issue-1997-05-29•Federal Register proposed rules — 1997-05-29
Federal Register proposed rules — 1997-05-29
issue-1997-05-29Federal Register proposed rules — 1997-05-29Proposed Regulation
Published Federal Register documents, not public-inspection drafts. The GPO XML/text rendition is a research aid; the linked complete official PDF retains the printed layout and all graphics. Graphics are retained in that PDF and are not independently reproduced in this text rendition. Publication does not establish that every provision remains legally in force.
FR Doc. 97-14096 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Control Date
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29098-29099]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14096]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 648
[Docket No. 970520121-7121-01; I.D. 050997A]
RIN 0648-XX83
Fisheries of the Northeastern United States; Atlantic Bluefish
Fishery; Control Date
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Advance notice of proposed rulemaking.
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SUMMARY: NMFS announces that anyone entering the commercial Atlantic
bluefish (Pomatomus saltatrix) fishery after May 29, 1997 (control
date) will not be assured of future access to the bluefish resource in
Federal waters if a management regime is developed and implemented
under the Magnuson-Stevens Fishery Conservation and Management Act
(Magnuson-Stevens Act) that limits the number of participants in the
fishery. This announcement is intended to promote awareness of
potential eligibility criteria for future access to the commercial
Atlantic bluefish fishery and to discourage new entries into this
fishery based on economic speculation while the Mid-Atlantic Fishery
Management Council (Council) contemplates whether and how access to the
bluefish fishery in Federal waters should be controlled. The potential
eligibility criteria may be based on historical participation, defined
as any number of trips having any documented amount of Atlantic
bluefish landings. This announcement, therefore, gives the public
notice that they should locate and preserve records that substantiate
and verify their participation in the commercial bluefish fishery in
Federal waters.
DATES: Comments must be submitted by June 30, 1997.
ADDRESSES: Comments should be directed to David R. Keifer, Executive
Director, Mid-Atlantic Fishery Management Council, 300 South New
Street, Dover, DE 19904.
FOR FURTHER INFORMATION CONTACT: Myles Raizin, Fishery Policy Analyst,
508-281-9104.
SUPPLEMENTARY INFORMATION: The Fishery Management Plan for Atlantic
Bluefish (FMP) was developed by the Council and the Atlantic States
Marine Fisheries Commission to address problems that would occur if the
bluefish fishery were to expand significantly or if the bluefish
resource were to decline. The FMP (55 FR 18729, May 4, 1990) noted that
the stock had declined from peak abundance levels observed in the early
1980s. Relative to the future condition of the stock, the FMP cautioned
that ``without production of a strong year class in 1989, the
population will likely continue to decline into the 1990s.''
Bluefish was most recently assessed at the 23rd Northeast Regional
Stock Assessment Workshop (SAW-23); results were published in January
1997. The stock is at a low level of abundance and is over-exploited.
Current annual recreational catches of 12,000 metric tons (mt) are
about 20 percent of the level of the early 1980s. Fully-recruited
fishing mortality (F) rates for bluefish increased from 0.12 (10
percent exploitation) in 1988 to 0.51 (36 percent exploitation) in
1992. F in 1995 was 0.40 (29 percent exploitation), twice the level of
the current overfishing reference point estimated in 1994
(FMSY = 0.20; 16 percent exploitation). Spawning stock
biomass (SSB) declined from 293,000 mt in 1986 to 110,000 mt in 1995, a
decrease of 63 percent and an historic low. Recruitment at age 0 varied
from 68 to 82 million fish during 1982-84, but has since declined
substantially with the strongest recent year class recruiting in 1989
(65 million). Recruitment since 1989 has been below average and the
1993 and 1995 year classes (13 and 14 million fish respectively) are
the poorest of the time series. SAW-23 advised that if recruitment
continues to be poor, the decline in SSB can only be halted by
restricting catches to very low levels. SAW-23 advised reducing F to
0.1 or below ( 8 percent exploitation) to halt the decline
in SSB.
The Council intends to address whether and how to limit entry of
commercial vessels or participants into this fishery in a future
amendment to
[[Page 29099]]
the FMP. The Council's intent in making this announcement is to notify
the industry that management regimes to control access into the fishery
may be discussed and developed by the Council. The control date will
help to distinguish bona fide established fishermen from speculative
entrants to the fishery. Although fishermen are notified that entering
the fishery after the control date will not assure them of future
access to the bluefish resource on the grounds of previous
participation, additional and/or other qualifying criteria also may be
applied. The Council may choose different and variably weighted methods
to qualify fishermen, based on the type and length of participation in
the fishery or on the quantity of landings.
This action does not commit the Council to develop any particular
management regime or to use any specific criteria for determining entry
to the fishery. The Council may choose a different control date, or may
choose a management program that does not make use of such a date. The
Council may choose also to take no further action to control entry or
access to the fishery. Any action by the Council will be taken pursuant
to the requirement for FMP development established under the Magnuson-
Stevens Act.
Authority: 16 U.S.C. 1801 et seq.
Dated: May 22, 1997.
Rolland A. Schmitten,
Assistant Administrator for Fisheries, National Marine Fisheries
Service.
[FR Doc. 97-14096 Filed 5-28-97; 8:45 am]
BILLING CODE 3510-22-F
Complete official Federal Register PDF
FR Doc. 97-14087 Ophthalmic Practice Rules: Extension of Time for Filing Public Comments
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29088-29089]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14087]
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FEDERAL TRADE COMMISSION
16 CFR Part 456
Ophthalmic Practice Rules: Extension of Time for Filing Public
Comments
AGENCY: Federal Trade Commission.
[[Page 29089]]
ACTION: Extension of time for filing public comments.
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SUMMARY: The Federal Trade Commission (the ``Commission''), as part of
a systematic review of all of its current regulations and guides,
requested public comments on April 3, 1997 about its Ophthalmic
Practice Rules (``Prescription Release Rule''), 62 FR 15865. The
Commission stated that it would accept comments until June 2, 1997. In
response to a request from the National Association of Optometrists and
Opticians, the Commission grants an extension of the time period to
file written comments.
DATES: Written comments will be accepted until September 2, 1997.
ADDRESSES: Copies of this notice can be obtained through the Public
Reference Branch, Room 130, Federal Trade Commission, Washington, DC
20580; (202) 326-2222; or through the Commission's homepage on the
World Wide Web at http:www.ftc.gov.
FOR FURTHER INFORMATION CONTACT:
Renee Kinscheck, Federal Trade Commission, Bureau of Consumer
Protection, Division of Service Industry Practices, Rm 200, Washington,
DC 20580, (202) 326-3283.
List of Subjects in 16 CFR Part 456
Advertising; Medical devices; Ophthalmic goods and services; Trade
Practices.
Authority: 15 U.S.C. 41-58.
By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 97-14087 Filed 5-28-97; 8:45 am]
BILLING CODE 6750-01-M
Complete official Federal Register PDF
FR Doc. 97-14082 No Surprises Policy
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29091-29098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14082]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 222
RIN 1018-AE24
No Surprises Policy
AGENCY: Fish and Wildlife Service, Interior; National Marine Fisheries
Service, NOAA, Commerce.
ACTION: Proposed rule.
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SUMMARY: This proposed rule will codify the substance of the Endangered
Species Act (ESA) ``No Surprises'' policy issued by the Fish and
Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)
in 1994 and included in the joint FWS and NMFS Endangered Species
Habitat Conservation Planning Handbook issued in November 1996 (61 FR
63854). The No Surprises policy provides regulatory assurances to the
holder of an incidental take permit issued under section 10(a) of the
ESA that no additional land use restrictions or financial compensation
will be required of the permit holder with respect to species
adequately covered by the permit, even if unforeseen circumstances
arise after the permit is issued indicating that additional mitigation
is needed for a given species covered by a permit. The proposed rule
contains proposed revisions to parts 17 (FWS) and 222 (NMFS) of Title
50 of the Code of Federal Regulations necessary to implement the
substance of the No Surprises policy. The proposed rule is published in
response to the March 21, 1997, settlement agreement in Spirit of the
Sage v. Babbitt, No. 1:96CV02503 (SS) (D. D.C.).
DATES: Comments on the proposed rule must be received by July 28, 1997.
ADDRESSES: For 50 CFR part 17, send any comments or materials
concerning the proposed changes to the Chief, Division of Endangered
Species, U.S. Fish and Wildlife Service, 452 ARLSQ, Washington, D.C.,
20240 (Telephone 703/358-2171, Facsimile 703/358-1735). You may examine
comments and materials received during normal business hours in room
452, Arlington Square Building, 4401 North Fairfax Drive, Arlington,
Virginia. For 50 CFR part 222, send any comments to Nancy Chu, Chief,
Endangered Species Division, National Marine Fisheries Service, Office
of Protected Resources, 1315 East-West Highway, Silver Spring, MD,
20910 (Telephone (301/713-1401). You must make an appointment to
examine these materials.
FOR FURTHER INFORMATION CONTACT: E. LaVerne Smith, Chief, Division of
Endangered Species (Telephone (703/358-2171); or Nancy Chu, National
Marine Fisheries Service, Chief, Endangered Species Division (Telephone
(301) 713-1401).
SUPPLEMENTARY INFORMATION: The Services firmly believe that they have
had sufficient authority under the Endangered Species Act (ESA) to
issue Habitat Conservation Plan (HCP) permits with No Surprises
assurances and continue to believe in the validity of those permits.
The Services also believe that the current process and those permits
issued in the past with the No Surprises assurances are legally
adequate and continue to assert the Services' authority to issue
individual HCP permits with the No Surprises assurances. Nevertheless,
the Services recognize the benefits of permanently codifying the No
Surprises policy as a rule in 50 CFR, as well as the value of
soliciting additional comments on the policy itself. Therefore, the
Services believed it served their purposes to settle the Spirit of the
Sage Council v. Babbitt, No. 1:96CV02503 (SS) (D. D.C.), lawsuit, which
challenged the procedures under which the No Surprises policy was
adopted and under which subsequent HCP permits were issued, by agreeing
to submit the No Surprises Policy to further public comment and to
consider public comment in drafting a final No Surprises rule.
These proposed regulations apply to the FWS and the NMFS
(collectively referred to as the Services). The background information
regarding the proposed rule is the same for the Services. The proposed
rule is, however, presented in two parts because the Services have
separate regulations for implementing the section 10 permitting
[[Page 29092]]
process. The first part is for the proposed changes in the FWS's
regulations found at 50 CFR 17.22 and 17.32, and the second part is for
the proposed changes in NMFS's regulations found at 50 CFR 222.
Background
Section 9 of the ESA generally prohibits the ``take'' of species
listed under the ESA as endangered. Pursuant to the broad grant of
regulatory authority over threatened species in section 4(d) of the
ESA, FWS and NMFS regulations generally prohibit take of species listed
as threatened. See, e.g., 50 CFR 17.31 and 17.21 (FWS). Section 3(18)
of the ESA defines take to mean ``to harass, harm, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in any
such conduct.'' FWS regulations (50 CFR 17.3) define ``harm'' to
include ``significant habitat modification or degradation where it
actually kills or injures wildlife by significantly impairing essential
behavioral patterns, including breeding, feeding or sheltering.''
Section 10 of the ESA as originally enacted contained provisions
allowing the issuance of permits authorizing the taking of listed
species under very limited circumstances for non-Federal entities.
However, both the government and the development community became
concerned that these permitting provisions were not sufficiently
flexible to address situations in which a property owner's otherwise
lawful activities might result in limited incidental take of a listed
species even if the person were willing to plan their activities
carefully to be consistent with the conservation of the species. As a
result, Congress included in the ESA Amendments of 1982 amendments to
section 10(a) to allow the FWS and NMFS to issue permits authorizing
the incidental take of listed species in the course of otherwise lawful
activities, provided activities are conducted according to a
conservation plan (or habitat conservation plan or HCP) designed to
further the long-term conservation of the species and to avoid jeopardy
to the continued existence of the species. In doing so, Congress
indicated it was acting to ``address the concerns of private landowners
who are faced with having otherwise lawful actions not requiring
Federal permits prevented by section 9 prohibitions against taking* * *
`` H.R. Rep. No. 835, 97th Cong., 2d Sess. 29 (1982) (hereafter ``Conf.
Report''). Congress modeled the 1982 HCP amendments after the
conservation plan developed by private landowners and local governments
to protect the habitat of two listed butterflies on San Bruno Mountain
in San Mateo County, while allowing development activities to proceed.
Congress recognized in enacting the section 10 HCP amendments
that: significant development projects often take many years to
complete and permits applicants may need long-term permits. In this
situation, and in order to provide sufficient incentives for the
private sector to participate in the development of such long-term
conservation plans, plans which may involve the expenditure of
hundreds of thousands if not millions of dollars, adequate
assurances must be made to the financial and development communities
that a section 10(a) permit can be made available for the life of
the project. Thus, the Secretary should have the discretion to issue
section 10(a) permits that run for periods significantly longer than
are commonly provided [for other types of permits]. (Conf. Report at
31).
Congress also recognized that long term HCP permits would present
unique issues that would have to be addressed if the permits were to
function properly to protect the interests of both the species involved
and the development community. For instance, Congress realized that
``circumstances and information may change over time and that the
original [habitat conservation] plan might need to be revised. To
address this situation the Committee expects that any plan approved for
a long-term permit will contain a procedure by which the parties will
deal with unforeseen circumstances.'' (Conf. Report at 31). More
importantly, Congress recognized that non-Federal property owners
seeking HCP permits would need to have economic and regulatory
certainty regarding the overall cost of species mitigation over the
life of the permit. As stated in the Conference Report on the 1982 ESA
amendments:
The Committee intends that the Secretary may utilize this
provision to approve conservation plans which provide long-term
commitments regarding the conservation of listed as well as unlisted
species and long-term assurances to the proponent of the
conservation plan that the terms of the plan will be adhered to and
that further mitigation requirements will only be imposed in
accordance with the terms of the plan. In the event that an unlisted
species addressed in the approved conservation plan is subsequently
listed pursuant to the Act, no further mitigation requirements
should be imposed if the conservation plan addressed the
conservation of the species and its habitat as if the species were
listed pursuant to the Act. (Conf. Report at 30 and 50 FR 39681-
39691 (Sept. 30, 1985)).
Congress thus allowed the Federal government to provide assurances
to non-Federal property owners through the section 10 incidental take
permit process. Non-Federal property owners would have economic and
regulatory certainty regarding the overall cost of species mitigation,
provided that the conservation plan adequately provided for the
affected species in the first instance, the permittee was complying in
good faith with the terms and conditions of the permit and the HCP, and
that the HCP was properly functioning.
In the proposed rule to implement the ESA's incidental take permit
provisions, the FWS expressly discussed Congress' statement that the
section 10 permitting process should be used to address multiple
species and unlisted species in exchange for regulatory assurances. (48
FR 31417 (July 8, 1983)). When the final incidental take permit rule
was published in 1985, the FWS responded to comments on the
consideration of unlisted species in HCPs by referring to the same
statement of Congressional intent and by reiterating that HCP
permittees have the option of addressing unlisted species in exchange
for long-term assurances, and that additional mitigation would only be
required in accordance with the terms and conditions of the original
HCP (58 FR 39681, 39683 (September 30, 1985)). The No Surprises Policy
issued on August 11, 1994, cites and relies upon the same statement of
the Congressional intent.
After the No Surprises policy was issued, it was the subject of a
public comment process when it was released as a key component of the
draft 1994 Habitat Conservation Planning Handbook (59 FR 65782,
December 21, 1994). The No Surprises policy was included in slightly
revised form in the final 1996 Habitat Conservation Planning Handbook
(61 FR 63854, December 2, 1996), and currently is being implemented. In
addition to this opportunity for public comment on the No Surprises
policy in general, the application of the policy and its assurances has
been and continues to be subject to an opportunity for public comment
on each proposed HCP permit under section 10(c) of the ESA. In
addition, because the act of issuing a HCP permit is a Federal
authorization subject to section 7(a)(2) of the ESA, the Services must
consult under section 7 on each proposed HCP permit.
The regulatory and economic assurances provided to permittees
through this proposed rule is limited to the HCP permitting process.
Under the proposed rule, these assurances would continue to be
incorporated into the section 10 HCP permit the Services issue to a
permittee.
[[Page 29093]]
The FWS administers a variety of conservation laws that authorize
the issuance of certain permits for otherwise prohibited activities.
Part 13 of Title 50 of the Code of Federal Regulations consolidates the
administration of various FWS permitting programs. Part 13 provides a
uniform framework of general administrative conditions and procedures
that govern the application, processing, and issuance of all FWS
permits. In addition to Part 13, the FWS has added several more
specific wildlife regulatory programs to Title 50 of the Code of
Federal Regulations. For example, the FWS added Part 18 to implement
the Marine Mammal Protection Act and modified and expanded Part 17 to
implement the ESA. These parts contained their own specific permitting
requirements in addition to the general permitting provisions of Part
13. This proposed rule would permanently codify the No Surprises policy
through amendments to 50 CFR Part 17 (for FWS) and 50 CFR Part 222 (for
NMFS).
Description/Overview of Proposed No Surprises Rule
The information presented below briefly describes the No Surprises
policy and this proposed rule.
To address the problem of maintaining regulatory assurances and
providing regulatory certainty in exchange for conservation
commitments, the FWS and the NMFS jointly established a ``No
Surprises'' policy for HCPs on August 11, 1994. The No Surprises policy
set forth a clear commitment by the FWS and the NMFS that, to the
extent consistent with the requirements of the ESA and other Federal
laws, the government will honor its agreements under a negotiated and
approved HCP for which the permittee is in good faith implementing the
HCP's terms and conditions. The specific nature of these provisions
will vary among HCPs depending upon individual habitat and species
needs.
The No Surprises policy and this proposed rule provide certainty
for non-Federal property owners in ESA HCP planning through the
following assurances:
In negotiating ``unforeseen circumstances'' provisions
for HCPs, the Services will not require the commitment of additional
land or financial compensation beyond the level of mitigation which
was otherwise adequately provided for a species under the terms of a
properly functioning HCP. Moreover, the Services will not seek any
other form of additional mitigation from an HCP permittee except
under unforeseen circumstances.
This means that if unforeseen circumstances occur during the life
of an HCP, the Services will not require additional lands or property
interests, additional funds, or additional restrictions on lands or
other natural resources released under an HCP for development or use
from any permittee who, in good faith, is adequately implementing or
has fully implemented their commitments under an approved HCP. Once an
HCP permit has been issued and its terms are being complied with, the
permittee may remain secure regarding the agreed upon cost of
mitigation, because no additional mitigation land or property
interests, funding, or land use restrictions will be requested by the
issuing Service. The permittee would not be responsible for any other
forms of additional mitigation, unrelated to the categories noted in
the previous sentence, except where unforeseen circumstances exist.
The legislative history of the 1982 ESA amendments noted above in
the ``Background'' section illustrates the two primary goals of the HCP
program: (1) adequately minimizing and mitigating for the incidental
take of listed species; and (2) providing regulatory assurances to
section 10 permittees that the terms of an approved HCP will not change
over time, or that necessary changes will be minimized to the maximum
extent possible, and will be mutually agreed to by the applicant. How
to reconcile these objectives remains one of the central challenges of
the HCP program.
``Unforeseen circumstances'' has been broadly defined to include a
variety of changing circumstances that may occur over the life of an
ongoing HCP. However, it is important to distinguish between
``unforeseen circumstances'' and ``changed circumstances.'' ``Changed
circumstances'' are not uncommon during the course of an HCP and can
reasonably be anticipated and planned for (e.g., the listing of new
species, modifications in the project or activity as described in the
original HCP, or modifications in the HCP's monitoring program).
``Unforeseen circumstances,'' however, means changes in circumstances
surrounding an HCP that were not, or could not, be anticipated by HCP
participants and the Services at the time of the HCP's negotiation and
development and that result in a substantial and adverse change in the
status of a covered species.
With respect to anticipated and possible changed circumstances, the
HCP should discuss measures developed by the applicant and the Services
to meet such changes over time, possibly by incorporating adaptive
management measures for covered species in the HCP. HCP planners should
identify potential problems in advance and identify specific strategies
or protocols in the HCP for dealing with them, so that adjustments can
be made as necessary without having to amend the HCP.
The ``Unforeseen Circumstances'' section of the HCP should be more
limited. This section should discuss how to deal in the future with
those changes in the circumstances surrounding the HCP that cannot be
anticipated by HCP negotiators. While HCP permittees will not be
responsible for additional mitigation measures if unforeseen
circumstances arise, other methods of responding to the needs of the
affected species, such as governmental action and voluntary
conservation measures by the permittee, remain available to assure the
requirements of the ESA are satisfied.
Consequently, the No Surprises policy and this proposed rule also
provide that:
If additional mitigation measures are subsequently
deemed necessary to provide for the conservation of a species that
was otherwise adequately covered under the terms of a properly
functioning HCP, the obligation for such measures will not rest with
the HCP permittee.
This means that in cases where the status of a species addressed
under an HCP unexpectedly worsens, the primary obligation for
implementing additional conservation measures would be borne by the
Federal government, other government agencies, private conservation
organizations, or other private landowners who have not yet developed
an HCP.
``Adequately covered'' under an HCP for listed species refers to
any species addressed in an HCP that has satisfied the permit issuance
criteria under section 10(a)(2)(B) of the ESA. For unlisted species,
the term refers to any species that is addressed in an HCP as if it
were listed pursuant to section 4 of the ESA, and is covered by HCP
conditions that would satisfy permit issuance criteria under section
10(a)(2)(B) of the ESA if the species were actually listed. No
Surprises assurances apply only to species that are ``adequately
covered'' in the HCP. Species should not be included in the HCP permit
if data gaps or insufficient information makes it impossible to craft
conservation/mitigation measures for them. In many cases, however, data
gaps can be overcome through the inclusion of adaptive management
clauses in the HCP.
[[Page 29094]]
If unforeseen circumstances warrant the requirement of
additional mitigation from an HCP permittee who is in compliance
with the HCP's obligations, such mitigation will maintain the
original terms of the HCP to the maximum extent possible. Further,
any such changes will be limited to modifications within Conserved
Habitat areas or to the HCP's operating conservation program for the
affected species. Additional mitigation requirements will not
involve the payment of additional compensation or apply to parcels
of land available for development or land management under the
original terms of the HCP without the consent of the HCP permittee.
This means that if unforeseen circumstances are found to exist, the
Services will consider additional mitigation measures. However, such
measures must be as close as possible to the terms of the original HCP
and must be limited to modifications within any Conserved Habitat area
or to adjustments in lands that are already set aside by the HCP in the
HCP's operating conservation program. Any such adjustments or
modifications will not include requirements for additional land
protection, payment of additional funds, or apply to lands otherwise
available for development or use under the HCP, unless the permittee
consents to such additional measures. ``Modifications within Conserved
Habitat areas or to the HCP's operating conservation program'' means
changes to plan areas explicitly designated for habitat protection or
other conservation uses under the HCP, or changes that redirect or
increase the intensity, range, or effectiveness of the HCP's operating
program, provided that any such changes do not impose new restrictions
or financial compensation on the permittee's activities. Thus, if an
HCP conservation program originally included a mixture of predator
depredation control and captive breeding, but subsequent research or
information demonstrated that one of these was considerably more
effective that the other, the Services would be able to request an
adjustment in the proportionate use of these tools, provided that such
an adjustment did not increase the overall costs to the HCP permittee.
The policy and this proposed rule also set out criteria for
determining whether and when unforeseen circumstances arise.
The Services will have the burden of demonstrating that
such unforeseen circumstances exist using the best scientific and
commercial data available. Their findings must clearly be documented
and based upon reliable technical information regarding the status
and habitat requirements of the affected species.
In deciding whether any unforeseen circumstances exist
which might warrant requiring additional mitigation from an HCP
permittee, the Services will consider, but not be limited to, the
following factors: (a) size of the current range of affected
species; (b) percentage of range adversely affected by the HCP; (c)
percentage of range conserved by the HCP; (d) ecological
significance of that portion of the range affected by the HCP; (e)
level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the HCP; (f)
whether the HCP was originally designed to provide an overall net
benefit to the affected species and contained measurable criteria
for assessing the biological success of the HCP; and (g) whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected
species in the wild.
The first of these two criteria, on the burden of proof, is self-
explanatory. The second identifies some factors to be considered by the
Services in determining whether biologically significant unforeseen
circumstances exist. Generally, the inquiry would focus on the level of
biological peril to the affected species covered by the HCP and the
degree to which the welfare of those species is tied to a particular
HCP. For example, if a species is declining rapidly, and the HCP
encompasses an ecologically insignificant portion of the species'
range, then unforeseen circumstances typically would not exist because
the overall effect of the HCP upon the species would be negligible or
insignificant. Conversely, if a species is declining rapidly and if the
HCP encompasses a majority of the species' range, then unforeseen
circumstances probably would exist.
The policy and this proposed rule provide additional assurances
where an HCP is designed to provide an overall net benefit to the
covered species.
The Services will not seek additional mitigation for a
species from an HCP permittee where the terms of a properly
functioning HCP agreement were designed to provide an overall net
benefit for the species and contained measurable criteria for the
biological success of the HCP which have been or are being met.
This provision means that the Services will not attempt to impose
additional mitigation measures of any type where the HCP meets these
standards. This provision is intended to encourage HCP applicants to
develop HCPs that provide an overall net benefit to affected species.
However, it does not mean that an HCP must in fact have achieved a net
benefit to the affected species in order for the ``no additional
mitigation'' provision to apply. Rather, it will be sufficient if the
HCP agreement contains a clearly articulated set of criteria for
achieving a net benefit and an adequate monitoring program for
measuring progress toward the net benefit goal, and the HCP has been
and continues to meet the criteria.
For listed species, an overall net benefit is defined as the
cumulative results of the management activities identified in an HCP
that provide for an increase in a species' population and/or the
enhancement, restoration or maintenance of covered species' suitable
habitat within the HCP planning area, taking into account the length of
the permit and the incidental taking allowed by the permit. In
addition, the benefit must be sufficient to contribute to the recovery
of the covered species if undertaken by other property owners similarly
situated. For unlisted species, overall net benefit is defined as
management activities identified in an HCP that would remove the
threats to the species and eliminate the need to list the covered
species, again, if undertaken on a broader scale by other property
owners similarly situated.
A ``properly functioning HCP'' means any HCP whose commitments or
provisions have been or are being fully implemented by the permittee
and in which the permittee is in full compliance with the terms and
conditions of the permit.
Nothing in this policy/rule will be construed to limit
or constrain the Services or any other governmental agency from
taking additional actions at its own expense to protect or conserve
a species included in an HCP.
This means the Services can intercede on behalf of a species at
their own expense at any time and be consistent with the assurances
provided the permittee under this policy and the permit. Neither is
there anything in the No Surprises policy or this proposed rule that
prevents the Services from requesting a permittee to voluntarily
undertake additional mitigation on behalf of affected species, though
of course the permittee is under no obligation to comply.
In fact, FWS and NMFS have a wide array of authorities and
resources that can be utilized to provide additional protection for
threatened or endangered species included in an HCP. In meeting their
commitment under the No Surprises policy and this proposed rule
(consistent with their obligations under the ESA), it is extremely
unlikely that the Services would have to resort to protective or
conservation action requiring new appropriations of funds by Congress.
In such an unlikely event, such actions would necessarily be
[[Page 29095]]
subject to the requirements of the Anti-Deficiency Act and the
availability of funds appropriated by the Congress.
Permit-Shield Provision
In addition to proposing to codify as a rule the substance of the
existing No Surprises policy, the Services propose to add a new permit-
shield provision. See Secs. 17.22(b)(6), 17.32(b)(6), and 222.22(h).
The purpose of the permit-shield provision is to create a presumption
that a holder of an incidental take permit is operating in compliance
with sections 9 and 10 of the ESA when complying with a valid
incidental take permit, regardless of changes in circumstances and
regardless of whether the incidental take permit was approved under
either the No Surprises policy or this proposed rule. Although the
permit-shield provision and the No Surprises proposed rule (if it did
not have a permit-shield component) have the same objective--
reliability as an incentive for habitat conservation--they have
different emphases and use different methods. No Surprises allows
applicants and the Services to reach a binding agreement on the amount
of habitat conservation and mitigation that will be required over the
life of the permit. The permit-shield provision would act to prevent or
discourage subsequent enforcement actions where the permit holder is
acting in compliance with the requirements of the permit.
The permit-shield rule would limit the Services' prosecutorial
discretion under section 11(e) of the ESA, 16 U.S.C. 1540(e), so as to
protect the assurances given in incidental take permits regardless of
changed circumstances and regardless of whether the assurances were
approved under a formal No Surprises rule or policy.
Required Determinations
A major purpose of this proposed rule is to provide section
10(a)(1)(B) permittees regulatory assurances through the issuance of
the permit. From the Federal government's perspective, implementation
of this rule would not result in additional expenditures to the
permittee that are above and beyond that already required through the
section 10(a)(1)(B) permitting process. There are, however, benefits
derived from HCPs for both the non-Federal entities and species covered
by the HCPs. HCPs are mechanisms that allow non-Federal entities to
continue with economic development, while conserving those species
covered by the permit. Benefits to the covered species include
conserving lands and waters that the species depends on, decreasing
habitat fragmentation, removing threats to candidate, proposed, or
other unlisted species, and advancing the recovery of some listed
species. Non-Federal program participants are then provided regulatory
assurances as a result of the applying for an incidental take permit
under section 10(a)(1)(B) of the ESA for those species that are
adequately covered by the permit, if the HCP is functioning properly.
The Services have determined that the proposed rule would not result in
significant costs of implementation to non-Federal program
participants.
Information Collection/Paperwork Reduction Act
No significant effects are expected on non-Federal cooperators
exercising their option to enter into the HCP planning program because
there is no additional information required during the HCP development
or processing phase to provide these regulatory assurances.
The Services have examined this proposed rule under the Paperwork
Reduction Act of 1995 and found it to contain no requests for
additional information or increase in the collection requirement
associated with incidental take permits other than those already
approved under the Paperwork Reduction Act of 1995 for incidental take
permits with OMB approval #1018-0022 which expires July 31, 1997. The
Service requested renewal of the OMB approval and in accordance with 5
CFR 1320 will not continue to collect the information, if the approval
has expired, until OMB approval has been obtained.
Economic Analysis
This proposed rule was not subject to review by the Office of
Management and Budget under Executive Order 12866. The Services have
determined that there will be no additional costs placed on the non-
Federal entity associated with this proposed regulation. The No
Surprises Policy was drafted in 1994, went through a public comment
period as part of the draft 1994 Habitat Conservation Planning Handbook
(59 FR 65782, December 21, 1994), was included in the final 1996
Habitat Conservation Planning Handbook (61 FR 63854, December 2, 1996),
and currently is being implemented. The assurances provided to
permittees through these proposed rules apply to the HCP permitting
process, and the Services have determined that there will be no
additional information required of non-Federal entities through the HCP
permitting process to provide these assurances to the permittee.
The Assistant Secretary for the Department of Interior certified to
the Chief Counsel for Advocacy of the Small Business that a review
under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) has
revealed that this rulemaking would not have a significant effect on a
substantial number of small entities, which includes businesses,
organizations, or governmental jurisdictions. This proposed rule will
provide non-Federal program participants regulatory assurances as a
result of the applying for an incidental take permit under section
10(a)(1)(B) of the Act. No significant effects are expected on non-
Federal cooperators exercising their option to enter into the HCP
planning program because there will be no additional information
required through the HCP process to provide these regulatory
assurances. Therefore, this rule would have a minimal effect on such
entities. The National Marine Fisheries Service has also reviewed this
rule under the Regulatory Flexibility Act of 1980 and concurs with the
above certification.
The implementation of the No Surprises policy does not require any
additional data not already required by the HCP process. Regulatory
assurances are provided to the permittee if the HCP is functioning
properly, and if all the terms and conditions of the HCP, permit, or
Implementing Agreement are all being met. The underlying economic basis
of comparing the ``with and without'' the proposed rule was used to
determine if there existed any potential economic effects from
implementing this policy. Since the rule is being implemented with
existing data, there are no incremental costs being imposed on non-
federal landowners. The benefits generated by this rule are being
shared by the Services (i.e., less habitat fragmentation, habitat
management, and protection for covered species) and by non-federal
landowners (i.e., assurances that approved HCPs will allow for future
economic uses of private land without further mitigation).
There are no data to determine if there are any effects on
businesses from this rule. If such effects occur they are more likely
to be benefits to landowners than costs. Until specific HCPs are
approved it is not possible to determine effects on commodity prices,
competition or jobs. However, any economic effects are likely to be
benefits. There is a positive effect expected on the environment as
species habitat is protected. No effect on public health and safety is
expected from this rule. Therefore, this rule most likely would not
have a significant effect on a substantial number of small entities.
[[Page 29096]]
The Services have determined and certify pursuant to the Unfunded
Mandates Act, 2 U.S.C. 1502 et. seq., that this rulemaking will not
impose a cost of $100 million or more in any given year on local or
State governments or private entities. No additional information will
be required from a non-Federal entity though the HCP.
Civil Justice Reform
The Departments have determined that these proposed regulations
meet the applicable standards provided in sections 3(a) and 3(b)(2) of
Executive Order 12988.
National Environmental Policy Act
The Department has determined that the issuance of the proposed
rule is categorically excluded under the Department of Interior's NEPA
procedures in 516 DM 2, Appendix 1.10. NMFS concurs with the Department
of Interior's determination that the issuance of the proposed rule
qualifies for a categorical exclusion and falls within the categorical
exclusion criteria in NOAA 216-3 Administrative Order, Environmental
Review Procedure.
Public Comments Solicited
The Services submit this proposed rule for public comment.
Particularly, comments are sought on:
(1) The applicability of the No Surprises assurance to the HCP
process in general;
(2) Alternative means, if any, for providing the No Surprises
assurances to property owners who apply for an HCP permit;
(3) The applicability of the No Surprises assurances to species
adequately covered by a section 10(a)(1)(B) permit;
(4) The permit-shield provision; and
(5) The proposed regulatory changes to 50 CFR Parts 17 and 222.
The Services will take into consideration the comments and any
additional information received by the Services by July 28, 1997, and
such will be considered in the development of a final rule.
List of Subjects
50 CFR Part 17
Endangered and threatened species, Export, Import, Reporting and
recordkeeping requirements, Transportation.
50 CFR Part 222
Administrative practices and procedure, Endangered and threatened
species, Exports, Imports, Reporting and recordkeeping requirements,
Transportation.
For the reasons set out in the preamble, the Services propose to
amend title 50, chapter I, subchapter B; and to amend title 50, chapter
II, subchapter C of the Code of Federal Regulations, as set forth
below:
PART 17--[AMENDED]
Subpart C--Endangered Wildlife
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
2. New paragraphs (b)(5) and (b)(6) are added to Sec. 17.22 to read
as follows:
Sec. 17.22 Permits for scientific purposes, enhancement of propagation
or survival, or for incidental taking.
* * * * *
(b) * * *
(5) Permit assurances. (i) Permit assurances will apply to
incidental take permits that are issued in accordance with paragraph
(b)(2) of this section for those species that are adequately provided
for under properly functioning conservation plans. Such assurances will
apply to those permittees who in good faith have complied with the
required terms and conditions of the permit and the conservation plan.
(ii) In negotiating unforeseen circumstances provisions for
conservation plans, the Director will not require the commitment of
additional land, property interests, or financial compensation beyond
the level of mitigation which was otherwise adequately provided for a
species under the terms of a properly functioning conservation plan.
Moreover, the Director will not seek any other form of additional
mitigation from a permittee except under unforeseen circumstances.
(iii) If additional mitigation measures are subsequently deemed
necessary to provide for the conservation of a species that was
otherwise adequately covered under the terms of a properly functioning
conservation plan, the obligation for such measures will not rest with
the permittee.
(iv) If unforeseen circumstances warrant the requirement of
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation will maintain the
original terms of the conservation plan to the maximum extent possible.
Further, any such changes will be limited to modifications within
Conserved Habitat areas, if any, or to the conservation plan's
operating conservation program for the affected species. Additional
mitigation requirements will not involve the payment of additional
compensation or apply to parcels of land or property interests
available for development or land management under the original terms
of the conservation plan without the consent of the permittee.
(v) The following criteria must be used for determining whether and
when unforeseen circumstances arise, where the government could request
review of certain aspects of the conservation plan's program.
(A) The Director will have the burden of demonstrating that such
unforeseen circumstances exist, using the best scientific and
commercial data available. The Director's findings must be clearly
documented and based upon reliable technical information regarding the
status and habitat requirements of the affected species.
(B) In deciding whether any unforeseen circumstances exist which
might warrant requiring additional mitigation from a permittee, the
Director will consider, but not be limited to, the following factors:
size of the current range of affected species; percentage of range
adversely affected by the conservation plan; percentage of range
conserved by the conservation plan; ecological significance of that
portion of the range affected by the conservation plan; level of
knowledge about the affected species and the degree of specificity of
the species' conservation program under the conservation plan; whether
the conservation plan was originally designed to provide an overall net
benefit to the affected species and contained measurable criteria for
assessing the biological success of the conservation plan; and whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected species
in the wild.
(vi) The Director will not seek additional mitigation for a species
from a permittee where the terms of a properly functioning conservation
plan agreement were designed to provide an overall net benefit for that
species and contained measurable criteria for the biological success of
the conservation plan which have been or are being met.
(vii) Nothing in this rule will be construed to limit or constrain
the Director or any other governmental agency from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
(6) Effect of a permit. Compliance with the terms of an incidental
take permit constitutes compliance with the
[[Page 29097]]
requirements of sections 9 and 10 of the ESA with respect to the
species covered by the permit regardless of changes in circumstances,
policy, and regulation, unless a change in statute or court order
specifically requires that assurances given in the original permit be
modified or withdrawn.
* * * * *
Subpart D--Threatened Wildlife [Amended]
3. New paragraphs (b)(5) and (b)(6) are added to Sec. 17.32 to read
as follows:
Sec. 17.32 Permits--General.
* * * * *
(b)* * *
(5) Permit assurances. (i) Permit assurances will apply to
incidental take permits that are issued in accordance with paragraph
(b)(2) of this section for those species that are adequately provided
for under properly functioning conservation plans. Such assurances will
apply to those permittees who in good faith have complied with the
required terms and conditions of the permit and the conservation plan.
(ii) In negotiating unforeseen circumstances provisions for
conservation plans, the Director will not require the commitment of
additional land, or financial compensation beyond the level of
mitigation which was otherwise adequately provided for a species under
the terms of a properly functioning conservation plan. Moreover, the
Director will not seek any other form of additional mitigation from a
permittee except under unforeseen circumstances.
(iii) If additional mitigation measures are subsequently deemed
necessary to provide for the conservation of a species that was
otherwise adequately covered under the terms of a properly functioning
conservation plan, the obligation for such measures will not rest with
the permittee.
(iv) If unforeseen circumstances warrant the requirement of
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation will maintain the
original terms of the conservation plan to the maximum extent possible.
Further, any such changes will be limited to modifications within
Conserved Habitat areas, if any, or to the conservation plan's
operating conservation program for the affected species. Additional
mitigation requirements will not involve the payment of additional
compensation or apply to parcels of land, or property interests
available for development or land management under the original terms
of the conservation plan without the consent of the permittee.
(v) The following criteria must be used for determining whether and
when unforeseen circumstances arise, where the government could request
review of certain aspects of the conservation plan's program.
(A) The Director will have the burden of demonstrating that such
unforeseen circumstances exist, using the best scientific and
commercial data available. The Director's findings must be clearly
documented and based upon reliable technical information regarding the
status and habitat requirements of the affected species.
(B) In deciding whether any unforeseen circumstances exist which
might warrant requiring additional mitigation from a permittee, the
Director will consider, but not be limited to, the following factors:
size of the current range of affected species; percentage of range
adversely affected by the conservation plan; percentage of range
conserved by the conservation plan; ecological significance of that
portion of the range affected by the conservation plan; level of
knowledge about the affected species and the degree of specificity of
the species' conservation program under the conservation plan; whether
the conservation plan was originally designed to provide an overall net
benefit to the affected species and contained measurable criteria for
assessing the biological success of the conservation plan; and whether
failure to adopt additional conservation measures would appreciably
reduce the likelihood of survival and recovery of the affected species
in the wild.
(vi) The Director will not seek additional mitigation for a species
from a permittee where the terms of a properly functioning conservation
plan agreement were designed to provide an overall net benefit for that
species and contained measurable criteria for the biological success of
the conservation plan which have been or are being met.
(vii) Nothing in this rule will be construed to limit or constrain
the Director or any other governmental agency from taking additional
actions at its own expense to protect or conserve a species included in
a conservation plan.
(6) Effect of a permit. Compliance with the terms of an incidental
take permit constitutes compliance with the requirements of sections 9
and 10 of the ESA with respect to the species covered by the permit
regardless of changes in circumstances, policy, and regulation, unless
a change in statute or court order specifically requires that
assurances given in the original permit be modified or withdrawn.
* * * * *
PART 222--[AMENDED]
Subpart C--Endangered Fish or Wildlife Permits
4. The authority citation for part 222 continues to read as
follows:
Authority: 16 U.S.C. 1531 et seq.; subpart D also issued under
16 U.S.C. 1361 et seq.
5. New paragraphs (g) and (h) are added to Sec. 222.22 to read as
follows:
Sec. 222.22 Permits for the incidental taking of endangered species.
* * * * *
(g) Permit assurances. (1) Permit assurances will only apply to
permits for Habitat Conservation Plans that are issued in accordance
with paragraph (c) of this section for those species that are
adequately provided for under properly functioning conservation plans.
Such assurances will apply to those permittees who in good faith have
complied with the required terms and conditions of the permit and the
conservation plan.
(2) In negotiating the unforeseen circumstances provisions for
conservation plans, NMFS will not require the commitment of additional
land, water, or financial compensation beyond the level of mitigation
that was otherwise adequately provided for a species under the terms of
a properly functioning conservation plan. Moreover, NMFS will not seek
any other form of additional mitigation from a permittee except under
extraordinary circumstances.
(3) If additional mitigation measures are subsequently deemed
necessary to provide for the conservation of a species that was
otherwise adequately covered under the terms of a properly functioning
conservation plan, the obligation for such measures will not rest with
the permittee.
(4) If extraordinary circumstances warrant the requirement of
additional mitigation from a permittee who is in compliance with the
conservation plan's obligations, such mitigation will maintain the
original terms of the conservation plan to the maximum extent possible.
Further, any such changes will be limited to modifications within
Conserved Habitat areas or to the conservation plan's operating
conservation program for the affected species. Additional mitigation
requirements will not involve the payment of additional compensation or
apply to parcels of land available for development or land/water
management
[[Page 29098]]
under the original terms of the conservation plan without the consent
of the permittee:
(5) The following criteria must be used for determining whether and
when extraordinary circumstances arise, where the government could
request review of certain aspects of the conservation plan's program.
(i) NMFS will have the burden of demonstrating that such
extraordinary circumstances exist, using the best scientific and
commercial data available. Their findings must be clearly documented
and based upon reliable technical information regarding the status and
habitat requirements of the affected species.
(ii) In deciding whether any extraordinary circumstances exist
which might warrant requiring additional mitigation from a permittee,
NMFS will consider, but not be limited to, the following factors:
(A) Size of the current range of affected species;
(B) Percentage of range adversely affected by the conservation
plan;
(C) Percentage of range conserved by the conservation plan;
(D) Ecological significance of that portion of the range affected
by the conservation plan;
(E) Level of knowledge about the affected species and the degree of
specificity of the species' conservation program under the conservation
plan;
(F) Whether the conservation plan was originally designed to
provide an overall net benefit to the affected species and contained
measurable criteria for assessing the biological success of the
conservation plan; and
(G) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected species in the wild.
(6) NMFS will not seek additional mitigation for a species from a
permittee where the terms of a properly functioning conservation plan
agreement were designed to provide an overall net benefit for that
species and contained measurable criteria for the biological success of
the conservation plan which have been or are being met.
(7) Nothing in this rule will be construed to limit or constrain
NMFS or any other governmental agency from taking additional actions at
its own expense to protect or conserve a species included in a
conservation plan.
(h) Effect of a permit. Compliance with the terms of an incidental
take permit constitutes compliance with the requirements of section 9
and 10 the ESA with respect to the species covered by the permit
regardless of changes in circumstances, policy, and regulation, unless
a change in statute or court order specifically requires that
assurances given in the original permit be modified or withdrawn.
Dated: May 21, 1997.
Donald J. Barry,
Acting Assistant Secretary, Fish, Wildlife, and Parks, Department of
the Interior.
Dated: May 22, 1997.
Rolland A. Schmitten,
Acting Administrator for Fisheries, National Marine Fisheries Service.
[FR Doc. 97-14082 Filed 5-23-97; 2:23 pm]
BILLING CODE 4310-55-P
Complete official Federal Register PDF
FR Doc. 97-14057 Notice of Public Meeting on Review of the Control of Hazardous Energy Sources (Lockout/Tagout) Standard (29 CFR 1910.147)
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29089-29090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14057]
=======================================================================
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DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1910
[Docket No. S-012-B]
Notice of Public Meeting on Review of the Control of Hazardous
Energy Sources (Lockout/Tagout) Standard (29 CFR 1910.147)
AGENCY: Occupational Safety and Health Administration, U.S. Department
of Labor.
ACTION: Notice of public meeting.
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SUMMARY: The Occupational Safety and Health Administration (OSHA) is
conducting a review of the Control of Hazardous Energy Sources
(Lockout/Tagout) standard in order to determine, consistent with
Executive Order 12866 on Regulatory Planning and Review and section 610
of the Regulatory Flexibility Act, whether this standard should be
maintained without change, rescinded, or modified in order to make it
more effective or less burdensome, consistent with the objectives of
the Occupational Safety and Health Act. The review will consider the
application of Executive Order 12866 and the directive of the
Regulatory Flexibility Act to achieve statutory goals with as little
economic impact as possible on small employers.
Written public comments on all aspects of compliance with the
Lockout/Tagout standard are welcomed. OSHA will also hold a
stakeholder's meeting to provide an opportunity for interested parties
to comment on whether the Lockout/Tagout standard should be eliminated,
modified, or continued without change to obtain the objectives
described above.
DATES: The public meeting will be held on Monday, June 30, 1997. The
meeting will begin at 1 p.m. and is scheduled to end at 4 p.m. Written
comments should be received by August 1, 1997 in the OSHA Docket Office
at the address given below.
ADDRESSES: The public meeting will be held in Room N3437 of the Frances
Perkins Building, 200 Constitution Avenue, NW., Washington, DC 20210.
Requests to Appear and Written Comments: OSHA requests that any
person wishing to appear at the public meeting notify OSHA in writing.
To assure that time is provided for oral comments, the request should
be received by OSHA no later than Monday, June 23, 1997, and should
identify the person and/or organization intending to appear, address
and phone/fax number, the amount of time requested, and a brief summary
of the comments to be presented. Please send written requests to appear
to Nancy Dorris at the following address: Office of Regulatory
Analysis, Directorate of Policy, Occupational Safety and Health
Administration, Room N3627, 200 Constitution Avenue, NW., Washington,
DC 20210, Telephone (202) 219-4690, extension 134, Fax (202) 219-4383.
Written comments should be received by August 1, 1997 in the OSHA
Docket Office, Room N2625, 200 Constitution Avenue, NW., Washington, DC
20210, Telephone (202) 219-7894. All comments received from interested
parties will be included in Docket S-012-B, and will be available for
public review in the OSHA Docket Office.
Persons with disabilities who need special accommodations should
contact Nancy Dorris, by Monday, June 23, 1997, at the address
indicated below.
FOR FURTHER INFORMATION CONTACT: Nancy Dorris, Office of Regulatory
Analysis, Directorate of Policy, Occupational Safety and Health
Administration, Room N3627, 200 Constitution Avenue, NW., Washington,
DC 20210, Telephone (202) 219-4690, extension 134, Fax (202) 219-4383.
SUPPLEMENTARY INFORMATION: In 1989, OSHA promulgated the Control of
Hazardous Energy Sources (Lockout/Tagout) Standard (29 CFR 1910.147)
(54 FR 36644, Sept. 1, 1989). The standard applies to general industry
employment under 29 CFR part 1910, but does not cover maritime,
agriculture, or construction employment. The standard addresses
practices and procedures that are necessary to disable machinery or
equipment and to prevent the release of potentially hazardous energy
while maintenance and servicing activities are being performed.
The Lockout/Tagout standard requires that lockout be utilized for
equipment which is designed with a lockout capability except when the
employer can demonstrate that utilization of tagout provides full
employee protection. For equipment which was not designed to be locked
out, the employer may use tagout. In addition, the standard also
supplements and supports other lockout related provisions contained
elsewhere in OSHA's general industry standards by requiring that
comprehensive and uniform procedures be used to comply with those
provisions. The standard contains definitive criteria for establishing
an effective program for locking out or tagging out energy isolating
devices and requires training for authorized and affected employees.
The standard also requires the employer to implement the specified
procedures and to utilize effective control measures based on the
workplace hazards that are encountered.
OSHA estimated in the Final Regulatory Impact Analysis for the
Lockout/Tagout standard that the rule would prevent 122 fatalities,
28,416 lost-workday injuries, and 31,926 non-lost-workday injuries
annually. OSHA also estimated that the standard would have first-year
costs of $214.3 million and annual costs of $135.4 million in
successive years (54 FR 36644, Sept. 1, 1989).
In its supplemental statement of reasons for the standard (58 FR
16612, March 30, 1993), OSHA explained the statutory criteria that
apply to safety standards rulemakings. The Agency must find, inter
alia, that the standard
[[Page 29090]]
eliminates or substantially reduces a significant risk of material
harm, that compliance is economically and technologically feasible,
that the standard employs the most cost-effective measures that will
achieve its regulatory goals, and that the standard is supported by
substantial evidence in the record. See International Union, UAW v.
OSHA, 37 F.3d 664 (1994) (upholding criteria).
The purpose of the review is to determine whether the standard
should be continued without change, rescinded, or amended to make it
more effective or less burdensome, consistent with the objectives of
the Occupational Safety and Health Act. The review will consider the
application of Executive Order 12866 on Regulatory Planning and Review
(58 FR 51735, 51739, Oct. 4, 1993) and the directive of the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) to achieve statutory goals while
imposing as little economic impact as possible on small employers. In
the event the Agency determines, based on the results of this review,
that the rule should be rescinded or modified, appropriate rulemaking
will be initiated.
An important step in the review process involves the gathering and
analysis of information from affected persons about their experience
with the rule and any material changes in circumstances since issuance
of the rule. This notice requests written comments and announces a
public meeting to provide an opportunity for interested parties to
comment on the continuing need for, adequacy or inadequacy, and
potential improvement of this rule, consistent with statutory
objectives. Comment concerning the following subjects would assist the
Agency in determining whether to retain the standard unchanged or to
initiate rulemaking for purposes of revision or rescission:
1. The benefits and utility of the rule in its current form and, if
amended, in its amended form;
2. Whether potentially effective and reasonably feasible
alternatives to the standard exist;
3. The continued need for the rule;
4. The complexity of the rule;
5. Whether and to what extent the rule overlaps, duplicates, or
conflicts with other Federal, State, and local governmental rules;
6. Information on any new developments in technology, economic
conditions, or other factors affecting the ability of affected firms to
comply with the Lockout/Tagout rule;
7. Alternatives to the rule or portions of the rule that would
minimize significant impacts on small businesses while achieving the
objectives of the Occupational Safety and Health Act; and
8. The effectiveness of the standard as implemented by small
entities.
Persons making timely written requests to speak at the public
meeting will be given priority for oral comments, as time permits.
Other persons wishing to speak should register at the meeting from
12:30 to 1:00. OSHA will make every effort to accommodate individuals
wishing to speak at the public meeting.
Authority: This document was prepared under the direction of
Gregory R. Watchman, Acting Assistant Secretary of Labor for
Occupational Safety and Health, 200 Constitution Avenue, NW.,
Washington, DC 20210.
Signed at Washington, DC, this 23rd day of May, 1997.
Gregory R. Watchman,
Acting Assistant Secretary.
[FR Doc. 97-14057 Filed 5-28-97; 8:45 am]
BILLING CODE 4510-26-P
Complete official Federal Register PDF
FR Doc. 97-14025 Radio Broadcasting Services; Ironton and Malden, MO
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29090-29091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14025]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 97-136, RM-9083]
Radio Broadcasting Services; Ironton and Malden, MO
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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[[Page 29091]]
SUMMARY: This document requests comments on a petition filed by B.B.C.
Inc., proposing the substitution of Channel 225C2 for Channel 225C3 at
Malden, Missouri, and modification of the license for Station KMAL(FM)
to specify operation on Channel 225C2. The coordinates for Channel
225C2 are 36-39-48 and 89-47-39. To accommodate the substitution at
Malden, we shall also propose to substitute Channel 224A for Channel
225A at Ironton, Missouri, and modify the license for Station KYLS to
specify operation on Channel 224A. The coordinates for Channel 224A are
37-34-23 and 90-41-35. We shall propose to modify the license for
Station KMAL(FM) in accordance with Section 1.420(g) of the
Commission's Rules and will not accept competing expressions of
interest for the use of the channel or require petitioner to
demonstrate the availaility of an additional equivalent class channel
for use by such parties.
DATES: Comments must be filed on or before July 14, 1997, and reply
comments on or before July 29, 1997.
ADDRESSES: Federal Communications Commission, Washington, DC. 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner's counsel, as follows: John M. Pelkey, Haley Bader
& Potts P.L.C., 4350 North Fairfax Drive, Suite 900, Arlington,
Virginia 22203-1633.
FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, MM Docket No. 97-136, adopted May 14, 1997,
and released May 23, 1997. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the Commission's Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., Suite 140,
Washington, DC. 20037, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of 1980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contact.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 97-14025 Filed 5-28-97; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 97-14021 Radio Broadcasting Services; Spring Valley, MN, and Osage, IA
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Page 29090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-14021]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 73
[MM Docket No. 97-135, RM-9087]
Radio Broadcasting Services; Spring Valley, MN, and Osage, IA
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: This document requests comments on a petition filed by KVGO,
Inc., proposing the substitution of Channel 282C3 for Channel 282A at
Spring Valley, Minnesota, and modification of the license for Station
KVGO(FM) to specify operation on Channel 282C3. The coordinates for
Channel 282C3 are 43-38-23 and 92-38-30. To accommodate the
substitution at Spring Valley we shall also propose the substitution of
Channel 254A for Channel 279A at Osage, Iowa, and modification of the
license for Station KCZY accordingly. The coordinates for Channel 254A
at Osage are 43-19-20 and 92-51-22. We shall propose to modify the
license for Station KVGO(FM) in accordance with Section 1.420(g) of the
Commission's Rules and will not accept competing expressions of
interest for the use of the channel or require petitioner to
demonstrate the availability of an additional equivalent class channel
for use by such parties.
DATES: Comments must be filed on or before July 14, 1997, and reply
comments on or before July 29, 1997.
ADDRESSES: Federal Communications Commission, Washington, DC. 20554. In
addition to filing comments with the FCC, interested parties should
serve the petitioner's counsel, as follows: James A. Koerner, Baraff,
Koerner & Olender, P.C., Three Bethesda Metro Center, Suite 640,
Bethesda, Maryland 20814-5392.
FOR FURTHER INFORMATION CONTACT: Kathleen Scheuerle, Mass Media Bureau,
(202) 418-2180.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rule Making, MM Docket No. 97-135, adopted May 14, 1997,
and released May 23, 1997. The full text of this Commission decision is
available for inspection and copying during normal business hours in
the Commission's Reference Center (Room 239), 1919 M Street, NW.,
Washington, DC. The complete text of this decision may also be
purchased from the Commission's copy contractors, International
Transcription Services, Inc., 2100 M Street, NW., Suite 140,
Washington, DC. 20037, (202) 857-3800.
Provisions of the Regulatory Flexibility Act of l980 do not apply
to this proceeding.
Members of the public should note that from the time a Notice of
Proposed Rule Making is issued until the matter is no longer subject to
Commission consideration or court review, all ex parte contacts are
prohibited in Commission proceedings, such as this one, which involve
channel allotments. See 47 CFR 1.1204(b) for rules governing
permissible ex parte contact.
For information regarding proper filing procedures for comments,
see 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Radio broadcasting.
Federal Communications Commission.
John A. Karousos,
Chief, Allocations Branch, Policy and Rules Division, Mass Media
Bureau.
[FR Doc. 97-14021 Filed 5-28-97; 8:45 am]
BILLING CODE 6712-01-P
Complete official Federal Register PDF
FR Doc. 97-13973 Airworthiness Directives; Raytheon Aircraft Company Models 1900, 1900C, and 1900D Airplanes
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29086-29088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13973]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 97-CE-11-AD]
RIN 2120-AA64
Airworthiness Directives; Raytheon Aircraft Company Models 1900,
1900C, and 1900D Airplanes
AGENCY: Federal Aviation Administration, DOT.
[[Page 29087]]
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes to adopt a new airworthiness directive
(AD) that would apply to certain Raytheon Aircraft Company (Raytheon)
Models 1900, 1900C, and 1900D airplanes (formerly referred to as Beech
Models 1900, 1900C, and 1900D airplanes). The proposed AD would require
fabricating and installing a placard that restricts the use of the
forward and aft vent blower assemblies to only the ``OFF'' or ``HIGH''
position. The proposed AD would also require incorporating a
modification that would replace the bearings on the vent blower
assemblies with improved design bearings, and provide thermal
protection for the vent blowers, as applicable. Incorporating the
proposed modification would eliminate the need for the placard. The
proposed AD is the result of vent blower assembly bearings seizing and
locking the blower motor on several of the affected airplanes. The
actions specified by the proposed AD are intended to prevent the vent
blower assembly bearings from seizing, which could result in smoke
emanating from the insulating material covering the electrical wiring
and entering the airplane cabin.
DATES: Comments must be received on or before July 25, 1997.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Central Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No. 97-CE-11-AD, Room 1558, 601 E.
12th Street, Kansas City, Missouri 64106. Comments may be inspected at
this location between 8 a.m. and 4 p.m., Monday through Friday,
holidays excepted.
Service information that applies to the proposed AD may be obtained
from the Raytheon Aircraft Company, P.O. Box 85, Wichita, Kansas 67201-
0085. This information also may be examined at the Rules Docket at the
address above.
FOR FURTHER INFORMATION CONTACT: Mr. Harvey Nero, Aerospace Engineer,
Wichita Aircraft Certification Office, FAA, 1801 Airport Road, Mid-
Continent Airport, Wichita, Kansas 67209; telephone (316) 946-4137;
facsimile (316) 946-4407.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications should identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report that summarizes each FAA-public contact concerned
with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket No. 97-CE-11-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Central Region, Office of the Assistant Chief Counsel,
Attention: Rules Docket No. 97-CE-11-AD, Room 1558, 601 E. 12th Street,
Kansas City, Missouri 64106.
Discussion
The FAA has received reports of vent blower assembly bearings
seizing and locking the blower motor on several Raytheon Model 1900D
airplanes. Power was not interrupted in each of these incidents, and
high current continued to flow through the low speed resistors. This
caused smoke to emanate from the insulating material covering the
electrical wiring. This condition, if not corrected, could result in
smoke emanating from the insulating material covering the electrical
wiring and entering the airplane cabin.
The affected vent blower assemblies incorporate Raytheon (Beech)
part number (P/N) 114-380028-1 or P/N 114-380028-3.
Relevant Service Information
Raytheon has issued Service Bulletin No. 2721, Issued: January,
1997, which specifies the incorporation of the following modification
kits:
--Electromech Technologies Kit No. EM630-201-1 or EM630-201-2 (as
appropriate for the blower serial number). When incorporated, these
kits would replace the bearings in the vent blower assemblies with
improved design bearings, and provide thermal protection for the vent
blowers on the P/N 114-380028-1 vent blower assembly. The procedures
for incorporating these kits are included in the Update Procedures for
the Electromech Technologies EM630 Blower (Raytheon P/N 114-380028-1
for Installation of Kit P/N's 630-201-1 and 630-201-2), dated December
9, 1996; and
--Advanced Industries Kit No. BC80A905. When incorporated, this kit
would provide thermal protection for the vent blowers on the P/N 114-
380028-3 vent blower assembly. The procedures for incorporating this
kit are included in Advanced Industries, Inc. Installation Procedure
for the Resistor Wiring Harness Kit on the BC80A-1 Blower, dated
December 19, 1996.
The FAA's Determination
After examining the circumstances and reviewing all available
information related to the incidents described above, including the
service information previously referenced, the FAA has determined that
AD action should be taken to prevent other vent blower assembly
bearings from seizing, which could result in smoke emanating from the
insulating material covering the electrical wiring and entering the
airplane cabin.
Explanation of the Provisions of the Proposed AD
Since an unsafe condition has been identified that is likely to
exist or develop in other Raytheon Models 1900, 1900C, and 1900D
airplanes (formerly referred to as Beech Models 1900, 1900C, and 1900D
airplanes) of the same type design that are equipped with either P/N
114-380028-1 vent blower assemblies or P/N 114-380028-3 vent blower
assemblies, the FAA is proposing an AD. The proposed AD would require
(1) fabricating and installing a placard that restricts the use of the
vent blower assemblies; and (2) incorporating a modification that would
replace the bearings in the vent blower assemblies with improved design
bearings, and provide thermal protection for the vent blowers, as
applicable. Incorporating the proposed modification would eliminate the
need for the placard. Accomplishment of the proposed modifications
would be required in accordance with the service information previously
referenced.
[[Page 29088]]
Cost Impact
The FAA estimates that 500 airplanes in the U.S. registry would be
affected by the proposed AD, that it would take approximately 7
workhours per airplane to accomplish the proposed modification, and
that the average labor rate is approximately $60 an hour. Parts cost
approximately $500 per airplane. Based on these figures, the total cost
impact of the proposed AD on U.S. operators is estimated to be
$460,000. These figures are based on the presumption that no owner/
operator of the affected airplanes has incorporated the proposed
modification.
Raytheon has informed the FAA that approximately 700 kits have been
shipped from the Raytheon Aircraft Authorized Service Center. This is
enough to equip 350 of the affected airplanes (two vent blower
assemblies per airplane). Presuming that each of the 350 sets of kits
is incorporated on an affected airplane, this would reduce the cost
impact of the proposed AD by $322,000 from $460,000 to $138,000.
Regulatory Impact
The regulations proposed herein would 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 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that this action (1) is
not a ``significant regulatory action'' under Executive Order 12866;
(2) is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated,
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. A copy of the draft regulatory evaluation
prepared for this action has been placed in the Rules Docket. A copy of
it may be obtained by contacting the Rules Docket at the location
provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 USC 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by adding a new airworthiness directive
(AD) to read as follows:
Raytheon Aircraft Company: Docket No. 97-CE-11-AD.
Applicability: The following model and serial number airplanes,
certificated in any category, that are equipped with either P/N 114-
380028-1 vent blower assemblies or P/N 114-380028-3 vent blower
assemblies:
------------------------------------------------------------------------
Model Serial numbers
------------------------------------------------------------------------
1900................................. UA-2 and UA-3.
1900C................................ UB-1 through UB-74, and UC-1
through UC-174.
1900C (C-12J)........................ UD-1 through UD-6.
1900D................................ UE-1 through UE-244.
------------------------------------------------------------------------
Note 1: This AD applies to each airplane identified in the
preceding applicability provision, regardless of whether it has been
modified, altered, or repaired in the area subject to the
requirements of this AD. For airplanes that have been modified,
altered, or repaired so that the performance of the requirements of
this AD is affected, the owner/operator must request approval for an
alternative method of compliance in accordance with paragraph (e) of
this AD. The request should include an assessment of the effect of
the modification, alteration, or repair on the unsafe condition
addressed by this AD; and, if the unsafe condition has not been
eliminated, the request should include specific proposed actions to
address it.
Compliance: Required as indicated in the body of this AD, unless
already accomplished.
To prevent the vent blower assembly bearings from seizing, which
could result in smoke emanating from the insulating material
covering the electrical wiring and entering the airplane cabin,
accomplish the following:
(a) Within the next 100 hours time-in-service (TIS) after the
effective date of this AD, accomplish the following:
(1) Fabricate a placard, using letters at least \1/8\-inch in
height, with the words: ``Operate vent blowers in HIGH or OFF
position only''.
(2) Install this placard near the vent blower control switch
within the pilot's clear view.
(3) This placard requirement may be terminated when the
modifications required by paragraph (b) of this AD are incorporated.
(b) Upon accumulating 2,000 total hours TIS or within the next
1,000 hours TIS after the effective date of this AD, whichever
occurs later, incorporate one of the following kits, as applicable,
in accordance with the referenced kit instructions, as specified in
Raytheon Service Bulletin No. 2721. Issued: January, 1997:
(1) For P/N 114-380028-1 vent blower assemblies: Electromech
Technologies Kit No. EM630-201-1 or EM630-201-2 (as appropriate for
the blower serial number), in accordance with the Update Procedures
for the Electromech Technologies EM630 Blower (Raytheon P/N 114-
380028-1 for Installation of Kit P/N's 630-201-1 and 630-201-2),
dated December 9, 1996. These kits, when incorporated, replace the
bearings on the vent blower assemblies with improved design
bearings, and provide thermal protection for the vent blowers; or
(2) For P/N 114-380028-3: Advanced Industries Kit No. BC80A905
in accordance with Advanced Industries, Inc. Installation Procedure
for the Resistor Wiring Harness Kit on the BC80A-1 Blower, dated
December 19, 1996. This kit, when incorporated, provides thermal
protection for the vent blowers.
(c) As of the effective date of this AD, no person may install
P/N 114-380028-1 or P/N 114-380028-3 vent blower assemblies without
first incorporating the appropriate kit(s), as referenced in
paragraphs (b)(1) and (b)(2) of this AD.
(d) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
(e) An alternative method of compliance or adjustment of the
compliance time that provides an equivalent level of safety may be
approved by the Manager, Wichita Aircraft Certification Office
(ACO), 1801 Airport Road, Room 100, Mid-Continent Airport, Wichita,
Kansas 67209. The request shall be forwarded through an appropriate
FAA Maintenance Inspector, who may add comments and then send it to
the Manager, Wichita ACO.
Note 2: Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Wichita ACO.
(f) All persons affected by this directive may obtain copies of
the document referred to herein upon request to the Raytheon
Aircraft Company, P.O. Box 85, Wichita, Kansas 67201-0085; or may
examine this document at the FAA, Central Region, Office of the
Assistant Chief Counsel, Room 1558, 601 E. 12th Street, Kansas City,
Missouri 64106.
Issued in Kansas City, Missouri, on May 21, 1997.
Michael Gallagher,
Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 97-13973 Filed 5-28-97; 8:45 am]
BILLING CODE 4910-13-U
Complete official Federal Register PDF
FR Doc. 97-13962 Airworthiness Directives; Boeing Model 727 Series Airplanes
[Federal Register Volume 62, Number 103 (Thursday, May 29, 1997)]
[Proposed Rules]
[Pages 29081-29086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13962]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 62, No. 103 / Thursday, May 29, 1997 /
Proposed Rules
[[Page 29081]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 96-NM-263-AD]
RIN 2120-AA64
Airworthiness Directives; Boeing Model 727 Series Airplanes
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: This document proposes the supersedure of an existing
airworthiness directive (AD), applicable to certain Boeing Model 727
series airplanes, that currently requires that the FAA-approved
maintenance inspection program be revised to include inspections that
will give no less than the required damage tolerance rating for each
Structural Significant Item, and repair of cracked structure. That AD
was prompted by a structural re-evaluation by the manufacturer which
identified additional structural elements where, if damage were to
occur, supplemental inspections may be required for timely detection.
This action would require additional and expanded inspections, and
repair of cracked structure. This action also would expand the
applicability of the existing AD to include additional airplanes. The
actions specified by the proposed AD are intended to ensure the
continued structural integrity of the entire Boeing Model 727 fleet.
DATES: Comments must be received by July 7, 1997.
ADDRESSES: Submit comments in triplicate to the Federal Aviation
Administration (FAA), Transport Airplane Directorate, ANM-103,
Attention: Rules Docket No. 96-NM-263-AD, 1601 Lind Avenue, SW.,
Renton, Washington 98055-4056. Comments may be inspected at this
location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except
Federal holidays.
The service information referenced in the proposed rule may be
obtained from Boeing Commercial Airplane Group, P.O. Box 3707, Seattle,
Washington 98124-2207. This information may be examined at the FAA,
Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton,
Washington.
FOR FURTHER INFORMATION CONTACT: Walter Sippel, Aerospace Engineer,
Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office,
1601 Lind Avenue, SW., Washington; telephone (206) 227-2774; fax (206)
227-1181.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Communications shall identify the Rules Docket number
and be submitted in triplicate to the address specified above. All
communications received on or before the closing date for comments,
specified above, will be considered before taking action on the
proposed rule. The proposals contained in this notice may be changed in
light of the comments received.
Comments are specifically invited on the overall regulatory,
economic, environmental, and energy aspects of the proposed rule. All
comments submitted will be available, both before and after the closing
date for comments, in the Rules Docket for examination by interested
persons. A report summarizing each FAA-public contact concerned with
the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must submit a self-addressed,
stamped postcard on which the following statement is made: ``Comments
to Docket Number 96-NM-263-AD.'' The postcard will be date stamped and
returned to the commenter.
Availability of NPRMs
Any person may obtain a copy of this NPRM by submitting a request
to the FAA, Transport Airplane Directorate, ANM-103, Attention: Rules
Docket No. 96-NM-263-AD, 1601 Lind Avenue, SW., Renton, Washington
98055-4056.
Determination to Develop the Supplemental Structural Inspection Program
As part of its continuing work to maintain the structural integrity
of older transport category airplanes, in the early 1980's, the FAA
concluded that the incidence of fatigue cracking may increase as these
airplanes reach or exceed their design service objective (DSO). A
significant number of these airplanes were approaching or had exceeded
the DSO on which the initial type certification approval was
predicated. In light of this, and as a result of increased utilization,
longer operational lives, and the high levels of safety expected of the
currently operated transport category airplanes, the FAA determined
that a supplemental structural inspection program (SSIP) was necessary
to ensure a high level of structural integrity for all airplanes in the
transport fleet.
Issuance of Advisory Circular
As a follow-on from that determination, the FAA issued Advisory
Circular (AC No. 91-56), ``Supplemental Structural Inspection Program
for Large Transport Category Airplanes,'' dated May 6, 1981. The AC
provides guidance material to manufacturers and operators for use in
developing a continuing structural integrity program to ensure safe
operation of older airplanes throughout their operational lives. This
guidance material applies to large transport airplanes that were
certified under the fail-safe requirements of Civil Air Regulations 4b
or damage tolerance structural requirements of 14 CFR part 25, and that
have a maximum gross weight greater than 75,000 pounds. The procedures
set forth in this AC are applicable to the large transport category
airplanes operated under subpart D of 14 CFR part 91 and parts 121,
123, 125, and 135. The objective of the SSIP was to establish
inspection programs to ensure timely detection of fatigue cracking.
Development of the Supplemental Structural Inspection Program
In order to evaluate the effect of increased fatigue cracking with
respect to maintaining fail-safe design and damage tolerance of the
structure of Boeing Model 727 series airplanes,
[[Page 29082]]
Boeing conducted a structural reassessment of those airplanes, using
modern damage tolerance evaluation techniques. Boeing accomplished this
reassessment using the criteria contained in AC No. 91-56, as well as
14 CFR 25.571; Amdt. 25-45. During the reassessment, members of the
airline industry participated with Boeing in working group sessions and
developed the SSIP for Model 727 series airplanes. Engineers and
maintenance specialists from the FAA also attended these sessions to
observe these developments. Subsequently, based on the working group's
recommendations, Boeing developed the Supplemental Structural
Inspection Document (SSID).
Issuance of AD 84-21-05, Amendment 39-4920
On September 7, 1984, the FAA issued AD 84-21-05, amendment 39-4920
(49 FR 38931, October 2, 1984), which is applicable to certain Boeing
Model 727 series airplanes. That AD currently requires that the FAA-
approved maintenance inspection program be revised to include
inspections that will give no less than the required damage tolerance
rating (DTR) for each Structural Significant Item (SSI), and repair of
cracked structure. The AD references Boeing Document No. D6-48040-1,
``Supplemental Structural Inspection Document'' (SSID), Revision E,
dated June 21, 1983, as the appropriate source of service information.
That action was prompted by a structural re-evaluation that identified
additional structural components where fatigue cracking is likely to
occur. The requirements of that AD are intended to ensure the continued
structural integrity of the entire Boeing Model 727 fleet.
Actions Since Issuance of Previous AD
Since issuance of AD 84-21-05, the FAA has reconsidered the
following four aspects of the existing SSID:
1. Classification of Fuselage Skin as ``Damage Obvious'' or
``Malfunction Evident''
AC No. 91-56, Change 2, dated April 15, 1983, recommends that the
SSID should contain inspections of all critical parts or components for
each airplane to ensure the continued safe operation of the existing
fleet. The fuselage skin is an example of a critical component.
Cracking in any critical part or component, if not detected and
corrected in a timely manner, could result in reduced structural
integrity of the airplane.
Revision E of the SSID excluded the fuselage skin from directed
inspections, since it was classified as ``damage obvious'' or
``malfunction evident.'' At the time of this classification, Revision E
of the SSID relied on venting or flapping to indicate cracks in the
fuselage skin.
Venting is a gradual loss of cabin pressure as a result of cracking
in the pressurized area of the fuselage skin. Based on the design
philosophy of flapping, these cracks in the fuselage skin would grow
only to a specific length and then turn direction because of certain
structural components. Because venting and flapping were considered to
be readily apparent, Boeing considered that it was unnecessary to
provide for additional inspections of the fuselage skin. Reliance also
was placed on venting or flapping to allow for the safe operation of an
airplane with such cracks. This technique worked well in ground tests
and in some in-service incidents, but proved to be unreliable in other
cases.
In one such case, a large portion of Section 43 of the fuselage
structure separated from a Boeing Model 737 series airplane. Results of
a National Transportation Safety Board (NTSB) investigation revealed
that this incident occurred as a result of the catastrophic failure of
the fuselage skin at a lap joint. The results also revealed that,
contrary to the design philosophy, controlled decompression of the
structure (i.e., flapping or venting) did not occur due to the presence
of widespread fatigue damage. As a result of this failure, the NTSB
recommended that the SSID be revised to discontinue classification of
the fuselage skin as ``damage obvious'' or ``malfunction evident.''
The FAA concurs with the NTSB's recommendation. Therefore, the FAA
has determined that additional inspections are necessary to ensure
timely detection of cracks in the fuselage skin structure.
2. Deletions of Modified, Altered, or Repaired Structure From the SSIP
Paragraph 1.4 of Appendix 1, ``Guidelines for Development of
Supplemental Inspection Document,'' of AC No. 91-56, Change 2, dated
April 15, 1983, states, ``the effect of repairs and modifications
approved by the manufacturer should also be taken into account. In
addition, it may be necessary to consider the effect of repairs and
operator-approved modifications on individual airplanes. The operator
has the responsibility for ensuring notification and consideration of
any such aspects.''
In addition, the FAA's current policy is that operators of
transport category airplanes that are subject to AD's that mandate SSID
programs should follow the guidelines of AC No. 91-56 and should
continue to inspect any SSI that is modified, altered, or repaired in
any way. Any modification that affects the loading spectrum, stress
levels, or damage tolerance characteristics of the structure must be
reassessed to determine its impact on the inspection program. Such a
reassessment may require the development of additional inspection
requirements for that modification.
The FAA's policy also states that, ``* * * the [SSID] programs are
based on type design crack growth data generated from analysis or
structural tests using a realistic and conservative loading spectrum,
material properties, part geometry, etc. For this reason, structural
modifications that may increase stress levels in load carrying
structures, including maximum weight limit increases, cargo door
installations, and repairs to load carrying structures, must be
reassessed for its impact on the structural inspection program.''
(Reference: Transport Airplane Directorate's Policy Letter,
Information: Policy Regarding Impact of Modifications and Repairs on
the Damage Tolerance Characteristics of Transport Category Airplanes,
dated October 27, 1989. This letter will be retained in Rules Docket
No. 96-NM-263-AD.)
Section 5.0 of Revision E of the SSID contains provisions that
allow for the deletion of modified, altered, or repaired areas from the
SSIP because Boeing considers these areas not to be ``representative of
the fleet.'' The FAA is aware that there have been a significant number
of such deletions. As a result, contrary to the FAA's policy discussed
above, operators are not following the guidelines of AC No. 91-56 and
not continuing to inspect any SSI that is modified, altered, or
repaired in any way.
In addition, for Boeing Model 727 series airplanes that have been
converted from a passenger configuration to an all-cargo configuration
by the Supplemental Type Certification (STC) process, the FAA finds
that Revision E of the SSID does not include procedures for inspection
of new SSI's created by this conversion, or unmodified SSI's affected
by this conversion. (There are approximately 304 of these airplanes in
the worldwide fleet of which several are listed in the effectivity
listing of Revision E of the SSID.) These conversions have the effect
of removing SSI's from the SSIP and creating a large number of new
SSI's that have not been assessed. Consequently, airplanes that have
been
[[Page 29083]]
converted to an all-cargo configuration do not have a SSID that
specifies an inspection method and compliance time for each new SSI.
Additionally, an unmodified SSI also could require a new inspection
method and compliance time because the modification may increase the
loads or change the load distributions in that SSI. These conditions
would necessitate that the inspection interval for that affected,
unmodified SSI be shorter than required in the Boeing SSID. Hence, the
FAA finds that the objectives of the SSIP are not being met for these
modified airplanes.
Likewise, a design change (such as an increase in the maximum
certified weight or in the center of gravity limits) also may cause an
increase in the loads or change the load distributions in the affected,
unmodified SSI's. The effect of this increase or change would be
similar to the effect that a cargo conversion would have on an
unmodified SSI. As a result, the inspection interval for an affected,
unmodified SSI may need to be lower than required in the Boeing SSID.
Thus, the DTR specified in the SSID for any SSI affected by a design
change may no longer be applicable. Therefore, the FAA finds that the
objectives of the SSIP are not being met for airplanes with such design
changes.
Furthermore, in consideration of AC No. 91-56 and current FAA
policy, the FAA has determined that new inspection methods and
compliance times are necessary for areas that have been modified,
altered, or repaired to ensure timely detection of cracking in those
areas. The FAA also has determined that new inspection methods and
compliance times are necessary for those areas that were deleted from
the SSIP by previously approved alternative methods of compliance,
which includes those areas deleted in accordance with the requirements
of Section 5.0 of the SSID. Furthermore, the new inspection methods and
compliance times should meet the requirements of 14 CFR 25.1529, Amdt.
25-45; 14 CFR 25.571, Amdt. 25-45; 14 CFR 25.571, Amdt. 25-54; 14 CFR
25.571, Amdt. 25-72; or the guidelines of AC 91-56.
3. Candidate Fleet vs. Inspection Threshold Approach
Paragraph 4.4 of AC No. 91-56, Change 2, dated April 15, 1983,
states, ``Inspection thresholds for supplemental inspections should be
established. These inspections would be supplemental to the normal
inspection including the detailed internal inspections.'' Moreover,
paragraph 4.4.2 of AC No. 91-56 states, ``* * * this threshold should
be such as to include sufficient [high-cycle] airplanes in the
inspection to develop added confidence in the integrity of the
structure.* * *''
A properly established inspection threshold ensures that: (1) The
SSI inspections are accomplished; (2) fatigue cracks in SSI's are
detected in a timely manner; (3) airplanes are automatically added to
the SSIP; and (4) the SSIP includes a statistically valid number of
airplanes.
Among other things, Revision E of the SSID defines a candidate
fleet approach to ensure that fatigue cracks in SSI's are detected in a
timely manner in the entire fleet. The initial Boeing Model 727
candidate fleet consisted of a number of airplanes that had exceeded
30,000 flight cycles by January 31, 1983. In other words, Boeing
considered 30,000 flight cycles to be the threshold for the airplanes
in the candidate fleet. These airplanes were the most likely in the
fleet to experience initial fatigue damage since they had the highest
number of flight cycles. Boeing produced this SSID with the assumption
that the airplanes in the candidate fleet would continue to represent
the entire fleet and would have the highest number of flight cycles in
the fleet.
Under the existing SSIP, Boeing intended to periodically review the
airplanes in the candidate fleet for significant changes in fleet
distribution, composition, or utilization, and update the candidate
fleet, if any significant change was detected. It was intended that the
FAA would then mandate any change to the SSID through the rulemaking
process.
The FAA finds that the candidate fleet approach is deviating from
Boeing's original philosophy in that the candidate fleet has not been
updated to reflect changes (such as cargo conversions) in the fleet.
This situation could result in a statistically invalid number of
airplanes in the SSIP and undetected fatigue cracks in SSI's. The
candidate fleet approach also does not automatically account for non-
candidate airplanes that eventually accumulate more flight cycles than
that of certain candidate airplanes. High-cycle airplanes are more
likely to experience initial fatigue damage in the fleet. The
confidence in the structural integrity of the fleet of airplanes could
be reduced if high-cycle airplanes are excluded from the SSIP.
The FAA has reconsidered the candidate fleet approach described in
Revision E of the SSID, since it does not meet the guidelines of AC No.
91-56. The FAA has determined that the Boeing Model 727 SSIP must
contain inspection thresholds for all Boeing Model 727 series airplanes
to ensure the timely detection of fatigue cracks in the SSI's.
The FAA has reviewed the thresholds derived from Boeing's
reliability analysis. The analysis is based on a certain probability
that cracks will be detected in the inspected fleet before they
initiate on other airplanes that have not been inspected. The FAA has
determined that the thresholds recommended in the analysis of past
service experience of the Boeing Model 727 fleet are acceptable.
Therefore, for Model 727-100C and 727-200F series airplanes, the FAA
has determined that a threshold of 46,000 total flight cycles is
necessary in order to produce a statistically valid assessment of the
service history for these airplanes. For other Model 727 series
airplanes, the FAA has determined that a threshold of 55,000 total
flight cycles is necessary to produce a valid assessment. The threshold
for Model 727-100C and 727-200F series airplanes is lower than that of
other Model 727 series airplanes since Model 727-100C and 727-200F
series airplanes have a lower utilization rate and fewer airplanes in
the fleet. Since the utilization rate is lower for Model 727-100C and
727-200F series airplanes, these airplanes have accumulated fewer
flight cycles and have fewer airplanes with higher flight cycles than
that of the remaining fleet.
It should be noted that, although the proposed AD requires a
threshold, the FAA may approve requests for adjustments to the
compliance time [i.e., under paragraph (h)(1) of this proposed AD]
provided that no cracking is detected in the airplane structure. The
request should include a new inspection threshold and must include data
to substantiate that such an adjustment would provide an acceptable
level of safety.
Operators should note that the alternative inspection threshold may
be based solely on the analysis of the data of the existing fleet.
However, the FAA has determined that the analysis that derives the new
inspection threshold must include: (1) Data relevant to a sufficient
number of high-cycle airplanes, and (2) data that shows accomplishment
of the inspections of the SSI's. An adequate statistical sampling size
will provide confidence in the structural integrity of the fleet of
airplanes. Therefore, additional airplanes may need to be added to the
inspected fleet until a sufficient number of airplanes have been
inspected with no crack findings.
[[Page 29084]]
4. Transferability of Airplanes
Since issuance of the SSID and AD 84-21-05, the FAA has issued
several AD's that implement Corrosion Prevention and Control Programs
(CPCP) for aging airplanes. While developing the AD's that mandated the
CPCP, the FAA recognized that an operator of an airplane that has been
transferred from another operator could revise its maintenance program
to restart the compliance times for the required corrosion tasks. This
situation could lead to corrosion not being detected and corrected in a
timely manner, which could reduce the structural integrity of the
airplane.
As a result, the CPCP AD's require that operators establish a
program for accomplishment of the subject corrosion tasks before any
airplane can be added to an air carrier's operations specification.
Establishment of this program will ensure that airplanes transferred
from operator to operator are inspected and that corrosion is detected
in a timely manner.
The FAA's intent in AD 84-21-05 was that operators of candidate
fleet airplanes that have been previously operated under an FAA-
approved maintenance program accomplish the SSID inspections within the
compliance time established by the previous operator. The FAA assumed
that, under the existing SSID, these airplanes would be inspected in a
manner similar to CPCP requirements. However, the SSID and AD 84-21-05
do not address the transfer of airplanes in the candidate fleet from
one operator to another.
AD 84-21-05 currently requires that the revision to the maintenance
program be included and be implemented in accordance with the
procedures specified in Sections 5.0 and 6.0 of the SSID. However, the
FAA finds that these sections do not provide explicit instructions to
repetitively inspect airplanes that have been transferred from one
operator to another. It also does not specify that new operators must
continue the SSID inspections at the same frequency established by the
previous operator.
In addition, as AD 84-21-05 is currently worded, the FAA finds that
operators that acquire candidate fleet airplanes that have been
previously operated under a maintenance inspection program could revise
their programs to restart the compliance times. This situation is
contrary to standard AD requirements. An AD typically mandates an
initial compliance time and a repetitive interval that remains
unchanged for all operators of the affected airplanes.
As a result of these omissions, the SSID inspections of a candidate
fleet airplane could be deferred until it is required by the
maintenance inspection program of the new operator. For airplanes that
are transferred frequently, this situation could continue for the life
of the airplane. As a result, fewer Boeing Model 727 candidate fleet
airplanes are being inspected; thus, the size of the candidate fleet is
in effect reduced. Even if airplanes are ultimately inspected under
these circumstances, inspections would not be performed frequently
enough to maintain the applicable DTR. The FAA has determined that such
a reduction does not ensure the continued structural integrity of the
entire Boeing Model 727 fleet.
Implementation of procedures in the SSID that are similar to the
CPCP will ensure that: (1) Airplanes transferred from operator to
operator are inspected; (2) the SSIP includes a statistically valid
number of airplanes; and (3) fatigue cracks are detected in a timely
manner.
Therefore, the FAA finds that, to ensure the continued structural
integrity of the entire Model 727 fleet, the AD 84-21-05 must be
revised to include provisions that address the transfer of airplanes.
The FAA also finds that a program must be established to accomplish the
inspections before any airplane that is subject to this proposal can be
added to an air carrier's operations specifications.
FAA's Conclusions
In light of all the factors discussed above, the FAA has determined
that AD 84-21-05 does not adequately ensure timely detection of fatigue
cracking in SSI's. Fatigue cracking in those items, if not detected and
corrected in a timely manner, could result in reduced structural
integrity of the airplane.
Explanation of New Relevant Service Information
The FAA has reviewed and approved Boeing Document No. D6-48040-1,
``Supplemental Structural Inspection Document'' (SSID), Revision H,
dated June 29, 1994, which describes procedures for revising the FAA-
approved maintenance inspection program for all Boeing Model 727 series
airplanes. This revision of the Model 727 SSID incorporates additional
and expanded inspections from those that were contained in the previous
version and mandated by AD 84-21-05. The fuselage skin structure that
was the subject of an NTSB recommendation is included in these
inspections. The FAA finds that accomplishment of these inspections
will ensure the continuing structural integrity of the total Boeing
Model 727 fleet.
Explanation of Requirements of Proposed Rule
Since an unsafe condition has been identified that is likely to
exist or develop on other products of this same type design, the
proposed AD would supersede AD 84-21-05.
Paragraph (a) of the proposed AD restates the requirements of AD
84-21-05.
Paragraph (b) of the proposed AD would require incorporation of a
revision into the FAA-approved maintenance inspection program that
provides no less than the required DTR for each SSI listed in Revision
H of the SSID.
Paragraph (c) of the proposed AD would establish specific
compliance times for performing the initial inspection of the structure
identified in Revision H of the SSID. Once the initial inspection has
been performed, operators would be required to perform repetitive
inspections at the intervals specified in the Document in order to
remain in compliance with their maintenance inspection programs, which
would have been revised in accordance with paragraph (b) of this
proposed AD.
Paragraph (d) of the proposed AD would require, for airplanes on
which any design change or repair has been accomplished prior to the
effective date of this proposed AD, a revision to the FAA-approved
maintenance inspection program to include an inspection method for any
new or affected SSI, and to include the compliance times for this
inspection. This paragraph also would require that any new inspection
method and the compliance times be approved by the FAA.
Paragraph (e) of the proposed AD would require that the repair of
any cracked structure is to be accomplished in accordance with an FAA-
approved method.
Paragraph (f) of the proposed AD would require, for airplanes on
which any design change or repair has been accomplished after the
effective date of this proposed AD, a revision to the FAA-approved
maintenance inspection program to include a new inspection method for
any new or affected SSI, and to include the compliance times for this
inspection. This paragraph also would require that any new inspection
method and the compliance times be approved by the FAA.
Before any airplane that is subject to this proposed AD can be
added to an air carrier's operations specifications, a program for the
accomplishment of the
[[Page 29085]]
inspections required by this proposed AD must be established. Paragraph
(g) of the proposed AD would require accomplishment of the following:
1. For airplanes that have been inspected in accordance with this
proposed AD, the inspection of each SSI must be accomplished by the new
operator in accordance with the previous operator's schedule and
inspection method, or the new operator's schedule and inspection
method, whichever would result in the earlier accomplishment date for
that SSI inspection. The compliance time for accomplishment of this
inspection must be measured from the last inspection accomplished by
the previous operator. After each inspection has been performed once,
each subsequent inspection must be performed in accordance with the new
operator's schedule and inspection method.
2. For airplanes that have not been inspected in accordance with
this proposed AD, the inspection of each SSI must be accomplished
either prior to adding the airplane to the air carrier's operations
specification, or in accordance with a schedule and an inspection
method approved by the FAA. After each inspection has been performed
once, each subsequent inspection must be performed in accordance with
the new operator's schedule.
Accomplishment of these inspections will ensure that: (1)
Operators' newly acquired airplanes comply with its SSIP before being
operated; and (2) frequently transferred aircraft are not permitted to
operate without accomplishment of the inspections defined in the SSID.
Differences Between SSID and Proposed AD
Operators should note the following differences between the
procedures specified in Revision H of the SSID and the proposed
requirements of this AD:
1. Paragraphs 5.1.17 and 5.1.18 of the General Instructions of
Revision H of the SSID permit deletions of modified, altered, or
repaired structure from the SIP. As described previously in Item 2 of
the ``Actions Since Issuance of Previous AD'' section of this preamble,
the FAA has determined that such deletions are unacceptable. Therefore,
for airplanes on which the areas specified in the SSID have been
modified, altered, or repaired, the proposed AD would require a
revision to the operator's existing SSIP to include procedures for
accomplishing a new FAA-approved inspection method that provides a new
DTR for that SSI.
2. Revision H of the SSID bases the supplemental inspections on
specific high-cycle airplanes (i.e., candidate fleet airplanes) and
does not include an inspection threshold for those airplanes. It also
does not automatically add airplanes to the candidate fleet. Based on
the discussion described previously in Item 3 of the ``Actions Since
Issuance of Previous AD'' section of this preamble, the FAA has
determined that the proposed AD would expand the applicability of this
AD action to include all Model 727 series airplanes. In addition, for
Model 727-100C and 727-200F series airplanes, the proposed inspection
of all SSI's would be required to be accomplished prior to the
accumulation of 46,000 total flight cycles, or within 18 months,
whichever occurs later. For other Model 727 series airplanes, the
proposed inspection of all SSI's would be required to be accomplished
prior to the accumulation of 55,000 total flight cycles, or within 18
months, whichever occurs later.
Cost Impact
There are approximately 1,542 Boeing Model 727 series airplanes of
the affected design in the worldwide fleet. The FAA estimates that 74
airplanes of U.S. registry would be affected by this proposed AD.
The actions that are proposed in this AD action would take
approximately 1,200 work hours per airplane to accomplish, at an
average labor rate of $60 per work hour. Based on these figures, the
cost impact of the proposed requirements of this AD on U.S. operators
is estimated to be $5,328,000, or $72,000 per airplane, per inspection
cycle.
The cost impact figure discussed above is based on assumptions that
no operator has yet accomplished any of the current or proposed
requirements of this AD action, and that no operator would accomplish
those actions in the future if this AD were not adopted.
The number of required work hours, as indicated above, is presented
as if the accomplishment of the actions proposed in this AD were to be
conducted as ``stand alone'' actions. However, in actual practice,
these actions for the most part would be accomplished coincidentally or
in combination with normally scheduled airplane inspections and other
maintenance program tasks. Therefore, the actual number of necessary
additional work hours would be minimal in many instances. Additionally,
any costs associated with special airplane scheduling would be minimal.
Regulatory Impact
The regulations proposed herein would 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 12612, it is determined that this
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism Assessment.
For the reasons discussed above, I certify that 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) if promulgated, 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. A copy of the draft
regulatory evaluation prepared for this action is contained in the
Rules Docket. A copy of it may be obtained by contacting the Rules
Docket at the location provided under the caption ADDRESSES.
List of Subjects in 14 CFR Part 39
Air transportation, Aircraft, Aviation safety, Safety.
The Proposed Amendment
Accordingly, pursuant to the authority delegated to me by the
Administrator, the Federal Aviation Administration proposes to amend
part 39 of the Federal Aviation Regulations (14 CFR part 39) as
follows:
PART 39--AIRWORTHINESS DIRECTIVES
1. The authority citation for part 39 continues to read as follows:
Authority: 49 U.S.C. 106(g), 40113, 44701.
Sec. 39.13 [Amended]
2. Section 39.13 is amended by removing amendment 39-4920 (49 FR
38931, October 2, 1984), and by adding a new airworthiness directive
(AD), to read as follows:
Boeing: Docket 96-NM-263-AD. Supersedes AD 84-21-05, Amendment 39-
4920.
Applicability: All Model 727 series airplanes, certificated in
any category.
Compliance: Required as indicated, unless accomplished
previously.
To ensure the continued structural integrity of the total Boeing
Model 727 fleet, accomplish the following:
Note 1. Where there are differences between the AD and the
Supplemental Structural Inspection Document, the AD prevails.
(a) For airplanes listed in Section 3.0 of Boeing Document No.
D6-48040-1,
[[Page 29086]]
``Supplemental Structural Inspection Document'' (SSID), Revision E,
dated June 21, 1983: Within 12 months after November 1, 1984 (the
effective date of AD 84-21-05, amendment 39-4920), incorporate a
revision into the FAA-approved maintenance inspection program which
provides no less than the required damage tolerance rating (DTR) for
each Structural Significant Item (SSI) listed in that document. (The
required DTR value for each SSI is listed in the document.) The
revision to the maintenance program shall include and shall be
implemented in accordance with the procedures in Sections 5.0 and
6.0 of the SSID. This revision shall be deleted following
accomplishment of the requirements of paragraph (b) of this AD.
Note 2. For the purposes of this AD, an SSI is defined as a
principal structural element that could fail and consequently reduce
the structural integrity of the airplane.
(b) Within 12 months after the effective date of this AD,
incorporate a revision into the FAA-approved maintenance inspection
program that provides no less than the required DTR for each SSI
listed in Boeing Document No. D6-48040-1, ``Supplemental Structural
Inspection Document'' (SSID), Revision H, dated June 29, 1994
(hereinafter referred to as ``Revision H''). (The required DTR value
for each SSI is listed in the document.) The revision to the
maintenance program shall include and shall be implemented in
accordance with the procedures in Section 5.0, ``Damage Tolerance
Rating (DTR) System Application'' and Section 6.0, ``SSI Discrepancy
Reporting'' of Revision H. Upon incorporation of the revision
required by this paragraph, the revision required by paragraph (a)
of this AD may be deleted.
(c) Except as provided in paragraph (d) or (f) of this AD, as
applicable, perform an inspection to detect cracks in all structure
identified in Revision H at the time specified in paragraph (c)(1)
or (c)(2) of this AD, as applicable.
(1) For Model 727-100C and 727-200F series airplanes: Inspect
prior to the accumulation of 46,000 total flight cycles, or within
18 months after the effective date of this AD, whichever occurs
later.
(2) For all airplanes, except for those airplanes identified in
paragraph (c)(1) of this AD: Inspect prior to the accumulation of
55,000 total flight cycles, or within 18 months after the effective
date of this AD, whichever occurs later.
Note 3. Once the initial inspection has been performed,
operators are required to perform repetitive inspections at the
intervals specified in Revision H in order to remain in compliance
with their maintenance inspection programs, as revised in accordance
with paragraph (b) of this AD.
(d) For airplanes on which the structure identified in Revision
H is affected by any design change or repair that was accomplished
prior to the effective date of this AD: Within 18 months after the
effective date of this AD, revise the FAA-approved maintenance
inspection program to include an inspection method for any new or
affected SSI, and to include the compliance times for initial and
repetitive accomplishment of this inspection. For purposes of this
section, an SSI is ``affected'' if it has been altered or repaired,
or if the loads acting on the SSI have been increased or
redistributed. Following accomplishment of the revision and within
the compliance times established, perform an inspection to detect
cracks in the structure affected by any design change or repair, in
accordance with the new inspection method. The new inspection method
and the compliance times shall be approved by the Manager, Seattle
Aircraft Certification Office (ACO), FAA, Transport Airplane
Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056,
fax (206) 227-1181.
Note 4. Notwithstanding the provisions of paragraphs 5.1.17 and
5.1.18 of the General Instructions of Revision H, which would permit
deletions of modified, altered, or repaired structure from the SIP,
the inspection of SSI's that are modified, altered, or repaired
shall be done in accordance with a method approved by the Manager,
Seattle ACO.
Note 5. For the purposes of this AD, a design change is defined
as any modification, alteration, or change to operating limitations.
(e) Cracked structure found during any inspection required by
this AD shall be repaired, prior to further flight, in accordance
with an FAA-approved method.
(f) For airplanes on which the structure identified in Revision
H is affected by any design change or repair that is accomplished
after the effective date of this AD: Within 12 months after that
modification, alteration, or repair for any new or affected SSI,
revise the FAA-approved maintenance inspection program to include an
inspection method for any new or affected SSI, and to include the
compliance times for initial and repetitive accomplishment of this
inspection. For purposes of this section, an SSI is ``affected'' if
it has been altered or repaired, or if the loads acting on the SSI
have been increased or redistributed. Following accomplishment of
the revision and within the compliance times established, perform an
inspection to detect cracks in the structure affected by any design
change or repair, in accordance with the new inspection method. The
new inspection method and the compliance times shall be approved by
the Manager, Seattle ACO.
Note 6. Notwithstanding the provisions of paragraphs 5.1.17 and
5.1.18 of the General Instructions of Revision H, which would permit
deletions of modified, altered, or repaired structure from the SIP,
the inspection of SSI's that are modified, altered, or repaired
shall be done in accordance with a method approved by the Manager,
Seattle ACO.
(g) Before any airplane that is subject to this AD and that has
exceeded the applicable compliance times specified in paragraph (c)
of this AD can be added to an air carrier's operations
specifications, a program for the accomplishment of the inspections
required by this AD must be established in accordance with paragraph
(g)(1) or (g)(2) of this AD, as applicable.
(1) For airplanes that have been inspected in accordance with
this AD, the inspection of each SSI must be accomplished by the new
operator in accordance with the previous operator's schedule and
inspection method, or the new operator's schedule and inspection
method, whichever would result in the earlier accomplishment date
for that SSI inspection. The compliance time for accomplishment of
this inspection must be measured from the last inspection
accomplished by the previous operator. After each inspection has
been performed once, each subsequent inspection must be performed in
accordance with the new operator's schedule and inspection method.
(2) For airplanes that have not been inspected in accordance
with this AD, the inspection of each SSI required by this AD must be
accomplished either prior to adding the airplane to the air
carrier's operations specification, or in accordance with a schedule
and an inspection method approved by the Manager, Seattle ACO. After
each inspection has been performed once, each subsequent inspection
must be performed in accordance with the new operator's schedule.
(h)(1) An alternative method of compliance or adjustment of the
compliance time that provides an acceptable level of safety may be
used if approved by the Manager, Seattle ACO. Operators shall submit
their requests through an appropriate FAA Principal Maintenance
Inspector, who may add comments and then send it to the Manager,
Seattle ACO.
Note 7. Information concerning the existence of approved
alternative methods of compliance with this AD, if any, may be
obtained from the Seattle ACO.
(2) Alternative methods of compliance, approved previously in
accordance with AD 84-21-05, amendment 39-4920, are not considered
to be approved as alternative methods of compliance with this AD.
(i) Special flight permits may be issued in accordance with
sections 21.197 and 21.199 of the Federal Aviation Regulations (14
CFR 21.197 and 21.199) to operate the airplane to a location where
the requirements of this AD can be accomplished.
Issued in Renton, Washington, on May 19, 1997.
S.R. Miller,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 97-13962 Filed 5-28-97; 8:45 am]
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