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 April 6, 2009 (74 FR 15401). 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 considered the comment received.

The Air Transportation Association, on behalf of its member Northwest Airlines (NWA), requests that we change the compliance time of the NPRM. NWA states that paragraph (f)(4) of the NPRM would prohibit installation of unmodified units after the effective date of the AD and that this restriction would have unintended consequences in a line maintenance environment when a fairing is removed for access during unscheduled maintenance because operators could not reinstall the fairing without doing the actions required by the AD. The commenter requests that we revise the NPRM to allow installation of unmodified units until the 60-month compliance time specified in paragraph (f)(1) of the NPRM has passed.

We partially agree. We did not intend to prohibit operators from reinstalling a fairing removed for maintenance. But allowing operators up to 60 months to intermix airworthy and potentially inadequate fairings would conflict with provisions of the Federal Aviation Regulations and would not ensure an adequate level of safety for the fleet. To clarify the requirement, we have revised paragraph (f)(4) in this final rule to prohibit “replacing”—instead of “installing”—the subject part.

We have also added a note to the FAA Differences paragraph to specify that parts cannot be put on as of the effective date of this AD.

In addition to the unsafe condition specified in the NPRM, the potential unsafe condition includes the part potentially impacting the airplane. We have revised the Summary section, Discussion section, and paragraph (e) of this AD accordingly.

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 35 products of U.S. registry. We also estimate that it will take about 19 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 $647 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 $75,845, or $2,167 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.

Discussion

On April 27, 2009, we issued a proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to include an AD that would apply to certain Thrush Aircraft, Inc. Model 600 S2D and S2R (S-2R) series airplanes (type certificate previously held by Quality Aerospace, Inc. and Ayres Corporation). This proposal was published in the Federal Register as a notice of proposed rulemaking (NPRM) on May 4, 2009 (74 FR 20431). The NPRM proposed to supersede AD 2006-07-15, Amendment 39-14542 (71 FR 19788, April 17, 2006) with a new AD that would:

• Retain the actions of AD 2006-07-15;

• Add life limits for the wing front lower spar caps;

• Lower the initial and repetitive inspection times for Group 5 airplanes;

• Correct some airplane Group classifications;

• Add an airplane to the Applicability section; and

• Remove the use of ultrasonic inspection methods.

For replacement of the wing front lower spar caps, the initial compliance time for all airplanes will be at least an additional 500 hours time-in-service (TIS) after the effective date of this AD. Calculated from actual flight hour data from 285 S2R series airplanes, 500 hours TIS equates to the average yearly operational time. The compliance schedules should give owner/operators enough time to schedule the replacement of the wing front lower spar caps.

Although not required in this AD, we recommend installing “big butterfly” and lower splice plates, P/N 20211-09 and P/N 20211-11, or Thrush Aircraft, Inc. Custom Kit No. CK-AG-41, Revision A, since they increase the strength of the wing beyond the minimum safety standards.

We provided the public the opportunity to participate in developing this AD. The following presents the comments received on the proposal and FAA's response to each comment:

Marc Fries states that a large portion of the affected airplanes will need to address a spar replacement within a very short period of time, overwhelming a limited number of repair facilities. Mr. Fries also states that most operators have a short “down time” during their season in which to do this type of repair, and many operators will run out of flying hours before a repair facility can do the work or even get the kits from the factory.

Mr. Fries requests an extension of the compliance time because there are a limited number of repair facilities, and the replacement parts may not be available immediately. Mr. Fries also requests to insert into the AD an allowance for an extension of the compliance time while continuing the spar cap inspections.

We do not agree with the commenter. As stated in the NPRM, allowance for the compliance time based on the limited number of repair facilities and the limited availability of replacement parts has already been made. For airplanes that have already exceeded the life limit replacement time for the wing front lower spar caps, the minimum compliance time for those with the highest hours TIS, which are the airplanes with the highest risk of spar cap failure, is 500 hours TIS. Five hundred hours TIS equates to an average year of operation for these airplanes. Airplanes that have exceeded the life limit replacement time, but are not at the highest level of risk, will be allowed an even longer compliance time of 1,000 hours TIS, 1,500 hours TIS, or 2,000 hours TIS based on the current number of hours TIS on the wing front lower spar caps. Airplanes that have not yet reached the life limit replacement time are allowed a minimum of 2,000 hours TIS to comply with the AD. These compliance times result in an average operator having at least one year to comply with the AD; however, most operators will have much longer than one year to replace the wing front lower spar caps. These graduated compliance times should allow enough time for adequate supply of parts and repair facility availability.

We are not changing the final rule AD action based on this comment.

Charles Brumley states that the pilot should be allowed to make his own decision whether a new spar cap is needed and requests an alternative to this AD.

Mr. Brumley further states that he believes the AD is unnecessary for the following reasons:

• If the pilot is involved in the maintenance of the airplane, then the pilot can make an informed decision about whether or not to install a new spar cap and whether or not the aircraft is in a condition for safe operation;

• The AD will cause undue economic hardship on the airplane operators and the farms that use aerial application services;

• There have only been a few cracks found, i.e., that there is not enough service history to support issuance of an AD; and

• The large butterfly plates are adequate to ensure safety of the pilot until a spar cap crack is found.

We infer this as a request for the FAA to withdraw the AD.

We do not agree with the commenter. While the commenter may have maintained his airplane adequately, the formation of fatigue cracks mainly relates to the airplane's design and operation. Replacement of the wing front lower spar caps when they have reached their life limits is currently the only means known to the FAA to address the unsafe condition.

We have extensive crack data that currently shows 176 wings on 123 airplanes had cracks in the wing front lower spar caps. As the incidences of cracking increase, which has occurred in the Thrush airplanes, the chance of an existing crack not being detected during an inspection increases. Airplanes with cracks in the wing front lower spar caps are unable to meet ultimate strength requirements, which could lead to a wing failure. The only known way of mitigating this risk is to replace the wing front lower spar caps.

There are already procedures in place for owner/operators to request an alternative to any AD. Use the alternative method of compliance (AMOC) procedures provided in this AD to request an AMOC. The request for an AMOC must include any substantiating information, such as stress and fatigue data. The AMOC will be approved if we find it provides an acceptable level of safety.

We are not changing the final rule AD action based on this comment.

Avenger Aircraft and Services (Avenger) states the life limits for the wing front lower spar caps should be adjusted if environmental conditions were not taken into account when determining the life limits. The commenter states that metal fatigue is influenced by environmental conditions.

We do not agree with the commenter's request to adjust the life limits. We did take environmental conditions into consideration during our analysis for determining the life limits. The risk-based analysis used by the FAA used actual reported crack data from in-service airplanes. These in-service data came from airplanes operated in a variety of environments; therefore, the raw data used in the FAA's analysis include the effects caused by environmental conditions.

We are not changing the final rule AD action based on this comment.

Avenger states that the life limit of the wing front lower spar cap could be much shorter if crack sizes are taken into account during the risk assessment. Avenger also states that this can be particularly significant when some fleet crack sizes may have exceeded the critical size without failing due to the airplane not exceeding limit load at that particular time.

We do not agree with the commenter's request. Although we did not include the crack size in our analysis, we did use a statistical approach and took into account the TIS on the wing front lower spar cap when the crack was found and reported to the FAA. There are other factors in place in the AD to mitigate the risk associated with not using crack size to determine the life limit of the wing front lower spar caps. We determined a life limit for continued operational safety of the S2R fleet and did not propose a life limit as defined in FAA guidance for type certification of newly certificated airplanes. Our analysis of the crack data, which includes allowances for both the statistically significant amount of crack data on the Thrush fleet and the existence of an inspection program for the wing front lower spar caps, yielded the life limits times for the wing front lower spar caps shown in the NPRM.

We are not changing the final rule AD action based on this comment.

Avenger states that the flaw size that can be detected by the magnetic particle inspection method is 0.69 inches, which is in excess of the flaw size that would allow the wing front lower spar cap to continue to carry limit load.

Avenger states, therefore, magnetic particle inspections should not be utilized as a valid inspection method and should be removed from the AD.

We do not agree with the commenter. The magnetic particle inspection interval was originally set at 500 hours TIS by AD 2000-11-16 and was based on crack growth analysis provided by Ayres Corporation (Ayres). We accepted Ayres' proposed usage of U.S. Air Force data from Report AFWAL 3-5-852, which showed a reliably detectable crack size (90 percent probability/95 percent confidence) of 0.12 inch when using magnetic particle inspection methods. Using this detectable crack size with a repetitive inspection of 500 hours TIS allowed for at least two inspections to occur after crack initiation and prior to a crack reaching its critical size. As the fleet aged and as more cracks occurred in-service, the risk to the fleet increased. To help mitigate this risk, we doubled the frequency of the inspections required in AD 2006-07-15. In this AD we are requiring inspections every 250 hours TIS, which allows for four chances of detecting a crack based on the data originally used by Ayres. This same 250-hour TIS inspection interval, along with imposing a wing front lower spar cap life limit to further mitigate risk, was included in the proposed AD. The detectable crack size of 0.12 inch used by Ayres is very near the values of detectable size currently suggested for use by the FAA (Ref. Website sponsored by the FAA in conjunction with Iowa State University http://www.cnde.iastate.edu/faa-casr/engineers/index.html) of 0.13 to 0.15 inch. With the added conservatism of four inspections to detect cracks before reaching a critical crack size, when two inspections are what is normally required in a more ideal environment, the inspection interval in this AD is well within the current guidelines.

We are not changing the final rule AD action based on this comment.

Avenger states that calibration standards and Level 2 Non-destructive Testing (NDT) personnel are necessary to achieve reliability and repeatability in the inspections. These calibration standards are designed to replicate the structure being inspected with simulated flaws and are used every time as a setup tool by the inspector prior to conducting the on-aircraft inspection. Utilization of these standards is the current practice by all major aircraft manufacturers and should be required for the Thrush inspections in order to ensure a 90 percent probability of detection. In addition, the inspectors should be fully certified Level 2 NDT personnel with bolt hole eddy current qualifications.

We do not agree with the commenter's request that a change is needed to the AD. This AD and the ADs that this AD supersedes allow for eddy current inspection procedures to be approved only through the FAA's Aircraft Certification Office (ACO). The FAA ACO already requires each procedure to have the correct type of calibration standard as this is a basic requirement for ensuring a good inspection. The FAA ACO has not and will not approve an eddy current inspection procedure that does not include a requirement to use only Level 2, or even more qualified Level 3, certified NDT inspectors for these eddy current inspections.

We are not changing the final rule AD action based on this comment.

Avenger states that a solution that was not available at the time the proposed AD was written is now currently on the market. Avenger requests that the following information be included in the AD. This solution is the Avenger STC SA03654AT Avenger Extended Performance Front Spar Enhancement Kit.

STC SA03654AT installs FAA-approved replacement wing front lower spar caps for all airplanes that are the subject of this AD, except for Model S2D airplanes. The replacement spars have a life limit of 40,000 hours TIS with a parts cost of $40,000 and an installation cost of $25,500.

Avenger's FAA STC replacement kit includes the following:

• 2 lower wing front lower spar caps (made from stainless steel, not 4000 series steel);

• 2 front spar web doublers;

• 1 large butterfly plate (redesigned);

• 2 larger splice blocks (redesigned); and

• All associated hardware for installation.

Avenger requests that the AD be amended to include the installation of the Avenger Extended Performance (AXP) kit as a terminating action to this AD.

We agree with the commenter. The replacement wing front lower spar caps and other modification parts that are approved by STC SA03654AT, Installation of Avenger Extended Performance Front Spar Enhancement Kit (new wing front spar lower caps, center splice and doublers), in accordance with Part II of Avenger Master Data List AAS-MDL-08-001, Revision B, dated November 26, 2008, or later FAA-approved revision, are a viable terminating action to this AD. The installation of STC SA03654AT is an alternative to replacing the wing front lower spar caps with Ayres/Thrush wing front lower spar caps.

We will change the final rule AD action to allow installing STC SA03654AT as a terminating action for this AD.

Avenger states it is their opinion that the cold working process accomplished as part of the Ayres Corporation Service Bulletin No. SB-AG-39, dated September 17, 1996, is not being conducted correctly, and fatigue damage is being introduced and made more critical than if cold working was not accomplished at all. In order to utilize mandrel expansion in a safe manner, the hole in question must first be reamed to remove any corrosion or existing cracks that are too small to be detected. This “insurance cut” is required to remove any anomaly in the hole that may cause an issue during the cold working process.

Avenger requests the AD be amended to explicitly state that prior to mandrel expansion, an insurance ream, capable of cleaning up a .03 inch undetected crack followed by a bolt hole eddy current inspection using a calibration standard, be accomplished prior to the mandrel expansion process.

We do not agree with the commenter. The AD already requires using the cold working procedure found in Ayres Service Bulletin SB-AG-39, dated September 17, 1996. Steps 7 and 8 in the Rework section of this service bulletin require the bolt holes to be reamed before cold working of the holes. These procedures must be accomplished in order to be in compliance with this AD.

We are not changing the final rule AD based on this comment.

Michael Morris and Mr. Brumley state that instead of mandating the replacement of the wing lower spar caps, they would like the FAA to require installing big butterfly plates. In addition to installing the big butterfly plates, Mr. Morris also requests to keep the current inspection intervals for magnetic particle and eddy current inspections, and add a visual inspection every 100 hours TIS.

Mr. Morris states that he believes replacing the spar cap is unnecessary for the following reasons:

• The inspection program will continue to work;

• The economic impact is too great; and

• Some operators do not fly as aggressively as others and should not be penalized for the actions of the other pilots.

We do not agree with the commenters. The “big butterfly” plate does not have enough strength to carry all of the possible flight loads in the event the wing spar cap is severed. This plate cannot be solely relied upon to ensure the safety of the airplane.

Even if the spar cap is not completely severed but has a crack that is large enough to see when performing the commenter's proposed 100-hour TIS visual inspection, the remaining strength in the wing spar joint is not enough to carry all of the possible flight loads. As explained in the proposed AD, inspection reliability for any type of inspection method is not 100 percent; therefore, over time the probability of an inspection failing to detect a crack increases and something more needs to be done to ensure the safety of the airplanes.

As shown in the Initial Regulatory Flexibility Analysis section of the proposed AD, the economic impact was extensively studied. While we agree the AD will have a significant economic impact on small businesses, the only known way to ensure the safety of the airplane is to replace the wing front lower spar caps.

We also agree that there are many variables affecting the life limit of the wing front lower spar caps, including the operating weights and operating G loads. Higher weights and higher G loads reduce the life limit of the wing front lower spar caps. The only way to consider giving credit to those who operate at lower weights and lower G loads would be if each individual airplane had recorded data for every flight since the wings were installed showing the weights and G loads. Each individual airplane owner would then need to have fatigue analysis and tests done by a qualified engineer to determine the life limit for that particular set of wings based on that recorded data. The expense of conducting this type of study for each airplane may be higher than the cost of replacement wing front lower spar caps; therefore, it may not be an economically viable alternative.

We are not changing the final rule AD action based on this comment.

We have carefully reviewed the available data and determined that air safety and the public interest require adopting the AD as proposed except for the changes previously discussed and minor editorial corrections. We have determined that these minor corrections:

• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM.

We estimate that this AD will affect 808 airplanes in the U.S. registry, including those airplanes affected by AD 2006-07-15.

We estimate the following costs to do each inspection:

Discussion

On November 25, 2009, we issued AD 2009-21-10, amendment 39-16049 (74 FR 63063, December 2, 2009). That AD applies to certain AVOX Systems and B/E Aerospace oxygen cylinder assemblies, as installed on various transport airplanes. That AD requires removing certain oxygen cylinder assemblies from the airplane. That AD was prompted by the reported rupture of a high-pressure gaseous oxygen cylinder, which had insufficient strength characteristics due to improper heat treatment. The actions specified in that AD are intended to prevent an oxygen cylinder from rupturing, which, depending on the location, could result in structural damage and rapid decompression of the airplane, damage to adjacent essential flight equipment, deprivation of the necessary oxygen supply for the flightcrew, and injury to cabin occupants or maintenance or other support personnel.

Since we issued AD 2009-21-10, we have been notified that its applicability (in paragraph (c)) erroneously includes oxygen cylinder assemblies having part numbers B43570-3 and B43570-5. Those oxygen cylinder assemblies are manufactured from composite material, instead of steel, and the erroneous part numbers do not correspond to any serial numbers listed in the AD. Composite oxygen tanks are not subject to the identified unsafe condition. These part numbers have been removed from Table 1 of this AD.

We have also been notified that serial numbers K617383 through K617423 inclusive and K757064 through K757066 inclusive have been withdrawn from service. These serial numbers have been removed from Table 3 of this AD.

Certain affected airplanes have been approved by the aviation authorities of other countries, and are approved for operation in the United States.

The unsafe condition described previously is likely to exist or develop in other products of these same type designs. For this reason, we are issuing this AD to revise AD 2009-21-10. This new AD retains the requirements of the existing AD, but removes part numbers B43570-3 and B43570-5 from the applicability of this AD, and removes certain serial numbers from Table 3 of this AD.

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

This AD addresses the consequences of the potential rupture of certain oxygen cylinder assemblies. Because of our requirement to promote safe flight of civil aircraft and thus the critical need to ensure the proper functioning of the oxygen cylinders and the short compliance time involved with this action, this AD must be issued immediately.

Because an unsafe condition exists that requires the immediate adoption of this AD, we find that notice and opportunity for prior public comment hereon are impracticable and that good cause exists for making this amendment effective in less than 30 days.

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-2010-0029; Directorate Identifier 2009-NM-262-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.

Discussion

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 April 6, 2007 (72 FR 17045). 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 considered the comments received.

Sicma Aero Seat (Sicma) states that the Costs of Compliance section of the NPRM reflects that many of the seats were addressed due to the MCAI issued in 2002 (reference Direction Générale de l'Aviation Civile Airworthiness Directive 2002-504 (AB), effective October 12, 2002). Sicma also states that there were a low number of ATR Model ATR42 and ATR72 airplanes with Sicma seats operating in the United States at that time. Sicma notes that the NPRM gives an incorrect impression of the extent of the issue. In addition, Airbus states that it is surprised by the figures in the Costs of Compliance section of the NPRM. Airbus notes that the quantity of seats specified in the NPRM represent 10 airplanes and that Sicma provided 1,029 kits for doing Sicma Aero Seat Service Bulletin 92-25-005, Issue 3, dated January 17, 2003 (an equivalent of eight airplanes).

We infer that the commenters request we change the Costs of Compliance section. We agree to change the Costs of Compliance section of this AD. We reevaluated the number of seats in the U.S. fleet that may be affected and reduced our initial estimate of 3,283 seat assemblies specified in the NPRM to 1,403 seat assemblies. We have modified the Costs of Compliance section in this AD accordingly to accurately represent the current number of affected airplanes on the U.S. registry.

Airbus requests that we include previous versions of Sicma Aero Seat Service Bulletin 92-25-005, Issue 3, dated January 17, 2003, as alternative methods of compliance to this AD. Airbus notes that the changes to the original issue of Sicma Aero Seat Service Bulletin 92-25-005, dated July 17, 2002, have been to add an appendix that lists part numbers, add the estimated time for installation of the kit, and add details of the installation of the kit for each of the types of the kits.

We partially agree. In addition to the changes described by the commenter, Issue 1 of Sicma Aero Seat Service Bulletin 92-25-005, dated August 29, 2002, made changes to the description of the appropriate actions in Part One of the Accomplishment Instructions of the service bulletin. The findings and corresponding corrective actions specified in Sicma Aero Seat Service Bulletins 92-25-005, dated July 17, 2002, are different than those described in Issue 1 and subsequent issues of the service bulletin. Therefore, only Issue 1 and Issue 2 are acceptable additional methods of compliance for the actions required by this AD. We have added paragraph (f)(3) of this AD to give credit for actions done in accordance with Sicma Aero Seat Service Bulletins 92-25-005, Issue 1, dated August 29, 2002; and Issue 2, dated October 29, 2002.

Airbus also requests that we clarify the applicability of the NPRM. Airbus notes that the seats listed in the appendix (annex) of Sicma Aero Seat Service Bulletin 92-25-005, Issue 3, dated January 17, 2003, concern ATR Model ATR42 and ATR72 airplanes and not Airbus airplanes.

We agree to clarify the applicability. The applicability of the NPRM specified 90xx and 92xx series passenger seats but did not limit the seats to those specified in Sicma Aero Seat Service Bulletin 92-25-005, Issue 3, dated January 17, 2003. We have limited the applicability of this AD by specifying 90xx and 92xx series seat part numbers as listed in Sicma Aero Seat Service Bulletin 92-25-005, Issue 3, dated January 17, 2003, including Annex 1, dated July 17, 2002.

We have also revised this AD to identify the correct legal name of the manufacturer of Model ATR42 and ATR72 airplanes as published in the most recent type certificate data sheet for the affected airplane models.

We have replaced the compliance time “before March 31, 2010” for the installation specified in paragraph (e)(3) of the NPRM with “Within 24 months after the effective date of this AD” in paragraph (f)(2) of this AD (which corresponds to paragraph (e)(3) of the NPRM). We have also revised Note 2 of this AD to refer to the new compliance time. In developing an appropriate compliance time, we considered the safety implications and the normal maintenance schedules for timely accomplishment of the installation. We have determined that extending the compliance time will not adversely affect safety.

We have revised the sentence requiring repetitive inspections in paragraph (f)(1) of this AD by adding the phrase “until a new central spreader, P/N 92-000100-200-1 or P/N 92-000101-200-1, and doublers, P/N 00-6536, are installed in accordance with `Part Three: Central Spreader Replacement' of the service bulletin.” Installation of the central spreader and doublers terminates the repetitive inspections. We have also revised the wording in paragraph (f)(2) of this AD to clarify the terminating action.

The Engine and Propeller Directorate issued the NPRM for this AD and assigned Directorate Identifier 2007-NE-07-AD to the NPRM. Because the final rule is being issued by the Transport Airplane Directorate, we have re-assigned Directorate Identifier 2008-NM-205-AD to this AD and revised the directorate identifier references in the AD accordingly.

We have added the Air Transport Association (ATA) of America Code identifying the subject of this AD to new paragraph (d) of this AD and revised the subsequent paragraph identifiers accordingly. We have also added Note 1 to this AD to clarify that when certain conditions exist, it is necessary to request approval of an alternative method of compliance.

To match the template specified in FAA Order 8040.5, we have added the phrase “The mandatory continuing airworthiness information (MCAI) states” before the quoted material in paragraph (e) of this AD, removed paragraph (f) of the NPRM, and added Note 2 to this AD. Note 2 of this AD includes the same information as paragraph (f) of the NPRM. We have also added paragraphs (g)(2) and (g)(3) to this AD.

We have moved the text specified in paragraph (e)(2) of the NPRM into paragraph (f)(1) of this AD, and we have reidentified paragraph (e)(3) of the NPRM as paragraph (f)(2) of this AD. We have also made minor editorial changes to paragraphs (f)(1), (f)(1)(i), (f)(1)(ii), and (f)(1)(iii) of this AD.

We have revised the service bulletin references in paragraphs (f)(1), (f)(1)(i), (f)(1)(ii), (f)(1)(iii), and (f)(2) of this AD to specify where each action is described in the relevant service bulletin.

We have added the phrase “before further flight” to paragraph (f)(1)(iii) of this AD to clarify the compliance time for doing the temporary repair and for doing the installation after removing the temporary repair.

We have also added the phrase “after accomplishing the inspection” to paragraph (f)(1)(i) of this AD to clarify the compliance time for doing the check specified in paragraph (f)(1)(i) of this AD.

We 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 determined that these changes 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 1,403 seat assemblies on 105 airplanes of U.S. registry. We also estimate that it will take about 6 work-hours per seat assembly to comply with the basic requirements of this AD. The average labor rate is $80 per work-hour. Required parts will cost about $207 per seat assembly. 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 $963,861, or $687 per seat assembly.

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.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2005-15-08, amendment 39-14197 (70 FR 43020, July 26, 2005). The existing AD applies to certain Model 747-100B SUD, -200B, -300, -400, and -400D series airplanes. That NPRM was published in the Federal Register on July 14, 2009 (74 FR 33928). That NPRM proposed to require repetitive inspections for cracking in fuselage stringers 8L, 8R, 10L, and 10R at body stations 460, 480, and 500 frame locations; and repair if necessary.

We provided the public the opportunity to participate in the development of this AD. We have considered the comment that has been received on the NPRM.

Boeing requests a change to paragraph (g) of the NPRM. The NPRM proposes to require repeating the inspections specified in paragraph (g) at intervals not to exceed 3,000 flight cycles until the requirements of paragraph (l) of the proposed AD are accomplished. Boeing states that accomplishing the repair specified in paragraph (k) of the proposed AD terminates the repetitive inspections required by paragraph (g). Boeing therefore requests that we revise paragraph (g) of the proposed AD to also refer to paragraph (k) as a terminating action.

We partially agree. The repetitive inspections are terminated after accomplishment of paragraph (k) or (l) of this AD, but only at the stringer locations that are modified or repaired. We have revised paragraphs (g), (i), (j), and (l) of this final rule accordingly.

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 have carefully reviewed the available data, including the comment that has 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 246 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.

Discussion

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2007-01-15, amendment 39-14887 (72 FR 1427, January 12, 2007). The existing AD applies to certain Boeing Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. That NPRM was published in the Federal Register on September 18, 2009 (74 FR 47897). That NPRM proposed to continue to require repetitive inspections to detect cracks and fractures of the strut front spar chord assembly (including the forward side) at each strut location, and repair if necessary. That NPRM also proposed to add a one-time inspection for cracking of the forward side of the front spar chord assembly on the inboard and outboard struts, installation of a cap skin doubler for certain airplanes, and repair if necessary. The additional actions proposed in that NPRM would terminate the repetitive inspections of the forward side of the strut front spar chord assembly; the inspections of the aft side assembly would continue as specified in the existing AD.

We provided the public the opportunity to participate in the development of this AD. We have considered the single comment received on the NPRM. Boeing concurs with the proposed requirements specified in the NPRM.

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.

Boeing Commercial Airplanes has received an Organization Designation Authorization (ODA), which replaces their previous designation as a Delegation Option Authorization holder. We have revised paragraph (q)(3) of this AD to delegate the authority to approve an alternative method of compliance for any repair required by this AD to the Boeing Commercial Airplanes ODA rather than an Authorized Representative under the former Delegation Option Authorization program.

We have carefully reviewed the available data, including the comment that has 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. AD as proposed.

We consider the actions in this AD to be interim actions for the strut front spar chord assembly at each strut location, excluding the forward side (the terminating action for the forward side is included in this AD). If the manufacturer develops a modification for the remainder of the front spar chord assembly, we might consider additional rulemaking.

There are about 411 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.

Background

On May 14, 2009, we published a final rule (74 FR 22649) that amended the regulations governing FAA-required drug and alcohol testing requirements. The final rule was necessary to gather all of the existing drug and alcohol requirements into one part because the regulations governing FAA-required drug and alcohol testing requirements were scattered throughout Chapter I of Title 14, Code of Federal Regulations. In that final rule in § 120.7 we omitted the words “and alcohol” from the definitions for “DOT agency” and “Employer.” In §§ 120.13 and 120.15, we inadvertently included the word “authorization.” In §§ 120.17 and 120.33, we used the term “subpart” instead of “part” when directing readers to the definition of prohibited drugs. In §§ 120.103 and 120.211, we omitted the reference to § 135.1 from the list of applicable regulations. In § 120.117, we included the word “sightseeing” when describing an operator as defined in § 91.147 and omitted mailing instructions for § 91.147 operators. In § 120.119, we made reference to appendix H of 49 CFR part 40 as subpart H. In § 120.225, we omitted mailing instructions for § 91.147 operators. In the instruction for a change to 14 CFR part 135, we incorrectly listed a cross-reference to § 120.39 as § 135.39. This document corrects these errors.

The Consumer Product Safety Improvement Act of 2008 (CPSIA), Public Law 110-314, 122 Stat. 3016, provides for specific lead limits in children's products. Section 101(a) of the CPSIA provides that, by February 10, 2009, products designed or intended primarily for children 12 and younger may not contain more than 600 ppm of lead. After August 14, 2009, products designed or intended primarily for children 12 and younger cannot contain more than 300 ppm of lead. The limit will be further reduced to 100 ppm after three years, or August 14, 2011, unless the Commission determines that it is not technologically feasible to meet this lower limit. Section 3(a)(16) of the Consumer Product Safety Act, as amended by section 235(a) of the CPSIA, defines “children's product” as a “consumer product designed or intended primarily for children 12 years of age or younger.”

Section 101(b)(2) of the CPSIA provides that the lead limits do not apply to component parts of a product that are not accessible to a child. This section specifies that a component part is not accessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, as determined by the Commission. Paint, coatings, or electroplating may not be considered to be a barrier that would render lead in the substrate to be inaccessible to a child. Section 101 (b)(2)(B) of the CPSIA further provides that the Commission shall promulgate a rule providing guidance with respect to what product components or classes of components will be considered to be inaccessible. An interpretative rule providing guidance on inaccessibility (inaccessibility rule) was published in the Federal Register on August 7, 2009 (74 FR 39535).

In addition, if the Commission determines that it is not technologically feasible for certain electronic devices to comply with the lead limits, section 101(b)(4) of the CPSIA provides that the Commission shall issue requirements by regulation to eliminate or minimize the potential for exposure to and accessibility of lead in such electronic devices, and establish a schedule for achieving full compliance unless the Commission determines that full compliance with the lead limits is not technologically feasible within such a schedule. Under section 101(d) of the CPSIA, technological feasibility is based on the commercial availability of products, technology, or other practices that will allow compliance with the lead limits.

On January 15, 2009, the Commission issued a notice of proposed rulemaking on requirements for certain electronic devices that could not comply with the lead limits due to technological infeasibility (74 FR 2435). The notice of proposed rulemaking was withdrawn on February 12, 2009 (74 FR 7021). On that date, the Commission issued an interim final rule (74 FR 6991) to provide certain exemptions for children's electronic devices including:

• Inaccessible lead-containing component parts;

• Accessible lead-containing components parts that cannot be produced without lead due to the lack of technologically feasible substitutions and which require lead for the proper functioning of the component part; and

• Lead-containing spare parts or other removable components which are inaccessible when the product is assembled in functional form or is otherwise granted an exemption.

The interim final rule also directed Commission staff to reevaluate and report to the Commission on the technical feasibility of compliance with the lead limits, including the technological feasibility of making accessible component parts inaccessible, and the status of the exemptions no less than every five years after publication of a final rule in the Federal Register. Comments on the interim final rule were due on March 16, 2009.

The Commission received seven comments from consumer groups, electronics associations, companies, and individuals. In general, most comments sought to narrow or expand the scope of the exemptions.

Section 1500.88(a), in essence, summarized the lead content limits in children's products under section 101 of the CPSIA and how, over time, the limits decrease from 600 ppm to 100 ppm by August 14, 2011 unless the Commission determines that it is not technologically feasible to meet this lower limit. Section 1500.88(a) also stated that, “Paint, coatings or electroplating may not be considered a barrier that would make the lead content of a product inaccessible to a child.”

We did not receive any comment on this provision. However, we have, on our own initiative, revised the last sentence by adding, “Section 101(b)(2) of the CPSIA further provides that the lead limits do not apply to component parts of a product that are not accessible to a child. This section specifies that a component part is not accessible if it is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product including swallowing, mouthing, breaking, or other children's activities, and the aging of the product, as determined by the Commission.”

Section 1500.88(b) explained that if the Commission determines that it is not technologically feasible for certain electronic devices, the Commission must issue requirements by regulation to eliminate or minimize the potential for exposure to and accessibility of lead in such electronic devices and establish a schedule by which such electronic devices shall be in full compliance unless the Commission determines that full compliance is not technologically feasible for such devices within a schedule set by the Commission.

We have, on our own initiative, modified this section to add “within a schedule set by the Commission” after “such devices.” This modification reflects the statutory language at section 101(b)(4)(B) of the CPSIA.

One commenter requested guidance regarding the definition of “electronic devices.”

The CPSIA does not provide a definition for electronic devices. However, we believe a reasonable definition of an electronic device is “a device that generates, stores, distributes, or converts electrical energy into another energy form.” Examples of children's electronic devices include, but are not limited to, products with batteries or power cords (or that use solar power or other power sources), such as music players, headphones, some toys and games, some calculators, and certain computers or similar electronic learning products.

Section 1500.88(c) provided that certain lead-containing component parts in electronic devices that are unable to meet the lead limits would be granted exemptions provided that the use of lead is necessary for the proper functioning of the component part and it is not technologically feasible for the component part to meet the lead content limits.

On our own initiative, we have modified this section to add the word “accessible” in between “certain” and “lead-containing component parts,” to make clear that the exemptions in the rule are applicable only to accessible component parts. Inaccessible component parts are already excluded from the lead limits under section 101(b)(2) of the CPSIA.

One commenter stated that the exemptions should be narrowed to cover only components of electrical goods. This commenter asserted that the language in the interim final rule could be read to exclude general materials that contain metal alloys and enable manufacturers to add lead although it may not be technologically necessary to do so.

The rule was intended to be limited to the materials and components necessary for the electronic functioning of children's electronic devices. In response to the comments, we have revised § 1500.88(c) by adding the word “electronic” before the word “functioning.” In addition, we have further clarified § 1500.88(d) to add the word “electronic” before “component parts” in the first sentence. Non-functional uses of lead in children's electronic devices remain subject to the lead content limits under section 101(a) of the CPSIA. For example, if the metal component part was purely decorative, such as a cell phone charm or wrist accessory sold with, or attached to, a child's phone, that charm or accessory is not necessary to the proper electronic functioning of the component part and is subject to the lead content limits.

Another commenter requested that the exemptions for the metal alloy components in children's electronic devices be extended to products whose mechanical functions require the use of material containing lead, such as a brass collar on the wheel of a toy. The commenter also asserted that the electronic exemption for “lead-bronze bearing shells and bushings” are not primarily used for the transmission of electrical current, but are mechanical devices.

Section 101(b)(4) of the CPSIA allows exemptions to the lead content limits if the Commission finds that it is not technologically feasible to remove the lead from the electronic devices. This section does not provide for exemptions for other types of products that are unrelated to electronic devices. The exemptions under this rule include bearing shells and bushings only when those bearing shells and bushings are integral to the operation of certain electronic devices, such as electric motors. For this reason, lead-bronze bearing shells and bushings are allowed in children's electronic devices. However, the exemption does not extend to bearing shells and bushings in children's products that are unrelated to electronic operations because they do not fall within the scope of these exemptions. Such components must comply with the CPSIA's lead content limits. We note that if such components are inaccessible to a child, they would not be subject to the CPSIA lead content limits under 16 CFR 1500.87.

One commenter stated that the health implications of lead exposure from the electronic products have not been considered and that the interim final rule does not provide an incentive to improve technology to reduce lead content. The commenter also stated that exempted products should be labeled as to lead content. Another commenter stated that no exemptions should be granted given the dangerous effects of lead in children.

As discussed in the preamble to the interim final rule (74 FR at 6992), the complete elimination of lead, or the reduction in lead content to the lead content limits specified in the CPSIA, is currently not technologically feasible for certain components of children's electronic products. Accordingly, the final rule provides for exemptions from the lead limits for a limited number of components of electronic devices that must be manufactured using lead, including in certain metal alloys. Such component parts could include power cord pins, cathode-ray tubes, and electrical connectors. Children are not expected to experience significant exposures to lead from these few applications. The lead containing components that are being exempted are components that one would not expect children to mouth, swallow, or handle for significant periods under normal and reasonably foreseeable conditions. Moreover, with few exceptions, many electronic devices will be in compliance with the lead limits under the CPSIA either because they already meet the lead content limits or because the lead-containing component part is inaccessible (74 FR at 6992).

Furthermore, we do not believe that labeling electronic devices for their lead content would add to the safety of these products. In the absence of the exemptions provided for in the CPSIA and this rule, certain electronics devices would be banned if they were intended primarily for children. The likely substitute for some of these products would be similar products that are intended for general consumer use. Thus, not providing these exemptions could result in increases in the children's lead exposure from products intended for general consumer use that are not subject either to the lead limitations in the CPSIA or the alternate lead limits provided for in the exemptions under this rule.

We also disagree with the commenter's assertion that the rule does not provide incentives for technological improvements. Congress recognized that certain electronic devices currently may not be able to meet the lead content limits. However, under section 101(b)(5) of the CPSIA, the Commission specifically was directed to periodically review and revise the regulations, as necessary, no less than every five years. The Commission intends to continue to evaluate the technological feasibility of making accessible component parts inaccessible, and to reevaluate the exemptions within that time frame as provided under § 1500.88(f) of this rule.

This section set forth the specific exemptions for lead as used in certain component parts in children's products. As discussed in part C.3 of this preamble, we have added the word “electronic” before “component parts” in the first sentence of § 1500.88(d) to make clear that this rule applies to materials and components necessary for the electronic functioning of children's electronic devices.

Additionally, on our own initiative, we have revised § 1500.88(d)(1) to insert a comma between “electronic components” and “and fluorescent tubes” to clarify that electronic components and fluorescent tubes should be considered as separate items rather than as one item or as synonyms. We also have revised § 1500.88(d)(2) to replace “3,500 ppm” with “3,500 ppm,” for purposes of consistency with how the ppm levels are expressed elsewhere in the final rule. We also have revised § 1500.88(d)(8) to insert a comma between “the seal frit and frit ring” and “as well as in print pastes” to clarify that a seal frit and frit ring are distinct from print pastes.

Commenters representing the electronics industry manufacturers asserted that the list of exempted materials and components in the final rule is too limited. They requested that the rule incorporate all of the current exemptions of the use of lead in the European Union's Restriction on Hazardous Substances (EU RoHS) directive to avoid inconsistencies and to harmonize with other standards. They claimed that while ongoing research aims to find alternatives and eliminate the use of lead, it is not yet technologically feasible to avoid all uses of lead. The commenters also asserted that testing for lead in electronic products is difficult and costly.

We do not believe that it is necessary to incorporate into the rule all of the exemptions listed in the EU RoHS directive. (European Union Directive 2002/95/EC and amendments to the directive are available at http://eur-lex.europa.eu/en/index.htm.) The European Union and other countries and authorities have adopted restrictions on the use of lead and other chemicals in electronic devices to address concerns related to human health and environmental impacts of waste electrical and electronic equipment. The EU RoHS directive allows certain exemptions if substitution is not possible from the scientific and technical point of view or if the negative environmental or health impacts caused by substitution are likely to outweigh the human and environmental benefits of the substitution. It also specifies that exemptions must be reviewed at least every four years with the aim of removing such exemptions if it becomes technologically or scientifically possible to replace the lead in a particular application. The list of exemptions covered under the EU RoHS directive is intended to cover all electric and electronic equipment.

The list of exemptions provided under this rule is intended to allow the use of lead-containing components used in children's products that are necessary for the electronic functioning of the children's electronic device. Accordingly, the list of exemptions does not include exemptions for uses of lead in components that have no application to, or would not otherwise be used in children's products. For example, adopting the EU RoHS directive would result in the inclusion of EU RoHS directive exemption 23, “Lead alloys as solder for transducers used in high-powered (designed to operate for several hours at acoustic power levels of 125dB SPL and above) loudspeakers” into the final rule. Such high powered speakers may be appropriate for use in a stadium, but are not a children's product. Because the commenters did not identify any specific exemption under the EU RoHS directive or similar directives that may, in fact, require the use of lead in a component of children's electronic devices and that also is not listed as an exemption under this rule, we decline to revise the list of exemptions at this time. We note that this rule does not preclude the commenters from complying with the EU RoHS directive if they choose to do so. However, if commenters need additional exemptions for lead-containing component parts in children's electronic devices, they can submit a petition under the procedures set forth under 16 CFR part 1051 with the supporting documentation. A general request for regulatory action which does not reasonably specify the type of action requested is not sufficient for purposes of a petition request. 16 CFR 1051.6(a)(5).

Commenters also requested that the rule explicitly state that exempted or inaccessible parts are not subject to the testing requirement of section 102 of the CPSIA.

With regard to inaccessible component parts, the preamble to the inaccessibility rule stated that a manufacturer currently is not required to provide third-party testing to demonstrate inaccessibility (74 FR at 39537). In addition, many of the exemptions provided under this rule do not require testing under section 102 of the CPSIA because there are no lead limits associated with the exemptions. However, the exemptions for the metal alloys are not blanket or absolute exemptions. Instead, they are presented as alternate lead limits. As such, those components, i.e., copper (less than 4 percent lead by weight), steel (less than 0.35 percent lead by weight), and aluminum (less than 0.4 percent lead by weight), must still be tested by the manufacturer to verify that these component parts comply with these higher lead limits under section 102 of the CPSIA.

The Commission intends to address component part testing and the establishment of protocols and standards for ensuring that children's products are tested for compliance with applicable children's products safety rules in an upcoming rulemaking.

As for the other specific exemptions mentioned in § 1500.88(d), such as lead used in compliant pin connector systems (§ 1500.88(d)(6)), lead used in optical and filter glass (§ 1500.88(d)(7)), lead oxide in plasma display panels and surface conduction electron emitter displays used in structural elements (§ 1500.88(d)(8)), and lead oxide in the glass envelope of Black Light Blue lamps (§ 1500.88(d)(9)), we did not receive comments on those provisions. Consequently, the final rule retains those provisions without change.

This section provided that components of electronic devices that are removable or replaceable, such as battery packs and light bulbs, are not subject to the lead content limits if they were otherwise granted an exemption, or are inaccessible when the product is assembled in functional form.

On our own initiative, we have added commas after “replaceable” and “exemption” to clarify that section for readability.

Several commenters addressed removable and replaceable parts. Some commenters supported the exemption from the lead content limits for such parts on the basis that replacing or installing parts of a children's electronic device is not a children's activity. Other commenters opposed the exemption because children could access the lead-containing parts when they are not installed.

We decline to revise the rule as suggested by some commenters. We have determined that removable or replaceable parts, such as battery packs and light bulbs, that are inaccessible when installed in the product, are not subject to the lead content requirements. When installed, such parts are inaccessible under 16 CFR 1500.87. In addition, these types of spare parts or replacement parts, including battery pack and light bulbs, are not intended primarily for children since such parts are available for general use by the public. While spare parts may sometimes be included with a children's product, in many instances, the parts, necessary for the functioning of the electronic device, are to be installed by adults, and are inaccessible to children once installed.

One commenter requested guidance regarding whether a metal key sold with electrical electronic equipment would be subject to the lead content limits. According to the commenter, keys are made with copper alloy and aluminum and contain lead of up to 0.4%. The commenter stated that substitutes containing lead below 300 ppm are unavailable.

The definition of “children's product” means a consumer product designed or intended primarily for children 12 years of age. A key used in connection with a child's electronic device does not necessarily make the key a children's product if the key is intended for an adult to use in safeguarding or monitoring the use of the electronic equipment. In such instances, the key would be in the possession of the adult at all times, and would not be considered a children's product. In other instances, if a key is to be used primarily by a child in connection with an electronic device, an exemption from the lead content limits under the CPSIA would apply only in instances where such a key is necessary for the electronic functioning of the device.

This section provides that the Commission staff will reevaluate and report to the Commission on the technological feasibility of compliance with the lead content limits for children's electronic devices, including the technological feasibility of making accessible component part inaccessible, and the status of the exemptions no less than every five years.

One commenter stated that the EU RoHS directive specifies that exemptions must be reviewed every four years. The commenter requested that the Commission adopt the same four year review cycle.

As discussed in part C.4 of this preamble, we are not adopting all of the exemptions in the EU RoHS directive. Accordingly, the Commission's review of the exemptions provided under this rule will be based on the application of lead in children's electronic devices. Section 101(b)(5) of the CPSIA provides that reviews and possible revision must occur no less frequently than every five years. Thus, we do not believe that the rule needs to be revised at this time. However, to the extent technological advances are made in the next few years, such that the existing exemptions warrant revision or rescission, we will review such changes and consider revisions prior to the five year review period.

Under the Regulatory Flexibility Act (RFA), when an agency issues a proposed rule, it generally must prepare an initial regulatory flexibility analysis describing the impact the proposed rule is expected to have on small entities. 5 U.S.C. 603. The RFA does not require a regulatory flexibility analysis if the head of the agency certifies that the rule will not have a significant effect on a substantial number of small entities.

In the preamble to the interim final rule (74 FR at 6992), the Commission's Directorate for Economic Analysis determined that the exemption for certain specified materials from the requirements of section 101(a) of the CPSIA will not result in any increase in the costs of production for any firm. Its only effect on businesses, including small businesses, will be to reduce the costs associated with compliance with the lead content limits of the CPSIA. Based on the foregoing assessment, the Commission certifies that the rule would not have a significant impact on a substantial number of small entities.

Generally, CPSC rules are considered to “have little or no potential for affecting the human environment,” and environmental assessments are not usually prepared for these rules (see 16 CFR 1021.5(c)(1)). The final rule is not expected to have an adverse impact on the environment, thus, the Commission concludes that no environment assessment or environmental impact statement is required in this proceeding.

According to Executive Order 12988 (February 5, 1996), agencies must state in clear language the preemptive effect, if any, of new regulations. The preemptive effect of regulations such as this final rule is stated in section 18 of the Federal Hazardous Substances Act. 15 U.S.C. 1261n.

The Administrative Procedure Act requires that a substantive rule must be published not less than 30 days before its effective date, unless the rule relieves a restriction. 5 U.S.C. 553(d)(1). Because the final rule provides relief from existing testing requirements under the CPSIA and is virtually identical to an interim final rule that has been in effect since February 10, 2009, the effective date for the final rule is January 20, 2010.

Fort Dodge Animal Health, A Division of Wyeth Holdings Corp., P.O. Box 1339, Fort Dodge, IA 50501 has informed FDA of a change of name and mailing address to Fort Dodge Animal Health, Division of Wyeth Holdings Corp., a wholly owned subsidiary of Pfizer, Inc., 235 East 42d St., New York, NY 10017. In a separate action, Fort Dodge Animal Health, Division of Wyeth, 800 Fifth St. NW., Fort Dodge, IA 50501 has informed FDA of a change of name and mailing address to Fort Dodge Animal Health, Division of Wyeth, a wholly owned subsidiary of Pfizer, Inc., 235 East 42d St., New York, NY 10017. Accordingly, the agency is amending the regulations in 21 CFR 510.600(c) to reflect these changes.

This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

Background

The final regulations (TD 9475) that are the subject of this document are under sections 358, 368 and 1502 of the Internal Revenue Code.

As published, the final regulations (TD 9475) contain an error that may prove to be misleading and is in need of clarification.

The final regulations (TD 9475) that are the subject of this document are under sections 358, 368 and 1502 of the Internal Revenue Code.

As published, the final regulations (TD 9475) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, the publication of the final regulations (TD 9475), which were the subject of FR Doc. E9-30170, is corrected as follows:

1. On page 67054, column 1, in the preamble, under the paragraph heading “Background”, line 12 from the bottom of the column, the language “transaction if the same persons or” is removed and replaced with the language “transaction if the same person or” in its place.

2. On page 67055, column 2, in the preamble, under the paragraph heading “Issuance of Nominal Share”, line 9 from the bottom of the third paragraph of the column, the language “the rule that if the same persons or” is removed and replaced with the language “the rule that if the same person or” in its place.

ATF is responsible for implementing Title XI, Regulation of Explosives (18 United States Code (U.S.C.) chapter 40), of the Organized Crime Control Act of 1970. One of the stated purposes of the Act is to reduce the hazards to persons and property arising from misuse and unsafe or insecure storage of explosive materials. Under section 847 of title 18, U.S.C., the Attorney General “may prescribe such rules and regulations as he deems reasonably necessary to carry out the provisions of this chapter.” Regulations that implement the provisions of chapter 40 are contained in title 27, Code of Federal Regulations (CFR), part 555 (“Commerce in Explosives”).

On January 29, 2003, ATF published in the Federal Register a notice of proposed rulemaking (NPRM) soliciting comments from the public and industry on a number of proposals to amend the regulations in part 555 (Notice No. 968, 68 FR 4406).1 ATF issued the NPRM, in part, pursuant to the Regulatory Flexibility Act (RFA), which requires an agency to review, within ten years of publication, rules for which an agency prepared a final regulatory flexibility analysis addressing the impact of the rule on small businesses or other small entities. Notice No. 968 proposed amendments to the regulations that were initiated by ATF and amendments proposed by members of the explosives industry. In particular, ATF proposed to amend the regulations regarding the storage of shock tube. In general, § 555.213(b) provides that detonators are not to be stored in the same magazine with other explosive materials. However, in a type 4 magazine, detonators that will not mass detonate may be stored with electric squibs, safety fuse, igniters, and igniter cord. ATF proposed to amend § 555.213(b) to allow shock tube to be stored in a type 4 storage magazine with detonators that will not mass detonate because these materials when stored together do not pose a mass detonation hazard.

The comment period for Notice No. 968, initially scheduled to close on April 29, 2003, was extended until July 7, 2003, pursuant to ATF Notice No. 2 (68 FR 37109, June 23, 2003). ATF received approximately 1,640 comments in response to Notice No. 968. This final rule addresses only one of the subjects included in Notice No. 968, the proposal regarding the storage of shock tube. The remaining proposals made in Notice No. 968 may be addressed separately.

Sixty-one (61) comments addressed ATF's proposal to allow shock tube to be stored in a type 4 storage magazine with detonators that will not mass detonate. One commenter objected to all the proposed amendments in Notice No. 968 and expressed specific concerns with respect to certain proposals. However, the commenter did not specifically address ATF's proposal relating to the storage of shock tube.

Fifty-six (56) commenters offered general support for ATF's proposal, while four commenters expressed specific support for the proposed amendment.

As stated in its comment, the Institute of Makers of Explosives (IME) represents United States manufacturers of explosives, as well as other companies that distribute explosives or provide related services. According to IME, over 2.5 million metric tons of explosives are used annually in the United States, of which IME member companies produce over 95 percent, which have an estimated value in excess of $1 billion annually. IME supported the proposed amendment, stating that it has made several requests to allow shock tube to be stored with detonators, and highlighting the fact that shock tube manufactured with a detonator attached is currently permitted to be stored with detonators.

The Colorado Division of Oil and Public Safety, which is the State of Colorado's regulatory enforcement authority for the manufacturing, sale, transportation, storage, and use of commercial explosives in non-mining related operations, supported the proposed amendment and stated it was “long overdue.”

The Alliance of Special Effects & Pyrotechnic Operators, Inc., an organization of special effects professionals who work in motion pictures, television, and on stage, also expressed support for the proposed amendment, characterizing it as “reasonable in view of the nature of shock tubing.”

A federally licensed explosives dealer specifically supported the proposed amendment and asserted that it does not pose a safety risk.

Accordingly, this final rule adopts without change the proposed amendment with respect to shock tube.

This rule has been drafted and reviewed in accordance with Executive Order 12866, Regulatory Planning and Review section 1(b). The Department of Justice has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and accordingly this rule has not been reviewed by the Office of Management and Budget. This rule will not have an annual effect on the economy of $100 million, nor will it adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health, public safety, or State, local, or tribal governments or communities. Accordingly, this rule is not an “economically significant” rulemaking as defined by Executive Order 12866.

Further, the Department has assessed both the costs and benefits of this rule as required by Executive Order 12866, section 1(b)(6), and has made a reasoned determination that there will be no financial costs incurred by explosives industry members associated with this final rule. Comments received in response to the notice of proposed rulemaking did not indicate any concern regarding the financial impact of the implementation of this aspect of the proposed rule. The Department believes any financial impact will benefit the explosives industry by reducing the number of explosives magazines used exclusively to store shock tube. The final rule will provide explosives industry members with the option to consolidate detonators and shock tube into fewer explosive storage magazines, therefore alleviating the additional cost of maintaining separate magazines for each explosive product. ATF estimates the average cost for a new type 4 magazine (4 feet x 4 feet x 4 feet) at $3,000. Not only will the final rule reduce the overall cost incurred by industry members because of the requirement to maintain fewer magazines, but explosives industry members will increase savings by decreasing the number of employee-hours spent maintaining magazines that are used solely for the storage of shock tube.

According to the most recent information from the U.S. Bureau of Labor Statistics, explosives workers, ordnance handling experts, and blasters make an average hourly wage of $20.68. ATF estimates that an average of 1/2 hour per week is spent maintaining each separate magazine. Magazine maintenance includes but is not limited to security, housekeeping, and repairs. ATF estimates that explosives industry members eliminating one magazine will incur an annual yearly savings of approximately $500.

Many non-electric detonators are currently manufactured with shock tube attached as an integral part of the initiation system. ATF has determined that non-mass detonating detonators that are affixed with shock tube as an integral part of the initiation system can be stored in a type 4 magazine, as long as the explosives remain in a non-mass detonating packaged configuration. This final rule will provide consistency to the enforcement of federal law by allowing individuals or companies to store shock tube with non-mass detonating detonators regardless of whether they were integrated during the manufacturing process. Additionally, ATF has consistently approved variance requests from explosives industry members for the storage of shock tube with non-mass detonating detonators in a type 4 magazine because it does not pose a mass detonation hazard.

Until ATF implements this final rule relating to shock tube, explosives industry members will continue to incur unnecessary costs by not being able to utilize all available storage space in each explosives storage magazine and having to maintain additional magazines. Further, this final rule will alleviate these unnecessary burdens on individuals or businesses wishing to establish new explosives companies. ATF believes this final rule will provide current and future explosives industry members with greater flexibility in their explosives storage operations without mandating costly changes in their current or proposed operating procedures.

This rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Attorney General has determined that this regulation does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform.

The Regulatory Flexibility Act (5 U.S.C. 605(b)) requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. The Attorney General has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Individuals or companies storing shock tube will not be affected adversely by this final rule because it allows these entities to voluntarily make modifications to their current explosive operations. There will be no mandated changes as a result of this final rule. Therefore, any costs associated with the implementation of the final rule will be incurred at the discretion of each individual explosives industry member.

Since 2004, there have been 24 instances in which explosives industry members were storing shock tube in the same magazine with detonators, which is currently a violation of the federal explosives regulations. Those 24 instances involved a total of approximately 470,650 feet of shock tube. Twenty of the 24 instances involved companies that ATF would classify as small- or medium-sized businesses. In each instance, the explosives industry member was required to utilize employee-hours to move the shock tube into another magazine. Of these 20 small- or medium-sized companies, 4 were required to attend a warning conference with ATF officials and 6 received an ATF recall inspection, in part because of the violation received for the improper storage of shock tube with detonators. Each industry member was required to dedicate company resources, including employee work hours, to attend the required meetings or be present during another ATF inspection.

As mentioned earlier in the preamble, the most recent information from the U.S. Bureau of Labor Statistics, explosives workers, ordnance handling experts, and blasters make an average hourly wage of $20.68. The final rule will eliminate the need for small- or medium-sized entities to utilize employee hours during warning conferences and recall inspections that are initiated as a result of these industry members storing shock tube and detonators in the same magazine.

Until ATF implements this final rule with respect to shock tube, explosives industry members, including small-sized explosives companies, will continue to incur costs associated with the unnecessary movement and separate storage requirements of shock tube due to current explosive regulations. Further, implementation of this final rule will alleviate these unnecessary burdens on individuals or businesses wishing to establish new explosives companies, some of which will be small entities. ATF believes this final rule will provide current and future explosives industry members with greater flexibility in their explosives storage operations without mandating costly changes in their current or proposed operating procedures.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This final rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

Copies of the notice of proposed rulemaking, all comments received in response to the NPRM, and this final rule will be available for public inspection by appointment during normal business hours at: ATF Reading Room, Room 1E-063, 99 New York Avenue, NE., Washington, DC 20226; telephone: (202) 648-7080.

The author of this document is James P. Ficaretta; Enforcement Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives.

In a document published in the Federal Register on May 8, 2009 (74 FR 21565), we proposed to amend VA's vocational rehabilitation and employment regulations. We provided a 60-day comment period for the proposed rule that ended on July 7, 2009. We received no comments.

In 38 CFR part 21, Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31, we are revising § 21.40 concerning basic entitlement to vocational rehabilitation benefits and services; § 21.282 concerning effective dates of induction into a rehabilitation program; and § 21.50(d) concerning cooperation and lack of cooperation in the initial evaluation process. VA previously addressed and implemented changes to services provided under 38 U.S.C. chapter 31, which resulted from a court decision and the enactment of Public Law 104-275, the Veterans Benefits Improvement Act of 1996. This included VA's issuance of Circular 28-97-1 in 1997 (last revised in October 2004) to provide guidance regarding the implementation of these changes. This final rule will update 38 CFR part 21 consistent with current practice. In addition, the final rule will make other non-substantive changes.

We are revising § 21.40 to include criteria, effective October 1, 1993, for vocational rehabilitation basic entitlement determinations resulting from the Veterans' Benefits Act of 1992 (Pub. L. 102-568), enacted October 29, 1992. Public Law 102-568 amended 38 U.S.C. 3102(2) to entitle veterans to vocational rehabilitation if they have a 10 percent service-connected disability and are determined by the Secretary of Veterans Affairs to be in need of rehabilitation due to a serious employment handicap. Further, the changes to § 21.40 are intended to reflect the provisions of section 602(c) of the Veterans Benefits Improvement Act of 1994 (Pub. L. 103-446), which amended section 404(b) of Public Law 102-568 with a technical correction, effective October 29, 1992. This rule prescribes basic entitlement to vocational rehabilitation if they have a 10 percent service-connected disability, they originally applied for assistance under 38 U.S.C. chapter 31 before November 1, 1990, and VA determines they need rehabilitation because of an employment handicap.

In § 21.282, we address the decision of the United States Court of Appeals for Veterans Claims (then the United States Court of Veterans Appeals) in Bernier v. Brown, 7 Vet. App. 434 (1995), concerning effective dates for retroactive induction into a program of rehabilitation benefits and services. The Bernier decision set aside two provisions of current § 21.282 that limited retroactive induction into programs of rehabilitation benefits and services under 38 U.S.C. chapter 31. Under revised § 21.282, VA will be able to retroactively approve a period of training that occurred within an individual's period of eligibility under 38 CFR 21.41 through 21.46, beginning on the effective date of entitlement to disability compensation, provided that the individual met the criteria for entitlement to chapter 31 benefits and services for that period. VA must determine that the training and other rehabilitative services that the individual received during the period of retroactive induction were reasonably needed to achieve the planned goals and objectives identified for that individual. If the individual received other VA-administered education benefits during any portion of that period, VA must offset the previous education benefits received against the payment of chapter 31 vocational rehabilitation benefits for the same period.

We are revising § 21.282(b) and (c) to clarify when an individual on active duty can qualify for retroactive induction and when the conditions for retroactive induction may apply to both veterans and servicemembers. For servicemembers, the period of retroactive induction must be within a period under § 21.40(c) during which a servicemember was awaiting discharge for disability. In § 21.282(b), we are clarifying that if an individual is retroactively inducted into a rehabilitation program, VA may authorize payment of tuition, fees, and other verifiable expenses that an individual paid or incurred consistent with the approved rehabilitation program. Section 21.282(b) will also authorize VA payment of subsistence allowance for the period of retroactive induction, except for any period during which the individual was on active duty. We are amending § 21.282(c) to comply with pertinent statutory authorities by stating the conditions that must be met before an individual may be inducted into a rehabilitation program on a retroactive basis.

In response to the invalidation of the language in current § 21.282(c) in Bernier, we will state in § 21.282(d) that the effective date for retroactive induction is the date on which all the entitlement conditions set forth in § 21.282(c) are met, and for a veteran (except as to a period prior to discharge from active duty) in no event before the effective date of a VA rating establishing a qualifying level of service-connected disability under § 21.40.

In the Federal Register of March 26, 2007 (72 FR 14041), VA published amendments to several sections in 38 CFR part 21, including § 21.50. We are revising § 21.50(d) to reflect VA's determination of appropriate procedures and to clarify the action VA will take if an individual fails to cooperate with the counseling psychologist or vocational rehabilitation counselor in the initial evaluation process. Section 21.50(d) provides that if an individual does not cooperate, even after reasonable attempts are made to secure cooperation, VA will suspend the initial evaluation process and that individual will not be considered inducted into a rehabilitation program. Section 21.50(d) will also include references to §§ 21.632 and 21.634 regarding satisfactory and unsatisfactory conduct and cooperation.

For the reasons stated above and as stated in the notice of proposed rulemaking, VA adopts the proposed rule as a final rule without change.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

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 the 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 year. This final rule will have no such effect on State, local, and Tribal governments, or on the private sector.

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 final rule have been examined and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

The Secretary hereby certifies that this final rule will 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 not directly affect any small entities. Only individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The program that this rule will affect has the following Catalog of Federal Domestic Assistance number and title: 64.116, Vocational Rehabilitation for Disabled Veterans.

On March 9, 2009, VA published a proposed rule in the Federal Register (74 FR 9975). We proposed to amend VA's regulations in 38 CFR Part 21, Subpart A—Vocational Rehabilitation Under 38 U.S.C. Chapter 31. The amendments in the proposed rule concerned periods of eligibility applicable to VA's provision of Vocational Rehabilitation and Employment (VR&E) benefits and services.

VA provided a 60-day comment period for the proposed rule that ended May 8, 2009. We received no comments. Based on the rationale set forth in the proposed rule, we are adopting the provisions of the proposed rule as a final rule without change.

Specifically, in 38 CFR 21.41, we are clarifying the term “basic period of eligibility.” We are revising § 21.42 to clarify who is authorized to determine that a veteran's participation in a vocational rehabilitation program is reasonably feasible and when a basic period of eligibility would begin or resume. We are revising § 21.44 to more clearly state the length of time that an extension of the basic period of eligibility for a veteran with a serious employment handicap may be granted. Section 21.45 is being revised to clearly state the length of extension of the basic period of eligibility for a veteran in a program of independent living services. Finally, we are adding a new § 21.46 to reflect and interpret an amendment to 38 U.S.C. 3103 that extends the period of eligibility for a veteran who VA determines “was prevented from participating” in a vocational rehabilitation program because the veteran was recalled to active duty.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

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 the 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 year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

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 final 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 final rule will 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 final rule will not affect any small entities. Only individuals will be affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The program that this final rule will affect has the following Catalog of Federal Domestic Assistance number and title: 64.116, Vocational Rehabilitation for Disabled Veterans.

In a document published in the Federal Register on April 28, 2009 (74 FR 19164), we proposed to amend VA's regulations concerning self-employment in 38 CFR part 21 that are applicable to benefits and services under 38 U.S.C. chapter 31, Training and Rehabilitation for Veterans with Service-Connected Disabilities, and 38 U.S.C. chapter 18, Benefits for Children of Vietnam Veterans and Certain Other Veterans. We provided a 60-day comment period that ended on June 29, 2009. We received comments from one individual in support of the proposed changes. Consequently, we make no changes based on the commenter's submission.

The Veterans' Benefits Act of 1996, Public Law 104-275 (enacted October 9, 1996), amended 38 U.S.C. 3104(a)(12) regarding the special assistance and supplies that VA can provide for individuals pursuing self-employment programs. Prior to the enactment of Public Law 104-275, only “the most severely disabled” individuals who required self-employment were, under 38 CFR 21.258, entitled to the special supplies, equipment, stock, and license fees described in 38 CFR 21.214(e). Public Law 104-275 amended 3104(a)(12) by restricting the provision of those special supplies, equipment, stock, and license fees to individuals “with the most severe service-connected disabilities who require homebound training or self employment.” VA implemented the statutory amendments upon enactment but until this rulemaking did not incorporate them in VA's regulations. This rule conforms VA's regulations to the statutory provisions and prescribes (in § 21.257 rather than current § 21.258) criteria for providing such special supplies, equipment, stock, and license fees for individuals who require self-employment.

We are revising some of the requirements under § 21.254 pertaining to a service-disabled veteran trained for self-employment under a State rehabilitation agency. We are eliminating the burdensome and restrictive requirement under § 21.254 for certification by an official of the State rehabilitation agency with responsibility for administration of self-employment programs. Instead, we are listing the conditions under which an individual who has trained for self-employment under a State rehabilitation agency may be provided special supplies, equipment, stock, and license fees if there is a VA determination that the qualifying criteria are met.

In addition, we are eliminating the requirement currently in § 21.254 that, prior to authorization of any supplies, the Director, Vocational Rehabilitation and Education (VR&E) Service, must approve the request if the cost of supplies is more than $2,500.

We are amending the criteria for approval of self-employment as a vocational goal for an individual. Current § 21.257(a) is overly restrictive because it maintains that self-employment is only available to an individual if access to the normal channels for suitable employment is limited by his or her disability(ies). Current § 21.257(b) is vague because it does not specify what other circumstances in the individual's situation warrant consideration of self-employment. Self-employment as a mode of employment is authorized for all program participants for whom it is deemed appropriate for achieving rehabilitation. We are revising § 21.257 to remove the above-referenced restriction on authorizing self-employment as a suitable vocational goal and to limit consistent with the amendment to section 3104(a)(12) the self-employment special assistance under 38 CFR 21.214(e) to “individuals with the most severe service-connected disability(ies) who require self-employment.”

The approval requirement of costs related to self-employment programs is in accordance with 38 U.S.C. 3104(a)(12). We are amending § 21.258 to reflect existing VA policy that requires approval of costs of the provision of special supplies, equipment, stock, and license fees for self-employment programs. Section 21.258 will require that a self-employment plan having an actual or estimated cost of $25,000 or more must be approved by the Director, VR&E Service.

Many of the amendments to 38 CFR part 21, subpart A, in this final rule are also applicable to the vocational rehabilitation program under 38 U.S.C. chapter 18 regarding benefits for children of Vietnam veterans and certain other veterans (see 38 CFR part 21, subpart M). In subpart M, §§ 21.8020, 21.8210, and 21.8380 provide for the applicability of §§ 21.214, 21.254, 21.256, 21.257, 21.258, and 21.430 in a manner comparable to their application for a veteran under the chapter 31 program. Accordingly, we are amending § 21.8020 to clarify how we will apply § 21.257 to the provision of services and assistance under subpart M in a manner that we consider to be comparable to its application for a veteran under the 38 U.S.C. chapter 31 program. Under § 21.8020, an individual who has been determined to have limitations affecting employability arising from the effects of the individual's spina bifida or other covered birth defects, which are so severe as to necessitate selection of self-employment as the only reasonably feasible vocational goal for the individual, will also be deemed to have met the requirements for application of § 21.257(e)(1) and (2). We are making a related clarifying change in § 21.8020(d), intended to remove the possible implication that self-employment is not among the employment options for a participant's program under subpart M.

This final rule conforms VA's regulations to the provisions of 38 U.S.C. 3104(a)(12), as amended, and regarding those provisions is applicable to claims pending on or after the effective date of the amendments, October 9, 1996.

For the reasons stated above and in the notice of proposed rulemaking, the proposed rule is adopted as a final rule without change.

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

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 the 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 year. This rule will have no such effect on State, local, and tribal governments, or on the private sector.

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 final 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 final rule will 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 final rule will not directly affect any small entities. Only individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance numbers and titles for the programs that will be affected by this final rule are 64.116, Vocational Rehabilitation for Disabled Veterans; and 64.128, Vocational Training and Rehabilitation for Vietnam Veterans' Children with Spina Bifida or Other Covered Defects.

The Federal Emergency Management Agency (FEMA) makes the final determinations listed below for the modified BFEs for each community listed. These modified elevations have been published in newspapers of local circulation and ninety (90) days have elapsed since that publication. The Assistant Administrator for Mitigation has resolved any appeals resulting from this notification.

This final rule is issued in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR part 67. FEMA has developed criteria for floodplain management in floodprone areas in accordance with 44 CFR part 60.

Interested lessees and owners of real property are encouraged to review the proof Flood Insurance Study and FIRM available at the address cited below for each community. The BFEs and modified BFEs are made final in the communities listed below. Elevations at selected locations in each community are shown.

National Environmental Policy Act. This final rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 13132, Federalism. This final rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This final rule meets the applicable standards of Executive Order 12988.

A. Background

DoD published an interim rule at 73 FR 1823 on January 10, 2008, to implement Section 807 of the National Defense Authorization Act for Fiscal Year 2007 (Pub. L. 109-364) with regard to limitations on the performance of lead system integrator functions by DoD contractors. On January 28, 2008, Section 802 of the National Defense Authorization Act for Fiscal Year 2008 (Pub. L. 110-181) placed additional limitations on DoD's use of lead system integrators. A second interim rule was published on July 15, 2009, amending the first interim rule. One comment was received after the comment period closed. The comment concerned the definitions of lead system integrator with system responsibility and lead system integrator without system responsibility. The comment was addressed in the interim rule published on July 15, 2009.

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

DoD certifies that this final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because application of the rule is limited to contractors performing lead system integrator functions for major DoD systems.

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

This finalizes, without change, the interim rule that implemented the Dominican Republic—Central America—United States Free Trade Agreement with respect to Costa Rica and the United States-Peru Trade Promotion Agreement. The trade agreements waive the applicability of the Buy American Act for DoD acquisition of some foreign supplies and construction materials from Costa Rica and Peru and specify procurement procedures designed to ensure fairness.

In addition, the interim rule amended DFARS 225.003 to exclude Oman from the definition of “Free Trade Agreement country” for purposes of DoD acquisitions.

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

DoD certifies that this rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Although the rule opens up DoD acquisition to the products of Costa Rica and Peru, DoD does not estimate a significant economic impact on U.S. small businesses. DoD applies the trade agreements to only those non-defense items listed at DFARS 225.401-70, and acquisitions that are set aside for small businesses are exempt from application of the trade agreements. No public comments were received relating to the burden on small businesses.

The interim rule affected the certification and information collection requirements in the provisions at DFARS 252.225-7020 and 252.225-7035, currently approved under Office of Management and Budget Control Number 0704-0229. The impact, however, was negligible.

Regulations governing fishing activity in the LAGC fishery authorize vessels issued a valid IFQ scallop permit to fish in the LAGC fishery under specific conditions, including a TAC (see §§ 648.59, 648.60, and 648.53(a)(8)(iii)). The TACs were established by the final rule that implemented Framework 19 to the FMP (73 FR 30790, May 29, 2008) and included an annual TAC of 4,590,024 lb (2,082,000 kg) that may be landed by IFQ vessels during the 2009 fishing year, approximately 459,002 lb (208,199 kg) of which was remaining for harvest at the beginning of the fourth quarter. The regulations at § 648.53(a)(8)(iii) require the LAGC fishery to be closed to IFQ vessels once the Northeast Regional Administrator has determined that the TAC is projected to be landed.

Based on dealer reporting and vessel pre-landing reports through Vessel Monitoring Systems (VMS), it is projected that, given current fishing activity levels of IFQ scallop vessels in the area, 4,590,024 lb (2,082,000 kg) will have been landed by January 18, 2010. Therefore, in accordance with the regulations at § 648.53(a)(8)(iii), the LAGC scallop fishery is closed to all general IFQ vessels as of 0001 hr local time January 18, 2010. Accordingly, this closure is in effect for the remainder of the fourth quarter of the 2009 scallop fishing year. IFQ scallop vessels are not allowed to fish for, possess, or retain scallops, or declare, or initiate, a scallop trip following this closure for the remainder of the 2009 fourth quarter, ending on February 28, 2010. The LAGC scallop fishery is scheduled to re-open to IFQ scallop vessels on March 1, 2010.

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

This action closes the LAGC scallop fishery to all IFQ scallop vessels until March 1, 2010. The regulations at § 648.53(a)(8)(iii) require such action to ensure that IFQ scallop vessels do not exceed the 2009 fishing year annual TAC. The LAGC scallop fishery opened for the fourth quarter of the 2009 fishing year at 0001 hours on December 1, 2009. Data indicating the IFQ scallop fleet has landed all of the 2009 fourth quarter TAC have only recently become available. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. If implementation of this closure is delayed to solicit prior public comment, the quota for this quarter will be exceeded, thereby undermining the conservation objectives of the FMP. The AA further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

In accordance with § 679.20(a)(8)(iii)(A), owners and operators of vessels using trawl gear for directed fishing for Atka mackerel in the HLA are required to register with NMFS. Eight vessels have registered with NMFS to fish in the A season HLA fisheries in areas 542 and/or 543. In accordance with § 679.20(a)(8)(iii)(B), the Administrator, Alaska Region, NMFS, has randomly assigned each vessel to the HLA directed fishery for Atka mackerel for which they have registered and is now notifying each vessel of its assignment in accordance with § 679.20(a)(8)(iii).

For the Amendment 80 cooperative, the vessels authorized to participate in the first HLA directed fishery in area 542 and the second HLA directed fishery in area 543 are as follows: Federal Fishery Permit number (FFP) 2134 Ocean Peace and FFP 3835 Seafisher.

For the Amendment 80 cooperative, the vessel authorized to participate in the first HLA directed fishery in area 543 and the second HLA directed fishery in area 542 is as follows: FFP 2733 Seafreeze Alaska.

For the Amendment 80 limited access sector, vessels authorized to participate in the first HLA directed fishery in area 542 and in the second HLA directed fishery in area 543 are as follows: FFP 3423 Alaska Warrior and FFP 4093 Alaska Victory.

For the Amendment 80 limited access sector, the vessels authorized to participate in the first HLA directed fishery in area 543 and the second HLA directed fishery in area 542 are as follows: FFP 2443 Alaska Juris and FFP 3819 Alaska Spirit.

For the BSAI trawl limited access sector, the vessel authorized to participate in the first HLA directed fishery in area 542 is as follows: FFP 11770 Alaska Knight.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is unnecessary. This notice merely advises the owners of these vessels of the results of a random assignment required by regulation. The notice needs to occur immediately to notify the owner of each vessel of its assignment to allow these vessel owners to plan for participation in the A season HLA fisheries in area 542 and area 543.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.