incursions by aircraft executing a straight-in approach to Runway 19 at GEU. These approaches typically start over the Arrowhead Mall which is very close to the northeast corner of the proposed SATR area.

The FAA shares this concern and asked the USAF to reevaluate the proposed boundary in the vicinity of the Arrowhead Mall. The USAF and the FAA determined that relocating the boundary would not impact the final approach path to runway 21 at Luke. In this final rule the FAA has moved the SATR boundary approximately 1 mile west of the Arrowhead Mall to protect the straight-in approach to runway 19 at GEU. The FAA will not move the boundary 2 miles to the west, as suggested by the comment, because the airspace is necessary to protect the final approach path to runway 21.

Another commenter suggested eliminating the proposed SATR area and expanding the airport traffic area and control zone to the northwest by 5 miles. The FAA does not agree. In 1993, the FAA reclassified the regulatory structure of the National Airspace System (NAS). This was done primarily to more closely align the airspace in the United States along International Civil Aviation Organization (ICAO) guidelines. The airspace previously identified as Airport Traffic Areas and Control Zones were reclassified at that time to Class D Airspace Areas. FAA Order 7400.2G, Procedures for Handling Airspace Matters, provides guidance on the design of Class D airspace nationally. It states that vertical and lateral limits should be standardized and shall be designed to contain IFR arrival operations. The current Luke Class D airspace area varies from 4.4 miles to a 5.6 mile radius of Luke and is configured in accordance with the above mentioned guidelines. Adding an additional 5 miles to the existing Class D airspace area is not supported by current design criteria, and has no bearing on the scope of issues addressed by the SATR area.

Another commenter stated that the FAA should establish VFR corridors through the SATR area and allow pilots in the VFR corridors to operate without establishing and maintaining two-way radio communication with the Luke RAPCON. The FAA does not agree. The USAF sought an improvement in air safety when it petitioned the FAA to address the problem of NMACs in the proposed SATR area. The suggestion that pilots should be allowed to continue their current practice of not contacting the Luke RAPCON and not exchanging position information would negate the basic purpose of the SATR, which is to require two-way communication with Luke RAPCON to improve safety.

Another commenter believed that the segment of the proposed SATR area west of DVT and north of Luke that has a floor of 3,000′ and a ceiling of 4,000′, will encourage pilots of aircraft departing or arriving GEU and/or DVT to under fly or circumnavigate increasing the concentration of traffic in this area. He suggested raising the floor to 4,000′ and the ceiling to 5,000′ to allow aircraft to avoid the SATR area by operating at 3,500′ and 4,500′ below it.

The FAA does not agree. First, very few aircraft currently circumnavigate the airspace around Luke and a large percentage contact Luke and take part in the flight following services offered by Luke RAPCON. Although there may be an increase in the number of aircraft that would circumnavigate the SATR, the FAA does not expect the increase to be significant or burdensome. Second, aircraft operators can establish communication and operate within the SATR rather than navigate out of their way to avoid it. The SATR area was designed to protect aircraft on an instrument approach to Runway 21L/R. The floor of this area was designated at 3,000′ which provides a 500′ buffer between the lowest altitude in use on the instrument approach and any aircraft transiting or operating just beneath the SATR.

Another commenter suggested modifying or eliminating the segment of the proposed SATR labeled West Sector North which has a floor of 3,000′ and a ceiling of 6,000′. He stated that this area intrudes into rising terrain in the northwest and would force aircraft into the foothills if pilots are trying to under fly this area. The FAA does not agree. This area was designed to protect the Luke auxiliary field traffic pattern for aircraft conducting touch and go landings. The northwest point of this area is the junction of Carefree Highway and US60. The area is remote and there were not many landmarks that could be used as visual references. A small portion of this area on the northern side intrudes into rising terrain. Pilots may avoid the rising terrain by establishing contact with Luke RAPCON and transiting the SATR or circumnavigating the area.

Another commenter stated that the 2,100′ floor of the SATR area just west of GYR does not allow transition for aircraft wishing to overfly GYR Class D or aircraft departing/arriving GYR wishing to avoid the SATR area. The FAA is establishing the 2,100′ floor to protect Luke aircraft departing/arriving runway 03 L/R. Aircraft that do not wish to contact Luke RAPCON for use of the SATR area will have to circumnavigate this area. Letters of Agreement (LOA) will be entered into among Luke RAPCON and GYR, DVT and GEU Towers. The LOA will outline special operating procedures to create a seamless environment for GA operations. Departure and arrival procedures to and from the SATR boundaries and the airports, will be referenced in the LOA. These procedures will allow GA operators to proceed on course while movement information is passed between ATC facilities. This will negate abrupt frequency changes and not having enough time to establish two-way communication with the RAPCON prior to entering the SATR.

One of the commenters was concerned that the SATR area would infringe on, or virtually eliminate, airspace used today for GA pilot training. That is not the case. The SATR area does not replace, eliminate, or change any of the existing airspace structure or operating rules; it only adds a requirement for two-way radio communication with Luke RAPCON prior to entry and while in the area. The SATR does not prohibit or restrict aircraft access for any purpose including transit and/or training.

Several commenters addressed RAPCON staffing, communication coverage and access to the area. The APA and others do not believe that Luke RAPCON can maintain adequate staffing to provide communication coverage and, as a result, GA aircraft will be denied access to the area. AOPA, APA and other commenters were concerned about frequency congestions and one commenter stated that during periods of peak traffic, Luke RAPCON may not be able to immediately respond to aircraft wishing to establish two-way radio contact for entry into the SATR area, thereby denying aircraft access to the area. Another commenter said that Luke radio coverage may not be sufficient for all the airspace encompassed by the SATR area; especially the Luke ATIS.

The FAA does not agree. Staffing and equipment resources are already in place to support the Luke SATR area. Staffing and equipment levels are adequate to provide all services without impacting safety or efficiency and the USAF and the FAA do not expect staffing to be an issue for Luke. LOAs and procedures will be developed to operate the Luke SATR efficiently. However, should circumstances arise that indicate a need for additional resources, action will be taken to obtain them.

The ability to provide any ATC service is limited by many factors, such as the volume of traffic, frequency of congestion, controller workload, or other higher priority duties that may not be apparent to a pilot requesting access to the SATR area. Aircraft attempting to establish two-way radio contact with ATC for entry into the SATR area will be handled on a first-come, first-serve basis and as quickly as the controller can safely provide the service. Currently a large percentage of VFR operators contact Luke and exchange position information. Though there may be an increase in the number of aircraft establishing communication, the FAA does not expect the increase to be significant.

FAA's ATC experience has been that frequency congestion does occur at peak demand periods at most major airports. When such congestion occurs, resource adjustments are made on-site. Such adjustments include resectoring and assigning selected personnel. The USAF recognizes the potential exists for a need to establish additional controller positions if delays during peak demand become a problem, and will respond accordingly.

Luke's existing radio coverage is sufficient to cover the area defined in the SATR including the ATIS. The USAF has installed additional transceivers on the White Tank Mountains radio relay site that enhance the current radio coverage on the existing frequencies due to the height and placement of the new transceivers.

Some commenters stated that the operating rules for the SATR were not clearly defined in the NPRM. They requested clarification about whether a clearance from Luke was required, and if separation services, including assigned headings, would be provided to GA aircraft. Further, they asked if routine traffic advisories would be given, and if a transponder was required.

As stated in the NPRM and final rule, an air traffic clearance is not required to operate in the SATR area. The final rule requires pilots to establish two-way radio communication with Luke RAPCON prior to entering the SATR area, and to maintain communication while operating in the area. Once two-way communication is established, flight following service is available upon request from Luke RAPCON. Pilots of those aircraft not equipped with radios, or with inoperable radios, can make advance arrangements with the Luke RAPCON to coordinate transit through the area. The USAF requires use of flight following service for military aircraft. The FAA recommends use of flight following services by GA. Those aircraft participating in flight following services are provided traffic advisory service as they transition the area. Separation services and headings will not be provided, and this rule does not change the current transponder requirements in 14 CFR 91.215.

Commenters had concerns about the Luke SATR's hours of operation. One stated that the proposed hours of operation were not clear. Another observed that the Luke RAPCON could open and close for just one flight and asked whether the SATR would be activated for that situation. Another noticed that the SATR was not active at night. Others were concerned about access to the SATR area when the Luke RAPCON is not open.

The NPRM and the final rule both state the Luke SATR is designated during official daylight hours Monday through Friday, during flight training operations. The area may be activated at other times by NOTAM when necessary to support Luke flight training. Status of Luke flight training activities will be broadcast on Luke, DVT, GYR, and GEU local ATIS frequencies. The Luke ATIS also can be contacted via a local telephone call. Luke does occasionally open outside of normal hours to handle VIP or other transient aircraft movement, but the SATR area will not be activated routinely for those limited situations.

The SATR area is not necessary during nighttime operations primarily for three reasons. First, Luke's primary auxiliary airfield is closed at night which significantly reduces the number of F-16 aircraft transitioning between the auxiliary field and Luke. Second, aircraft are more easily visible at greater distances at night, thereby allowing pilots more reasonable reaction time for conflict avoidance with high performance aircraft. Third, the SATR area would be extremely difficult to navigate at night when visual landmarks are either not visible or not easily distinguishable. Therefore, when limited Luke flight training activities are conducted at night the SATR will not be active and GA pilots will have access to the area without a requirement to communicate with the Luke RAPCON.

Pilots from the glider community expressed concern that their operations would be unfairly impacted. They stated that it was not clear that sailplanes without transponders would be able to operate within the SATR area.

The FAA agrees that clarification about glider operations is needed. In that regard, the USAF has worked with the glider community to address their operational concerns. The USAF met with the Pleasant Valley Sailplane Association (PVSA) personnel to discuss the glider community concerns. The USAF and the PVSA agreed to enter into an LOA covering glider operation to allow glider operations to continue. The Luke RAPCON plans to designate an assigned beacon code for the tow planes. When the first tow plane of the morning goes up on the discrete code, the Luke RAPCON will show the glider area active and provide general traffic advisories throughout the course of the day while the area is in use. The glider operators will call the Luke RAPCON at the termination of the day's glider activity.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined there is no current or new requirement for information collection associated with this amendment.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to comply with International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 directs that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

The FAA believes that this rule will impose minimal costs on VFR pilots of GA aircraft, Luke AFB RAPCON and negligible cost on the FAA. The rule will enhance aviation safety by reducing the risk of a midair collision in the SATR area. As a result, the FAA believes this rule is cost-beneficial.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to ensure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

This final rule will impose only negligible costs on individuals operating GA aircraft in the Luke AFB vicinity under VFR. Most operators of GA aircraft are individuals, not small business entities, and are not included when performing a regulatory flexibility analysis. However, flight schools, as well as GA operators flying for business reasons, are considered small business entities. The FAA assumes affected instructors and operators use aircraft equipped with two-way radios, and therefore will not incur any extra costs.

Therefore, as the FAA Administrator, I certify that this final rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will have only a domestic impact and therefore will not create unnecessary obstacles to the foreign commerce of the United States.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation with the base year 1995) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The level equivalent of $100 million in CY 1995, adjusted for inflation to CY 2007 levels by the Consumer Price Index for all Urban Consumers (CPI-U) as published by the Bureau of Labor Statistics, is $136.1 million. This final rule does not contain such a mandate. The requirements of Title II do not apply.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. We determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act (NEPA) in the absence of extraordinary circumstances. The FAA has determined this proposed rulemaking action qualifies for the categorical exclusion identified in paragraph 312f and involves no extraordinary circumstances.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). We have determined that it is not a “significant energy action” under the executive order because it is not a “significant regulatory action” and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

You can get an electronic copy of rulemaking documents using the Internet by—

1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visiting the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or

3. Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html.

You can also get a copy by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Make sure to identify the amendment number or docket number of this rulemaking.

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://DocketsInfo.dot.gov.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. If you are a small entity and you have a question regarding this document, you may contact your local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. You can find out more about SBREFA on the Internet at http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

On May 7, 2009, the Commission published in the Federal Register for public comment proposed amendments to the minimum financial requirements applicable to FCMs and IBs (“Proposing Release).1 As noted in the Proposing Release, Section 4f(b) of the Commodity Exchange Act (“Act”) provides that FCMs and IBs must meet such minimum financial requirements as the Commission may prescribe to insure that FCMs and IBs meet their obligations as registrants.2 FCMs are subject to greater capital requirements than IBs because the Act permits FCMs, but not IBs, to hold funds of customers trading on designated contract markets and to clear such customer positions with a DCO. CFTC Regulation 1.17 currently requires IBs and FCMs to maintain adjusted net capital of $30,000 and $250,000 respectively, or to maintain some greater amount as determined under other calculations required by the regulation.3

Specifically, Commission Regulation 1.17(a)(1)(iii) requires that IBs maintain adjusted net capital in an amount that equals or exceeds the greatest of: $30,000; the amount of adjusted net capital required by a registered futures association of which the IB is a member; or, if the FCM is also a securities broker and dealer registered with the U.S. Securities and Exchange Commission (“SEC”), the amount of net capital required by SEC Rule 15c3-1(a), 17 CFR § 240.15c3-1(a). Regulation 1.17(a)(1)(i) requires FCMs to maintain adjusted net capital equal to or in excess of the greatest of: $250,000; the FCM's margin-based or “risk-based” capital requirement, which is determined by adding together eight percent of the total risk margin requirement for positions in customer accounts, plus four percent of the total risk margin requirement for positions carried in noncustomer accounts; the amount of adjusted net capital required by a registered futures association of which the FCM is a member; or, for an FCM also registered with the SEC as securities broker and dealer, the amount of net capital required by SEC Rule 15c3-1(a).

As described in the Proposing Release, the Commission proposed several amendments to Regulation 1.17(a) that generally would increase the adjusted net capital requirements of FCMs and IBs. The comment period closed 60 days after publication in the Federal Register of the Proposing Release, during which nine comment letters were received. Responses were submitted by Mindy Yost (“Yost”), an individual non-registrant; Newedge USA, LLC (“Newedge”), an FCM/broker-dealer; MF Global, Inc. (“MF Global”), an FCM; R.J. O'Brien & Associates, LLC (“RJO”), an FCM; FCStone, LLC (“FC Stone”), an FCM; the Securities Industry and Financial Markets Association (“SIFMA”); CME Group, Inc. (“CME”); the Futures Industry Association (“FIA”); and the National Futures Association (“NFA”). The concerns and suggestions of each of the commenters are addressed below, in connection with the description of the amendments being adopted by the Commission.4

Under 38 U.S.C. 1722A(a), VA must require veterans to pay a $2 copayment for each 30-day supply of medication furnished on an outpatient basis for the treatment of a nonservice-connected disability or condition. Under 38 U.S.C. 1722A(b), VA “may” by regulation increase that copayment and establish a maximum annual copayment (a “cap”). We interpret section 1722A(b) to mean that VA has discretion to determine the appropriate copayment amount and annual cap amount for medication furnished on an outpatient basis for covered treatment, provided that any decision by VA to increase the copayment amount or annual cap amount is the subject of a rulemaking proceeding. We have implemented this statute in 38 CFR 17.110.

Under current 38 CFR 17.110(b)(1), veterans are “obligated to pay VA a copayment for each 30-day or less supply of medication provided by VA on an outpatient basis (other than medication administered during treatment).” The regulation ties any increase in that copayment amount to the prescription drug component of the Medical Consumer Price Index (CPI-P). The current regulation includes an escalator provision for the copayment amount. The regulation states that the copayment amount for each calendar year after 2002 is established using the CPI-P as follows: For each calendar year beginning after December 31, 2002, the Index as of the previous September 30 will be divided by the Index as of September 30, 2001. The ratio so obtained will be multiplied by the original copayment amount of $7. The copayment amount for the new year will be this result, rounded down to the whole dollar amount.

Current § 17.110(b)(2), also includes a cap on the total amount of copayments in a calendar year for a veteran enrolled in one of the priority categories 2 through 6. The amount of the cap was $840 for the year 2002. The current regulation also requires that “[i]f the copayment amount increases * * * the cap of $840 shall be increased by $120 for each $1 increase in the copayment amount.” 38 CFR 17.110(b)(2).

In January 2006, based on this regulation, the copayment amount increased to $8 and the cap on priority categories 2 through 6 increased to $960. This change was announced in 70 FR 72329 (December 2, 2005). These are the current copayment requirements. Based on our analysis of the average rate of growth of the CPI-P, the current regulatory methodology, calculated according to the CPI-P as of September 30, 2009, would automatically escalate the copayment amount from $8 to $9 in January 2010. Current § 17.110(b) does not afford the Secretary any discretion on increasing the copayment amount as calculated by the CPI-P.

Although we continue to believe that the CPI-P is a relevant indicator of the costs of prescriptions nationwide, we need time to determine whether an increase might pose a significant financial hardship for certain veterans and if so, what alternative approach would provide appropriate relief for these veterans. In light of this anticipated review, we are delaying implementation of the $1 increase in the copayment amount (and the corresponding $120 increase in the cap) until the completion of our review. Maintaining the current copayment and cap amounts will give us time to determine whether the current methodology for establishing copayment amounts, consistent with our responsibility under 38 U.S.C. 1722A to require a copayment in order to control health-care costs, is appropriate for all veterans.

Therefore, we are, for the next 6 months (i.e., through June 30, 2010), freezing the copayment amount at the current rate ($8) in order to complete the analysis regarding veterans for whom the copayment increase might pose a significant financial hardship. We are also freezing the cap at the current level ($960).

This rule maintains the current escalator clause. Depending on the results of the analysis described above, the Secretary may initiate new rulemaking on this subject rather than continue to rely on the CPI-P escalator provision to determine the copayment amount. Any change in the copayment amount and cap, along with the associated calculations explaining the basis for the increase, would be published in a Federal Register notice.

At the end of June 30, 2010, unless additional rulemaking is initiated, VA would once again utilize the CPI-P methodology in § 17.110(b)(1) to determine whether to increase copayments and calculate any mandated increase in the copayment amount. At that time the CPI-P as of June 30, 2010, would be divided by the index as of September 30, 2001. The ratio would then be multiplied by the original copayment amount of $7. The copayment amount of the new calendar year would be rounded down to the whole dollar amount. As mandated by the § 17.110(b)(2), the annual cap would be calculated by increasing the cap by $120 for each $1 increase in the copayment amount. Any change in the copayment amount and cap, along with the associated calculations explaining the basis for the increase, would be published in a Federal Register notice. Thus, the intended effect of this rule is to temporarily freeze copayments and the copayment cap, following which copayments and the copayment cap would increase as prescribed in § 17.110(b).

The current regulation includes a note to paragraph (b)(1) that provides an example of how the CPI-P calculation is made. We are updating this note to provide a recent example of how these amounts are calculated. This example reflects the calculation that was made on December 2, 2005, when VA published notice of the increase in copayments from $7 to $8. This note reflects the last calculation made under this regulation.

We are also adding a new paragraph (b)(3), which informs the public where it can find information on the current copayment and cap amounts.

In accordance with 5 U.S.C. 553(b)(3)(B) and (d)(3), the Secretary of Veterans Affairs finds that there is good cause to dispense with the opportunity for advance notice and opportunity for public comment and good cause to publish this rule with an immediate effective date. As stated above, this rule freezes at current rates the prescription drug copayment that VA charges veterans. The Secretary finds that it is impracticable and contrary to the public interest to delay this regulation for the purpose of soliciting advance public comment, or to have a delayed effective date, because increasing the copayment on January 1, 2010, might cause significant financial hardship on certain veterans.

For these reasons, the Secretary of Veterans Affairs is issuing this rule as an interim final rule. The Secretary of Veterans Affairs will consider and address comments that are received within 30 days of the date this interim final rule is published in the Federal Register.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, and tribal governments, or on the private sector.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a regulatory action as a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, if it is a regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Secretary hereby certifies that this regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will freeze the copayments that certain veterans are required to pay for prescription drugs furnished by VA. The rule affects individuals and has no impact on any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this interim final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance program numbers and titles for this rule are as follows: 64.005, Grants to States for Construction of State Home Facilities; 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich approved this document for publication on December 28, 2009.

This is a summary of the Order, FCC 09-113, adopted and released on December 28, 2009. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. This document will also be available via ECFS (http://www.fcc.gov/cgb/ecfs/). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to fcc504@fcc.gov or call the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

1. In this Order, we amend §§ 76.64(l) and 76.65(f) of the Commission's rules in accordance with Section 1003(b) of the Department of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 1003(b) (2009), which was enacted on December 19, 2009. Section 325(b)(3)(C)(ii) of the Communications Act of 1934, as amended (the “Act”), required the Commission to adopt regulations that, until January 1, 2010, prohibit a television broadcast station that provides retransmission consent from engaging in exclusive contracts for carriage or failing to negotiate in good faith. 47 U.S.C. 325(b)(3)(C)(ii). Section 325(b)(3)(C)(iii) required the Commission to adopt regulations that, until January 1, 2010, prohibit a multichannel video programming distributor from failing to negotiate in good faith for retransmission consent. 47 U.S.C. 325(b)(3)(C)(iii). The Commission has previously adopted rules to implement these provisions, including §§ 76.64(l) and 76.65(f) to reflect the sunset date of January 1, 2010. See 47 CFR 76.64(l) (“Exclusive retransmission consent agreements are prohibited. No television broadcast station shall make or negotiate any agreement with one multichannel video programming distributor for carriage to the exclusion of other multichannel video programming distributors. This paragraph shall terminate at midnight on December 31, 2009.”); 47 CFR 76.65(f) (“Termination of rules. This section shall terminate at midnight on December 31, 2009.”).

2. In Section 1003(b) of the Department of Defense Appropriations Act, 2010, Congress amended Sections 325(b)(3)(C)(ii) and (iii) to replace the previous sunset date of January 1, 2010 with a new sunset date of March 1, 2010. See Department of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 1003(b). Accordingly, we are amending our rules to reflect the new sunset date, provided that if Congress further extends this date, the rules remain in effect until the statutory authorization expires. We are amending these rules without providing prior public notice and comment because prior notice and comment would be impracticable in this case. See 5 U.S.C. 553(b)(3)(B). Section 1003(b) of the Department of Defense Appropriations Act, 2010 was enacted on December 19, 2009, less than two weeks before the sunset date of January 1, 2010. This provides the Commission with an insufficient amount of time to publish a Notice of Proposed Rulemaking in the Federal Register, to allow time for meaningful comment, and to consider those comments before taking the necessary actions prior to the sunset date of January 1, 2010. See Petry v. Block, 737 F.2d 1193, 1201 (D.C. Circ. 1984) (holding that the “extremely limited time given by Congress” established “good cause” for not seeking prior notice and comment). Moreover, our action here is largely ministerial, because it simply implements a new sunset date established by Congress. See 5 U.S.C. 553(b)(3)(B). See, e.g., Metzenbaum v. Federal Energy Regulatory Commission, 675 F.2d 1282, 1291 (DC Cir. 1982) (agency order, issued pursuant to congressional waiver of certain provisions of federal law that would otherwise have governed construction and operation of Alaskan natural gas pipeline, was appropriately issued without notice and comment as a nondiscretionary ministerial action); Implementation of Section 505 of the Telecommunications Act of 1996 (Scrambling of Sexually Explicit Adult Video Service Programming), 11 FCC Rcd 5386, 5387 (1996); Implementation of Sections 204(A) and 204(C) of the Telecommunications Act of 1996 (Broadcast License Renewal Procedures), 11 FCC Rcd 6363, 6364 (1996); Implementation of Sections 202(A) and 202(B)(1) of the Telecommunications Act of 1996 (Broadcast Radio Ownership), 11 FCC Rcd 12368, 12371 (1996); Implementation of Sections 202(c)(1) and 202(e) of the Telecommunications Act of 1996 (National Broadcast Television Ownership and Dual Network Operations), 11 FCC Rcd 12374, 12377 (1996). Accordingly, we find that this action falls within the “good cause” exception to the notice and comment requirements of the Administrative Procedure Act (“APA”). Because we have found good cause for not seeking prior notice and comment, the Regulatory Flexibility Act and the Congressional Review Act do not apply to our action here. See 5 U.S.C. 603(a); 5 U.S.C. 808. For similar reasons, we find good cause to make these amendments to our rules effective upon publication in the Federal Register. Because the legislation establishing the new sunset date was enacted less than two weeks prior to the previous sunset date of January 1, 2010, we are unable to provide for a 30-day period before the new sunset date in these rules takes effect. See 5 U.S.C. 553(d)(3) (“The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except * * * as otherwise provided by the agency for good cause found and published with the rule.”); see also 47 CFR 1.427(b).

3. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

4. It is ordered that pursuant to the authority found in Section 325 of the Communications Act of 1934, as amended, 47 U.S.C. 325, and Section 1003(b) of the Department of Defense Appropriations Act, 2010, Public Law No. 111-118, Sec. 1003(b) (2009), §§ 76.64(l) and 76.65(f) of the Commission's rules are hereby amended as set forth in the rule changes below and are effective December 31, 2009.

On December 4, 2009, PHMSA published a final rule (74 FR 63905) under Docket No. PHMSA-RSPA-2004-19854 amending the Pipeline Safety Regulations (49 CFR Parts 190-199) to require operators of gas distribution pipelines to develop and implement integrity management programs. In that final rule, PHMSA adopted a requirement that operators report failures of all compression couplings, both plastic and metallic. PHMSA also invited public comment on the requirement to report failure of compression couplings used in metal pipe. Public comments were due by January 4, 2010.

On December 18, 2009, AGA petitioned PHMSA to extend the comment period by thirty days. AGA stated that it is in the public interest to extend the comment period so that gas utilities have the opportunity to thoroughly review the regulation and draft annual report. AGA went on to say that extending the comment period is the only way to provide PHMSA with the necessary information to establish clear and consistent data. PHMSA agrees that additional time should be allowed and is extending the comment period from January 4, 2010 to February 4, 2010.

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.100.

The final rule implementing Amendment 5 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, which was published on December 17, 1993 (58 FR 65936), provided a mechanism for summer flounder quota to be transferred from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Northeast Region, NMFS (Regional Administrator), can transfer or combine summer flounder commercial quota under § 648.100(d). The Regional Administrator is required to consider the criteria set forth in § 648.100(d)(3) in the evaluation of requests for quota transfers or combinations.

Maine has agreed to transfer 3,790 lb (1,719.1 kg) of its 2009 commercial quota to Massachusetts to cover the summer flounder landings of one vessel granted safe harbor in Massachusetts due to mechanical issues on December 15, 2009. The Regional Administrator has determined that the criteria set forth in § 648.100(d)(3) have been met. The revised quotas for calendar year 2009 are: Maine, 1,317 lb (597.4 kg); and Massachusetts, 706,404 lb (320.4 kg).

This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.