We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that would apply to the specified products. That NPRM was published in the Federal Register on January 5, 2010 (75 FR 264). That NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter supports the NPRM.

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

Based on the service information, we estimate that this AD will affect about 138 RB211 Trent 800 series turbofan engines installed on airplanes of U.S. registry. We also estimate that it will take about one work-hour per engine to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $2,000 per engine. Based on these figures, we estimate the cost of the AD on U.S. operators to be $287,040.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Model 767-200, -300, and -300F series airplanes. That NPRM was published in the Federal Register on July 2, 2009 (74 FR 31640). For certain airplanes, that NPRM proposed to require modifying the fuel quantity indicating system (FQIS) densitometer. For certain other airplanes, that NPRM proposed to require replacing the existing hot short protector (HSP) on the FQIS densitometer with a new HSP. That NPRM also proposed to require revising the Airworthiness Limitations (AWL) section of the Instructions for Continued Airworthiness to incorporate AWL No. 28-AWL-22.

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

Continental Airlines has no technical objection to the NPRM.

Boeing asks that we clarify certain language in the Summary section of the NPRM, and notes that the fuel quantity indicating system (FQIS) densitometer is not being modified as specified in that section. Boeing states that the proposed actions are for the installation of appropriate support hardware and modifications to the densitometer interfacing wiring to install an HSP, or to replace the HSP in a limited number of airplanes.

We agree with the Boeing comment. We specified in the Relevant Service Information section of the NPRM that the service bulletin describes procedures for modifying the FQIS densitometer, which include installing new HSP support brackets and grounding brackets, installing an HSP and bonding jumper, rerouting certain wire bundles, and installing new wire bundles. These actions are described in Boeing Service Bulletin 767-28A0094, Revision 1, dated April 23, 2009 (referred to in the NPRM as the appropriate source of service information for accomplishing the actions). However, after further review we have determined that using the phrase “modifying the FQIS densitometer” is too broad. Therefore, for clarification, we have changed that language in the Summary section and paragraph (f) of this AD to specify “installing support hardware and modifying the interfacing wiring of the FQIS densitometer.”

Boeing also states, for information only, that there are no safety-related concerns regarding use of the existing HSP. Boeing notes that an operator can choose to replace the existing HSP with a new HSP if it experiences in-service problems with the HSP. Boeing adds that it plans to revise Service Bulletin 767-28A0094, Revision 1, dated April 23, 2009, to remove the only airplane in Group 4; the procedures for Group 4 airplanes require replacement of the existing HSP with a new HSP.

We acknowledge the Boeing comment; no change to the AD is necessary in this regard.

The Air Transport Association (ATA), on behalf of its member American Airlines (AAL), asks that the compliance time in the NPRM be extended from 60 to 72 months. ATA states that this would allow operators to modify the majority of airplanes during scheduled heavy maintenance visits. ATA adds that the Boeing 767 Maintenance Review Board document recommends heavy maintenance visits at intervals of 72 months, and carrier maintenance programs, facilities, and resources are organized to best support maintenance involving fuel tank entry and sensitive testing at that time. ATA notes that a shorter compliance time could require establishing dedicated modification lines and impose additional impact outside of Part 39 rulemaking. ATA believes that an extension would maintain an acceptable level of safety in view of previous ADs that addressed the same unsafe condition. AAL further states that 28-AWL-22 will now require a loop resistance check of the new wire bundles after installation in order to verify the bonding requirements are being met. Because of the extreme sensitivity of the test equipment, AAL believes that this modification should be accomplished at the same time as the majority of other fuel tank inspections and modifications, which would be at the heavy check.

We do not agree with the commenters' request. In developing an appropriate compliance time for the modification, we considered the safety implications and the practical aspect of accomplishing the modification within a period of time that corresponds to the normal scheduled maintenance for most affected operators. In consideration of these items, we have determined that a 60-month compliance time will ensure an acceptable level of safety and allow the modification to be done during scheduled maintenance intervals for most affected operators. However, under the provisions of paragraph (k)(1) of the AD, we will consider requests to adjust the compliance time if sufficient data are submitted to substantiate that the new compliance time would provide an acceptable level of safety. We have made no change to the AD in this regard.

The ATA, on behalf of its member UPS, asks that all cargo-only airplanes currently in operation be exempt from the NPRM requirements. ATA adds that these airplanes have significantly less exposure to flammable conditions in fuel tanks. UPS notes that changing the maintenance programs to add bonding checks will be sufficient to address the HSP issue in the existing cargo-only airplanes. UPS states that it does not object to new cargo-only airplanes having the HSP installed.

We do not agree with the commenters' request. The unsafe condition identified in this AD has been evaluated under the criteria established for conditions associated with fuel tank systems, as specified in the “Discussion” section of the NPRM. We determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside the center wing tank. The center wing tank has been identified as a high flammability tank under the Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83), fuel tank safety assessments, and the failure type and fuel tank exposure to flammable conditions were taken into consideration. The type of failure that is addressed in this AD cannot be mitigated by performing bonding checks. Cargo-only airplanes having the same design are still subject to the unsafe condition. We have made no change to the AD in this regard.

UPS adds that the cost benefit (analysis) does not justify retrofit on current cargo airplanes.

We infer that UPS means that the cost benefit (analysis) does not justify retrofit on current cargo airplanes; we do not agree. The data in the Costs of Compliance section (below) is limited only to the cost of actions actually required by the AD. The cost analysis in AD rulemaking actions does not include the costs of “on-condition” actions that are necessary when doing those on-condition actions. Regardless of AD direction, those actions would be required to correct an unsafe condition identified in an airplane and ensure operation of that airplane in an airworthy condition, as required by the Federal Aviation Regulations. Therefore, we have made no change to the AD in this regard.

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

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

Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work hour to $85 per work hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

We estimate that this AD affects 192 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this AD.

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

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

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

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

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

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

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

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

The FAA proposed to amend 14 CFR part 39 by superseding AD 2009-24-05, Amendment 39-16092 (74 FR 62222, November 27, 2009), with a proposed AD. The proposed AD applies to Rolls-Royce plc RB211-Trent 500, 700, and 800 series turbofan engines. We published the proposed AD in the Federal Register on January 6, 2010 (75 FR 801). That action proposed to correct an unsafe condition for the specified products. The MCAI states:

To mitigate the risk of engine FOHE blockage, this AD requires, for RB211-Trent 500, 700, and 800 series turbofan engines, replacing the existing FOHE with a FOHE incorporating the modifications specified in the applicable Rolls-Royce plc Alert Service Bulletin.

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

One commenter, Deutsche Lufthansa AG, requests that we add language to the AD that allows the use of later revisions of the service bulletins incorporated by reference. This change would make the AD more consistent with the related European Aviation Safety Agency ADs.

We do not agree. Rulemaking requirements do not permit advance approval of unknown future revisions to service bulletins. We did not change the AD.

Airline Pilots Association, International, (ALPA) requests that we change the proposed AD compliance time from “Within 6,000 flight hours after the effective date of this AD, but no later than January 1, 2011”, to “Within six months after the effective date of the AD or within 6,000 flight hours after receipt of the Service Bulletin.” ALPA believes that the decreased compliance times are important since, in the event a blockage of the FOHE, the current procedure requires an immediate idle descent to melt the blockage. Due to this aircraft's design mission of long range flight, it often operates over oceanic and geographically remote areas where radar surveillance may not exist and communications with the air traffic control is encumbered by language limits, poor radio reception, and third party communication relay services. These areas may concentrate traffic on specific routes or tracks. This creates the potential for traffic conflicts during the descent, without the ability to receive timely Air Traffic Control clearance or the additional safety oversight provided by radar separation. This engine rollback is very insidious to the crew and creates the potential for a pilot to be faced with an immediate descent without adequate time to compensate for traffic, weather, or terrain.

We do not agree. For the RB211-Trent 800 series engines, on February 17, 2009, the Transport Airplane Directorate issued AD 2009-05-11 that revises the airplane flight manual to include in-flight procedures for pilots to follow in certain cold weather conditions. That AD also includes mandating fuel circulation procedures on the ground when certain conditions exist. These procedures are considered adequate to assure continued safe operation through all environments and conditions, including those expressed by ALPA, until hardware modifications become available. Those procedures also reduce hazardous amounts of ice buildup within the fuel feed system and eliminate ice accumulation on the face of the FOHE. For the RB211-Trent 500 series and 700 series engines, changing the compliance time to 6 months would not result in a significant benefit to the level of safety. We did not change the AD.

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

The European Aviation Safety Agency (EASA) AD 2009-0142, dated July 13, 2009, and EASA AD 2009-0257, dated December 3, 2009, require replacing the FOHE within 6,000 flight hours from July 10, 2009 or before January 1, 2011, whichever occurs first. This AD requires replacing the FOHE on RB211-Trent 500 and RB211-Trent 700 series turbofan engines within 6,000 flight hours after the effective date of this AD, or before January 1, 2011, whichever occurs first, and on RB211-Trent 800 series turbofan engines, replacing the FOHE within 6,000 flight hours after January 4, 2010 (the effective date of AD 2009-24-05), or before January 1, 2011, whichever occurs first.

Based on the service information, we estimate that this AD will affect about 138 RB211-Trent 800 series engines, and about 10 RB211-Trent 700 series engines, installed on airplanes of U.S. registry. There are currently no RB211-Trent 500 series engines installed on airplanes of U.S. registry. We also estimate that it will take about 8.5work-hours per product to comply with this AD. The average labor rate is $80 per work-hour. Required parts will cost about $58,005 per product. Based on these figures, we estimate the cost of the AD on U.S. operators to be $8,685,380.

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Model 757 airplanes. That NPRM was published in the Federal Register on September 29, 2009 (74 FR 49827). That NPRM proposed to require inspecting to verify the part number of the low-pressure flex-hoses of the flightcrew and supernumerary oxygen system installed under the oxygen mask stowage box at a flightcrew and supernumerary oxygen mask location, and replacing with a new non-conductive low-pressure flex-hose of the oxygen system if necessary.

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

Boeing, Air Line Pilots Association, International (ALPA), and the National Transportation Safety Board (NTSB) support the NPRM.

American Airlines states that the NPRM is unnecessary and should be retracted. The commenter states that, given the Boeing compliance recommendation of “earliest opportunity when manpower, material and facilities are available,” risk analysis for the unsafe condition was found to be below the extremely improbable threshold. The commenter states that the NPRM would affect 102 of its airplanes, all of which have been modified to preclude the unsafe condition. The commenter also states that, of the 485 airplanes affected by the NPRM, it has mitigated the risk on 25 percent of the U.S. fleet. The commenter states that the three other large U.S. operators have also incorporated Boeing Service Bulletin 757-35A0015, Revision 2, dated June 15, 2000. The commenter states that this combined effort has substantially addressed the U.S. fleet and reduced the risk probabilities even further. The commenter also states that it has put procedures in place to preclude reintroducing the unsafe condition. The commenter also states that, since Boeing Service Bulletin 757-35A0015, dated September 2, 1999, was issued 10 years ago, the FAA appears to agree that at least 13 years is an appropriate interval of time in which the affected airplanes could continue to operate without compromising safety. The commenter states that the compliance period appears arbitrary and is not based on accepted risk assessment practices.

We do not agree to withdraw the NPRM. Sufficient information exists to demonstrate that our risk analysis for the unsafe condition is adequate in determining the compliance times required in this AD. We acknowledge that American Airlines has been proactive in compliance with the requirements of this AD; however, not every operator has been quite as proactive. According to various bilateral airworthiness agreements with countries around the world, we are obligated to advise other civil airworthiness authorities of unsafe conditions identified in products manufactured in the United States. The issuance of ADs is the means by which we satisfy this obligation. Even if the current U.S.-registered fleet is in compliance with the requirements of the AD, the issuance of the rule is still necessary to ensure that any affected airplane imported and placed on the U.S. register in the future will be required to be in compliance as well. The manufacturer has advised us that not all of the affected airplanes worldwide have been modified. Issuance of this AD will ensure that the airplanes are modified before they are permitted to operate in the U.S. We have not changed the AD in this regard.

FedEx requests that a one-time ferry flight to a maintenance base be allowed for airplanes in a non-compliant configuration due to being in storage. FedEx states that a ferry flight would be required after the 36-month compliance date.

We partially agree with the request for a one-time ferry flight. We agree with allowing special flight permits for the purpose of flying the airplane to a repair facility to do the work required by this AD. However, we disagree with revising this AD to specifically state that special flight permits are approved for this purpose. Special flight permits are currently allowed under section 39.23 of the Federal Aviation Regulations (14 CFR 39.23). No change has been made to the AD in this regard.

Northwest Airlines requests that visual inspections for part numbers of the low-pressure oxygen flex hose not be required if the airline has previously complied with Boeing Service Bulletin 757-35A0015, Revision 2, dated June 15, 2000. The commenter provided no further justification for this request.

We agree that the visual inspection of the hose is not necessary if the operator has previously accomplished the actions specified in Boeing Service Bulletin 757-35A0015, Revision 2, dated June 15, 2000. Paragraph (f) of this AD states that the required actions must be done within the specified compliance times, “* * * unless the actions have already been done.” This AD does not require that the actions be redone if they were done before the effective date of the AD. No change to the AD is necessary in this regard.

ALPA requests a shorter compliance time. ALPA states that the 36-month inspection and replacement interval is too long due to a high degree of risk imposed on passengers and crew.

We do not agree. In developing an appropriate compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of inspecting the low-pressure flex-hoses of the flightcrew and supernumerary oxygen system. Further, we arrived at the proposed compliance time with operator and manufacturer concurrence. In consideration of all of these factors, we determined that the compliance time, as proposed, represents an appropriate interval in which the inspection and replacement can be accomplished in a timely manner within the fleet, while still maintaining an adequate level of safety. Operators are always permitted to accomplish the requirements of an AD at a time earlier than the specified compliance time; therefore, an operator may choose to replace the oxygen hose before 36 months after the effective date of this AD in order to accomplish the requirements of this AD. If additional data are presented that would justify a shorter compliance time, we might consider further rulemaking on this issue. We have not changed the AD in this regard.

Although the NTSB fully supports the NPRM, the NTSB states that because the risk of fire from electrically conductive hoses is not restricted to Boeing models, the FAA should widen the inspection and replacement of oxygen hoses beyond the airplanes cited in the NPRM. The NTSB notes that the NPRM and the future rules mentioned in the NPRM would apply only to Boeing airplanes. The NTSB states that suppliers provide other airplane manufacturers with low-pressure oxygen hoses that are nearly identical to those that the NPRM seeks to identify and replace.

From these statements, we infer the NTSB is requesting that we revise the NPRM to add other airplane models to the applicability of the NPRM. We agree that suspect low-pressure oxygen hoses or similar hoses might be installed on airplane models produced by manufacturers other than Boeing. Determining whether an unsafe condition exists on these other airplanes is outside the scope of this AD. We will continue to evaluate the safety implications of these oxygen hoses as they apply to other manufacturers and initiate additional rulemaking to address the unsafe condition on those airplanes if necessary. We have not changed the AD in this regard.

Northwest Airlines requests that we remove the proposed requirement to record the part number of the flex hose that is intended for replacement. Northwest Airlines states that once an oxygen hose has been identified as affected by the visual inspection confirming the part number, the affected hose will be replaced. Northwest Airlines states that there is no further instruction on where to record this information or what to do with it. Northwest Airlines states that requiring the recording of the part number of the affected oxygen hose does not provide any benefit or enhance safety.

We agree that recording the part number of the affected hose does not serve any safety interest. Recording the part number of the affected hose identified for replacement as specified in Boeing Service Bulletin 757-35A0015, Revision 2, dated June 15, 2000, is not necessary for compliance with this AD. We have revised paragraph (g)(1) of this AD to clarify that recording the part number of the affected oxygen hose is not necessary.

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

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

Since issuance of the NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

We estimate that this AD would affect 485 airplanes of U.S. registry. We also estimate that it would take 1 work-hour per product to comply with this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $41,225, or $85 per product.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to include an AD that supersedes AD 2006-22-05, Amendment 39-14802 (71 FR 62907, October 27, 2006). The existing AD applies to various aircraft equipped with certain Honeywell Primus II RNZ-850( )/-851( ) integrated navigation units (INUs). That NPRM was published in the Federal Register on May 19, 2008 (73 FR 28751). That NPRM proposed to continue to provide, as one alternative for compliance, a one-time inspection to determine whether a certain modification has been installed on the Honeywell Primus II NV-850 navigation receiver module (NRM), which is part of the INU. In lieu of accomplishing this inspection, and for aircraft found to have an affected NRM, that NPRM proposed to continue to provide for revising the aircraft flight manual to include new limitations for instrument landing system approaches. That NPRM proposed to continue to require an inspection to determine whether certain other modifications have been done on the NRM; and doing related investigative, corrective, and other specified actions, as applicable; as well as further modifications to address additional anomalies. That NPRM also proposed to extend the compliance time for a certain inspection and associated actions and to revise the applicability to include additional affected INUs.

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

Two commenters, ExpressJet Airlines and Honeywell, request that credit be given for actions performed in compliance with previous service information.

ExpressJet Airlines states that paragraph (l) of the NPRM calls for an inspection on any INU that is not identified in Table 2 of the NPRM. However, the NPRM does not take into account the units which have already been driven to Mod T status by Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004. ExpressJet requests that compliance with Honeywell Service Bulletin 7510100-34-0037 be considered as an alternative to the inspections required in paragraph (l) of the NPRM.

Honeywell also commented on the same issue. Honeywell states that it is concerned that many airplanes have been inspected and verified to be compliant with AD 2006-22-05. Honeywell asks the FAA to clarify whether the intent of the NPRM was to require that all affected operators re-inspect their airplanes. Honeywell also asks if the FAA can make a note under the compliance section to advise operators who actually complied with AD 2006-22-05 and verified their radios have modification AS and the new part number installed that they were already compliant with the new AD.

We agree to provide clarification for both ExpressJet Airlines' and Honeywell's comments. Paragraph (l) of this AD applies only to any INUs that are not listed in Table 2 of this AD (which is the same list as Table 1 of AD 2006-22-05). In addition, if operators have previously inspected INUs that are not listed in Table 2 and have accomplished the applicable actions specified in paragraph (l) of this AD, then those operators are already in compliance with paragraph (l) of this AD. According to paragraph (e) of this AD, the actions are required within the specified compliance time, unless already accomplished. Honeywell Service Bulletin 7510100-34-0037 only addresses the localizer fix. However, this AD requires that the glide slope be fixed in addition to the localizer. We will not consider compliance with Honeywell Service Bulletin 7510100-34-0037 as an alternative to the inspections required in paragraph (l) of the NPRM. No changes have been made to the final rule.

Honeywell requests that the FAA remove the reference to Revision 1, dated January 21, 2003, of the Honeywell Technical Newsletter (TNL) A23-3850-001 and simply reference the “current revision.” The TNL is currently at Revision 6. Based on the release of this new AD, Honeywell states that it plans to update the TNL with current information and clarify how to interpret the AD. Honeywell states that it cannot release the update until the new AD is released.

We disagree with Honeywell's request to refer to the “current revision” of the TNL. The NPRM did not require the Honeywell TNL, but did require Honeywell Alert Service Bulletin 7510100-34-A0035, dated July 11, 2003; and Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004; as the appropriate sources of service information to accomplish the required actions in this AD. Honeywell provided the TNL as a tool to communicate with its customers regarding this technical issue. We included the TNL in Note 3 of the NPRM for reference only. To avoid confusion, we have removed Note 3 of the NPRM, which referred to this TNL.

Honeywell recommends wording changes to paragraph (j) of the NPRM to remove the sentence “If Mod T is installed, no further action is required by this paragraph.”

We agree to remove the sentence “If Mod T is installed, no further action is required by this paragraph” from paragraph (j) of the NPRM. Although Honeywell provides no justification for this wording change, we agree that making this change provides further clarification. Doing Mod T repairs only the localizer in accordance with Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004. However, the intent of this AD is to require that the glide slope and the localizer be serviced. Doing Mod T repairs the localizer in accordance with Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004. The glide slope is addressed by accomplishing the actions in Honeywell Alert Service Bulletin 7510100-34-A0034, dated February 28, 2003. Honeywell Alert Service Bulletin 7510100-34-A0035, dated July 11, 2003, does not address the localizer; it provides instructions for changing the part number after the glide slope is repaired. The glide slope and the localizer repairs are accomplished independent from each other in different Honeywell service bulletins.

Therefore, we have revised paragraph (j) of this AD by adding the text “* * * (which relates to the glide slope fix) * * *” to the sentence that begins “If Mod L, N, P, or R is installed * * *” and adding “if Mod T is not installed (which relates to the localizer fix), within 30 months after December 1, 2006, do all applicable related investigative, corrective, and other specified actions in accordance with the Accomplishment Instructions * * *” in that same sentence (before “Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004”). We made this change to clarify that Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004, addresses the localizer fix. This change does not increase the scope of this AD.

Honeywell requests that we add Honeywell Alert Service Bulletin 7510134-34-A0017, dated July 11, 2003, to Table 1 in the NPRM.

We agree to include Honeywell Alert Service Bulletin 7510134-34-A0017, dated July 11, 2003, in Table 1 of this final rule to maintain consistency because the other service bulletins included in Table 1 of this AD were issued in pairs. Honeywell Alert Service Bulletin 7510100-34-A0034, dated February 28, 2003, was paired with Honeywell Alert Service Bulletin 7510134-34-A0016, Revision 001, dated March 4, 2003. Honeywell Service Bulletin 7510100-34-0037, dated July 8, 2004, was paired with Honeywell Service Bulletin 7510134-34-0018, dated July 8, 2004. Adding Honeywell Alert Service Bulletin 7510134-A0017, does not change any requirements of this AD, because Honeywell Alert Service Bulletin 7510134-34-A0017 is a prerequisite to Honeywell Alert Service Bulletin 7510100-34-A0035, dated July 11, 2003, and Honeywell Alert Service Bulletin 7510100-34-A0035 refers to Honeywell Alert Service Bulletin 7510134-34-A0017.

We contacted Honeywell for more information about the technical content of Honeywell Alert Service Bulletin 7510134-34-A0017, dated July 11, 2003. Honeywell Alert Service Bulletin 7510100-34-A0035, dated July 11, 2003, references Honeywell Alert Service Bulletin 7510134-34-A0017, dated July 11, 2003, as a source of service information on the new part numbers assigned after performing Honeywell Alert Service Bulletin 7510100-34-A0034, dated February 28, 2003. We have added Honeywell Alert Service Bulletin 7510134-34-A0017, dated July 11, 2003, to Table 1 of this AD. This does not increase the financial burden on operators, nor does it increase the scope of the AD.

Honeywell requests that we revise paragraph (l) of the NPRM to list part numbers 7510134-611, -631, -701, and -731; which are parts of the Honeywell Primus II RNZ-850( )/-851( ) INU after modification; to the inspection to determine whether Mod L, N, P, R, or T is installed.

We agree to provide clarification. We have revised paragraphs (l), (l)(1), (l)(2), and (l)(3) of this AD to specify the NRM part numbers 7510134-611, -631, -701, and -731 instead of the modification level. Paragraphs (l)(1) and (l)(2) of this AD correctly specify which combination of part number and modification level meets the technical requirements of the modification. We have determined that these changes will neither increase the economic burden on any operator nor increase the scope of the AD.

We have changed the product identification line in the body of this AD to specify the design approval holder of the affected appliance rather than “various aircraft.”

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

After the NPRM was issued, we reviewed the figures we have used over the past several years to calculate AD costs to operators. To account for various inflationary costs in the airline industry, we find it necessary to increase the labor rate used in these calculations from $80 per work hour to $85 per work hour. The cost impact information, below, reflects this increase in the specified hourly labor rate.

There are about 3,063 aircraft of the affected design in the worldwide fleet. The following table provides the estimated costs for U.S. operators to comply with this AD. The manufacturer states that it will supply required parts to existing customers at no cost.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed actions specified in this final rule, and that no operator would accomplish those actions in the future if this AD were not adopted. We have been advised, however, that the actions have already been done on some affected airplanes. Therefore, the future economic cost impact of this rule on U.S. operators is expected to be less than the cost impact figures indicated above.

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

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

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

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

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

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

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

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

Order No. 2005-B; Final Rule Table of Contents   Paragraph

1. By this instant final rule, the Commission is amending part 157, subpart B of its regulations, specifically 18 CFR 157.34 and 157.35, in order to clarify and reconcile them in response to Order Nos. 717 and 717-A, 1 governing the Standards of Conduct for transmission providers. Part 157, subpart B contains the regulations governing open seasons for Alaska natural gas transportation projects. Specifically, the Commission is eliminating references to “energy affiliates” in §§ 157.34 and 157.35 of the Commission's regulations in order to be consistent with Order No. 717, in which the Commission eliminated the concept of “energy affiliates” in response to the U.S. Court of Appeals for the DC Circuit decision in National Fuel Gas Corporation v. FERC (National Fuel). 2

2. The Commission, in Order No. 717, also eliminated the corporate functional approach taken in Order No. 2004's  3 Standards of Conduct in favor of an employee functional approach. In doing so, the Commission revised and reformed the Standards of Conduct to combine the best elements of Order No. 2004, with those of the Standards of Conduct originally adopted by the Commission in Order Nos. 497  4 (for the gas industry) and 889  5 (for the electric industry). By this rule, the Commission is reconciling in § 157.35(d) to the specific Standards of Conduct with which a project sponsor conducting an open season for an Alaska natural gas transportation project must comply, as they have been revised and now appear in the Commission's regulations as a result of Order Nos. 717 and 717-A.

3. In 1988, the Commission, in Order No. 497, first adopted Standards of Conduct for transmission providers. In Order No. 497, the Commission sought to deter undue preferences by (i) separating a transmission function provider's employees engaged in transmission services from those engaged in its marketing services, and (ii) requiring that all transmission customers, affiliated and non-affiliated, be treated on a non- discriminatory basis.

4. In 2003, the Commission issued Order No. 2004, which broadened the Standards of Conduct to include a new category of affiliate, the energy affiliate. 6 The new standards were made applicable to both the electric and gas industries, and provided that the transmission employees of a transmission provider  7 must function independently not only from the company's marketing affiliates but from its energy affiliates as well, and that transmission providers may not treat either their energy affiliates or their marketing affiliates on a preferential basis.

5. In 2005, the Commission issued Order No. 2005, 8 amending its regulations to establish requirements governing the conduct of open seasons for proposals to construct Alaska natural gas transportation projects. 9 In order to further the Commission's goal of a non-discriminatory open season, Order No. 2005 applied certain of the Standards of Conduct requirements of Order No. 2004, several of which incorporated Order No. 2004's “energy affiliate” concept.

6. In 2006, in National Fuel, the U.S. Court of Appeals for the DC Circuit overturned the standards as applied to gas transmission providers on the ground that the evidence of energy affiliate abuse cited by the Commission was not in the record. 10 As a result of the court's decision in National Fuel, on January 9, 2007, the Commission issued an interim rule, Order No. 690, 11 which repromulgated the portions of the Standards of Conduct not challenged in National Fuel as applied to natural gas transmission providers. Subsequently, on October 16, 2008, the Commission issued Order No. 717 amending the Standards of Conduct for transmission providers to make them clearer and to refocus the rules on the area where there is the greatest potential for abuse.

7. The reforms in Order No. 717 were intended to eliminate the elements that had rendered the Standards of Conduct difficult to enforce and apply. The Commission strove to conform the Standards of Conduct with the court's opinion in National Fuel and combine the best elements of Order No. 2004 with those elements of the Standards of Conduct originally adopted in Order Nos. 497 and 889. Specifically, Order No. 717 (i) eliminated the concept of energy affiliates, and (ii) eliminated the corporate separation approach in favor of the employee functional approach used in Order Nos. 497 and 889.

8. The Commission's goal in promulgating §§ 157.34 and 157.35 of its regulations was to prevent unduly discriminatory behavior and limit the ability of a project applicant for an Alaska natural gas transportation project to unduly favor its affiliates in the open season process. The Commission sought to do this by applying certain of the Standards of Conduct requirements of Order No. 2004 to all project applicants conducting open seasons for an Alaska natural gas transportation project because this would minimize the risk that an affiliate of a project applicant would have an advantage over non-affiliates in obtaining capacity through the open season.

9. First, in § 157.35(c), the Commission required project applicants to create/designate a unit or division to conduct the open season. The employees of this unit or division are treated as transmission function employees, and as such are required, under Order No. 2004, to function independent of the other non-regulated divisions of the project applicant, as well as the project applicant's Marketing and Energy Affiliates. 12 This, the Commission stated, would prevent Energy Affiliates or Marketing Affiliates of the project applicant who participate in the open season from having the advantage of information or strategy that non-affiliated open season participants do not have.

10. Second, in § 157.35(d), the Commission provided that the project sponsor's unit or division conducting an open season would be subject to certain provisions of the Standards of Conduct, specifically, those pertaining to: separation of functions (18 CFR 358.4(a)(1) and (3)); written procedures (18 CFR 358.4(e)(3), (4), (5) and (6)); information access (18 CFR 358.5(a)); information disclosure (18 CFR 358.5(b)); prohibitions against discrimination (18 CFR 358.5(c)(3) and(5)) and discounts (18 CFR 358.5(d).

11. The current regulations governing the conduct of open seasons for Alaska natural gas transportation projects refer in several sections to “energy affiliates.” In particular, paragraphs (19), (20)(i) and (ii), and (21) of § 157.34(c): include “Energy Affiliates” among the entities that a prospective applicant must list and identify in organizational charts to be included in the prospective applicant's Notice of Open Season.

12. Additionally, as part of the Commission's regulations to prevent undue discrimination or preference in the conduct of open seasons for Alaska natural gas transportation projects, § 157.35(c): Requires that all prospective applicants conducting open seasons for an Alaska natural gas transportation project function independent of, among others, their Energy Affiliates, as defined the Commission's Standards of Conduct.

13. As stated above, Order No. 717 eliminated the concept of “energy affiliates” by deleting that term, as it was defined in § 358.3(d)  13 of the pre-Order No. 717 Standards of Conduct. Order No. 717 also deleted from the Standards of Conduct the definition of “marketing affiliate,” consistent with its goal of eliminating Order No. 2004's corporate functional approach. In its stead, Order No. 717 refers to the terms “marketing function” in new § 358.3(c)  14 and “marketing function employee” in new § 358.3(d). 15 In the case of interstate pipelines and their affiliates, marketing function means “the sale for resale in interstate commerce, or the submission of offers to sell interstate commerce, natural gas” subject to several exclusions, including “sales of natural gas solely from a seller's own production, or a “seller's own gathering or processing facilities.”  16 However, for purposes of these regulations, these exclusions, which also existed under the definition of “marketing” under the Order No. 2004 Standards of Conduct ( see 18 CFR 358.3(l)(1)), cannot be read to exclude any prospective project sponsors that comprised or were affiliated with the owner of the Alaskan North Slope natural gas. The Commission made this clear by providing in § 157.35(d) of the open season regulations that all project applicants, even those who would not otherwise be subject to the Standards of Conduct provisions, must comply with certain enumerated sections of the Standards of Conduct.

14. Therefore, in order to render the regulations governing the conduct of open seasons for Alaska natural gas transportation projects consistent with the current Standards of Conduct, the Commission is amending paragraphs (19), (20) and (21) of § 157.34(c) to eliminate references to “energy affiliates” and “marketing affiliates,” and is adopting Order No. 717's employee functional approach as reflected in the marketing function/marketing function employee concept. However, the Commission is also making clear that the “producer exemption” of § 358.3(c)(iii) does not apply in the case of prospective applicants conduction open seasons for Alaska natural gas transportation projects.

15. The Commission is also amending § 157.35(c) to eliminate references to “Energy Affiliates” in that provision of the open season regulations, and to replace the term “marketing affiliates” with “affiliates” performing a “marketing function,” as those terms are defined in the current Standards of Conduct. Again, the Commission is making clear in this section that the “producer exemption” of § 358.3(c)(iii) does not apply in the case of prospective applicants conduction open seasons for Alaska natural gas transportation projects.

16. As explained above, Commission provided in § 137.35(d) that the project sponsor's unit or division conducting an open season would be subject to certain provisions of the Commission's Standards of Conduct, namely, §§ 358.4(a)(1) and (3); 358.4(e)(3), (4), (5), and (6); 358.5(a), (b), (c)(3) and (5); and 358.5(d). That section also provided that the exemptions from § 358.4(a)(1) and (3) set forth in § 358.4(a)(4), (5), and (6) of the open season regulations also applied to any project applicant conducting an open season for an Alaska natural gas transportation project.

17. Below, we will discuss the specific Standards of Conduct with which an applicant for an Alaska natural gas transportation project must comply and compare those requirements with those contained in the Standards of Conduct as revised by Order No. 717.

18. Under § 157.35(d) of the Commission's open season regulations, any project applicant conducting an open season for an Alaska natural gas transportation project must comply with the separation of functions requirements of the Standards of Conduct found in §§ 358.4(a)(1) and (3) of the Commission's regulations. 17

19. The independent functioning requirements of § 358.4(a)(1) now appear in the new Standards of Conduct, as amended by Order No. 717, at § 358.5(a) of the Commission's regulations. 18 The new standard has two minor differences from the Order No. 2004 standard. First, the exception for emergency circumstances affecting system reliability was replaced by a broader exception “as permitted in this part or otherwise permitted by Commission order.” This change should have no impact on a project applicant's obligations since no emergency circumstances affecting system reliability would occur at the open season stage. The second difference is that reference to “Marketing and Energy Affiliates” has been replaced by reference to “marketing function employees,” reflecting Order No. 717's elimination of the Energy Affiliate and the adoption of an employee functional approach in lieu of a corporate functional approach. The separation of functions requirements described in § 358.4(a)(3) are now found in § 358.5(b) of the new standards, 19 although they, too, are now expressed in terms that reflect Order No. 717's employee functional approach by replacing reference to “Marketing and Energy Affiliates” with reference to “marketing function employees.”

20. Section 157.35(d) of the Commission's open season regulations also imposes on any project applicant conducting an open season for an Alaska natural gas transportation project certain requirements pertaining to written procedures, training, and compliance oversight as set out in §§ 358.4(e)(3), (4), (5) and (6). 20 Specifically, § 358.4(e)(3) requires each project applicant to post on its Internet Web site its written procedures describing how it will comply with the applicable Standards of Conduct and pursuant to § 358.4(e)(4), these procedures are to be distributed to specified employees. Also, under the requirements of § 358.4(e)(5), each project applicant is required to train its employees involved in the open season or part of the open season unit/division, officers, directors and employees with access to transportation information or information concerning gas purchases, sales or marketing functions. Finally, the project applicant must also designate a Chief Compliance Officer who will be responsible for Standards of Conduct compliance as set out in § 358.4(e)(6).

21. Requirements pertaining to written procedures, training, and compliance oversight are now set out in §§ 358.7(d) (posting written procedures); 358.8(b)(2) (distribution of written procedures); 358.8(c)(1) (employee training); and 358.8(c)(2) (designation of compliance officer). Although there are some differences in the details of these procedures, they are minor, and should impose no undue burdens on project applicants conducting open seasons. Likewise, they will not dilute or alter the Commission's goal to ensure a non-discriminatory open season for an Alaska natural gas transportation project.

22. For example, the new Standards of Conduct do not specifically require that the procedures to be posted must be “in such detail as will enable customers and the Commission to determine that the Transmission Provider is in compliance with the requirements of this section.”  21 Additionally, the training requirements of the old Standards of Conduct must now be met annually and new employees must be trained within 30 days. 22 Finally, in addition to designating a Chief Compliance Officer, the new Standards of Conduct require that the Chief Compliance Officer's name and contact information be posted. 23

23. The application of the information access (18 CFR 358.5(a)) and disclosure (18 CFR 358.5(b)) requirements also apply to project applicants in order to ensure that employees of Marketing/Energy Affiliates  24 participating in the Open Season will not have access to any transmission information that is not publicly available to non-affiliated participants and to require that any disclosure of non-public transmission information to a Marketing/Energy Affiliate will be immediately disclosed to all other actual and potential open season participants by posting that information on the project applicant's Internet Web site. Additionally, § 157.35(d) provides that the requirements set out in § 358.5(b)(4) for written consent before releasing non-affiliated customer information to a Marketing or Energy Affiliate and posting that consent on the Internet also apply to project applicants.

24. Requirements pertaining to information access and disclosure are now set out in §§ 358.6 and 358.7(a), (b), and (c). Although reworded to reflect the elimination of the Energy Affiliate and the replacement of references to Marketing Affiliates with the concept of marketing function employees, the new Standards of Conduct similarly ensure that a project sponsor's affiliated employees who conduct a marketing function will not have access to any transmission information that is not publicly available to non-affiliated open season participants and similarly require that any disclosure of non-public transmission information to a marketing function employee will be immediately posted on project applicant's Internet Web site for all other actual and potential open season participants to see.

25. In Order No. 2005, the Commission sought to broadly prohibit discrimination by a project applicant conducting an open season and limit its ability to unduly favor a Marketing/Energy Affiliate by imposing some of the non-discrimination requirements of Order No. 2004. Specifically, under § 157.35(d), the non-discrimination provisions of the Standards of Conduct contained in §§ 358.5(c)(3) and (5)  25 were made to apply to project applicants. Section 358.5(c)(3) requires a Transmission Provider to process all similar requests for transmission in the same manner and within the same period of time; and § 358.5(c)(5) prohibits transmission providers from giving their Marketing or Energy Affiliates any preference over any other wholesale customer in matters relating to the sale or purchase of transmission service. The Commission felt that these provisions would ensure that a project applicant will not provide any preferences to affiliated participants in the context of an open season. These prohibitions remain intact under new §§ 358.4(c) and (d).

26. Finally, § 157.35(d) imposes on a project applicant the provisions of § 358.5(d), 26 under which a Transmission Provider is required to post an offer of a discount for transmission service at the time an offer is contractually binding. 27 This, too, was done to ensure the transparency of the open season process and discourage undue preferences.

27. In Order No. 717, the Commission deleted the obligation of § 157.35(d) to post discount information from the current Standards of Conducts. In P 218 of Order No. 717, we stated the following:

28. The Commission recognizes that other provisions of our regulations or orders, such as the posting requirements of 18 CFR part 284 and 18 CFR part 37, might not attach to a prospective applicant for an Alaska natural gas transportation project. However, under the open season regulations, such an applicant may not give undue preference to any person in matters relating to the sale or purchase of transmission service (including, but not limited to, issues of price * * *). 29 Under § 157.34(d)(4) of the Commission's regulations, a prospective applicant must submit copies of all precedent agreements to the Commission, at which time any discounted rates would be revealed, and the Commission can address any concerns or complaints regarding preferential treatment at that time.

29. In addition, § 157.35(d) provides that the exemptions from §§ 358.4(a)(1) and (3) set forth in §§ 358.4(a)(4), (5), and (6) also apply to each project applicant conducting an Alaska natural gas transportation project open season. The applicable exemptions from the separation of functions would also apply to permit the project applicant to share various categories of employees, including: Support, field and maintenance employees (§ 358.4(a)(4)); senior officers and directors who are not “Transmission Function Employees” (as defined by 18 CFR 358.3(j)), provided that they do not participate in directing, organizing, or executing transmission system operations or market functions or act as conduits for sharing prohibited information with a Marketing or Energy Affiliate (§ 358.4(a)(5)); and risk management employees who are not engaged in transmission functions or sales or commodity functions (§ 358.4(a)(6)).

30. The new Standards of Conduct do not specifically enumerate similar categories of employees that may be shared. Instead, the sharing of these types of employees may be permitted by virtue of, and to the extent that, the employee in question is not one “who actively and personally engages on a day-to-day basis in marketing functions.”  30

31. As discussed above, applying the new Standards of Conduct provisions regarding the functional separation, information access and disclosure, and non-discrimination provisions of Order No. 717 to the open season process will ensure, in the same way that the Standards of Conduct currently listed in the open season regulations do, that the open season is conducted in a manner that is non-discriminatory and provides equal access to all participants, particularly those not affiliated with the project applicants. If during or following the open season the Commission determines that the project applicant has violated any of these requirements, the results of the open season with regard to the affiliates of that project applicant may be voided and a new open season held for that capacity.

32. Therefore, in order to render the regulations governing the conduct of open seasons for Alaska natural gas transportation projects consistent with the current Standards of Conduct, the Commission is amending paragraph (d) of § 157.35 to replace the various Order No. 2004 Standards of Conduct which project sponsors conducting open seasons for an Alaska natural gas transportation project must comply with the applicable new Standards of Conduct promulgated under Order No. 717, as discussed above.

33. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule. 31 However, this instant Final Rule does not increase or decrease the information collection requirements that are already imposed under the Commission's open season regulations for Alaska natural gas transportation projects already imposed and compliance with OMB regulations is thus not required.

34. The Commission is required to prepare an Environmental Assessment or Environmental Impact Statement for any action that may have a significant adverse effect on the human environment. 32 Issuance of this instant Final Rule does not represent a major Federal action having a significant adverse effect of the human environment under the Commission's regulations implementing the National Environmental Policy Act of 1969. Part 380 of the Commission's regulations lists exemptions to the requirement to draft an Environmental Assessment or Environmental Impact Statement. Included is an exemption for procedural, ministerial, or internal administrative actions. 33 This rulemaking is exempt under that provision.

35. The Regulatory Flexibility Act of 1980 (RFA)  34 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This instant Final Rule concerns amendments to certain provisions of the Commission's regulations governing the conduct of open seasons for Alaska natural gas transportation projects, namely, 18 CFR 157.34 and 157.35. These changes are being made in order to render the open season regulations consistent with the Commission's current Standards of Conduct by reconciling references to the specific Standards of Conduct with which a project sponsor conducting an open season for an Alaska natural gas transportation project must comply. In large measure, the amendments made in this instant rule do not impose obligations on any Alaska natural gas transportation project applicants that are different than the obligations imposed under the current open season regulations. Rather than being substantive in nature, this rulemaking merely reconciles the references to specific requirements under the Standards of Conduct imposed under Order No. 2004, with those requirements as they now appear in the Standards of Conducts as a result of Order No. 717. Other than in minor details, such as training and posting requirements, as discussed above, any differences in the responsibilities imposed as a result of this rulemaking are differences in form rather than in substance as a result of the new employee functional approach taken by Order No. 717. The Commission certifies that it will not have a significant economic impact upon participants in Commission proceedings. Therefore, an analysis under the RFA is not required.

36. In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page ( http://www.ferc.gov ) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

37. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

38. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll-free at 1-866-208;3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at 202-502-8371, TTY 202-502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov.

39. The Commission is issuing this rule as an instant Final Rule without a period for public comment. Under 5 U.S.C. 553(b), notice and comment procedures are unnecessary where a rulemaking concerns only agency procedure or practice, or where the agency finds that notice and comment is impracticable, unnecessary, or contrary to the public interest.

40. This rule concerns the amendment of 18 CFR 157.34 and 157.35 in order to clarify them in response to Order Nos. 717 and 717-A, governing the Standards of Conduct for transmission providers. The changes made in this rulemaking pertain to certain of these standards with which all project applicants conducting open seasons for an Alaska natural gas transportation project must comply.

41. Moreover, on January 29, 2010, TransCanada Alaska Company LLC filed, pursuant to § 157.38 of the Commission's regulations, a Request for Commission Approval of Detailed Plan for Conducting an Open Season in Docket No. PF09-11-001, and the Commission is aware that another potential sponsor of a proposed Alaska natural gas transportation project is preparing to soon file with the Commission its plan for conducting an open season. It is therefore important to clarify as expediently as possible exactly what is required of prospective applicants in order for them to comply with the open season regulations involving the Commission's Standards of Conduct. 35 For these reasons, the Commission finds that notice and public procedure on this rulemaking are impracticable, unnecessary, and contrary to the public interest.

42. The provisions of 5 U.S.C. 801 regarding Congressional review do not apply to this Final Rule, because this Final Rule concerns agency procedure and practice and will not substantially affect the rights of non-agency parties.

43. These regulations are effective April 28, 2010.

FDA is amending its regulations in part 14 (21 CFR part 14) to clarify that the Advisory Committee Oversight and Management Staff (ACOMS), within FDA's Office of the Commissioner, now coordinates the nomination and selection process for nonvoting members representing consumer interests for standing technical advisory committees. The amendments also change the address where interested persons should submit nominations for those nonvoting members. This document makes the appropriate changes to § 14.84(c).

Publication of this document constitutes final action on these changes under the Administrative Procedure Act (5 U.S.C. 553). FDA has determined that notice and public comment are unnecessary because this amendment to the regulations provides only technical changes.

On November 21, 2005, the Coast Guard issued a Federal Register notice and request for comments at 70 FR 70052, under the heading “Navigation and Waterways Management Improvements, Providence River Regulated Navigation Area, Narragansett Bay, Rhode Island and Mt. Hope Bay, MA.” The notice was prompted primarily by two events: (1) The U.S. Army Corps of Engineers (USACE) was nearing completion of a major maintenance dredging project in the Providence River, and (2) enactment of Public Law 109-59, the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) signed on August 10, 2005 by President Bush. Section 1948 of SAFETEA-LU resulted in retention of the old Brightman Street Bridge across the Taunton River between Somerset and Fall River, MA. The proximity of the old and new Brightman Street bridges to each other, which will both remain in place as a result of SAFETEA-LU, prompted formal adoption of the navigation safety measures that are currently practiced either voluntarily or through Captain of the Port (COTP) orders to particular commercial vessels.

We received three public comments in response to our November 2005 notice. On May 26, 2006, we published a Federal Register notice of proposed rulemaking at 71 FR 30108, under the heading “Regulated Navigation Area: Narragansett Bay, RI and Mount Hope Bay, MA, including the Providence River and Taunton River”. We received six comments in response to the NPRM, including requests from the Rhode Island Attorney General and the city of Fall River, Massachusetts, that the Coast Guard extend the public comment period and hold public hearings on the regulations. On October 6, 2006, we published a notice extending the public comment period and announcing two public meetings in the Federal Register at 71 FR 57893, under the heading “Navigation and Waterways Management Improvements, Providence River Regulated Navigation Area, Narragansett Bay, Rhode Island and Mt. Hope Bay, MA”. Public meetings were subsequently held on October 16, 2006 in Fall River, and on October 19, 2006, in Warwick, Rhode Island. The public comment period ended on November 1, 2006. Thirteen months later in December 2007, USACE completed its major maintenance dredging of the Providence River, restoring the waterway to its authorized controlling depth of 40 feet. Completion of the dredging project removed the need for certain navigation safety measures implemented in 1994 to address shoaling in the Providence River, and also prompted adoption of this final rule. The removal of the navigation safety measures is discussed below.

1. Providence River: On May 1, 1994, the Coast Guard established a Regulated Navigation Area in the Providence River, Providence, Rhode Island, described at 33 CFR 165.122 (59 FR 18487, April 19, 1994). It was designed to protect the maritime community from hazards to navigation resulting from the extreme shoaling that occurred in the northern section of the Providence River Channel.

Generally, the existing RNA imposes certain navigation safety measures in various segments of the Providence River including, among other requirements, a maximum draft of 38 feet for most vessels, one-way vessel traffic in certain portions of the river, and a requirement that vessels over 65 feet in length make periodic SECURITE calls via VHF radio. In September 2005, USACE substantially completed a major maintenance dredging of the Providence River to remove most shoaling and restore the channel to a depth of 40′ at Mean Lower Low Water (MLLW), and a minimum channel width of 600′. While most shoaling was removed, there remained nine rock mounds that required blasting (as opposed to dredging) and removal. Those nine rock mounds were not blasted and removed until September 2007, and a final “Results of Survey” was issued by USACE on December 14, 2007.

The restoration of the Providence River Channel to the above described dimensions provides sufficient depth and width for commercial and recreational vessels of appropriate length, breadth, and draft, to navigate safely within the channel. Consequently, because the original conditions that warranted the RNA no longer exist, we are making modifications as described in this final rule.

We are also adopting some navigation safety measures that were recommended in the public comments. These measures include maintaining an under-keel clearance equal to at least 10% of a vessel's draft when not assisted by tugs, and a requirement for certain vessels to make SECURITE calls at certain points during their transit to notify other waterway users of their intentions.

2. Taunton River: Construction of a new Brightman Street bridge (the new bridge) across the Taunton River approximately 1100 feet north of the existing Brightman Street Bridge (the old bridge) has presented navigation challenges, particularly for larger self-propelled commercial vessels. The opening of the old bridge is only 98 feet while the opening of the new bridge is 200 feet, and the openings of the two bridges are not aligned with each other. This configuration requires commercial vessels to transit through one opening, stop, be pushed transversely (sideways) by tugs for approximately 100 feet to align with the next bridge opening, and then proceed forward. Local marine pilots, working with operators of commercial vessels delivering coal and oil to the electric power plant north of the bridges, have devised a method of transiting the two bridges that involves the use of a marine pilot, three tugs (in most cases), and navigating only in daylight, only when steady winds are no greater than 12 knots and wind gusts are no greater than 15 knots, and transiting outbound only on a flood tide. These voluntary measures were initially intended to be temporary and employed only until the old bridge was demolished after completion of the new bridge, in accordance with the bridge construction permit issued by the Coast Guard on December 5, 1997.

However, section 1948 of SAFETEA-LU prohibits the expenditure of Federal funds for the demolition of the old bridge. It states: “Notwithstanding any Federal law, regulation, or policy to the contrary, no Federal funds shall be obligated or expended for the demolition of the existing Brightman Street Bridge connecting Fall River and Somerset, Massachusetts, and the existing Brightman Street Bridge shall be maintained for pedestrian and bicycle access, and as an emergency service route.” We believe the practical effect of this law is that the old bridge will remain in place.

The unique maneuvers required to navigate safely between these two bridges are of concern to the Coast Guard; however, the safety measures proposed in the NPRM are the ones currently being practiced by the maritime community either voluntarily or through COTP orders to specific commercial vessels. Further, the sole commercial entity (a coal-fire power plant) north of the two Brightman Street bridges which received bulk cargo (coal) via ship or barge has shut down, further reducing marine traffic through the bridges. Consequently, the Coast Guard believes further regulation is not necessary as the current system in place provides an appropriate and effective method to address the navigation safety issues related to the fewer (and smaller) commercial vessels that may now transit the Taunton River and Brightman Street bridges. The navigation safety measures are discussed below.

Three comments were submitted in response to our November 2005 notice and six comments were submitted in response to our May 2006 NPRM. After we extended the NPRM comment period, and in response to our two October 2006 public meetings, we received 57 additional written and 106 verbal comments, respectively. Most comments expressed opposition to a proposed liquefied natural gas (LNG) waterfront facility on the Taunton River in Fall River, MA, but few comments addressed the current RNA or suggested any specific navigation safety measures.

Several comments in particular captured the sentiment of most. In one comment, the writer was “appalled that the United States Coast Guard is even contemplating modifying the existing Regulated Navigation Area in Providence River, Narragansett Bay, and Mount Hope Bay which would then allow LNG tankers to use these waterways.” Another comment suggested that the proposed regulations were “inextricably linked to the [Weaver's Cove Energy] LNG vessel transit plan * * *.” A third comment suggested that the proposed regulations were “creative maneuvers to bring LNG tankers in Fall River.” A commenter at a public meeting stated that the proposed regulations would allow LNG passage to Fall River “by right.”

However, as stated by the Captain of the Port at the October 2006 public meetings, “it is important to note that these proposed regulations are intended to address navigation safety issues as they currently exist for vessels and mariners currently using the waterways of Narragansett Bay and Mount Hope Bay, such as the ships and barges carrying coal and occasional fuel oil that transit through the Brightman Street bridges some 50 times each year in connection with deliveries to the power plant in Somerset.”

As stated earlier in this preamble, the unique maneuvers required to navigate safely between these two bridges concern the Coast Guard. But the safety measures proposed in the NPRM are currently being practiced by the maritime community either voluntarily or through Captain of the Port orders to specific commercial vessels. And, the sole commercial entity (a coal-fire power plant) north of the two Brightman Street bridges which received bulk cargo (coal) via ship or barge has shut down, further reducing marine traffic through the bridges. Consequently, the Coast Guard believes further regulation for the Taunton River and Brightman Street Bridges is not necessary as the current system in place provides an appropriate and effective method to address the navigation safety issues related to the fewer (and smaller) commercial vessels that may now transit the Taunton River and Brightman Street bridges.

Specifically, the NPRM included proposed maximum weather parameters and a proposed requirement for assist tugs for commercial vessels transiting through the two Brightman Street bridges. Those proposed requirements have been removed. Maximum weather parameters are currently defined, when necessary, via a Captain of the Port order. Tug assistance is currently dictated by either the Federal or state licensed pilot directing a commercial vessel through the two Brightman Street bridges, or via a Captain of the Port order on a case by case basis as conditions dictate. The Coast Guard believes those methods are currently sufficient to provide the appropriate level of safety to ensure the safe navigation of vessels through the waterway.

One comment addressed the condition of the fendering system at the old Brightman Street Bridge. The Massachusetts Highway Department, the bridge owner, completed a major renovation project in September 2007 that restored all of the bridge fendering to its original design specifications.

Two comments addressed the physical condition of the old bridge and the navigation concerns related to the waterway configuration resulting from the proximity of the old and new bridges. Specifically, there is only 1100 feet of distance between the bridges, the opening of the old bridge is only 98 feet while the opening of the new bridge is 200 feet, and the openings of the two bridges are not aligned with each other.

This configuration requires a vessel to transit through one opening, stop, be pushed transversely (sideways) by tugs for approximately 100 feet to align with the next bridge opening, and then proceed forward.

One comment stated that it “strongly advocates physical demolition and removal of the existing [Brightman Street] bridge * * *.” Another comment discussed at some length the need to demolish the old bridge once the new bridge was completed. Those comments are more appropriately addressed via the mechanisms contemplated by 33 CFR part 116, “Alterations of Unreasonably Obstructive Bridges.” That part describes the procedures by which the Coast Guard determines a bridge to be an unreasonable obstruction to navigation. Consequently, the Commander, First Guard District, forwarded a letter on April 3, 2006, to Commandant (G-PWB) (currently CG-5411), Coast Guard Headquarters, Washington, DC, to begin the 33 CFR part 116 process regarding the old bridge. On May 8, 2007, the Coast Guard issued a “Navigation Review” regarding the old and new Brightman Street bridges which found, in part, that retention of the old bridge “makes navigation more difficult” in that area of the Taunton River, but recommended no specific action. As a follow-up to this report, the Coast Guard's Office of Bridge Administration will undertake further investigation in accordance with the procedures set forth in 33 CFR part 116. Any such effort, however, is separate and apart from this rulemaking.

One comment suggested:

(1) A reduction in several voice reporting requirements via VHF radio in Narragansett Bay and the Providence River;

(2) Removal of the one-way traffic restriction in the Providence River;

(3) Addition of a voice reporting requirement via VHF radio for vessels in Narragansett Bay either enroute to or from Mount Hope Bay; and

(4) Addition of an under-keel clearance requirement for deep draft vessels transiting Narragansett Bay.

The major dredging project completed by USACE in December 2007 has reduced the need for voice reporting requirements in Narragansett Bay and the Providence River, and removed the need for one-way traffic restrictions in the river. Consequently, the commenter's first two recommendations have been incorporated into this rule.

We believe that voice reporting requirements recommended in the aforementioned comment are prudent and should enhance navigation safety. Accordingly, those reporting requirements are also included in this rule.

The commenter's recommendation for an under-keel clearance requirement was also considered. In the NPRM for this rule, specific maximum drafts were proposed. The maximum drafts varied according to the channel depth in which a vessel was navigating. One comment to the NPRM (the only comment addressing the draft issue) recommended that a blanket minimum under-keel clearance requirement of 10% of a vessel's draft be maintained, which would allow a safety factor to account for variables such as wave height, squat, accuracy of tidal predictions, water density, etc. We re-examined the issue of under-keel clearance and found that under-keel clearance standards are in place in at least one other major port (Los Angeles/Long Beach). Additionally, Federal regulations mandating under-keel clearance for single-hull tank ships (including those calling on Narragansett and Mount Hope bays) already exist at 33 CFR 157.455. We agree that a blanket under-keel clearance requirement is less confusing than the variable draft restrictions proposed in the NPRM. Therefore, we have adopted a standard under-keel clearance requirement in this final rule.

One comment suggested that the Coast Guard's determination that this rulemaking is categorically excluded from further environmental review under the National Environmental Policy Act (NEPA) was incorrect, and that a full NEPA analysis was required. It argued that the proposed regulations create “substantial controversy” because they are “inextricably linked” to the Weaver's Cove LNG proposal.

Another comment disagreed with our finding that the proposed regulations would “not have a substantial economic impact” on small entities. It cited a purported lack of economic analysis of the impact of ship transits with “volatile cargo” and the impact(s) to maritime enterprise of security zones around LNG vessels transiting through Narragansett Bay.

We disagree that further environmental or economic analysis is required. The Coast Guard did conduct a NEPA review of this rule and determined that no additional analysis was necessary based upon the findings that any foreseeable impacts would not be significant. Further economic analysis is not required because the effect of this rule would not be significant: It only removes some more restrictive navigation safety measures, adds a standard under-keel clearance requirement, and modifies already-existing voice reporting requirements in the affected waterways.

This final rule makes the following modifications to the current RNA at 33 CFR 165.122:

1. Remove certain navigation restrictions and minimum visibility requirements in the Providence River, especially for vessels with drafts of 35 feet or greater;

2. Remove the one-way-traffic restriction for vessels over 65 feet in length that currently exists in certain areas of the Providence River;

3. Reduce the number of required SECURITE calls while transiting Narragansett Bay and the Providence River; and

4. Define minimum under-keel clearance requirements for vessels transiting within the RNA.

This final rule was prompted primarily by the completion of a major dredging project in the Providence River. Navigation safety measures implemented in 1994 to address the shoaling in that river are no longer required. This final rule is promulgated under the authority of 33 U.S.C. 1321, pursuant to the re-delegation of that authority contained in 33 CFR 1.05-1(g)(4). Vessels or persons violating this section may be subject to the civil and criminal penalties set forth in 33 U.S.C. 1232.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this rule to be so minimal that a full Regulatory Evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this rule would not be significant as it removes some more restrictive navigation safety measures, adds a standard under-keel clearance requirement, and modifies already-existing voice reporting requirements in the affected waterways. This rule will be entered into the local notice to mariners, and maritime advisories will be broadcast.

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

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

This rule may affect the following entities, some of which might be small entities: the owners or operators of vessels 65 feet in length or greater transiting the waterways of Narragansett Bay and the Providence River.

This rule will not have a significant economic impact on a substantial number of small entities for the following reasons. This rule only modifies current regulations and/or codifies current navigation practices. Because of the changes to the previously proposed regulatory text discussed above, this rule does not impose new requirements which would affect vessels' schedules or their ability to transit the RNA, nor does it require the purchase of any new equipment or the hiring of any additional crew.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction. This rule fits the category selected from paragraph (34)(g), as it establishes a Regulated Navigation Area. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES .

Throughout this document, whenever “we”, “us”, or “our” is used, we mean the EPA.

We are approving a revision to the Texas SIP that adds additional requirements to control VOC emissions from storage tanks, transport vessels and marine vessels in the HGB area, which consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties. The revision was adopted by the State of Texas on May 23, 2007 and submitted to EPA on June 13, 2007. The revision amended Title 30 of the Texas Administrative Code, Chapter 115 (30 TAC 115) by adding a new section 115.110 (Definitions) and revising sections 115.112-115.117, 115.119, 115.541-115.547 and 115.549. The revision requires that tanks and vessels in the HGB area store volatile organic liquids at petroleum refineries, chemical plants, gasoline storage terminals, bulk terminals, pipeline breakout stations, and oil and natural gas production sites under additional controls.

Specifically, for the HGB area the revision requires:

• More stringent controls for tank fittings on floating roof tanks and restrictions on floating roof tank landings;

• Control of VOC flash emissions from crude oil and condensate storage tanks at oil and gas exploration and production sites and pipeline breakout stations with uncontrolled flash emissions greater than 25 tons per year;

• Control of VOC emissions from the degassing of storage tanks with a nominal capacity of 250,000 gallons or more, or with a nominal capacity of 75,000 gallons or more storing liquids with a true vapor pressure greater than 2.6 pounds per square inch absolute (psia);

• Control and monitoring of degassing vapors from storage vessels, transport vessels, and marine vessels; and

• Recordkeeping to validate compliance.

For more information on the requirements please see our Technical Support Document (TSD) found in the electronic docket or 30 TAC 115, Subchapter B, Division 1 (Storage of Volatile Organic Compounds) and Subchapter F, Division 3 (Degassing or Cleaning of Stationary, Marine and Transport Vessels). The electronic docket can be found at the Web site http://www.regulations.gov (Docket number EPA-R06-OAR-2007-0526).

Control of VOC emissions will help the area reduce ambient levels of ozone. Our approval will make the revised regulations federally enforceable. We are approving the revision pursuant to section 110 and part D of the CAA and EPA's regulations.

We are publishing this rule without prior proposal because we view this as a noncontroversial amendment and anticipate no relevant adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the SIP revision if relevant adverse comments are received. This rule will be effective on May 28, 2010 without further notice unless we receive relevant adverse comment by April 28, 2010. If we receive relevant adverse comments, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. We will address all public comments in a subsequent final rule based on the proposed rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so now. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that air quality meets the national ambient air quality standards (NAAQS) established by EPA. NAAQS are established under section 109 of the CAA and currently address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

A SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that the state meets the NAAQS. It is required by section 110 and other provisions of the CAA. A SIP protects air quality primarily by addressing air pollution at its point of origin. A SIP can be extensive, containing state regulations or other enforceable documents, and supporting information such as emissions inventories, monitoring networks, and modeling demonstrations. Each state must submit regulations and control strategies to EPA for approval and incorporation into the federally-enforceable SIP.

Inhaling ozone, even at low levels, can trigger a variety of health problems including chest pains, coughing, nausea, throat irritation, and congestion. It can also worsen bronchitis and asthma, and reduce lung capacity. VOCs and oxides of nitrogen (NO x ) are known as “ozone precursors”, as they react with oxygen and sunlight to form ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors and chemical solvents emit VOC and NO x . Controlling sources of VOC and NO x emissions can lower ozone levels in the ambient air.

On July 18, 1997, we promulgated an 8-hour ozone standard of 0.08 parts per million (ppm), which is more protective than the previous 1-hour ozone standard (62 FR 38855). 1 On April 30, 2004, we published designations and classifications for the 1997 8-hour ozone standard (69 FR 23858). The HGB area, which consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties was classified as a moderate ozone nonattainment area, with an attainment date no later than June 15, 2010. On October 1, 2008, at the request of the Governor of Texas, we reclassified the area as a severe ozone nonattainment area with an attainment date no later than June 15, 2019 (73 FR 56983).

The State of Texas found that certain types of VOC storage tank emissions, including degassing, flash, and floating roof landing loss emissions, have been unreported or underreported in the HGB area. The State revised the VOC control regulations in the SIP to help reduce emissions from these sources in the HGB area. The revision to the SIP was adopted by the State on May 23, 2007 and submitted it to EPA on June 13, 2007.

We have evaluated the Chapter 115 revision and find they enhance the SIP by reducing emissions from VOC storage tanks, transport vessels and marine vessels in the HGB area. We have reached this conclusion because these revisions for the HGB area require additional controls on VOC emissions from these sources. By lowering VOC emissions, these rules will help lower ozone levels in the HGB area. In addition, these revisions improve rules that EPA previously approved (73 FR 10383, February 27, 2008) as meeting the Reasonably Available Control Technology of the Clean Air Act. Therefore, we are finding that these rules continue to implement RACT for this source category. For a discussion of the rules and how the rules improve the SIP see the technical support document for this action. For more information on our evaluation, please see our TSD found in the electronic docket.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 action 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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 28, 2010. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2).)

In a Report and Order (FCC 07-150), the Commission adopted measures to safeguard the Universal Service Fund (“USF”) from waste, fraud, and abuse. Among other actions taken in the Report and Order, the Commission revised the requirement that ETCs maintain certain documentation as long as the consumer receives Lifeline service from the ETC or until the ETC is audited by the Universal Service Administrative Company (“USAC”).

As published, the final regulation inadvertently omitted a sentence from 47 CFR 54.417(a). This error needs to be corrected.