This proposed rule has been determined to be not significant and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866.

This proposed rule has been reviewed under E. O. 12988, Civil Justice Reform. If this proposed rule is adopted: (1) Unless otherwise specifically provided, all state and local laws that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit.

The proposed rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). The undersigned has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities. This rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

There are no new reporting and recordkeeping requirements associated with this rule.

RHS is committed to complying with the E-Government Act, by promoting the use of the Internet and other information technologies in order to provide increased opportunities for citizen access to Government information, services, and other purposes.

This rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for state, local and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” RHS determined that the proposed action does not constitute a major Federal action significantly affecting the quality of the environment. Therefore in accordance with the National Environmental Policy Act of 1969, Pub. L. 91-190, an Environmental Impact Statement is not required.

The programs affected by this regulation are listed in the Catalog of Federal Domestic Assistance under numbers 10.405—Farm Labor Housing Loans and Grants; 10.415—Rural Rental Housing Loans; and 10.427—Rural Rental Assistance Payments.

For the reasons discussed above, this proposed rule does not have significant Federalism implications that warrant the preparation of a Federalism assessment under Executive Order 13132.

These loans are subject to the provisions of E.O. 12372 which require intergovernmental consultation with state and local officials. RHS conducts intergovernmental consultations for each loan in a manner delineated in 7 CFR part 1940, subpart J (available in any Rural Development office and on the Internet at http://www.rurdev.usda.gov ).

A life-cycle cost analysis that meets Rural Development approval will be prepared by the project architect. The life cycle cost analysis will be used to determine the expected usable life of a building component and furnishing and to determine which building components or furnishings are the most cost efficient over the life to the building. The reserve account deposit level will be maintained through steady deposits to meet the needs of the project as they become due. Adjustments may be made at five or ten year intervals, either through an updated Comprehensive Needs Assessment or a part of the original plan. The requirement for a life cycle cost analysis will be used for new construction rental housing funded under Sections 514/516 and Section 515 of the Housing Act of 1949. The new requirement is intended to assure quality construction as well as long term viability of complexes. Reserve levels will be based on life cycle costs in order to ensure necessary resources are available when needed to replace essential building components. Existing loan agreement forms will have an addendum that is properly executed by the borrower establishing the terms of the life cycle analysis and reserve requirement. The current interim final rule requires an annual minimum deposit of 1 percent of the total development cost be put in a reserve account. This regulatory change is proposed to assure that we have the reserve accounts properly sized to meet the capital needs anticipated at the time of construction. This change will only affect reserve account requirements of new construction rental housing funded under Sections 515 RRH or Sections 514/516 Farm Labor Housing. Due to the recent increase in the use of third party money to leverage Rural Development funding, the Agency has found that the arbitrary nature of the existing reserve account funding formula sometimes causes the reserve account to be set artificially high. While the objective of the proposed change is to primarily produce an accurately measured reserve account funding requirement, the change may actually lead to reduced funding levels in MFH new construction projects that utilize leveraged financing.

Therefore, chapter XXXV, Title 7 of the Code of Federal Regulations, is proposed to be amended as follows:

The NRC is proposing to amend 10 CFR 50.55a to incorporate by reference the 2004 Edition of Section III, Division 1 and Section XI, Division 1 of the ASME BPV Code and the 2004 Edition of the ASME OM Code. Section 50.55a requires the use of Section III, Division 1 of the ASME BPV Code for the construction of nuclear power plant components; Section XI, Division 1 of the ASME BPV Code for the inservice inspection (ISI) of nuclear power plant components; and the ASME OM Code for the inservice testing (IST) of pumps and valves.

In a separate proposed rule, published on March 13, 2006 (71 FR 12781), the Commission proposed to add language to the introductory paragraph of § 50.55a to establish the applicability of the conditions therein to licenses and approvals issued under Part 52. Specifically, that proposed rule would add two new sentences: “Each combined license for a utilization facility is subject to the following conditions in addition to those specified in § 50.55, except that each combined license for a boiling or pressurized water-cooled nuclear power facility is subject to the conditions in paragraphs (f) and (g) of this section, but only after the Commission makes the finding under § 52.103(g)” and “Each manufacturing license, standard design approval, and standard design certification application under part 52 of this chapter is subject to the conditions in paragraphs (a), (b)(1), (b)(4), (c), (d), (e), (f)(3), and (g)(3) of this section.” The Commission expects that the March 13, 2006, proposed rule will become final before the proposed rule updating § 50.55a to the 2004 Edition. The net effect then is that combined licenses would be subject to the updated requirements when the rulemaking proposed in this notice becomes final.

The ASME BPV Code and OM Code are national voluntary consensus standards, and are required by the National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, to be used by government agencies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. It has been the NRC's practice to review new editions and addenda of the ASME BPV and OM Codes and periodically update § 50.55a to incorporate newer editions and addenda by reference. New editions of the subject codes are issued every 3 years; addenda to the editions are issued yearly except in years when a new edition is issued. The editions and addenda of the ASME BPV and OM Codes were last incorporated by reference into the regulations in a final rule dated October 1, 2004, (69 FR 58804). In that rule, § 50.55a was revised to incorporate by reference the 2001 Edition and 2002 and 2003 Addenda of Sections III and XI, Division 1, of the ASME BPV Code and the 2001 Edition and 2002 and 2003 Addenda of the ASME OM Code.

The NRC is now proposing to incorporate by reference: Section III of the 2004 Edition of the ASME BPV Code; Section XI of the 2004 Edition of the ASME BPV Code subject to proposed modifications and limitations; and the 2004 Edition of the ASME OM Code. The NRC is proposing to amend its regulations as follows:

1. Remove 10 CFR 50.55a(b)(2)(xi), concerning components exempt from examination.

2. Remove 10 CFR 50.55a(b)(2)(xiii) concerning the provisions of Code Case N-523-1, “Mechanical Clamping Devices for Class 2 and 3 Piping.”

3. Modify 10 CFR 50.55a(b)(2)(xv) to implement Appendix VIII of Section XI of the 2004 Edition of the ASME BPV Code.

4. Add 10 CFR 50.55a(b)(2)(xx) to require nondestructive examination (NDE) provision in IWA-4540(a)(2) of the 2002 Addenda of Section XI when performing system leakage tests after repair and replacement activities.

5. Revise 10 CFR 50.55a(b)(2)(xxi) to be consistent with the NRC's imposed condition for Code Case N-648-1 in Regulatory Guide (RG) 1.147, Revision 14.

6. Add 10 CFR 50.55a(b)(2)(xxviii) to correct a typographical error regarding an exponent in the evaluation of pressurized water reactor (PWR) reactor vessel head penetration nozzles.

7. Remove 10 CFR 50.55a(g)(6)(ii)(A) and associated paragraphs on the augmented examination of the reactor vessel.

8. Add a paragraph (D) Reactor Vessel Head Inspections to 10 CFR 50.55a(g)(6)(ii) to require an inservice inspection program augmented by the provisions of ASME Code Case N-729-1, “Alternative Examination Requirements for PWR Reactor Vessel Upper Heads With Nozzles Having Pressure-Retaining Partial-Penetration Welds, Section XI, Division 1” subject to conditions and remove Footnote 10.

9. Add a paragraph (E) Reactor Coolant Pressure Boundary Visual Inspections to 10 CFR 50.55a(g)(6)(ii)—Augmented Inspection of Class 1 Components Fabricated with Alloy 600/82/182 Materials to require an inservice inspection program augmented by the provisions of ASME Code Case N-722, “Additional Inspections for PWR Pressure Retaining Welds in Class 1 Pressure Boundary Components Fabricated with Alloy 60/82/182 Materials, Section XI, Division 1” subject to conditions.

The changes to paragraphs (b) and (g) of 10 CFR 50.55a are discussed below. Paragraphs (a), (c), (d), (e), and (f) would remain unchanged because the requirements in these sections would not be changed by virtue of the incorporating by reference of the 2004 Edition of the ASME Code, Sections III and XI, and the OM Code.

The proposed rule would revise § 50.55a(b)(1) to incorporate by reference the 2004 Edition of Section III of the ASME BPV Code. The NRC does not propose to adopt any limitations with respect to the 2004 Edition of Section III.

The proposed rule would revise § 50.55a(b)(2) to incorporate by reference the 2004 Edition of the ASME BPV Code, Section XI, Division 1, subject to the proposed modifications and limitations discussed below:

Paragraph 50.55a(b)(2)(xi) states that “licensees may not apply IWB-1220, “Components Exempt from Examination,” of Section XI, 1989 Addenda through the latest edition and addenda incorporated by reference in paragraph (b)(2) of this section, and shall apply IWB-1220, 1989 Edition.” Subarticle IWB-1220 of the 1989 Edition of the ASME Section XI, exempts certain components (such as small bore piping) from the volumetric and surface examinations. However, welds or portions of welds that are inaccessible due to being encased in concrete, buried underground, located inside a penetration, or encapsulated by guard pipe were included in components for exemption from examination and incorporated in the edition and addenda of the ASME Section XI after the 1989 Edition. The NRC did not agree with the incorporation of these types of welds for exemption from examination because the NRC believed that these welds should be examined to monitor their structural integrity. Therefore, the NRC prohibited the use of 1989 addenda through the latest editions and addenda of the ASME Section XI regarding the application of IWB-1220 in Paragraph 10 CFR 50.55a(b)(2)(xi) (64 FR 51394).

The proposed revision would remove 10 CFR 50.55a(b)(2)(xi), thereby permitting the use of ASME Section XI IWB-1220 of any edition or addenda of ASME Section XI incorporated by reference in 10 CFR 50.55a. The condition placed upon Section XI, IWB-1220 in 10 CFR 50.55a(b)(2)(xi) is no longer necessary because (1) licensees can select an alternate weld for inspection that does not have limitations, (2) licensees have committed to perform augmented inspections of break exclusion zone (BEZ) welds, which are located in inaccessible areas such as containment penetrations or encapsulated by guard pipe, to the extent practical under the BEZ criteria, (3) Boiling water reactor (BWR) licensees have followed the provisions of Generic Letter 88-01, “NRC Position on IGSCC [intergranular stress corrosion cracking] in BWR Austenitic Stainless Steel Piping,” and the associated NRC report, NUREG-0313, “Technical Report on Material Selection and Process Guidelines for BWR Coolant Pressure Boundary Piping,” and the provisions of the BEZ criteria (Reference: Branch Technical Position MEB 3-1 attached to Standard Review Plan 3.6.2) apply to the examination of the welds such as those that are located inside containment penetrations or encapsulated by guard pipe, and (4) licensees of plants whose construction permits were issued after January 1, 1971 are required to have ASME Class 1 and Class 2 components designed and provided with access to enable the performance of inservice inspections.

Paragraph 50.55a(b)(2)(xiii) permits licensees to use the provisions of Code Case N-523-1, “Mechanical Clamping Devices for Class 2 and 3 Piping.” The proposed revision would remove 10 CFR 50.55a(b)(2)(xiii) because Code Case N-523-2, which provides updated requirements to those of Code Case N-523-1, has been accepted in RG 1.147, Revision 14, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” which is incorporated by reference into 10 CFR 50.55a(g)(4)(I) and 10 CFR 50.55a(g)(4)(ii).

Paragraph 50.55a(b)(2)(xv) specifies implementation of Appendix VIII of Section XI, the 1995 Edition through the 2001 Edition of the ASME BPV Code with regard to ultrasonic examinations of piping systems. The proposed change would reference and allow the use of the 2004 Edition of the ASME Code.

Paragraph 50.55a(b)(2)(xx) would be revised to require that after system leakage tests performed during repair and replacement activities by welding or brazing under the 2003 Addenda through the latest edition and addenda incorporated by reference in 10 CFR 50.55a(b)(2), NDE must be performed in accordance with IWA-4540(a)(2) of the 2002 Addenda of Section XI. This provision would require that (1) the NDE method and acceptance criteria of the 1992 edition or later of Section III be met prior to returning the system to service, and that (2) a system leakage test be performed in accordance with IWA-5000 prior to or as part of returning the system to service.

Subarticle IWA-4540(a) of the 1995 edition of ASME Section XI requires that after welding on a pressure retaining boundary or installing an item by welding or brazing, a system hydrostatic pressure test be performed. The industry asserted that the hydrostatic pressure test creates a significant hardship. Subsequently, the ASME Committee developed Code Case N-416-3, “Alternative Pressure Test Requirements for Welded Repairs or Installation of Replacement Items by Welding Class 1, 2, and 3, Section XI, Div. 1,” which provides an alternative to the hydrostatic pressure test. (NRC has accepted Code Case N-416-3 in RG 1.147, Revision 14 which has been incorporated by reference and approved in 10 CFR 50.55a (70 FR 56809; Sept 29, 2005).

Code Case N-416-3 allows that instead of performing a hydrostatic pressure test for welding and brazing repair/replacement activities, performing a system leakage test if two requirements are met. The first requirement is that a NDE be performed on welded or brazed repairs and fabrication and installation joints in accordance with the methods and acceptance criteria of the applicable subsection of the 1992 Edition of Section III. Depending on the category of the weld, the NDE must consist of, in most cases, radiography and examination by either the liquid penetrant or magnetic particle method. The second requirement is that prior to or immediately upon return to service, a visual examination (VT-2) of welded or brazed repairs, fabrication, and installation joints be performed in conjunction with a system leakage test at nominal operating pressure and temperature in accordance with paragraph IWA-5000 of the 1992 edition of Section XI. The technical provisions of ASME Code Case N-416-3 were incorporated into the 2001 Edition of ASME Section XI, IWA-4540(a) and maintained, with minor editorial changes, through the 2002 Addenda to ASME Section XI. The 2003 Addenda of the Code, IWA-4540(a) eliminated reference to the NDE requirements of the 1992 Edition of Section III. When the ASME developed the 2003 Addenda, the arguments in support of the Code action state that imposing the NDE requirement in accordance with Section III (i.e., radiography) on all repair and replacement activities is excessively burdensome. The industry argued that the purpose of the radiography requirements is to support the piping joint efficiency factors used in the design. As such, the requirements are appropriately imposed by the construction code or the design specification but radiography for repair and replacement activities would be excessive.

The industry also contended that a system leakage test compared to a hydrostatic pressure test revealed very few cases in which leakage occurred at the hydrostatic pressure but not at the lower pressure of the system leakage test. Those cases involved only a small amount of leakage and the source of the leakage would not have been detected by additional NDE and is therefore not warranted.

NRC observes that the arguments to eliminate the NDE are from an operational rather than a safety perspective. A safety assessment has not been provided to demonstrate that without volumetric examination, a system leakage pressure test alone provides a level of safety equivalent to a hydrostatic pressure test, only that a volumetric examination is excessively burdensome. NRC therefore concludes that to provide reasonable assurance of adequate protection to public health and safety, when performing a system leakage test in lieu of a hydrostatic test after repair/replacement activities, a NDE must be performed. It must be performed in accordance with the NDE provision in IWA-4540(a)(2) of the 2002 Addenda of Section XI because the agency has already accepted this provision by virtue of approving Code Case N-416-3 in RG 1.147, Revision 14. That provision states that: (a) The NDE method and acceptance criteria of the 1992 edition or later of Section III shall be met prior to return to service; and (b) a system leakage test shall be performed in accordance with IWA-5000 prior to or as part of returning to service.

Paragraph 10 CFR 50.55a(b)(2)(xxi)(A) would be revised to be consistent with the condition for Code Case N-648-1, “Alternative Requirements for Inner Radius Examination of Class 1 Reactor Vessel Nozzles, Section XI, Division 1,” in RG 1.147, Revision 14, which requires the assumption of a limiting flaw aspect ratio when using the allowable flaw length criteria in Table IWB-3512-1 during an enhanced visual examination. The proposed revision would state: “A visual examination with enhanced magnification that has a resolution sensitivity to detect a 1-mil (0.001 inch) width wire or crack, using the allowable flaw length criteria in Table IWB-3512-1, 1997 Addenda through the latest edition and addenda incorporated by reference in paragraph (b)(2) of this section, with a limiting assumption on the flaw aspect ratio (i.e., a/l=0.5, where a and l are the depth and length of the crack, respectively), may be performed instead of an ultrasonic examination * * *”. This limitation is needed because visual examination cannot determine the depth of cracks. A visual examination requirement may be applied only when a limiting flaw aspect ratio of 0.5 is assumed. A flaw aspect ratio of less than 0.5 would not be conservative. As shown in Table IWB-3512-1, there are no flaw aspect ratios higher than 0.5.

In the 2004 Edition of ASME Section XI, IWA-3660 specifies evaluation procedure and acceptance criteria for flaws that are detected in upper and lower reactor vessel head penetration nozzles in PWRs. The procedure and acceptance criteria in IWB-3660 were adopted from Code Case N-694-1, “Evaluation Procedure and Acceptance Criteria for PWR Reactor Vessel Head Penetration Nozzles Section XI, Division 1.” Under IWB-3660, IWB-3662 specifies that the flaw shall be evaluated using analytical procedures such as those described in non-mandatory Appendix O, “Evaluation of Flaws in PWR Reactor Vessel Upper Head Penetration Nozzles,” to the ASME Code, Section XI. There is a typographical error in paragraph O-3220(b), equation S R = [ 1 −0.82R] −22 . The exponent should be −2.2, not −22. Paragraph 50.55a(b)(2)(xxviii) would be added to the regulation to ensure that the correct exponent is used. The exponent in Appendix O was shown to be erroneous by an NRC report, NUREG/CR-6721, “Effects of Alloy Chemistry, Cold Work, and Water Chemistry on Corrosion Fatigue and Stress Corrosion Cracking of Nickel Alloys and Welds,” April 2001.

Paragraph 50.55a(g)(6)(ii) which requires a one-time augmented inservice inspection programs for those systems and components for which the Commission determines that added assurance of structural reliability is necessary would be removed. Paragraph 50.55a(g)(6)(ii)(A) was incorporated in the regulations in 1992 to require all current licensees to conduct a one-time expedited implementation of the reactor vessel shell weld examinations specified in the 1989 Edition of the ASME Code, Section XI, Division 1, in item B1.10, “Shell Welds,” of Examination Category B-A, “Pressure Retaining Welds in Reactor Vessel,” in Table IWB-2500-1 of the ASME Code, Section XI. Since all the licensees have completed the subject augmented examination of the reactor vessel shell welds, the requirements in 10 CFR 50.55a(g)(6)(ii)(A) and associated subparagraphs are no longer needed. Future licensees need not conduct this augmented examination, because new Code provisions should adequately address the degradation to which the augmented examination was directed.

Paragraph 50.55a(g)(6)(ii)(D) of the proposed rule would be added to require licensees to comply with the reactor vessel head inspection requirements of ASME Code Case N-729-1, subject to conditions. Compliance to Code Case N-729-1 with conditions would be equivalent to complying with NRC Order EA-03-009, dated February 11, 2003, and First Revised Order EA-03-009, dated February 20, 2004. Footnote 10 to 10 CFR 50.55a would be removed because Code Case N-729-1, as conditioned, would replace the requirements of the NRC Order EA-03-009 cited in that footnote. That footnote states:

Conditions are imposed on Code Case N-729-1 regarding inspection frequency, examination coverage, qualification of ultrasonic examination, and reinspection intervals. These conditions are being imposed to make the requirements in N-729-1 equivalent to those of the Order.

A new paragraph, 10 CFR 50.55a(g)(6)(ii)(E) Reactor Coolant Pressure Boundary Visual Inspections would be added to require all current and future licensees to apply ASME Code Case N-722, with conditions.

The application of ASME Code Case N-722 is necessary because current inspections are inadequate and the safety consequences can be significant. NRC's determination that existing inspections of the reactor coolant pressure boundary (RCPB) are inadequate are based upon the degradation of RPV head penetration nozzles at Davis-Besse and the discovery of leaks and cracking at other plants, such as Oconee and Arkansas Nuclear One Unit 1. The absence of an effective inspection regime could, over time, result in unacceptable circumferential cracking or the degradation of reactor coolant system components by corrosion from leaks in the RCPB. These degradation mechanisms increase the probability of a loss of coolant accident. The inspections required by the 2004 edition of the ASME Code, Section are inadequate because Table IWB-2500-1, “Examination Category B-P of Section XI” only requires a visual examination of the reactor vessel during a system leakage test each refueling outage. Visual inspections may not detect gradual leakage as confirmed by industry experience.

Both the NRC and the industry took short-term actions to address primary water stress corrosion cracking (PWSCC) in the RCS pressure boundary because of limitations of the ASME BPV Code inspection programs to address PWSCC in the RCPB. In addition to issuing bulletins, NRC issued Order EA-03-009 and First Revised Order EA-03-009 to quickly establish interim inspection requirements for RPV upper heads at PWRs. However, these measures addressed the issue only temporarily and for specific locations. The industry also responded with measures, but these were only short term, such as by specifying that a one-time bare-metal visual inspection of all RCS nickel-based alloy components and weld locations be performed within two refueling outages.

ASME also took actions to address PWSCC. An ASME task group concluded that more rigorous inspections than those currently provided by the ASME Code are needed in the areas most susceptible to PWSCC. The task group developed ASME Code Case N-722 to enhance the current ASME Code requirements for detection of leakage and corrosion in the components considered to be susceptible to PWSCC. The code case specifies bare-metal visual examinations for all RCS pressure retaining components fabricated from Alloy 600/82/182 materials. This Code Case was approved by ASME in July 2005 and was published in Supplement 6 to the 2004 Code Cases; however, the Code Case is not mandatory for industry to follow. The Code Case improves upon existing ASME Code inspection requirements, because it specifies bare metal visual examinations; however, such examinations are inadequate. Visual inspections do not always detect through-wall leakage or related corrosion until significant degradation has occurred.

Beyond the base metal visual inspection requirements and frequencies of inspections, ASME Code Case N-722 is relatively limited in scope. The NRC proposes to require non-visual inspection for items where leakage is identified in Class 1 components. The additional non-visual NDE would be required to determine whether circumferential cracking is present in the flawed material and if multiple circumferential flaws have initiated. Leakage detected by visual examination only identifies that a flaw exists, and is not able to characterize flaw orientations and locations. The NRC proposes to require NDE scope expansion once a circumferential flaw is identified in these components because once flaws are found, favorable conditions must be assumed to exist for additional flaws to develop in other similar components in similar environments. Circumferential cracking has occurred and is a particularly serious safety concern because it could, if undetected by NDE, lead to a complete severance of the piping and a loss-of-coolant-accident.

Therefore, the NRC proposes to require the application of Code Case N-722 with additional conditions; namely, to require additional NDE when leakage is detected and expansion of the sample size if a circumferential PWSCC flaw is detected. Operating experience has shown that bare metal visual inspections alone are not sufficient and that NDE is necessary in order to detect cracking.

The proposed revision to § 50.55a(b)(3) would incorporate by reference the 2004 Edition of the ASME OM Code subject to no new modifications or limitations.

Paragraph (b)(3)(iv)(D) would be revised to be less specific with regard to paragraph references in subsection ISTC [In-service testing, the Code for Operation and Maintenance of Nuclear Power Plants] to eliminate inconsistencies in paragraph numbering. This is considered to be an editorial change that does not affect the intent or implementation of the current modification regarding the discontinuance of Appendix II condition monitoring programs of check valves.

In September 2005, the NRC issued, “Generic Aging Lessons Learned (GALL) Report,” NUREG-1801, Volumes 1 and 2, Revision 1, for applicants to use in preparing their license renewal applications. The GALL report evaluates existing programs and documents the bases for determining when existing programs are adequate without change or augmentation for license renewal. Section XI, Division 1, of the ASME BPV Code is one of the existing programs in the GALL report that is evaluated as an aging management program (AMP) for license renewal. Subsections IWB, IWC, IWD, IWE, IWF, and IWL of the 2001 Edition up to and including the 2003 Addenda of Section XI of the ASME BPV Code for in-service inspection were evaluated in the GALL report and the conclusions in the GALL report are valid for this edition and addenda.

In the GALL report, Sections XI.M1, “ASME Section XI In-service Inspection, Subsections IWB, IWC, and IWD,” XI.S1, “ASME Section XI, Subsection IWE,” XI.S2, “ASME Section XI, Subsection IWL,” and XI.S3, “ASME Section XI, Subsection IWF,” describe the evaluation and technical bases for determining the adequacy of Subsections IWB, IWC, IWD, IWE, IWF, and IWL, respectively. In addition, many other AMPs in the GALL report rely in part, but to a lesser degree, on the requirements in the ASME Code, Section XI.

The NRC has evaluated Subsections IWB, IWC, IWD, IWE, IWF, and IWL of Section XI of the ASME BPV Code, 2004 Edition as part of the § 50.55a amendment process to incorporate by reference the 2004 Edition of the ASME BPV Code to determine if the conclusions of the GALL report also apply to AMPs that rely upon the ASME Code edition that is proposed for incorporation by reference into § 50.55a by this proposed rule. NRC finds that the 2004 Edition of Sections III and XI of the ASME BPV Code are acceptable and the conclusions of the GALL report remain valid. Accordingly, an applicant may use Subsections IWB, IWC, IWD, IWE, IWF, and IWL of Section XI of the 2004 Edition of the ASME BPV Code as acceptable alternatives to the requirements of the 2001 Edition up to and including the 2003 Addenda of the ASME Code, Section XI, referenced in the GALL AMPs in its plant-specific license renewal application. Similarly, a licensee approved for license renewal that relied on the GALL AMPs may use Subsections IWB, IWC, IWD, IWE, IWF, and IWL of Section XI of the 2004 Edition of the ASME BPV Code and the ASME Code edition and addenda used in the plant-specific license renewal application as acceptable alternatives to the AMPs described in the GALL report. However, a licensee must assess and follow applicable NRC requirements with regard to changes to its licensing basis.

The GALL report identified AMPs of the 2001 Edition through the 2003 Addenda of Section XI of the ASME Code that require augmentation (additional requirements) for license renewal. These areas that require augmentation also apply when implementing the 2004 edition. A license renewal applicant may either augment its AMPs in these areas as described in the GALL report or propose alternatives for NRC review in its plant-specific license renewal application.

The NRC is making the documents identified below available to interested persons through one or more of the following methods as indicated.

Public Document Room (PDR). The NRC Public Document Room is located at 11555 Rockville Pike, Rockville, Maryland.

Rulemaking Web site (Web). The NRC's interactive rulemaking Web site is located at http://ruleforum.llnl.gov . These documents may be viewed and downloaded electronically via this Web site.

NRC's Electronic Reading Room. The NRC's public electronic reading room is located at http://www.nrc.gov/reading-rm/adams.html .

NRC Staff Contact. Single copies of the Federal Register Notice (which includes the draft Environmental Assessment) and draft Regulatory Analysis can be obtained from Lee Banic, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 or at (301) 415-2771, or via e-mail at: mjb@nrc.gov .

The Presidential Memorandum dated June 1, 1998, entitled, “Plain Language in Government Writing,” directed that the Federal government's writing must be in plain language. This memorandum was published on June 10, 1998 (63 FR 31883). The NRC requests comments on this proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the address listed under the ADDRESSES caption above.

The National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, requires agencies to use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. Pub. L. 104-113 requires Federal agencies to use industry consensus standards to the extent practical; it does not require Federal agencies to endorse a standard in its entirety. The law does not prohibit an agency from generally adopting a voluntary consensus standard while taking exception to specific portions of the standard if those provisions are deemed to be “inconsistent with applicable law or otherwise impractical.” Furthermore, taking specific exceptions furthers the Congressional intent of Federal reliance on voluntary consensus standards because it allows the adoption of substantial portions of consensus standards without the need to reject the standards in their entirety because of limited provisions which are not acceptable to the agency.

The NRC is proposing to amend its regulations to incorporate by reference a more recent edition of Sections III and XI of the ASME BPV Code and ASME OM Code, for construction, in-service inspection, and in-service testing of nuclear power plant components. ASME BPV and OM Codes are national consensus standards developed by participants with broad and varied interests, in which all interested parties (including the NRC and licensees of nuclear power plants) participate. In an SRM dated September 10, 1999, the Commission indicated its intent that a rulemaking identify all parts of an adopted voluntary consensus standard that are not adopted and to justify not adopting such parts. The parts of the ASME BPV Code and OM Code that the NRC proposes not to adopt, or to partially adopt, are identified in Section 2 of the preceding section and the draft regulatory analysis. The justification for not adopting parts of the ASME BPV Code, as set forth in these statements of consideration and the draft regulatory analysis for this proposed rule, satisfy the requirements of Section 12(d)(3) of Pub. L. 104-113, Office of Management and Budget (OMB) Circular A-119, and the Commission's direction in the SRM dated September 10, 1999.

In accordance with the National Technology Transfer and Advancement Act of 1995 and OMB Circular A-119, the NRC is requesting public comment regarding whether other national or international consensus standards could be endorsed as an alternative to the ASME BPV Code and the ASME OM Code.

This proposed action is in accordance with NRC's policy to incorporate by reference in 10 CFR 50.55a new editions and addenda of the ASME BPV and OM Codes to provide updated rules for constructing and inspecting components and testing pumps, valves, and dynamic restraints (snubbers) in light-water nuclear power plants. ASME Codes are national voluntary consensus standards and are required by the National Technology Transfer and Advancement Act of 1995, Pub. L. 104-113, to be used by government agencies unless the use of such a standard is inconsistent with applicable law or otherwise impractical.

NEPA requires Federal government agencies to study the impacts of their “major Federal actions significantly affecting the quality of the human environment” and prepare detailed statements on the environmental impacts of the proposed action and alternatives to the proposed action (United States Code, Vol. 42, Section 4332(C) [42 U.S.C. § 4332(C)]; NEPA § 102(C)).

The Commission has determined under NEPA, as amended, and the Commission's regulations in Subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required.

The proposed rulemaking will not significantly increase the probability or consequences of accidents; no changes are being made in the types of effluents that may be released off-site; there is no increase in occupational exposure; and there is no significant increase in public radiation exposure. Some of the proposed changes concerning ensuring the integrity of the RCPB would reduce the probability of accidents and radiological impacts on the public. The proposed rulemaking does not involve non-radiological plant effluents and has no other environmental impact. Therefore, no significant non-radiological impacts are associated with the proposed action.

The determination of this draft environmental assessment is that there will be no significant off-site impact to the public from this action. However, the NRC is seeking public comment of the draft environmental assessment. Comments on any aspect of the environmental assessment may be submitted to the NRC as indicated under the ADDRESSES heading of this document.

The NRC is sending a copy of the environmental assessment and this proposed rule to every State Liaison Officer and requesting their comments on the environmental assessment.

This proposed rule increases the burden on licensees to report requirements and maintain records for examination requirements in ASME Code Section XI IWB-2500(b). The public burden for this information collection is estimated to average 3 hours every ten years per request. Because the burden for this information collection is insignificant, OMB clearance is not required. Existing requirements were approved by the OMB, approval number 3150-0011.

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

The NRC has prepared a draft regulatory analysis on this proposed rule. The draft analysis is available for review in the NRC's PDR, located in One White Flint North, 11555 Rockville Pike, Rockville, Maryland. In addition, copies of the draft regulatory analysis may be obtained as indicated in Section 4 of this document. The Commission requests public comment on the draft regulatory analysis and comments may be submitted to the NRC as indicated under the ADDRESSES heading.

In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the Commission certifies that this proposed amendment will not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed amendment would affect the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the Small Business Size Standards set forth in regulations issued by the Small Business Administration at 13 CFR Part 121.

The NRC's Backfit Rule in 10 CFR 50.109 states that the Commission shall require the backfitting of a facility only when it finds the action to be justified under specific standards stated in the rule. Section 50.109(a)(1) defines backfitting as the modification of or addition to systems, structures, components, or design of a facility; or the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct or operate a facility; any of which may result from a new or amended provision in the Commission rules or the imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previously applicable staff position after issuance of the construction permit or the operating license or the design approval.

Section 50.55a requires nuclear power plant licensees to construct ASME BPV Code Class 1, 2, and 3 components in accordance with the rules provided in Section III, Division 1, of the ASME BPV Code; inspect Class 1, 2, 3, Class MC, and Class CC components in accordance with the rules provided in Section XI, Division 1, of the ASME BPV Code; and test Class 1, 2, and 3 pumps, valves, and dynamic restraints (snubbers) in accordance with the rules provided in the ASME OM Code. This proposed rule would incorporate by reference the 2004 Edition of Section III, Division 1, of the ASME BPV Code; Section XI, Division 1, of the ASME BPV Code; and the ASME OM Code.

Incorporation by reference of more recent editions and addenda of Section III, Division 1, of the ASME BPV Code does not affect a plant that has received a construction permit or an operating license or a design that has been approved, because the edition and addenda to be used in constructing a plant are, by rule, determined on the basis of the date of the construction permit, and are not changed thereafter, except voluntarily by the licensee. Thus, incorporation by reference of a more recent edition and addenda of Section III, Division 1, does not constitute a “backfitting” as defined in § 50.109(a)(1).

Incorporation by reference of more recent editions and addenda of Section XI, Division 1, of the ASME BPV Code and the ASME OM Code affect the ISI and IST programs of operating reactors. However, the Backfit Rule does not apply to incorporation by reference of later editions and addenda of the ASME BPV Code (Section XI) and OM Code. The NRC's policy has been to incorporate later versions of the ASME Codes into its regulations. This practice is codified in § 50.55a which requires licensees to revise their ISI and IST programs every 120 months to the latest edition and addenda of Section XI of the ASME BPV Code and the ASME OM Code incorporated by reference in § 50.55a that is in effect 12 months prior to the start of a new 120-month ISI and IST interval.

Other circumstances where the NRC does not apply the Backfit Rule to the endorsement of a later Code are as follows:

(1) When the NRC takes exception to a later ASME BPV Code or OM Code provision but merely retains the current existing requirement, prohibits the use of the later Code provision, limits the use of the later Code provision, or supplements the provisions in a later Code, the Backfit Rule does not apply because the NRC is not imposing new requirements. However, the NRC explains any such exceptions to the Code in the Statement of Considerations and regulatory analysis for the rule;

(2) When an NRC exception relaxes an existing ASME BPV Code or OM code provision but does not prohibit a licensee from using the existing Code provision, the Backfit Rule does not apply because the NRC is not imposing new requirements and;

(3) Modifications and limitations imposed during previous routine updates of paragraph 50.55a have established a precedent for determining which modifications or limitations are backfits or require a backfit analysis ( e.g. , final rule dated October 1, 2004 (69 FR 58804). The application of the backfit requirements to modifications and limitations in the current proposed rule are consistent with the application of backfit requirements to modifications and limitations in previous rules.

There are some circumstances in which the endorsement of a later ASME BPV Code or OM Code introduces a backfit. In these cases, the NRC would perform a backfit analysis or documented evaluation in accordance with paragraph 50.109. These include the following:

(1) When the NRC endorses a later provision of the ASME BPV Code or OM Code that takes a substantially different direction from the existing requirements, the action is treated as a backfit, see, e.g. , 61 FR 41303 (August 8, 1996).

(2) When the NRC requires implementation of later ASME BPV Code or OM Code provision on an expedited basis, the action is treated as a backfit. This applies when implementation is required sooner than it would be required if the NRC simply endorsed the Code without any expedited language, see, e.g. , 64 FR 51370 (September 22, 1999).

(3) When the NRC takes an exception to a ASME BPV Code or OM Code provision and imposes a requirement that is substantially different from the existing requirement as well as substantially different than the later Code, see, e.g. , 67 FR 60529 (September 26, 2002).

The backfitting discussion for the proposed revisions to 10 CFR 50.55a is set forth below:

This change would remove an existing limitation on the use of 1989 Addenda and later editions and addenda of the ASME Code, Section XI, regarding the use of subarticle IWB-1220 in the examinations of welds in the inaccessible locations. Licensees have either committed to perform augmented inspection or have followed the provisions of Generic Letter 88-01 and NUREG-0313 in examining the inaccessible welds. Therefore, this change is not considered as a backfit under 10 CFR 50.109.

Paragraph 10 CFR 50.55a(b)(2)(xiii) states that “Licensees may use the provisions of Code Case N-523-1, “Mechanical Clamping Devices for Class 2 and 3 Piping.” Paragraph 10 CFR 50.55a(b)(2)(xiii) does not require, but provides an option for, licensees to use Code Case N-523-1. In 2000, ASME updated Code Case N-523-1 to N-523-2 without changes to technical requirements. Code Case N-523-2, “Mechanical Clamping Devices for Class 2 and 3 Piping,” has been accepted in RG 1.147, Revision 14, which is incorporated by reference into paragraphs 10 CFR 50.55a(g)(4)(i) and 10 CFR 50.55a(g)(4)(ii). Code Case N-523-2 may be used by licensees without requesting authorization. According to RG 1.147, Revision 14, Code Case N-523-1 has been superseded by Code Case N-523-2. It is stated in RG 1.147, Revision 14, that “After the ASME annuls a Code Case and the NRC amends 10 CFR 50.55a and this guide [RG 1.147], licensees may not implement that Code Case for the first time. However, a licensee who implemented the Code Case prior to annulment may continue to use that Code Case through the end of the present ISI interval. An annulled Code Case cannot be used in the subsequent ISI interval unless implemented as an approved alternative under 10 CFR 50.55a(a)(3) * * *” The NRC has not annulled or prohibited the use of Code Case N-523-1 in RG 1.147, Revision 14. Licensees who have used Code Case N-523-1 may continue to use it. The NRC is not imposing new requirements by removing 10 CFR 50.55a(b)(2)(xiii). Therefore, the removal of 10 CFR 50.55a(b)(2)(xiii) is not a backfit.

This change would update the edition of the ASME Code in 10 CFR 50.55a(b)(2)(xv), therefore, is not considered as a backfit under 10 CFR 50.109.

Subarticle IWA-4540(a)(2) of the 2002 Addenda of the ASME Code, Section XI, requires a NDE be performed in combination with a system leakage test during repair/replacement activities. Subarticle IWA-4540(a)(2) of the 2003 Addenda through later editions and addenda of the ASME Code, Section XI, does not specify a NDE after a system leakage test. The proposed addition would require, as part of repair and replacement activities, that a NDE be performed per IWA-4540(a)(2) of the 2002 Addenda of the ASME Code, Section XI, after a system leakage test is performed per subarticle IWA-4540(a)(2) of the 2003 Addenda through later editions and addenda of the ASME Code, Section XI.

As it is stated above, when the NRC takes exception to a later ASME BPV Code provision but merely retains the existing requirement, prohibits the use of the later Code provision, limits the use of the later Code provision, or supplements the provisions in a later Code, the Backfit Rule does not apply because the NRC is not imposing new requirements. The addition retains the system leakage test requirement in IWA-4540(a)(2) of the 2003 Addenda through the later editions and addenda of the ASME Code, Section XI, but supplements it with the NDE of IWA-4540(a)(2) of the 2002 Addenda of the Code. The proposed addition does not represent a new staff requirement because the NDE requirement is specified in previous addenda of the Code. Therefore, this change is not considered as a backfit under 10 CFR 50.109.

This change would align the conditions imposed on visual examinations in 10 CFR 50.55a(b)(2)(xxi) with the conditions imposed on Code Case N-648-1 in RG 1.147, Revision 14 (70 FR 5680; Sept 29, 2005). The imposed conditions do not represent a new staff position. Therefore, this change is not considered as a backfit under 10 CFR 50.109.

This change would correct a typographical error in an equation used in the flaw evaluation in the ASME Section XI. Therefore, this change is not considered as a backfit under 10 CFR 50.109.

This change would remove a one-time examination requirement which has been completed by all current licensees, and, therefore, is not considered as a backfit under 10 CFR 50.109. Future licensees will be subject to other Code provisions that preclude the need for this one-time examination.

The requirements in paragraph D, which impose ASME Code Case N-729-1 with conditions, were already imposed on existing licensees under NRC First Revised Order EA-03-009. Therefore, this requirement is not considered a backfit under 10 CFR 50.109(a)(1).

The NRC proposes to add 10 CFR 50.55a(g)(6)(ii)(E) to require augmented inspections of Class 1 components fabricated with Alloy 600/82/182 materials. The augmented inspection will consist of the requirements in Code Case N-722 which specifies inservice inspection for PWR ASME Code Class 1 components containing materials susceptible to PWSCC and NRC imposed conditions to the Code Case to require additional NDE when leakage is detected and expansion of the inspection sample size if a circumferential PWSCC flaw is detected. The intent of conditioning the Code Case is to identify leakage of and prevent unacceptable cracks and corrosion in Class 1 components, which are part of RCPB. The proposed requirements may be considered backfitting under 10 CFR 50.109(a)(1). However, the NRC believes that the requirements are necessary for compliance with Commission requirements and/or license provisions. Therefore a backfit analysis need not be prepared under the “compliance” exception in 10 CFR 50.109(a)(4)(i). The following discussion constitutes the documented evaluation to support the invocation of the compliance exception.

As discussed earlier in Section 2, “10 CFR 50.55a(g)(6)(ii)(E)—Augmented Inspection of Class 1 Components Fabricated with Alloy 600/82/182 Materials,” failure of the RCPB could result in unacceptable challenges to reactor safety systems that, combined with other failures, could lead to the release of radioactivity to the environment. Based on PWSCC experience in PWRs, the NRC concludes that there is a reasonable likelihood that PWR licensees would not be in compliance with appropriate regulatory requirements and current licensing basis with respect to structural integrity and leak-tightness throughout the term of the operating license, should PWSCC occur in their plants. The general design criteria (GDC) for nuclear power plants (Appendix A to 10 CFR Part 50) provide the regulatory requirements for the NRC's assessment of the potential for, and consequences of, degradation of the RCPB. The applicable GDCs include GDC 14 and GDC 31. GDC 14 specifies that the RCPB be designed, fabricated, erected, and tested so as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture. GDC 31 specifies that the probability of rapidly propagating fracture of the RCPB be minimized.

The nuclear plants that were licensed before GDC were incorporated in 10 CFR Part 50 also would not be in compliance with their licensing basis which requires maintenance of the structural and leakage integrity of the RCPB.

Leakage of primary system coolant as a result of PWSCC in Alloy 600/82/182 material is a non-compliance with GDC 14 and 31 and licensing bases because there have been many cases of leakage as a result of PWSCC of Alloy 600/82/182 material in PWRs. Therefore, leakage as a result of PWSCC has not been shown to be of extremely low probability (i.e. a non-compliance with GDC 14). In addition, the operating experience has shown that the crack growth rate of PWSCC in Alloy 600/82/182 material can be rapid. If PWSCC is not detected and removed, a crack, especially a circumferential crack in a pipe, would increase the probability of rapidly propagating fracture of RCPB (i.e, a non-compliance with GDC 31). Therefore, PWSCC in Alloy 600/82/182 material, if undetected, would be detrimental to the structural and leakage integrity of the RCPB. Code Case N-722 with conditions provides inspection requirements to detect PWSCC so that licensees can repair or replace the affected components, thereby maintaining the structural and leakage integrity of the RCPB, assuring an extremely low probability of abnormal leakage, and the minimizing the probability of a rapidly propagating fracture of the RCPB.

The NRC concludes that licensees will not be in compliance with GDC and their licensing basis for structural and leakage integrity of Class 1 components that were made of Alloy 600/82/182 material throughout the term of their license (including any renewal periods) absent the imposition of Code Case N-722 with conditions. The NRC concludes, therefore, that the proposed 10 CFR 50.55a(g)(6)(ii)(E) is a compliance backfit under 10 CFR 50.109(a)(4)(i).

For the reasons set forth in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is proposing to adopt the following amendments to 10 CFR Part 50.

Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27768; Directorate Identifier 2006-NM-174-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

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

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

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this proposed AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, notified us that an unsafe condition may exist on all Airbus Model A330 and A340 airplanes. The EASA advises that Airbus has issued new fuel airworthiness limitations (FALs) to address failure conditions for which an unacceptable probability of ignition risk could exist if specific tasks or practices or both are not performed in accordance with the manufacturer's requirements. The new FALs are intended to satisfy the JAA's Interim Policy of Fuel Tank Safety and SFAR 88 requirements.

Airbus has issued A330 ALS—Airworthiness Limitations Section and A340 ALS—Airworthiness Limitations Section, both dated March 23, 2006. The Airbus A330 ALS and A340 ALS are repositories for stand-alone documents that are approved independently from each other, and both comprise the following documents:

• ALS Part 1—Safe Life Airworthiness Limitation Items

• ALS Part 2—Damage-Tolerant Airworthiness Limitation Items

• ALS Part 3—Certification Maintenance Requirements

• ALS Part 4—(Reserved)

• ALS Part 5—Fuel Airworthiness Limitations

Airbus A330 ALS Part 5—Fuel Airworthiness Limitations, dated April 11, 2006, refers to Airbus A330 Fuel Airworthiness Limitations, Document 95A.1932/05, Issue 2, dated October 26, 2006 (approved by the EASA on November 17, 2006). Airbus A340 ALS Part 5—Fuel Airworthiness Limitations, dated April 11, 2006, refers to Airbus A340 Fuel Airworthiness Limitations, Document 95A.1933/05, Issue 1, dated December 19, 2005 (approved by the EASA on April 28, 2006). Section 1, “Maintenance/Inspection Tasks,” of Document 95A.1932/05 and Document 95A.1933/05 describes a certain repetitive FAL inspection. A FAL inspection is a periodic inspection of certain features for latent failures that could contribute to an ignition source. Section 2, “Critical Design Configuration Control Limitations,” of Document 95A.1932/05 and Document 95A.1933/05 identifies critical design configuration control limitations (CDCCLs). A CDCCL is a limitation requirement to preserve a critical ignition source prevention feature of the fuel tank system design that is necessary to prevent the occurrence of an unsafe condition. The purpose of a CDCCL is to provide instruction to retain the critical ignition source prevention feature during configuration change that may be caused by alterations, repairs, or maintenance actions. A CDCCL is not a periodic inspection.

Accomplishing the actions specified in the service information is intended to adequately address the unsafe condition. The EASA mandated the service information and issued airworthiness directive 2006-0205, dated July 11, 2006 (for Model A340 airplanes); and airworthiness directive 2007-0023, dated January 25, 2007 (for Model A330 airplanes); to ensure the continued airworthiness of these airplanes in the European Union.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, the EASA has kept the FAA informed of the situation described above. We have examined the EASA's findings, evaluated all pertinent information, and determined that we need to issue an AD for airplanes of this type design that are certificated for operation in the United States.

Therefore, we are proposing this AD, which would require revising the Airworthiness Limitations Section of the Instructions for Continued Airworthiness to incorporate new limitations for fuel tank systems.

This proposed AD would affect about 27 airplanes of U.S. registry. The proposed actions would take about 2 work hours per airplane, at an average labor rate of $80 per work hour. Based on these figures, the estimated cost of the proposed AD for U.S. operators is $4,320, or $160 per airplane.

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

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

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

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

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

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

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

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “FAA-2007-27777; Directorate Identifier 2006-NM-265-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

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

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

We have received a report indicating that numerous operators have found cracks on the flat aft pressure bulkhead tee. The tee is installed on the left and right side of McDonnell Douglas Model DC-8 airplanes that have a flat aft pressure bulkhead. The cracks, which originate in the corner radius of the tee from Longeron 9 to Longeron 13, are a result of stress corrosion. This condition, if not corrected, could result in cracks continuing to progress, and consequent damage the adjacent structure and loss of structural integrity of the airplane.

We have reviewed Boeing Alert Service Bulletin DC8-53A081, dated November 14, 2006. The service bulletin describes procedures for doing an initial inspection using one of the following methods as applicable:

• For airplanes not previously repaired (Configuration 1), the service bulletin specifies doing the initial inspection for cracking of the tee installed on the left and right side of the flat aft pressure bulkhead from Longeron 9 to Longeron 13, according to one of three inspection methods specified in the DC-8 Supplemental Inspection Document (SID) L26-011, Volume II, 53-10-18: Methods 01A (High Frequency Eddy Current (HFEC)) and 01B (Ultrasonic) together; or Method 02 (HFEC); or Method 03 (Visual Aided).

• For airplanes previously repaired with an angle doubler that was installed in accordance with DC-8 Structural Repair Manual 53-2-5, Figure 9 (Configuration 2), the service bulletin specifies an initial HFEC inspection for cracking of the angle doubler.

• For airplanes previously repaired with any repair other than one installed in accordance with DC-8 Structural Repair Manual 53-2-5, Figure 9 (Configuration 3), the service bulletin specifies contacting Boeing for instructions.

The service bulletin specifies the following actions, depending on crack findings:

• If no crack is found, the service bulletin specifies repeating the applicable inspection. For Configuration 1 airplanes, the repetitive intervals depend on the inspection type chosen, and range from within 2 years after the previous SID inspection or 600 flight cycles, whichever occurs earlier; to within 8 years after the previous SID inspection or 17,400 flight cycles, whichever occurs earlier. For Configuration 2 airplanes, the repetitive interval is 4,500 flight cycles.

• If any crack is found, the service bulletin specifies the corrective action of repairing the crack before further flight. The repair involves installing an angle doubler (if not previously installed) or removing the cracked angle doubler and installing a new one (if previously installed). The service bulletin states that the repetitive interval after repair is 4,500 flight cycles, and only the HFEC inspection type is specified for the repetitive inspections.

The service bulletin also specifies that, for Configuration 1 airplanes, if maintenance records show that the flat aft pressure bulkhead tee was previously inspected using one of the three inspection methods specified in the DC-8 SID L26-011, Volume II, 53-10-18, and no crack was found, the inspections may be continued at the applicable repetitive interval specified for Configuration 1 airplanes on which no crack is found during the initial inspection.

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

We have evaluated all pertinent information and identified an unsafe condition that is likely to exist or develop on other airplanes of this same type design. For this reason, we are proposing this AD, which would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference between the Proposed AD and the Service Bulletin.” This proposed AD also would require determining the configuration of the airplane.

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

• Using a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by an Authorized Representative for the Boeing Commercial Airplanes Delegation Option Authorization Organization whom we have authorized to make those findings.

There are about 321 airplanes of the affected design in the worldwide fleet. This proposed AD would affect about 139 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour.

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

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

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

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

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

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

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

The FAA is implementing a new process for streamlining the issuance of ADs related to MCAI. This streamlined process will allow us to adopt MCAI safety requirements in a more efficient manner and will reduce safety risks to the public. This process continues to follow all FAA AD issuance processes to meet legal, economic, Administrative Procedure Act, and Federal Register requirements. We also continue to meet our technical decision-making responsibilities to identify and correct unsafe conditions on U.S.-certificated products.

This proposed AD references the MCAI and related service information that we considered in forming the engineering basis to correct the unsafe condition. The proposed AD contains text copied from the MCAI and for this reason might not follow our plain language principles.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-27753; Directorate Identifier 2007-NM-022-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil, has issued Brazilian Airworthiness Directive 2007-01-02, effective January 15, 2007 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

EMBRAER has issued Service Bulletin 170-28-0011, dated April 26, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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 proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 76 products of U.S. registry. We also estimate that it would take about 27 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $80 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $164,160, or $2,160 per product.

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

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

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

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

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

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

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

Comments Invited

We invite you to submit any relevant written data, views, or arguments regarding this proposed AD. Send your comments to an address listed in the ADDRESSES section. Include the docket number “Docket No. FAA-2007-27776; Directorate Identifier 2006-NM-170-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments.

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

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

On November 16, 2005, we issued AD 2005-24-06, amendment 39-14386 (70 FR 70715, November 23, 2005), for all Airbus Model A318-100, A319-100, A320-200, A321-100, and A321-200 series airplanes, and Model A320-111 airplanes. That AD requires an inspection to determine whether certain braking and steering control units (BSCUs) are installed or have ever been installed. For airplanes on which certain BSCUs are installed or have ever been installed, that AD requires an inspection of the nose landing gear (NLG) upper support and corrective action if necessary, and a check of the NLG strut inflation pressure and an adjustment if necessary. For some of these airplanes, that AD also requires a revision to the aircraft flight manual (AFM) to incorporate an operating procedure to recover normal steering in the event of a steering failure. That AD resulted from a report of an incident where an airplane landed with the NLG turned 90 degrees from centerline. We issued that AD to prevent landings with the NLG turned 90 degrees from centerline, which could result in reduced controllability of the airplane.

Since we issued AD 2005-24-06, several additional NLG upper support anti-rotation lugs have ruptured in service, which could lead to the inability to retract the NLG and possible landings with the nose wheel turned 90 degrees from centerline. Investigations showed that the affected airplanes were all equipped with enhanced manufacturing and maintainability (EMM) BSCU (Standard L4.1 and L4.5). The NLG shock absorber was also found to be over-pressurized on some of these airplanes, which resulted in increased loads on the upper support. As a result, the manufacturer developed a repetitive boroscope inspection of the NLG upper support lugs and cylinder lugs to replace the one-time inspection, and an optional terminating action for the repetitive inspections.

Airbus has issued Service Bulletin A320-32-1310, dated February 8, 2006. The service bulletin describes procedures for doing a records review to determine if the airplane is equipped with or has ever been equipped with an EMM BSCU. For those airplanes that are equipped with an EMM BSCU, the service bulletin describes procedures for doing a repetitive special detailed inspection (boroscopic) for broken or cracked NLG upper support lugs and missing cylinder lugs, and related investigative/corrective actions. The related investigative/corrective actions follow:

• If the upper support anti-rotation lugs are broken or cracked, or if a cylinder lug is missing: Do a pressure check of the NLG shock absorber (weight on and weight off wheels); report the measured pressure, ‘H’ dimension, temperature, and boroscopic inspection findings to Airbus for further assessment; and restore the NLG in accordance with Airbus recommendations.

• If there are no findings: At the initial threshold inspection, do a servicing check (weight on wheels) of the NLG shock absorber. If the pressure is not within permissible tolerance, adjust the pressure and do the servicing check again with the weight off the wheels. If the pressure is not within permissible tolerance with the weight off the wheels, do a full service of the NLG shock absorber. The service bulletin states that it is not necessary to do these actions again at the repetitive intervals unless there is a finding during the boroscopic inspection.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, mandated the service information and issued EASA Airworthiness Directive 2006-0174, dated June 21, 2006, to ensure the continued airworthiness of these airplanes in the European Union.

These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. As described in FAA Order 8100.14A, “Interim Procedures for Working with the European Community on Airworthiness Certification and Continued Airworthiness,” dated August 12, 2005, EASA has kept the FAA informed of the situation described above. We have examined EASA's findings, evaluated all pertinent information, and determined that AD action is necessary for airplanes of this type design that are certificated for operation in the United States.

This proposed AD would supersede AD 2005-24-06 and would retain the requirements of the existing AD, except for the boroscope inspection required within 90 days specified in paragraph (i)(2), and the repair requirements of paragraph (j) of AD 2005-24-06. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as discussed under “Differences among the Proposed AD, the EASA Airworthiness Directive, and the Service Bulletin.”

The service bulletin specifies to contact the manufacturer for further assessment of the reported measured pressure, ‘H’ dimension, temperature, and boroscope inspection findings of the NLG shock absorber, but this proposed AD does not require such reporting and assessment. The service bulletin also specifies restoring the NLG in accordance with Airbus recommendations, but this proposed AD would require restoring the NLG in accordance with a method approved by the FAA or the EASA (or its delegated agent).

We have changed the airplane model designations in the applicability and in paragraph (f), “Records Review,” of this proposed AD to be consistent with the parallel EASA airworthiness directive.

We have clarified paragraph (f) of this proposed AD to refer to BSCU standard L4.1 and L4.5, and added that Airbus Service Bulletin A320-32-1310, dated February 8, 2006, is one approved method for doing the records review.

This proposed AD would affect about 720 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD. The average labor rate is $80 per work hour.

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

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

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

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

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

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

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

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking CGD05-07-025, indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like a return receipt, please enclose a stamped, self-addressed postcard or envelope. We will consider all submittals received during the comment period. We may change this proposed rule in view of them.

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

The State Highway Administration (SHA), a division under MDOT, is responsible for the operation of both the Main Street and US 50 Bridges, at mile 22.4, across Wicomico River in Salisbury. SHA requested advance notification for vessel openings and a reduction in draw tender services due to the infrequency of requests for vessel openings of the drawbridges.

The Main Street and US 50 Bridges have vertical clearances of four feet, above mean high water, in the closed-to-navigation position. The existing operating regulations for these drawbridges are set out in 33 CFR § 117.579, which requires the draws to open on signal, except from 7 a.m. to 9 a.m., from 12 noon to 1 p.m. and from 4 p.m. to 6 p.m., the draw need not be opened for the passage of vessels, except for tugs with tows, if at least three hours of advance notice is given, and the reason for passage through the bridges during a closure period is due to delay caused by inclement weather or other emergency or unforeseen circumstances.

Bridge opening data supplied by SHA revealed a significant decrease in yearly openings. In the past three years from 2004 to 2006, the bridges opened for vessels 522, 282 and 157 times, respectively. Due to the infrequency of requests for vessel openings of the drawbridges, SHA requested to change the current operating regulations by requiring the draw spans to open on signal if at least four hours notice is given year-round by calling the contact telephone number at (410) 430-7561.

The Coast Guard proposes to amend 33 CFR 117.579, which governs the Main Street and US 50 Bridges, by revising the paragraph to read that the draws shall open on signal if at least four hours notice is given by calling the telephone contact number at (410) 430-7461. Under this revision, there will no longer be closure periods. All vessels will be required to provide at least four hours notice.

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

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. We reached this conclusion based on the fact that the proposed changes have only a minimal impact on maritime traffic transiting the bridge. Mariners will no longer have to wait for closure periods to end, which will allow them to plan their trips without requiring a stop, so long as the four hour notice is provided.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would not have a significant economic impact on a substantial number of small entities because the rule relieves restrictions to the movement of navigation, as mariners will no longer have to wait for closure periods to end, which will allow them to plan their trips without requiring a stop, so long as the four hour notice is provided.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Waverly W. Gregory, Jr., Bridge Administrator, Fifth Coast Guard District, and (757) 398-6222. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.lD, and Department of Homeland Security Management Directive 5100.1, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this rule should be categorically excluded, under figure 2-1, paragraph (32)(e) of the Instruction, from further environmental documentation. Under figure 2-1, paragraph (32)(e), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking [CGD08-07-007], indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know that your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this rule in view of them.

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

From 1999 to 2006 there have been 64 reported collisions, allisions, or groundings on the Lower Mississippi River between MM 167.5 and 187.9. There have been 21 allisions, 2 barge breakaways, 13 collisions and 28 groundings. Of these 64 casualties, 3 were categorized by 46 CFR 4 as serious marine incidents and 5 as major marine casualties. These casualties have involved all sectors of the maritime industry including deep draft shipping, towing vessels, and barge fleets and have occurred at high, normal and low water conditions.

A waterways user group subcommittee of the Lower Mississippi River Waterway Safety Advisory Committee (LMRWSAC) examined marine casualties on the LMR in the vicinity of 81 Mile Point. This subcommittee consisted of members of the pilots association, towing vessel industry, barge fleets and the Coast Guard. This subcommittee reviewed the location and marine investigation associated with each casualty and subjectively examined river conditions within this RNA. This committee determined that existing waterways management tools may not be sufficient to safely navigate in the vicinity of 81 Mile Point. Providing position reports to VTC New Orleans would allow the Coast Guard to track vessels in this proposed RNA and provide advice to mariners about upcoming traffic in an effort to eliminate meeting and overtaking scenarios at Eighty-One Mile Point.

Vessels operating within this proposed RNA (MM 167.5 to MM 187.9) would be required to provide position reports to VTC New Orleans at the following locations:

Vessels transiting upriver would provide position reports at MM 167.5 (Sunshine Bridge) and MM 173.7 (Bringier Point Light).

Vessels transiting downriver would provide position reports at MM 187.9 (Cos-mar Light) and 183.9 (Wyandotte Chemical Dock Lights).

Vessels getting underway within this RNA would provide position reports immediately before getting underway and at the above locations when heading upriver or downriver.

Fleet tows operating within their fleet would not be required to report while within the fleet but would provide a position report if they left the fleet or moved into the channel. Position reports would be made on VHF Channel 63A and would provide the name of the vessel, size of tow if applicable including number of loads and empties, destination, and confirm proper operation of their AIS if AIS is required under 33 CFR 164.46. At the time of the position report, the VTC would advise the mariner operating the vessel on upcoming traffic.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The rule does not prohibit transit, but merely requires checking in with VTS New Orleans utilizing existing equipment. The impacts on routine navigation are expected to be minimal.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This RNA will not have an impact on a substantial number of small entities because this rule will not obstruct the regular flow of commercial vessel traffic conducting business within the RNA. It does not require the purchase of additional equipment and instead utilizes existing VHF capabilities already required by other laws or regulations.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please contact LT Todd Peterson, Marine Safety Unit Baton Rouge at (225) 298-5400.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Commandant Instruction M16475.1D and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, we believe that this proposed rule should be categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, from further environmental documentation. This proposed rule fits in paragraph (34)(g) because it is a regulated navigation area. A preliminary “Environmental Analysis Check List” is available in the docket where indicated under ADDRESSES. Comments on this section will be considered before we make the final decision whether this rule should be categorically excluded from further environmental review.

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

We will accept written comments and information during this reopened comment period. We solicit comments on the original proposed critical habitat designation for Ceanothus ophiochilus and Fremontodendron mexicanum published in the Federal Register on October 3, 2006 (71 FR 58340), and on our draft economic analysis of the proposed designation. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons any habitat should or should not be determined to be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 et seq. ), including whether it is prudent to designate critical habitat;

(2) Specific information on the amount and distribution of Ceanothus ophiochilus or Fremontodendron mexicanum habitat, what areas should be included in the designations that were occupied at the time of listing that contain the features that are essential for the conservation of the species, and what areas that were not occupied at the time of listing that are essential to the conservation of the species and why;

(3) Information concerning pollinator species for Ceanothus ophiochilus or Fremontodendron mexicanum and whether sufficient information exists to determine if such a biological feature should be considered a primary constituent element for either of these species (please see “Primary Constituent Elements” section of this proposed rule for a detailed discussion);

(4) Whether any areas not currently known to be occupied by either species, but essential to the conservation of either species, should be included in the proposed designation;

(5) Land use designations and current or planned activities in the mapped critical habitat subunits and their possible effects on proposed critical habitat;

(6) The appropriateness of excluding non-Federal lands that contain Ceanothus ophiochilus occurrences within areas targeted for conservation within the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) from the final designation of critical habitat under section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the Act for details on the Western Riverside County MSHCP). Please provide information concerning whether the benefits of exclusion of any of these specific areas outweigh the benefits of their inclusion under section 4(b)(2) of the Act. If the Secretary determines the benefits of including these lands outweigh the benefits of excluding them, they will not be excluded from critical habitat;

(7) The appropriateness of excluding lands that contain Fremontodendron mexicanum occurrences within areas of the San Diego Multiple Species Conservation Program (MSCP) and areas of the Otay Mountain Wilderness managed by the Bureau of Land Management (BLM) covered by the 1994 multiple agency Memorandum of Understanding (MOU 1994) from the final designation of critical habitat. F. mexicanum is not covered by the MSCP; however, other species that co-occur with F. mexicanum are covered by the MSCP. Please provide comments on whether the protection and management of the habitat for these co-occurring species are adequate to justify the exclusion of these lands under section 4(b)(2) of the Act. Also, we are seeking any information on the benefits of including or excluding these lands from the critical habitat designation;

(8) The appropriateness of including lands in the Agua Tibia Mountains owned by the USFS and managed under its Land Management Plans for the Four Southern California National Forests from the final designation of critical habitat for Ceanothus ophiochilus . Please provide comments on how implementation of the management plan(s) in the Agua Tibia Mountains will or will not provide for conservation for C. ophiochilus . Also provide information on any minimization measures or monitoring plans for C. ophiochilus that will help insure that the occurrences of C. ophiochilus remain healthy and viable in the Cleveland National Forest. Finally, provide comments on the benefits of including or excluding these lands from the critical habitat designation;

(9) Whether the benefits of exclusion of any particular area outweigh the benefits of inclusion under section 4(b)(2) of the Act;

(10) Information on the extent to which any State and local environmental protection measures referred to in the draft economic analysis may have been adopted largely as a result of the listing of Ceanothus ophiochilus or Fremontodendron mexicanum ;

(11) Information on whether the draft economic analysis identifies all State and local costs attributable to the proposed critical habitat designation, and information on any costs that have been inadvertently overlooked;

(12) Information on whether the draft economic analysis makes appropriate assumptions regarding current practices and likely regulatory changes imposed as a result of the designation of critical habitat;

(13) Information on whether the draft economic analysis correctly assesses the effect on regional costs associated with any land use controls that may derive from the designation of critical habitat;

(14) Information on areas that could potentially be disproportionately impacted by designation of critical habitat for Ceanothus ophiochilus or Fremontodendron mexicanum ;

(15) Any foreseeable economic, national security, or other potential impacts resulting from the proposed designation of critical habitat, and in particular, any impacts on small entities or families; the reasons why our conclusion that the proposed designation of critical habitat will not result in a disproportionate effect to small businesses should or should not warrant further consideration; and other information that would indicate that the designation of critical habitat would or would not have any impacts on small entities or families;

(16) Information on whether the draft economic analysis appropriately identifies all costs that could result from the designation; and

(17) Information on whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

Pursuant to section 4(b)(2) of the Act, an area may be excluded from critical habitat if it is determined that the benefits of such exclusion outweigh the benefits of including a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species. We may exclude an area from designated critical habitat based on economic impacts, national security, or any other relevant impact.

All previous comments and information submitted during the initial comment period from October 3, 2006, to December 4, 2006, for the proposed rule (71 FR 58340) need not be resubmitted, as they are currently part of our record and will be considered in the development of the final rule. If you wish to comment, you may submit your comments and materials concerning the draft economic analysis and the proposed rule by any one of several methods (see ADDRESSES ). Our final designation of critical habitat will take into consideration all comments and any additional information we have received during both comment periods. On the basis of public comment on this analysis, the critical habitat proposal, and the final economic analysis, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

If submitting comments electronically, please also include “Attn: RIN 1018-AU77” and your name and return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, please contact the person listed under FOR FURTHER INFORMATION CONTACT .

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

You may obtain copies of the proposed rule and draft economic analysis by mail from the Carlsbad Fish and Wildlife Office (see ADDRESSES section) or by visiting our Web site at http://www.fws.gov/carlsbad/ .

On August 10, 2004, the Center for Biological Diversity and California Native Plant Society challenged our failure to designate critical habitat for these two species as well as three other plant species ( Center for Biological Diversity et al. v. Gale Norton, Secretary of the Department of the Interior et al. , C-04-3240 JL, N. D. Cal.). The Service agreed to withdraw our previous not prudent findings and submit for publication in the Federal Register a proposed designation of critical habitat, if prudent, on or before September 20, 2006, and a final critical habitat designation for these plants on or before September 20, 2007. In compliance with the court-approved settlement agreement, we published a proposed rule to designate critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum on October 3, 2006 (71 FR 58340). This rule identified a total of 644 acres (ac) (262 hectares (ha)) as critical habitat for these two species. Approximately 283 ac (115 ha) of land in Riverside County, California, were proposed as critical habitat for C. ophiochilus , and approximately 361 ac (147 ha) of land in San Diego County, California, were proposed as critical habitat for F. mexicanum .

Critical habitat is defined in section 3 of the Act as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. Based on the October 3, 2006, proposed rule to designate critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum (71 FR 58340), we have prepared a draft economic analysis of the proposed critical habitat designation.

The current draft economic analysis estimates the foreseeable potential economic impacts of the proposed critical habitat designation and other conservation-related actions for these species on government agencies and private businesses and individuals. The draft economic analysis identifies potential costs will be $385,000 to $659,000 in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, or $272,000 to $471,000 ($26,000 to $44,000 annualized) at a 7 percent discount rate.

The draft economic analysis considers the potential economic effects of actions relating to the conservation of Ceanothus ophiochilus and Fremontodendron mexicanum , including costs associated with sections 4, 7, and 10 of the Act, and including those attributable to the designation of critical habitat. It further considers the economic effects of protective measures taken as a result of other Federal, State, and local laws that aid habitat conservation for C. ophiochilus and F. mexicanum in areas containing features essential to the conservation of the species. The draft analysis considers both economic efficiency and distributional effects. In the case of habitat conservation, efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources to comply with habitat protection measures (such as lost economic opportunities associated with restrictions on land use).

This analysis also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. This information can be used by decision-makers to assess whether the effects of the designation might unduly burden a particular group or economic sector. Finally, this draft analysis looks retrospectively at costs that have been incurred since the date Ceanothus ophiochilus and Fremontodendron mexicanum were listed as endangered and threatened, respectively (October 13, 1998; 63 FR 54956), and considers those costs that may occur in the 20 years following a designation of critical habitat.

As stated earlier, we solicit data and comments from the public on this draft economic analysis, as well as on all aspects of the proposal. We may revise the proposal or its supporting documents to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

In our October 3, 2006, proposed rule (71 FR 58340), we indicated that we would be deferring our determination of compliance with several statutes and Executive Orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders was available in the draft economic analysis. Those data are now available for our use in making these determinations. In this notice we are affirming the information contained in the proposed rule concerning Executive Order (E.O.) 13132; E.O. 12988, the Paperwork Reduction Act; and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). Based on the information made available to us in the draft economic analysis, we are amending our Required Determinations, as provided below, concerning E.O. 12866 and the Regulatory Flexibility Act, E.O. 13211, E.O. 12630, and the Unfunded Mandates Reform Act.

In accordance with E.O. 12866, this document is a significant rule because it may raise novel legal and policy issues. Based on our draft economic analysis of the proposed designation of critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum , costs related to conservation activities for C. ophiochilus and F. mexicanum pursuant to sections 4, 7, and 10 of the Act are estimated to be approximately $385,000 to $659,000 in undiscounted dollars over a 20-year period as a result of the proposed designation of critical habitat, including those costs coextensive with listing and recovery. Discounted future costs are estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate, or $272,000 to $471,000, ($26,000 to $44,000 annualized) at a 7 percent discount rate. Therefore, based on our draft economic analysis, we have determined that the proposed designation of critical habitat for C. ophiochilus and F. mexicanum will not result in an annual effect on the economy of $100 million or more or affect the economy in a material way. Due to the timeline for publication in the Federal Register , the Office of Management and Budget (OMB) has not formally reviewed the proposed rule or accompanying economic analysis.

Further, E.O. 12866 directs Federal agencies promulgating regulations to evaluate regulatory alternatives (Office of Management and Budget, Circular A-4, September 17, 2003). Pursuant to Circular A-4, once it has determined that the Federal regulatory action is appropriate, the agency will then need to consider alternative regulatory approaches. Since the determination of critical habitat is a statutory requirement pursuant to the Act, we must then evaluate alternative regulatory approaches, where feasible, when promulgating a designation of critical habitat.

In developing our designations of critical habitat, we consider economic impacts, impacts to national security, and other relevant impacts pursuant to section 4(b)(2) of the Act. Based on the discretion allowable under this provision, we may exclude any particular area from the designation of critical habitat providing that the benefits of such exclusion outweigh the benefits of specifying the area as critical habitat and that such exclusion would not result in the extinction of the species. As such, we believe that the evaluation of the inclusion or exclusion of particular areas, or combination thereof, in a designation constitutes our regulatory alternative analysis.

Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)) (SBREFA), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based upon our draft economic analysis of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments received, this determination is subject to revision as part of the final rulemaking.

According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term significant economic impact is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of critical habitat for Ceanothus ophiochilus or Fremontodendron mexicanum would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities (such as residential and commercial development). We considered each industry or category individually to determine if certification is appropriate. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement; some kinds of activities are unlikely to have any Federal involvement and thus will not be affected by the designation of critical habitat. Designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies; non-Federal activities are not affected by the designation.

If this proposed critical habitat designation is made final, Federal agencies must consult with us under section 7 of the Act if their activities may affect designated critical habitat. Consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.

In our draft economic analysis of the proposed critical habitat designation, we evaluated the potential economic effects on small business entities resulting from conservation actions related to the listing of Ceanothus ophiochilus and Fremontodendron mexicanum and proposed designation of its critical habitat.

Impacts of conservation activities are not anticipated to affect small entities in the following categories: Development, fire management on Federal lands, alien plant species management on Federal lands, and other activities on Federal lands. Chapter 2 of the economic analysis concludes that no development is likely in proposed critical habitat. Rural, large lot development may occur in areas adjacent to proposed critical habitat; however, the likelihood of this type of development and whether it will pose a threat to the habitat is unknown. As described in Chapters 3 through 5 of the economic analysis, the modifications to activities on Federal lands, including fire management activities, alien plant species management, and surveying and monitoring activities, will be borne by the USFS and BLM. The Federal government is not considered to be a small entity by the SBA. Accordingly, the small business analysis contained in Appendix A of the economic analysis focuses on the economic impacts of fire management and alien plant species management activities on private lands.

Two private landowners in Riverside County are included in areas proposed as critical habitat. The total economic impact for these two landowners over the next 20 years is estimated to be $3,000 to $4,000 per year for fire management activities, and $1,000 to $2,000 per year for alien plant species management. Whether these two landowners qualify as a small business is unknown. However, since no more than two potential small businesses are estimated to occur within the area proposed as critical habitat, we certify that this proposed regulation will not result in a significant economic impact on a substantial number of small business entities. Please refer to our draft economic analysis of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.

On May 18, 2001, the President issued E.O. 13211 on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This proposed designation of critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum is considered a significant regulatory action under E.O. 12866 due to its potentially raising novel legal and policy issues. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared without the regulatory action under consideration. The draft economic analysis finds that none of these criteria are relevant to this analysis. Thus, based on the information in the draft economic analysis, energy-related impacts associated with C. ophiochilus and F. mexicanum conservation activities within proposed critical habitat are not expected. As such, the proposed designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use and a Statement of Energy Effects is not required.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501), the Service makes the following findings:

(a) This rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, or tribal governments, or the private sector, and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)-(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or tribal governments,” with two exceptions. It excludes “a condition of federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal Government's responsibility to provide funding” and the State, local, or tribal governments “lack authority” to adjust accordingly. (At the time of enactment, these entitlement programs were: Medicaid; Aid to Families with Dependent Children work programs; Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance, and Independent Living; Family Support Welfare Services; and Child Support Enforcement.) “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.”

The designation of critical habitat does not impose a legally binding duty on non-Federal government entities or private parties. Under the Act, the only regulatory effect is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under section 7. Non-Federal entities that receive Federal funding, assistance, permits, or otherwise require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat. However, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed above on to State governments.

(b) We do not believe that this rule will significantly or uniquely affect small governments. As discussed in the draft economic analysis, the majority (75 percent) of the lands proposed as critical habitat are either on Federal lands or on private lands covered by the Western Riverside County MSHCP. The remaining 25 percent is privately-owned land. Consequently, since small governments do not appear to be effected by the proposed critical habitat designation, we do not believe that critical habitat designation would significantly or uniquely affect small government entities. As such, a Small Government Agency Plan is not required.

In accordance with E.O. 12630 (“Government Actions and Interference with Constitutionally Protected Private Property Rights”), we have analyzed the potential takings implications of proposing critical habitat for Ceanothus ophiochilus and Fremontodendron mexicanum in a takings implications assessment. The takings implications assessment concludes that this proposed designation of critical habitat for C. ophiochilus and F. mexicanum does not pose significant takings implications.

The primary authors of this notice are the staff of the Carlsbad Fish and Wildlife Office.

The authority for this action is the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq. ).