Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-0944; Directorate Identifier 2011-NE-11-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received a report of an engine overspeed during taxi, which resulted in an HPC surge and tailpipe fire. Although the event was not an uncontained engine failure, engine overspeed events compromise the integrity of the rotor and can lead to an uncontained engine failure. Our investigation concluded that the existing FMU is susceptible to a single-point failure condition in which a complete or nearly complete blockage of the FMU servo wash filter could occur. A blockage in the FMU servo wash filter could result in insufficient hydraulic pressure being available to properly control the FMU and actuator functions. Inability to control the FMU and actuator functions, if not corrected, could result in an engine overspeed and an uncontained engine failure and damage to the airplane.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require replacing the FMU, P/N 50U150, at the next shop visit after the effective date of this proposed AD.

We estimate that this proposed AD affects 750 engines installed on airplanes of U.S. registry. We also estimate that it would take about 3.2 work-hours per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $10,698 per engine. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $8,227,500.

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 proceduresthe Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2009-0889; Directorate Identifier 2009-NE-35-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On January 21, 2010, we issued AD 2010-03-06, Amendment 39-16189 (75 FR 5689, February 4, 2010), for all Turbomeca Arriel 2B and 2B1 turboshaft engines. That AD requires checking the transmissible torque between the LP pump impeller and the HP pump shaft on HMUs that do not incorporate Turbomeca Modification TU 147. That AD also requires replacing the HMU, if it fails that check, with an HMU that has not incorporated Modification TU 147 but passes the check, or with an HMU that incorporates Modification TU 147. That AD resulted from several events of uncoupling of the LP fuel pump impeller and the HP fuel pump shaft on Arriel 2 engines which do not incorporate modification TU 147. The uncoupling of the LP fuel pump impeller and the HP fuel pump shaft may lead to reduced engine power or, at worst, an uncommanded IFSD, which can result in a forced autorotation landing or accident.

Since we issued AD 2010-03-06 (75 FR 5689, February 4, 2010), three additional cases of uncoupling of the LP fuel pump impeller and the HP fuel pump shaft have been encountered. However, these failures were in HMUs that were modified to post-TU 147 configuration HMUs, and the investigation indicates that these HMUs that fail the transmissible torque check must also be replaced.

We reviewed Turbomeca Alert Mandatory Service Bulletin (MSB) No. A292 73 2830, Version B, dated July 10, 2009, and Alert MSB No. A292 73 2836, Version A, dated August 17, 2010. The Alert MSBs describe procedures for inspecting and replacing the HMU.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require the checking of the transmissible torque between the LP pump impeller and the HP pump shaft on HMUs. This proposed AD would also require replacing the HMU if it fails the transmissible torque check, with an HMU that is eligible for installation.

Based on the service information, we estimate that this proposed AD would affect about 540 engines installed on helicopters of U.S. registry. We also estimate that it would take about 2.5 work-hours per engine to comply with this proposed AD. The average labor rate is $85 per work-hour. Replacement HMUs would cost about $12,000 per engine. Based on these figures, if all of the HMUs were to fail the check, we estimate the cost of the proposed AD on U.S. operators to be $6,594,750.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2010-0755; Directorate Identifier 2010-NE-12-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

We issued an NPRM to amend 14 CFR part 39 to include an AD that would apply to RR RB211-Trent 800 series turbofan engines. That NPRM published in theFederal Registeron August 3, 2010 (75 FR 45560). That NPRM would have revised the TLM of the RB211-Trent 800 EMMs. That NPRM was prompted by RR reducing the life limits of certain critical engine parts. Revision of the critical part lives has been necessary due to actual operational flight profiles not conforming to those assumed at entry into service and is associated with a revised Flight Profile Monitoring methodology introduced by RR. The methodology was originally based on engine thrust rating but is now based on operating shaft speeds.

Since we issued the previous NPRM (75 FR 45560, August 3, 2010), RR requested that we supersede existing AD 2003-16-18, Amendment 39-13271 (68 FR 49344, August 18, 2003). That AD currently requires a life limit for intermediate-pressure (IP) turbine rotor disc, part number (P/N) FK21117, that is lower than the life limit proposed by this supplemental NPRM. Rolls-Royce plc substantiated their proposed increased life of P/N FK21117 by rig test and analysis.

AD 2003-16-18 (68 FR 49344, August 18, 2003) also reduced the life limit for IP turbine rotor discs, P/N FK33083, and all P/N FK33083 IP turbine rotor discs are no longer in service. RR has accordingly reduced the life for P/N FK33083 discs to zero, effectively removing them as a disc approved for installation in any engine. By revising the previous NPRM (75 FR 45560, August 3, 2010) to supersede AD 2003-16-18, as discussed previously, this proposed AD would make these changes to the life of RR IP turbine rotor disc, P/N FK21117, and RR IP turbine rotor disc, P/N FK33083, mandatory. We have also determined that it is unnecessary to incorporate by reference the TLM of the Trent 800 engine EMMs. We can address the unsafe condition identified in this supplemental NPRM by mandating the reduced lives of the affected parts.

We gave the public the opportunity to comment on the previous NPRM (75 FR 45560, August 3, 2010). We have considered the comments received.

American Airlines and Delta Airlines asked us to change paragraph (e)(1) in the proposed AD from “(1) Revise the airworthiness limitations section (ALS) * * * Time Limits manual (TLM) dated June 15, 2009” to “(1) Revise the airworthiness limitations section (ALS) * * * Time Limits manual (TLM) dated no earlier than June 15, 2009.” The commenters do not want to be forced to use a TLM dated earlier than the one currently in force.

We partially agree. We agree that a more efficient method of revising the life exists, so we changed this proposed AD to specify the revised part lives in Table 1 in the Compliance section of this proposed AD. We do not agree to the requested wording as it leaves compliance with the AD open to future revisions that do not currently exist. We did not change the proposed AD further as a result of this comment.

Delta Airlines asked us to withdraw the NPRM (75 FR 45560, August 3, 2010). Delta Airlines believed the NPRM is redundant because the current TLM already requires using the proposed tasks and life limits.

We do not agree. Although the new life limits are included in the current TLM, the new life limits are reinforced when mandated by an AD. We changed this proposed AD to specify the revised part lives in Table 1 in the Compliance section of this proposed AD.

Rolls-Royce plc asked us to change paragraph (b) of the proposed AD from “None” to “AD 2003-16-18 is superseded by the current AD.”

We agree. We changed paragraph (b) of this proposed AD to state that “This AD supersedes AD 2003-16-18, Amendment 39-13271 (68 FR 49344, August 18, 2003)”.

Rolls-Royce plc has issued Alert Service Bulletin No. RB.211-72-AE935, Revision 7, dated January 19, 2009. The actions described in this service information are intended to correct the unsafe condition identified in this supplemental NPRM.

We are proposing this supplemental NPRM because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. Certain changes described above expand the scope of the previous NPRM (75 FR 45560, August 3, 2010). As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.

This supplemental NPRM would reduce the life limits of certain critical engine parts and would supersede AD 2003-16-18, Amendment 39-13271 (68 FR 49344, August 18, 2003).

Based on the service information, we estimate that this proposed AD would affect about 16 RB211-Trent 800 series turbofan engines of U.S. registry. The average labor rate is $85 per work-hour, but no labor cost is associated with this proposed AD because discs are replaced at scheduled maintenance intervals. Prorated cost of parts would cost about $45,000 per engine. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $720,000.

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 moredetail the scope of the Agency's authority.

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska or;

(4) 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.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-1171; Directorate Identifier 2011-NM-101-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We have received reports of duct assemblies in the ECS with burned BMS 8-39 polyurethane foam insulation on two Model 767-200 series airplanes. The airplane manufacturer has also notified us that certain Model 737-100, -200, -200C, and -300 series airplanes were assembled with duct assemblies in the ECS wrapped with BMS 8-39 or AMS 3570 polyurethane foam insulation. The fire-retardant properties of BMS 8-39 and AMS 3570 polyurethane foam insulation deteriorate with age. This, along with dust, dirt, and other carbon particulate contamination of the insulation on the ducts, adds an available fuel source for a potential fire. Once ignited, the foam insulation emits noxious smoke, does not self-extinguish, and drips droplets of liquefied polyurethane, which can further propagate a fire. Because the insulation is wrapped around the duct assemblies, which are located throughout the airplane, if the insulation is ignited a fire could potentially travel along the ducts and spread throughout the airplane. This condition, if not corrected, could result in ignition of the BMS 8-39 or AMS 3570 polyurethane foam insulation on the duct assemblies of the ECS due to a potential electrical arc, which could start a small fire and lead to a larger fire that may spread throughout the airplane through the ECS.

On January 14, 2008, we issued AD 2008-02-16, Amendment 39-15346 (73 FR 4061, January 24, 2008), applicable to certain Model 767-200 and 767-300 series airplanes.

On June 17, 2010, we issued AD 2010-14-01, Amendment 39-16344 (75 FR 38007, July 1, 2010), applicable to certain Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400F, 747SR, and 747SP series airplanes.

AD 2008-02-16, Amendment 39-15346 (73 FR 4061, January 24, 2008), and AD 2010-14-01, Amendment 39-16344 (75 FR 38007, July 1, 2010), require reworking certain duct assemblies in the ECS. These ADs resulted from reports of duct assemblies in the ECS with burned BMS 8-39 polyurethane foam insulation. These ADs also resulted from reports from the airplane manufacturer that airplanes were assembled with duct assemblies in the ECS wrapped with BMS 8-39 polyurethane foam insulation, a material with fire-retardant properties that deteriorate with age. We issued these ADs to prevent a potential electrical arc from igniting the BMS 8-39 polyurethane foam insulation on the duct assemblies of the ECS, which could propagate a small fire and lead to a larger fire that might spread throughout the airplane through the ECS.

We reviewed Boeing Service Bulletin 737-21A1132, Revision 3, dated February 16, 2011. This service bulletin describes procedures for reworking and part-marking the following affected duct assemblies ECS systems. The rework includes doing a pressure and leak test following installation of the new insulation.

• Captain's outlet air distribution ducts

• Control cabin air distribution ducts

• Distribution manifold

• Passenger air distribution gasper air ducts

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and the Service Information.”

Boeing Service Bulletin 737-21A1132, Revision 3, dated February 16, 2011, recommends reworking the affected duct assemblies “during the next heavy maintenance check, within 24,000 flight-hours from the date on this service bulletin.” This proposed AD would require operators to rework the affected duct assemblies within 72 months after the effective date of the AD. In developing the compliance time for this action, we considered the degree of urgency associated with addressing the subject unsafe condition. We also considered the availability of required parts and the practical aspect of reworking the affected duct assemblies within an interval that parallels normal scheduled maintenance for most affected operators. The average heavy maintenance schedule for the affected fleet is between 60 and 72 months; therefore, the proposed compliance time of 72 months is equivalent to the recommended compliance time of “during the next heavy maintenance check, within 24,000 flight-hours,” and it represents an appropriate interval in which an ample number of required parts will be available to modify the affected fleet without adversely affecting the safety of these airplanes. This difference has been coordinated with the Boeing Company.

We estimate that this proposed AD affects 292 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska, and

(4) 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.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-1169; Directorate Identifier 2010-NM-050-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0269R1, dated March 11, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Fokker Services B.V. has issued:

• Fokker Service Bulletin SBF100-32-155, dated July 23, 2009;

• Fokker Service Bulletin SBF100-32-097, dated September 30, 1995;

• Fokker Service Bulletin SBF100-32-132, dated December 5, 2001; and

• Fokker Service Bulletin SBF100-32-156, Revision 1, dated June 29, 2009.

Messier-Dowty has issued Service Bulletin F100-32-112, dated July 17, 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 4 products of U.S. registry. We also estimate that it would take about 30 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $520,000 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,090,200, or $522,550 per product.

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2011-1170; Directorate Identifier 2010-NM-264-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

On December 28, 2008, we issued AD 2009-02-04, Amendment 39-15794 (74 FR 7792, February 20, 2009). That AD required actions intended to address an unsafe condition on all Airbus Model A300-600 airplanes.

Since we issued AD 2009-02-04, Amendment 39-15794 (74 FR 7792, February 20, 2009), Airbus has issued new service information to correct interference between sensors and a fuel pipe at the connector level. We have determined that the following actions are necessary:

• Replacing the cockpit MTI,

• Replacing the high-level, low-level, and overflow sensors and their harness connectors with fused sensors and new harness connectors,

• Reinstating the low-level warning indication to the cockpit MTI, and

• Adding Model A310 series airplanes to the applicability of this proposed AD. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0175, dated August 18, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The following service information has been issued. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

• Airbus Mandatory Service Bulletin A300-28-6095, Revision 01, dated February 2, 2010.

• Airbus Mandatory Service Bulletin A300-28-6101, dated June 4, 2008.

• Airbus Mandatory Service Bulletin A300-28-6103, Revision 01, dated May 18, 2010.

• Airbus Mandatory Service Bulletin A310-28-2167, dated June 4, 2008.

• GE Aviation Service Bulletin 1404KID-28-466, Revision 1, dated July 15, 2008.

• GE Aviation Service Bulletin 1406KID-28-467, Revision 1, dated July 15, 2008.

• GE Aviation Service Bulletin 1410KID-28-468, Revision 1, dated July 15, 2008.

• GE Aviation Service Bulletin 1420KID-28-469, Revision 1, dated July 23, 2008.

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 210 products of U.S. registry.

The actions that are required by AD 2009-02-04, Amendment 39-15794 (74 FR 7792, February 20, 2009) and retained in this proposed AD take about 5 work-hours per product, at an average labor rate of $85 per work hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the currently required actions is $425 per product.

We estimate that it would take about 44 work-hours per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $207 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $828,870, or $3,947 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 thatsection, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

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

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

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

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

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

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

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

Comments Invited

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2011-1014 and Airspace Docket No. 11-AAL-19) and be submitted in triplicate to the Docket Management Facility (seeADDRESSESsection for address and phone number). You may also submit comments through the Internet athttp://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2011-1014 and Airspace Docket No. 11-AAL-19.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet athttp://www.regulations.gov.Recently published rulemaking documents can also be accessed through the FAA's web page athttp://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (seeADDRESSESsection for address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 1601 Lind Avenue SW., Renton, WA 98057.

Persons interested in being placed on a mailing list for future NPRMs shouldcontact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

Docket No. FAA-2011-0010, Airspace Docket No. 11-AAL-1 published on April 28, 2011 (76 FR 23687), that amends all Alaska Federal Airways affected by the relocation of the Anchorage VOR navigation aid, subsequently had the effective date delayed until further notice (76 FR 35097; June 16, 2011). The FAA then determined that V-320 and V-440 did not have satisfactory signal reception coverage in the vicinity of Anchorage, AK, and removed them from the rule, to be amended in a future rulemaking (76 FR 65106; October 20, 2011). This action would amend the above airways as the signal reception of the relocated navigation aid is satisfactory to meet Minimum Enroute Altitude (MEA) requirements.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 to amend Alaska Federal airways V-320 and V-440. The airway descriptions would reflect the Anchorage VOR relocation from Fire Island, AK, to Ted Stevens Anchorage International Airport, Anchorage, AK. Additionally, the proposed descriptions incorporate new navigation aid radials to describe airway intersections necessary to retain a 10,000 feet MEA currently used by air traffic control for instrument flight rules aircraft in the vicinity of Anchorage, AK.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Federal airways in Alaska.

Alaskan VOR Federal Airways are published in paragraph 6010(b) of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The domestic VOR Federal Airways listed in this document will be published subsequently in the Order.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

Background

On July 15, 2011, as part of the Administration's ongoing Export Control Reform Initiative, BIS published a proposed rule (76 FR 41958) (“the July 15 proposed rule”) that set forth a framework for how articles the President determines, in accordance with section 38(f) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(f)), would no longer warrant control on the United States Munitions List (USML) instead would be controlled on the Commerce Control List (CCL). With that proposed rule, BIS also described its proposal for how military vehicles and related articles in USML Category VII that no longer warrant control under the USML would be controlled on the CCL.

Following the structure of the July 15 proposed rule, this proposed rule describes BIS's proposal for how a second group of items—various military aircraft and related articles that are controlled by USML Category VIII—would be controlled on the CCL. The proposed changes described in this proposed rule and the State Department's proposed amendment to Category VIII of the USML are based on a review of Category VIII by the Defense Department, which worked with the Departments of State and Commerce in preparing the proposed amendments. The review was focused on identifying the types of articles that are now controlled by USML Category VIII that are either (i) Inherently military and otherwise warrant control on the USML or (ii) if it is a type common to civil aircraft applications, possess parameters or characteristics that provide a critical military or intelligence advantage to the United States, and that are almost exclusively available from the United States. If an article satisfied one or both of those criteria, the article remained on the USML. If an article did not satisfy either standard but was nonetheless a type of article that is, as a result of differences in form and fit, “specially designed” for military applications, then it was identified in the new ECCNs proposed in this notice. The licensing policies and other EAR-specific controls for such items also described in this notice would enhance national security by (i) Allowing for greater interoperability with our NATO and other allies while still maintaining and expanding robust controls and, in some cases, prohibitions on exports or reexports to other countries and for proscribed end users and end uses; (ii) enhancing our defense industrial base by, for example, reducing the current incentives for foreign companies to design out or avoid U.S.-origin ITAR-controlled content, particularly with respect to generic, unspecified parts and components; and (iii) permitting the U.S. Government to focus its resources on controlling, monitoring, investigating, analyzing, and, if need be, prohibiting exports and reexports of more significant items to destinations, end uses, and end users of greater concern than our NATO allies and other multi-regime partners.

Pursuant to section 38(f) of the AECA, the President shall review the USML “to determine what items, if any, no longer warrant export controls under” the AECA. The President must report the results of the review to Congress and wait 30 days before removing any such items from the USML. The report must “describe the nature of any controls to be imposed on that item under any other provision of law.” 22 U.S.C. 2778(f)(1). This proposed rule describes how certain military aircraft and related articles in USML Category VIII would be controlled by the EAR and its CCL if the President determines that the articles no longer warrant control on the USML.

In the July 15 proposed rule, BIS proposed creating a series of new ECCNs to control items that would be moved from the USML to the CCL, or that are items from the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual Use Goods and Technologies Munitions List (Wassenaar Arrangement Munitions List or WAML) that are already controlled elsewhere on the CCL. The proposed rule referred to this series as the “600 series” because the third character in each of the new ECCNs would be a “6.” The first two characters of the 600 series ECCNs serve the same function as any other ECCN as described in § 738.2 of the EAR. The first character is a digit in the range 0 through 9 that identifies the Category on the CCL in which the ECCN is located. The second character is a letter in the range A through E that identifies the product group within a CCL Category. In the 600 series, the third character is the number 6. With few exceptions, the final two characters identify the WAML category that covers items that are the same or similar to items in a particular 600 series ECCN.

BIS will publish additionalFederal Registernotices containing proposed amendments to the CCL that will describe proposed controls for additional categories of articles the President determines no longer warrant control under the USML. The State Department will publish concurrently proposed amendments to the USML that correspond to the BIS notices. BIS will also publish proposed rules to further align the CCL with the WAML and the Missile Technology Control Regime Equipment, Software and Technology Annex.

In addition to the proposals mentioned above, this proposed rule would make the following modifications to the July 15 proposed rule.

• Additions to proposed paragraph (a)(13) in § 740.2;

• Changes to the proposed Note to paragraph (c)(1) in § 740.20;

• Changes to ECCNs 9A018, 9D018 and 9E018;

• Addition of new Category 9 600 series ECCNs to § 742.6(a)(1); and

• Changes in eligible users for 600 Series under License Exception STA in § 740.2(a)(13).

A complete discussion of these modifications is described in the section “Scope of this Proposed Rule.” BIS will consider comments on the original proposals only for the specific paragraph, note, and ECCNs referenced above, and only in the context of the proposed rule's modifications to them.

This proposed rule would create five new 600 series ECCNs in CCL Category 9—9A610, 9B610, 9C610, 9D610, and 9E610—that would control articles the President determines no longer warrant control under USML Category VIII. Consistent with the regulatory construct identified in the July 15 proposed rule, this rule also would move items currently classified under ECCNs 9A018, 9D018, and 9E018 to the new ECCNs. As part of the proposed changes, these three 018 ECCNs would cross-reference the new classifications in the 600 series. As noted in the July 15 proposed rule, moving items from 018 ECCNs to the appropriate 600 series ECCNs would consolidate WAML and formerly USML items into one series of ECCNs.

The rule would also create a new Supplement No. 4 to part 740 that would prohibit the use of License Exceptions STA or GOV to export or reexport, except to U.S. government agencies or personnel, ECCN 9D610 software and ECCN 9E610 technology (other than “build-to-print technology”) for the production of specific types of parts and components classified under ECCN 9A610.x.

License Exception STA under § 740.20(c)(1) generally would be available for eligible end items (as described in § 740.20(g) of the July 15 proposed rule) and all other 600 series items if, at the time of export, reexport or transfer (in-country) the item is destined (i) For ultimate end use by the armed forces, police, paramilitary, law enforcement, customs, correctional, fire, and search and rescue agencies of a government in one of the § 740.20(c)(1) countries (the “STA-36”) or of the United States Government; or (ii) for the “production” or “development” of an item for ultimate end use by any of those foreign government agencies in any of the thirty-six § 740.20(c)(1) countries, by the United States Government, or by any person in the United States. This condition means that exports and reexports to non-governmental end users in one of the STA-36 countries under STA would be permissible so long as the item at issue would ultimately be provided to, or for the production or development of an item to be provided to and for end use by, any of the foregoing agencies of a government of a STA-36 country, the United States Government, or any person in the United States. This eligibility under License Exception STA is proposed because the U.S. Government recognizes that there would be a significant volume of desirable trade between and among private companies in the STA-36 countries regarding “600 series” end items that would ultimately be for use by one of the foregoing government agencies of an STA-36 country, the United States Government, and manufacturers in the United States. This proposal protects U.S. export control interests while at the same time facilitating permissible exports, reexports, and transfers (in-country) with the governments of the STA-36 countries and the United States. BIS particularly welcomes comments on the types of government agencies that would be eligible to ultimately receive items through this license exception. If, for example, there are types of agencies or persons that have been omitted from this list but that commenters believe should be included, commenters should provide BIS with this information, including specific examples of such agencies or persons.

The proposed changes are discussed in more detail below.

Certain military aircraft and related articles the President determines no longer warrant control in USML Category VIII would be controlled under proposed new ECCNs 9A610, 9B610, 9C610, 9D610, and 9E610. These new ECCNs follow the 600 series construct identified in the July 15 proposed rule.

Paragraphs .a through .k of ECCN 9A610 would consist of “end items,” as that term was defined in the July 15 proposed rule, and some types of related parts, components, accessories, attachments, equipment, and systems. Paragraphs .b, .c, .d, and .e would be reserved to make paragraphs .f through .i align with paragraphs on the WAML covering similar items. Paragraphs .l, .m, and .n would control Unmanned Aerial Vehicle (UAV)-related items that are not identified on the USML or the WAML, but which are identified on the Missile Technology Control Regime (MTCR) Equipment, Software and Technology Annex and which are proposed to be subject to the MT Column 1 reason for control. Paragraphs .o through .w would be reserved for possible future use. Paragraph .x would consist of parts, components, accessories and attachments (including certain unfinished products that have reached a stage in manufacturing where they are clearly identifiable as commodities controlled by paragraph .x) that are “specially designed” for a commodity in paragraphs .a through .k or a defense article in USML Category VIII. Paragraph .y would consist of 25 specific types of commodities that, if specially designed for a commodity subject to control in this 9A610 or a defense article in USML Category VIII, warrant less strict controls because they have little or no military significance. Commodities listed in paragraph .y would be controlled for antiterrorism (AT Column 1) reasons, which imposes a license requirement for five countries and, in accordance with the July 15 proposed rule, if destined for a military end use to the People's Republic of China, as described in § 744.21.

This proposed rule does not add aircraft gas turbine engines to the proposed new ECCN 9A610. Instead, the Administration plans to issue a proposed rule later that would describe the U.S. Government's controls on gas turbine engines and related items for military aircraft, ships, and vehicles, which is currently anticipated to be new ECCN 9A619. Although this numbering deviates slightly from the WAML numbering approach, BIS believes that it would be more efficient to list all 600 series controls for gas turbine engines and related items in one ECCN. The anticipated new ECCN will correspond to a new USML Category XIX that the State Department would propose creating to control USML-controlled gas turbine engines and related articles. When BIS publishes the proposed rule to address gas turbine engines and related items for military aircraft, missiles, ships, and vehicles, cross references to the proposed new ECCN would be added to the new ECCNs proposed by this rule.

ECCN 9B610.a would consist of test, inspection, and production equipment specially designed for the development or production of aircraft and related commodities and articles controlled by ECCN 9A610 or USML Category VIII. ECCN 9B610.b would consist of environmental test facilities designed or modified for military aircraft and related commodities. These new ECCN paragraphs would also implement WAML Category 18, which applies to production equipment and components for items on the WAML generally, with respect to production equipment for military aircraft, and environmental test facilities for such aircraft and related commodities. ECCN 9B610.c would implement a Missile Technology Control Regime control on production facilities specially designed for certaintypes of Unmanned Aerial Vehicles or drones.

ECCN 9C610 would consist of materials specially designed for aircraft and related commodities controlled by ECCN 9A610 that are not specified elsewhere on the CCL, such as in CCL Category 1, or on the USML. USML subcategory XIII(f) would continue to control structural materials “specifically designed, developed, configured, modified, or adapted for defense articles,” such as aircraft controlled by USML subcategory VIII(a). The State Department plans to publish a proposed revision to XIII(f) that would make it a more positive list of the structural materials that are controlled by USML XIII(f). When that occurs, BIS will publish a corresponding proposed revision to ECCN 9C610 so that it controls such items specially designed for ECCN 9A610 items and USML Category VIII items that are not positively listed in any revised USML XIII(f).

ECCN 9D610 would consist of software specially designed for commodities in 9A610, 9B610, or 9C610. ECCN 9D610 would also contain a “Note to License Exceptions Section” referring readers to the proposed Supplement No. 4 to part 740, which would limit the use of License Exceptions GOV and STA for ECCN 9D610 software for the production or development of 15 types of parts and components.

ECCN 9E610 would consist of technology that is required commodities in 9A610, 9B610, 9C610, or software 9D610. ECCN 9E610 would also contain a “Note to License Exceptions Section” referring to proposed Supplement No. 4 to part 740, discussed below, which would limit the use of License Exceptions GOV and STA for ECCN 9E610 technology (other than “build-to-print technology”) for the production of 15 types of ECCN 9A610.x parts and components.

ECCNs 9A610, 9B610, 9C610, 9D610, and 9E610 would each have a special paragraph designated “.y.99” to cover items that would otherwise fall within the scope of one of the ECCNs because, for example, they were “specially designed” for a military use, but which (i) Had been previously determined by the Department of State to be subject to the EAR and (ii) were not listed on the CCL. Items in these .y.99 paragraphs would be subject to antiterrorism controls.

Items currently classified under ECCN 9A018 paragraphs .a, .c, .d, .e and .f would be moved to ECCN 9A610. In conjunction with the establishment of the new ECCN 9X610 entries and consistent with the July 15 proposed rule's statement that 018 entries would remain in the CCL for a time, but only for cross-reference purposes, this rule would amend ECCNs 9A018, 9D018, and 9E018 to be solely cross references to the new 600 series ECCNs that cover the items currently in those 018 ECCNs. ECCN 9A018 would refer to ECCN 9A610 for aircraft related commodities (i.e.,for items currently classified under ECCN 9A018 paragraphs .a, .c, .d, .e, and .f). Similarly, for all items other than those applying to ground vehicles, ECCN 9D018 would refer to ECCN 9D610 for software, and ECCN 9E018 would refer to ECCN 9E610 for technology.

This proposed rule would remove § 770.2(i) “Interpretation 9 Civil aircraft and Civil aircraft equipment (including parts, accessories, attachments, components and related training equipment).” That section explains the licensing authorities of the Departments of State and Commerce with respect to aircraft and related items. It would no longer be needed given the text of proposed ECCN 9A610.

In the July 15 proposed rule, BIS proposed moving items classified under ECCN 9A018.b (certain ground vehicles) to newly proposed ECCN 0A606.b.4. With that rule, BIS identified a corresponding proposed amendment to ECCN 9A018 that cross-referenced ECCN 0A606.b.4 for former ECCN 9A018.b items. This rule proposes to further amend ECCN 9A018, maintaining the proposed reference to ECCN 0A606.b.4 for items currently classified under ECCN 9A018.b and cross-referencing ECCN 9A610 for all other items currently classified under ECCN 9A018 (i.e.,items classified under ECCN 9A018.a, .c, .d, .e and .f).

The July 15 proposed rule indicated that software and technology applying to ground vehicle-related commodities, currently classified under ECCNs 9D018 and 9E018, would be classified under newly proposed ECCNs 0D606 and 0E606. However, the July 15 proposed rule did not propose cross-referencing language to be included in ECCNs 9D018 and 9E018. As noted above, BIS is now proposing amendments to ECCNs 9D018 and 9E018 to cross-reference ECCNs 9D610 and 9E610, for software and technology applying to those classified under ECCN 9A018 paragraphs .a, .c, .d, .e and .f. In conjunction with this proposal, BIS is also proposing amendments to ECCNs 9D018 and 9E018 that reference ECCNs 0D606 and 0E606 for software and technology applying to those items classified under ECCN 9A018.b.

Certain software and technology related to parts and components covered by .x items paragraphs of 600 series ECCNs warrant more restrictive license exception applicability than other software and technology currently on the CCL. This rule proposes creating a new Supplement No. 4 to Part 740 (600 Series Items Subject to Limits Regarding License Exceptions GOV and STA) that would identify 600 series items that may not be exported, reexported, or transferred (in-country) pursuant to License Exceptions STA (§ 740.20 of the EAR) or GOV (§ 740.11 of the EAR). The supplement would be structured to list by CCL category the items for which license exception applicability is limited.

New Supplement No. 4 to part 740 would list 15 types of parts and components that would be classified under new ECCN 9A610.x and would state that License Exception STA (§ 740.20 of the EAR) may not be used to export, reexport, or transfer (in-country) any software classified under ECCN 9D610 or technology classified under ECCN 9E610—other than “build-to-print technology”—for the production or development of any types of the listed ECCN 9A610.x parts and components. Further, the supplement would state that License Exception GOV, other than the paragraphs that authorize shipments to U.S. government agencies for official use or U.S. government personnel for personal use or official use (§ 740.11(b)(2)(i) and (ii) of the EAR), is not available for the export or reexport of software and technology (other than “build-to-print technology”) for the production or development of the ECCN 9A610.x parts and components listed in the supplement.

A new note to § 740.20(c)(1) would be added, and § 740.2(a)(13) would be clarified regarding the License Exception STA eligibility of end items and all other 600 series items. In the July 15 proposed rule, the export of a 600 series item is eligible for License Exception STA if, at the time of export, reexport or transfer (in-country), the item is destined for ultimate end use by the armed forces, police, paramilitary, law enforcement, customs and border protection, correctional, fire, and search and rescue agencies of a government in one of the STA-36 countries. This proposed rule would make 600 series items eligible for License Exception STA for such uses and also when exported, reexported, or transferred for the production or development of an item for ultimate end use by a STA-36country government agency, by the United States Government, or by a person in the United States. In addition this proposed rule would replace the phrase “customs and border protection” with the phrase “customs” because BIS believes that the latter more accurately describes the practice of most governments. This clarification would make no change to the STA restrictions in § 740.20(b)(2), including the restriction that prohibits use of STA for missile technology (MT) controlled items.

A new definition for “build-to-print technology” would be added to § 772.1. This definition is needed to add precision to that term as used in new Supplement No. 4 to part 740.

This rule proposes amending License Exception GOV (§ 740.11) by adding references to the new proposed Supplement No. 4 to Part 740 supplement's prohibitions in paragraphs (a)(5), (b)(2)(iii)(A), (b)(2)(iv)(A), and (c)(2)(iv), as well as in a note to (d)(1). Similarly, this rule proposes to amend License Exception STA (§ 740.20) by adding a reference to the proposed prohibitions in paragraph (b)(3).

As discussed in further detail below, the July 15 proposed rule stated that one reason for control for items classified in the 600 series is Regional Stability Column 1. Items classified under proposed ECCN 9A610, other than ECCN 9A610.y items, as well as related technology and software classified under ECCNs 9D610 and 9E610, would be controlled for this reason, among others. Correspondingly, this proposed rule would revise § 742.6 of the EAR to apply the RS Column 1 licensing policy to commodities classified under ECCN 9A610, 9B610, 9C610 (except paragraphs .y of those ECCNs), and to related software and technology classified under ECCNs 9D610 and 9E610. This proposed rule would also amend the RS Column 1 licensing policy to impose a general policy of denial for “600 series” items if the destination is subject to a United States arms embargo and a general policy of denial for items specially designed or required for F-14 aircraft.

As referenced above, the purpose of the July 15 proposed rule was to set up the framework for creating ECCNs that would cover articles that the President determines no longer warrant coverage on the USML, but for which export control under the EAR is appropriate. To facilitate that goal, the July 15 proposed rule contained definitions and concepts that were meant to be applied across Categories. However, as BIS undertakes rulemakings to move specific categories of items from the USML to the CCL, there may be unforeseen issues or complications that may require BIS to reexamine those definitions and concepts. The comment period for the July 15 proposed rule closed on September 13, 2011.

To the extent that this rule's proposals affect any provision in July 15 proposed rule or the July 15 proposed rule's provisions affect this proposed rule, BIS will consider comments on those provisions so long as they are in the context of the changes proposed in this rule. For example, BIS will consider comments on how the movement of Category VIII items from the USML to the CCL affects a definition, restriction, or provision that was contained in the July 15 proposed rule. BIS will also consider comments on the impact of a definition of a term in the July 15 proposed rule when that term is used in this proposed rule. BIS will not consider comments of a general nature regarding the July 15 proposed rule that are submitted in response to this rulemaking.

BIS believes that the following aspects of the July 15 proposed rule are among those that could affect this proposed rule:

•De minimisprovisions in § 734.4;

• Definitions of terms in § 772.1;

• Restrictions on use of license exceptions in §§ 740.2, 740.10, 740.11, and 740.20;

• Change to national security licensing policy in § 742.4;

• Requirement to request authorization to use License Exception STA for end items in 600 series ECCNs and procedures for submitting such requests in §§ 740.2, 740.20, 748.8 and Supp. No. 2 to part 748;

• Licensing policy in § 742.4(b)(1)(ii); and

• Addition of 600 series items to Supplement No. 2 to Part 744—List of Items Subject to the Military End-Use Requirement of § 744.21.

BIS believes that the following aspects of this proposed rule are among those that could affect the provisions of the July 15 proposed rule:

Addition of U.S. arms embargo policy regarding 600 series items set forth in § 742.4(b)(1)(ii) (national security) of the July 15 proposed rule to § 742.6(b)(1) (regional stability) of this proposed rule;

• Addition of denial policy regarding 600 series items for F-14 aircraft set forth in § 742.6(b)(1) of this proposed rule.

In December 2010, the Departments of Commerce and State published Advanced Notices of Proposed Rulemaking that described the Administration's plan to make the USML and the CCL positive, tiered, and aligned so that they eventually can be combined into a single control list (See“Commerce Control List: Revising Descriptions of Items and Foreign Availability,” 75 FR 76664 (Dec. 9, 2010) and “Revision to the United States Munitions List,” 75 FR 76935 (Dec. 10, 2010)). This remains one of the Administration's ultimate Export Control Reform objectives. In order to reach more quickly the national security objectives described above, the Administration has decided, as an interim step, to propose revisions to both the USML and the CCL to make them more objective, but to delay its plan to tier the export control regime until a later date. The most significant aspect of the more positive proposed USML categories is that they would not contain controls on all generic “parts,” “components,” “accessories,” and “attachments” that were in any way “specifically designed or modified” for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, they would contain a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. All other parts, components, accessories, and attachments “specially designed” for a defense article would become subject to the new 600 series controls on the CCL as described in the July 15 proposed rule. The Administration will also propose revisions to the jurisdictional status of certain militarily less significant end items that do not warrant USML control, but the primary impact would be with respect to current USML controls on parts, components, accessories, and attachments that no longer warrant USML control.

Based, in part, on a review of the comments received in response to the December 2010 notices, the Administration also has determined that fundamentally altering the structure of the USML by tiering and aligning it on a category-by-category basis would significantly disrupt the export control compliance systems and procedures of exporters and reexporters. For example, until the entire USML is revised and becomes final, some USML categorieswould follow the legacy numbering and control structures while the newly revised categories would follow a completely different numbering structure. The only way to alleviate this impact would be to delay implementation until all categories are complete or to proceed with building positive lists now and returning to structural changes once complete. In order to allow for the national security benefits to flow from re-aligning the jurisdictional status of defense articles that no longer warrant control on the USML on a category-by-category basis while minimizing the impact on exporters' internal control and jurisdictional and classification marking systems, the Administration plans to proceed on a category-by-category basis with the approach described in this proposed rule.

Finally, in order to prevent any aircraft-related commodity specially designed for a military use that is not described in the proposed revisions to the USML from inadvertently dropping out of the U.S. Government's export controls, the rule proposes to use the catch-all phrase “specially designed,” as defined in the July 15 proposed rule, in the new ECCNs to control commodities not otherwise identified on the revised USML or elsewhere in the ECCN. The primary examples of this approach are ECCN 9A610.a, which controls any aircraft “specially designed” for a military use not identified on the USML or elsewhere on the CCL, and ECCN 9A610.x, which controls any part, component, accessory, or attachment “specially designed” for a military aircraft and not otherwise identified on the USML or elsewhere in the CCL. This approach is also part of a core objective of the Export Control Reform Initiative, which is to create a bright jurisdictional line between the USML and the CCL. As evidenced by the proposed revisions to USML Category VIII published by the State Department concurrently with this proposed rule, the Administration is following through on its commitment that the USML not contain generic, catch-all controls on every “part,” “component,” “accessory,” or “attachment” that is in any way specifically designed, modified, adapted, or configured, regardless of its military significance, for a defense article. The proposed USML revision is a substantially more positive list than the current list. Thus, to the extent an item is “specially designed” for a military use, it is subject to a 600 series ECCN in the EAR unless specifically identified on the ITAR's USML.

BIS believes that the principal effect of this rule will be to provide greater flexibility for exports and reexports to NATO member countries and other multiple-regime-member countries of items the President determines no longer warrant control on the United States Munitions List. This greater flexibility will be in the form of: application of the EAR'sde minimisthreshold principle for items constituting less than ade minimisamount of controlled U.S.-origin content in foreign made items; availability of license exceptions, particularly License Exceptions RPL and STA; elimination of the requirements for manufacturing agreements and technical assistance agreements in connection with exports of technology; and a reduction in or elimination of exporter and manufacturer registration requirements and associated registration fees. Some of these specific effects are discussed in more detail below.

Section 734.3 of the EAR provides,inter alia,that under certain conditions items made outside the United States that incorporate items subject to the EAR are not subject to the EAR if they do not exceed a “de minimis” percentage of controlled U.S. origin content. Depending on the destination, thede minimispercentage can be either 10 percent or 25 percent. If the July 15 proposed rule's amendments at § 734.4 of the EAR are adopted, the new ECCNs 9A610, 9B610, 9C610, 9D610 and 9E610 proposed in this rule would be subject to thede minimisprovisions set forth in the July 15 proposed rule because they would be “600 series” ECCNs. Foreign-made items incorporating items in the new ECCNs would become eligible forde minimistreatment at the 10 percent level. The AECA does not permit the ITAR to have ade minimistreatment for these USML-listed items, regardless of the significance or insignificance of the item. Foreign-made items incorporatinganyitems that currently are classified under ECCN 9A018 would be subject to the EAR if those foreign made items contain more than 10 percent U.S. origin controlled content, regardless of the destination and regardless of the proportion of the U.S. origin controlled content accounted for by the former ECCN 9A018 items.

The July 15 proposed rule would impose certain limits for 600 series items moving from existing 018 controls on the CCL. BIS believes that even with the July 15 proposed restrictions on the use of license exceptions and the additional restrictions identified in this proposed rule, restrictions on items currently on the USML would be reduced, particularly with respect to exports to NATO members and multiple-regime member countries, if those items were moved from the USML to proposed ECCN 9A610. BIS also believes that, in practice, the movement of items from ECCN 9A018 to ECCN 9A610 would have little effect on license exception availability for those items because existing restrictions or the terms of the license exceptions themselves already preclude most transactions that would be precluded by the July 15 proposed amendments to § 740.2 of the EAR. However, BIS is aware of two situations (the use of License Exceptions GOV and STA) in which movement of items in ECCN 9A018 to ECCN 9A610 could, in practice, impose greater limits on use of license exceptions than currently is the case.

First, the July 15 proposed rule would limit use of License Exception GOV for 600 series commodities to situations in which the United States Government is the consignee and end user or to situations in which the consignee or end user is the government of a country listed in § 740.20(c)(1). Currently, commodities classified under ECCN 9A018 may be exported under any provision of License Exception GOV to any destination authorized by that provision if all of the conditions of that provision are met and nothing else in the EAR precludes such shipment.

Second, the July 15 proposed rule would limit use of License Exception STA for “end items” in 600 series ECCNs to those end items for which a specific request for License Exception STA eligibility, filed in conjunction with a license application, has been approved and would require that the end item be for ultimate end use by a foreign government agency of a type specified in the July 15 proposed rule. The July 15 proposed rule also would limit exports of 600 series parts, components, accessories, and attachments under License Exception STA for ultimate end use by the same set of end users. Neither restriction currently applies to use of License Exception STA for commodities classified under ECCN 9A018. In addition, the July 15 proposed rule would limit shipment of 600 series items under License Exception STA to destinations listed in § 740.20(c)(1). Currently, commodities classified under ECCN 9A018.c, .d, .e, and .f (which would be moved to ECCN 9A610 underthis proposed rule) and related software and technology (currently classified under ECCNs 9D018 and 9E018, and proposed to move to new ECCNs 9D610 and 9E610) may be shipped under License Exception STA to destinations listed in § 740.20(c)(1) or (c)(2).

The Administration has stated since the beginning of the Export Control Reform Initiative that the reforms will be consistent with the obligations of the United States to the multilateral export control regimes. Accordingly, the Administration will, in this and subsequent proposed rules, exercise its national discretion to implement, clarify, and, to the extent feasible, align its controls with those of the regimes. For example, the proposed ECCN 9A610 tracks, to the extent possible, the numbering structure and text of WAML category 10 pertaining to military aircraft not subject to the ITAR. It also implements in 9A610.x the controls in WAML category 16 for forgings, castings, and other unfinished products; in 9B610.a and .b the controls in WAML category 18 for production equipment; in 9D610 the applicable controls in WAML category 21 for software; and in 9E610 the applicable controls in WAML category 22 for technology.

This proposed rule would identify the specific paragraphs in proposed ECCNs 9A610, 9B610, 9D610, and 9E610 that list items that are also on the MTCR Equipment, Software and Technology Annex and apply the MT Column 1 reason for control to those paragraphs. This action would impose the missile technology based license requirements and licensing policy of § 742.5 of the EAR to those items. Those items are currently subject to the ITAR, which does not specify the multilateral regime on which a license requirement is based. Listing these items on the CCL with the reason for control stated will correlate the underlying MTCR control with export license requirements and licensing policy.

Pursuant to the framework identified in the July 15 proposed rule, commodities classified under ECCN 9A610 (other than ECCN 9A610.l, .m, .n, and. y), along with related test, inspection and production equipment, materials, software and technology classified under ECCNs 9B610, 9C610, 9D610 and 9E610 (other than ECCNs 9B610.c. and 9X610.y) would be subject to the licensing policies set forth in § 742.4(b)(1) (national security, column 1). Commodities classified under ECCN 9A610.l, .m and .n, along with related test, inspection and production equipment, software and technology classified under ECCNs 9B610.c, 9D610 and 9E610 would be subject to the licensing policy set forth in § 742.5(b) (missile technology) because they are listed on the Missile Technology Control Regime Equipment, Software and Technology Annex. They would not be subject to national security controls because they are not identified on the WAML. All commodities in ECCN 9A610 (other than 9A610.y which is subject to an antiterrorism reason for control only and the prohibitions in Part 744) along with related test, inspection and production equipment, materials, software and technology classified under ECCNs 9B610, 9C610, 9D610 and 9E610 (other than 9X610.y) would be subject to the licensing policies set forth in § 742.6(a)(1) (regional stability, column 1).

The July 15 proposed rule would change § 742.4 to set forth a general policy of denial for 600 series items for destinations that are subject to a United States arms embargo, which would apply to all items controlled for national security reasons under this proposed rule. This proposed rule adds that general policy of denial to § 742.6(b)(1) (regional stability column 1). This addition is needed so that the general denial policy for 600 series items would apply to items in proposed ECCNs 9A610, 9B610, 9D610 and 9E610 that are subject to the missile technology and regional stability reasons for control but not to the national security reason for control. This rule also adds a general policy of denial to § 742.6(b)(1) for items specially designed or required for F-14 aircraft because Iran is the only country that has such aircraft in its active inventory.

The Administration recognizes that some items that would fall within the scope of the proposed new ECCNs will have been subject to commodity jurisdiction (CJ) determinations issued by the United States Department of State. The State Department will have either determined that the item was subject to the jurisdiction of the ITAR or that it was not. (See 22 CFR 120.3 and 120.4). Under this proposed rule, items the State Department determined to be not subject to the ITAR and that are now not described on the CCL would be subject to the AT-only controls of the “.y99” paragraph of the applicable ECCN if they would otherwise be within the scope of the ECCN. Thus, for example, ECCN 9A610.x would control any part, component, accessory, or attachment not specifically identified in the USML or elsewhere in the ECCN if it was “specially designed” for a military aircraft. If a particular part, component, accessory, or attachment was, as defined, “specially designed” for a military aircraft and was at the time of a CJ determination not identified on the CCL, it would be controlled under 9A610.y.99. If it was identified or, as a matter of law or the result of a subsequent commodity classification (“CCATS”) determination by Commerce, controlled by another legacy ECCN, such as 9A991.d, 7A994, or 9A003, that ECCN would continue to apply to the item. This general approach will, pending public comment, be repeated in subsequent proposed rules pertaining to other categories of items.

If, however, the State Department had made a CJ determination that a particular item was subject to the jurisdiction of ITAR but that item is not described on the final, implemented version of a revised USML category, a new CJ determination would not be required unless there was doubt about the application of the new USML category to the item. (See 22 CFR 120.4). Thus, unless there were doubts about the jurisdictional status of a particular item, exporters and reexporters would be entitled to rely on the revised USML categories when making jurisdictional determinations, notwithstanding past CJ determinations that, under the previous version of the USML, the item was ITAR controlled.

Finally, if the State Department had made a CJ determination that a particular item was subject to the jurisdiction of the ITAR and that item remains in the revised USML, the item would remain subject to the jurisdiction of the ITAR.

• Section 738.2(d)(2)(ii)—Adds a reference to STA paragraphs in some 600 series ECCNs that clarify STA eligibility regarding those ECCNs.

• Section 740.2—Republishes proposed new paragraph (a)(13) from the July 15 proposed rule with changes to make License Exception STA eligible for exports, reexports, and in-country transfers of items that would be used in the production of items for governmentsof countries listed in 740.20(c)(1), or for the United States Government or any person in the United States.

• Section 740.11—Amends License Exception GOV to add references to Supplement No. 4 to part 740 and partially restates the prohibition on using provisions of License Exception GOV to export or reexport certain technology and software listed in that supplement, other than exports and reexports to personnel and agencies of the U.S. Government.

• Section 740.20—Amends License Exception STA to refer to Supp. No. 4 to part 740 and partially restate the prohibition on using license exception STA to export, reexport or transfer (in-country) certain technology and software listed in that supplement. Republishing a “Note to paragraph (c)(1)” from the July 15 proposed rule with additional text to make License Exception STA eligible for exports, reexports and in-country transfers of items that would be for or used for the production or development of items for governments of countries listed in 740.20(c)(1), or for the United States Government or any person in the United States.

• Supplement No. 4 to part 740—Prohibits using License Exception STA or provisions of License Exception GOV other than those authorizing exports and reexports to personnel and agencies of the U.S. Government to export, reexport or transfer software and technology (other than “build-to-print technology”) for the development or production of specified ECCN 9A610.x items.

• Section 742.6—ECCNs 9A610, 9B610, 9C610, 9D610 and 9E610 are added to § 742.6(a)(1) to impose a RS Column 1 license requirement and licensing policy. Section 742.6(b)(1) would be amended to apply a general denial policy for applications to export or reexport “600 series” to destinations that are subject to a United States arms embargo and to export items specially designed for or required for F-14 aircraft to any destination.

• Section 770.2—Removes paragraph (i)—Interpretation 9: Civil aircraft and civil aircraft equipment.

• Section 772.1—Adds a definition of “build-to-print technology.”

• Supplement No. 1 to part 774—Adds ECCNs 9A610, 9B610, 9C610, 9D610 and 9E610. Replaces existing text of ECCNs 9A018, 9D018 and 9E018 with cross-references to ECCNs 0A606, 0D606 and 0E606 for items related to ground vehicles that have been moved to those ECCNs and with references to new ECCNs 9A610, 9D610 and 9E610 for all other items (i.e.,items related to aircraft) that have been moved to those ECCNs.

BIS seeks comments on this proposed rule. BIS will consider all comments received on or before December 22, 2011. All comments (including any personally identifying information or information for which a claim of confidentially is asserted either in those comments or their transmittal emails) will be made available for public inspection and copying. Parties who wish to comment anonymously may do so by submitting their comments via Regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

2. Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501et seq.) (PRA), unless that collection of information displays a currently valid OMB control number. This proposed rule would affect two approved collections: Simplified Network Application Processing + System (control number 0694-0088), which includes, among other things, license applications, and License Exceptions and Exclusions (0694-0137).

As stated in the proposed rule published at 76 FR 41958 (July 15, 2011), BIS believes that the combined effect of all rules to be published adding items to EAR that would be removed from the ITAR as part of the administration's Export Control Reform Initiative would increase the number of license applications to be submitted by approximately 16,000 annually resulting in an increase in burden hours of 5,067 (16,000 transactions at 17 minutes each) under control number 0694-0088.

Some items formerly on the USML would become eligible for License Exception STA under this rule. Other such items may become eligible for License Exception STA upon approval of a request submitted in conjunction with a license application. As stated in the July 15 proposed rule, BIS believes that the increased use of License Exception STA resulting from the combined effect of all rules to be published adding items to EAR that would be removed from the ITAR as part of the administration's Export Control Reform Initiative would increase the burden associated with control number 0694-0137 by about 23,858 hours (20,450 transactions @ 1 hour and 10 minutes each).

BIS expects that this increase in burden would be more than offset by a reduction in burden hours associated with approved collections related to the ITAR. This proposed rule addresses controls on military aircraft and related parts, components, production equipment, materials, software, and technology. The largest impact of the proposed rule would be with respect to exporters of parts and components because, under the proposed rule, most U.S. and foreign military aircraft currently in service would continue to be subject to the ITAR. Because, with few exceptions, the ITAR allows exemptions from license requirements only for exports to Canada, most exports to integrators for U.S government equipment and most exports of routine maintenance parts and components for our NATO and other close allies require State Department authorization. In addition, the exports necessary to produce parts and components for defense articles in the inventories of the United States and its NATO and other close allies require State Department authorizations. Under the EAR, as proposed, a small number of low level parts would not require a license to most destinations. Most other parts, components, accessories, and attachments would become eligible for export to NATO and other close allies under License Exception STA. Use of License Exception STA imposes a paperwork and compliance burden because, for example, exporters must furnish information about the item being exported to the consignee and obtain from the consignee an acknowledgement and commitment to comply with the EAR. It is, however, the Administration's understanding that complying with the requirements of STA is likely to be less burdensomethan applying for licenses. For example, under License Exception STA, a single consignee statement can apply to an unlimited number of products, need not have an expiration date and need not be submitted to the government in advance for approval. Suppliers with regular customers can tailor a single statement and assurance to match their business relationship rather than applying repeatedly for licenses with every purchase order to supply allied and, in some cases, U.S forces with routine replacement parts and components.

Even in situations in which a license would be required under the EAR, the burden is likely to be reduced compared to the license requirement of the ITAR. In particular, license applications for exports of technology controlled by ECCN 9E610 are likely to be less complex and burdensome than the authorizations required to export ITAR-controlled technology,i.e.,Manufacturing License Agreements and Technical Assistance Agreements.

3. This rule does not contain policies with Federalism implications as that term is defined under E.O. 13132.

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601et seq.,generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulations, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration that this proposed rule, if promulgated, will not have a significant impact on a substantial number of small entities for the reasons explained below. Consequently, BIS has not prepared a regulatory flexibility analysis. A summary of the factual basis for the certification is provided below.

The Bureau of Industry and Security (BIS) does not collect data on the size of entities that apply for and are issued export licenses. Although BIS is unable to estimate the exact number of small entities that would be affected by this rule, it acknowledges that this rule would affect some unknown number.

This proposed rule is part of the Administration's Export Control Reform Initiative. Under that initiative, the United States Munitions List (22 CFR part 121) (USML) would be revised to be a “positive” list,i.e.,a list that does not use generic, catch-all controls on any part, component, accessory, attachment, or end item that was in any way specifically modified for a defense article, regardless of the article's military or intelligence significance or non-military applications. At the same time, articles that are determined to no longer warrant control on the USML would become controlled on the Commerce Control List (CCL). Such items, along with certain military items that currently are on the CCL, will be identified in specific Export Control Classification Numbers (ECCNs) known as the “600 series” ECCNs. In addition, some items currently on the Commerce Control List would move from existing ECCNs to the new 600 series ECCNs. In practice, the greatest impact of this rule on small entities would likely be reduced administrative costs and reduced delay for exports of items that are now on the USML but would become subject to the EAR. This rule focuses on Category VIII articles, which are aircraft and related parts, components, production equipment, software, and technology. Most operational military aircraft currently in active inventory would remain on the USML. However, parts and components, which are more likely to be produced by small businesses than are complete military aircraft, would in many cases become subject to the EAR. In addition, officials of the Department of State have informed BIS that license applications for such parts and components are a high percentage of the license applications for USML articles review by that department.

Changing the jurisdictional status of Category VIII items would reduce the burden on small entities (and other entities as well) through:

In addition, parts and components controlled under the ITAR remain under ITAR control when incorporated into foreign-made items, regardless of the significance or insignificance of the item, discouraging foreign buyers from incorporating such U.S. content. The availability ofde minimistreatment under the EAR may reduce the incentive for foreign manufacturers to avoid purchasing U.S.-origin parts and components

Twenty-five types of parts and components, identified in ECCN 9A610.y, would be designated immediately as parts and components that, even if specially designed for a military use, have little or no military significance. These parts and components, which under the ITAR require a license to nearly all destinations, would, under the EAR, require a license to only five destinations and, if destined for a military end use, the People's Republic of China.

Many exports and reexports of the Category VIII articles that would be placed on the CCL by this rule, particularly parts and components, would become eligible for license exceptions that apply to shipments to United States Government agencies, shipments valued at less than $1,500, parts and components being exported for use as replacement parts, temporary exports, and License Exception Strategic Trade Authorization (STA), reducing the number of licenses that exporters of these items would need. License Exceptions under the EAR would allow suppliers to send routine replacement parts and low level parts to NATO and other close allies and export control regime partners for use by those governments and for use by contractors building equipment for those governments or for the United States government without having to obtain export licenses. Under License Exception STA, the exporter would need to furnish information about the item being exported to the consignee and obtain a statement from the consignee that, among other things, would commit the consignee to comply with the EAR and other applicable U.S. laws. Because such statements and obligations can apply to an unlimited number of transactions and have no expiration date, they would impose a net reduction in burden on transactions that the government routinely approves through the license application process that the License Exception STA statements would replace.

Even for exports and reexports in which a license would be required, the process would be simpler and less costly under the EAR. When a USML Category VIII article is moved to the CCL, the number of destinations for which a license is required wouldremain unchanged. However, the burden on the license applicant would decrease because the licensing procedure for CCL items is simpler and more flexible that the license procedure for UMSL articles.

Under the USML licensing procedure, an applicant must include a purchase order or contract with its application. There is no such requirement under the CCL licensing procedure. This difference gives the CCL applicant at least two advantages. First, the applicant has a way of determining whether the U.S. government will authorize the transaction before it enters into potentially lengthy, complex and expensive sales presentations or contract negotiations. Under the USML procedure, the applicant will need to caveat all sales presentations with a reference to the need for government approval and is more likely to have to engage in substantial effort and expense only to find that the government will reject the application. Second, a CCL license applicant need not limit its application to the quantity or value of one purchase order or contract. It may apply for a license to cover all of its expected exports or reexports to a particular consignee over the life of a license (normally two years, but may be longer if circumstances warrant a longer period), reducing the total number of licenses for which the applicant must apply.

In addition, many applicants exporting or reexporting items that this rule would transfer from the USML to the CCL would realize cost savings through the elimination of some or all registration fees currently assessed under the USML's licensing procedure. Currently, USML applicants must pay to use the USML licensing procedure even if they never actually are authorized to export. Registration fees for manufacturers and exporters of articles on the USML start at $2,500 per year, increase to $2,750 for organizations applying for one to ten licenses per year and further increases to $2,750 plus $250 per license application (subject to a maximum of three percent of total application value) for those who need to apply for more than ten licenses per year. There are no registration or application processing fees for applications to export items listed on the CCL. Once the Category VIII items that are the subject to this rulemaking are moved from the USML to the CCL, entities currently applying for licenses from the Department of State would find their registration fees reduced if the number of USML licenses those entities need declines. If an entity's entire product line is moved to the CCL, then its ITAR registration and registration fee requirement would be eliminated.

De minimistreatment under the EAR would become available for all items that this rule would transfer from the USML to the CCL. Items subject to the ITAR remain subject to the ITAR when they are incorporated abroad into a foreign-made product regardless of the percentage of U.S content in that foreign made product. Foreign-made products that incorporate items that this rule would move to the CCL would be subject to the EAR only if their total controlled U.S.-origin content exceeded 10 percent. Because including small amounts of U.S.-origin content would not subject foreign-made products to the EAR, foreign manufacturers would have less incentive to avoid such U.S.-origin parts and components, a development that potentially would mean greater sales for U.S. suppliers, including small entities.

For items currently on the CCL that would be moved from existing ECCNs to the new 600 series, license exception availability would be narrowed somewhat and the applicablede minimisthreshold for foreign-made products containing those items would in some cases be reduced from 25 percent to 10 percent. BIS is still considering comments made in response to the July 15 rule pertaining to these proposed newde minimislevels and as noted above, will considerde minimisrelated comments to this proposed rule provided they are in the context of this proposed rule. However, BIS believes that increased burden imposed by those actions will be offset substantially by the reduction in burden attributable to the moving of items from the USML to CCL and the compliance benefits associated with the consolidation of all WAML items subject to the EAR in one series of ECCNs.

BIS is unable to determine the precise number of small entities that would be affected by this rule. Based on the facts and conclusions set forth above, BIS believes that any burdens imposed by this rule would be offset by the reduction in the number of items that would require a license, increased opportunities for use of license exceptions for exports to certain countries, simpler export license applications, reduced or eliminated registration fees and application of ade minimisthreshold for foreign-made items incorporating U.S.-origin parts and components, which would reduce the incentive for foreign buyers to design out or avoid U.S.-origin content. For these reasons, the Chief Counsel for Regulations of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule, if adopted in final form, would not have a significant economic impact on a substantial number of small entities.

For the reasons stated in the preamble, the Export Administration Regulations (15 CFR parts 730-774) are proposed to be amended as follows:

The Textile Fiber Products Identification Act (“Textile Act”), 15 U.S.C. 70-70k, requires marketers to attach a label to each covered textile product disclosing: (1) The generic names and percentages by weight of the constituent fibers in the product; (2) the name under which the manufacturer or other responsible company does business or, in lieu thereof, the registered identification number (“RN number”) of such company; and (3) the name of the country where the product was processed or manufactured. The Textile Act also contains advertising and record-keeping provisions.

Section 7(c) of the Textile Act authorizes the Commission to “make such rules and regulations, including the establishment of generic names of manufactured fibers * * * as may be necessary and proper for administration and enforcement.” 15 U.S.C. 70e(c). Pursuant to the Textile Act, the Commission promulgated the Rules and Regulations Under the Textile Fiber Products Identification Act (“Textile Rules” or “Rules”), 16 CFR Part 303.

The Commission completed its last review of the Rules in 1998, and modified the Rules nine times during the period 1998 to 2009. Specifically, as a result of the 1998 review, the Commission, among other things, streamlined the labeling requirements and approved additional generic fiber names through the incorporation of ISO 2076: 1998, “Textiles—Man-made fibres—Generic Names” in Section 303.7.1 Later in 1998, the Commission amended the Rules to update Commission addresses.2 In 2000, it amended the Rules to revise the RN number application process, to reference an updated version of ISO 2076 (ISO 2076: 1999(E)—the standard currently set forth in Section 303.7), and to clarify the country-of-origin disclosure requirements.3 In 2005, the Commission amended the Rules to implement changes mandated by Congress to the country-of-origin disclosure requirements for socks.4 In addition, during the 1998-2009 period, the Commission amended the Rules five times in response to petitions from textile fiber manufacturers to recognize new generic fiber names or subclasses thereof.5

Since 1992, the Commission's regulatory review program has systematically reviewed Commission regulations to ensure that they continue to achieve their intended goals without unduly burdening commerce. The Commission schedules its regulations and guides for review on a ten-year cycle;i.e.,all rules and guides are scheduled to be reviewed ten years after implementation and ten years after the completion of each review. The Commission publishes this schedule annually, with adjustments in response to public input, changes in the marketplace, and resource demands.6

When the Commission reviews a rule or guide, it publishes a notice in theFederal Registerseeking public comment on the continuing need of the rule or guide as well as its costs and benefits to consumers and businesses. Based on this feedback, the Commission may modify or repeal the rule or guide to address public concerns or changed conditions, or to reduce undue regulatory burden. Therefore, the Commission now solicits comments on, among other things, the economic impact of, and the continuing need for, the Textile Rules; the benefits of the Rules to consumers purchasing products covered by them; and the burdens the Rules place on businesses.7

The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120-130). The items subject to the jurisdiction of the ITAR, i.e., “defense articles,” are identified on the ITAR's U.S. Munitions List (USML) (22 CFR 121.1). With few exceptions, items not subject to the export control jurisdiction of the ITAR are subject to the jurisdiction of the Export Administration Regulations (“EAR,” 15 CFR parts 730-774, which includes the Commerce Control List in part 774), administered by the Bureau of Industry and Security (BIS), U.S. Department of Commerce. Both the ITAR and the EAR impose license requirements on exports and reexports. Items not subject to the ITAR or to the exclusive licensing jurisdiction of any other set of regulations are subject to the EAR.

The Departments of State and Commerce described in their respective Advanced Notices of Proposed Rulemaking (ANPRM) in December 2010 the Administration's plan to make the USML and the CCL positive, tiered, and aligned so that eventually they can be combined into a single control list (see “Commerce Control List: Revising Descriptions of Items and Foreign Availability,” 75 FR 76664 (Dec. 9, 2010) and “Revision to the United States Munitions List,” 75 FR 76935 (Dec. 10, 2010)). The notices also called for the establishment of a “bright line” between the USML and the CCL to reduce government and industry uncertainty regarding export jurisdiction by clarifying whether particular items are subject to the jurisdiction of the ITAR or the EAR. While these remain the Administration's ultimate Export Control Reform objectives, their concurrent implementation would be problematic in the near term. In order to more quickly reach the national security objectives of greater interoperability with our allies, enhancing our defense industrial base, and permitting the U.S. Government to focus its resources on controlling and monitoring the export and reexport of more significant items to destinations, end uses, and end users of greater concern than our NATO and other multi-regime partners, the Administration has decided, as an interim step, to propose and implement revisions to both the USML and the CCL that are more positive, but not yet tiered.

Specifically, based in part on a review of the comments received in response to the December 2010 notices, the Administration has determined that fundamentally altering the structure of the USML by tiering and aligning them on a category-by-category basis would significantly disrupt the export control compliance systems and procedures of exporters and reexporters. For example, until the entire USML was revised and became final, some USML categories would follow the legacy numbering and control structures while the newly revised categories would follow a completely different numbering structure. In order to allow for the national security benefits to flow from re-aligning the jurisdictional status of defense articles that no longer warrant control on the USML on a category-by-category basis while minimizing the impact on exporters' internal control and jurisdictional and classification marking systems, the Administration plans to proceed with building positive lists now and afterward return to structural changes.

This proposed rule revises USML Category VIII, covering aircraft and related articles, to establish a clearer line between the USML and the CCL regarding controls over military aircraft and related articles. The proposed revision narrows the types of aircraft and related items controlled on the USML to only those that warrant control under the stringent requirements of the Arms Export Control Act. Changes include moving similar articles currently controlled in multiple categories into a single category or subcategory (e.g., inertial navigations systems for aircraft formerly controlled under Category VIII(e) will likely be moved to controls either in Category XII or the CCL in future proposed rules and, as noted in proposed Category VIII(b), gas turbine engines for articles controlled in this category will likely be included in proposed Category XIX, which will be the subject of a separate notice). Other former Category VIII subcategories have been “reserved” because the Department is proposing to change the jurisdictional status of the items covered therein so that they would become subject to the EAR, most likely under ECCN 9A610 or 9A619.

This proposed rule also revises § 121.3 to more clearly define “aircraft” for purposes of the revised USML Category VIII.

The most significant aspect of this more positive, but not yet tiered, proposed USML category is that it does not contain controls on all generic parts, components, accessories, and attachments that are specifically designed or modified for a defense article, regardless of their significance to maintaining a military advantage for the United States. Rather, it contains, with one principal exception, a positive list of specific types of parts, components, accessories, and attachments that continue to warrant control on the USML. The exception pertains to parts, components, accessories, and attachments “specially designed” for the following U.S.-origin aircraft that have low observable features or characteristics: B-1B, B-2, F-15SE, F/A18E/F/G, F-22, F-35 (and variants thereof), F-117, or United States Government technology demonstrators.

All other parts, components, accessories, and attachments “specially designed” for a military aircraft and other articles now subject to USML Category VIII would become subject to the new 600 series controls in Category 9 of the CCL to be published separately by the Department of Commerce. The Administration has also proposed revisions to the jurisdictional status of certain militarily less significant end items that do not warrant USML control, but the primary impact of this proposed change will be with respect to current USML controls on parts, components, accessories, and attachments that no longer warrant USML control.

Although one of the goals of the export control reform initiative is to describe USML controls without using design intent criteria, a few of the controls in the proposed revision nonetheless use the term “specially designed.” It is, therefore, necessary for the Department to define the term. Two definitions have been proposed to date.

The Department first provided a draft definition for “specially designed” in the December 2010 ANPRM (75 FR 76935) and noted the term would be used minimally in the USML, and then only to remain consistent with the Wassenaar Arrangement or othermultilateral regime obligation or when no other reasonable option exists to describe the control without using the term. The draft definition provided at that time is as follows: “For the purposes of this Subchapter, the term “specially designed” means that the end-item, equipment, accessory, attachment, system, component, or part (see ITAR § 121.8) has properties that (i) distinguish it for certain predetermined purposes, (ii) are directly related to the functioning of a defense article, and (iii) are used exclusively or predominantly in or with a defense article identified on the USML.”

The Department of Commerce subsequently published on July 15, 2011, for public comment, the Administration's proposed definition of “specially designed” that would be common to the CCL and the USML. The public provided more than 40 comments on that proposed definition on or before the September 13 deadline for comments. The Departments of State, Commerce, and Defense are now reviewing those comments and related issues, and the Departments of State and Commerce plan to publish for public comment another proposed rule on a definition of “specially designed” that would be common to the USML and the CCL. For the purpose of evaluation of this proposed rule, reviewers should use the definition provided in the December 2010 ANPRM.

As the U.S. Government works through the proposed revisions to the USML, some solutions have been adopted that were determined to be the best of available options. With the thought that multiple perspectives would be beneficial to the USML revision process, the Department welcomes the assistance of users of the lists and requests input on the following: (1) A key goal of this rulemaking is to ensure the USML and the CCL together control all the items that meet Wassenaar Arrangement commitments embodied in Munitions List Category 10 (ML 10). To that end, the public is asked to identify any potential lack of coverage brought about by the proposed rules for Category VIII contained in this FRN and the new Category 9 ECCNs published separately by the Department of Commerce when reviewed together.

(2) While many of the aircraft controlled in paragraph (a) of Category VIII are defined based on objective parameters, some are not. For example, unmanned aerial vehicles controlled under (a)(6) are simply described as “military.” This is to differentiate those unmanned aerial vehicles currently controlled under Category VIII from those currently controlled, and will remain so controlled, under ECCN 9A012. The public is asked to provide input on regulatory language that would control those with an objective description that precludes removal from the USML and does not inadvertently designate as “defense articles” aircraft currently subject to the EAR.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act. Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule with a 45-day provision for public comment and without prejudice to its determination that controlling the import and export of defense services is a foreign affairs function. As noted above, and also without prejudice to the Department position that this rulemaking is not subject to the APA, the Department previously published a related Advance Notice of Proposed Rulemaking (RIN 1400-AC78), and accepted comments for 60 days.

Since this proposed amendment is not subject to 5 U.S.C. 553, it does not require analysis under the Regulatory Flexibility Act.

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

This proposed amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This proposed amendment will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this proposed amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this proposed amendment.

The Department is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has reviewed the proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Order.

The Department of State has reviewed the proposed amendment in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirement of Executive Order 13175 does not apply to this rulemaking.

The Department of State has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

This proposed amendment does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 120 and 121 are proposed to be amended as follows:

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of thisFederal Registerpublication.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule approving Virginia's revision to its NOx Budget Trading program and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

On June 17, 2011, PADEP submitted a revision to the Allegheny County portion of the Pennsylvania SIP. The SIP revision includes an attainment demonstration and base-year inventory for the Liberty-Clairton Area developed by ACHD, which includes an analysis of RACM/RACT, RFP, contingency measures to be implemented if violations occur after attainment or if RFP requirements are not met, and MVEBs for purposes of transportation conformity. In addition, the SIP submittal includes amendments to Allegheny County regulations that adopt the air quality standards and associated definitions necessary to implement the 1997 and 2006 PM2.5NAAQS. Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

EPA is proposing to approve, with one exception, Pennsylvania's SIP revisions submitted to EPA on June 17, 2011 for the purpose of demonstrating attainment of the 1997 PM2.5NAAQS for the Liberty-Clairton Area. EPA proposes to fully approve the attainment demonstration for the Liberty-Clairton Area that includes the base year emissions inventories, RACM/RACT analysis, RFP plan, contingency measures, and MVEBs that meet the applicable requirements of the CAA and the PM2.5Implementation Rule in 40 CFR part 41, subpart Z. EPA proposes to conditionally approve the air quality modeling analysis portion of the attainment demonstration because the analysis relies on reductions from the CAIR, which was remanded and will be replaced by CSAPR in 2012. EPA proposes to determine that the attainment date for the 1997 PM2.5NAAQS in the Liberty-Clairton Area is April 5, 2015.

EPA is also proposing to approve amendments to ACHD regulations that add the definition of PM2.5and the level of the 1997 annual and 2006 24-hour PM2.5NAAQS. Specifically, EPA proposes to approve the addition of the 1997 annual PM2.5standard of 15 µg/m3, the 2006 24-hour PM2.5standard of 35 µg/m3, the related references to the list of standards in ACHD Article XXI Section 2101.10, and the new definition of PM2.5to ACHD Article XXI Section 2101.20.

On July 18, 1997 (62 FR 36852), EPA established new NAAQS for PM2.5, particulate matter with a diameter of 2.5 microns or less, including an annual standard of 15.0 µg/m3based on a three year average of annual mean PM2.5concentrations and a 24-hour (daily) standard of 65 µg/m3based on a three year average of the 98th percentile of 24-hour concentrations. See, 40 CFR 50.7. EPA established these standards after considering substantial evidence from numerous health studies demonstrating that serious health effects are associated with exposures to PM2.5concentrations above the levels of these standards.

Epidemiological studies have shown statistically significant correlations between elevated PM2.5levels and premature mortality. Other important health effects associated with PM2.5exposure include aggravation of respiratory and cardiovascular disease (as indicated by increased hospital admissions, emergency room visits, absences from school or work, and restricted activity days), changes in lung function and increased respiratory symptoms, as well as new evidence for more subtle indicators of cardiovascular health. Individuals particularly sensitive to PM2.5exposure include older adults, people with heart and lung disease, and children. See, EPA,Air Quality Criteria for Particulate Matter,No. EPA/600/P-99/002aF and EPA/600/P-99/002bF, October 2004. PM2.5can be emitted directly into the atmosphere as a solid or liquid particle (primary PM2.5or direct PM2.5) or can be formed in the atmosphere as a result of various chemical reactions from precursor emissions of nitrogen oxides (NOx), sulfur oxides (SO2), volatile organic compounds (VOC), and ammonia (NH3). (72 FR 20586, 20589, April 25, 2007).

Following promulgation of a new or revised NAAQS, EPA is required by the CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On January 5, 2005 (70 FR 944), EPA published initial air quality designations for the 1997 PM2.5NAAQS, using air quality monitoring data for the three-year periods of 2001-2003 or 2002-2004. These designations became effective on April 5, 2005. On November 13, 2009 (74 FR 58688), EPA revised the existing designation tables in part 81 to clarify that the 1997 designations were for both the annual PM2.5NAAQS and the 24-hour PM2.5NAAQS.

On October 17, 2006 (71 FR 61144), EPA strengthened the 24-hour PM2.5NAAQS by lowering the level to 35 µg/m3. At the same time, it retained the level of the annual PM2.5standard at 15.0 g/m3. On November 13, 2009 (74 FR 58688), EPA designated areas, including the Liberty-Clairton Area, with respect to the revised 24-hour NAAQS. Pennsylvania is now required to submit an attainment plan for the 24-hour standard no later than three years after the effective date of the designation, that is, no later than December 14, 2012. In this notice, all references to the PM2.5NAAQS are to the 1997 24-hour PM2.5standard of 65 µg/m3and annual standard of 15 µg/m3, as codified in 40 CFR 50.7.

EPA designated the Liberty-Clairton Area nonattainment for both the 1997 annual and 24-hour PM2.5standards. See, 40 CFR 81.305. The Liberty-Clairton Area is located within the Pittsburgh Beaver Valley Area, as a separate nonattainment area. The Liberty-Clairton Area was designated as a separate distinctively local-source impacted nonattainment area because the combination of emissions from the local sources in a narrow river valley creates a local air quality problem uniquely different from the remainder of the Pittsburgh-Beaver Valley Area. The Liberty-Clairton Area is home to 25,000 people about 1% the population of the Pittsburgh Metropolitan Statistical Area (MSA) and includes the boroughs of Glassport, Liberty, Lincoln, Port Vue, and the City of Clairton.

EPA is implementing the 1997 PM2.5NAAQS under Title 1, Part D, subpart 1 of the CAA, which includes section 172, “Nonattainment plan provisions.” Section 172(a)(2) requires that a PM2.5nonattainment area attain the NAAQS “as expeditiously as practicable,” but no later than five years from the date of the area's designation as nonattainment. This section also allows EPA to grant up to a five-year extension of an area's attainment date based on the severity of the area's nonattainment and the availability and feasibility of controls. EPA designated the Liberty-Clairton Area as nonattainment for the 1997 PM2.5NAAQS effective April 5, 2005, and thus the applicable attainment date is either: (a) No later than April 5, 2010, or (b) no later than April 5, 2015 if EPA grant a full five-year extension. Section 172(c) contains the general statutory planning requirements applicable to all nonattainment areas, including the requirements for emissions inventories, RACM/RACT, attainment demonstrations, RFP demonstrations, and contingency measures.

On April 25, 2007, EPA issued the Clean Air Fine Particle Implementation Rule for the 1997 PM2.5NAAQS. See, 72 FR 20586, codified at 40 CFR part 51, subpart Z (PM2.5Implementation Rule). The PM2.5Implementation Rule and its preamble address the statutory planning requirements for emissions inventories, RACM/RACT, attainment demonstrations including air quality modeling requirements, RFP demonstrations, and contingency measures. This rule also addresses other matters such as which PM2.5precursors must be addressed by the state in its attainment SIP and applicable attainment dates.1 We discuss each ofthese CAA and regulatory requirements for PM2.5attainment plan in more detail below.

CAA section 172 requires a state to submit a plan for each of its nonattainment areas that demonstrates attainment of the applicable ambient air quality standard as expeditiously as practicable, but no later than the specified attainment date. Under the PM2.5Implementation Rule, this demonstration should consist of four parts:

1. Technical analyses that locate, identify, and quantify sources of emissions that are contributing to violations of the PM2.5NAAQS;

2. Analyses of future year emissions reductions and air quality improvement resulting from already-adopted national, state, and local programs and from potential new state and local measures to meet the RACM/RACT and RFP requirements in the area;

3. Adopted emissions reduction measures with schedules for implementation; and

4. Contingency measures required under section 172(c)(9) of the CAA. See, 40 CFR 51.1007 and 72 FR 20586 at 20605.

EPA recognizes NOX, SO2, VOC, and NH3as the main precursor gases associated with the formation of secondary PM2.5in the ambient air. These gas-phase PM2.5precursors undergo chemical reactions in the atmosphere to form secondary particulate matter. Formation of secondary PM2.5depends on numerous factors including the concentrations of precursors; the concentrations of other gaseous reactive species; atmospheric conditions including solar radiation, temperature, and relative humidity; and the interactions of precursors with preexisting particles and with cloud or fog droplets. See, 72 FR 20586 at 20589.

As discussed previously, a state must submit emissions inventories for each of the four PM2.5precursor pollutants. See, 72 FR 20586 at 20589 and 40 CFR 51.1008(a)(1). However, the overall contribution of different precursors to PM2.5formation and the effectiveness of alternative potential control measures will vary by area. Thus, the precursors that a state should regulate to attain the PM2.5NAAQS can also vary to some extent from area to area. See, 72 FR 20586 at 20589. In the PM2.5Implementation Rule, EPA did not require that all potential PM2.5precursors must be controlled in each specific nonattainment area. See, 72 FR 20586 at 20589. Instead, for reasons explained in the rule's preamble, a state must evaluate control measures for sources of SO2in addition to sources of direct PM2.5in all nonattainment areas. See, 40 CFR 51.1002(c) and (c)(1). A state must also evaluate control measures for sources of NOXunless the state and/or EPA determine that control of NOXemissions would not significantly reduce PM2.5concentrations in the specific nonattainment area. See, 40 CFR 51.1002(c)(2). In contrast, EPA has determined in the PM2.5Implementation Rule that a state does not need to address controls for sources of VOC and NH3unless the state and/or EPA make a technical demonstration that such controls would significantly contribute to reducing PM2.5concentrations in the specific nonattainment area at issue. See, 40 CFR 51.1002(c)(3) and (4). Such a demonstration is required “if the administrative record related to development of its SIP shows that the presumption is not technically justified for that area.” See, 40 CFR 51.1002(c)(5). “Significantly contributes” in this context means that a significant reduction in emissions of the precursor from sources in the area would be projected to provide a significant reduction in PM2.5concentrations in the area. See, 72 FR 20586 at 20590. Although EPA did not establish a quantitative test for determining what constitutes a significant change, EPA noted that even relatively small reductions in PM2.5levels are estimated to result in worthwhile public health benefits.

EPA further explained that a technical demonstration to reverse the presumption for NOX, VOC, or NH3in any area could consider the emissions inventory, speciation data, modeling information, or other special studies such as monitoring of additional compounds, receptor modeling, or special monitoring studies. See, 72 FR 20586 at 20596-20597. These factors could indicate that the emissions or ambient concentration contributions of a precursor, or the sensitivity of ambient concentrations to changes in precursor emissions, differs for a specific nonattainment area from the presumption EPA established for that precursor in the PM2.5Implementation Rule.

ACHD submitted 2002 baseline inventories for each of the four precursor emissions and for direct PM2.5emissions within the Liberty-Clairton Area. Its submission did not specifically discuss the presumptions in the PM2.5Implementation Rule, however its discussion of the emissions inventory and control strategy implicitly showed that ACHD did not reverse the presumptions for NOX, VOC or NH3. Therefore, evaluation of control measures for VOC and/or NH3was not considered, while NOXwas considered, and, in accordance with policies described in the PM2.5Implementation Rule, the Liberty-Clairton Area PM2.5attainment demonstration evaluated emissions of direct PM2.5, SO2, and NOX.

CAA section 172(c)(3) requires a state to submit a plan provision that includes a “comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant.” The PM2.5Implementation Rule requires a state to include direct PM2.5emissions and emissions of all PM2.5precursors in this inventory, even if it has determined that control of any of these precursors is not necessary for expeditious attainment. See, 40 CFR 51.1008(a)(1) and 72 FR 20586 at 20648. Direct PM2.5includes condensable particulate matter. See, 40 CFR 51.1000. The PM2.5precursors are NOX, SO2, VOC, and NH3. The inventories should meet the data reporting requirements of EPA's Air Emissions Reporting Requirements (AERR) (71 FR 69, January 3, 2006) and include any additional inventory information needed to support the SIP's attainment demonstration and RFP demonstration. See, 40 CFR 51.1008(a)(1) and (2). Baseline emissions inventories are required for the attainment demonstration and for meeting RFP requirements. Asdetermined on the date of designation, the base year for these inventories should be the most recent calendar year for which a complete inventory was required to be submitted to EPA. The emissions inventory for calendar year 2002 or other suitable year should be used for attainment planning and RFP plans for areas initially designated nonattainment for the PM2.5NAAQS in 2005. See, 40 CFR 51.1008(b). EPA has provided additional guidance for PM2.5emissions inventories in the “Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter NAAQS and Regional Haze Regulations,” November 2005 (EPA-454/R-05-001).

The base year and future year baseline planning inventories for direct PM2.5and all PM2.5precursors for the Liberty-Clairton Area were included as part of this submittal. The base year used for the Liberty-Clairton Area SIP was 2002. ACHD developed a point source inventory comprised of emissions for five facilities in the nonattainment area, which included two major sources, two synthetic minor sources, and one minor source. ACHD then made corrections to the point source inventory for these sources to include the addition of condensable PM emissions.

For the 2002 area sources, ACHD provided an inventory that contained estimations of emissions by multiplying an emission factor by some known indicator or activity level for each category at the county level. These estimates were apportioned to the Liberty-Clairton Area based on population counts.

The 2002 Nonroad Mobile Sources emissions inventory was prepared with EPA's NONROAD2005 model. This model estimates fuel consumption and emissions of total hydrocarbons, carbon monoxide, NOX, SO2, and PM for all nonroad mobile source categories except aircraft, locomotives, and commercial marine vessels. The National Mobile Inventory Model was used to estimate emissions of NH3from sources contained in the NONROAD model. The 2002 Onroad Mobile Sources emissions inventory was prepared using EPA's highway mobile source emissions model MOBILE 6.2.

Table 1 below shows the Liberty-Clairton Area emissions inventory summary for direct PM2.5and PM2.5precursors for the 2002 base year. These emissions represent emissions from sources only within the five-municipality Liberty-Clairton Area, not the larger modeled area.

Table 2 below shows the Liberty-Clairton Area emissions inventory summary for direct PM2.5and PM2.5precursors for the 2014 future projected year. Similar to the baseline inventory, these emissions represent sources only within the five municipality Liberty-Clairton Area.

To understand the PM2.5problem in the Liberty-Clairton Area, EPA believes it is helpful to explain the unique topographic and meteorologic conditions in the area, as well as the geographic location of this area. The approximately 12 square kilometer area is a subset of Allegheny County, and is surrounded by the Pittsburgh-Beaver Valley nonattainment area (Pittsburgh Area). The Liberty-Clairton Area was designated a separate nonattainment area from the surrounding Pittsburgh Area because, in addition to the regional air quality problem, there is a localized air quality issue caused by local sources and by specific geologic and meteorological features of the area. The PM2.5problem in the Liberty-Clairton Area is compounded by the sharp difference in elevation between the industrial and residential areas as well as large temperature differences between the river valleys and the adjacent hilltops. The high hillsides of the two rivers in the area create a significant river basin with spikes in localized PM2.5concentrations that coincide with temperature inversions. Two of the eight monitors in the combined areas are located within the Liberty-Clairton Area, one in Liberty Borough (Liberty monitor) and one in the city of Clairton (Clairton monitor). On many days the Liberty monitor has readings very similar to those located in the Pittsburgh Area. However, when the regional concentrations rise, the Liberty monitor rises higher than any other site in the region, and after an inversion break, the monitor returns to a level comparable to, and sometimes less than, the concentrations measured at surrounding monitors in the Pittsburgh Area. The occurrence and severity of these high readings at the Liberty monitor, caused by local sources andfeatures, required that a control strategy for the Liberty-Clairton Area be considered separate from, and in addition to, the control strategy for the larger Pittsburgh Area.

Direct PM from local sources are at the heart of the PM2.5problem in this area, and the control strategy for attainment within the nonattainment area is to reduce emissions of direct PM2.5. Other than regional reductions of NOXand SO2within the surrounding Pittsburgh Area, no additional local reductions for these pollutants are necessary for the Liberty-Clairton Area to attain the NAAQS by the attainment date. The monitored NOXand SO2within the Liberty-Clairton Area are representative of the monitored concentrations of these precursors in the larger Pittsburgh Area. The small geographic size of the Liberty-Clairton Area is such that there is insufficient residence time for a local conversion of NOXand SO2to nitrates and sulfates. This is indicated by a lack of sizable difference in the levels monitored at the Liberty monitor with the levels monitored at the Lawrenceville monitor located in Allegheny County, just north of Pittsburgh. Additionally, monitored data shows consistent trends at the Liberty monitor for sulfates and nitrates with those throughout the southwestern part of Pennsylvania, with no outlying concentrations of NOXand SO2at the Liberty monitor. For the above reasons, EPA has determined that it is not practical to rely on local NOXand SO2reductions for purposes of ensuring that the Liberty-Clairton Area will attain the PM2.5NAAQS by the attainment date. While NOXand SO2reductions from within the nonattainment area are not relied upon for the Liberty-Clairton Area to attain the PM2.5standard, EPA recognizes that addressing the control strategy for NOXand SO2in the larger surrounding nonattainment area may result in collateral benefit in the Liberty-Clairton Area; EPA will address control strategies for NOXand SO2in the surrounding nonattainment area when EPA takes action on the Pittsburgh Area attainment demonstration SIP.

With respect to control strategies for direct PM2.5, ACHD has already required implementation of stringent control measures for the largest sources of direct PM2.5in the Liberty-Clairton Area, so reducing direct PM2.5further is challenging. The majority of direct PM2.5emissions reductions that the ACHD projects are needed for PM2.5attainment in the Liberty-Clairton Area by 2015 will come from a combination of upgrades and shutdowns of batteries and quench towers at the U.S. Steel Mon Valley Works Clairton (U.S. Steel) and Edgar Thomson Plants in response to a number of previous visible emissions and opacity violations. In accordance with a March 2008 consent order and agreement between ACHD and U.S. Steel, several upgrades and shutdowns have taken place or are required to take place, including:

a. Batteries 7, 8, and 9 were permanently shut down on April 16, 2009. The original date for shut down was December 31, 2012 in the consent order and agreement. The new Battery C will replace the production of Batteries 7, 8, and 9 at significantly lower emissions due to newer and cleaner technology. This project reduces emissions of direct PM2.5by over 200 tons per year at a cost of $500 million.

b. 25 heating walls on Battery 19 will be replaced by October 31, 2012. The battery will meet its opacity limits by December 31, 2012, including, as necessary, implementing an advanced patching plan.

In September 2010, ACHD and U.S. Steel amended the March 2008 consent order and agreement to include the construction of new low emission quench towers for Batteries 13-15 and Batteries 19-20 by December 31, 2013. The new quench towers 5A and 7A will be used as the primary quench towers for Batteries 13-15 and Batteries 19-20, respectively. The current quench towers 5 and 7 will serve as auxiliary quench towers. The new quench towers 5A and 7A will reduce emissions of direct PM2.5by 593 tons per year.

Additional reductions are achieved by a June 2007 ACHD and U.S. Steel consent decree to rebuild the B Battery heating walls, which was to be completed by June 30, 2010, and replacement of 25 heating walls on Battery 19 by October 2012 to meet opacity limits. Table 3 below summarizes the reductions that are relied on in the Liberty-Clairton Area PM2.5attainment plan to demonstrate attainment by April 5, 2015.

The majority of direct PM2.5emissions reductions that the State projects are needed for PM2.5attainment in the Liberty-Clairton Area by 2015 come from the combination of upgrades and shutdowns of batteries and quenches towers at the U.S. Steel Mon Valley Clairton Plant. ACHD included in this table the reductions of PM2.5precursor pollutants NOXand SO2that are achieved by the regional programs that address transported emissions. The NOXand SO2projected reductions shown in this table come from the CAIR regional trading program, and are addressed in the regional modeling discussed below. The sources from which these NOXand SO2emission reductions are achieved are located upwind of the Liberty-Clairton Area in the Pittsburgh Area.

CAA section 172(c)(1) requires that each attainment plan “provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology), and shall provide for attainment of the national primary ambient air quality standards.” EPA defines RACM as measures that a state finds are both reasonably available and contribute to attainment as expeditiously as practicable in its nonattainment area. Thus, what constitutes RACM/RACT in a PM2.5attainment plan is closely tied to that plan's expeditious attainment demonstration. See, 40 CFR 51.1010 and 72 FR 20586 at 20612. States are required to evaluate RACM/RACT for direct PM2.5and all of its attainment plan precursors. See, 40 CFR 51.1002(c).

Consistent with subpart 1 of Part D of the CAA, EPA is requiring a combined approach to RACM and RACT for PM2.5attainment plans. Subpart 1, unlikesubparts 2 and 4, does not identify specific source categories for which EPA must issue control technology documents or guidelines for what constitutes RACT, or identify specific source categories for state and EPA evaluation during attainment plan development. See, 72 FR 20586 at 20610. Rather, under subpart 1, EPA considers RACT to be part of an area's overall RACM obligation. Because of the variable nature of the PM2.5problem in different nonattainment areas, EPA determined not only that states should have flexibility with respect to RACT and RACM controls, but also that in areas needing significant emission reductions to attain the standards, RACT/RACM controls on smaller sources may be necessary to reach attainment as expeditiously as practicable. See, 72 FR 20586 at 20612, 20615. Thus, under the PM2.5Implementation Rule, RACT and RACM are those reasonably available measures that contribute to attainment as expeditiously as practicable in the specific nonattainment area. See, 40 CFR 51.1010 and 72 FR 20586 at 20612.

The PM2.5Implementation Rule requires that attainment plans include the list of measures a state considered and information sufficient to show that the state met all requirements for the determination of what constitutes RACM/RACT in its specific nonattainment area. See, 40 CFR 51.1010. In addition, the rule requires that the state, in determining whether a particular emissions reduction measure or set of measures must be adopted as RACM/RACT, consider the cumulative impact of implementing the available measures and to adopt as RACM/RACT any potential measures that are reasonably available considering technological and economic feasibility if, considered collectively, they would advance the attainment date by one year or more. Any measures that are necessary to meet these requirements which are not already either federally promulgated, part of the state's SIP, or otherwise creditable in SIPs must be submitted in enforceable form as part of a state's attainment plan for the area. See, 72 FR 20586 at 20614.

ACHD undertook a process to identify and evaluate potential reasonably available control measures that could contribute to expeditious attainment of the PM2.5standard for the Liberty-Clairton Area. These RACM/RACT analyses address control measures for sources of direct PM2.5only. The control measures for sources of SO2or NOXwere not addressed because, as explained earlier, the area is too small and conditions are not appropriate for SO2or NOXfrom sources located within the nonattainment area to be able to convert to PM2.5. ACHD's RACM/RACT analysis focused on point, area and mobile source controls. To identify potential RACM/RACT in the 12 square kilometer nonattainment area, ACDH's review of potential measures from two major sources (U.S. Steel Clairton Plant and Koppers Industries, Inc. Clairton Plant), and one minor source (Mid Continent Coal and Coke Company) is summarized below.

For the U.S. Steel Clairton Plant, many alternatives were considered for the coke batteries and quench towers. For the Coke batteries, there were very few alternatives were available, since some of the nation's strictest standards are already in place for this facility. Of the alternatives considered, none were considered technically feasible for integration into the process. For the quench towers, among the many alternatives considered were short towers with single baffles, wet low emission quench, coke stabilization quenching process, and Kress indirect cooling system. However, they were all found to be unacceptable due to the cost effectiveness, potential magnitude and timing of emissions reductions and availability of space. For the Koppers Industries Inc. Clairton Plant, alternatives were considered for the tar refining process and the manufacturing of the rod pitch. For both the tar refining process and manufacturing of the rod pitch, the alternatives considered resulted in no additional emissions reductions. For the Mid Continent Coal and Coke Company, the total PM2.5emissions are no more than five tons per year, mostly resulting from unpaved roads. The emission reductions benefit from the implementation of dust suppressants would produce only insignificant emission reductions and would not advance the attainment date by one year or more even if combined with other control measures. After completing its RACM/RACT analysis for stationary, area and mobile sources of direct PM2.5, ACHD concluded that no additional reasonable controls are available that would advance the attainment date by one year.

Based on our review of potential RACM/RACT in the Liberty-Clairton Area PM2.5attainment plan, we agree that there are no additional reasonably available control measures that individually, or collectively, would advance attainment of the 1997 PM2.5NAAQS in the Liberty-Clairton nonattainment area by one year or more, and propose to approve the RACM/RACT determination submitted by PADEP.

The PM2.5Implementation Rule requires states to submit an attainment demonstration based on modeling results. Specifically, 40 CFR 51.1007(a) states that for any area designated as nonattainment for the PM2.5NAAQS, the state must submit an attainment demonstration showing that the area will attain the annual and 24-hour standards as expeditiously as practicable. The demonstration must meet the requirements of 40 CFR part 51 and appendix W of this part and must include inventory data, modeling results, and emission reduction analyses on which the state has based its projected attainment date. The attainment date justified by the demonstration must be consistent with the requirements of 40 CFR 51.1004(a). The modeled strategies must be consistent with requirements in 40 CFR 51.1009 for RFP and in 40 CFR 51.1010 for RACT and RACM. The attainment demonstration and supporting air quality modeling should be consistent with EPA's PM2.5modeling guidance.2 See also, 72 FR 20586 at 20665.

Air quality modeling is used to establish emissions attainment targets, the combination of emissions of PM2.5and PM2.5precursors that the area can accommodate without exceeding the NAAQS and to assess whether the proposed control strategy will result in attainment of the NAAQS. Air quality modeling is performed for a base year and compared to air quality monitoring data in order to evaluate model performance. Once the performance is determined to be acceptable, future year changes to the emissions inventory are simulated to determine the relationship between emissions reductions and changes in ambient air quality throughout the air basin.

The procedures for modeling PM2.5as part of an attainment SIP are contained in EPA's “Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for the 8-Hour Ozone and PM2.5NAAQS and Regional Haze.” This guidance encourages states to take a nine-step approach when preparing a modeling analysis to demonstrate attainment of the PM2.5NAAQS. The nine steps include formulation of a conceptual description of the nonattainment problem, development of a modeling protocol, use of anappropriate model using appropriate meteorological episodes and a modeling domain to establish initial and boundary conditions, generation of meteorological and air quality inputs, generation of emissions inputs, evaluation of the performance of the air quality model, and performance of future year modeling that includes control strategies, followed by application of the attainment test.

ACHD's conceptual description of its PM2.5nonattainment problem is provided in Appendix C (Modeling Protocol) of its attainment SIP. The unique meteorologic and geologic features of the area was also discussed briefly in section A.3 of this notice. Episodes of poor air quality often occur within the Liberty-Clairton Area during periods of strong nocturnal inversions. When this occurs, air dispersion is often minimized, allowing emissions to “build up” within the river valleys, and contributing to episodes of poor air quality that leads to high PM2.5design values. Many times, PM2.5concentrations in the Liberty-Clairton Area are significantly higher than concentrations in the nearby city of Pittsburgh. Using source apportionment modeling for the Liberty and Lawrenceville monitors in Allegheny County, ACHD's analysis found that the Liberty monitor's PM2.5concentrations are impacted by regional loading based on similarities in both monitor's speciation data and that sources near the Liberty monitor are responsible for the speciation differences observed between the two monitors.

The Liberty-Clairton PM2.5SIP utilized two components in its attainment demonstration modeling: a regional photochemical grid model and a local scale model with sufficient resolution to examine the impacts of local emission sources. Model results were used in a relative rather than an absolute sense. Following this methodology, the ratio of the model's future to current (baseline) predictions at both of the nonattainment area's PM2.5monitors determines if the controls in the Liberty-Clairton Area are likely to lead to attainment with the 1997 p.m.2.5NAAQS.

The regional modeling demonstration for the Liberty-Clairton Area used the Community Multiscale Air Quality (CMAQ) model. The CMAQ modeling was performed by the Bureau of Air Quality Analysis and Research, New York State Department of Environmental Conservation (DEC) using Mid-Atlantic/Northeast Visibility Union Regional Planning Organization (MANE-VU) inventory with a base year of 2002. Regional controls for SO2and NOXin the MANE-VU inventory were based on the CAIR. Local sources in the Liberty-Clairton Area create steep gradients in PM2.5concentrations than cannot be adequately resolved by the CMAQ model, which uses grid cells that are roughly 12 square kilometers—approximately the total area of the Liberty-Clairton Area. Local scale meteorology is also not well simulated by the CMAQ model due to steep topography within the Liberty-Clairton Area that often contributes to strong temperature inversions and complex flow patterns within the valleys. ACHD's analysis of its PM2.5monitors within Allegheny County showed significant local impacts at the Liberty-Clairton Area. To better simulate the local source impacts within the nonattainment area, ACHD used the California PUFF (CALPUFF) air quality dispersion modeling system.

The CALPUFF modeling system uses CALMET, a diagnostic 3-dimensional meteorological model, and CALPOST, a post processing program. The CALPUFF model, which uses a much finer scale than the regional model, was used to help better resolve local topographic features that influence emission dispersion and address spatial relationships between local sources and the monitors in the Liberty-Clairton Area. The CALPUFF grid spacing for the 150 km regional source analysis domain was one kilometer and 100 meters for the 20 kilometer local scale analysis domain. The CALMET processor was used to recreate some of the more complex atmospheric flows in the Liberty-Clairton Area.

The MANE-VU regional analysis used northeastern United States emissions inventories for all source classifications. The year 2002 was used for the baseline emissions inventory and 2014 for the projected inventory for the Liberty-Clairton Area. Regional projections used on-the-books/on-the-way (OTB/OTW) controls through the 2012 timeframe. Since no additional projections were available at the time, and since Liberty-Clairton controls focus on direct PM2.5emissions, the inventory was limited to direct PM2.5emissions and was developed from both the regional MANE-VU projections for 2012 for precursors and non-point PM2.5emissions in combination with ACHD's local projections for 2014 for stationary point PM2.5emissions. A more detailed inventory, limited to PM2.5, was developed by the ACHD for the extended Liberty-Clairton Area as part of its CALPUFF modeling analysis. This inventory was developed from both the MANE-VU inventories and projections, which were based on CAIR, along with ADCH's inventories for stationary point sources.

The monitored attainment test for PM2.5utilizes both PM2.5and individual PM2.5component species. The attainment test for PM2.5is the Speciated Modeled Attainment Test (SMAT). In SMAT, a separate relative response factor (RRF) is calculated for each PM2.5component. These RRF values are then multiplied by the base year concentrations for each monitor within the nonattainment area to determine if an area is projected to attain the NAAQS.

The Liberty-Clairton Area has two PM2.5monitoring sites, the Liberty monitor and the Clairton monitor. Speciation data from the Liberty monitor was used for the Clairton monitor since this site does not collect speciation data. Annual and 24-hour PM2.5concentrations for both the Liberty and Clairton monitors were calculated from the quarterly base-year averaged monitor concentrations and the RRFs calculated from THE CMAQ MODEL and CALPUFF for each PM2.5component. Results for the annual and 24-hour PM2.5NAAQS are summarized in Table 4 which shows that the projected 2014 annual and 24-hour design values for the 1997 PM2.5NAAQS.

Background

On June 2, 2011, we published a proposed rule to revise the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) by extending the current designation in the Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth contour and including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands (MHI), pursuant to section 4 of the Endangered Species Act (ESA). The proposed rule allowed for a 90-day public comment period, which ended on August 31, 2011.

NMFS subsequently received requests to extend the public comment period. These requests identified that additional time was needed to more fully consider the proposed rulemaking and provide comments on the proposed designation. In response to these requests, we are reopening the public comment period until January 6, 2012, to receive additional local and public information and comments that may be relevant to any aspect of the proposal. We will consider additional information received prior to making a final decision on critical habitat designation.

In the exclusive economic zone (EEZ) of the U.S. Caribbean, the reef fish fishery is managed under the Fishery Management Plan (FMP) for the Reef Fish Fishery of Puerto Rico and the U.S. Virgin Islands, spiny lobster is managed under the FMP for the Spiny Lobster Fishery of Puerto Rico and the U.S.Virgin Islands, conch is managed under the FMP for the Queen Conch Resources of Puerto Rico and the U.S. Virgin Islands, and aquarium trade species fisheries are managed under the FMP for Reef Fish and the FMP for Coral and Reef Associated Plants and Invertebrates of Puerto Rico and the U.S. Virgin Islands. These FMPs were prepared by the Council and are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

The 2006 reauthorization of the Magnuson-Stevens Act requires that for the fisheries determined by the Secretary of Commerce (Secretary) to be not subject to overfishing, ACLs and AMs must be established in 2011 at a level that prevents overfishing and helps to achieve OY. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

NMFS' 2011 Report on the Status of U.S. Fisheries classifies Caribbean spiny lobster, angelfishes, boxfishes, goatfishes, grunts, wrasses, jacks, scups and porgies, squirrelfishes, surgeonfishes, triggerfishes and filefishes, tilefishes, and aquarium trade species as unknown with respect to their status regarding overfishing. The eight species of conch proposed to be removed from the Queen Conch FMP are currently in the FMP as data collection only species and were not assessed through this report.

The Magnuson-Stevens Act requires that FMPs specify a number of reference points for managed fish stocks, including maximum sustainable yield (MSY), OY, and stock status determination criteria that can be used to determine when a fishery is overfished and/or undergoing overfishing. These reference points are intended to provide the means to measure the status and performance of fisheries relative to established goals. Proxies have been established for these reference points because available data in the U.S. Caribbean are not sufficient to support direct estimation of these parameters. The FMP Amendments would revise three of those proxies. First, they would use either the median or average of landings data for a determined year sequence as a proxy for MSY for all units or complexes. The time period during which average catch is calculated for those species is 1988-2009 for the commercial sector of Puerto Rico, 2000-2009 for the recreational sector of Puerto Rico, 1999-2008 for the commercial sector St. Croix, and 2000-2008 for the commercial sector of St. Thomas/St. John. These year sequences represent the longest year sequence of reliable landings data that the Council considers to be consistently reliable across the islands of the U.S. Caribbean. The MSY proxy for these species in Puerto Rico would be set by the median of the annual landings in the year sequence above. For St. Croix and St. Thomas/St. John, the MSY equals the average of annual landings for the year sequence described above. The MSY for surgeonfish and angelfish was defined as three times the single year maximum of recreational landings for Puerto Rico. The FMP amendments would also define the overfishing threshold of all species as the overfishing limit (OFL), which would equal the MSY proxy. For the majority of species units or complexes, OY would equal the MSY proxy multiplied by a reduction factor to account for any uncertainty in the scientific and management process. The reduction factor would be 10 percent for all species, except a 25 percent reduction would be applied for surgeonfish, angelfish and aquarium trade species to account for greater uncertainty for those species.

Currently, the conch complex within the Queen Conch FMP is composed of nine species. This rule would remove eight conch species from that FMP. These species are milk conch (Strombus costatus), West Indian fighting conch (Strombus pugilis), roostertail conch (Strombus gallus), hawkwing conch (Strombus raninus), true tulip (Fasciolaria tulipa), Atlantic triton's trumpet (Charonia variegata), cameo helmet (Cassis madagascarensis), and green star shell (Astrea tuber). After implementation of this rule, only the queen conch (Strombus gigas), would remain as a managed species in the conch FMP. The eight species of conch proposed to be removed from the Queen Conch FMP are currently in the FMP as data collection only species and were not assessed in the NMFS 2011 Report on the Status of U.S. Fisheries. These species were classified as data collection only species because the Council determined there was not enough information available to specify biological reference points and/or management measures for that species (50 CFR 600.320(d)(2)). Under the new National Standard 1 Guidelines, the Council was required to either remove these species from the FMP, re-classify them as Ecosystem Component Species, or specify status determination criteria for them (50 CFR 600.310(d)). These eight species are not generally targeted for harvest. No landings data are available for these species and the Council believes that any landings are minimal. Accordingly, the Council determined that there was no need for Federal conservation and management of these species, and decided to remove them from the FMP.

This rule would also implement island-specific management to enable application of AMs in response to harvesting activities on a single island (Puerto Rico, St. Croix) or island group (St. Thomas/St. John) without necessarily affecting fishing activities on the other islands or island groups. For example, if the ACL for the jacks complex is divided among Puerto Rico, St. Croix and St. Thomas/St. John and the St. Croix fishery exceeds its ACL for jacks, then an AM can be applied in the Federal waters surrounding St. Croix without necessarily affecting harvest of jacks in Federal waters surrounding Puerto Rico or St. Thomas/St. John. This rule proposes geographic boundaries between islands/island groups based upon an equidistant approach that uses a mid-point to divide the exclusive economic zone (EEZ) among islands. The three island management areas are: Puerto Rico, St. Croix, and St. Thomas/St. John.

This proposed rule would establish ACLs and AMs for angelfish, boxfish, goatfishes, grunts, wrasses, jacks, scups and porgies, squirrelfishes, surgeonfish, triggerfish and filefish, tilefish, spiny lobster, and aquarium trade species units or complexes in the Caribbean Reef Fish, Spiny Lobster, and Coral and Reef Associated Plants and Invertebrates FMPs. The harvest of Caribbean prohibited coral that are contained within the FMP for Coral and Reef Associated Plant and Invertebrates, and that are not described as aquarium trade species, is prohibited by Federal regulations. Therefore, a functional ACL of zero will be considered for these prohibited species. Additionally, the harvest prohibition serves as a functional AM to manage the ACL.

Each ACL would be sub-divided among the three islands/island groups except that the ACL for tilefish and aquarium trade species would be applicable for the entire Caribbean EEZ. Landings data records do not exist for tilefish and aquarium trade species in the U.S. Virgin Islands. For this reason, a Caribbean-wide ACL would be established for tilefish and aquarium trade species based on the Puerto Rico median landings for these species. Separate commercial and recreational sector ACLs would be established for the Puerto Rico management area where landings data are available for both sectors. For the other island management areas (St. Croix and St. Thomas/St. John), only commercial data are available, therefore, ACLs would be established for the St. Croix and St. Thomas/St. John management areas based on commercial landings data only. Commercial data used to monitor those ACLs would be derived from trip ticket reports collected from territorial governments and recreational data used to monitor the Puerto Rico recreational ACLs would be derived from the Marine Recreational Fisheries Statistics Survey, or its successor, the Marine Recreational Information Program.

U.S. Caribbean landings data generally do not provide useful information at the species level for the species addressed in the 2011 Caribbean ACL Amendment. Aggregate ACLs would be established at the complex level for species in each island management area.

The allowable biological catch (ABC) proposed for these units or complexes are derived from the OFL (MSY proxy)(or SSC-recommended OFL). In most cases, the ABC is equal to the OFL, and then reduced by 10 percent to specify ACL and OY to buffer for scientific and management uncertainty, reducing the probability that overfishing will occur. The surgeonfish and angelfish ABCs are reduced by 25 percent to specify ACL and OY to further reduce the impacts of surgeonfish and angelfish harvest on Acropora species in U.S. Caribbean waters. The aquarium trade species ABC is reduced by 25 percent due to the level of uncertainty about the fishery in the EEZ and most of the harvest occurs in territorial waters.

If implemented, the accountability measures in this rule are designed to prevent fishermen from exceeding the ACLs. Two components are considered, the first identifies the conditions under which AMs would be triggered and the second describes the action(s) that would occur if AMs are triggered. This rule would trigger AMs if an ACL has been exceeded based on a moving multi-year average of landings as described in the FMP. Both commercial and recreational landings of a species, unit, or complex vary substantially from year to year; applying a multi-year average is intended to dampen that variability. The rule would reduce the length of the fishing season for the affected species, unit or complex the year following the year it is determined that the ACL was exceeded by the amount needed to prevent such an overage from occurring again. The AM is triggered unless NMFS' SEFSC, in consultation with the Council and its SSC, determines the overage occurred because data collection and monitoring improved rather than because catches actually increased.

This rule would establish an aggregate bag limit for the recreational harvest of angelfishes, boxfishes, goatfishes, grunts, wrasses, jacks, scups and porgies, squirrelfishes, surgeonfishes, triggerfishes and filefishes, and tilefishes. The daily recreational bag limit for the described reef fish species would be five fish per person per day, with no more than one surgeonfish per person per day allowed within the aggregate. This rule would also establish a vessel limit of 15 fish per vessel per day, including no more than 4 surgeonfish per vessel per day. The rule would also set a bag limit of 3 spiny lobster per person per day with a vessel limit of 10 spiny lobster per vessel per day.

This rule proposes framework measures for both the Spiny Lobster and the Coral and Reef Associated Plants and Invertebrates FMPs. Management measures proposed to be adjusted through framework procedures include but are not limited to quotas, closures, trip limits, bag limits, size limits, gear restrictions, fishing years, and reference points. The purpose of these framework measures is to allow the Council to more expeditiously adjust management in response to changing fishery conditions.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this rule is consistent with Caribbean 2011 ACL Amendment, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

This rule has been determined to be not significant for purposes of Executive Order 12866. However, ACLs are a controversial issue in the U.S. Caribbean, which is a region with populations characterized by large percents of racial/ethnic minorities, high poverty rates, and low median household incomes. Moreover, commercial fishermen of St. Croix and St. Thomas/St. John would experience a substantially disproportionate adverse economic impact relative to their counterparts in Puerto Rico.

NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act, for this rule. The IRFA describes the economic impact that this rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the objectives of, and legal basis for this action are contained at the beginning of this section in the preamble and in theSUMMARYsection of the preamble. A copy of the full analysis is available from the Council (seeADDRESSES). A summary of the IRFA follows.

The rule, which consists of several actions, would: Establish recreational bag limits for spiny lobster and specified reef fish species; specify ACLs and AMs for Caribbean spiny lobster, reef fish, and aquarium trade species not determined to be undergoing overfishing; and establish framework measures to facilitate regulatory modifications.

The Magnuson Stevens Act provides the statutory basis for the rule.

No duplicative, overlapping, or conflicting Federal rules have been identified; however, Federal regulations that impose seasonal or year-round prohibitions on fishing in Federal waters of the U.S. Caribbean that may affect fishing for these Units are identified in the IRFA. The rule would not alter existing reporting or record-keeping requirements. The rule would establish recreational bag limits for Caribbean spiny lobster and reef fish and provide NMFS the authority to restrict harvest in areas of the EEZ where annual or average annual landings of a stock, complex or unit exceed the relevant ACL.

This rule is expected to directly affect businesses that harvest spiny lobster, reef fish, and aquarium trade species from Federal waters off Puerto Rico and the USVI. These businesses are in the finfish fishing (NAICS 114111), shellfish fishing (NAICS 114112) and charter fishing industries (NAICS 487210). A business is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), andhas combined annual receipts or number of employees not in excess of the Small Business Administration's (SBA's) size standards. The finfish and shellfish fishing industries have an SBA size standard of $4.0 million in annual receipts, and the charter fishing industry's size standard is $7.0 million in annual receipts. The IRFA assumes all commercial (finfish and shellfish) and charter fishing businesses that operate in the U.S. Caribbean have annual receipts less than these size standards and are small businesses.

In 2008, there were from 868 to 874 active commercial fishermen in Puerto Rico; 74 percent of these fishermen were captains and the remaining 26 percent were crew members. The IRFA assumes each captain represents a small business in the finfish fishing and shellfish fishing industries and each member of the crew an employee of one of those businesses. Therefore, it is concluded that there are 642 to 644 small businesses in the finfish fishing and shellfish fishing industries in Puerto Rico and potentially all of these businesses could be directly affected by the rule. In 2008, there were 223 licensed commercial fishermen in St. Croix and 160 in St.Thomas/St. John. There is a moratorium on the number of U.S. Virgin Islands commercial fishing licenses, so the IRFA assumes the 223 commercial fishermen in St. Croix and 160 commercial fishermen in St. Thomas/St. John represent 383 small businesses in the finfish fishing and shellfish fishing industries in the U.S. Virgin Islands who could be directly affected by the rule.

There are an estimated 9 small businesses in the charter fishing industry in Puerto Rico, 12 such businesses in St. Thomas/St. John and 1 in St. Croix. The rule would apply to all of these small businesses.

The rule would apply to all small businesses in Puerto Rico, St. Croix and St. Thomas/St. John within the finfish fishing, shellfish fishing, and charter fishing industries. Therefore, the rule applies to a substantial number of small entities in the U.S. Caribbean in these industries.

Charter fishing operations in Puerto Rico and the U.S. Virgin Islands target pelagic species and tend not to target spiny lobster or reef fish species in Federal waters. Consequently, it is expected that small businesses in the charter fishing industry in Puerto Rico, St. Croix or St. Thomas/St. John would experience little to no adverse economic impact because of the rule.

A comparison of the proposed Puerto Rico commercial ACLs for aquarium trade species, angelfish, boxfish, goatfish, grunts, jacks, scups and porgies, spiny lobster, surgeonfish, tilefish, squirrelfish and triggerfish/filefish, to average annual commercial landings from 2006 to 2007 suggests the proposed commercial ACLs for these complexes would not require reductions in the lengths of the Federal commercial fishing seasons for these complexes in the Puerto Rico EEZ. Therefore, there would be no adverse economic impact on small businesses in Puerto Rico that harvest these species.

The proposed Puerto Rico commercial hogfish/wrasses ACL is less than the average of annual landings of hogfish/wrasses from 2006 to 2009, which suggests there would be an overage of hogfish/wrasses landings in 2011, assuming the ACL is implemented by early 2012, that would require a shortened Federal fishing season in the Puerto Rico EEZ in 2012 by approximately 7 days and similarly thereafter. Puerto Rico's commercial fishermen could mitigate for the potentially shortened hogfish/wrasses fishing season in the Puerto Rico EEZ by targeting other species during the time that the Federal hogfish/wrasses fishing season is closed or they could move into territorial waters to harvest hogfish/wrasses species during the time the Federal season is closed. Approximately 95 percent of fishable area off Puerto Rico is in territorial waters. It is expected that small businesses would mitigate for the potential loss of 1,076 lb (488 kg) of hogfish/wrasses by relocating into territorial waters during the approximately 7 days the hogfish/wrasses fishing season is closed in the Puerto Rico EEZ with little to no displacement costs.

This rule is expected to have a substantially greater adverse economic impact on small businesses in the finfish fishing and shellfish fishing industries in St. Croix and St. Thomas/St. John than in Puerto Pico. St. Croix small businesses would incur annual losses of landings of up to 24.3 percent of their average annual landings of all species that are the subject of this action. St. Thomas/St. John small businesses would incur annual losses of landings of up to 12.6 percent of their average annual landings of all species that are the subject of this action. Assuming ACLs are implemented early in 2012, St. Croix commercial fisherman are expected to lose 21 day of boxfish, 68 days of grunts, 253 days of hogfish/wrasses, 54 days of scups and porgies, 112 days of spiny lobster, 242 days of squirrelfish, 101 days of surgeonfish, and 50 days of triggerfish fishing in the EEZ in 2012, and thereafter. Additionally, assuming the ACLs are implemented in 2012 and there are shortened commercial seasons beginning in 2012, St. Thomas/St. John commercial fisherman would lose 93.5 days of angelfish, 90.8 days of boxfish, 20 days of grunts, 193 days of hogfish/wrasses, 56 days of jacks, 25 days of scups and porgies, 52 days of spiny lobster, 84 days of surgeonfish, and 5.5 days of triggerfish fishing in the EEZ in 2012, and thereafter.

The percent of fishable area in the U.S. Virgin Islands' territorial waters is significantly less than the percent of fishable area in Puerto Rico's territorial waters. Thirty-eight percent of fishable area off the U.S. Virgin Islands lies within the U.S. Caribbean EEZ, and a larger share of landings in St. Croix and St. Thomas/St. John derive from fishing in the EEZ than in Puerto Rico. Hence, it is more difficult for U.S. Virgin Islands fishermen to substitute fishing in territorial waters for fishing in Federal waters.

Among the considered but rejected significant alternatives for the action to establish the triggering mechanism for AMs were two alternatives which would use a single year's landings to trigger the AMs. Also considered but rejected were alternatives that would use a single year's landings in 2011 and then use a 2-year annual average starting in 2012 and continuing thereafter to trigger the AMs. The preferred alternative would use a 3-year average starting in 2013 and continuing thereafter. The adverse economic impact of the preferred alternative is less than the adverse economic impacts of the rejected alternatives. This adverse economic impact is less because a 3-year average allows for yearly or 2-year averages to exceed the ACL without triggering a shortened fishing season when the 3-year average may be equal to or less than the ACL.

An alternative that would include an ACL overage payback as part of the action applying an AM when an ACL is exceeded was considered but rejected because it would require a larger reduction in the Federal fishing season, and thus a larger adverse economic impact, than the preferred alternative to not implement an ACL overage payback.

The Council's preferred alternative for Action 1(b) setting the ABC for reef fish sets the ABC equal to the OFL. This alternative would have a smaller indirect adverse economic impact than considered but rejected alternatives that would set lower ABCs, and in turn establish lower ACLs. The preferred alternatives 2(p) (setting ACLs for all reef fish FMUs, except for angelfish and surgeonfish) and 2(n)(setting ACLs for angelfish and surgeonfish), would havesmaller indirect adverse economic impact than the considered but rejected alternatives that would establish lower ABCs and ACLs.

The preferred alternative for Action 2(b) that sets ABC equal to OFL for spiny lobster (alternative 2(g)) would have a smaller indirect adverse economic impact than considered but rejected alternatives that would set lower ABCs, which in turn could lead to lower ACLs. Preferred alternative 2(o) would have a smaller indirect adverse economic impact than the considered but rejected alternatives that would establish lower ACLs.

The preferred alternative for Action 3(b) that sets the ABC equal to the OFL for aquarium trade species (alternative 2(e)) would have a smaller adverse economic impact than considered but rejected alternatives that would establish lower ABCs and likely lower ACLs. Preferred alternative 2(k) that would set the ACL would have a smaller indirect adverse economic impact than the considered but rejected alternative that would establish a lower ACL.

For the reasons set out in the preamble, 50 CFR part 622, as proposed to be amended at 76 FR 66675, October 27, 2011, is proposed to be further amended as follows: