[Federal Register Volume 74, Number 200 (Monday, October 19, 2009)]
[Rules and Regulations]
[Pages 53589-53625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24552]



[[Page 53589]]

-----------------------------------------------------------------------

Part II





Environmental Protection Agency





-----------------------------------------------------------------------



40 CFR Part 141



National Primary Drinking Water Regulations: Drinking Water Regulations 
for Aircraft Public Water Systems; Final Rule

Federal Register / Vol. 74, No. 200 / Monday, October 19, 2009 / 
Rules and Regulations

[[Page 53590]]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 141

[EPA-HQ-OW-2005-0025; FRL-8967-9]
RIN 2040-AE84


National Primary Drinking Water Regulations: Drinking Water 
Regulations for Aircraft Public Water Systems

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency is establishing Federal 
drinking water requirements (known as national primary drinking water 
regulations or NPDWRs) for aircraft public water systems (hereafter, 
aircraft water systems) under the Safe Drinking Water Act (SDWA). 
Federal drinking water standards were primarily designed to regulate 
water quality in stationary public water systems, and the application 
of these requirements to mobile water systems with the capability of 
flying throughout the world has created implementation challenges. This 
final rule's requirements are intended to tailor existing health-based 
drinking water standards to the unique characteristics of aircraft 
water systems for the enhanced protection of public health against 
illnesses attributable to microbiological contamination. EPA believes 
that this approach will better protect public health while building 
upon existing aircraft operations and maintenance programs, better 
coordinate Federal programs that regulate aircraft water systems, and 
minimize disruptions of aircraft flight schedules.

DATES: This rule is effective November 18, 2009. For judicial review 
purposes, this final rule is promulgated as of October 19, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2005-0025. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the Internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Water Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., 
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Water Docket is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Richard Naylor or Cindy Y. Mack, 
Drinking Water Protection Division, Office of Ground Water and Drinking 
Water (MC-4606M), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460; telephone numbers: Richard Naylor 
(202) 564-3847 or Cindy Y. Mack (202) 564-6280; e-mail addresses: 
[email protected] or [email protected]. For general 
information, contact the Safe Drinking Water Hotline, telephone number: 
(800) 426-4791. The Safe Drinking Water Hotline is open Monday through 
Friday, excluding legal holidays, from 10 a.m. to 4 p.m., Eastern time.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this Action Apply to Me?

    Entities potentially regulated by the Aircraft Drinking Water Rule 
(ADWR) include air carriers that operate aircraft water systems using 
finished surface water, finished ground water under the direct 
influence of surface water (GWUDI), or finished ground water. Regulated 
categories and entities include:

------------------------------------------------------------------------
                                                         Examples of
             Category                 NAICS code     regulated entities
------------------------------------------------------------------------
Scheduled passenger air                     481111  Air carriers.
 transportation.
Nonscheduled chartered passenger            481211  Air carriers.
 air transportation.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in this table could also be regulated. To determine whether 
your air carrier is regulated by this action, you should carefully 
examine the applicability criteria in Sec.  141.800 of this final rule. 
If you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding section 
entitled FOR FURTHER INFORMATION CONTACT.

B. Abbreviations Used in This Notice

ADWR: Aircraft Drinking Water Rule
ANSI: American National Standards Institute
AOCs: Administrative Orders on Consent
ATA: Air Transport Association
BMP: best management practice
CDC: Centers for Disease Control and Prevention
CFR: Code of Federal Regulations
CRMP: Comprehensive Representative Monitoring Plan
CWS: community water system
DBP: disinfection byproducts
E. coli: Escherichia coli
EO: Executive Order
EPA: United States Environmental Protection Agency
FAA: United States Federal Aviation Administration
FDA: United States Food and Drug Administration
FR: Federal Register
GWS: ground water system
GWUDI: ground water under the direct influence of surface water
HACCP: Hazard Analysis and Critical Control Point
HHS: Department of Health and Human Services
HPC: heterotrophic plate count
ICC: interstate carrier conveyance
ICR: Information Collection Request
IESWTR: Interim Enhanced Surface Water Treatment Rule
LIMS: laboratory information management system
mL: milliliters
MCL: maximum contaminant level
MCLG: maximum contaminant level goal
MDRL: maximum disinfectant residual level
mg/L: milligrams per liter
NAICS: North American Industrial Classification System
NCWS: non-community water system
NDWAC: National Drinking Water Advisory Committee
NPDWR: national primary drinking water regulation
NTNCWS: non-transient non-community water system
NTTAA: National Technology Transfer and Advancement Act
PWS: public water system
OMB: Office of Management and Budget
QAPP: Quality Assurance Project Plan
RFA: Regulatory Flexibility Act
SAB: Science Advisory Board
SBA: Small Business Administration

[[Page 53591]]

SDWA: Safe Drinking Water Act
SDWIS: Safe Drinking Water Information System
SWTR: Surface Water Treatment Rule
TC: total coliform
TCR: Total Coliform Rule
TCRDSAC: Total Coliform Rule/Distribution System Advisory Committee
TNCWS: transient non-community water system
TT: treatment technique
UMRA: Unfunded Mandates Reform Act
US: United States
UV: Ultra Violet
WHO: World Health Organization
WSG: Water Supply Guidance
WSP: Water Safety Plan

C. Table of Contents

I. General Information
    A. Does this Action Apply to Me?
    B. Abbreviations Used in This Document
II. Background
    A. Legal Authority
    B. Purpose of the Rule
    C. Scope and Applicability of Rule
    D. Regulatory and Enforcement History
III. Final Rule Development
    A. Stakeholder Involvement
    B. Aircraft Drinking Water Quality
IV. Elements of the Final Aircraft Drinking Water Rule
    A. Definitions (Sec.  141.801)
    B. Sampling Requirements (Sec. Sec.  141.802 and 141.803)
    C. Responses to Sample Results (Sec.  141.803)
    D. Restricted Access to the Water System
    E. Response to Proposed Rule Requests for Comment
    F. Aircraft Water System Operation and Maintenance Plan (Sec.  
141.804)
    G. Notification Requirements to Passengers and Crew (Sec.  
141.805)
    H. Reporting Requirements (Sec.  141.806)
    I. Recordkeeping Requirements (Sec.  141.807)
    J. Audit and Self-Inspection Requirements (Sec.  141.808)
    K. Violations (Sec.  141.810)
    L. Compliance Date
V. Cost Analysis
    A. National Cost Estimates
    B. Estimated Impacts of Final ADWR to Air Carrier Passengers
    C. Comparison of Costs From Proposed Rule to Final Rule
    D. Non-quantified Costs and Uncertainties
VI. Benefits Analysis
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations or Low-Income 
Populations
    K. Consultations with the Science Advisory Board, National 
Drinking Water Advisory Council, and the Secretary of Health and 
Human Services
    L. Plain Language
    M. Congressional Review Act
    N. Analysis of the Likely Effect of Compliance With the ADWR on 
the Technical, Financial, and Managerial Capacity of Public Water 
Systems
VIII. References

II. Background

A. Legal Authority

    EPA is finalizing this regulation under the authority of the Safe 
Drinking Water Act (SDWA), as amended, 42 U.S.C. 300f et seq., 
primarily sections 1401, 1411, 1412 and 1450. Under SDWA, EPA 
establishes minimum requirements for tap water provided to the public, 
known as the national primary drinking water regulations or NPDWRs; 
these standards are applicable to ``public water systems.'' SDWA 
section 1401 and EPA's regulations define a ``public water system'' 
(PWS) as a system for providing water for human consumption to the 
public through pipes or other constructed conveyances and that 
regularly serves an average of at least twenty-five individuals daily, 
at least 60 days per year. 40 CFR 141.2.
    All public water systems are subject to the NPDWRs unless they are 
excluded from regulatory requirements under SDWA section 1411. Section 
1411 excludes from regulation any public water system that receives all 
of its water from another regulated public water system, does not sell 
or treat the water, and is not a ``carrier which conveys passengers in 
interstate commerce.'' The classes of interstate carrier conveyances 
(ICCs) include aircraft, trains, buses, and water vessels. As a result, 
all ICCs that regularly serve water to an average of at least twenty-
five individuals daily, at least 60 days per year are public water 
systems and are currently subject to existing NPDWRs regardless of 
whether they treat or sell the water.
    EPA's NPDWRs establish different requirements based on the 
classification of the public water system (water system), including 
whether the system is a ``community,'' ``non-transient non-community,'' 
or ``transient non-community'' system, and whether the system uses 
surface water or groundwater. Aircraft water systems are considered 
transient non-community water systems (TNCWS) because they are not 
community water systems and they do not regularly serve an average of 
at least twenty-five of the same persons over six months per year (see 
40 CFR 141.2). Also, aircraft are regulated as surface water systems 
because they are likely to board finished drinking water from other 
public water systems that use surface water in whole or in part. EPA 
considers water for human consumption to include water for drinking and 
food preparation as well as water for brushing teeth and hand washing 
(see 63 FR 41941; August 5, 1998). Therefore, if an aircraft has a sink 
in the lavatory, then the water provided to that sink must be suitable 
for human consumption.

B. Purpose of the Rule

    The primary purpose of the ADWR is to ensure that safe and reliable 
drinking water is provided to aircraft passengers and crew. This 
entails providing air carriers with a feasible and effective way to 
comply with SDWA and the NPDWRs. Due to the unique characteristics of 
aircraft water systems and demonstrated implementation challenges, EPA 
developed a new NPDWR specifically tailored to aircraft water systems, 
the Aircraft Drinking Water Rule (ADWR).
    The ADWR has been developed to protect against disease-causing 
microbiological contaminants or pathogens through the required 
development and implementation of aircraft water system operation and 
maintenance plans that include best management practices, air carrier 
training requirements, and periodic sampling of the onboard drinking 
water.

C. Scope and Applicability of Rule

    This final rule only addresses aircraft regulated under SDWA. SDWA 
does not regulate aircraft water systems operating outside the U.S.; 
however, EPA is supporting an international effort led by the World 
Health Organization (WHO) to develop international guidelines for 
aircraft drinking water. The final rule applies to the onboard water 
system only. EPA defers to the United States Food and Drug 
Administration (FDA) with respect to regulating watering points such as 
water cabinets, carts, trucks, and hoses from which aircraft board 
water.
    EPA assumes that only finished water is boarded for human 
consumption on aircraft. Finished water means water that is introduced 
into the distribution system of a public water system and is intended 
for distribution and consumption without further treatment, except as 
necessary to maintain water quality in the distribution system (e.g., 
supplemental disinfection, addition of corrosion control chemicals) (40 
CFR 141.2). The assumption that only finished water is boarded on 
aircraft is

[[Page 53592]]

based on an FDA requirement that only potable water may be provided for 
drinking and culinary purposes on interstate carrier conveyances (ICCs) 
(21 CFR 1240.80). However, aircraft water systems that are boarding 
water that is not finished water will continue to be subject to 
existing NPDWRs.
    FDA requirements cover all ICC watering points (21 CFR 1240.83 
(a)), (1) to ensure the water supply meets EPA's NPDWRs and (2) to 
ensure the methods (i.e., water transfer process) of and facilities 
(e.g., water cabinets, carts, trucks, containers, and hoses) for 
delivery of such water to the conveyance and the sanitary conditions 
surrounding such delivery prevent the introduction, transmission, or 
spread of communicable diseases. FDA requirements for watering points 
do not entail the individual certification of every potential source, 
method, facility, or system; however, ICC selected watering points must 
be in accordance with FDA requirements (21 CFR part 1240, subpart E).
    Aircraft that do not provide water for human consumption or those 
with water systems that do not regularly serve an average of at least 
twenty-five individuals daily at least 60 days out of the year do not 
meet the definition of a public water system; these aircraft are not 
regulated under the NPDWRs or regulated under this final ADWR. EPA also 
does not regulate under SDWA water systems that only serve water 
outside the U.S. On the April 9, 2008, proposed ADWR, EPA received 
public comment as to the applicability of the ADWR to aircraft water 
systems based on ownership (e.g., foreign carrier, U.S. military). The 
final rule clarifies that the applicability of the ADWR is not based on 
ownership, but on the determination as to whether the aircraft water 
system is operating within the U.S., meets the definition of a public 
water system (PWS) under SDWA section 1401, and is not excluded from 
regulation under SDWA section 1411. An aircraft is not considered a 
public water system if it does not regularly serve an average of at 
least twenty-five individuals daily at least 60 days out of the year. 
The ADWR applies to aircraft (regardless of ownership) that fly routes 
between two or more locations within the U.S., while the aircraft is 
within U.S. jurisdiction. For instance, an aircraft flying an 
international route that serves only one U.S. location would not 
generally be considered a PWS. Another example is an aircraft that is 
used solely for military purposes, is not conveying passengers in 
interstate commerce, and meets all of the other exclusion criteria 
under SDWA section 1411; in this case, the aircraft would also be 
excluded from regulation under the NPDWRs and the ADWR.
    An estimated 63 air carriers and 7,327 aircraft water systems are 
regulated by this rule.

D. Regulatory and Enforcement History

    SDWA, including the amendments of 1986 and 1996, requires EPA to 
promulgate NPDWRs to prevent tap water contamination that may adversely 
affect human health. As previously noted, aircraft are subject to 
certain NPDWRs specific to TNCWS. EPA published Water Supply Guidance 
29 (WSG 29) in October 1986 to assist ICC operators, including air 
carriers, in complying with these standards (USEPA, 1986). Since then, 
EPA has determined that a new rule, the ADWR, specifically adapted to 
aircraft water systems would provide a clearer and more implementable 
regulatory framework for aircraft water systems. EPA suspended WSG 29 
in 2003 and is no longer approving operation and maintenance programs 
in lieu of monitoring.
    As discussed in the preamble to the proposed rule (73 FR 19323, 
April 9, 2008), in 2004, EPA found all aircraft water systems to be out 
of compliance with the NPDWRs. According to the air carriers, it is not 
feasible for them to comply with all of the monitoring that is required 
under the existing regulations. Subsequently, EPA tested 327 aircraft, 
of which 15 percent tested positive for total coliform. In response to 
these findings, EPA embarked on a process to tailor the existing 
regulations for aircraft water systems. In the interim, EPA placed 45 
air carriers under Administrative Orders on Consent (AOCs) that will 
remain in effect until 24 months following publication of the final 
rule.
    The ADWR adapts to aircraft water systems the applicable 
requirements from the Total Coliform Rule (TCR), the suite of surface 
water treatment regulations, and the Public Notification Rule.
    The Total Coliform Rule (TCR) (USEPA, 1989) applies to all public 
water systems. Because monitoring water systems for every possible 
pathogenic organism is not feasible, coliform organisms are used as 
indicators of possible source water and distribution system 
contamination. Coliforms are easily detected in water and are used to 
indicate a water system's source and distribution system vulnerability 
to pathogens. In the TCR, EPA sets a Maximum Contaminant Level Goal 
(MCLG) of zero for total coliforms. EPA also sets a monthly Maximum 
Contaminant Level (MCL) for total coliforms and requires testing of 
total coliform-positive cultures for the presence of fecal coliforms or 
E. coli. Fecal coliforms or E. coli indicate more immediate health 
risks from sewage or fecal contamination and are used as an indicator 
of acute contamination. In addition, the TCR requires sanitary surveys 
(i.e., onsite review of the water source, facilities, equipment, 
operation and maintenance of a PWS for the purpose of evaluating the 
adequacy of such source, facilities, equipment, operation and 
maintenance for producing and distributing safe drinking water). The 
TCR requires sanitary surveys by the State primacy agency every five 
years for systems that collect fewer than five total coliform samples 
per month (those serving 4,100 people or fewer). A TNCWS using surface 
water serving less than 1,000 individuals daily would typically be 
required to take one total coliform sample per month for routine 
sampling requirements.
    Under the Public Notification Rule, public water systems must give 
notice to persons served by the water system for violations of NPDWRs 
and for other situations posing a risk to public health from drinking 
water. The term ``NPDWR Violations'' is used in the public notification 
regulations to include violations of the MCL, Maximum Residual 
Disinfectant Level (MRDL), treatment technique (TT), monitoring, and 
testing procedure requirements. Public notice requirements are divided 
into three tiers, which take into account the seriousness of the 
violation or situation and of any potential adverse health effects that 
may be involved. Due to the transient nature of the public served by 
TNCWSs, public notice is typically provided through posting of the 
notice at locations where the public may access drinking water from the 
water system.
    In addition to the EPA requirements, air carriers have many 
different on-going programs and practices for assessing and correcting 
deficiencies and risks associated with the drinking water supply and 
related safety, security, and sanitation issues. For example, such 
programs and practices include FAA Airworthiness Standards: Transport 
Category Airplanes (airworthiness maintenance and inspection program) 
(14 CFR part 43, 14 CFR part 91, and 14 CFR part 121); vulnerability 
assessments/security programs; FDA regulations for Interstate 
Conveyance Sanitation (USFDA, 2005); FDA sanitary surveys of watering 
points and servicing areas; and FDA requirements of aircraft sanitation 
systems including potable (finished)

[[Page 53593]]

water, sewage, and galleys. These programs may contribute valuable 
information related to the condition of the aircraft water system and 
water quality. Throughout the rule's development, EPA has worked 
closely with FDA and FAA to ensure that the ADWR is integrated with 
these programs to avoid unnecessary duplication.

III. Final Rule Development

A. Stakeholder Involvement

    As discussed in the proposed ADWR, EPA announced in 2004 that it 
had initiated a rulemaking process to develop regulations for aircraft 
water systems. (73 FR 19324, April 9, 2008). The Agency committed to 
working collaboratively with other Federal agencies (e.g., FDA and FAA) 
overseeing the air carrier industry, industry representatives, and 
interested stakeholders to identify appropriate requirements to ensure 
safe drinking water onboard aircraft. This collaborative rule 
development process has allowed EPA an opportunity to obtain 
information from, and hear the concerns and questions of, stakeholders 
who would be affected by this rule in an organized and formal process 
prior to development of this final ADWR.
    EPA held three public meetings: These were held in June 2005, 
January 2006, and March 2007. All three events were well-attended by 
stakeholders representing a diverse group of interests including air 
carriers, airports, flight attendants, pilots, passengers, public 
health officials, environmental groups, States, public water systems, 
water treatment and equipment vendors, laboratories, foreign government 
agencies, and other Federal agencies. This pre-proposal input greatly 
assisted EPA in the rule's development.
    EPA proposed the ADWR on April 9, 2008 (73 FR 19320), and requested 
public comment. The ADWR adapts to aircraft water systems the 
applicable requirements from the Total Coliform Rule, the suite of 
surface water treatment regulations, and the Public Notification Rule. 
EPA received comments on the proposal and has made revisions to this 
final rule that increases regulatory flexibility and adaptability to 
the airline industry's operations, while ensuring public health 
protection. Section IV of this notice describes how EPA incorporated 
public comments into revisions to the final rule. A Response to 
Comments Document is available in the docket for today's action.

B. Aircraft Drinking Water Quality

1. Data Collection Efforts
    To better understand aircraft drinking water quality, EPA analyzed 
sampling results submitted by air carriers under Administrative Orders 
on Consent (AOCs) from 2005-2008. As detailed in the proposed ADWR, EPA 
also drew upon the results of the following three studies: (1) A 
voluntary monitoring study completed by the Air Transport Association 
(ATA) in Fall 2003; (2) an EPA study of aircraft NPDWR compliance 
completed in 2004; and (3) the Canadian Inspection Program monitoring 
results completed in 2006 (73 FR 19324).
    The AOCs established interim aircraft water testing and 
disinfection protocols. As part of the AOCs' requirements, air carriers 
were required to submit two documents for EPA approval, which set the 
stage for monitoring and disinfection protocols/procedures: A 
Comprehensive Representative Monitoring Plan (CRMP) and a Quality 
Assurance Project Plan (QAPP). The CRMP describes the air carrier's 
sampling and disinfection processes and protocols for collecting 
samples within a 12-month period. The QAPP describes the air carrier's 
Quality Assurance/Quality Control processes to ensure good quality 
data. As reflected in Table III-1, air carriers followed slightly 
different monitoring and disinfection protocols based on their fleet 
size.

Table III-1--Monitoring and Disinfection Protocols as Required Under the
                                  AOCs
------------------------------------------------------------------------
                                          Air carriers     Air carriers
                                          with greater    with less than
                                            than 20       or equal to 20
                                            aircraft         aircraft
------------------------------------------------------------------------
MONITORING: \1\
    For each sample event, collect at          [check]          [check]
     least one sample from a galley
     and one from a lavatory for total
     coliform and disinfectant
     residual (total residual
     chlorine)........................
    Sample 25% of fleet quarterly.....         [check]   ...............
    Sample all fleet quarterly........  ...............         [check]
DISINFECTING AND FLUSHING: \2\
    Disinfect and flush each                   [check]          [check]
     aircraft's water system no less
     than quarterly...................
    Disinfect and flush watering               [check]          [check]
     points (e.g., water trucks,
     carts, cabinets, hoses) no less
     than monthly.....................
------------------------------------------------------------------------
\1\ The air carrier was required to use State- or EPA-certified
  laboratories and EPA-approved analytical methods for analyzing
  drinking water samples.
\2\ If the air carrier had a pre-AOCs monitoring and disinfecting
  program requiring a higher frequency, the air carrier was required to
  continue in accordance with their program, unless modification was
  requested and approved by EPA.

2. Microbiological Occurrence for the Estimated Baseline
    As of December 31, 2008, EPA has processed drinking water sampling 
data from 25 of the 45 air carriers under the AOCs. From these 25 air 
carriers, EPA processed a total of 20,156 total coliform samples 
(13,872 routine and 6,284 repeat) and 17,267 chlorine residual samples. 
These 25 air carriers represent 78 percent of the total estimated AOCs' 
fleet size (5,558 aircraft) and 79 percent of the total expected annual 
number of routine samples. However, data for air carriers with an EPA-
approved QAPP and CRMP are only available from 2 air carriers in 2005, 
5 air carriers in 2006, 8 air carriers in 2007, and 12 air carriers in 
2008.
    The following data summaries are from air carriers with an EPA-
approved QAPP and CRMP. As noted above, not all 25 air carriers 
provided data collected under an EPA-approved QAPP and CRMP for all 
four years. Therefore, insufficient data are currently available to 
support statistical evaluation of the data sets. However, the data were 
used to provide an observational indication of trends. It should be 
noted that total coliform repeat samples by nature have a higher 
probability of being positive since repeat samples are taken after a 
routine sample is total coliform-positive. Consequently, the occurrence 
baseline for total coliform and E. coli/

[[Page 53594]]

fecal coliform occurrence was based on routine samples only. Table III-
2 presents data for routine total coliform samples collected under EPA-
approved QAPPs and CRMPs.
    Of the total 20,156 total coliform samples received, 93 percent or 
18,724 samples (12,794 routine and 5,930 repeat samples) were from air 
carriers with an EPA-approved QAPP and CRMP. Of the 12,794 routine 
samples, 3.6 percent (463 samples) were positive for total coliform and 
3.9 percent (18 samples) of the total coliform-positive samples were E. 
coli/fecal coliform-positive. Of the 463 total coliform-positive 
routine samples, 413 were collected in the lavatory, 47 were collected 
in the galley, and one was a composite sample of galley and lavatory 
sources; the location of the remaining two positive results are 
unknown. Although the lavatory samples had a higher total coliform-
positive occurrence rate (5.9 percent, or 413 of 7,027 lavatory 
samples) than the galley samples (0.8 percent, or 47 of 5,695 galley 
samples), the galley samples had a higher E. coli/fecal coliform 
occurrence of 12.8 percent (6 of 47 total coliform-positive samples), 
compared to 2.9 percent (12 of 413 total coliform-positive samples) in 
the lavatories. More details on the routine coliform data set by 
calendar quarter and by sample collection location on the aircraft are 
presented in the following table (Table III-2).

   Table III-2--AOCs Occurrence Baseline Data--Routine Total Coliform Samples of Air Carriers With EPA-Approved
                                        QAPPs and CRMPs (Years 2005-2008)
----------------------------------------------------------------------------------------------------------------
                                                                                   Total  of TC+     Total  of TC+     samples that      i> of TC
                                                  percent EC+ or      samples     are EC+ or FC+      samples
                                                        FC+
----------------------------------------------------------------------------------------------------------------
                                     Total Coliform Data by Calendar Quarter
----------------------------------------------------------------------------------------------------------------
Calendar Qtr 1..................             3.2             4.0             100               4           3,145
Calendar Qtr 2..................             3.5             3.5             198               7           5,641
Calendar Qtr 3..................             4.1             0.0              79               0           1,930
Calendar Qtr 4..................             4.1             8.1              86               7           2,078
                                 -------------------------------------------------------------------------------
    Total.......................             3.6             3.9             463              18          12,794
----------------------------------------------------------------------------------------------------------------
                                     Total Coliform Data by Sample Location
----------------------------------------------------------------------------------------------------------------
Galley..........................             0.8            12.8              47               6           5,695
Lavatory........................             5.9             2.9             413              12           7,027
Composite*......................            14.3               0               1               0               7
Unknown Sample Site.............             3.1               0               2               0              65
                                 -------------------------------------------------------------------------------
    Total.......................             3.6             3.9             463              18          12,794
----------------------------------------------------------------------------------------------------------------
* Composite sample of Galley and Lavatory sources.
Note: ``TC+'' means total coliform-positive; ``EC+ or FC+'' means E. coli-positive or fecal coliform-positive.
Note: For air carriers with EPA-Approved QAPPs and CRMPs (Years 2005-2008), out of a total number of 12,794
  routine samples, a total of 18 samples (0.14%) were EC+ or FC+.

3. Residual Chlorine Estimated Baseline
    Table III-3 presents data for disinfectant residual samples 
collected under EPA-approved QAPPs and CRMPs during routine and repeat 
total coliform sampling events. Of the 18,724 routine and repeat total 
coliform sample events reported, 16,109 disinfectant residual sample 
results were also reported. Results were reported as either ``detect'' 
with the residual value recorded, or ``non-detect.'' Disinfectant 
residual data were not provided for 2,615 coliform sample events. 
Disinfectant residual data are presented for the total of routine and 
repeat sample collection events because repeat samples have no higher 
or lower probability of having a detectable residual than routine 
samples.
    For air carriers with approved QAPPs and CRMPs, approximately 18.2 
percent (2,927 samples) of the 16,109 disinfectant residual results 
processed from 2005 to 2008 had a non-detectable disinfectant residual. 
Non-detectable levels were similar in galleys (17.3 percent) and 
lavatories (18.9 percent), while 22.4 percent (73 out of 326 samples) 
of the composite samples were non-detects. A sample location was not 
identified for 13 samples with a detectable residual. While not 
statistically significant, the occurrence of non-detectable 
disinfectant residuals appeared to increase in months with warmer 
weather. Quarter 3 (i.e., July to September) had the highest percentage 
of samples with a non-detectable disinfectant residual (30.2%), 
although as shown in Table III-2, Quarter 3 routine total coliform 
sample results showed no appreciable increase in the percentage of 
coliform-positive samples.

   Table III-3--AOCs Occurrence Baseline Data--Disinfectant Residual Routine and Repeat Samples of Air Carriers
                               With EPA-Approved QAPPs and CRMPs (Years 2005-2008)
----------------------------------------------------------------------------------------------------------------
                                                                   Total  of           i> of           i> of
                                                   disinfectant    disinfectant    disinfectant    disinfectant
                                                   residual non-   residual non-     residual        residual
                                                      detect          detect          detect          samples
----------------------------------------------------------------------------------------------------------------
                                 Disinfectant Residual Data by Calendar Quarter
----------------------------------------------------------------------------------------------------------------
Unknown Calendar Qtr............................               0               0               0               0
Calendar Qtr 1..................................            22.8             864           2,933           3,797

[[Page 53595]]

 
Calendar Qtr 2..................................             9.3             632           6,128           6,760
Calendar Qtr 3..................................            30.2             813           1,879           2,692
Calendar Qtr 4..................................            21.6             618           2,242           2,860
                                                 ---------------------------------------------------------------
    Total.......................................            18.2           2,927          13,182          16,109
----------------------------------------------------------------------------------------------------------------
                                  Disinfectant Residual Data by Sample Location
----------------------------------------------------------------------------------------------------------------
Galley..........................................            17.3           1,336           6,386           7,722
Lavatory........................................            18.9           1,518           6,530           8,048
Composite *.....................................            22.4              73             253             326
Unknown Sample Site.............................             0.0               0              13              13
                                                 ---------------------------------------------------------------
    Total.......................................            18.2           2,927          13,182          16,109
----------------------------------------------------------------------------------------------------------------
* Composite sample of Galley and Lavatory sources

    It appears that a non-detectable disinfectant residual is not 
associated with an increase in total coliform-positive samples. Of the 
801 total routine and repeat samples that were total coliform-positive, 
24 did not include any data on a disinfectant residual. Of the 
remaining 777 total coliform-positive routine and repeat samples, 584 
samples (75 percent) had a detectable disinfectant residual and 193 
samples (25 percent) did not have a detectable disinfectant residual. 
Twenty-one (3.6 percent) of the 584 total coliform-positive routine and 
repeat samples with a detectable residual (the lowest measuring 0.05 
mg/L) also tested positive for E. coli/fecal coliforms. Only one (0.5 
percent) of the 193 total coliform-positive samples did not have a 
detectable residual and tested positive for E. coli/fecal coliforms.
    Seventy-three samples had non-detectable disinfectant residual and 
were reported to have carbon filters installed on the water lines to 
the sample tap; two of those samples were total coliform-positive. For 
comparison, 364 samples with detectable disinfectant residual were 
reported to use carbon filters; three of those samples were total 
coliform-positive. Aside from charcoal/carbon, and particle removal 
filters in some galleys and lavatories, the majority of aircraft do not 
provide additional treatment for boarded water.
    For more details on aircraft drinking water sample results under 
the AOCs, see Chapter 3 and Appendix B of the Economic and Supporting 
Analyses for the Final ADWR.

IV. Elements of the Final Aircraft Drinking Water Rule

    The following sections describe the elements of the final rule as 
developed by EPA. EPA specifically designed the rule to allow air 
carriers to be consistent with the manufacturer recommen- dations for 
disinfecting and flushing aircraft water systems, instead of 
prescribing the frequency, chemical type and concentration to be used. 
By allowing air carriers to be consistent with the manufacturer 
recommendations for disinfection and flushing, the rule requirements 
will automatically evolve with technological improvements in aircraft 
water tank lining and piping materials, and as new more effective 
disinfectants are developed.
    EPA requested comment on all aspects of the rule in its proposal of 
April 9, 2008 (73 FR 19320); however, EPA did not request and did not 
consider comments on any aspect of the TCR, surface water treatment 
regulations, Public Notification Rule, or any other NPDWR other than as 
applied to aircraft water systems in the proposed rule. In addition to 
rule requirements, EPA identified specific requests for comment on 
subject matters pertaining to the proposed rule. The public comment 
period for the April 9, 2008, proposed ADWR closed on July 8, 2008. The 
following sections of this preamble explain the final rule and present, 
when applicable, a summary of the major public comments received. In 
addition, EPA has responded to all of the public comments in its 
Response to Comment document, which can be found in the docket for this 
rule (see ADDRESSES of this notice to obtain information on accessing 
the docket).

A. Definitions (Sec.  141.801)

    All definitions included in the proposed rule (73 FR 19343), remain 
the same in today's final rule except for the definitions for Aircraft 
Water System Operations and Maintenance Plan and Watering Point.
    In the proposed rule, the definition for Aircraft Water System 
Operations and Maintenance Plan reads, ``Aircraft Water System 
Operations and Maintenance Plan means the schedules and procedures for 
operating, monitoring, and maintaining an aircraft water system that is 
included in an aircraft operations and maintenance program approved or 
accepted by the Federal Aviation Administration (FAA).'' Since the 
publication of the proposed rule, the Agency has learned that FAA does 
not ``approve'' the air carrier operations and maintenance programs, 
and that describing these programs as ``FAA-accepted'' programs is more 
accurate. Thus, in the final rule, EPA removes the word ``approved'' 
from the definition.
    In the proposed rule, the definition for Watering Point reads, 
``Watering Point means a facility where finished water is transferred 
from a water supply to the aircraft. These facilities may include water 
trucks, carts, cabinets, and hoses.'' However, the Agency received 
comments concerning selection of watering points in Sec.  141.804. The 
commenters (details under Section IV. F of this notice) believed that 
EPA intended to alter Food and Drug Administration (FDA) regulations 
applicable to watering points. EPA did not intend to alter these 
regulations, and clarifies in today's final rule that it is the 
Agency's intent to keep the rule consistent with existing FDA 
regulations. Thus, the Agency is revising the definition for Watering 
Point to read, ``Watering Point means

[[Page 53596]]

the water supply, methods, and facilities used for delivery of finished 
water to the aircraft. These facilities may include water trucks, 
carts, cabinets and hoses.''

B. Sampling Requirements (Sec. Sec.  141.802 and 141.803)

    This section begins with a summary of the major sampling 
requirements of the final ADWR, then addresses public comments received 
on the proposed ADWR related to changes EPA has made to the final rule 
requirements. Finally, EPA provides responses to the ``Request for 
Comment'' issues posed in the proposal designed to aid the Agency in 
developing requirements under the final ADWR.
    In keeping with the TCR, today's rule reiterates that air carriers 
need only determine the presence or absence of total coliforms in water 
samples collected from aircraft water systems; a determination of total 
coliform density is not required. In addition, this final rule 
specifies that only analytical methodologies approved by EPA are to be 
used for sample analysis. For routine total coliform monitoring, each 
aircraft water system water sample must be 100 mL. For most systems, 
one sample must be collected from a lavatory and one sample from a 
galley. Each sample must be analyzed for total coliforms. If total 
coliforms are detected, the sample must further be analyzed for E. 
coli. Under this rule, E. coli is the indicator that fecal 
contamination may have occurred. If only one water tap is located in 
the aircraft water system due to aircraft model type and construction, 
then a single tap may be used to collect two separate 100 mL samples to 
be analyzed for total coliforms. If an aircraft water system has a 
removable/portable tank, that is drained at least every day of 
passenger service and there is one tap on the aircraft, the air carrier 
may collect one 100 mL sample from the available tap (i.e., galley or 
lavatory).
1. Coliform Sampling Plan (Sec.  141.802)
    EPA proposed to allow six months for air carriers to develop a 
coliform sampling plan for each aircraft following publication of the 
rule. However, the Agency received several comments requesting that the 
compliance date be extended in order to allow more time for air 
carriers to restructure maintenance programs between the AOCs and the 
final rule. The comments and the Agency's response are explained in 
more detail in section IV. L of this notice. EPA agrees that more time 
may be needed for air carriers to develop a coliform sampling plan. 
Therefore, today's final rule extends the compliance date for 
development of the coliform sampling plan to 18 months after 
publication of the final rule.
    Under the proposed and final rules, an air carrier must develop a 
coliform sampling plan for each aircraft water system it owns and 
operates. The coliform sampling plan must be included in the Aircraft 
Water System Operations and Maintenance Plan required in Sec.  141.804. 
The air carrier need not develop a separate coliform sampling plan for 
each aircraft, but the air carrier must ensure that each aircraft it 
owns and operates is covered by a plan. For example, if the air carrier 
operates several of the same type of aircraft water system with the 
same coliform sampling frequency, procedures, sampling tap locations, 
etc., the air carrier may choose to develop one coliform sampling plan 
that applies to all aircraft of this type in the air carrier's fleet.
    While most of the sampling plan requirements are the same in the 
proposed and final rules, the Agency received comments that the 
proposed rule was unclear as to whether and how air carriers could 
amend their operations and maintenance plans or their coliform sampling 
plans. EPA agrees that the final rule should more clearly state the 
requirements for making changes to these plans. Thus, in the final 
rule, EPA addresses this concern by clarifying that any subsequent 
changes to the coliform sampling plan must also be included in the 
Aircraft Water System Operations and Maintenance Plan. Changes to the 
coliform sampling plan could include changes to any of the requirements 
listed in this section, including changes to the frequency of routine 
coliform sample collection. In addition, both the reporting 
requirements and the requirements for the operations and maintenance 
plan have been revised to respond to these comments.
2. Coliform Sampling Requirements (Sec.  141.803)
    In the proposed rule, all air carriers would be required to collect 
the same volume and number of samples regardless of aircraft size:
     For routine samples--collect two 100 mL samples: one from 
a lavatory and one from a galley. If only one tap is available--collect 
two ``separate'' 100 mL samples.
     For repeat samples--collect four 100 mL samples: one from 
the positive tap, one other lavatory, one other galley, and one other 
tap. If less than four taps are available--collect four 100 mL samples 
from the available taps.
    In the proposed rule, routine sampling frequencies were based on 
the routine disinfection and flushing frequency as detailed in the 
following table (Table IV-1):

   Table IV-1--Proposed Rule Requirements for Routine Disinfection and
                          Flushing and Sampling
------------------------------------------------------------------------
   Disinfection & flushing frequency per     Coliform sampling frequency
               aircraft PWS                       per aircraft PWS
------------------------------------------------------------------------
Once per Quarter (4 times per year).......  Annually.
Once to 3 times per year..................  Quarterly.
Less than once per year...................  Monthly.
------------------------------------------------------------------------
If not specified by the manufacturer, disinfection and flushing must be
 no less frequent than once per quarter.
------------------------------------------------------------------------

    Public comments on the proposed rule raised several concerns 
related to (1) the lavatory as a sampling location site, and (2) the 
routine frequencies for disinfection and flushing, and coliform 
monitoring. EPA received several public comments regarding the 
elimination of lavatory samples. Several commenters stated that 
lavatory sampling should be eliminated because it is not representative 
of the water actually consumed for drinking purposes on aircraft and, 
requiring the sampling of lavatories mischaracterizes risks unless (1) 
there are no other sampling locations available on the aircraft; and/or 
(2) the airline takes affirmative steps to offer water in the 
lavatories for drinking purposes, such as providing drinking cups. EPA 
disagrees with these comments. In today's rule, air carriers must 
collect a total coliform sample from one galley and one lavatory, when 
available. Collection of samples from the lavatory is necessary since 
this water may be used for human consumption (e.g., brushing teeth, 
hand washing). Additionally, lavatory samples are as representative of 
the aircraft drinking water quality as galley samples when proper 
collection techniques/procedures are used to minimize the frequency of 
positive results due to surface contamination or improper collection 
procedures. EPA plans to discuss these issues further in its separate 
ADWR technical guidance.
    EPA received the following two major comments regarding routine 
disinfection and flushing, and coliform monitoring frequencies: (1) 
Reduce the sample collection for small volume aircraft water systems 
(e.g., regional jets with 5-gallon removable tanks), and (2)

[[Page 53597]]

extend the minimum disinfection intervals to accommodate for less 
frequent disinfection based on sampling results.
    With respect to sampling number and volume, commenters expressed 
concern that the proposed ADWR was unduly complicated (e.g., number of 
total coliform samples collected was too much) for small tanks (e.g., 
regional jets with 5 gallons) that are removable/portable and are 
drained daily; and that the rule does not account for varying sizes of 
aircraft. EPA agrees with the comments regarding aircraft with small 
drinking water tanks and today's rule incorporates the following 
changes:
     For aircraft water systems that have a removable/portable 
drinking water tank that is drained every day of passenger service, and 
the aircraft has only one tap, air carriers may collect one 100 mL 
routine sample from the available tap; and
     Collect three 100 mL repeat samples when performing the 
corrective action upon the receipt of a total coliform-positive sample. 
This reduction in repeat samples also applies to all tank types.
    EPA believes these reductions are appropriate because the 
complexity of aircraft water systems with removable/portable tanks and 
one tap on the aircraft is low (e.g., few feet of tubing/pipes; few 
potential points for cross contamination); and the reductions maintain 
consistency with the recommendations of the Federal Advisory 
Committee--The Total Coliform Rule/Distribution System Advisory 
Committee (TCRDSAC)--to reduce sampling volume and frequency for small 
non-community stationary systems (see docket for the TCRDSAC Agreement 
in Principle, signed September 18, 2008). EPA also believes that the 
economic and logistical burden on air carriers, particularly small 
regional jets, will be minimized by taking fewer samples.
    Public comment on the proposed ADWR disinfection and flushing, and 
monitoring frequencies centered around two main issues: (1) Extend the 
minimum disinfection intervals to accommodate an approach that focuses 
on risk and allows for less frequent disinfection based on sampling 
results, and (2) set ``reasonable minimum'' disinfection timelines 
consistent with the AOCs of some major air carriers to align a semi-
annual disinfection schedule with an annual sampling schedule, thereby 
reducing the ``significant'' economic cost to restructure in-place 
disinfection programs. EPA agrees that some changes are warranted and 
today's rule includes revised requirements to the routine frequencies 
as presented in Table IV-2:

    Table IV-2--Final Rule Requirements for Routine Disinfection and
                Flushing and Routine Sampling Frequencies
------------------------------------------------------------------------
Minimum routine disinfection & flushing    Minimum frequency of routine
              per aircraft                     samples per aircraft
------------------------------------------------------------------------
At least 4 times per year = At least     At least 1 time per year = At
 once within every three-month period     least once within every twelve-
 (quarterly).                             month period (annually).
At least 3 times per year = At least     At least 2 times per year = At
 once within every four-month period.     least once within every six-
                                          month period (semi-annually).
At least 2 times per year = At least     At least 4 times per year = At
 once within every six-month period       least once within every three-
 (semi-annually).                         month period (quarterly).
At least 1 time per year or less = At    At least 12 times per year = At
 least once within every twelve-month     least once every month
 period (annually) or less.               (monthly).
------------------------------------------------------------------------
If not specified by the manufacturer, select any frequency that is no
 less stringent than these four disinfection and flushing frequencies
 which meet the aircraft's unique operational needs.
------------------------------------------------------------------------

    EPA considers disinfection and flushing to be a more protective and 
pro-active public health measure than monitoring. Therefore, EPA re-
aligned the disinfection and flushing and monitoring frequencies in 
order to emphasize the importance of disinfection and flushing in 
comparison to monitoring. As a result, those air carriers that conduct 
more frequent disinfection and flushing do not have to monitor as 
frequently. Today's final rule requires an air carrier that conducts 
disinfection and flushing three times per year to perform sampling 
twice a year instead of four times per year. And an air carrier that 
conducts disinfection and flushing once per year or less must sample 
monthly. With respect to the commenter's concern about accommodating a 
semi-annual disinfection and flushing frequency with annual sampling 
(as allowed under some AOCs), the ADWR continues to accommodate the 
semi-annual disinfection and flushing schedule. However, EPA believes 
that linking this with annual sampling would be inconsistent with the 
importance of disinfection and flushing as the preferred, pro-active 
measure. As reflected in Table IV-2, today's rule continues to require 
air carriers that conduct disinfection and flushing semi-annually to 
conduct monitoring four times per year.
    While the frequencies in Table IV-2 provide air carriers with 
enough flexibility to schedule both routine disinfection and flushing 
and routine monitoring in a way that avoids disruption to passenger 
service, EPA intends for air carriers to schedule routine disinfection 
and flushing and routine monitoring at regular intervals throughout the 
calendar year. Routine disinfection and flushing should be scheduled so 
that the amount of time between each disinfection and flushing event is 
approximately equal. EPA believes that this will maximize the 
effectiveness of the disinfection and flushing event. Similarly, 
routine monitoring should be scheduled so that the amount of time 
between each monitoring event is approximately equal. EPA does not 
intend for routine disinfection and flushing events to take place back-
to-back such that disinfection and flushing occurs at the end of one 
disinfection and flushing period and again at the beginning of the 
following period. Nor should air carriers schedule routine monitoring 
events to take place back-to-back such that samples are taken at the 
end of one monitoring period and again at the beginning of the 
following period.
    In addition, the Agency received comment that the requirement to 
disinfect and flush quarterly, when no manufacturer recommendations 
were available, did not provide flexibility. In today's rule, EPA 
removed this requirement (as reflected in Table IV-2) so that when 
there is no manufacturer recommendation, air carriers can select any of 
the routine frequencies that best

[[Page 53598]]

meet their unique operations and maintenance needs.
    EPA was unable to make a determination on a risk-based approach 
that supports a reduced frequency for disinfection and flushing based 
on sampling results, because no new data were provided beyond the AOCs' 
data. The AOCs' data protocols were not designed to establish risk-
based frequencies. AOCs are interim measures used to aid air carriers 
to meet compliance with SDWA and provide an understanding of aircraft 
drinking water quality. At this time, EPA believes the final rule 
frequencies provide the minimum requirements necessary for public 
health protection, while also providing adequate flexibility to meet 
the evolving needs of the industry, such as transitioning from the 
AOCs' requirements to the ADWR.
3. Analytical Methods (Sec.  141.803(a))
    In the proposed rule, EPA stated that air carriers must use EPA-
approved analytical methodologies for the analysis of coliform 
bacteria. Public comment was received regarding the specific use of 
concurrent analytical methods that test for total coliforms and E. coli 
simultaneously. The commenter named several concurrent methods that 
they felt provide ``great benefit'' to the industry, because the 
methods are timely and accurate. Although some of these noted methods 
are EPA-approved, the final rule reiterates and clarifies that air 
carriers must use only the EPA-approved analytical methods for 
analyzing total coliforms and/or E. coli in drinking water samples as 
specified in Sec.  141.21(f)(3) and Sec.  141.21(f)(6) of the Code of 
Federal Regulations, or their equivalent as approved by EPA to 
demonstrate compliance with the ADWR sampling requirements. EPA has 
approved several methods for use that allow the simultaneous detection 
of both total coliforms and E. coli. These methods are also approved 
for use under this rule.
    In the proposed rule, EPA required air carriers to use a State- or 
EPA-certified laboratory for analysis of drinking water samples. For 
compliance with the ADWR, one commenter encouraged EPA to allow the use 
of foreign laboratories to conduct analysis on drinking water samples 
as permitted under the Administrative Orders on Consent (AOCs). In 
addition, the commenter noted that air carriers should be allowed to 
conduct disinfection of their aircraft water systems ``at locations 
outside the U.S.'' The final rule clarifies and reiterates that 
drinking water microbiological samples submitted for compliance with 
the ADWR must be analyzed by a certified laboratory to ensure the use 
of approved analytical methods and approved quality control procedures 
for checking analytical data for completeness and correctness. A 
certified laboratory is a laboratory that is certified by EPA or a 
State. ``State'' refers to a U.S. State or Tribe that has received 
primacy for public water systems (other than aircraft water systems) 
under section 1413 of the SDWA. By allowing the use of any laboratory 
that is certified by a State or EPA for analysis of drinking water 
samples, the ADWR provides air carriers with greater flexibility in 
designing their sampling programs while maintaining protection of 
public health.
    In one AOC, for a specific set of the fleet (i.e., 47 aircraft) an 
air carrier was permitted to use a foreign laboratory, which was 
neither EPA- nor State-certified, to perform analysis of drinking water 
samples provided that the samples were analyzed using EPA- approved 
analytical methods. The commenter incorrectly assumed that this 
allowance would fulfill SDWA compliance. In today's notice, the Agency 
makes clear that this allowance was not intended for compliance 
purposes under the SDWA. The ADWR does not prevent collection of 
samples outside the U.S. However, foreign laboratories must be an EPA- 
or a State-certified laboratory in order to analyze the drinking water 
samples for compliance with the ADWR. EPA plans on addressing these 
issues in more detail in its ADWR technical guidance. EPA notes that 
the ADWR requirements do not prevent air carriers from performing 
disinfection and flushing outside the U.S. for compliance with the 
ADWR.

C. Responses to Sampling Results (Sec.  141.803)

    As specified in the proposed rule, air carriers would need only 
determine the presence or absence of total coliforms in water samples 
collected from aircraft water systems; a determination of total 
coliform density would not be required. Under the proposal, upon 
receipt of a total coliform-positive result, air carriers would be 
required to further analyze the positive sample for the presence of 
fecal coliforms, except that the system could test for E. coli in lieu 
of fecal coliforms. EPA received public comment requesting the removal 
of fecal coliforms as indicators. EPA agrees with this comment and 
today's rule eliminates the use of fecal coliforms as indicators of 
potential fecal contamination. As a consequence, the final rule 
specifies that upon receipt of a total coliform-positive result, air 
carriers must further analyze that sample for E. coli only. The fecal 
coliform group (also referred to as thermotolerant coliforms) has been 
found to sometimes contain environmental bacteria that are not of fecal 
origin. Thus, the presence of fecal coliform bacteria in a water sample 
is not necessarily indicative of the potential for fecal contaminants 
being present. Thus, analyzing for E. coli provides more meaningful 
data to protect public health. This change is consistent with the 
recommendations of the Federal Advisory Committee--TCRDSAC.
    In the proposed rule, air carriers would be required to perform the 
following corrective actions based on a positive coliform result:
    (1) If one routine sample was total coliform-positive and E. coli/
fecal coliform-negative then the air carrier would be required to:
     Within 72 hours of receipt of the positive result from the 
laboratory, disinfect and flush the water system, and collect follow-up 
samples; or
     Within 24 hours of receipt of the positive result from the 
laboratory, collect four repeat samples.
    (2) If two or more routine samples or any repeat samples were total 
coliform-positive and E. coli/fecal coliform-negative, or if any sample 
was E. coli/fecal coliform-positive then the air carrier was required 
to:
     Within 24 hours of receipt of the positive result from the 
laboratory, restrict public access. Restrict public access included the 
following activities for the aircraft in question: Physically 
disconnect or shut-off the water system where feasible; provide public 
notification to passengers and crew if the water system could not be 
shut-off, but if the system could be shut-off, then provide public 
notice to the crew only; and provide alternatives to the use of the 
water system such as antiseptic alcohol-based hand gels or wipes and 
bottled water (that reduce or eliminate the need to use the water 
system during the limited period before access is restored); and
     Within 72 hours of receipt of the positive result from the 
laboratory, disinfect and flush the water system and collect follow-up 
samples if the system could not be physically disconnected or shut-off. 
If the water system could be shut-off to prevent access to passenger 
and crew, disinfect and flush when able.
    Public comment on the proposed ADWR noted several concerns related 
to the corrective actions upon receipt of a positive coliform result. 
Commenters stated that the proposed ADWR lacked flexibility to avoid 
passenger and

[[Page 53599]]

airspace disruptions that may occur when an aircraft cannot be pulled 
out-of-service to disinfect and flush in 72 hours (e.g., if results are 
received during an international flight). Commenters recommended EPA 
increase the timeframe from 72 hours to 96 or 120 hours to avoid 
inconveniencing travelers (due to delays, cost, or loss of service). 
Additionally, commenters stated that an aircraft should not be grounded 
``solely'' for a problem associated with the aircraft water system. EPA 
agrees that some flexibility is warranted to avoid unnecessarily 
grounding the aircraft, and for the final rule, better aligned the 
corrective actions so that non-fecal microbiological occurrences have 
the same corrective actions regardless of the number of samples that 
test total coliform-positive and E. coli-negative.
    Generally, most members of the total coliform bacterial group do 
not pose a risk to human health. The presence of total coliforms only 
(i.e., no E. coli are detected) presents a non-fecal potential health 
risk and is an indication of poor water quality that could be caused by 
stagnant water, a failure of treatment equipment intended to improve 
the aesthetic quality of the water (such as carbon filters) or 
inadequate routine maintenance of the water system, among others. 
However, EPA considers that an E. coli-positive result is an acute 
potential fecal health risk, and it is a necessary public health 
measure to ground the plane in 72 hours when the water system cannot be 
physically disconnected or the flow of water prevented through the 
taps. Therefore, no changes were made to the corrective actions for E. 
coli-positive results.
    The final rule reflects corrective action changes to non-fecal 
coliform occurrence when an air carrier receives a total coliform-
positive result that is also E. coli-negative. These changes are also 
consistent with recommendations of the Federal Advisory Committee--
TCRDSAC for stationary systems under the Total Coliform Rule, whereby 
the occurrence of routine total coliform-positive results that are E. 
coli-negative should not be considered a maximum contaminant level 
(MCL) violation. Therefore, in a set of routine samples, if one or more 
are total coliform-positive and E. coli-negative, the air carrier can 
select any of the following corrective actions and follow through with 
that action until a set of total coliform samples is total coliform-
negative:
    (1) Within 72 hours of receipt of the routine positive result from 
the laboratory, the air carrier must disinfect and flush, and collect 
follow-up samples prior to providing water for human consumption from 
the aircraft water system. From the time follow-up samples are taken 
and submitted for analysis to the time of receiving the results, air 
carriers may provide water for human consumption from the aircraft 
water system to passengers and crew. If any follow-up sample is total 
coliform-positive and E. coli-negative, the air carrier must perform 
all of the following:
    a. Conduct the Restrict Public Access requirements within 72 hours, 
and;
    b. Conduct a second disinfection and flushing, and;
    c. Collect follow-up samples prior to providing water for human 
consumption from the aircraft water system. From the time follow-up 
samples are taken, as a result of the second disinfection and flushing, 
to the time of receiving the results, air carriers must continue all 
Restrict Public Access provisions. If the second set of follow-up 
results are total coliform-positive and E. coli-negative, then the air 
carrier must continue to disinfect and flush the aircraft water system 
until a set of total coliform samples is total coliform-negative; or
    (2) Within 24 hours of receipt of the routine positive result from 
the laboratory, the air carrier must collect three repeat samples. From 
the time repeat samples are taken and submitted for analysis to the 
time of receiving the results, air carriers may provide water for human 
consumption from the aircraft water system to passengers and crew. If 
any repeat sample is total coliform-positive and E. coli-negative, the 
air carrier must perform one of the following:
    a. Conduct disinfection and flushing within 72 hours, and collect 
follow-up samples prior to providing water for human consumption from 
the aircraft water system. From the time follow-up samples are taken 
and submitted for analysis to the time of receiving the results, air 
carriers may provide water for human consumption from the aircraft 
water system to passengers and crew. If any follow-up sample is total 
coliform-positive and E. coli-negative, the air carrier must conduct 
the Restrict Public Access requirements within 72 hours, and perform a 
second disinfection and flushing and collect follow-up samples. From 
the time follow-up samples are taken, as a result of the second 
disinfection and flushing, to the time of receiving the results, air 
carriers must continue all restrict public access provisions. If the 
second set of follow-up results are total coliform-positive and E. 
coli-negative, then the air carrier must continue to disinfect and 
flush the aircraft water system until a set of total coliform samples 
is total coliform-negative. Or,
    b. Conduct the Restrict Public Access requirements within 72 hours, 
and perform disinfection and flushing and collect follow-up samples 
prior to providing water for human consumption from the aircraft water 
system. From the time follow-up samples are taken and submitted for 
analysis to the time of receiving the results, air carriers may provide 
water for human consumption from the aircraft water system to 
passengers and crew. If any follow-up sample is total coliform-positive 
and E. coli-negative, the air carrier must conduct the Restrict Public 
Access requirements within 72 hours, and perform a second disinfection 
and flushing and collect follow-up samples. From the time follow-up 
samples are taken, as a result of the second disinfection and flushing, 
to the time of receiving the results, air carriers must continue all 
Restrict Public Access provisions. If the second set of follow-up 
results are total coliform-positive and E. coli-negative, then the air 
carrier must continue to disinfect and flush the aircraft water system 
until a set of total coliform samples is total coliform-negative. Or,
    (3) Within 72 hours of receipt of the routine positive result from 
the laboratory, the air carrier must perform the Restrict Public Access 
requirements until operationally feasible to disinfect and flush, and 
collect follow-up samples. Once disinfection and flushing is performed, 
and a set of follow-up samples are taken and submitted for analysis, 
then the air carrier may cease the Restrict Public Access provisions 
and provide water for human consumption from the aircraft water system 
to passengers and crew. If the follow-up sample result from this first 
disinfection and flushing is total coliform-positive and E. coli-
negative, the air carrier must perform all of the following:
    a. Conduct the Restrict Public Access requirements within 72 hours, 
and
    b. Conduct a second disinfection and flushing and collect follow-up 
samples. From the time follow-up samples are taken, as a result of the 
second disinfection and flushing, to the time of receiving the results, 
air carriers must continue all Restrict Public Access provisions. If 
the second set of follow-up results are total coliform-positive and E. 
coli-negative, then the air carrier must continue to disinfect and 
flush the aircraft water system until a set of total coliform samples 
is total coliform-negative.
    As compared to the proposed ADWR, the changes made to the 
aforementioned

[[Page 53600]]

corrective actions for routine total coliform-positive samples that are 
E. coli-negative, include a third action to restrict public access, and 
the timeframe for the initial response has been changed from 24 hours 
to 72 hours to better align with the other two options for non-fecal 
routine occurrences. In addition, under any of the three corrective 
action options for non-fecal occurrences, upon completion of the first 
disinfection and flushing event, and follow-up samples are taken and 
submitted for analysis, the air carrier may provide water for human 
consumption to passengers and crew from the aircraft water system until 
laboratory results are received. Water is permitted to be served for 
human consumption after the first disinfection and flushing and follow-
up samples are taken, because when the air carrier performs 
disinfection and flushing routinely and consistently with the 
manufacturer recommendations (this includes maintaining the full 
contact time of the disinfectant with the distribution system and 
affording the complete recommended flushing time) the quality of the 
water system should be returned to a total coliform-negative result. 
However, after the second or subsequent disinfection and flushing 
events occur due to follow-up samples that are total coliform-positive 
and E. coli-negative, water is not permitted to be served for human 
consumption because the results confirm an on-going microbiological 
occurrence problem that warrants further action and investigation until 
a set of follow-up samples is total coliform-negative. In the case 
where the water system cannot be physically disconnected or shut-off, 
or the flow of water prevented through the taps, air carriers are 
required to provide public notification to passengers and crew, so that 
the public is informed of an on-going non-fecal occurrence with the 
water system. EPA believes these changes are appropriate and public 
health protection is maintained while providing air carriers with the 
flexibility needed to perform corrective actions that meet their 
operational challenges.
    In the proposed ADWR, corrective actions for failing to perform a 
requirement varied and were the following:
     Failure to perform routine disinfection and flushing would 
result in air carriers providing public notification to crew and 
passengers within 24 hours after discovery of the failure, until 
disinfection and flushing occurred;
     Failure to collect routine samples would result in air 
carriers providing public notification to crew and passengers within 24 
hours after discovery of the failure, and within 72 hours disinfect and 
flush, and collect follow-up samples;
     Failure to collect repeat or follow-up samples would 
result in air carriers restricting public access within 24 hours after 
discovery of the failure and included: If the aircraft water system 
cannot be shut-off, public notification was given to crew and 
passengers, but if the aircraft water system could be shut-off, public 
notification was given to crew only; and within 72 hours disinfect and 
flush, and collect follow-up samples;
     Boarding water from a watering point that is not approved 
by FDA would result in air carriers providing public notification to 
crew and passengers within 24 hours after boarding the water, and 
within 72 hours disinfect and flush, and collect follow-up samples;
     Boarding water that did not meet national primary drinking 
water regulations (NPDWRs), would result in air carriers performing all 
the corrective actions as applicable to an E. coli/fecal coliform-
positive result; and
     Boarding water under any condition where the water system 
was not in compliance with the procedures specified in the aircraft 
operation and maintenance plan would result in the air carrier 
providing public notification to passengers and crew within 24 hours of 
discovery of the failure, and within 72 hours disinfect and flush, and 
collect follow-up samples.
    In general, commenters to the proposed ADWR stated that these 
corrective actions for performance failures were confusing and ``not 
commensurate with the potential health risk,'' they were 
administratively and economically burdensome, and that EPA should 
instead require the use of ``intermediate and/or diagnostic measures 
that allow carriers to determine whether an actual health risk was 
presented by the failure to meet the requirement.'' Based on the issues 
raised by the commenters, EPA determined that some changes are needed. 
The final rule provides more clarity and flexibility to aid in reducing 
economic and administrative burden while ensuring public health 
protection by aligning the corrective actions based on (1) a fecal 
occurrence (i.e., E. coli-positive event) and failing to perform the 
applicable required corrective actions (e.g., fails to collect and 
submit for analysis the follow-up samples or boards water that that 
does not meet the NPDWRs applicable to transient non-community water 
systems when there is an E. coli-positive event); and (2) a non-fecal 
occurrence (e.g., total coliform-positive and E. coli-negative event, 
or boards water that does not meet NPDWRs applicable to transient non-
community water systems) and failing to perform the applicable required 
routine and/or corrective actions. Consequently, when the air carrier 
becomes aware that it has failed to perform required routine 
disinfection and flushing, or collect required routine samples, or 
collect the required repeat or follow-up samples for a total coliform-
positive and E. coli-negative result; or boards water from a watering 
point not in accordance with FDA regulations; or boards water that does 
not meet NPDWRs applicable to transient non-community water systems; or 
that is otherwise determined to be unsafe due to non-compliance with 
the procedures specified in the operations and maintenance plan, the 
air carrier must perform the corrective actions associated with a total 
coliform-positive/E. coli-negative result for the Restrict Public 
Access provisions:
     Within 72 hours of receipt of discovery of the failure or 
after being notified by EPA of the failure, the air carrier must 
perform the Restrict Public Access requirements until operationally 
feasible to disinfect and flush, and collect follow-up samples. Once 
disinfection and flushing is performed, and a set of follow-up samples 
are taken and submitted for analysis, then the air carrier may cease 
the Restrict Public Access provisions and provide water for human 
consumption from the aircraft water system to passengers and crew. If 
the follow-up sample result from this first disinfection and flushing 
is total coliform-positive and E. coli-negative, the air carrier must 
perform all of the following:
    [cir] Conduct the Restrict Public Access requirements within 72 
hours, and
    [cir] Conduct a second disinfection and flushing and collect 
follow-up samples. From the time follow-up samples are taken, as a 
result of the second disinfection and flushing, to the time of 
receiving the results, air carriers must continue all Restrict Public 
Access provisions. If the second set of follow-up results are total 
coliform-positive and E. coli-negative, then the air carrier must 
continue to disinfect and flush the aircraft water system until a set 
of total coliform samples is total coliform-negative.
    [cir] If any follow-up sample is E. coli-positive, the air carrier 
must follow all the corrective actions for an E. coli-positive result. 
These actions must continue until a set of follow-up samples is total 
coliform-negative.


[[Page 53601]]


When the air carrier becomes aware that it has failed to collect the 
required follow-up samples due to an E. coli-positive result, or boards 
water that does not meet NPDWR applicable to transient non-community 
water systems for an E. coli-positive result, then the air carrier must 
follow all of the E. coli-positive corrective actions within 24 hours 
of discovery of the failure or after being notified by EPA of the 
failure. These actions must continue until a set of follow-up samples 
is total coliform-negative.
    EPA determined that these corrective actions are appropriate 
because the ADWR relies on best management practices (e.g., 
disinfection and flushing, following operations and maintenance plan 
procedures, etc.) in lieu of the monthly total coliform sampling as 
performed by stationary systems under the Total Coliform Rule. These 
best management practices are part of the minimum requirements that 
ensure safe and reliable drinking water to aircraft passengers and 
crew. If an air carrier fails to perform these minimum requirements, 
then either a known problem has not been promptly addressed or the 
quality of the aircraft water used for human consumption is in 
question.
    In the proposed rule, air carriers were allowed to use water for 
hand washing purposes when the water was boarded from a watering point 
not approved by FDA or when required routine monitoring or disinfection 
and flushing was not conducted. Due to re-aligned corrective actions 
(as discussed earlier in this section) that provide air carriers with 
more flexibility to reduce the economic and administrative burden of 
grounding the plane to disinfect and flush within a set timeframe, the 
allowance of hand washing under these conditions no longer apply in the 
final ADWR. In addition, corresponding changes were also made to the 
applicable public notification sections of the rule (i.e., removed 
reference from the health effects language that allowed ``hand 
washing'' under these conditions).

D. Restricted Access to the Water System

    EPA proposed that in any situation where there is an affirmative 
indicator of actual or potential fecal contamination occurrence (e.g., 
a single E. coli-positive sample, water that has been boarded from a 
known contaminated source or not in accordance with FDA regulations, 
etc.), the carrier would be required to restrict access to the water 
system as expeditiously as possible, but in no case more than 24 hours 
after the event triggering the requirement (e.g., receipt of an E. 
coli-positive sample result). Ideally, under these conditions, access 
to all taps used to provide water for human consumption (e.g., galleys, 
lavatories, water fountains, built in coffee/tea makers, etc.) should 
be physically disconnected or shut-off to prevent exposure. In the 
proposed rule, restrict public access included: (1) Physically 
disconnect or shut-off the water system; (2) provide public 
notification to passengers and crew if the water system cannot be 
physically disconnected or shut-off, and if the water system can be 
shut-off, then public notification must be provided to crew only; and 
(3) provide alternatives to the restricted use of the aircraft water 
system, such as bottled water for drinking and coffee preparation and 
alcohol-based antiseptic gels and wipes in the galleys and lavatories, 
and other feasible measures that reduce or eliminate the need to use 
the aircraft water system.
    Public comments on the proposed ADWR raised concerns over 
physically disconnecting the water system and the use of alcohol-based 
antiseptic gels and wipes. With respect to physically disconnecting the 
water system, commenters stated the provision was in conflict with 
FDA's requirement to provide food handlers with hand washing 
facilities, and the provision did not account for situations where the 
water system cannot be physically disconnected or shut-off but other 
means can be used to prevent the flow of water through taps. In 
response to these comments, the final rule clarifies the Agency's 
intent to prevent passenger and crew exposure to the water. Therefore, 
EPA has adjusted the final rule language by adding another option to 
the Restrict Public Access requirements. In the final rule, as part of 
the Restrict Public Access requirements, air carriers can use other 
means to prevent the flow of water through the taps in addition to 
physically disconnecting or shutting-off the water system. EPA believes 
this change is a necessary step towards public health protection in the 
event of an actual or potential fecal contamination occurrence. If the 
event is due to a fecal occurrence, public access restrictions must 
remain in-place until the water system is disinfected and flushed and a 
complete set of follow-up samples is total coliform-negative. If the 
event is due to a non-fecal occurrence, public access restrictions must 
remain in-place until the water system is disinfected and flushed and a 
set of follow-up samples is collected and submitted for analysis. After 
this initial disinfection and flushing is performed, if any subsequent 
ones are needed, public access restrictions must remain in-place until 
a complete set of follow-up samples is total coliform-negative. FDA 
requirements permit air carriers to temporarily suspend the use of the 
aircraft drinking water system during emergencies. The ADWR provisions 
that restrict public access to the aircraft water system would be 
considered an emergency situation and, therefore, do not conflict with 
FDA regulations to provide food handlers with hand washing facilities.
    In addition, due to the corrective action changes made to better 
align corrective actions based on non-fecal and fecal occurrences, EPA 
adjusted the 24-hour timeframe to initiate the Restrict Public Access 
requirements to 72 hours for non-fecal events. Therefore, if an air 
carrier fails to perform a requirement in the case of a non-fecal 
occurrence (e.g., fails to perform a routine disinfection and 
flushing), the air carrier has 72 hours to initiate the Restrict Public 
Access requirements from discovery of the failure, or EPA's 
notification of the failure, or receipt of the non-fecal positive 
result. However, in the event of any failure to perform a requirement 
in the case of a fecal-occurrence (e.g., fails to collect the follow-up 
samples, or boarding water that that does not meet NPDWRs for E. coli), 
EPA did not change the timeframe and the air carrier has 24 hours to 
initiate Restrict Public Access requirements from discovery of the 
failure, or EPA's notification of the failure, or receipt of the fecal 
positive result.
    In determining whether it is ``feasible'' to physically disconnect 
or shut off the water system, EPA recognizes that in some cases 
carriers may need to consider binding operational constraints. For 
example, if the water system cannot be shut off without also shutting 
off water to the toilets, a carrier may determine that shutting off the 
water is not feasible and use the alternative Restrict Public Access 
provisions instead. EPA intends to provide further guidance on this 
issue in its ADWR technical guidance.
    Regarding the requirement to provide alcohol-based antiseptic hand 
gels or wipes, commenters stated that it was too limiting and did not 
allow for the use of other alternative products as specified in FDA's 
monograph governing ``Topical Antimicrobial Drug Products for Over-the-
Counter Human Use; Tentative Final Monograph (TFM) for Health-Care 
Antiseptic Drug

[[Page 53602]]

Products.'' In the final rule, EPA has changed the Restrict Public 
Access provision to include any antiseptic hand gels or wipes in 
accordance with FDA regulations under 21 CFR part 333--``Topical 
Antimicrobial Drug Products for Over-the-Counter Human Use.'' In this 
way, the provision evolves with technology and new products, and 
maintains consistency with FDA regulations regarding these products.

E. Response to Proposed Rule Requests for Comment

1. Microbiological Indicators
    In the proposed ADWR, EPA requested specific comment on whether 
bacterial presence measured by heterotrophic plate count (HPC) should 
be allowed, required, or not considered as an indicator of water 
quality in addition to total coliform monitoring. One commenter 
responded that HPC should be allowed as an indicator of water quality 
in addition to total coliform monitoring. However, several commenters 
responded that HPC is not a reliable indicator in aircraft water 
systems, that the sample holding time between collection and analysis 
of six hours if the sample is unrefrigerated is impractical, and that 
it provides no additional benefit justifying the regulatory burden of 
conducting HPC sampling. EPA agrees with commenters that the use of HPC 
in the ADWR is impractical due to the restrictions on sample holding 
times and the limitations of the information the HPC test results would 
provide. Therefore, today's rule does not require HPC monitoring. 
Additionally, HPC testing is used as a surrogate for disinfectant 
residual testing for stationary systems and since disinfectant residual 
testing is not an ADWR requirement, HPC testing is unnecessary under 
the ADWR.
2. Potential for Bacterial Growth
    EPA requested specific comment on whether the final rule should 
include provisions to address extended periods during which the 
aircraft water would remain stagnant, experience high water 
temperatures, or other situations that may contribute to concern 
regarding bacterial growth. Although most aircraft water tanks are 
either topped off or drained on an almost daily basis, occasional 
situations occur when the water may sit stagnant for an extended period 
of time or otherwise not be turned over, and thus could be at risk for 
biofilm development or other bacterial growth. EPA received several 
public comments both in favor of and opposed to regulatory requirements 
for dealing with extended stagnant periods, or other situations that 
may be of concern regarding bacterial growth. Commenters in favor of 
such provisions, in general, agreed with EPA's analysis of the 
potential for bacterial growth. The comments ranged from stating that 
the provisions should be data-driven to ``The Agency should confirm the 
effectiveness of disinfection and flushing in eliminating contaminants 
and biofilm by evaluating all aspects of closed circulation, airline 
water systems.'' Commenters opposed to the requirements raised two main 
concerns: (1) Aircraft do not have the current means to measure the 
temperature of the water in the storage tank and retro-fitting the 
aircraft to do this would be an immense project, economically and 
logistically, for air carriers and manufacturers; and (2) Air carriers 
already implement procedures that guard against the risk of bacterial 
growth such as draining, disinfecting, and flushing the water tanks if 
the aircraft has been out-of-service for extended lengths of time. 
Based on these collective comments, the final rule does not include 
provisions to address extended stagnant periods, high water 
temperatures, or other situations that may augment concern for 
bacterial growth. Instead, EPA plans on addressing these issues in its 
ADWR technical guidance.
3. Temperature of Water From Sample Taps
    EPA requested specific comment on whether sampling should only be 
limited to cold water taps when they are available. EPA also requested 
comment on whether or not, in the event that a sample is taken from a 
hot water tap, the temperature should also be measured to provide some 
indication of whether the temperature achieved is high enough to alter 
the microbiological results. EPA received several comments both in 
favor of and opposed to sampling only from cold water taps and 
measuring the temperature of water collected from hot water taps. The 
comments ranged from (1) the ADWR should include collecting samples 
from both cold water as well as hot water taps, and taking the 
temperature of water from hot water taps does not provide an accurate 
measurement of microbiological safeness, to (2) sampling should be from 
taps that are most representative of the water consumed by passengers 
which, in many cases, comes from galleys that are only equipped with 
hot water taps. Also, a commenter indicated that it would be 
impractical to set ``minimum temperature'' requirements that apply to 
``all hot water taps not only because of the variety of aircraft in 
service, but also the effect that altitude has on [water] temperatures. 
On the ground, where sampling will occur, a tap would register a 
different temperature than it would at an aircraft's cruising altitude, 
which is when that tap is most likely to be used to serve coffee/tea.''
    EPA agrees that sample locations should be those most 
representative of water used for human consumption by passengers and 
crew. However, since there is a potential for the temperature in the 
hot water taps to kill existing microorganisms, and this might mask 
whether there is a microbiological problem in the aircraft system, 
samples should be taken from cold water taps when they are available, 
except e.g., in the case when only a hot water tap is available in the 
galley. In this case, the galley sample should be taken from the hot 
water tap. In addition, EPA plans to further discuss tap sampling in 
its ADWR technical guidance.
4. Statistical Sampling of an Air Carrier Fleet
    EPA requested specific comment on the use of statistical sampling 
methodologies, specifically on what type of monitoring scheme would 
allow a statistical sample to be representative of an entire air 
carrier fleet. EPA was especially interested in receiving input on 
whether such methodologies, if allowed, should only be used in 
conjunction with onboard or other supplemental treatment, such as 
adding a chemical disinfectant or ultraviolet light. EPA also requested 
input regarding the support for such an option, given the cost and 
logistical implications a positive coliform result would have on the 
statistical sample by triggering follow-up action in the entire fleet. 
The majority of the public comments were in favor of statistical 
sampling, but they did not provide any examples of a statistical method 
or data to support their position. In opposition to statistical 
sampling, a commenter expressed concern over the use of statistical 
sampling because of the variability of the quality of the water that 
could be boarded from various sources, and because, ``when blended, all 
of the chemical and microbiological parameters would change and data 
generated would become inaccurate.'' One commenter in favor of 
statistical sampling stated that EPA should allow the use of 
statistical sampling because there was substantive evidence that 
aircraft in a fleet, or a subset of a fleet, behaved similarly with 
respect to avoiding positive tests for total coliforms. However, new 
data beyond the AOCs' data was not provided to support this statement, 
and the AOCs'

[[Page 53603]]

data are not sufficiently robust to support such an analysis. Another 
commenter suggested that statistical sampling could be used to minimize 
the sample collection volumes and frequency; however, no sampling 
scheme or data was provided. Yet another commenter suggested EPA 
incorporate into the rule the allowance of a procedure whereby an 
individual carrier could propose a statistical sampling method, present 
a proposed program for doing so along with technical analyses 
demonstrating its representativeness and efficacy, and request EPA to 
review and approve the plan.
    Today's rule does not include provisions for statistical sampling 
because EPA did not receive data to change its opinion that sampling a 
fraction of aircraft water systems does not identify all of the 
aircraft that may be operating with a contaminated water system. 
Therefore, the potential still exists that the un-sampled aircraft may 
be operating with a contaminated water system, possibly for years, 
until it is randomly selected and tested. EPA considers that its 
approach is appropriate, because each aircraft water system is a unique 
system that may board water from a potentially large number and variety 
of sources and distribution systems, and the volume of water that is 
boarded may vary on a daily basis or more often. Under current 
practices, the sources of water for an individual aircraft are so 
varied, in addition to variability in the quality of operation and 
maintenance practices, it would be difficult for a statistical sample 
to provide an accurate representation of all water being served on an 
air carrier's fleet. In addition, the majority of the committee members 
of EPA's Science Advisory Board (SAB) were not in favor of statistical 
sampling of aircraft drinking water because the available data is too 
sparse to interpret results for the whole fleet. As a result, the final 
rule does not allow for statistical sampling.
5. Option for Repeat Sampling
    EPA requested specific comment on whether to disallow the option 
for repeat sampling in response to a routine total coliform-positive 
sample if the aircraft has boarded water since the routine sample was 
taken. EPA noted that the repeat samples may not be providing an 
accurate picture of the water quality since it is not characterizing 
the same water as the routine sample. EPA received comments that were 
both in favor of and opposed to disallowing the option for repeat 
sampling in response to a routine total coliform-positive sample. 
Commenters in favor of repeat sampling noted that it was a reliable 
method of investigating the extent of bacterial problems in the water 
system, and another commenter stated that it allows an air carrier to 
pinpoint a source of contamination and should be permitted. In 
opposition to repeat sampling, a commenter noted that it should not be 
allowed because the process takes several days, which extends the time 
period for passengers and crew to be exposed to a potential health 
risk. In today's rule, EPA maintains the option to collect repeat 
samples as a corrective action to a total coliform-positive routine 
sample that is E. coli-negative. EPA believes repeat sampling is a 
valuable option because it can indicate whether the problem reflected 
by the routine sample result is no longer present, or whether the 
problem has persisted and requires further corrective action; 
therefore, EPA is allowing the option for repeat sampling in response 
to a routine total coliform-positive sample that is E. coli- negative 
in this ADWR.
6. Disinfectant Residual Monitoring
    EPA requested specific comment on whether it is appropriate to 
require monitoring of routine disinfectant residuals and if so, the 
frequency for monitoring and the corrective action required if 
sufficient disinfectant residuals are not detected. EPA received 
approximately the same number of comments in favor of and opposed to 
adding a requirement for routine monitoring of a disinfectant residual. 
In favor of monitoring for disinfectant residuals, a commenter stated 
that flight attendants should be trained in the use of chlorine 
residual testing equipment, and that the rule should maintain the AOCs' 
disinfectant residual monitoring requirements, because having a 
detectable residual is effective against bacterial growth. Commenters 
who opposed routine monitoring of a disinfectant residual thought that 
(1) it was unnecessary and does not provide a meaningful representation 
of risks or system integrity; (2) since air carriers receive finished 
water from PWSs, the level of disinfectant residual in the water supply 
is outside of the control of the air carriers; meaning, there is no 
benefit to requiring the carriers to monitor for disinfectant residual 
since the air carriers cannot take action to increase it on a system-
wide basis; and (3) since water turns over very quickly in aircraft 
water systems, monitoring of residual disinfectant provides no added 
benefit.
    The final rule does not require monitoring of a disinfectant 
residual for several reasons. First, the Surface Water Treatment Rule 
requires public water systems using surface water as a source to 
maintain a detectable disinfectant residual in the distribution system 
to ensure that disinfection is maintained throughout the water system. 
If a stationary system has a non-detectable disinfectant residual it 
may increase the amount of disinfectant added at the treatment 
facility, routinely flush water from dead-end or low water use areas of 
the distribution system, or add additional disinfection to a specific 
area of the system by installing booster-disinfection equipment to 
increase the disinfectant residual. Adding disinfectant booster 
equipment is not practicable or feasible for aircraft water systems due 
to tank design challenges. In addition, any corrective action requiring 
manual addition of water with a disinfectant residual would result in 
major disruptions to flight schedules (e.g., to drain and refill or 
flush and disinfect the aircraft water tank). Second, since aircraft 
may board water more than once per day from a variety of sources, some 
of which may be groundwater that is not disinfected, EPA is uncertain 
whether monthly (or less frequent) disinfectant residual monitoring 
would provide useful information for aircraft water systems. At the 
same time, EPA believes that more frequent flushing and disinfection of 
the entire aircraft water system as a treatment technique combined with 
other barriers incorporated into the ADWR (e.g., operations and 
maintenance plans, etc.) will ensure that microbiologically safe tap 
water is provided on the aircraft even without the residual 
disinfectant requirements applicable to stationary public water 
systems. Finally, the rule specifies that aircraft water systems are to 
board only finished water (i.e., drinking water intended for 
distribution and consumption without further treatment). Therefore, it 
is the responsibility of the PWS from which the aircraft receives water 
to provide finished water that meets all the NPDWRs. Under the NPDWRs, 
if that PWS uses groundwater as its ambient source, then the finished 
water is not required to have a detectable disinfectant residual. 
Trying to determine if boarded water is required to have a disinfectant 
residual, and then trying to correct it if monitoring yields a non-
detectable disinfectant residual result, would be an economic and 
operational burden for the air carrier.

[[Page 53604]]

7. Timeframe for Disinfection and Flushing
    EPA requested specific comment on the appropriateness of the 72-
hour timeframe to disinfect and flush, upon receipt of two total-
coliform-positive sample results or a single fecal coliform- or E. 
coli-positive result, since disinfection and flushing requires taking 
the aircraft out-of-service to a designated maintenance facility. The 
majority of the public comments received favored the 72-hour timeframe 
with some concerns. For example, one commenter expressed that the 
timeframe is a ``sensible'' and necessary response, but such 
unscheduled activities will be costly and burdensome to the air 
carriers and create an unfavorable reaction from passengers to the 
restricted access to the water and flight delays. On the same note, 
another commenter stated that the 72-hour timeframe is appropriate 
under normal conditions; however, in situations where weather or other 
airspace system delays renders compliance with the 72-hour timeframe 
impractical, the Agency should provide an extension to 96 hours. 
Another commenter noted ``while in the abstract'' the timeframe appears 
to be achievable, the Agency needs to provide ``reasonable 
accommodation for scheduling'' in cases where the air carrier may 
receive sample results while the aircraft is overseas and is unable to 
return to the U.S. and to the maintenance facility in 72 hours. EPA 
recognizes that its proposed timeframe of 72 hours has the potential to 
disrupt some passenger services, and may cause logistical challenges 
such as receiving results while on an international route. Therefore, 
the final rule includes an optional corrective action intended to 
provide air carriers with more disinfection and flushing flexibility 
when routine and/or repeat coliform samples are total-coliform-positive 
but E. coli-negative. The option in the final rule allows the air 
carrier to perform the Restrict Public Access requirements within 72 
hours of learning of the total coliform-positive result(s) that is E. 
coli-negative and conduct disinfection and flushing when it is 
operationally feasible. If the air carrier performs the Restrict Public 
Access Requirements, it does not have to disinfect and flush the 
aircraft in 72 hours, even if the aircraft water system cannot be 
physically disconnected or shut off, or the flow of water prevented 
through the taps. This option allows an air carrier to avoid service 
disruptions. The air carrier must collect follow-up samples prior to 
providing water for human consumption from the aircraft water system.
    The presence of total coliforms only (when no E. coli is detected) 
presents a non-fecal potential health risk and is an indication of poor 
water quality. Since the water is of poor quality, the passengers and 
crew have a right-to-know. Hence, public notification is an emphasized 
component of this option. However, EPA considers an E. coli-positive 
result to be an acute potential fecal health risk, and it is a 
necessary public health measure to ground the plane in 72 hours when 
the water system cannot be physically disconnected or shut-off, or the 
flow of water prevented through the taps. Therefore, no changes were 
made in the final rule to the corrective actions for E. coli-positive 
results.
8. Supplemental Treatment
    EPA requested specific comment on whether to require supplemental 
disinfection of water boarded onto aircraft, and whether to require 
monitoring for disinfectant residuals either in addition to or in lieu 
of supplemental disinfection. In addition, EPA requested comment on the 
feasibility of using other types of supplemental disinfection, such as 
UV treatment onboard aircraft, including providing incentives such as 
reduced routine monitoring or routine disinfection and flushing if an 
air carrier provides supplemental treatment. EPA received public 
comments both for and against the required use of supplemental 
treatment. Concern was expressed that supplemental treatment would 
increase costs for installation, extra weight, maintenance, and 
revision of aircraft operation and maintenance programs to accommodate 
a system that was not a part of the aircraft manufacturer's final 
product. Comments in support of supplemental treatment indicated that 
it may be viewed as the ultimate barrier against the risk of illness 
due to contaminated drinking water, and that there could be economic 
savings associated with reduced monitoring, reduced routine 
disinfection and flushing of aircraft water systems, and reduced 
remedial activity due to fewer positive test results. In addition, the 
commenter expressed that supplemental treatment could possibly reduce 
or eliminate the need for bottled water.
    In the final ADWR, supplemental treatment is not required to be 
used with finished water that has been boarded on the aircraft. EPA 
believes it has prescribed the minimum requirements necessary to 
provide safe drinking water to passengers and crew onboard aircraft, 
including the requirement to board finished water. However, 
supplemental treatment can provide an additional barrier of protection 
in the event of a failure in any of the basic protection barriers 
required under this rule (e.g., boarding finished water in accordance 
with FDA requirements; transferring the water from the watering point 
to the aircraft in a manner that ensures it will not become 
contaminated during the transfer; appropriate training of personnel; 
implementation of a water system operation and maintenance plan; etc.).
    EPA believes the basic requirements of the ADWR, when performed 
consistently and diligently by the air carriers and their agents, 
provide assurance that drinking water onboard aircraft is safe for 
passengers and crew. Based on the information that EPA has at the time 
of this rulemaking, there is not sufficient information or data to 
support a requirement of supplemental treatment for aircraft water 
systems or for reducing any of the minimum requirements based on the 
installation of supplemental treatment. However, EPA plans to revisit 
this issue as part of the Six-Year review of this rule under SDWA 
section 1412(b)(9) and as more data become available. EPA also plans to 
address supplemental treatment issues in its ADWR technical guidance.
9. Recording the Boarding of Water
    EPA requested specific comment on whether the potential benefit of 
recording information of where, how much, and when water is boarded 
outweighs the information collection burden. The boarding of water is 
usually done on an as-needed and as-requested basis, and EPA is not 
aware of any current requirements for capturing this type of 
information. EPA received public comments both for and against 
recording the information (e.g., where, how much, and when water is 
boarded). One commenter stated that this information may be helpful in 
determining the cause of contamination events. Another commenter noted 
that requiring carriers to record this information would increase 
delays and costs. EPA has not received sufficient information or data 
that show a benefit to recording information on the boarding of water 
that would justify the additional recordkeeping burden on the air 
carrier. A single aircraft may board water several times a day from 
multiple airports. During the boarding of water, water from more than 
one source is usually commingled in the aircraft water system since the 
tanks may not be completely drained between fillings. Maintaining a log 
of this information

[[Page 53605]]

may not necessarily help in identifying the source of contamination of 
an aircraft water system because there could be multiple causes for 
contamination of such systems. Requiring a log would generate multiple 
daily records for each aircraft without a known health benefit. 
Consequently, the final rule does not require recording information of 
where, how much, and when water is boarded.
10. Follow-Up Sampling To Confirm the Effectiveness of Routine 
Disinfection and Flushing
    EPA requested specific comment on whether follow-up sampling should 
be required to confirm the effectiveness of routine disinfection and 
flushing, and if so, the frequency/number of samples by which this 
monitoring should occur. EPA received comment in favor of and against 
requiring follow-up sampling after routine disinfection and flushing. A 
comment in favor of a requirement specifically noted, ``follow-up 
sampling should be required to confirm the effectiveness of routine 
disinfection and flushing, at least until a body of evidence can be 
established that clearly indicates that routine disinfection and 
flushing is reliably effective in removing biofilm from the aircraft 
water system.'' Another commenter believed, ``Once the aircraft has 
been disinfected and flushed, it may be necessary to test the water 
(again) to be sure that the disinfection has been successful and any 
problem of bacterial contamination has been solved. Sampling 
immediately after the disinfection and flushing may not show any hidden 
contamination problems. Hence, it is very important to wait a minimum 
time requirement (7-10 days) after disinfecting in order to re-commence 
the regular water testing regime.'' A commenter against such follow-up 
sampling as a regulatory requirement noted the following concerns: (1) 
It would be ``inconsistent with and undermine the [routine] 
disinfection and monitoring frequency schedules''; (2) ``Inasmuch as 
routine disinfection does not involve evidence of a system problem, but 
is simply a preventative measure, there is no risk-based benefit to 
post-disinfection routine sampling''; (3) it would ``impose significant 
logistical and cost burdens on the airlines and unduly delay the return 
of aircraft to service while sampling results were processed''; and (4) 
``Imposing additional sampling costs would be arbitrary and 
unreasonable in situations that do not suggest any compromise of system 
integrity, but rather are routine measures.''
    As discussed in the proposed rule, EPA established that, to ensure 
the results of routine samples are not inadvertently skewed by sampling 
too close to a disinfection event, routine coliform samples must not be 
collected within 72 hours after completing routine disinfection and 
flushing procedures. Collecting a coliform sample within 72 hours of 
routine disinfection and flushing is not representative of the general 
conditions of the aircraft water system. This required 72-hour time 
interval has not been changed in the final rule. However, EPA does 
agree that such follow-up samples do aid in determining the success of 
disinfection and flushing, and encourages additional or special 
coliform sampling. Today's rule does not require follow-up sampling to 
confirm the effectiveness of routine disinfection and flushing. EPA has 
not received sufficient information or data that show that such 
monitoring is necessary, and believes spacing routine samples evenly 
across monitoring periods is more representative of aircraft drinking 
water quality and normal aircraft water system operations.

F. Aircraft Water System Operations and Maintenance Plan (Sec.  
141.804)

    Both the proposed rule and today's final rule require each air 
carrier to develop and implement an aircraft water system operations 
and maintenance plan for each aircraft water system operated by the air 
carrier. The air carrier need not develop a separate plan for each 
aircraft, but the air carrier must ensure that each aircraft it owns 
and operates is covered by a plan. For example, if the air carrier 
operates several of the same type of aircraft with the same type of 
water system, the air carrier may choose to develop one operations and 
maintenance plan that applies to aircraft of this type in its fleet.
    In the proposed rule, air carriers would be required to include the 
aircraft water system operations and maintenance plans in a Federal 
Aviation Administration (FAA)-approved or -accepted air carrier 
operations and maintenance program. The Agency received several public 
comments against including this requirement in the final rule. 
Commenters expressed concern that this cast FAA in an inappropriate 
regulatory role, and that inclusion of the aircraft water system 
operations and maintenance plans in a FAA-approved or -accepted air 
carrier operations and maintenance program could cause significant 
reworking of existing maintenance program documents and may cause a 
duplication of effort in terms of regulatory oversight.
    EPA disagrees with these comments and continues to believe that 
including the aircraft water system operations and maintenance plans in 
a FAA-accepted air carrier operations and maintenance program is a 
critical element of the final rule. FAA views proper operation and 
maintenance of the water system as an operational safety issue and 
agrees with EPA that it is appropriate to have the water system 
operations and maintenance plans included in the FAA-accepted 
operations and maintenance program. FAA requires all maintenance and 
operational procedures to be formally documented for each aircraft, and 
a failure by an air carrier to perform the prescribed program 
requirements may result in forfeiture of air carrier operating 
certificates and/or fines. In addition, properly integrating aircraft 
water system operations and maintenance procedures with other FAA-
accepted operations and maintenance procedures is the most reliable way 
to ensure effective implementation of the plan and maximize effective 
oversight by EPA and FAA. This will help to minimize duplication of 
effort by the two agencies.
    Though this requirement remains in the final rule, the Agency made 
one minor change to the language in this paragraph. Since the 
publication of the proposed rule, the Agency has learned that FAA does 
not ``approve'' the air carrier operations and maintenance programs, 
and that describing these programs as ``FAA-accepted'' programs is more 
accurate. Thus, the final rule requires that air carriers include the 
aircraft water system operations and maintenance plan in an FAA-
accepted operations and maintenance program.
    In the proposed rule, EPA proposed to allow air carriers only six 
months to develop an aircraft water system operations and maintenance 
plan for each existing aircraft. However, the Agency received several 
comments requesting that the compliance date be extended in order to 
allow for more time for air carriers to restructure maintenance 
programs between the AOCs and the final rule. The comments and the 
Agency's response are explained in more detail in section IV.L of this 
notice. EPA agrees that more time may be needed for air carriers to 
develop aircraft water system operations and maintenance plans for 
existing aircraft. Therefore, today's final rule extends the compliance 
date for development of the aircraft water system operations and 
maintenance plan for existing aircraft from six months to 18 months 
after publication of the final rule.
    The Agency also received comments that the proposed rule was 
unclear as to

[[Page 53606]]

whether and how air carriers could amend their operations and 
maintenance plans or their coliform sampling plans. EPA agrees that the 
final rule should more clearly state the requirements for making 
changes to these plans. Thus, in the final rule, EPA addresses this 
concern by clarifying that any subsequent changes to the aircraft water 
system operations and maintenance plan must also be included in the 
FAA-accepted air carrier operations and maintenance program. For 
example, changes to the aircraft water system operations and 
maintenance plan could include, but are not limited to, changes to the 
procedures for disinfecting and flushing, including changes to the 
routine disinfection and flushing frequency, changes to training 
requirements, changes to self-inspection procedures, or changes to 
procedures for boarding water. The reporting requirements and the 
requirements for the coliform sampling plan have also been revised to 
respond to these comments.
    The following is a discussion of elements of the aircraft water 
system operations and maintenance plan for which EPA received comment 
and/or made changes to the final rule.
    The proposed rule would require that the operations and maintenance 
plan ensure all water boarded within the United States is from an FDA-
approved watering point as required under 21 CFR 1240.80. The Agency 
received several comments on this requirement. Some commenters believed 
that EPA intended this requirement to alter FDA regulations applicable 
to watering points. The commenters also pointed out a possible 
inconsistency with this requirement and existing FDA regulations for 
watering points.
    The Agency continues to acknowledge the joint oversight role of EPA 
and FDA in ensuring safe drinking water on aircraft. Therefore, this 
requirement does not seek to change any of FDA's regulations regarding 
watering points. Rather, EPA continues to defer to FDA with respect to 
regulating watering points. FDA will continue to ensure that the water 
supply meets the standards prescribed in EPA's NPDWRs, and ensure the 
methods of delivery, facilities for delivery, and the sanitary 
conditions surrounding the delivery of water to the aircraft in order 
to prevent the introduction, transmission, or spread of communicable 
diseases. Therefore, EPA revised the final rule to clearly communicate 
the Agency's intent. The final rule requires that all watering points 
must be selected in accordance with FDA regulations (21 CFR part 1240, 
subpart E). Today's final rule also requires that the operations and 
maintenance plan include procedures for ensuring that the air carrier 
board water from a watering point in accordance with FDA regulations 
(21 CFR part 1240, subpart E). These changes remove any inconsistency 
between the final rule and existing FDA regulations. It also ensures 
that all FDA regulations regarding watering points, including those 
applicable to watering points permitted for temporary use, are 
referenced in the final rule.
    The proposed rule stated that in no event must air carriers 
knowingly serve water that violates the NPDWRs. It also provided that 
if it was necessary to board water that violated the NPDWRs, the air 
carrier must perform the corrective action requirements applicable to 
E. coli-positive coliform sample results. Today's final rule clarifies 
that in no event must air carriers knowingly provide water for human 
consumption that violates the NPDWRs applicable to transient non-
community water systems. The Agency understands that sometimes unsafe 
water must be boarded in order to operate other essential systems, but 
at no time are air carriers to provide such water to passengers and 
crew in the form of beverages (e.g., coffee, tea, etc.); nor may 
passengers and crew be allowed access to the water system (i.e., the 
water system must be shut-off or the flow of water prevented through 
the taps); nor may the water be used for food preparation or any other 
consumptive use.
    The proposed rule would require that the operations and maintenance 
plan describe emergency procedures to be used in the event that water 
is boarded to operate essential systems, such as toilets, but is not 
boarded from an FDA-approved or otherwise safe watering point. In the 
final rule, EPA continues to require that the operations and 
maintenance plan include a description of emergency procedures to be 
used in the event that unsafe water is boarded to operate essential 
systems. In today's final rule, the operations and maintenance plan 
must include a description of emergency procedures used when the air 
carrier becomes aware that unsafe water is boarded. Unsafe water 
includes:
     Water boarded from a watering point not in accordance with 
FDA regulations;
     Water that does not meet NPDWRs applicable to transient 
non-community water systems; or
     Water that is otherwise determined to be unsafe due to 
non-compliance with the procedures for boarding water specified in the 
operations and maintenance plan.

G. Notification Requirements to Passengers and Crew (Sec.  141.805)

1. Situations Requiring Public Notification
    In EPA's proposed rule, public notification would be required in 
the following situations: (1) Where access to the aircraft water system 
is required to be restricted (e.g., fecal coliform/E. coli-positive 
sample result); (2) where there was a failure to collect required 
samples; (3) when the quality of the water cannot be assured, for 
example, when water has been boarded from a watering point not approved 
by FDA, or in a manner that does not otherwise comply with the air 
carrier's procedures for ensuring safe water outside the United States; 
or (4) in any other situation where the Administrator, air carrier, or 
crew determines that notification is necessary to protect public 
health.
    The Agency received several comments that prompted EPA to make 
changes to the situations described in the proposed rule. Some of the 
changes were a result of comments directly related to the public 
notification requirements of this section, while other changes were a 
result of comments applicable to other sections of the rule which 
subsequently affected these public notification requirements.
    First, in the final rule, the Agency restructured the corrective 
action requirements in Sec.  141.803 in response to comments discussed 
previously. Under the final corrective action provisions, public 
notification not only applies to an E. coli-positive sample result, but 
also when an air carrier chooses to restrict public access in response 
to a sample result that is total coliform-positive and E. coli-
negative, and failure to perform required ADWR provisions.
    Second, the Agency received comments stating that the situations 
requiring notification listed in the proposed rule in Sec.  141.810 
(i.e., Violations) conflict with the situations listed in proposed 
Sec.  141.805 (i.e., Notification of passengers and crew). The comments 
suggested that to avoid confusion and inconsistency, EPA should delete 
the public notification requirements in Sec.  141.810 or make 
conforming changes to the two sections. EPA agrees that the reference 
to public notification requirements in Sec.  141.805 is confusing and 
inconsistent with Sec.  141.810. Therefore, EPA removed all references 
to public notification from Sec.  141.810 and made conforming changes

[[Page 53607]]

to Sec.  141.805 of the final rule. As a result, air carriers are now 
required to give public notification when there has been a failure to 
perform required routine disinfection and flushing; or failure to 
collect routine, repeat or follow-up samples; or a failure to perform a 
corrective action associated with a fecal occurrence event.
    Third, the Agency received several comments on the watering point 
selection requirement and the requirement to board water from FDA-
approved watering points in Sec.  141.804. These comments and EPA's 
response are discussed elsewhere in today's notice. As a result, the 
Agency clarified both of these requirements in Sec.  141.804 of the 
final rule, and made the following changes under which air carriers 
must provide public notification when the air carrier becomes aware 
that the quality of water cannot be assured:
     Where water has been boarded from a watering point not in 
accordance with FDA regulations;
     Where water that has been boarded does not meet NPDWRs 
applicable to transient non-community water systems; and
     Where water is otherwise determined to be unsafe due to 
non-compliance with the procedures specified in Sec.  141.804(b)(6).
2. Method of Notification Delivery
    Both the proposed rule and today's final rule require that air 
carriers provide notification in a form and manner reasonably 
calculated to reach all passengers and crew. Using a variety of 
delivery methods for these notifications will help ensure that all 
passengers, including those with visual or hearing impairments, or non-
English speakers, will have access to relevant public health 
information.
3. Cessation of Public Notification
    The proposed rule would require that all public notification 
continue until all follow-up samples are total coliform-negative. As a 
result of clarifications made to the corrective action requirements in 
Sec.  141.803 of the final rule, EPA also clarifies that an air carrier 
must continue to provide public notification until the aircraft water 
system is returned to unrestricted public access.
    For instance, when the initial corrective action disinfection and 
flushing is conducted in response to a routine total coliform-positive 
sample result that is E. coli-negative, or there is a failure to 
perform required actions as a result of non-fecal events, public 
notification may cease when the aircraft water system is disinfected 
and flushed and follow-up samples have been collected. At this time, 
the water system may be returned to unrestricted public access; 
however, when corrective action disinfection and flushing is conducted 
more than once (i.e., disinfection and flushing is conducted in 
response to a follow-up sample that is total coliform-positive and E. 
coli-negative), public access restrictions, including public 
notification, must remain in-place until a later set of follow-up 
samples is total coliform-negative.
    If initial corrective action disinfection and flushing is conducted 
as a result of an E. coli-positive sample result, or a failure to 
perform required actions as a result of fecal events, public access 
restrictions, including public notification, must remain in-place until 
a complete set of follow-up samples is total coliform-negative (not 
just until they are collected and sent for analysis, as in the case 
where the corrective action is triggered by a total coliform-positive 
but E. coli-negative sample).
    In both cases, when public access is restricted due to an E. coli-
positive sample or a total coliform-positive sample that is E. coli-
negative, if the air carrier can shut off the water system or restrict 
the flow of water through the taps, then public notification need only 
be conducted for the crew and not to the passengers.
4. Type of Notice Required When Public Access Is Restricted
    Commenters noted that the public notification requirements in the 
proposed rule were confusing, and it was difficult to determine which 
requirements were applicable in situations where public access was 
restricted. In the final rule, the Agency better aligns the public 
notification requirements based on three categories: sample results 
(i.e., a total coliform-positive and E. coli-negative result or an E. 
coli-positive result), non-fecal occurrence failures and events (e.g., 
failure to conduct repeat sampling), and fecal occurrence failures and 
events (e.g., failure to collect follow-up samples after the aircraft 
water system tests positive for E. coli, or the air carrier becomes 
aware that E. coli-positive water was boarded from a watering point not 
in accordance with FDA regulations, etc.).
    In today's rule, EPA makes clear for all three public notification 
categories that if the aircraft water system can be physically 
disconnected, shut-off, or the flow of water is prevented through the 
taps, air carriers are required to provide public notification to the 
crew only. However, if the aircraft water system cannot be physically 
disconnected, shut-off, or the flow of water cannot be prevented 
through the taps, air carriers are required to provide public 
notification to passengers and crew. This is allowable for all three 
public notification categories.
    In addition, today's rule requires that when an air carrier becomes 
aware that unsafe water was boarded, the public notice must include 
when and where the unsafe water was boarded. For the purpose of this 
requirement, unsafe water includes water that was boarded from a 
watering point not in accordance with FDA regulations (21 CFR part 1240 
subpart E), or water that does not meet NPDWRs applicable to TNCWSs, or 
water that is otherwise determined to be unsafe due to non-compliance 
with the procedures specified in Sec.  141.804(b)(6).
5. Standard Health Effects Language
    Due to the removal of fecal coliforms as a fecal indicator (as 
discussed in section IV.C Responses to Sample Results), all references 
to ``fecal coliforms'' have been removed from the health effects 
language. In addition, in order to better align the health effects 
language in Sec.  141.805 to the restructured corrective action 
requirements in Sec.  141.803, the Agency clarified that there is 
specific health effects language applicable when public notification is 
triggered by an E. coli-positive sample result, a sample result that is 
total coliform-positive and E. coli-negative, or a non-fecal occurrence 
failure or event. In addition, new health effects language was added 
when public notification is triggered by a fecal occurrence failure or 
event.
    The specific health effects language was also revised to conform to 
revisions to Sec.  141.804. In the final rule, the watering point 
statement reads, ``Water was boarded from a watering point not in 
accordance with FDA regulations,'' rather than, ``Water was boarded 
from a watering point not approved by FDA.''

H. Reporting Requirements (Sec.  141.806)

    EPA proposed that air carriers report the following to the 
Administrator within six months of publication of the final rule in the 
Federal Register:
     That a coliform sampling plan was developed for each 
existing aircraft;
     The frequency for routine coliform sampling identified in 
the coliform sampling plan developed for each existing aircraft; and
     That an operations and maintenance plan was developed for 
each existing aircraft.
    The Agency received several comments requesting that the compliance 
date be extended in order to allow for more time for air carriers to

[[Page 53608]]

restructure maintenance programs between the AOCs and the final rule. 
EPA agrees that more time may be needed for air carriers to comply with 
these reporting requirements. Therefore, today's rule requires that air 
carries comply with these requirements 18 months after publication of 
the final rule. The comments and the Agency's response are explained in 
more detail in section IV.L of this notice.
    EPA proposed that air carriers report a complete inventory of 
aircraft that are public water systems within six months of publication 
of the final rule. However, the Agency received several comments 
requesting that this compliance date be extended. EPA agrees that more 
time may be needed for air carriers to report a complete inventory of 
aircraft that are public water systems. Therefore, today's final rule 
extends the compliance date for development and reporting of the 
inventory to 18 months after publication of the final rule. The 
comments and the Agency's response are explained in more detail in 
section IV.L of this notice.
    The Agency received comments requesting clarification on the 
aircraft inventory requirement to report changes in an aircraft's 
status from active to inactive or vice versa. In the final rule, EPA 
clarifies that active or inactive status refers to the aircraft's 
status as an aircraft water system. Thus, an aircraft that meets the 
definition of an aircraft water system is considered ``active,'' while 
one that does not meet this definition is considered ``inactive.'' For 
example, an aircraft may be considered ``inactive'' in situations where 
an aircraft is out of passenger service for extended maintenance, or 
where an aircraft is in passenger service, but flying strictly 
international routes where SDWA does not apply. Therefore, in the final 
rule, the Agency clarifies that air carriers must report, no later than 
10 days following the calendar month in which the change occurred, the 
status, or the change in status, of any aircraft as an aircraft water 
system as defined in Sec.  141.801.
    In addition, EPA corrects the final rule by adding Sec.  
141.806(b)(2)(iv). This paragraph requires air carriers to report 
changes in the ability to physically shut off or disconnect the water 
system. This requirement was referred to in the preamble of the 
proposed rule, but omitted from the rule text. Restoring this 
requirement to the rule eliminates the inconsistency.
    The Agency received comments that the proposed rule was unclear as 
to whether and how air carriers could amend their operations and 
maintenance plans or their coliform sampling plans. In the final rule, 
EPA addresses this concern by amending the final rule in several 
places, including by adding paragraph Sec.  141.806(b)(6). This 
paragraph requires that the new frequency be reported to the 
Administrator no later than 10 days following the calendar month in 
which the change occurred. It also requires that these changes be 
included in the aircraft water system operations and maintenance plan 
that is included in the air carrier operations and maintenance program 
accepted by FAA.
    In the proposed rule, the Agency noted for each aircraft water 
system the air carriers must include the routine disinfection and 
flushing frequency in the operations and maintenance plan, and air 
carriers must keep records of disinfection and flushing events. 
However, the Agency did not specifically note under Sec.  141.806 that 
disinfection and flushing events must be reported to the Administrator. 
Since the Agency's intent included reporting disinfection and flushing 
events to the Administrator, the following was added to Sec.  141.806 
Reporting Requirements for consistency and clarification:
     For each existing aircraft water system, the air carrier 
must report to the Administrator the frequency for routine disinfection 
and flushing by 18 months after the final rule is published.
     For each new aircraft water system, the air carrier must 
report the frequency for routine disinfection and flushing, within the 
first calendar quarter of initial operation of the aircraft.
     Routine disinfection and flushing events must be reported 
no later than 10 calendar days following the disinfection and flushing 
period in which the disinfection and flushing occurred (e.g., 
quarterly, semi-annually).
     Changes to the disinfection and flushing frequencies must 
be reported no later than 10 days following the calendar month in which 
the change occurred.

In addition, the final rule further clarifies the Agency's intent to 
require reporting of all events that require non-routine sampling.

I. Recordkeeping Requirements (Sec.  141.807)

    In both the proposed rule and today's final rule, EPA requires that 
air carriers retain certain information for the aircraft water systems 
that they own or operate. The following is a discussion of 
recordkeeping requirements for which EPA received comment and/or made 
changes to the final rule.
    In the proposed rule, the Agency did not specify the types of 
records related to disinfection and flushing and self-inspections that 
must be kept in order to meet the recordkeeping requirements. One 
commenter suggested that air carriers be required to ``keep records 
confirming performance of required disinfection'' and ``keep records 
confirming performance of self-inspections.'' In general, the commenter 
stated that requiring air carriers to keep more detailed records does 
not conform with current FAA-supervised maintenance activities, and 
adds unnecessary burdens and confusion with respect to compliance with 
the requirements.
    EPA disagrees with amending these paragraphs in the manner 
suggested in the comments because the Agency considers these 
requirements to be the minimum necessary to ensure accountability and 
facilitate regulatory oversight to ensure compliance with the rule. In 
addition, EPA believes that detailed records of self-inspections are 
necessary to inform the Agency about the condition of the water system 
components at the time of the inspection and any deficiencies 
identified during the inspection. A record simply confirming 
performance of a self-inspection would not be sufficient. While EPA 
disagrees with amending this paragraph in the manner suggested in the 
comments, the Agency believes that adding more specificity to these 
recordkeeping requirements will help to avoid confusion with respect to 
compliance. Therefore, in today's rule, the Agency clarified this 
section by adding that at a minimum, records of disinfection and 
flushing must include the following: Date and time of the disinfection 
and flushing, and the type of disinfection and flushing (i.e., routine 
or corrective action). The recordkeeping requirements for self-
inspections were also amended to align with existing recordkeeping 
requirements for sanitary surveys conducted by owners and operators of 
stationary public water systems. In the final rule, at a minimum, 
records of self-inspection must include the following: Completion date 
of the self-inspection, and copies of any written reports, summaries or 
communications related to the self-inspection.
    In the proposed rule, air carriers were required to keep public 
notices to passengers and crew for at least three years after issuance. 
However, the Agency received comments requesting that EPA amend the 
proposed rule to require air carriers to merely ``keep a record of 
notices to passengers and crew'' because the requirement to keep 
physical notices would be operationally difficult for air carriers. EPA 
disagrees

[[Page 53609]]

with amending this paragraph in the manner suggested in the comments 
because the Agency believes a copy of the physical notice is necessary 
to allow the Agency to determine compliance with the public 
notification requirements of this rule. In addition, EPA does not 
believe that this requirement is burdensome or operationally difficult 
because the copies need not be in paper format. Air carriers may keep 
electronic copies of these notices in lieu of paper copies. Thus, in 
the final rule, EPA clarifies that the air carrier must keep copies of 
the public notices given to passengers and crew.

J. Audit and Self-Inspection Requirements (Sec.  141.808)

    In place of the sanitary survey that is required every five years 
for other transient non-community public water systems using surface 
water, the proposed and final rules require that a self-inspection be 
conducted by the air carrier for each aircraft water system no less 
frequently than once every five calendar years. An inspection of the 
entire aircraft water system need not be completed in one day; the air 
carrier need only ensure that all water system components are inspected 
once every five calendar years.

K. Violations (Sec.  141.810)

    The Agency received several comments on the proposed rule stating 
that the notification requirements in Sec.  141.810 conflict with the 
notification requirements proposed in Sec.  141.805, and that to avoid 
confusion and inconsistency, EPA should delete the public notification 
requirements in this section or make conforming changes to both 
sections. EPA agrees that the reference to public notification 
requirements in this section is confusing and inconsistent with Sec.  
141.805. Therefore, as noted previously, EPA removed all references to 
public notification from Sec.  141.810 and made conforming changes to 
Sec.  141.805.
    In addition, due to the removal of fecal coliforms as a fecal 
indicator (as discussed in section IV.C Responses to Sample Results), 
all references to fecal coliforms have been removed from the violations 
to conform with the revision. Other than the changes mentioned here, 
the specific violations remain the same in the final rule.

L. Compliance Date

    In the proposed rule, air carriers would be required to comply with 
the rule within six months from the date of publication for several 
reporting and planning requirements, and 12 months from the date of 
publication for the rest of the rule requirements. While SDWA section 
1412(b)(10) generally requires a three-year delay before new or amended 
rules are effective, that provision also authorizes EPA to set an 
earlier compliance date if the Agency determines that the earlier date 
is practicable. At the time of the proposal the Agency believed these 
dates were practicable because EPA will implement the rule, making it 
unnecessary to allow time for States to obtain enforcement authority 
prior to implementation of the rule. In addition, most air carriers are 
currently under AOCs which have similar requirements to this rule. 
Thus, EPA believed complying with the ADWR should not require 
significant changes in terms of operations and maintenance procedures. 
However, the Agency received several comments requesting that the 
compliance dates be extended to be more consistent with the three-year 
compliance date for new or revised NPDWRs under SDWA (section 
1412(b)(10)). Also, some commenters expressed concern that the six-
month compliance date would be impracticable because air carriers need 
more time to restructure maintenance programs between the AOCs and the 
final ADWR. Commenters suggested compliance dates of 18 months from the 
date of publication for the reporting and planning requirements, and 24 
months from the date of publication for the rest of the rule.
    The Agency agrees that the original timeline for compliance in the 
proposed rule may be too short for some air carriers to meet, and more 
time may be needed for air carriers to comply with the requirements of 
the final rule. Therefore, today's rule requires air carriers to comply 
with the requirements of the rule within 18 months from the date of 
publication for the reporting and planning requirements and 24 months 
from the date of publication for the rest of the rule requirements (see 
Table IV-3). The 18-month compliance date applies to the following:
     Develop a coliform sampling plan for existing aircraft and 
report to EPA that the plans were developed;
     Report the coliform sampling frequency included in the 
coliform sampling plans;
     Develop an Aircraft Water System Operations and 
Maintenance Plan for existing aircraft and report to EPA that the plans 
were developed;
     Report a complete inventory of existing aircraft water 
systems.

                                   Table IV-3--Compliance and Reporting Dates
----------------------------------------------------------------------------------------------------------------
                                                                                 Within 10 days
                                                 Within the       Within the     following the     Beginning 24
                                              first 18 months   first calendar   calendar month    months after
                 Requirement                     following        quarter of      in which the    publication of
                                               publication of      initial           change       the final rule
                                               the final rule     operation         occurred
----------------------------------------------------------------------------------------------------------------
Aircraft Water System Operations and
 Maintenance Plan:
    Existing \1\ Aircraft--develop the plan                X   ...............  ...............  ...............
     and report that it has been developed..
    New \2\ Aircraft--develop the plan and    ...............               X   ...............  ...............
     report that it has been developed......
Aircraft Coliform Sampling Plan:
    Existing \1\ Aircraft--develop the plan                X   ...............  ...............  ...............
     and report that it has been developed..
    New \2\ Aircraft--develop the plan and    ...............               X   ...............  ...............
     report that it has been developed......
Aircraft Frequency of Coliform Sampling and
 Routine Disinfection and Flushing:
    Existing \1\Aircraft--report the routine               X   ...............  ...............  ...............
     frequency..............................
    New \2\ Aircraft--report the routine      ...............               X   ...............  ...............
     frequency..............................
    Report any change \3\ in routine          ...............  ...............               X   ...............
     frequency..............................
Aircraft Inventory:
    Existing Aircraft--report the inventory.               X   ...............  ...............  ...............

[[Page 53610]]

 
    Report any change \3\ to aircraft         ...............  ...............               X   ...............
     inventory..............................
Aircraft Routine Requirements:
    Conduct routine monitoring..............  ...............  ...............  ...............               X
    Conduct routine disinfection and          ...............  ...............  ...............               X
     flushing...............................
----------------------------------------------------------------------------------------------------------------
\1\ Existing Aircraft: means any aircraft that is in operation when the final rule is published or is brought
  into operation within the first 18 months after the final rule is published.
\2\ New Aircraft: means any aircraft that is brought into operation after the 18th month following publication
  of the final rule.
\3\ Any changes made after the 18th month following publication of the final rule.

V. Cost Analysis

    In estimating the costs of this rule, EPA considered impacts on 
aircraft water systems and air carriers, air carrier passengers, as 
well as Agency costs for rule implementation. Agency costs are included 
in lieu of State costs because implementation of the ADWR is the 
responsibility of EPA as a regulation applicable only to aircraft water 
systems. EPA also considered certain aspects of the ADWR that are non-
quantified costs and that contribute to uncertainties in the cost 
estimates.

A. National Cost Estimates

    EPA estimates that the total annualized implementation cost to the 
air carriers of carrying out the activities required in this ADWR is 
$7.04 million at a 3 percent discount rate and $6.95 million at a 7 
percent discount rate. Table V-1 presents the itemized and total 
annualized implementation costs to air carriers (airlines) and EPA for 
the ADWR at 3 and 7 percent discount rates. Unit costs were multiplied 
by the number of air carriers or aircraft performing each requirement 
of the final rule, and results were summed for all components.

                                    Table V-1--Total Annualized Present Value Implementation Costs for the Final ADWR
                                                                   [$Millions, 2008$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                           Air carriers       Agency           Total       Air carriers       Agency           Total
                                                         -----------------------------------------------------------------------------------------------
                                                                                3%
                                                                                7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Implementation..........................................          $0.002           $0.01           $0.01          $0.004           $0.01           $0.02
Annual Administration...................................  ..............            0.24            0.24  ..............            0.23            0.23
Sampling Plan...........................................           0.002           0.001           0.002           0.002           0.001           0.003
O&M Plan................................................            0.01          0.0001            0.01            0.02          0.0001            0.02
Coliform Monitoring.....................................            4.89            0.04            4.93            4.82            0.04            4.86
Routine Disinfection and Flushing.......................            2.08  ..............            2.08            2.05  ..............            2.05
Corrective Action Disinfection and Flushing.............            0.05  ..............            0.05            0.05  ..............            0.05
Compliance Audit........................................            0.01            0.01            0.02            0.01            0.01            0.02
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................            7.04            0.30            7.34            6.95            0.30            7.25
--------------------------------------------------------------------------------------------------------------------------------------------------------

    As discussed more fully in the preamble for the proposed rule (73 
FR 19337), EPA notes that the cost of the proposed ADWR was 
significantly less than the current regulatory requirements of the 
NPDWRs. The current NPDWR requirements, considered to be the baseline 
against which to compare the set of regulatory requirements of the 
ADWR, would continue to apply to the aircraft water system industry if 
the requirements of the ADWR were not promulgated. The reduction in 
cost (i.e., the incremental savings of the ADWR compared to the 
regulatory baseline) is the result of tailoring the current regulations 
for transient non-community public water systems to the specific 
operational characteristics of aircraft drinking water systems.
    EPA estimates that the total annualized incremental savings of this 
ADWR is $22.15 million at a 3 percent discount rate and $21.83 million 
at a 7 percent discount rate, as presented in Table V-2. The 
incremental savings represent the difference in total annualized 
implementation costs between the baseline (i.e., the existing NPDWRs) 
and the final rule provisions.

                                       Table V-2--Total Annualized Incremental Cost: Existing NPDWRs and the ADWR
                                                                   [$Millions, 2008$]
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Alt 1       Alt 4 (Final     Incremental        Alt 1       Alt 4 (Final     Incremental
                                                             (Existing         Rule)       Cost (Alt 4-      (Existing         Rule)       Cost (Alt 4-
                                                              NPDWRs)                         Alt 1)          NPDWRs)                         Alt 1)
                                                         -----------------------------------------------------------------------------------------------
                                                                                3%
                                                                                7%
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 53611]]

 
Implementation..........................................            0.01            0.01               0            0.02            0.02               0
Annual Administration...................................            0.24            0.24               0            0.23            0.23               0
Monitoring Plan.........................................           0.002           0.002               0           0.004           0.003         (0.001)
O&M Plan................................................  ..............            0.01            0.01  ..............            0.02            0.02
Coliform Monitoring.....................................           25.37            4.93         (20.44)           25.02            4.86         (20.16)
Disinfectant Residual Monitoring........................            3.17  ..............          (3.17)            3.13  ..............          (3.13)
Routine Disinfection and Flushing.......................  ..............            2.08            2.08  ..............            2.05            2.05
Corrective Action Disinfection and Flushing.............  ..............            0.05            0.05  ..............            0.05            0.05
Sanitary Survey/Compliance Audit........................             0.7            0.02          (0.68)            0.69            0.02          (0.67)
Turbidity Monitoring....................................  ..............  ..............  ..............  ..............  ..............  ..............
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................           29.49            7.34         (22.15)           29.08            7.25         (21.83)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The regulatory baseline does not reflect the Administrative Orders 
on Consent (AOCs), which are interim enforcement actions applying to 45 
air carriers. As discussed earlier in this notice, in 2004, EPA found 
all aircraft that were public water systems to be out of compliance 
with the NPDWRs. EPA subsequently placed 45 air carriers under AOCs 
that will remain in effect until the tailored aircraft drinking water 
regulations are final. The air carrier AOCs combine sampling, best 
management practices, corrective action, public notification, and 
reporting and recordkeeping to ensure public health protection. With 
respect to sampling under the AOCs, air carriers with greater than 20 
aircraft were required to sample 25 percent of their fleet quarterly, 
while air carriers with 20 or fewer aircraft were required to sample 
the entire fleet quarterly. Because the majority of the air carriers 
are currently subject to the requirements of the AOCs, EPA notes that 
if the requirements similar to the AOCs (i.e., Alternative 2 in the EA) 
were used as an alternative baseline, the incremental cost of the final 
ADWR would be $0.18 million at the 3 percent discount rate and $0.18 
million at the 7 percent discount rate.
    As described in section V.C, the final rule provides additional 
cost savings to air carriers over the proposed rule.

B. Estimated Impacts of the Final ADWR to Air Carrier Passengers

    EPA assumes that air carriers will pass on some or all of the costs 
of a new regulation to their passengers in the form of ticket price 
increases. For purposes of this analysis, EPA estimates that an average 
of 708.4 million passengers travel each year on aircraft that are 
affected by the ADWR. (See Column E, Exhibit 5.3 of the Economic and 
Supporting Analysis Document for the Final ADWR, (USEPA, 2009)). The 
cost passed on to passengers can be roughly estimated by dividing the 
air carriers' annualized implementation costs incurred by the number of 
passengers traveling each year. Based on this approximation, EPA 
estimates that passengers could face a relatively negligible increase 
of about one cent per ticket. The Agency has chosen to use the same 
number of passengers and flights estimated for the proposed rule for 
the final rule analysis in order to facilitate cost comparisons between 
the proposed and final rule provisions. This should not significantly 
affect the cost per passenger analysis.

C. Comparison of Costs From Proposed Rule to Final Rule

    As discussed in section III.A of this notice, a collaborative rule 
development process was used for the proposed ADWR. This process 
provided an opportunity for stakeholders to inform the Agency about 
existing operations and maintenance practices for aircraft water 
systems and to convey concerns regarding existing regulations 
applicable to aircraft water systems, public health issues, fleet 
operations issues that are unique to the air carrier industry, and 
potential rule alternatives. Public comment was received on the 
proposed rule, and modifications have been incorporated into the final 
ADWR. Some of the modifications to the proposed rule that are 
incorporated into the final rule affected the estimated cost of 
implementing the regulation; other changes had no net effect on cost as 
modeled or are non-quantified costs. This section provides a discussion 
of the cost of the elements of the final ADWR that changed in 
comparison to the proposed rule and summarizes the assumptions that 
have been incorporated into the cost estimates.
    The total annualized present value implementation costs at 3 
percent and 7 percent discount rates for the rule provisions are shown 
in Table V-3 for the proposed and final rules. The total estimated 
annual quantified costs for implementing the ADWR have changed from the 
proposal costs of $8.13 million and $8.24 million (year 2008 dollars, 
using 3 and 7 percent discount rates, respectively) to $7.34 million 
and $7.25 million (year 2008 dollars, using 3 and 7 percent discount 
rates, respectively). The costs reported for the ADWR are from Table V-
1; the costs for the proposed rule include adjustments for the general 
cost assumptions and methodology applied to the ADWR (e.g., labor 
rates), with all costs adjusted to 2008 dollars.

      Table V-3--Comparison of Proposed and Final ADWR Total Annualized Present Value Implementation Costs
                                               [$Millions, 2008$]
----------------------------------------------------------------------------------------------------------------
                                                          3%  Proposal    3%  Final   7%  Proposal    7%  Final
----------------------------------------------------------------------------------------------------------------
Implementation..........................................         0.01          0.01          0.01          0.02
Annual Administration...................................         0.25          0.24          0.25          0.23
Monitoring Plan.........................................         0.002         0.002         0.004         0.003
O&M Plan................................................         0.01          0.01          0.02          0.02

[[Page 53612]]

 
Coliform Monitoring.....................................         5.50          4.93          5.57          4.86
Routine Disinfection and Flushing.......................         2.21          2.08          2.23          2.05
Corrective Action Disinfection and Flushing.............         0.13          0.05          0.13          0.05
Compliance Audit........................................         0.02          0.02          0.02          0.02
                                                         -------------------------------------------------------
    Total...............................................       * 8.13          7.34        * 8.24          7.25
----------------------------------------------------------------------------------------------------------------
* For the proposal, the total annualized present value cost at a 3% discount rate is less than at a 7% discount
  rate by a small amount. Changes in the implementation schedule (later implementation) for the final rule
  result in a larger calculated difference in present value costs, which results in total annualized present
  value costs slightly greater at a 3% discount rate than at a 7% rate.

    The change in quantified costs between the proposed and final ADWR 
primarily is due to the additional flexibility in the ADWR provided to 
air carriers in choosing one of four options for flushing and 
disinfection frequency. Additional cost savings are due to changes in 
EPA's estimate of the cost to air carriers for implementation based on 
the percentage of aircraft that will select each option, the percentage 
of routine and repeat total coliform monitoring samples that are 
anticipated to be total coliform-positive, and the options available to 
air carriers for addressing total coliform-positive test results. These 
assumptions and regulatory impacts are discussed below and in more 
detail in the final ADWR Economic Analysis.
    The final rule includes an extension of the compliance dates to 18 
months after rule publication for the coliform sampling plan, 
operations and maintenance plan, and the aircraft inventory; the 
proposed rule specified a 6-month timeframe for these requirements. In 
addition, the final rule adjusts the timeframe for beginning to conduct 
sampling and other compliance requirements to 24 months after final 
rule publication from 12 months specified in the proposed rule. These 
delays in compliance dates have a slight effect on the timing of the 
costs represented by the 25-year compliance period captured by these 
estimates.
    There is a one-time cost for reading and understanding the rule, 
becoming familiar with its provisions, and training employees on the 
rule. The final ADWR provides a burden allowance for each air carrier 
to read and understand the rule of eight hours per carrier, increased 
from two hours per carrier in the proposed rule. This change was made 
in response to public comments received on the proposed rule which 
conveyed that air carriers would typically have more than one 
individual responsible for this aspect of rule implementation. 
Commenters expressed concern that the proposed rule burden estimate of 
a single individual spending two hours to read and understand the rule 
did not adequately capture the true air carrier needs. In response to 
those concerns, the Agency assumes, on average, each air carrier will 
have four staff persons who will need to read and understand the rule 
at two hours estimated burden for each person. The eight hours per air 
carrier for staff training is unchanged from the proposed rule.
    The coliform monitoring category includes cost estimates for 
routine sampling and repeat sampling; follow-up coliform monitoring is 
captured under corrective action disinfection and flushing cost 
estimates. Each aircraft routine coliform monitoring schedule is 
determined by the routine disinfection and flushing frequency that 
should be based on manufacturer's recommendations. EPA is providing air 
carriers with additional flexibility in the final rule by allowing air 
carriers to select any of the disinfection and flushing options in the 
absence of a manufacturer's recommendation. Although the specific 
routine monitoring frequency to be used by each aircraft is unknown, 
the Agency made assumptions on the frequencies they would follow and 
incorporated those assumptions into the cost model. Because selection 
of an option best suited to other operations and maintenance 
obligations of the aircraft is anticipated to help minimize flight 
disruption events but its effect is unknown, it is included in the 
uncertainties of the cost model.
    The assumptions of the percentage of aircraft that would select 
each of the monitoring frequency options have been adjusted to 
incorporate the fourth option that is included in the final rule. As 
discussed previously, the addition of the fourth option for routine 
disinfection and flushing frequency was in response to public comment, 
which would also result in fewer flight disruptions necessary for 
aircraft water system maintenance needs. For the final rule, the Agency 
assumed 10 percent of the aircraft would follow monthly monitoring with 
routine disinfection and flushing one time per year or less; 30 percent 
would follow monitoring quarterly with routine disinfection and 
flushing twice per year; 30 percent would follow monitoring twice per 
year with routine disinfection and flushing 3 times per year; and 30 
percent would follow annual monitoring with routine disinfection and 
flushing on a quarterly basis. The proposed rule assumed 10 percent of 
the aircraft would monitor monthly, 45 percent quarterly, and 45 
percent annually.
    Several other provisions in the final rule and their related 
assumptions affect the estimated cost for coliform monitoring. Those 
provisions include a reduction of the number of repeat samples to three 
in the final rule from four in the proposed rule, and allowing repeat 
sampling if more than one routine sample is total coliform-positive but 
E. coli-negative. The proposed rule limited the option for repeat 
sampling to situations when no more than one routine sample was total 
coliform-positive.
    The final ADWR utilized the coliform monitoring findings of the air 
carrier AOCs processed as of December 31, 2008, for estimates of the 
percentage of routine and repeat samples that are anticipated to be 
total coliform-positive and E. coli-positive. A discussion of the AOCs 
data is found in section III.B of this notice. For the final rule, a 
routine sample total coliform-positive rate of 3.6 percent and a repeat 
sample total coliform-positive rate of 5.7 percent are assumed based on 
the AOCs results. The proposed rule applied a routine sample rate of 
3.1 percent based on data available at the time, and a repeat sample 
rate of 50 percent.

[[Page 53613]]

    Assumptions pertaining to the number of corrective action 
disinfection and flushing events that would be incurred were 
recalculated based on whether the aircraft was anticipated to already 
be scheduled for routine disinfection and flushing in the immediate 
future. In addition, if the water system is physically shut-off to 
prevent public access to the water system within 24 hours of 
notification of the need to restrict public access, the final rule 
removed the requirement that an aircraft with total coliform-positive 
or E. coli-positive water samples must be disinfected and flushed 
within a prescribed time period.
    The Agency assumed, based on comments received on the proposed 
rule, that air carriers would seek to minimize the number of times 
unscheduled disinfection and flushing events that would occur and would 
take advantage of the ability to perform corrective action as part of 
the routine disinfection and flushing activities. Carriers can do this 
by scheduling routine sampling just prior to routine disinfection and 
flushing. Then, if a total coliform- or E. coli-positive sample is 
found, carriers can address the situation immediately through 
disinfection and flushing that would have occurred anyway, thereby 
merely adding the step of follow-up sampling to confirm that the 
flushing and disinfection has resolved the problem. Further, EPA 
believes that if public access to the water system is physically 
prevented because the water system is shut-off, more time is warranted 
to allow scheduling of the corrective action disinfection and flushing 
procedure to minimize flight disruptions.
    Finally, the estimated reduction in the repeat sample total 
coliform-positive rate to 5.7 percent in the final rule from 50 percent 
in the proposed rule affected the anticipated costs for this category 
because fewer events were expected to be triggered by repeat sample 
results.

 D. Non-Quantified Costs and Uncertainties

1. Non-Quantified Costs
    Although EPA has estimated the majority of implementation costs of 
this ADWR, there are some costs that EPA was not able to quantify, such 
as:
     Air carrier costs due to unanticipated flight 
interruptions from aircraft water system corrective action maintenance 
needs. This includes the direct costs related to transporting an 
aircraft to a maintenance facility for the performance of disinfection 
and flushing corrective action events and any indirect costs of 
schedule disruptions or delays if an aircraft must be unexpectedly 
taken out of service.
     Passenger costs due to flight cancellations or delays 
related to unanticipated aircraft water system maintenance triggered 
solely by water quality issues.
     Air carrier costs to provide bottled water due to lack of 
onboard tap water during a restrict public access event.
     Air carrier customer service response to customer concerns 
following public notification that the water onboard an aircraft is not 
to be used for human consumption.
    EPA has attempted to minimize costs by building flexibility into 
the ADWR, including various alternatives from which air carriers select 
compliance scenarios that best meet their flight schedules and other 
routine aircraft operations and maintenance needs. The final rule also 
includes provisions that minimize situations in which an aircraft is 
taken out of service solely due to drinking water system water quality 
issues, though this is sometimes necessary to protect consumers from 
water of unacceptable quality when the system cannot be physically 
shut-off or the flow of water through the tap(s) cannot be prevented.
    Table V-4 presents the number of monitoring and disinfection and 
flushing events per year estimated for the proposed and final rules. 
EPA assumes routine coliform monitoring and routine disinfection and 
flushing of the water system would not disrupt service because the air 
carrier will incorporate these tasks into the aircraft operations and 
maintenance program. Only the unanticipated corrective action 
disinfection and flushing events shown in Column C of the table reflect 
the events that the Agency estimates could result in unscheduled 
disruptions to air carriers' schedules for the proposed or final rules.

      Table V-4--Estimated Monitoring and Disinfection and Flushing Events for the Proposed and Final ADWR
----------------------------------------------------------------------------------------------------------------
                                                                                    Corrective     Total number
                                                      Routine         Routine         action            of
                                                     coliform      disinfection    disinfection    disinfection
                                                    monitoring     and flushing    and flushing    and flushing
                                                    events/year     events/year     events/year     events/year
                                                               A               B               C           D=B+C
----------------------------------------------------------------------------------------------------------------
Proposed Rule...................................          26,593          20,516           1,175          21,691
Final Rule......................................          25,436          20,516             395          20,911
----------------------------------------------------------------------------------------------------------------
(C) The number of potential unanticipated corrective action disinfection and flushing events is shown for the
  proposed and final rules. All other disinfection and flushing events, whether based on a routine schedule or
  in response to monitoring results, would occur during scheduled water system operations and maintenance.

    The significant decrease in the number of corrective action 
disinfection and flushing events in the final ADWR shown in Column C 
reflects the anticipated practice that air carriers will maximize the 
scheduling of routine coliform sampling with routine disinfection and 
flushing. This would likely result in a decrease in unscheduled flight 
disruptions because total coliform-positive samples may be immediately 
addressed through water system disinfection and flushing while the 
aircraft is already out of service. The final rule allows such 
disinfection and flushing to count toward both the corrective action 
and the routine procedures if follow-up total coliform samples required 
for corrective action are collected. Of the corrective action 
disinfection and flushing events noted in Column C, an unknown 
percentage will not disrupt service because the air carrier will either 
prevent public access to the water by shutting-off the system, thereby 
obtaining more flexibility with respect to scheduling and performing 
the corrective action disinfection and flushing, or will be able to 
perform the action within the maximum time frame specified by the rule 
without disrupting service.
2. Uncertainties in Cost Estimates
    Many factors contribute to uncertainty in the national cost 
estimates including:

[[Page 53614]]

     Percent of aircraft that will be subject to each total 
coliform monitoring option.
     Expected results from total coliform monitoring.
     Estimated time for air carrier management to read, 
understand, and decide how to best comply with the ADWR; and to develop 
a training program, train staff, and oversee compliance.
     Percent of aircraft that will collect routine total 
coliform samples while aircraft are out of service for routine 
maintenance.
     Labor burden necessary for self-inspections above what is 
necessary for FAA-related inspections.
     Labor burden and costs associated with correcting 
significant deficiencies that are identified during self-inspections 
above what is necessary for FAA-related inspections.
    For simplicity, EPA assumed for this analysis that all air carriers 
subject to the final rule will spend equal management time on ADWR 
requirements, regardless of fleet size or aircraft type. Assuming equal 
burden for all air carriers to comply with these rule management and 
oversight requirements could result in an over- or under-estimate of 
the costs presented. Regarding the expected results for coliform 
monitoring, EPA assumed that during routine coliform monitoring, each 
total coliform-positive sample would prompt an action by the air 
carrier. This assumption potentially over-estimates the number of 
aircraft that need to undergo disinfection and flushing as corrective 
action or repeat monitoring in cases where more than one routine sample 
is total coliform-positive in a given monitoring period. For example, 
an aircraft with positive samples from both routine sampling points is 
treated as two corrective actions or repeat sample collection events in 
the cost model when only one disinfection and flushing event would be 
necessary in such a case. Also, the number of sample results that 
prompt corrective action or repeat sampling may decrease over time as 
air carriers correct problems that lead to total coliform-positive 
samples.
    In developing costs for air carriers to comply with the self-
inspection requirements, EPA assumed that with the exception of 
reporting and record-keeping burden, no additional costs for self-
inspections are incurred by air carriers. Labor burden for self-
inspections, which involve a thorough review and inspection of an 
aircraft water system as well as addressing any deficiencies, is 
already captured under current FAA requirements and therefore is not 
included in the cost estimate for this rule. Additionally, EPA has 
assumed that deficiencies noted during self-inspections will be 
addressed during routine maintenance, and so has not accounted for 
costs associated with corrective actions stemming from deficiencies 
noted during self-inspections. This assumption potentially under-
estimates air carrier burden for self-inspections.

VI. Benefits Analysis

    For the proposed rule, EPA conducted and presented a qualitative 
analysis comparing the risks for each regulatory alternative considered 
during the regulatory process (73 FR 19338). EPA did not conduct a risk 
assessment, and the qualitative analyses were not intended to provide 
any insights into either the nature or the magnitude of possible public 
health risks that are associated with the consumption of drinking water 
on aircraft, or with the expected reductions in those public health 
risks anticipated from implementation of this rule.
    As of the time of publication of the final rule, only limited 
baseline data and partial data collected under the AOCs are available 
for analysis. Additionally, EPA has found no data on outbreaks of 
illness caused by drinking water on aircraft. Therefore, EPA has 
determined that it is not feasible to perform a quantitative relative 
risk analysis at this time. EPA will continue to assess aircraft water 
system monitoring data during the Agency's Six-Year review of NPDWRs 
and evaluate whether additional quantitative analyses represent an 
opportunity for revisions to the ADWR. (Section 1412 (b)(9) of the Safe 
Drinking Water Act requires that EPA, no less than every six years, 
review and if appropriate, revise existing drinking water standards.)
    This rule has been developed to protect against disease-causing 
microbiological contaminants or pathogens through the required 
development and implementation of aircraft water system operation and 
maintenance plans that include best management practices, air carrier 
training requirements, and periodic sampling of the onboard drinking 
water. Testing drinking water for each individual pathogen is not 
practical, nor feasible. Instead, water quality and public health 
professionals use total coliform bacteria as indicator organisms. Total 
coliforms are a group of closely related, generally harmless bacteria 
that live in soil and water, as well as in the digestive tracts of 
animals, and are therefore present in feces. The presence of total 
coliforms in drinking water suggests there has been a breach, failure, 
or other change in the integrity of the drinking water and that there 
may be fecal pathogens present in the water. Because some total 
coliform bacteria are naturally found in the environment, their 
presence in a drinking water distribution system may not indicate the 
presence of fecal contamination. In order to obtain more information on 
the likelihood of fecal contamination the total coliform-positive 
sample is analyzed for E. coli, a member of the total coliform group 
that is more likely to originate from warm-blooded animal fecal 
contamination.
    Although EPA does not have data on outbreaks, that does not mean 
there is no illness because there is a high rate of underreporting of 
illnesses caused by drinking water contamination. Illness resulting 
from consuming contaminated aircraft water would be no exception to 
underreporting because the population onboard disperses after a flight 
and even if passengers develop gastrointestinal symptoms within hours 
of deplaning, they are unlikely to associate the illness with the 
aircraft water or to contact the air carrier or any government agency 
to report the illness. The effects of waterborne disease are usually 
acute, resulting from a single or small number of exposures. Waterborne 
pathogens are particularly harmful to sensitive populations, such as 
the immuno-compromised, and can sometimes prove fatal.
    Routine disinfection and flushing required by this rule is expected 
to inactivate pathogens and control biofilm which can harbor pathogens 
in the aircraft water storage tank and distribution system that can 
contribute to endemic disease. Likewise, disinfection and flushing 
associated with corrective action is also expected to inactivate 
pathogens that may have entered the distribution system, resulting in 
decreased chance of illness. By reducing the potential for illness 
contracted through exposure to aircraft drinking water, EPA expects 
that the implementation of the ADWR will reduce the occurrence of 
illness passed through secondary spread (the spread of a pathogen 
within a field after the initial or primary infection). Furthermore, 
EPA expects the additional barriers to pathogens required under the 
ADWR, including disinfection and flushing combined with monitoring, 
water system training requirements for air carrier personnel, and 
restricting public access to drinking water when necessary, will reduce 
the likelihood of outbreaks associated with aircraft drinking water.

[[Page 53615]]

VII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866, (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866 and any changes made in response to OMB 
recommendations have been documented in the docket for this action.

B. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
information collection requirements are not enforceable until OMB 
approves them. The Information Collection Request (ICR) document 
prepared by EPA has been assigned EPA ICR number 2279.02.
    EPA requires comprehensive and current information on total 
coliform monitoring and associated corrective action activities to 
implement its program oversight and enforcement responsibilities 
mandated by the Safe Drinking Water Act (SDWA). EPA will use the 
information collected as a result of this final rule to support the 
responsibilities directed by SDWA and the implementation of the ADWR in 
the areas of monitoring and disinfecting and flushing, best management 
practices, and public notification, while decreasing the risk to public 
health. The rule requirements described in section IV of this notice 
are intended to improve the implementation from that of the Total 
Coliform Rule (TCR) by tailoring the ADWR to fit the unique challenges 
in the maintenance and operation practices of air carriers, and do not 
alter the original maximum contaminant level goals or the fundamental 
approach to controlling total coliform in drinking water.
    Section 1401(1)(D) of SDWA requires that there must be ``criteria 
and procedures to assure a supply of drinking water which dependably 
complies with such maximum contaminant levels; including accepted 
methods for quality control and testing procedures to insure compliance 
with such levels and to insure proper operation and maintenance of the 
system, * * * .'' Furthermore, section 1445(a)(1) of SDWA requires that 
every person who is a supplier of water ``shall establish and maintain 
such records, make such reports, conduct such monitoring, and provide 
such information as the Administrator may reasonably require by 
regulation to assist the Administrator in establishing regulations * * 
* in determining whether such person has acted or is acting in 
compliance'' with this title.
    Section 1412(b) of SDWA, as amended in 1996, requires the EPA to 
publish maximum contaminant level goals and promulgate NPDWRs for 
contaminants that may have an adverse effect on the health of persons, 
are known to or anticipated to occur in public water systems, and, in 
the opinion of the Administrator, present an opportunity for health 
risk reduction. The NPDWRs specify maximum contaminant levels or 
treatment techniques for drinking water contaminants (42 U.S.C. 300g-
1). Section 1412(b)(9) requires that EPA, no less than every six years, 
review and if appropriate, revise existing drinking water standards. 
Currently, the Total Coliform Rule, which established the regulatory 
standards (i.e., maximum contaminant level goals and treatment 
techniques) by which this ADWR is based, is being revised in accordance 
with the finding of EPA's first Six-Year Review (68 FR 42907, July 18, 
2003). Publication of this final rule complies with these statutory 
requirements.
Burden Estimate
    The universe of respondents for the Information Collection Request 
(ICR) for this final rule comprises 63 air carriers that operate 
approximately 7,327 aircraft water systems, classified as Transient 
Non-Community Water Systems. The total burden associated with ADWR 
requirements over the 3 years covered by the ICR is 62,291 hours, an 
average of 20,764 hours per year. The total cost over the 3-year period 
is $7.54 million, an average of $2.5 million per year (simple average 
over 3 years). For air carriers, the total burden for the 3-year ICR 
period is 52,750 hours. The burden per response is .3 hours. During 
this period air carriers will undertake 179,773 responses. The 
respondent costs for the same period are $7.06 million. The labor cost 
is $1.90 million. The O&M cost (for sample analysis and shipping) is 
$5.16 million. The capital cost is $4,179. The air carrier average 
annual respondent burden is 17,583 hours, and the average cost per year 
is $2.35 million. The cost per response is $39. Burden is defined at 5 
CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is 
approved by OMB, the EPA will publish a technical amendment to 40 CFR 
part 9 in the Federal Register to display the OMB control number for 
the approved information collection requirements contained in this 
final rule.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The RFA provides default definitions for each type of small entity. 
Small entities are defined as: (1) A small business as defined by the 
Small Business Administration's (SBA) regulations at 13 CFR 121.201; 
(2) a small governmental jurisdiction that is a government of a city, 
county, town, school district or special district with a population of 
less than 50,000; and (3) a small organization that is any ``not-for-
profit enterprise which is independently owned and operated and is not 
dominant in its field.'' However, the RFA also authorizes an agency to 
use alternative definitions for each category of small entity, ``which 
are appropriate to the activities of the agency'' after proposing the 
alternative definition(s) in the Federal Register and taking comment. 5 
U.S.C. 601(3)-(5). In addition, to establish an alternative small 
business definition, agencies must consult with SBA's Chief Counsel for 
Advocacy.
    For purposes of assessing the economic impacts of this final rule 
on small entities, EPA proposed defining ``small entity'' using the SBA 
standard as air carriers (NAICS codes 481111 and 481211) having fewer 
than 1,500 employees (13 CFR 121.201) rather than using the definition 
EPA has used for small stationary public water systems (``a public 
water system that serves 10,000 or fewer people''). See 73 FR 19320, 
April 9, 2008.
    The Agency has consulted with the SBA Chief Counsel for Advocacy on 
using the SBA small business definition of fewer than 1,500 employees 
for purposes of assessing the economic impacts of this rule on small 
entities. As a result of this consultation, SBA agrees with the 
Agency's approach to the small

[[Page 53616]]

entity definition for air carriers for the proposed rule. However, SBA 
did request that EPA verify that they have captured the entire universe 
of small entities that may be impacted by the rule. SBA recommended 
that EPA contact two additional aviation and air transportation 
associations to determine whether there may be additional entities that 
may experience a significant economic impact as a result of this 
proposed rule, which were not accounted for in the Agency's earlier 
analysis. EPA contacted those associations and they confirmed the 
Agency's earlier findings from other sources, including the FAA, that 
EPA had taken into account all available information on the universe of 
small entities during the Agency's earlier analysis.
    The Agency did not receive any comments on the use of this 
alternative definition of small entity in EPA's proposed rule of April 
9, 2008 (73 FR 19320).
    Today, EPA is establishing this alternative definition of ``small 
entity'' for purposes of its regulatory flexibility assessments under 
the RFA for this rule, any revisions to this rule, and any future 
drinking water regulations that address air carriers.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. EPA has 
determined that the following businesses would be affected by the 
proposed Aircraft Drinking Water Rule: scheduled passenger air 
transportation (NAICS 481111) and nonscheduled chartered passenger air 
transportation (481211). EPA has estimated that 30 of the 63 air 
carriers subject to this final rule are small businesses. These 30 air 
carriers represent 48 percent of the universe of air carriers subject 
to the final rule, and all will be subject to the various provisions.
    In evaluating whether this rule will have a significant impact on 
these small entities, EPA first determined the present value costs of 
the rule for these air carriers. EPA followed the same methodology as 
was used to develop the average annualized costs for the rule overall. 
EPA estimates a total annual implementation cost for all small air 
carriers of $524,380 at a 3 percent discount rate and $521,110 at a 7 
percent discount rate. EPA also determined the average annual rule cost 
per small air carrier of $17,543 (annualized at 3 percent).
    EPA estimates the average annual incremental rule cost for small 
entities (the difference between the final rule and the existing NPDWRs 
(presented as Alternative 1)) is a reduction of $258,599 at a 3 percent 
discount rate for compliance with the ADWR. Because the majority of the 
air carriers are currently subject to the requirements of the AOCs, EPA 
notes that if the AOCs were considered to be an alternative baseline, 
the incremental average annual rule cost between the final rule and 
requirements similar to those of the AOCs, (presented as Alternative 2) 
is a reduction of $32,188 (i.e., cost savings).
    Recognizing the variation of company sizes within this group, EPA 
has estimated the average annual incremental cost for small air 
carriers with fewer than 500 employees and for small air carriers with 
500 or more employees. For the 17 air carriers with fewer than 500 
employees, the annual incremental cost between the ADWR and Alternative 
1 for each air carrier is a reduction of $78,042 at a 3 percent 
discount rate, and the annual incremental average rule cost between the 
ADWR and Alternative 2 is a reduction of $7,781 at a 3 percent discount 
rate. For the 13 small air carriers with 500 or more employees, the 
incremental cost between the ADWR and Alternative 1 for each air 
carrier is a reduction of $230,712 at a 3 percent discount rate, and 
the incremental average rule cost between the ADWR and Alternative 2 is 
a reduction of $20,104 at a 3 percent discount rate.
    The final rule has been shown to offer a cost reduction over the 
existing regulations (i.e., baseline), and so the annualized 
incremental costs are negative. Therefore, EPA has not compared the 
average annual incremental costs to small entities against the average 
annual revenue of the small entities as is normally done for this 
analysis.
    Based on this analysis, EPA certifies that the final ADWR will not 
have a significant impact on a substantial number of small entities; 
therefore, the Agency did not develop an Initial Regulatory Flexibility 
Analysis for the rule.

D. Unfunded Mandates Reform Act

    This rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and Tribal 
governments, in the aggregate, or the private sector in any one year. 
States, local, and Tribal governments will not incur annual costs 
associated with this final rule since oversight of air carriers (i.e., 
interstate commerce carriers) is directly implemented by EPA and EPA 
will incur costs associated with this rulemaking. Thus, this rule is 
not subject to the requirements of sections 202 or 205 of UMRA.
    For these reasons, this rule is also not subject to the requirement 
of section 203 of UMRA because it contains no regulatory requirements 
that might significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have Federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. States are not directly affected 
by any requirements in this rule, since oversight of air carriers 
(i.e., interstate commerce carriers) is implemented by EPA. Thus, 
Executive Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicited comment on the proposed rule 
from State and local officials, and the comments can be found in the 
docket for this rule and is addressed in the Response to Comment 
document (816-R0-9008) .

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). The provisions 
of this final rule apply to all aircraft transient non-community water 
systems. At present, EPA has not identified any Tribal governments that 
may be owners/air carriers of such systems. Thus, Executive Order 13175 
does not apply to this action.

[[Page 53617]]

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866.
    While this final rule is not subject to the Executive Order because 
it is not economically significant as defined in Executive Order 12866, 
we nonetheless have reason to believe that the environmental health or 
safety risk addressed by this action can have an effect on children. 
This final rule does not change the core Total Coliform Rule 
requirements in place to assure the protection of children from the 
effects of contaminants in drinking water. Rather this final rule, 
which is tailored to meet the specific challenges in the maintenance 
and operations of aircraft water systems, will improve the 
implementation of the current provisions under the Total Coliform Rule 
for aircraft water systems, and thereby, is expected to ensure and 
enhance more effective protection of public health, including the 
health of children who are aircraft passengers.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This action is not a ``significant energy action'' as defined in 
Executive Order 13211 (66 FR 18355 (May 22, 2001)), because it is not 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Additionally, none of the final rule 
requirements involve installation of treatment or other components that 
use a measurable amount of energy.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This final rule involves voluntary consensus standards in that it 
would require monitoring for total coliform and E. coli, and monitoring 
and sample analysis methodologies are often based on voluntary 
consensus standards. However, the final rule does not change any 
methodological requirements for monitoring or sample analysis as are 
indicated in the Total Coliform Rule; only, in some cases, the required 
frequency and number of samples. Also, EPA's approved monitoring and 
sampling protocols generally include voluntary consensus standards 
developed by agencies such as the American National Standards Institute 
(ANSI) and other such bodies wherever EPA deems these methodologies 
appropriate for compliance monitoring.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order (EO) 12898 (59 FR 7629, February 16, 1994) 
establishes Federal executive policy on environmental justice. Its main 
provision directs Federal agencies, to the greatest extent practicable 
and permitted by law, to make environmental justice part of their 
mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population.
    This final rule, which is tailored to meet the specific challenges 
in the maintenance and operations of aircraft water systems, will 
improve the implementation of the current provisions under the Total 
Coliform Rule for aircraft water systems, and thereby, is expected to 
ensure and enhance more effective protection of public health, 
including any minority or low-income population who are aircraft 
passengers.

K. Consultations With the Science Advisory Board, National Drinking 
Water Advisory Council, and the Secretary of Health and Human Services

    In accordance with sections 1412(d) and 1412(e) of the Safe 
Drinking Water Act (SDWA), the Agency consulted with the National 
Drinking Water Advisory Council (NDWAC or the Council); the Secretary 
of Health and Human Services; and the Science Advisory Board (SAB), 
Drinking Water Committee.
    EPA met with the SAB's Committee on July 24, 2008, and received 
comments from the Committee on October 1, 2008. The Committee's 
comments were valuable and taken into consideration in shaping the 
future direction of the final ADWR with regards to statistical sampling 
and hot water tap sampling. As previously mentioned, the majority of 
the Committee members of EPA's Science Advisory Board were not in favor 
of statistical sampling of aircraft drinking water quality at this time 
because the available data is too sparse to interpret results for the 
whole fleet. The Committee members did indicate that future data 
collected during implementation of ADWR may provide information on how 
to stratify samples. In addition, some members of the Committee 
indicated a preference to sampling cold water taps only; EPA agrees 
with some Committee members that there may be a potential for the 
temperature in the hot water taps to kill existing microorganisms, and 
this might mask whether there is a microbiological problem in the 
aircraft system. Thus, samples should be taken from cold water taps 
when they are available, except in the case when only hot water taps 
are available in the galley. In this case, the galley sample should be 
taken from the hot water tap because that water is being served to 
passengers and crew, EPA plans to further discuss tap sampling in its 
ADWR technical guidance.
    The Agency consulted with NDWAC during the Council's May 25-27, 
2007, meeting, and consulted with the Council on May 28, 2009. In 
general, in the May 2007 meeting, NDWAC recommended that EPA consider 
and request public comment on best management practices (BMPs) and 
public notification requirements, which may be feasible alternatives 
for the air carrier industry while providing greater public health 
protection. EPA has incorporated these recommendations into the ADWR by 
providing flexible BMP alternatives and timely notification 
requirements which have been tailored specifically to meet the unique 
operational characteristics of aircraft public systems and the air 
carrier industry. During the May 2009 NDWAC meeting, EPA presented the 
key issues raised by commenters on the proposal and areas of decision 
faced by the

[[Page 53618]]

Agency. No substantive comments were provided by NDWAC.
    On August 8, 2007, EPA consulted with the Department of Health and 
Human Services (HHS) on the proposed rule. EPA also consulted with HHS 
on the final rule and received a favorable response to the Agency's 
novel approach and development of the ADWR and no issues were raised as 
a result of the consultation.

L. Plain Language

    Executive Order 12866 encourages Federal agencies to write rules in 
plain language. Whenever possible, EPA wrote the action in active 
voice, with simplified language, and displayed information in tables to 
make it easier for the public to read and understand.

M. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective November 18, 2009.

N. Analysis of the Likely Effect of Compliance With the ADWR on the 
Technical, Financial, and Managerial Capacity of Public Water Systems

    Section 1420(d)(3) of SDWA, as amended, requires that, in 
promulgating a NPDWR, the Administrator shall include an analysis of 
the likely effect of compliance with the regulation on the technical, 
managerial, and financial (TMF) capacity of regulated entities. This 
analysis can be found in the Economic and Supporting Analyses document 
in EPA's public docket. Analyses reflect only the impact of new or 
revised requirements, as established by the ADWR; the impacts of 
previously established requirements are not considered.

VIII. References

ATA (Air Transport Association of America, Inc.) 2003. Air Transport 
Association: Aircraft Drinking Water Sampling Program, Final Report: 
December 31, 2003. http://www.airlines.org.
Canada. 2007a. Health Canada. Healthy Living. Aircraft Inspection 
Program--Frequently Asked Questions. http://www.hc-sc.gc.ca/hl-vs/travel-voyage/general/inspection/airplane-aeronefs_e.html.
Canada. 2007b. Health Canada. Healthy Living. Advisory. Health 
Canada cautions air travelers with compromised immune systems 
regarding water quality on aircraft. http://www.hc-sc.gc.ca/ahc-asc/media/advisories-avis/2006/2006_53_e.html.
Davison, A., Howard, G., Stevens, M., et al. 2005. Water, Sanitation 
and Health Protection and the Human Environment, World Health 
Organization, Geneva. Water Safety Plans: Managing drinking-water 
quality from catchment to consumer. http://www.who.int/water_sanitation_health/.
Lehtola, M., Torvinen, E., Kusnetsov, J., et al. 2007. Survival of 
Mycrobacterium avium, Legionella pneumophila, Escherichia coli, and 
Caliciviruses in Drinking Water-Associated Biofilms Grown under 
High-Shear Turbulent Flow. Applied and Environmental Microbiology, 
73:2854-2859.
USEPA. 1986. Water Supply Guidance 29: Plan for Implementation of 
the Safe Drinking Water Act on Interstate Carrier Conveyance.
USEPA. 1989. National Interim Primary Drinking Water Regulations; 
Total Coliform Rule; Final Rule. Part III. Federal Register, 
54:124:27544. (June 29, 1989).
USEPA. 2008. Economic and Supporting Analyses; Aircraft Drinking 
Water Rule. EPA 816-D-08-002.
USEPA. 2008. DRAFT Information Collection Request for the National 
Primary Drinking Water Regulations: Aircraft Drinking Water Rule. 
EPA 816-D-08-001.
USFDA. 2005. Title 21--Food and Drugs, Chapter 1--Food and Drug 
Administration, Part 1250--Interstate Conveyance Sanitation. http://www.accessdata.fda.gov/ gov/.
WHO. 1997. HACCP--Introducing the Hazard Analysis and Critical 
Control Point System. Geneva, Switzerland: WHO.
WHO. 2004. Guidelines for Drinking-Water Quality. 3rd Edition, 
Volume 1--Recommendations, Chapter 4 Water Supply Plans. Geneva, 
Switzerland: WHO.

List of Subjects in 40 CFR Part 141

    Environmental protection, Chemicals, Indian-lands, 
Intergovernmental relations, Radiation protection, Reporting and 
recordkeeping requirements, Water supply.

    Dated: October 5, 2009.
Lisa P. Jackson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter 1 of the 
Code of Federal Regulations is to be amended as follows:

PART 141--NATIONAL PRIMARY DRINKING WATER REGULATIONS

0
1. The authority citation for part 141 continues to read as follows:

    Authority:  42 U.S.C. 300f, 300g-1, 300g-2, 300g-3, 300g-4, 
300g-5, 300g-6, 300j-4, 300j-9, and 300j-11.


0
2. Part 141 is amended by adding a new subpart X to read as follows:
Subpart X--Aircraft Drinking Water Rule
Sec.
141.800 Applicability and compliance date.
141.801 Definitions.
141.802 Coliform sampling plan.
141.803 Coliform sampling.
141.804 Aircraft water system operations and maintenance plan.
141.805 Notification to passengers and crew.
141.806 Reporting requirements.
141.807 Recordkeeping requirements.
141.808 Audits and inspections.
141.809 Supplemental treatment.
141.810 Violations.

Subpart X--Aircraft Drinking Water Rule


Sec.  141.800  Applicability and compliance date.

    (a) Applicability. The requirements of this subpart constitute the 
National Primary Drinking Water Regulations for aircraft that are 
public water systems and that board only finished water for human 
consumption. Aircraft public water systems are considered transient 
non-community water systems (TNCWS). To the extent there is a conflict 
between the requirements in this subpart and the regulatory 
requirements established elsewhere in this part, this subpart governs.
    (b) Compliance Date. Aircraft public water systems must comply, 
unless otherwise noted, with the requirements of this subpart beginning 
October 19, 2011. Until this compliance date, air carriers remain 
subject to existing national primary drinking water regulations.


Sec.  141.801  Definitions.

    As used in this subpart, the term:
    Administrator means the Administrator of the United States 
Environmental Protection Agency or his/her authorized representative.
    Air Carrier means a person who undertakes directly by lease, or 
other arrangement, to engage in air transportation. The air carrier is 
responsible for ensuring all of the aircraft it owns or operates that 
are public water systems comply with all provisions of this subpart.
    Aircraft means a device that is used or intended to be used for 
flight in the air.
    Aircraft Water System means an aircraft that qualifies as a public 
water system under the Safe Drinking Water Act and the national primary 
drinking water regulations. The components of

[[Page 53619]]

an aircraft water system include the water service panel, the filler 
neck of the aircraft finished water storage tank, and all finished 
water storage tanks, piping, treatment equipment, and plumbing fixtures 
within the aircraft that supply water for human consumption to 
passengers or crew.
    Aircraft Water System Operations and Maintenance Plan means the 
schedules and procedures for operating, monitoring, and maintaining an 
aircraft water system that is included in an aircraft operation and 
maintenance program accepted by the Federal Aviation Administration. 
(14 CFR part 43, 14 CFR part 91, 14 CFR part 121)
    Finished Water means water that is introduced into the distribution 
system of a public water system and is intended for distribution and 
consumption without further treatment, except as treatment necessary to 
maintain water quality in the distribution system (e.g., supplemental 
disinfection, addition of corrosion control chemicals). (40 CFR 141.2)
    Human Consumption means drinking, bathing, showering, hand washing, 
teeth brushing, food preparation, dishwashing, and maintaining oral 
hygiene.
    Self Inspection means an onsite review of the aircraft water 
system, including the water service panel, the filler neck of the 
aircraft finished water storage tank; all finished water storage tanks, 
piping, treatment equipment, and plumbing fixtures; and a review of the 
aircraft operations, maintenance, monitoring, and recordkeeping for the 
purpose of evaluating the adequacy of such water system components and 
practices for providing safe drinking water to passengers and crew.
    Watering point means the water supply, methods, and facilities used 
for the delivery of finished water to the aircraft. These facilities 
may include water trucks, carts, cabinets, and hoses.


Sec.  141.802  Coliform sampling plan.

    (a) Each air carrier under this subpart must develop a coliform 
sampling plan covering each aircraft water system owned or operated by 
the air carrier that identifies the following:
    (1) Coliform sample collection procedures that are consistent with 
the requirements of Sec.  141.803(a) and (b).
    (2) Sample tap location(s) representative of the aircraft water 
system as specified in Sec.  141.803(b)(2) and (b)(4).
    (3) Frequency and number of routine coliform samples to be 
collected as specified in Sec.  141.803(b)(3).
    (4) Frequency of routine disinfection and flushing as specified in 
the operations and maintenance plan under Sec.  141.804.
    (5) Procedures for communicating sample results promptly so that 
any required actions, including repeat and follow-up sampling, 
corrective action, and notification of passengers and crew, will be 
conducted in a timely manner.
    (b) Each air carrier must develop a coliform sampling plan for each 
aircraft with a water system meeting the definition of a public water 
system by April 19, 2011.
    (c) The coliform sampling plan must be included in the Aircraft 
Water System Operations and Maintenance Plan required in Sec.  141.804. 
Any subsequent changes to the coliform sampling plan must also be 
included in the Aircraft Water System Operations and Maintenance Plan 
required in Sec.  141.804.


Sec.  141.803  Coliform sampling.

    (a) Analytical Methodology. Air carriers must follow the sampling 
and analysis requirements under this section.
    (1) The standard sample volume required for total coliform 
analysis, regardless of analytical method used, is 100 mL.
    (2) Air carriers need determine only the presence or absence of 
total coliforms and/or E. coli; a determination of density of these 
organisms is not required.
    (3) Air carriers must conduct analyses for total coliform and E. 
coli in accordance with the analytical methods approved in Sec.  
141.21(f)(3) and 141.21(f)(6).
    (4) The time from sample collection to initiation of analysis may 
not exceed 30 hours. Systems are encouraged but not required to hold 
samples below 10[deg]C during transit.
    (5) The invalidation of a total coliform sample result can be made 
only by the Administrator in accordance with Sec.  141.21(c)(1)(i), 
(ii), or (iii) or by the certified laboratory in accordance with Sec.  
141.21(c)(2).
    (6) Certified laboratories. For the purpose of determining 
compliance with this subpart, samples may be considered only if they 
have been analyzed by a laboratory certified by a State or EPA. For the 
purposes of this paragraph, ``State'' refers to a State or Tribe that 
has received primacy for public water systems (other than aircraft 
water systems) under section 1413 of SDWA.
    (b) Routine Monitoring. For each aircraft water system, the 
sampling frequency must be determined by the disinfection and flushing 
frequency recommended by the aircraft water system manufacturer, when 
available, and as identified in the operations and maintenance plan in 
Sec.  141.804.
    (1) Except as provided in paragraph (b)(2) of this section, the air 
carrier must collect two 100 mL total coliform routine samples at the 
frequency specified in the sampling plan in Sec.  141.802 and in 
accordance with paragraph (b)(3) of this section;
    (2) The air carrier may collect one 100 mL total coliform routine 
sample at the frequency specified in the sampling plan in Sec.  141.802 
for aircraft with a removable or portable tank that is drained every 
day of passenger service, and the aircraft has only one tap. Aircraft 
meeting the requirements of this paragraph do not have to comply with 
paragraph (b)(4) of this section.
    (3) Air carriers must perform routine monitoring for total coliform 
at a frequency corresponding to the frequency of routine disinfection 
and flushing as specified in the Table b-1 (Routine Disinfection and 
Flushing and Routine Sample Frequencies). Air carriers must follow the 
disinfection and flushing frequency recommended by the aircraft water 
system manufacturer, when available. Where the aircraft water system 
manufacturer does not specify a recommended routine disinfection and 
flushing frequency, the air carrier must choose a frequency from Table 
b-1 (Routine Disinfection and Flushing and Routine Sample Frequencies):

     Table B-1--Routine Disinfection and Flushing and Routine Sample
                               Frequencies
------------------------------------------------------------------------
Minimum routine disinfection & flushing    Minimum frequency of routine
              per aircraft                     samples per aircraft
------------------------------------------------------------------------
At least 4 times per year = At least     At least 1 time per year = At
 once within every three-month period     least once within every twelve-
 (quarterly).                             month period (annually).
At least 3 times per year = At least     At least 2 times per year = At
 once within every four-month period.     least once within every six-
                                          month period (semi-annually).

[[Page 53620]]

 
At least 2 times per year = At least     At least 4 times per year = At
 once within every six-month period       least once within every three-
 (semi-annually).                         month period (quarterly).
At least 1 time per year or less = At    At least 12 times per year = At
 least once within every twelve-month     least once every month
 period (annually) or less.               (monthly).
------------------------------------------------------------------------

     (4) One sample must be taken from a lavatory and one from a 
galley; each sample must be analyzed for total coliform. If only one 
water tap is located in the aircraft water system due to aircraft model 
type and construction, then a single tap may be used to collect two 
separate 100 mL samples.
    (5) If any routine, repeat, or follow-up coliform sample is total 
coliform-positive, the air carrier must analyze that total coliform-
positive culture medium to determine if E. coli is present.
    (6) Routine total coliform samples must not be collected within 72 
hours after completing routine disinfection and flushing procedures.
    (c) Routine Coliform Sample Results.
    (1) Negative Routine Coliform Sample Results. If all routine sample 
results are total coliform-negative, then the air carrier must maintain 
the routine monitoring frequency for total coliform as specified in the 
sampling plan in Sec.  141.802.
    (2) Positive Routine E. coli Sample Results. If any routine sample 
is E. coli-positive, the air carrier must perform all of the following:
    (i) Restrict Public Access. Restrict public access to the aircraft 
water system in accordance with paragraph (d) of this section as 
expeditiously as possible, but in no case later than 24 hours after the 
laboratory notifies the air carrier of the E. coli-positive result or 
discovery of the applicable failure as specified in paragraphs (g) and 
(h) of this section. All public access restrictions, including 
applicable public notification requirements, must remain in-place until 
the aircraft water system has been disinfected and flushed and a 
complete set of follow-up samples is total coliform-negative; and
    (ii) Disinfect and Flush. Conduct disinfection and flushing in 
accordance with Sec.  141.804(b)(2). If the aircraft water system 
cannot be physically disconnected or shut-off, or the flow of water 
otherwise prevented through the tap(s), then the air carrier must 
disinfect and flush the system no later than 72 hours after the 
laboratory notifies the air carrier of the E. coli-positive result or 
discovery of the applicable failure as specified in paragraphs (g) and 
(h) of this section; and
    (iii) Follow-up Sampling. Collect follow-up samples in accordance 
with paragraph (e) of this section. A complete set of follow-up sample 
results must be total coliform-negative before the air carrier provides 
water for human consumption from the aircraft water system and returns 
to the routine monitoring frequency as specified in the sampling plan 
required by Sec.  141.802.
    (3) Positive Routine Total Coliform Sample Results. If any routine 
sample is total coliform-positive and E. coli-negative, then the air 
carrier must perform at least one of the following three corrective 
actions and continue through with that action until a complete set of 
follow-up or repeat samples is total coliform-negative:
    (i) Disinfect and Flush. In accordance with Sec.  141.804(b)(2), 
conduct disinfection and flushing of the system no later than 72 hours 
after the laboratory notifies the air carrier of the total coliform-
positive and E. coli-negative result. After disinfection and flushing 
is completed, the air carrier must collect follow-up samples in 
accordance with paragraph (e) of this section prior to providing water 
for human consumption from the aircraft water system. A complete set of 
follow-up sample results must be total coliform-negative before the air 
carrier returns to the routine monitoring frequency as specified in the 
sampling plan required by Sec.  141.802; or
    (ii) Restrict Public Access. In accordance with paragraph (d) of 
this section, restrict public access to the aircraft water system as 
expeditiously as possible, but in no case later than 72 hours after the 
laboratory notifies the air carrier of the total coliform-positive and 
E. coli-negative result or discovery of the applicable failure as 
specified in paragraphs (f), (g), and, (i) of this section. All public 
access restrictions, including applicable public notification 
requirements, must remain in-place until the aircraft water system has 
been disinfected and flushed, and a complete set of follow-up samples 
has been collected. The air carrier must conduct disinfection and 
flushing in accordance with Sec.  141.804(b)(2). After disinfection and 
flushing is completed, the air carrier must collect follow-up samples 
in accordance with paragraph (e) of this section prior to providing 
water for human consumption from the aircraft water system. A complete 
set of follow-up sample results must be total coliform-negative before 
the air carrier returns to the routine monitoring frequency as 
specified in the sampling plan required by Sec.  141.802; or
    (iii) Repeat Sampling. Collect three 100 mL repeat samples no later 
than 24 hours after the laboratory notifies the air carrier of the 
routine total coliform-positive and E. coli-negative result. Repeat 
samples must be collected and analyzed from three taps within the 
aircraft as follows: The tap which resulted in the total coliform-
positive sample, one other lavatory tap, and one other galley tap. If 
fewer than three taps exist, then a total of three 100 mL samples must 
be collected and analyzed from the available taps within the aircraft 
water system.
    (A) If all repeat samples are total coliform-negative, then the air 
carrier must maintain the routine monitoring frequency for total 
coliform as specified in the sampling plan in Sec.  141.802.
    (B) If any repeat sample is E. coli-positive, the air carrier must 
perform all the corrective actions as specified in paragraphs 
(c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of this section.
    (C) If any repeat sample is total coliform-positive and E. coli-
negative, then the air carrier must perform the corrective actions 
specified in paragraphs (c)(3)(i) or (c)(3)(ii) of this section, and 
continue through with that action until a complete set of follow-up 
samples is total coliform-negative.
    (d) Restriction of public access. Restriction of public access to 
the aircraft water system includes, but need not be limited to, the 
following:
    (1) Physically disconnecting or shutting off the aircraft water 
system, where feasible, or otherwise preventing the flow of water 
through the tap(s);
    (2) Providing public notification to passengers and crew in 
accordance with Sec.  141.805.
    (3) Providing alternatives to water from the aircraft water system, 
such as bottled water for drinking and coffee or

[[Page 53621]]

tea preparation; antiseptic hand gels or wipes in accordance with 21 
CFR part 333--``Topical Anti-microbial Drug Products for Over-the-
Counter Human Use'' in the galleys and lavatories; and other feasible 
measures that reduce or eliminate the need to use the aircraft water 
system during the limited period before public use of the aircraft 
water system is unrestricted.
    (e) Post Disinfection and Flushing Follow-up Sampling. Following 
corrective action disinfection and flushing, air carriers must comply 
with post disinfection and flushing follow-up sampling procedures that, 
at a minimum, consist of the following:
    (1) For each aircraft water system, the air carrier must collect a 
complete set of total coliform follow-up samples consisting of two 100 
mL total coliform samples at the same routine sample locations as 
identified in paragraphs (b)(2) and (b)(4) of this section.
    (2) Follow-up samples must be collected prior to providing water to 
the public for human consumption from the aircraft water system.
    (3) If a complete set of follow-up samples is total coliform-
negative, the air carrier must return to the routine monitoring 
frequency for total coliform as specified in the sampling plan required 
by Sec.  141.802.
    (4) If any follow-up sample is E. coli-positive, the air carrier 
must perform all the corrective actions as specified in paragraphs 
(c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of this section.
    (5) If any follow-up sample is total coliform-positive and E. coli-
negative the air carrier must restrict public access to the aircraft 
water system in accordance with paragraph (d) of this section as 
expeditiously as possible, but in no case later than 72 hours after the 
laboratory notifies the air carrier of the total coliform-positive and 
E. coli-negative result. All public access restrictions, including 
applicable public notification requirements, must remain in-place until 
the aircraft water system has been disinfected and flushed in 
accordance with Sec.  141.804(b)(2) and a complete set of follow-up 
samples is total coliform-negative. The air carrier must collect 
follow-up samples in accordance with paragraph (e) of this section. A 
complete set of follow-up sample results must be total coliform-
negative before the air carrier provides water for human consumption 
from the aircraft water system and returns to the routine monitoring 
frequency for coliform as specified in Sec.  141.802.
    (f) Failure to Perform Required Routine Disinfection and Flushing 
or Failure to Collect Required Routine Samples. If the air carrier 
fails to perform routine disinfection and flushing or fails to collect 
and analyze the required number of routine coliform samples, the air 
carrier must perform all the corrective actions as specified in 
paragraph (c)(3)(ii) of this section.
    (g) Failure to Collect Repeat or Follow-up Samples. If the air 
carrier fails to collect and analyze the required follow-up samples as 
a result of an E. coli-positive result, then the air carrier must 
perform all the corrective actions as specified in paragraphs 
(c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of this section. If the air 
carrier fails to collect and analyze the required repeat samples or 
follow-up samples as a result of a total coliform-positive and E. coli-
negative result, then the air carrier must perform all the corrective 
actions as specified in paragraph (c)(3)(ii) of this section.
    (h) Failure to Board Water from a Safe Watering Point (E. coli-
positive). For the aircraft water system, the air carrier must perform 
all the corrective actions specified in paragraphs (c)(2)(i), 
(c)(2)(ii), and (c)(2)(iii) of this section when it becomes aware of an 
E. coli-positive event resulting from:
    (1) Boarding water from a watering point not in accordance with FDA 
regulations (21 CFR part 1240 subpart E), or
    (2) Boarding water that does not meet NPDWRs applicable to 
transient non-community water systems (Sec. Sec.  141.62 and 141.63, as 
applied to TNCWS),
    (3) Boarding water that is otherwise determined to be unsafe due to 
non-compliance with the procedures specified in Sec.  141.804(b)(6).
    (i) Failure to Board Water from a Safe Watering Point (non-E. coli-
positive). For the aircraft water system, the air carrier must perform 
all the corrective actions specified in paragraphs (c)(3)(ii) of this 
section when it becomes aware of a non-E. coli-positive event resulting 
from:
    (1) Boarding water from a watering point not in accordance with FDA 
regulations (21 CFR part 1240, subpart E),
    (2) Boarding water that does not meet NPDWRs applicable to 
transient non-community water systems (Sec. Sec.  141.62 and 141.63, as 
applied to TNCWS), or
    (3) Boarding water that is otherwise determined to be unsafe due to 
non-compliance with the procedures specified in Sec.  141.804(b)(6).


Sec.  141.804  Aircraft water system operations and maintenance plan.

    (a) Each air carrier must develop and implement an aircraft water 
system operations and maintenance plan for each aircraft water system 
that it owns or operates. This plan must be included in a Federal 
Aviation Administration (FAA)-accepted air carrier operations and 
maintenance program (14 CFR part 43, 14 CFR part 91, 14 CFR part 121).
    (b) Each aircraft water system operations and maintenance plan must 
include the following:
    (1) Watering Point Selection Requirement. All watering points must 
be selected in accordance with Food and Drug Administration (FDA) 
regulations (21 CFR part 1240, subpart E).
    (2) Procedures for Disinfection and Flushing. The plan must include 
the following requirements for procedures for disinfection and flushing 
of aircraft water system.
    (i) The air carrier must conduct disinfection and flushing of the 
aircraft water system in accordance with, or is consistent with, the 
water system manufacturer's recommendations. The air carrier may 
conduct disinfection and flushing more frequently, but not less 
frequently, than the manufacturer recommends.
    (ii) The operations and maintenance plan must identify the 
disinfection frequency, type of disinfecting agent, disinfectant 
concentration to be used, and the disinfectant contact time, and 
flushing volume or flushing time.
    (iii) In cases where a recommended routine disinfection and 
flushing frequency is not specified by the aircraft water system 
manufacturer, the air carrier must choose a disinfection and flushing, 
and corresponding monitoring frequency specified in Sec.  
141.803(b)(3).
    (3) Follow-up Sampling. The plan must include the procedures for 
follow-up sampling in accordance with Sec.  141.803(e).
    (4) Training Requirements. Training for all personnel involved with 
the aircraft water system operation and maintenance provisions of this 
regulation must include, but is not limited to the following:
    (i) Boarding water procedures;
    (ii) Sample collection procedures;
    (iii) Disinfection and flushing procedures;
    (iv) Public health and safety reasons for the requirements of this 
subpart.
    (5) Procedures for Conducting Self-inspections of the Aircraft 
Water System. Procedures must include, but are not limited to, 
inspection of storage tank, distribution system, supplemental 
treatment, fixtures, valves, and backflow prevention devices.
    (6) Procedures for Boarding Water. The plan must include the 
following requirements and procedures for boarding water:
    (i) Within the United States, the air carrier must board water from 
watering

[[Page 53622]]

points in accordance with Food and Drug Administration (FDA) 
regulations (21 CFR part 1240, subpart E).
    (ii) A description of how the water will be transferred from the 
watering point to the aircraft in a manner that ensures it will not 
become contaminated during the transfer.
    (iii) A description of how the carrier will ensure that water 
boarded outside the United States is safe for human consumption.
    (iv) A description of emergency procedures that meet the 
requirements in Sec.  141.803(h) and (i) that must be used in the event 
that the air carrier becomes aware that water was boarded to operate 
essential systems, such as toilets, but was boarded from a watering 
point not in accordance with FDA regulations, does not meet NPDWRs 
applicable to transient non-community water systems (Sec. Sec.  141.62 
and 141.63, as applied to TNCWSs), or is otherwise unsafe.
    (7) Coliform Sampling Plan. The air carrier must include the 
coliform sampling plan prepared in accordance with Sec.  141.802.
    (8) Aircraft Water System Disconnect/Shut-off, or Prevent Flow of 
Water Through the Tap(s) Statement. An explanation of whether the 
aircraft water system can be physically disconnected/shut-off, or the 
flow of water otherwise prevented through the tap(s) to the crew and 
passengers.
    (c) For existing aircraft, the air carrier must develop the water 
system operations and maintenance plan required by this section by 
April 19, 2011;
    (d) For new aircraft, the air carrier must develop the operations 
and maintenance plan required in this section within the first calendar 
quarter of initial operation of the aircraft.
    (e) Any changes to the aircraft water system operations and 
maintenance plan must be included in the FAA-accepted air carrier 
operations and maintenance program.


Sec.  141.805  Notification to passengers and crew.

    (a) Air carriers must give public notice for each aircraft in all 
of the following situations:
    (1) Public access to the aircraft water system is restricted in 
response to a routine, repeat or follow-up total coliform-positive or 
E. coli-positive sample result in accordance with Sec.  141.803(d);
    (2) Failure to perform required routine disinfection and flushing 
or failure to collect required routine samples in accordance with Sec.  
141.803(f);
    (3) Failure to collect the required follow-up samples in response 
to a sample result that is E. coli-positive in accordance with Sec.  
141.803(g);
    (4) Failure to collect the required repeat samples or failure to 
collect the required follow-up samples in response to a sample result 
that is total coliform-positive and E. coli-negative in accordance with 
Sec.  141.803(g);
    (5) In accordance with Sec.  141.803(h), the air carrier becomes 
aware of an E. coli-positive event resulting from water that has been 
boarded from a watering point not in accordance with FDA regulations 
(21 CFR part 1240, subpart E), or that does not meet NPDWRs applicable 
to transient non-community water systems, or that is otherwise 
determined to be unsafe due to non-compliance with the procedures 
specified in Sec.  141.804(b)(6);
    (6) In accordance with Sec.  141.803(i), the air carrier becomes 
aware of a non-E. coli-positive event resulting from water that has 
been boarded from a watering point not in accordance with FDA 
regulations (21 CFR part 1240, subpart E), or that does not meet NPDWRs 
applicable to transient non-community water systems, or that is 
otherwise determined to be unsafe due to non-compliance with the 
procedures specified in Sec.  141.804(b)(6).
    (7) The Administrator, the carrier, or the crew otherwise 
determines that notification is necessary to protect public health.
    (b) Public notification:
    (1) Must be displayed in a conspicuous way when printed or posted;
    (2) Must not contain overly technical language or very small print;
    (3) Must not be formatted in a way that defeats the purpose of the 
notice;
    (4) Must not contain language that nullifies the purpose of the 
notice;
    (5) Must contain information in the appropriate language(s) 
regarding the importance of the notice, reflecting a good faith effort 
to reach the non-English speaking population served, including, where 
applicable, an easily recognized symbol for non-potable water.
    (c) Public notification for paragraph (a)(1) of this section must 
meet the requirements of paragraph (b) of this section in addition to 
the following:
    (1) Public notification must include a prominently displayed, clear 
statement in each lavatory indicating that the water is non-potable and 
should not be used for drinking, food or beverage preparation, hand 
washing, teeth brushing, or any other consumptive use; and
    (2) A prominent notice in the galley directed at the crew which 
includes:
    (i) A clear statement that the water is non-potable and should not 
be used for drinking, food or beverage preparation, hand washing, teeth 
brushing, or any other consumptive use;
    (ii) A description of the violation or situation triggering the 
notice, including the contaminant(s) of concern;
    (iii) When the violation or situation occurred;
    (iv) Any potential adverse health effects from the violation or 
situation, as appropriate, under paragraph (g) of this section;
    (v) The population at risk, including sensitive subpopulations 
particularly vulnerable if exposed to the contaminant in the drinking 
water;
    (vi) What the air carrier is doing to correct the violation or 
situation; and
    (vii) When the air carrier expects to return the system to 
unrestricted public access.
    (3) If passenger access to the water system is physically prevented 
through disconnecting or shutting off the water, or the flow of water 
prevented through the tap(s), or if water is supplied only to lavatory 
toilets, and not to any lavatory or galley taps, then only the notice 
specified in paragraph (c)(2) of this section is required.
    (4) Air carriers must initiate public notification when restriction 
of public access is initiated in accordance with Sec.  141.803(d) and 
must continue until the aircraft water system is returned to 
unrestricted public access.
    (d) Public notification for paragraphs (a)(2), (a)(4), and (a)(6) 
of this section must meet the requirements of paragraph (b) of this 
section in addition to the following:
    (1) Public notification must include a prominently displayed, clear 
statement in each lavatory indicating that the water is non-potable and 
should not be used for drinking, food or beverage preparation, hand 
washing, teeth brushing, or any other consumptive use; and
    (2) A prominent notice in the galley directed at the crew which 
includes:
    (i) A clear statement that the water is non-potable and should not 
be used for drinking, food or beverage preparation, hand washing, teeth 
brushing, or any other consumptive use;
    (ii) A clear statement that it is not known whether the water is 
contaminated because there was a failure to perform required routine 
disinfection and flushing; or a failure to perform required monitoring; 
or water was boarded from a watering point not in accordance with FDA 
regulations, or that does not meet NPDWRs applicable to transient 
noncommunity water systems, or that is otherwise determined

[[Page 53623]]

to be unsafe due to noncompliance with the procedures specified in 
Sec.  141.804(b)(6);
    (iii) When and where the unsafe water was boarded or when the 
specific monitoring or disinfection and flushing requirement was not 
met;
    (iv) Any potential adverse health effects from exposure to 
waterborne pathogens that might be in the water, as appropriate, under 
paragraph (g) of this section;
    (v) The population at risk, including sensitive subpopulations 
particularly vulnerable if exposed to the contaminant in the drinking 
water; and
    (vi) A statement indicating when the system will be disinfected and 
flushed and returned to unrestricted public access.
    (3) If passenger access to the water system is physically prevented 
through disconnecting or shutting off the water, or the flow of water 
prevented through the tap(s), or if water is supplied only to lavatory 
toilets, and not to any lavatory or galley taps, then only the notice 
specified in paragraph (d)(2) of this section is required.
    (4) Air carriers must initiate public notification when restriction 
of public access is initiated in accordance with Sec.  141.803(d) and 
must continue until the aircraft water system is returned to 
unrestricted public access.
    (e) Public notification for paragraphs (a)(3) and (a)(5) of this 
section must meet the requirements of paragraph (b) of this section in 
addition to the following:
    (1) Public notification must include a prominently displayed, clear 
statement in each lavatory indicating that the water is non-potable and 
should not be used for drinking, food or beverage preparation, hand 
washing, teeth brushing, or any other consumptive use; and
    (2) A prominent notice in the galley directed at the crew which 
includes:
    (i) A clear statement that the water is non-potable and should not 
be used for drinking, food or beverage preparation, hand washing, teeth 
brushing, or any other consumptive use;
    (ii) A clear statement that the water is contaminated and there was 
a failure to conduct required monitoring; or a clear statement that 
water is contaminated because water was boarded from a watering point 
not in accordance with FDA regulations, or that does not meet NPDWRs 
applicable to transient noncommunity water systems, or that is 
otherwise determined to be unsafe due to noncompliance with the 
procedures specified in Sec.  141.804(b)(6);
    (iii) A description of the contaminant(s) of concern;
    (iv) When and where the unsafe water was boarded or when the 
specific monitoring requirement was not met;
    (v) Any potential adverse health effects from the situation, as 
appropriate, under paragraph (g) of this section;
    (vi) The population at risk, including sensitive subpopulations 
particularly vulnerable if exposed to the contaminant in the drinking 
water;
    (vii) A statement indicating what the air carrier is doing to 
correct the situation; and
    (viii) When the air carrier expects to return the system to 
unrestricted public access.
    (3) If passenger access to the water system is physically prevented 
through disconnecting or shutting off the water, or the flow of water 
prevented through the tap(s), or if water is supplied only to lavatory 
toilets, and not to any lavatory or galley taps, then only the notice 
specified in paragraph (e)(2) of this section is required.
    (4) Air carriers must initiate public notification when restriction 
of public access is initiated in accordance with Sec.  141.803(d) and 
must continue public notification until a complete set of required 
follow-up samples are total coliform-negative.
    (f) Public notification for paragraph (a)(7) of this section must 
meet the requirements of paragraph (b) of this section in addition to 
the following:
    (1) Notification must be in a form and manner reasonably calculated 
to reach all passengers and crew while on board the aircraft by using 
one or more of the following forms of delivery:
    (i) Broadcast over public announcement system on aircraft;
    (ii) Posting of the notice in conspicuous locations throughout the 
area served by the water system. These locations would normally be the 
galleys and in the lavatories of each aircraft requiring posting;
    (iii) Hand delivery of the notice to passengers and crew;
    (iv) Another delivery method approved in writing by the 
Administrator.
    (2) Air carriers must initiate public notification within 24 hours 
of being informed by EPA to perform notification and must continue 
notification for the duration determined by EPA.
    (g) In each public notice to the crew, air carriers must use the 
following standard health effects language that corresponds to the 
situations in paragraphs (a)(1) through (a)(6) of this section.
    (1) Health effects language to be used when public notice is 
initiated due to the detection of total coliforms only (not E. coli) in 
accordance with paragraph (a)(1) of this section:

    Coliform are bacteria that are naturally present in the 
environment and are used as an indicator that other, potentially 
harmful, bacteria may be present. Coliforms were found in [INSERT 
NUMBER OF SAMPLES DETECTED] samples collected and this is a warning 
of potential problems. If human pathogens are present, they can 
cause short-term health effects, such as diarrhea, cramps, nausea, 
headaches, or other symptoms. They may pose a special health risk 
for infants, young children, some of the elderly, and people with 
severely compromised immune systems.

    (2) Health effects language to be used when public notice is 
initiated due to any E. coli-positive routine, repeat, or follow-up 
sample in accordance with paragraph (a)(1) of this section:

    E. coli are bacteria whose presence indicates that the water may 
be contaminated with human or animal wastes. Microbes in these 
wastes can cause short-term health effects, such as diarrhea, 
cramps, nausea, headaches, or other symptoms. They may pose a 
special health risk for infants, young children, some of the 
elderly, and people with severely compromised immune systems.

    (3) Health effects language to be used when public notice is 
initiated due to a failure to conduct routine monitoring or routine 
disinfection and flushing in accordance with paragraph (a)(2) of this 
section; or when there is a failure to conduct repeat or follow-up 
sampling in accordance with paragraph (a)(4) of this section; or in 
accordance with paragraph (a)(6) of this section, when the air carrier 
becomes aware of a non-E. coli-positive event that is the result of 
water that was boarded from a watering point not in accordance with FDA 
regulations (21 CFR part 1240, subpart E), or that does not meet NPDWRs 
applicable to transient non-community water systems, or that is 
otherwise determined to be unsafe due to non-compliance with the 
procedures specified in Sec.  141.804(b)(6):

    Because [REQUIRED MONITORING AND ANALYSIS WAS NOT CONDUCTED], 
[REQUIRED DISINFECTION AND FLUSHING WAS NOT CONDUCTED] [WATER WAS 
BOARDED FROM A WATERING POINT NOT IN ACCORDANCE WITH FDA REGULATIONS 
(21 CR 1240 SUBPART E)], or [OTHER APPROPRIATE EXPLANATION], we 
cannot be sure of the quality of the drinking water at this time. 
However, drinking water contaminated with human pathogens can cause 
short-term health effects, such as diarrhea, cramps, nausea, 
headaches, or other symptoms. They may pose a special health risk 
for infants, young children, some of the elderly, and people with 
severely compromised immune systems.

    (4) Health effects language to be used when public notice is 
initiated due to a

[[Page 53624]]

failure to conduct required follow-up monitoring in response to a 
sample result that is E. coli-positive in accordance with paragraph 
(a)(3) of this section; or in accordance with paragraph (a)(5) of this 
section, when the air carrier becomes aware of an E. coli-positive 
event that is the result of water that was boarded from a watering 
point not in accordance with FDA regulations (21 CFR part 1240, subpart 
E), or that does not meet NPDWRs applicable to transient non-community 
water systems, or that is otherwise determined to be unsafe due to non-
compliance with the procedures specified in Sec.  141.804(b)(6):

    Because required follow-up monitoring and analysis was not 
conducted after the aircraft water system tested positive for E. 
coli, we cannot be sure of the quality of the drinking water at this 
time. E. coli are bacteria whose presence indicates that the water 
may be contaminated with human or animal wastes. Microbes in these 
wastes can cause short-term health effects, such as diarrhea, 
cramps, nausea, headaches, or other symptoms. They may pose a 
special health risk for infants, young children, some of the 
elderly, and people with severely compromised immune systems.

OR

    Water was boarded that is contaminated with E. coli because 
[WATER WAS BOARDED FROM A WATERING POINT NOT IN ACCORDANCE WITH FDA 
REGULATIONS (21 CR 1240 SUBPART E)], or [OTHER APPROPRIATE 
EXPLANATION]. E. coli are bacteria whose presence indicates that the 
water may be contaminated with human or animal wastes. Microbes in 
these wastes can cause short-term health effects, such as diarrhea, 
cramps, nausea, headaches, or other symptoms. They may pose a 
special health risk for infants, young children, some of the 
elderly, and people with severely compromised immune systems.

Sec.  141.806  Reporting requirements.

    (a) The air carrier must comply with the following requirements 
regarding reporting of the development of the coliform sampling plan, 
the operations and maintenance plan, and the disinfection and flushing 
and coliform sampling frequencies.
    (1) The air carrier must report to the Administrator that it has 
developed the coliform sampling plan required by Sec.  141.802, which 
covers each existing aircraft water system, as well as report the 
frequency for routine coliform sampling identified in the coliform 
sampling plan by April 19, 2011. The air carrier must report to the 
Administrator that it has developed its operations and maintenance plan 
required by Sec.  141.804 and report the frequency for routine 
disinfection and flushing by April 19, 2011;
    (2) For each new aircraft meeting the definition of an aircraft 
water system, which becomes operational after publication of this 
subpart, the air carrier must report to the Administrator that it has 
developed the coliform sampling plan required by Sec.  141.802, as well 
as report the frequency for routine coliform sampling identified in the 
coliform sampling plan, within the first calendar quarter of initial 
operation of the aircraft. The air carrier must report to the 
Administrator that it has developed the aircraft water system 
operations and maintenance plan required by Sec.  141.804, and report 
the frequency for routine disinfection and flushing within the first 
calendar quarter of initial operation of the aircraft.
    (b) The air carrier must report the following information to the 
Administrator:
    (1) A complete inventory of aircraft that are public water systems 
by April 19, 2011. Inventory information includes, at a minimum, the 
following:
    (i) The unique aircraft identifier number;
    (ii) The status (active or inactive) of any aircraft as an aircraft 
water system as defined in Sec.  141.801;
    (iii) The type and location of any supplemental treatment equipment 
installed on the water system; and
    (iv) Whether the aircraft water system can be physically 
disconnected or shut-off, or the flow of water prevented through the 
tap(s).
    (2) Changes in aircraft inventory no later than 10 days following 
the calendar month in which the change occurred. Changes in inventory 
information include, at a minimum, the following:
    (i) Change in the unique identifier number for any new aircraft, or 
any aircraft removed from the carrier's fleet;
    (ii) Change in status (active or inactive) of any aircraft as an 
aircraft water system as defined in Sec.  141.801; and
    (iii) Change to the type and location of any supplemental treatment 
equipment added to or removed from the water system.
    (iv) Change to whether the aircraft water system can be physically 
disconnected or shut-off, or the flow of water prevented through the 
tap(s).
    (3) All sampling results no later than 10 calendar days following 
the monitoring period in which the sampling occurred. The monitoring 
period is based on the monitoring frequency identified in the coliform 
sampling plan required under Sec.  141.802. Routine disinfection and 
flushing events must be reported no later than 10 calendar days 
following the disinfection and flushing period in which the 
disinfection and flushing occurred. The disinfection and flushing 
period is based on the frequency identified in the operations and 
maintenance plan required under Sec.  141.804.
    (4) All events requiring notification to passengers or crew, or 
non-routine disinfection and flushing, or non-routine sampling, within 
10 days of the event (e.g., notification of positive sample result by 
laboratory), including information on whether required notification was 
provided to passengers or crew or both.
    (5) Failure to comply with the monitoring or disinfection and 
flushing requirements of this subpart within 10 calendar days of 
discovery of the failure.
    (6) Changes in disinfection and flushing and coliform sampling 
frequencies no later than 10 days following the calendar month in which 
the change occurred. Changes to an aircraft's routine coliform sampling 
frequency and routine disinfection and flushing frequency must be 
included in the aircraft water system operation and maintenance plan 
that is included in the air carrier operations and maintenance program 
accepted by FAA in accordance with Sec.  141.804.
    (c) The air carrier must provide evidence of a self-inspection to 
the Administrator within 90 days of completion of the self-inspection 
required under Sec.  141.808(b), including reporting whether all 
deficiencies were addressed in accordance with Sec.  141.808(c). The 
air carrier must also report to the Administrator within 90 days that 
any deficiency identified during a compliance audit conducted in 
accordance with Sec.  141.808(a) has been addressed. If any deficiency 
has not been addressed within 90 days of identification of the 
deficiency, the report must also include a description of the 
deficiency, an explanation as to why it has not yet been addressed, and 
a schedule for addressing it as expeditiously as possible.
    (d) All information required to be reported to the Administrator 
under this subpart must be in an electronic format established or 
approved by the Administrator. If an air carrier is unable to report 
electronically, the air carrier may use an alternative approach that 
the Administrator approves.


Sec.  141.807  Recordkeeping requirements.

    (a) The air carrier must keep records of bacteriological analyses 
for at least 5 years and must include the following information:

[[Page 53625]]

    (1) The date, time, and place of sampling, and the name of the 
person who collected the sample;
    (2) Identification of the sample as a routine, repeat, follow-up, 
or other special purpose sample;
    (3) Date of the analysis;
    (4) Laboratory and person responsible for performing the analysis;
    (5) The analytical technique/method used; and
    (6) The results of the analysis.
    (b) The air carrier must keep records of any disinfection and 
flushing for at least 5 years and must include the following 
information:
    (1) The date and time of the disinfection and flushing; and
    (2) The type of disinfection and flushing (i.e., routine or 
corrective action).
    (c) The air carrier must keep records of a self-inspection for at 
least 10 years and must include the following information:
    (1) The completion date of the self-inspection; and
    (2) Copies of any written reports, summaries, or communications 
related to the self-inspection.
    (d) The air carrier must maintain sampling plans and make such 
plans available for review by the Administrator upon request, including 
during compliance audits.
    (e) The air carrier must maintain aircraft water system operations 
and maintenance plans in accordance with FAA requirements, and make 
such plans available for review by the Administrator upon request, 
including during compliance audits.
    (f) The air carrier must keep copies of public notices to 
passengers and crew issued as required by this subpart for at least 3 
years after issuance.


Sec.  141.808  Audits and inspections.

    (a) The Administrator may conduct routine compliance audits as 
deemed necessary in providing regulatory oversight to ensure proper 
implementation of the requirements in this subpart. Compliance audits 
may include, but are not limited to:
    (1) Bacteriological sampling of aircraft water system;
    (2) Reviews and audits of records as they pertain to water system 
operations and maintenance such as log entries, disinfection and 
flushing procedures, and sampling results; and
    (3) Observation of procedures involving the handling of finished 
water, watering point selection, boarding of water, operation, 
disinfection and flushing, and general maintenance and self-inspections 
of aircraft water system.
    (b) Air carriers or their representatives must perform a self-
inspection of all water system components for each aircraft water 
system no less frequently than once every 5 years.
    (c) The air carrier must address any deficiency identified during 
compliance audits or routine self-inspections within 90 days of 
identification of the deficiency, or where such deficiency is 
identified during extended or heavy maintenance, before the aircraft is 
put back into service. This includes any deficiency in the water 
system's design, construction, operation, maintenance, or 
administration, as well as any failure or malfunction of any system 
component that has the potential to cause an unacceptable risk to 
health or that could affect the reliable delivery of safe drinking 
water.


Sec.  141.809  Supplemental treatment.

    (a) Any supplemental drinking water treatment units installed 
onboard existing or new aircraft must be acceptable to FAA and FDA; and 
must be installed, operated, and maintained in accordance with the 
manufacturer's plans and specifications and FAA requirements.
    (b) Water supplemental treatment and production equipment must 
produce water that meets the standards prescribed in this part.


Sec.  141.810  Violations.

    An air carrier is in violation of this subpart when, for any 
aircraft water system it owns or operates, any of the following occur:
    (a) It fails to perform any of the requirements in accordance with 
Sec.  141.803 or Sec.  141.804.
    (b) It has an E. coli-positive sample in any monitoring period 
(routine and repeat samples are used in this determination).
    (c) It fails to provide notification to passengers and crew in 
accordance with Sec.  141.805.
    (d) It fails to comply with the reporting and recordkeeping 
requirements of this subpart.
    (e) It fails to conduct a self-inspection or address a deficiency 
in accordance with Sec.  141.808.
    (f) It fails to develop a coliform sampling plan in accordance with 
Sec.  141.802, or fails to have and follow an operations and 
maintenance plan, which is included in a FAA accepted program in 
accordance with Sec.  141.804.
[FR Doc. E9-24552 Filed 10-16-09; 8:45 am]
BILLING CODE 6560-50-P