[Federal Register Volume 76, Number 176 (Monday, September 12, 2011)]
[Rules and Regulations]
[Pages 56099-56103]
[FR Doc No: 2011-22677]

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DEPARTMENT OF COMMERCE

Bureau of Industry and Security

15 CFR Parts 740, 742 and 774

[Docket No. 110222155-1110-01]
RIN 0694-AF14

Implementation of a Decision Adopted Under the Australia Group
(AG) Intersessional Silent Approval Procedures in 2010 and Related
Editorial Amendments

AGENCY: Bureau of Industry and Security, Commerce.

ACTION: Final rule.

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SUMMARY: The Bureau of Industry and Security (BIS) publishes this final
rule to amend the Export Administration Regulations (EAR) to implement
a decision based on a proposal that was discussed at the 2010 Australia
Group (AG) Plenary and adopted under the AG intersessional silent
approval procedures in November 2010. Specifically, this rule amends
the Commerce Control List (CCL) entry in the EAR that controls human
and zoonotic pathogens and ``toxins,'' consistent with the
intersessional changes to the AG's ``List of Biological Agents for
Export Control.'' First, this rule clarifies the scope of the AG-
related controls in the EAR that apply to ``South American haemorrhagic
fever (Sabia, Flexal, Guanarito)'' and ``Pulmonary and renal syndrome-
haemorrhagic fever viruses (Seoul, Dobrava, Puumala, Sin Nombre)'' by
revising the list of viruses in this CCL entry to remove these two
fevers and replace them with ten viral causative agents for the fevers.
These changes are intended to more clearly identify the causative
agents that are of concern for purposes of the controls maintained by
the AG. Second, this rule alphabetizes and renumbers the list of
viruses in this CCL entry, consistent with the 2010 intersessional
changes to the AG control list. Finally, this rule makes an editorial
change to the CCL entry that controls human and zoonotic pathogens and
``toxins.'' To assist exporters to more easily identify the bacteria
and ``toxins'' that are controlled under this CCL entry, this rule
alphabetizes and renumbers the lists of bacteria and ``toxins'' in the
entry.

DATES: This rule is effective September 12, 2011.

ADDRESSES: Send comments regarding this collection of information,
including suggestions for reducing the burden, to Jasmeet Seehra,
Office of Management and Budget (OMB), by e-mail to<EMAIL_ADDRESS>or by fax to<PHONE_NUMBER>; and to the Regulatory
Policy Division, Bureau of Industry and Security, Department of
Commerce, 14th Street & Pennsylvania Avenue, NW., Room 2705,
Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: Elizabeth Sangine, Director, Chemical
and Biological Controls Division, Office of Nonproliferation and Treaty
Compliance, Bureau of Industry and Security, Telephone:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Background

    The Bureau of Industry and Security (BIS) is amending the Export
Administration Regulations (EAR) to implement a decision that was
adopted under the Australia Group (AG) intersessional silent approval
procedures in November 2010. The AG is a multilateral forum consisting
of 40 participating countries that maintain

export controls on a list of chemicals, biological agents, and related
equipment and technology that could be used in a chemical or biological
weapons program. The AG periodically reviews items on its control list
to enhance the effectiveness of participating governments' national
controls and to achieve greater harmonization among these controls.
    The November 2010 intersessional decision revised the AG ``List of
Biological Agents for Export Control'' to clarify the scope of the AG
controls that apply to certain viruses connected with the phenotypes or
medical conditions known as ``South American haemorrhagic fever'' and
``Pulmonary and renal syndrome-haemorrhagic fever viruses.'' The
purpose of these changes was to address a concern by the AG that the
listings for ``South American haemorrhagic fever (Sabia, Flexal,
Guanarito)'' and ``Pulmonary and renal syndrome-haemorrhagic fever
viruses (Seoul, Dobrova, Puumala, Sin Nombre)'' could be misinterpreted
(e.g., by assuming that the causative agents identified in the
parentheses represented an exhaustive listing of such viruses). In
addition, both of these AG listings referred to phenotypes or medical
conditions known to be caused by several distinct species of viruses,
some (but not all) of which were identified in parentheses for each
listing.
    To address this concern, the November 2010 AG intersessional
decision removed ``South American haemorrhagic fever'' and ``Pulmonary
and renal syndrome-haemorrhagic fever viruses'' from the List of
Biological Agents and replaced them with ten viral causative agents for
the fevers. Five of these causative agents (i.e., ``Dobrava-Belgrade
virus,'' ``Guanarito virus,'' ``Sabia virus,'' ``Seoul virus,'' and
``Sin nombre virus'') were previously identified in parentheses under
the listings for the two fevers, while the other five causative agents
(i.e., ``Andes virus,'' ``Chapare virus,'' ``Choclo virus,'' ``Laguna
Negra virus,'' and ``Lujo virus'') were not previously identified on
the AG List. Two other causative agents (i.e., ``Flexal virus'' and
``Puumala virus'') that were previously identified in parentheses under
the listings for the two fevers were removed from the AG List. This
rule amends Export Control Classification Number (ECCN) 1C351 on the
Commerce Control List (CCL) (Supplement No. 1 to part 774 of the EAR)
by revising the list of viruses contained in 1C351.a to reflect these
changes to the AG List of Biological Agents.
    Consistent with the changes to ECCN 1C351 described above, this
rule alphabetizes and renumbers the list of viruses in ECCN 1C351.a to
conform with the format in the AG List of Biological Agents. In
addition, for the convenience of exporters attempting to determine the
control status of certain pathogens and toxins, this rule alphabetizes
and renumbers the lists of bacteria and toxins contained in ECCN
1C351.c and .d, respectively. Consistent with this reordering, this
rule revises references to certain agents identified in the ``CW
Controls'' paragraph of this ECCN, in the ``License Requirements
Notes'' under the License Requirements section of this ECCN, and/or in
the ``Related Controls'' paragraph under the List of Items Controlled
section of this ECCN.
    Although this rule removes ``Flexal virus'' from ECCN 1C351,
consistent with the AG intersessional changes to the AG List of
Biological Agents as described above, this virus continues to be listed
on the CCL. Specifically, this rule adds ``Flexal virus'' to ECCN 1C360
(Select agents not controlled under ECCN 1C351, 1C352, or 1C354),
because the virus is included in the list of select agents and toxins
maintained by the Centers for Disease Control and Prevention (CDC),
U.S. Department of Health and Human Services, in 42 CFR 73.3(b).
    This rule also amends ECCNs 1C351 and 1C352 by revising the
``Related Controls'' paragraph under the List of Items Controlled for
each ECCN to correct the references to the regulations maintained by
CDC and the Animal and Plant Health Inspection Service (APHIS), U.S.
Department of Agriculture, that apply to certain select agents and
toxins.
    Finally, this rule amends Section 740.20 (License Exception STA),
Section 742.18 (license requirements and policies related to the
Chemical Weapons Convention), and the List of Items Controlled section
in ECCN 1C991 (Vaccines, immunotoxins, medical products, and diagnostic
and food testing kits) to update the references to certain items
controlled under ECCN 1C351 that were alphabetized and renumbered, as
described above. Section 740.20 also is amended to include in paragraph
(b)(2)(vi) certain toxins controlled by ECCN 1C351.d that were
inadvertently omitted by the License Exception STA rule that BIS
published on June 16, 2011 (76 FR 35276). The toxins identified in
Section 740.20(b)(2)(vi) may be exported under License Exception STA to
countries listed in Section 740.20(c)(1), provided that such exports
conform with the limits specified in Section 740.20(b)(2)(vi)(A) and
(b)(2)(vi)(B).
    None of the changes made by this rule increase the scope of the
controls in ECCNs 1C351 and 1C991 (i.e., the items that are controlled
under these ECCNs remain the same, although certain items are now
specifically identified under separate listings in 1C351.a). As noted
above, ``Flexal virus,'' which was previously controlled under ECCN
1C351.a, is now controlled as a ``select agent'' under ECCN 1C360.a;
however, the license requirements for this virus remain unchanged.
    Although the Export Administration Act expired on August 20, 2001,
the President, through Executive Order 13222 of August 17, 2001, 3 CFR,
2001 Comp., p. 783 (2002), as extended by the Notice of August 12,
2010, 75 FR 50681 (August 16, 2010), has continued the EAR in effect
under the International Emergency Economic Powers Act.

Saving Clause

    Shipments of items removed from eligibility for export or reexport
under a license exception or without a license (i.e., under the
designator ``NLR'') as a result of this regulatory action that were on
dock for loading, on lighter, laden aboard an exporting carrier, or en
route aboard a carrier to a port of export, on October 12, 2011,
pursuant to actual orders for export or reexport to a foreign
destination, may proceed to that destination under the previously
applicable license exception or without a license (NLR) so long as they
are exported or reexported before October 27, 2011. Any such items not
actually exported or reexported before midnight, on October 27, 2011,
require a license in accordance with this regulation.
    ``Deemed'' exports of ``technology'' and ``source code'' removed
from eligibility for export under a license exception or without a
license (under the designator ``NLR'') as a result of this regulatory
action may continue to be made under the previously available license
exception or without a license (NLR) before October 27, 2011. Beginning
at midnight on October 27, 2011, such ``technology'' and ``source
code'' may no longer be released, without a license, to a foreign
national subject to the ``deemed'' export controls in the EAR when a
license would be required to the home country of the foreign national
in accordance with this regulation.

Rulemaking Requirements

    1. Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is

necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects, distributive impacts, and equity). Executive Order 13563
emphasizes the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility.
This rule has been determined to be not significant for purposes of
Executive Order 12866.
    2. Notwithstanding any other provision of law, no person is
required to respond to, nor shall any person be subject to a penalty
for failure to comply with, a collection of information subject to the
requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.) (PRA), unless that collection of information displays a currently
valid Office of Management and Budget (OMB) Control Number. This rule
contains a collection of information subject to the requirements of the
PRA. This collection has been approved by OMB under Control Number
0694-0088 (Multi-Purpose Application), which carries a burden hour
estimate of 58 minutes to prepare and submit form BIS-748. Send
comments regarding this burden estimate or any other aspect of this
collection of information, including suggestions for reducing the
burden, to Jasmeet Seehra, Office of Management and Budget (OMB), and
to the Regulatory Policy Division, Bureau of Industry and Security,
Department of Commerce, as indicated in the ADDRESSES section of this
rule.
    3. This rule does not contain policies with Federalism implications
as that term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C.
553) requiring notice of proposed rulemaking, the opportunity for
public participation, and a delay in effective date, are inapplicable
because this regulation involves a military and foreign affairs
function of the United States (See 5 U.S.C. 553(a)(1)). Immediate
implementation of these amendments is non-discretionary and fulfills
the United States' international obligation to the Australia Group
(AG). The AG contributes to international security and regional
stability through the harmonization of export controls and seeks to
ensure that exports do not contribute to the development of chemical
and biological weapons. The AG consists of 40 member countries that act
on a consensus basis and the amendments set forth in this rule
implement a decision adopted under the AG intersessional silent
approval procedures in November 2010 and other changes that are
necessary to ensure consistency with the controls maintained by the AG.
Since the United States is a significant exporter of the items in this
rule, immediate implementation of this provision is necessary for the
AG to achieve its purpose. Any delay in implementation will create a
disruption in the movement of affected items globally because of
disharmony between export control measures implemented by AG members,
resulting in tension between member countries. Export controls work
best when all countries implement the same export controls in a timely
and coordinated manner.
    Further, no other law requires that a notice of proposed rulemaking
and an opportunity for public comment be given for this final rule.
Because a notice of proposed rulemaking and an opportunity for public
comment are not required to be given for this rule under the
Administrative Procedure Act or by any other law, the analytical
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
are not applicable. Therefore, this regulation is issued in final form.

List of Subjects

15 CFR Part 740

    Administrative practice and procedure, Exports, Reporting and
recordkeeping requirements.

15 CFR Part 742

    Exports, Foreign trade.

15 CFR Part 774

    Exports, Foreign trade, Reporting and recordkeeping requirements.

    Accordingly, parts 740, 742 and 774 of the Export Administration
Regulations (15 CFR parts 730-774) are amended as follows:

PART 740--[AMENDED]

0
1. The authority citation for 15 CFR part 740 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp.,
p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice
of August 12, 2010, 75 FR 50681 (August 16, 2010).

0
2. Section 740.20 is amended by revising paragraph (b)(2)(v) and
paragraph (b)(2)(vi) introductory text, as follows:

Sec.  740.20  License Exception Strategic Trade Authorization (STA).

* * * * *
    (b) * * *
    (2) * * *
    (v) License Exception STA may not be used for any item controlled
by ECCN 1C351.a, .b, .c, d.11, .d.12 or .e, ECCNs 1C352, 1C353, 1C354,
1C360, 1E001 (i.e., for technology, as specified in ECCN 1E001, for
items controlled by ECCN 1C351.a, .b, .c, .d.11, .d.12 or .e or ECCNs
1C352, 1C353, 1C354 or 1C360) or ECCN 1E351.
    (vi) Toxins controlled by ECCN 1C351.d.1 through 1C351.d.10 and
1C351.d.13 through 1C351.d.19 are authorized under License Exception
STA to destinations indicated in paragraph (c)(1) of this section,
subject to the following limits. For purposes of this paragraph, all
such toxins that are sent from one exporter, reexporter or transferor
to a single end-user, on the same day, constitute one shipment.
* * * * *

PART 742--[AMENDED]

0
3. The authority citation for 15 CFR part 742 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
22 U.S.C. 3201 et seq.; 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22
U.S.C. 7210; Sec 1503, Pub. L. 108-11, 117 Stat. 559; E.O. 12058, 43
FR 20947, 3 CFR, 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, 3 CFR,
1993 Comp., p. 608; E.O. 12938, 59 FR 59099, 3 CFR, 1994 Comp., p.
950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222,
66 FR 44025, 3 CFR, 2001 Comp., p. 783; Presidential Determination
2003-23 of May 7, 2003, 68 FR 26459, May 16, 2003; Notice of August
12, 2010, 75 FR 50681 (August 16, 2010); Notice of November 4, 2010,
75 FR 68673 (November 8, 2010).

0
4. Section 742.18 is amended by revising paragraph (a)(1), paragraph
(b)(1)(i) introductory text, and paragraphs (b)(1)(ii) and (b)(1)(iii),
as follows:

Sec.  742.18  Chemical Weapons Convention (CWC or Convention).

* * * * *
    (a) * * *
    (1) Schedule 1 chemicals and mixtures controlled under ECCN 1C351.
A license is required for CW reasons to export or reexport Schedule 1
chemicals controlled under ECCN 1C351.d.11 or d.12 to all destinations
including Canada. CW applies to 1C351.d.11 for ricin in the form of
Ricinus Communis AgglutininII (RCAII), which is
also known as ricin D or Ricinus Communis LectinIII
(RCLIII), and Ricinus Communis LectinIV
(RCLIV), which is also known as ricin E. CW applies to
1C351.d.12 for saxitoxin identified by C.A.S. 35523-89-8.
(Note that the advance notification procedures and annual reporting
requirements described in

Sec.  745.1 of the EAR also apply to exports of Schedule 1 chemicals.)
* * * * *
    (b) * * *
    (1) * * *
    (i) Exports to States Parties to the CWC. Applications to export
Schedule 1 Chemicals controlled under ECCN 1C351.d.11 or .d.12 to
States Parties to the CWC (destinations listed in Supplement No. 2 to
part 745 of the EAR) generally will be denied, unless all of the
following conditions are met:
* * * * *
    (ii) Exports to States not party to the CWC. Applications to export
Schedule 1 chemicals controlled under ECCN 1C351.d.11 or .d.12 to
States not Party to the CWC (destinations not listed in Supplement No.
2 to part 745 of the EAR) generally will be denied, consistent with
U.S. obligations under the CWC to prohibit exports of these chemicals
to States not Party to the CWC.
    (iii) Reexports. Applications to reexport Schedule 1 chemicals
controlled under ECCN 1C351.d.11 or .d.12 generally will be denied to
all destinations (including both States Parties to the CWC and States
not Party to the CWC).
* * * * *

PART 774--[AMENDED]

0
5. The authority citation for 15 CFR part 774 continues to read as
follows:

    Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.;
10 U.S.C. 7420; 10 U.S.C. 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et
seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42
U.S.C. 6212; 43 U.S.C. 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22
U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. 13026, 61 FR 58767, 3 CFR,
1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p.
783; Notice of August 12, 2010, 75 FR 50681 (August 16, 2010).

0
6. In Supplement No. 1 to Part 774 (the Commerce Control List),
Category 1--Special Materials and Related Equipment, Chemicals,
``Microorganisms'' and ``Toxins,'' ECCN 1C351 is amended by revising
the License Requirements section and the ``Related Controls'' and
``Items'' paragraphs in the List of Items Controlled section, to read
as follows:

Supplement No. 1 to Part 774--The Commerce Control List

* * * * *
1C351 Human and zoonotic pathogens and ``toxins'', as follows (see
List of Items Controlled).

License Requirements

Reason for Control: CB, CW, AT

               Control(s)                         Country chart

CB applies to entire entry.............  CB Column 1.

CW applies to 1C351.d.11 and d.12 and a license is required for CW
reasons for all destinations, including Canada, as follows: CW
applies to 1C351.d.11 for ricin in the form of (1) Ricinus Communis
AgglutininII (RCAII), also known as ricin D or
Ricinus Communis LectinIII (RCLIII) and (2)
Ricinus Communis LectinIV (RCLIV), also known
as ricin E. CW applies to 1C351.d.12 for saxitoxin identified by
C.A.S. 35523-89-8. See Sec.  742.18 of the EAR for
licensing information pertaining to chemicals subject to restriction
pursuant to the Chemical Weapons Convention (CWC). The Commerce
Country Chart is not designed to determine licensing requirements
for items controlled for CW reasons.

               Control(s)                         Country chart

AT applies to entire entry.............  AT Column 1.

License Requirement Notes

    1. All vaccines and ``immunotoxins'' are excluded from the scope
of this entry. Certain medical products and diagnostic and food
testing kits that contain biological toxins controlled under
paragraph (d) of this entry, with the exception of toxins controlled
for CW reasons under d.11 and d.12, are excluded from the scope of
this entry. Vaccines, ``immunotoxins'', certain medical products,
and diagnostic and food testing kits excluded from the scope of this
entry are controlled under ECCN 1C991.
    2. For the purposes of this entry, only saxitoxin is controlled
under paragraph d.12; other members of the paralytic shellfish
poison family (e.g. neosaxitoxin) are designated EAR99.
    3. Clostridium perfringens strains, other than the epsilon
toxin-producing strains of Clostridium perfringens described in c.9,
are excluded from the scope of this entry, since they may be used as
positive control cultures for food testing and quality control.

License Exceptions

* * * * *

List of Items Controlled

Unit: * * *
Related Controls: (1) Certain forms of ricin and saxitoxin in
1C351.d.11. and d.12 are CWC Schedule 1 chemicals (see Sec.  742.18
of the EAR). The U.S. Government must provide advance notification
and annual reports to the OPCW of all exports of Schedule 1
chemicals. See Sec.  745.1 of the EAR for notification procedures.
See 22 CFR part 121, Category XIV and Sec.  121.7 for additional CWC
Schedule 1 chemicals controlled by the Department of State. (2) The
Animal and Plant Health Inspection Service (APHIS), U.S. Department
of Agriculture, and the Centers for Disease Control and Prevention
(CDC), U.S. Department of Health and Human Services, maintain
controls on the possession, use, and transfer within the United
States of certain items controlled by this ECCN (for APHIS, see 7
CFR 331.3(b), 9 CFR 121.3(b), and 9 CFR 121.4(b); for CDC, see 42
CFR 73.3(b) and 42 CFR 73.4(b)).
Related Definitions: * * *
Items:
    a. Viruses, as follows:
    a.1. Andes virus;
    a.2. Chapare virus;
    a.3. Chikungunya virus;
    a.4. Choclo virus;
    a.5. Congo-Crimean haemorrhagic fever virus (a.k.a. Crimean-
Congo haemorrhagic fever virus);
    a.6. Dengue fever virus;
    a.7. Dobrava-Belgrade virus;
    a.8. Eastern equine encephalitis virus;
    a.9. Ebola virus;
    a.10. Guanarito virus;
    a.11. Hantaan virus;
    a.12. Hendra virus (Equine morbillivirus);
    a.13. Japanese encephalitis virus;
    a.14. Junin virus;
    a.15. Kyasanur Forest virus;
    a.16. Laguna Negra virus;
    a.17. Lassa fever virus;
    a.18. Louping ill virus;
    a.19. Lujo virus;
    a.20. Lymphocytic choriomeningitis virus;
    a.21. Machupo virus;
    a.22. Marburg virus;
    a.23. Monkey pox virus;
    a.24. Murray Valley encephalitis virus;
    a.25. Nipah virus;
    a.26. Omsk haemorrhagic fever virus;
    a.27. Oropouche virus;
    a.28. Powassan virus;
    a.29. Rift Valley fever virus;
    a.30. Rocio virus;
    a.31. Sabia virus;
    a.32. Seoul virus;
    a.33. Sin nombre virus;
    a.34. St. Louis encephalitis virus;
    a.35. Tick-borne encephalitis virus (Russian Spring-Summer
encephalitis virus);
    a.36. Variola virus;
    a.37. Venezuelan equine encephalitis virus;
    a.38. Western equine encephalitis virus; or
    a.39. Yellow fever virus.
    b. Rickettsiae, as follows:
    b.1. Bartonella quintana (Rochalimea quintana, Rickettsia
quintana);
    b.2. Coxiella burnetii;
    b.3. Rickettsia prowasecki (a.k.a. Rickettsia prowazekii); or
    b.4. Rickettsia rickettsii.
    c. Bacteria, as follows:
    c.1. Bacillus anthracis;
    c.2. Brucella abortus;
    c.3. Brucella melitensis;
    c.4. Brucella suis;
    c.5. Burkholderia mallei (Pseudomonas mallei);
    c.6. Burkholderia pseudomallei (Pseudomonas pseudomallei);
    c.7. Chlamydophila psittaci (formerly known as Chlamydia
psittaci);
    c.8. Clostridium botulinum;
    c.9. Clostridium perfringens, epsilon toxin producing types;
    c.10. Enterohaemorrhagic Escherichia coli, serotype O157 and
other verotoxin producing serotypes;
    c.11. Francisella tularensis;
    c.12. Salmonella typhi;
    c.13. Shigella dysenteriae;
    c.14. Vibrio cholerae; or
    c.15. Yersinia pestis.
    d. ``Toxins'', as follows, and ``subunits'' thereof:

    d.1. Abrin;
    d.2. Aflatoxins;
    d.3. Botulinum toxins;
    d.4. Cholera toxin;
    d.5. Clostridium perfringens toxins;
    d.6. Conotoxin;
    d.7. Diacetoxyscirpenol toxin;
    d.8. HT-2 toxin;
    d.9. Microcystin (Cyanginosin);
    d.10. Modeccin toxin;
    d.11. Ricin;
    d.12. Saxitoxin;
    d.13. Shiga toxin;
    d.14. Staphylococcus aureus toxins;
    d.15. T-2 toxin;
    d.16. Tetrodotoxin;
    d.17. Verotoxin and other Shiga-like ribosome inactivating
proteins;
    d.18. Viscum Album Lectin 1 (Viscumin); or
    d.19. Volkensin toxin.
    e. ``Fungi'', as follows:
    e.1. Coccidioides immitis; or
    e.2. Coccidioides posadasii.

0
7. In Supplement No. 1 to Part 774 (the Commerce Control List),
Category 1-- Special Materials and Related Equipment, Chemicals,
``Microorganisms'' and ``Toxins,'' ECCN 1C352 is amended by revising
the ``Related Controls'' paragraph in the List of Items Controlled
section, to read as follows:

1C352 Animal pathogens, as follows (see List of Items Controlled).
* * * * *

List of Items Controlled

Unit: * * *
Related Controls: The Animal and Plant Health Inspection Service
(APHIS), U.S. Department of Agriculture, and the Centers for Disease
Control and Prevention (CDC), U.S. Department of Health and Human
Services, maintain controls on the possession, use, and transfer
within the United States of certain items controlled by this ECCN
(for APHIS, see 7 CFR 331.3(b), 9 CFR 121.3(b), and 9 CFR 121.4(b);
for CDC, see 42 CFR 73.3(b) and 42 CFR 73.4(b)).
Related Definitions: * * *
Items:
* * * * *

0
8. In Supplement No. 1 to Part 774 (the Commerce Control List),
Category 1--Special Materials and Related Equipment, Chemicals,
``Microorganisms'' and ``Toxins,'' ECCN 1C360 is amended by revising
paragraph (a) in the ``Items'' paragraph in the List of Items
Controlled to read as follows:

1C360 Select agents not controlled under ECCN 1C351, 1C352, or
1C354.
* * * * *

List of Items Controlled

Unit: * * *
Related Controls: * * *
Related Definitions: * * *
Items:
Note: * * *
    a. Human and zoonotic pathogens, as follows:
    a.1. Viruses, as follows:
    a.1.a. Central European tick-borne encephalitis viruses, as
follows:
    a.1.a.1. Absettarov;
    a.1.a.2. Hanzalova;
    a.1.a.3. Hypr;
    a.1.a.4. Kumlinge;
    a.1.b. Cercopithecine herpesvirus 1 (Herpes B virus);
    a.1.c. Flexal virus;
    a.1.d. Reconstructed replication competent forms of the 1918
pandemic influenza virus containing any portion of the coding
regions of all eight gene segments;
a.2. [RESERVED];
* * * * *

0
9. In Supplement No. 1 to Part 774 (the Commerce Control List),
Category 1--Special Materials and Related Equipment, Chemicals,
``Microorganisms'' and ``Toxins,'' ECCN 1C991 is amended by revising
the ``Items'' paragraph in the List of Items Controlled to read as
follows:

1C991 Vaccines, immunotoxins, medical products, diagnostic and food
testing kits, as follows (see List of Items controlled).
* * * * *

List of Items Controlled

Unit: * * *
Related Controls: * * *
Related Definitions: * * *
Items:
    a. Vaccines against items controlled by ECCN 1C351, 1C352,
1C353, 1C354, or 1C360;
    b. Immunotoxins containing items controlled by 1C351.d;
    c. Medical products containing botulinum toxins controlled by
ECCN 1C351.d.3 or conotoxins controlled by ECCN 1C351.d.6;
    d. Medical products containing items controlled by ECCN 1C351.d
(except botulinum toxins controlled by ECCN 1C351.d.3, conotoxins
controlled by ECCN 1C351.d.6, and items controlled for CW reasons
under 1C351.d.11 or .d.12);
    e. Diagnostic and food testing kits containing items controlled
by ECCN 1C351.d (except items controlled for CW reasons under ECCN
1C351.d.11 or .d.12).

    Dated: August 26, 2011.
Kevin J. Wolf,
Assistant Secretary for Export Administration.
[FR Doc. 2011-22677 Filed 9-9-11; 8:45 am]
BILLING CODE 3510-33-P


[Federal Register Volume 76, Number 35 (Tuesday, February 22, 2011)]
[Rules and Regulations]
[Pages 9658-9665]
[FR Doc No: 2011-3858]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R07-OAR-2010-0932; FRL-9268-7]

Approval and Promulgation of Implementation Plans; Kansas:
Prevention of Significant Deterioration; Greenhouse Gas (GHG)
Permitting Authority and Tailoring Rule Revision; Withdrawal of Federal
GHG Implementation Plan for Kansas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is taking final action to approve a revision to the State
Implementation Plan (SIP) for Kansas, submitted by the Kansas
Department of Health and Environment (KDHE) to EPA on October 4, 2010,
for parallel processing. KDHE submitted the final version of this SIP
revision on December 23, 2010. The SIP revision, which incorporates
updates to KDHE's air quality regulations, includes two significant
changes impacting the regulation of greenhouse gas (GHG) under Kansas's
New Source Review (NSR) Prevention of Significant Deterioration (PSD)
program. First, the SIP revision provides the State of Kansas with
authority to issue PSD permits governing GHGs. Second, the SIP revision
establishes emission thresholds for determining which new stationary
sources and modification projects become subject to Kansas's PSD
permitting requirements for their GHG emissions. The first provision is
required under the GHG PSD SIP call, which EPA published on December
13, 2010, and which required the state of Kansas to apply its PSD
program to GHG-emitting sources. The second provision is consistent
with the thresholds EPA established in the Tailoring Rule, published on
June 3, 2010. EPA is approving this SIP revision because this SIP
revision meets the requirements of the GHG PSD SIP Call. In addition,
as a result of this approval, EPA is rescinding the Federal
implementation plan (FIP)--as it relates to Kansas only--that had
previously been imposed on December 30, 2010.

DATES: Effective Date: This rule will be effective February 22, 2011.

ADDRESSES: EPA has established a docket for this action under Docket
Identification No. EPA-R07-OAR-2010-0932. All documents in the docket
are listed on the http://www.regulations.gov Web site. Although listed
in the index, some information is not publicly available, i.e.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through http://www.regulations.gov or
in hard copy at the Air Planning and Development Branch, Air and Waste
Management Division, U.S. Environmental Protection Agency, Region 7,
901 North 5th Street, Kansas City, KS 66101. EPA requests that if at
all possible, you contact the person listed in the FOR FURTHER
INFORMATION CONTACT section for further information. The Regional
Office's official hours of business are Monday through Friday, 8:30 to
4:30, excluding federal holidays.

FOR FURTHER INFORMATION CONTACT: For information regarding the Kansas
SIP, contact Mr. Larry Gonzalez, Air Planning and Development Branch,
Air and Waste Management Division, U.S. Environmental Protection
Agency, Region 7, 901 North 5th Street, Kansas City, Kansas 66101. Mr.
Gonzalez's telephone number is<PHONE_NUMBER>; e-mail address:
<EMAIL_ADDRESS>

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What is the background for this final action?
II. Analysis of Kansas's SIP Revision
III. What is EPA's response to comments received on the proposed
action?
IV. What is the effect of this final action?
V. When is this action effective?
VI. Final Action
VII. Statutory and Executive Order Reviews

I. What is the background for this final action?

    EPA has recently undertaken a series of actions pertaining to the
regulation of GHGs that, although for the most part distinct from one
another, establish the overall framework for today's final action for
the Kansas SIP. The first four of these actions include, as they are
commonly called, the ``Endangerment Finding'' and ``Cause or Contribute
Finding,'' which EPA issued in a single final action,\1\ the ``Johnson
Memo Reconsideration,'' \2\ the ``Light-Duty Vehicle Rule,'' \3\ and
the ``Tailoring Rule.'' \4\ Taken together, these actions established
regulatory requirements for GHGs emitted from new motor vehicles and
new motor vehicle engines; determined that such regulations, when they
took effect on January 2, 2011, subject GHGs emitted from stationary
sources to PSD requirements; and limited the applicability of PSD
requirements to GHG sources on a phased-in basis.
---------------------------------------------------------------------------

    \1\ ``Endangerment and Cause or Contribute Findings for
Greenhouse Gases Under Section 202(a) of the Clean Air Act.'' 74 FR
66496 (December 15, 2009).
    \2\ ``Reconsideration of Interpretation of Regulations that
Determine Pollutants Covered by Clean Air Act Permitting Programs.''
75 FR 17004 (April 2, 2010).
    \3\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
    \4\ ``Prevention of Significant Deterioration and Title V
Greenhouse Gas Tailoring Rule; Final Rule.'' 75 FR 31514 (June 3,
2010).
---------------------------------------------------------------------------

    In a separate action, the ``GHG PSD SIP Call,'' \5\ EPA called on
the State of Kansas and 12 other states with SIPs that do not provide
authority to issue PSD permits governing GHGs to revise their SIPs to
provide such authority. In that action--along with the ``Finding of
Failure to Submit SIP Revisions Required for Greenhouse Gases'' and GHG
PSD FIP,\6\ which EPA finalized for some states, including Kansas, on
December 23, 2010--EPA took steps to ensure that in the 13 states that
do not have authority to issue PSD permits to GHG-emitting sources at
present, either the state or EPA would have the authority to issue such
permits by January 2, 2011, or soon thereafter. EPA explained that
although for most states, either the state or EPA is already authorized
to issue PSD permits for GHG-emitting sources as of that date, Kansas
and the other 12 states have EPA-approved PSD programs that do not
include GHG-emitting sources and therefore do not authorize these
states to issue PSD permits to such sources. Therefore, EPA issued a
finding that Kansas and the other 12 states' SIPs are substantially
inadequate to comply with CAA requirements. Accordingly, and as part of
the same action, EPA also issued a SIP Call to require a SIP revision
that applies their SIP PSD programs to GHG-emitting sources. EPA also
established a SIP submittal deadline. In the proposed SIP call, EPA had
stated that the deadline could range from as little as three weeks
after the final SIP call was signed to as long as 12 months after the
final SIP call was signed, and that each affected state was authorized
to indicate to EPA a deadline to which it did not object. In the final
SIP call, EPA established deadlines that ranged, for the various
states, from December 23, 2010 (three weeks after signature), to
December 1, 2011 (12 months after signature), based, in general, on
each state's preference. Kansas was one of the states for which EPA
proposed and finalized the SIP Call. The state's comments regarding the
proposed SIP call, submitted October 4, 2010, are included in the
docket for this rulemaking. In the SIP call, EPA established a SIP
submittal deadline for Kansas of December 22, 2010, in accordance with
Kansas's preferences in that letter.
---------------------------------------------------------------------------

    \5\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Substantial Inadequacy and SIP
Call; Final Rule.'' 75 FR 77698 (December 13, 2010).
    \6\ See footnotes 9 and 10.
---------------------------------------------------------------------------

    In addition, in the SIP call rulemaking, EPA stated certain
requirements that the corrective SIP revision must meet, which are that
the corrective SIP revision must--

    (i) Apply the SIP PSD program to GHG-emitting sources;
    (ii) Define GHGs as the same pollutant to which the Light-Duty
Vehicle Rule \7\ (LDVR) applies, that is, a single pollutant that is
the aggregate of the group of six gases (carbon dioxide
(CO2), methane (CH4), nitrous oxide
(N2O), hydrofluorocarbons (HFCs), perfluorocarbons
(PFCs), and sulfur hexafluoride (SF6)); and
---------------------------------------------------------------------------

    \7\ ``Light-Duty Vehicle Greenhouse Gas Emission Standards and
Corporate Average Fuel Economy Standards; Final Rule.'' 75 FR 25324
(May 7, 2010).
---------------------------------------------------------------------------

    (iii) Either limit PSD applicability to GHG-emitting sources by
adopting the applicability thresholds included in the Tailoring Rule
or adopt lower thresholds and show that the state has adequate
personnel and funding to administer and implement those lower
thresholds.
    In addition, if the corrective SIP revision adopts the Tailoring
Rule thresholds, then it must either adopt the CO2e
metric and use short tons (as opposed to metric tons) for
calculating GHG emissions in order to implement those thresholds, or
assure that its approach is at least as stringent as under the
Tailoring Rule, so that the state does not exclude more sources than
under the Tailoring Rule.

75 FR 77713/1 to 77715/1.

    In the companion ``proposed GHG PSD FIP'' rulemaking,\8\ EPA
proposed a FIP that would give EPA authority to apply EPA's PSD program
to GHG-emitting sources in any state unable to submit a corrective SIP
revision by its deadline. After Kansas did not meet its SIP submission
deadline of December 22, 2010, EPA issued a finding of Kansas's failure
to submit a SIP revision \9\ and finalized the FIP for Kansas and six
other states: Arizona, Arkansas, Florida, Idaho, Oregon, and
Wyoming.\10\ In this notice, EPA stated its intent to leave the GHG PSD
FIP in place only as long as necessary for a state to submit and EPA to
approve a SIP revision that includes PSD permitting for GHG-emitting
sources.
---------------------------------------------------------------------------

    \8\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan: Proposed
Rule.'' 75 FR 53883 (September 2, 2010).
    \9\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Finding of Failure to Submit State
Implementation Plan Revisions Required for Greenhouse Gases.'' 75 FR
81874 (December 29, 2010).
    \10\ ``Action to Ensure Authority to Issue Permits Under the
Prevention of Significant Deterioration Program to Sources of
Greenhouse Gas Emissions: Federal Implementation Plan; Final Rule.''
75 FR 82246 (December 30, 2010).
---------------------------------------------------------------------------

    On October 4, 2010, in response to the Tailoring Rule and earlier
GHG-related EPA rules, and in anticipation of the GHG PSD SIP Call
rulemaking, KDHE submitted a draft revision of its air quality
regulations to EPA for approval into the Kansas SIP to: (1) Provide the
State of Kansas with the authority to regulate GHGs under its PSD
program; and (2) establish appropriate emission thresholds and time-
frames for determining which new or modified stationary sources become
subject to Kansas's PSD permitting requirements for GHG emissions.
Subsequently, on November 18, 2010, EPA published a proposed rulemaking
to approve KDHE's October 4, 2010, SIP revision under parallel
processing. 75 FR 70657. There, EPA stated that it ``will not take
final action on the GHG SIP Call for the state of Kansas if the state
submits its

final SIP revision to EPA prior to the final rulemaking for the GHG SIP
Call,'' indicating that the proposed SIP revision would be sufficient
to address the inadequacies that serve as the basis for the SIP Call,
and later the final GHG PSD FIP. 75 FR at 70663.
    EPA's November 18, 2010, proposed approval was contingent upon the
State of Kansas providing a final SIP revision that was substantially
the same as the draft revision proposed for approval. Id. After EPA
issued a finding that Kansas did not submit a SIP revision by its
December 22, 2010, deadline, and established a FIP for Kansas in
actions signed on December 23, 2010, Kansas submitted its final SIP
revision on December 23, 2010. This SIP revision is the same as the
proposed revision KDHE submitted on October 4, 2010, for parallel
processing. EPA is approving the final SIP revision in today's action
and is simultaneously withdrawing the FIP as it relates to the State of
Kansas.

II. Analysis of Kansas's SIP Revision

    Section 110(k)(3) of the CAA provides that EPA shall approve a SIP
revision as a whole if it meets all of the applicable requirements of
the CAA. Kansas received a SIP call because its PSD program does not
apply to GHGs, and as a result, Kansas is required to submit a SIP
revision that applies PSD to GHGs and does so either at the Tailoring
Rule thresholds or at lower thresholds, and, if the latter, then Kansas
is required to demonstrate that it has adequate resources for
implementation.
    Kansas has submitted a SIP revision that provides this authority.
Kansas's SIP revision updates the incorporation by reference to EPA's
definition in 40 CFR 52.21(b)(49) for ``subject to regulation'' to
explicitly include GHG as a regulated NSR pollutant under the CAA. In
addition, the Kansas rules incorporate the same thresholds and phase-in
schedule as the Tailoring Rule and they adopt the carbon dioxide
equivalent (CO2e) metric and use of short tons for
determining the thresholds.
    EPA has determined that this change to Kansas's regulation meets
the requirements of the SIP call. Thus, this change is consistent with
the CAA and its implementing regulations regarding GHG. The changes
included in this submittal are the same as EPA's Tailoring Rule, and
therefore comply with the requirements of the SIP call.

III. What is EPA's response to comments received on the proposed
action?

    EPA received a single set of comments on the November 18, 2010,
proposed rulemaking to approve revisions to Kansas's SIP. These
comments, provided by the Air Permitting Forum (hereinafter referred to
as ``the Commenter''), raised concerns with regard to EPA's November
18, 2010, proposed action. A full set of these comments is provided in
the docket for today's final action. A summary of the comments and
EPA's responses are provided below.
    Generally, the adverse comments fall into five categories. First,
the Commenter asserts that PSD requirements cannot be triggered by
GHGs. Second, the Commenter characterizes EPA's interpretation of the
CAA by saying that Kansas will face a construction ban absent this SIP
revision and asserts that this interpretation is incorrect.
Furthermore, in a footnote, the Commenter expresses that EPA's process
of revising the state's SIP is inconsistent with CAA section 110
because it does not provide for notice and comment on the final state
action. Third, the Commenter expresses concerns regarding EPA's
previously announced intention to narrow its prior approval of some
SIPs to ensure that sources with GHG emissions that are less than the
Tailoring Rule's thresholds will not be obligated under federal law to
obtain PSD permits prior to a SIP revision incorporating those
thresholds. The Commenter explains that the planned SIP approval
narrowing action is ``inapplicable to this action and, if applicable,
is illegal.'' Fourth, the Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements. Lastly,
the Commenter states: ``If EPA proceeds with this action, it should
make clear that any incorporation by reference conducted by Kansas
would rest on the continued existence and validity of the federal
regulations on which it [sic] the incorporation is based.'' EPA's
response to these five categories of comments is provided below.
    Comment 1: The Commenter asserts that PSD requirements cannot be
triggered by GHGs. In its letter, the Commenter states: ``[N]o area in
the State of Kansas has been designated attainment or unclassifiable
for greenhouse gases (GHGs), as there is no national ambient air
quality standard (NAAQS) for GHGs. Therefore, GHGs cannot trigger PSD
permitting.'' The Commenter notes that it made this argument in detail
in comments submitted to EPA on the Tailoring Rule and other related
GHG rulemakings. The Commenter attached those previously submitted
comments to its comments on the proposed rulemaking related to this
action. Finally, the Commenter states that ``EPA should immediately
provide notice that it is now interpreting the Act not to require that
GHGs trigger PSD and allow Kansas to rescind that portion of its rules
that would allow GHGs to trigger PSD.''
    Response 1: EPA established the requirement that PSD applies to all
pollutants newly subject to regulation, including non-NAAQS pollutants,
in earlier national rulemakings concerning the PSD program, and EPA has
not re-opened that issue in this rulemaking. Accordingly, these
comments are not relevant to this rulemaking. In addition, EPA has
explained in detail, in recent rulemakings concerning GHG PSD
requirements, its reasons for disagreeing with these comments.
    In an August 7, 1980, rulemaking at 45 FR 52676, 45 FR 52710-52712,
and 45 FR 52735, EPA stated that a ``major stationary source'' was one
that emitted ``any air pollutant subject to regulation under the Act''
at or above the specified numerical thresholds; and defined a ``major
modification,'' in general, as a physical or operational change that
increased emissions of ``any pollutant subject to regulation under the
Act'' by more than an amount that EPA variously termed as de minimis or
significant. In addition, in EPA's NSR Reform rule at 67 FR 80186 and
67 FR 80240 (December 31, 2002), EPA added to the PSD regulations the
new definition of ``regulated NSR pollutant'' (currently codified at 40
CFR 52.21(b)(50) and 40 CFR 51.166(a)(49)); noted that EPA added this
term based on a request from a commenter to ``clarify which pollutants
are covered under the PSD program''; and explained that in addition to
criteria pollutants for which a NAAQS has been established, ``[t]he PSD
program applies automatically to newly regulated NSR pollutants, which
would include final promulgation of an NSPS [new source performance
standard] applicable to a previously unregulated pollutant.'' Id. at 67
FR 80240 and 67 FR 80264. Among other things, the definition of
``regulated NSR pollutant'' includes ``[a]ny pollutant that otherwise
is subject to regulation under the Act.'' See 40 CFR
52.21(b)(50)(d)(iv); see also 40 CFR 51.166(a)(49)(iv).
    In any event, EPA disagrees with the Commenter's underlying premise
that PSD requirements are not triggered for GHGs when GHGs become
subject to regulation as of January 2, 2011. As just noted, this has
been well-established and discussed in connection with prior EPA
actions, including, most recently, the Johnson Memo Reconsideration and
the Tailoring Rule. In addition, EPA's November 18, 2010, proposed

rulemaking notice provides the general basis for the Agency's rationale
that GHGs, while not a NAAQS pollutant, can trigger PSD permitting
requirements. The November 18, 2010, notice also refers the reader to
the preamble to the Tailoring Rule for further information on this
rationale. In that rulemaking, EPA addressed at length the comment that
PSD can be triggered only by pollutants subject to the NAAQS and
concluded that such an interpretation of the Act would contravene
Congress's unambiguous intent. See 75 FR 31560-31562. Further
discussion of EPA's rationale for concluding that PSD requirements are
triggered by non-NAAQS pollutants such as GHGs appears in the Tailoring
Rule Response to Comments document (``Prevention of Significant
Deterioration and Title V GHG Tailoring Rule: EPA's Response to Public
Comments''), pp. 34-41; and in EPA's response to motions for a stay
filed in the litigation concerning those rules (``EPA's Response to
Motions for Stay,'' Coalition for Responsible Regulation v. EPA, D.C.
Cir. No. 09-1322 (and consolidated cases)), at pp. 47-59, and are
incorporated by reference here. These documents have been placed in the
docket for today's action.
    Comment 2: In its letter, the Commenter mentions that it provided
comments on EPA's GHG PSD SIP Call and GHG PSD FIP rulemakings
expressing that ``EPA's interpretation of the Act to impose a
construction ban based on Section 165(a) is incorrect.'' Further, the
Commenter states: ``No statutory language addressing implementation
plan requirements can be construed to produce self-executing changes to
SIPs or FIPs approved or promulgated under section 110 of the Act
unless Congress enacts statutory provisions explicitly amending those
SIPs or FIPs to incorporate the new requirements, thereby obviating the
need for rulemaking under section 110(a) or (c) of the Act to effect
revisions to those implementation plans.'' The Commenter also contends
that there is no support for EPA's ``permit moratorium'' interpretation
because the Commenter believes CAA section 165(a) is not self-
executing, and approved SIPs and promulgated FIPs can only be changed
through section 110 rulemakings to revise those plans. In support of
its position, the Commenter cites to United States v. Cinergy Corp.,
No. 09-3344 (7th Cir. October 12, 2010). The Commenter further states
that Kansas would be able to issue PSD permits after January 2, 2011,
even without GHG limits, because its current SIP is approved and it
would be acting consistently with that approved SIP. Further, the
Commenter states that ``EPA's rule contemplated that states have 3
years to revise their SIPs when an NSR-related change occurs and,
assuming without conceding that EPA could impose PSD on GHGs, EPA
should have followed that procedure in this case.'' Finally, the
Commenter states that EPA's notice-and-comment process associated with
the proposed SIP revision is inconsistent with section 110 because it
does not provide for federal notice and comment on the final state
action.
    Response 2: EPA established the requirement that Kansas submit a
corrective SIP revision in the SIP call rulemaking. As a result, the
only issues relevant to this rulemaking concern whether Kansas's SIP
submission meets the requirements of the SIP call and therefore should
be approved. Issues concerning the validity of the SIP call, including
the comments raised by the commenter, may have been relevant for the
SIP call rulemaking but are not relevant for this rulemaking.
Accordingly, these comments are not relevant for this rulemaking. EPA
notes that the Agency provided an extensive response in the final GHG
PSD SIP Call rulemaking to comments nearly identical to comments
received on this rulemaking, 75 FR 77698. EPA incorporates by reference
those responses, as contained in the GHG PSD SIP Call preamble and the
Tailoring Rule Response to Comment document, into this rulemaking. The
following gives examples of references in the GHG PSD SIP Call
rulemaking preamble and record in which EPA responded to these, or
substantially similar, comments:
    With respect to the comments that (i) ``EPA's interpretation of the
Act to impose a construction ban based on Section 165(a) is
incorrect''; (ii) ``No statutory language addressing implementation
plan requirements can be construed to produce self-executing changes to
SIPs or FIPs approved or promulgated under section 110 of the Act
unless Congress enacts statutory provisions explicitly amending those
SIPs or FIPs to incorporate new requirements, thereby obviating the
need for rulemaking under section 110(a) or (c) of the Act to effect
revisions to those implementation plans''; and (iii) there is no
support for EPA's ``permit moratorium'' interpretation because (in the
Commenter's opinion) CAA section 165(a) is not self-executing and
approved SIPs and promulgated FIPs can only be changed through section
110 rulemakings to revise those plans, see, for example, 75 FR 77705
(footnote 16), and 75 FR 77710-77711. EPA notes further that the
requirement of CAA section 165(a)(1) that stationary sources that emit
the requisite quantity of pollutants subject to regulation obtain a
pre-construction permit is mandated by the CAA and is automatically
updated to apply to any pollutant newly subject to regulation; thus,
contrary to the Commenter's statement, EPA is not construing the CAA to
``produce self-executing changes to SIPs * * *.'' In addition, today's
action does not create what the Commenter calls a ``permit
moratorium''; in fact, today's rule continues a permitting authority
for GHG-emitting sources for Kansas that had already been established
as of the GHG PSD permitting requirements effective date.\11\ Further,
no ``self-executing changes'' to Kansas's SIP are made in today's
action; EPA is simply approving Kansas's SIP revision, submitted
December 23, 2010, according to the proper process.
---------------------------------------------------------------------------

    \11\ For the period of January 2, 2011, to the effective date of
this final action, EPA and KDHE have entered into a delegation
agreement which delegated federal authority (established by the GHG
PSD FIP for Kansas, as described above) to issue and modify PSD
permits for sources of GHGs in Kansas to KDHE.
---------------------------------------------------------------------------

    With respect to the comment that a decision by Judge Posner in
United States v. Cinergy Corp., No. 09-3344 (7th Cir. October 12,
2010), directly addresses this issue, see 75 FR 77705-77706, footnote
16.
    With respect to the comment that Kansas would be able to issue PSD
permits after January 2, 2011, even without GHG limits, because its
current SIP is approved and it would be acting consistent with that
approved SIP, EPA notes that it is true that as of January 2, 2011,
Kansas could issue such a permit to cover the non-GHG pollutants
emitted by a source that is major for a pollutant other than GHGs. If
the source emits GHGs in at least the amount specified in the Tailoring
Rule, however, then the source would also need a PSD permit for its GHG
emissions. Kansas already has authority to issue GHG permits by virtue
of the FIP delegation described in footnote 10.
    With respect to the comment that ``EPA's rule contemplated that
states have 3 years to revise their SIPs when an NSR-related change
occurs and, assuming without conceding that EPA could impose PSD on
GHGs, EPA should have followed that procedure in this case,'' see 75 FR
77707-77708. In any event, the proper length of time EPA must provide
states to act is also irrelevant to this rule because this action deals
with a SIP revision actually

submitted by Kansas to EPA for approval. In addition, EPA has also
addressed the issue of whether a construction ban applies in states
with approved PSD SIPs that do not cover GHGs in its Response in
Opposition to Petitioner's Emergency Motion for a Stay Pending Review,
Texas v. EPA, No. 10-1425 (DC Cir. filed January 6, 2011), and in its
Response in Opposition to Motion of National Association of
Manufacturers et al. to File a Response as Amicus Curiae in Support of
Petitioners' Stay Motion (also filed in the Texas case, on January 7,
2011).
    EPA disagrees with the Commenter's statement that EPA's proposed
action on Kansas's draft rules is inconsistent with CAA section 110
because it does not provide for federal notice and comment on the final
state action. EPA's proposed approval was based on the draft form of
the State of Kansas's regulations on which the state itself solicited
public comment. As explained in our proposal at 75 FR 70657, EPA
utilized a ``parallel processing'' procedure for this SIP revision.
Under this procedure, EPA proposes rulemaking action concurrently with
the state's procedures for approving a SIP submittal and amending its
regulations (40 CFR part 51, appendix V, 2.3). EPA reviews the proposed
SIP submittal in the same manner in which it reviews a final, adopted
regulation, even though the regulation is not yet adopted in final form
by the state. In doing so, EPA evaluates the draft regulation against
the same approvability criteria as any other SIP submittal. If
substantial changes are made between the draft SIP revision upon which
EPA solicits comment and the final SIP revision submitted by the state,
EPA reissues the final SIP revision for a new round of public comment.
Thus, using the ``parallel processing'' procedure does not avoid any
statutory requirements, and has not done so here. The proposal
published November 18, 2010, gave the public the appropriate
opportunity to comment on the substance of the October 4, 2010, SIP
revision for which EPA is today issuing a final approval. In fact, the
revision adopted by Kansas is identical to the draft regulation which
EPA described in the proposal. Therefore, the Commenter and others had
the opportunity to comment on the exact regulatory language which was
finally adopted by Kansas and is approved in today's action.
    Comment 3: The Commenter expresses concerns regarding the legality
of narrowing prior SIP approvals if states cannot interpret their
regulations to include the Tailoring Rule thresholds within the phrase
``subject to regulation.''
    Response 3: While EPA does not agree with the Commenter's assertion
that the narrowing approach discussed in EPA's Tailoring Rule is
illegal, the validity of the narrowing approach is irrelevant to the
action that EPA is today taking for Kansas's December 23, 2010, SIP
revision. EPA did not propose to narrow its approval of Kansas's SIP as
part of this action, and in today's final action, EPA is acting to
approve a SIP revision submitted by Kansas and is not otherwise
narrowing its approval of prior submitted and approved provisions in
the Kansas SIP. Accordingly, the legality of the narrowing approach is
not at issue in this rulemaking.
    Comment 4: The Commenter states that EPA has failed to meet
applicable statutory and executive order review requirements.
Specifically, the Commenter refers to the statutory requirements and
executive orders for the Paperwork Reduction Act, the Regulatory
Flexibility Act (RFA), the Unfunded Mandates Reform Act, and Executive
Order 13132 (Federalism). Additionally, the Commenter mentions that EPA
has never analyzed the costs and benefits associated with triggering
PSD for stationary sources in Kansas, much less nationwide.
    Response 4: EPA disagrees with the Commenter's statement that EPA
has failed to meet applicable statutory and executive order review
requirements. As stated in EPA's proposed approval of Kansas's October
4, 2010, proposed SIP revision, this action merely approves state law
as meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. Accordingly, EPA
approval, in and of itself, does not impose any new information
collection burden, as defined in 5 CFR 1320.3(b) and (c), that would
require additional review under the Paperwork Reduction Act. In
addition, this SIP approval will not have a significant economic impact
on a substantial number of small entities, beyond that which would be
required by the state law requirements, so a regulatory flexibility
analysis is not required under the RFA. Accordingly, this rule is
appropriately certified under section 605(b) of the RFA. Moreover, as
this action approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandates or significantly
or uniquely affect small governments, such that it would be subject to
the Unfunded Mandates Reform Act. Finally, this action does not have
federalism implications that would make Executive Order 13132
applicable, because it merely approves a state rule implementing a
federal standard and does not alter the relationship or the
distribution of power and responsibilities established in the CAA.
    Today's rule is a routine approval of a SIP revision, approving
state law, and does not impose any requirements beyond those imposed by
state law. To the extent these comments are directed more generally to
the application of the statutory and executive order reviews to the
required regulation of GHGs under PSD programs, these comments are
irrelevant to the approval of state law in today's action. However, EPA
provided an extensive response to similar comments in promulgating the
Tailoring Rule. EPA refers the Commenter to the sections in the
Tailoring Rule entitled ``VII. Comments on Statutory and Executive
Order Reviews,'' 75 FR 31601-31603, and ``VI. What are the economic
impacts of the final rule?,'' 75 FR 31595-31601. EPA also notes that
today's action does not in-and-of itself trigger the regulation of
GHGs. To the contrary, GHGs are already being regulated nationally, PSD
permitting for GHG emissions by Kansas is already specifically
authorized under delegation of the existing FIP, and today's action
simply approves existing state laws that accomplish the same thing as
the FIP.
    Comment 5: The Commenter states that ``[i]f EPA proceeds with this
action, it should make clear that any incorporation by reference
conducted by Kansas would rest on the continued existence and validity
of the federal regulations on which the incorporation is based.''
Further, the Commenter remarks on the ongoing litigation in the U.S.
Court of Appeals for the DC Circuit. Specifically, regarding EPA's
determination that PSD can be triggered by GHGs or is applicable to
GHGs, the Commenter mentions that ``any vacatur of those regulations
should also be effective to vacate the SIP provision itself since the
SIP would be referencing a regulation that no longer is valid or
exists.''
    Response 5: EPA believes that it is most appropriate to take
actions that are consistent with the federal regulations that are in
place at the time the action is being taken. To the extent that any
changes to federal regulations related to today's action result from
pending legal challenges or other actions, EPA will process appropriate
SIP revisions in accordance with the procedures provided in the Act and
EPA's regulations. EPA notes that in an order dated December 10, 2010,
the United

States Court of Appeals for the DC Circuit denied motions to stay EPA's
regulatory actions related to GHGs. Coalition for Responsible
Regulation, Inc. v. EPA, Nos. 09-1322, 10-1073, 10-1092 (and
consolidated cases), Slip Op. at 3 (DC Cir. December 10, 2010) (order
denying stay motions).

IV. What is the effect of this final action?

    Final approval of Kansas's December 23, 2010, SIP revision will
make Kansas's SIP adequate with respect to PSD requirements for GHG-
emitting sources, thereby negating the need for the GHG PSD FIP for
Kansas and the delegation agreement between EPA and KDHE. The FIP is
also being withdrawn today. Additionally, final approval of Kansas's
SIP revision will incorporate into the SIP the GHG emission thresholds
for PSD applicability that were set forth in EPA's Tailoring Rule and
included in the GHG PSD FIP for Kansas, ensuring that smaller GHG
sources emitting below these thresholds will continue to not be subject
to permitting requirements. Pursuant to section 110 of the CAA, EPA is
approving the changes made in Kansas's December 23, 2010, proposed SIP
revision into the state's SIP. However, as we noted in the proposed
approval of the Kansas submittal, 75 FR 70663, this action only
addresses the December 23, 2010, revisions relating to the regulation
of GHGs under the state's PSD program. We intend to act on the state's
revisions to its Title V program separately, as well as Kansas's
separate submittal of changes to the applicability of the PSD program
to contain ethanol production facilities (the ``Ethanol Rule'').
Furthermore, as Kansas has not adopted EPA's ``Fugitive Emissions
Rule,'' today's action does not address the Fugitive Emissions Rule.
    The changes to Kansas's SIP-approved PSD program that EPA is
approving today have been reviewed and determined to be consistent with
the Tailoring Rule. Furthermore, EPA has determined that the December
23, 2010, revision to Kansas's SIP is consistent with section 110 of
the CAA. See, e.g., Tailoring Rule, at 75 FR 31561. As a result of
EPA's approval today, the deficiency in Kansas's SIP is corrected and
EPA no longer has the authority for the FIP for Kansas, and so EPA is
also withdrawing the FIP for Kansas. 75 FR 82246 (December 30, 2010).

V. When is this action effective?

    The effective date of today's final action is the date that this
notice is published in the Federal Register. In accordance with 5
U.S.C. 553(d), EPA finds there is good cause for this action to become
effective on the date of publication. The effective date upon
publication of this notice for this action is authorized under 5 U.S.C.
553(d)(3), which allows an effective date less than 30 days after
publication ``as otherwise provided by the agency for good cause found
and published with the rule.'' The purpose of the 30-day waiting period
prescribed in section 553(d) is to give affected parties a reasonable
time to adjust their behavior and prepare before the final rule takes
effect. Today's rule, however, does not create any substantively new
regulatory requirements such that affected parties would need time to
prepare before the rule takes effect. Rather, today's rule withdraws
the FIP, replaces the current regulatory requirements under the FIP
with the same requirements under the SIP, shifts current permitting
authority for GHGs to Kansas under its SIP instead of EPA under the
FIP, and negates the need for the delegation agreement that delegated
authority from EPA to KDHE to issue and modify PSD permits for sources
of GHGs in Kansas. With this rule KDHE becomes the permitting authority
for all pollutants (including GHGs) under the SIP-approved program. For
these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this
action to become effective immediately upon publication.

VI. Final Action

    EPA is taking final action to approve the state of Kansas's
December 23, 2010, SIP revision, which incorporates changes into the
Kansas Administrative Regulations (28-19-200a and 28-19-350). The SIP
revision Kansas submitted on December 23, 2010, (1) provides the state
with the authority to regulate GHGs under its PSD program, and (2)
establishes appropriate emissions thresholds for determining PSD
applicability with respect to new or modified GHG-emitting stationary
sources in accordance with EPA's Tailoring Rule. EPA has made the
determination that the December 23, 2010, SIP revision is approvable
because it is in accordance with the CAA and EPA regulations, including
regulations pertaining to PSD permitting for GHGs.
    Today's action also withdraws the FIP that was previously imposed
in Kansas, and which this SIP revision displaces. Accordingly, EPA is
rescinding the entirety of 40 CFR 52.37(b)(5) (applying the FIP to
Kansas). EPA is taking this FIP withdrawal action as a final rule
without providing an additional opportunity for public comment because
EPA finds that the Administrative Procedure Act (APA) good cause
exemption applies here. Section 553 of the APA, 5 U.S.C. 553(b)(B),
provides that when an Agency for good cause finds that notice and
public procedure are impracticable, unnecessary, or contrary to public
interest, the Agency may issue a rule without providing notice and an
opportunity to comment.
    EPA has determined that it is unnecessary or contrary to the public
interest to provide an additional opportunity for public comment on
this action because the withdrawal of the FIP for Kansas is a necessary
and simply ministerial act. Once EPA fully approves the SIP for Kansas
as meeting the requirements of the GHG SIP call, and that approval is
effective, EPA no longer has the authority for the GHG PSD FIP in
Kansas. Because the SIP approval removes EPA's authority for the FIP,
EPA believes it has no option but to withdraw the FIP. Therefore, EPA
is taking this withdrawal action to remove the regulatory text that
applies the GHG PSD FIP requirements to sources in Kansas, and that
action is ministerial. If EPA were to decide to reconsider or reverse
the SIP approval action, it would take any appropriate action with
regard to the FIP at that time. For these reasons, it would serve no
useful purpose to provide an additional opportunity for public comment
on this issue.
    EPA also finds that it would be contrary to the public interest to
delay issuing this rule in order to offer additional comment
opportunities. Delaying the withdrawal of the FIP would leave the FIP
in place even though the SIP would now also be in place, which would
result in duplicative permitting authority and, as a result of that,
confusion to the public. Promulgation of this rule serves to clarify
that sources initially covered by the FIP in Kansas are now covered
only by the requirements of the Kansas SIP.
    Further, EPA previously provided public notice that the withdrawal
of a GHG PSD FIP for any state to which the FIP applied would be done
at the same time as the approval of a GHG SIP for that state. See 75 FR
at 82251. The public had opportunity to provide comment on this
procedure during the rulemaking process for the GHG PSD FIP rule
referenced above (footnotes 7 and 9). The rulemaking process for Kansas
provided the public with ample opportunity to comment on the
substantive issues related to the SIP approval. To provide an
additional opportunity to comment on the FIP withdrawal action for
Kansas, which cannot alter or affect the terms of the

SIP approval, would serve no useful purpose and is thus unnecessary.
    For these reasons, EPA hereby finds for good cause, pursuant to
section 553 of the APA, that it would be unnecessary and contrary to
the public interest for EPA to offer an additional opportunity for
public comment and a public hearing on this rule. Therefore, pursuant
to section 307(d)(1) the requirements of 307(d), including the
requirement for a public hearing, do not apply to this action.

VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
action merely approves state law as meeting federal requirements and
does not impose additional requirements beyond those imposed by state
law. In addition, withdrawal of the GHG PSD FIP as a result of this
approval of state law merely clarifies that the federal plan no longer
applies. For those reasons, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because the SIP is not approved to apply in Indian country located in
the state, and EPA notes that it will not impose substantial direct
costs on tribal governments or preempt tribal law.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
action and other required information to the U.S. Senate, the U.S.
House of Representatives, and the Comptroller General of the United
States prior to publication of the rule in the Federal Register. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This action is not a ``major rule'' as defined by
5 U.S.C. 804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by April 25, 2011 Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review, nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Greenhouse gases,
Incorporation by reference, Intergovernmental relations, and Reporting
and recordkeeping requirements.

    Dated: February 15, 2011.
Lisa P. Jackson,
Administrator.

    40 CFR part 52 is amended as follows:

PART 52--[AMENDED]

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42.U.S.C. 7401 et seq.

Subpart A--General Provisions

Sec.  52.37  [Amended]

0
2. Section 52.37 is amended by removing and reserving paragraph (b)(5).

Subpart R--Kansas

0
3. In Sec.  52.870 (c) the table is amended by revising the entry for
``K.A.R. 28-19-350'' to read as follows:
    Sec.  52.870 Identification of plan.
* * * * *
    (c) * * *

                                         EPA-Approved Kansas Regulations
----------------------------------------------------------------------------------------------------------------
                                                      State
     Kansas citation               Title         effective date    EPA approval date          Explanation
----------------------------------------------------------------------------------------------------------------

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------
                                       Construction Permits and Approvals
----------------------------------------------------------------------------------------------------------------
28-19-350................  Prevention of             01/02/2011  2/22/11 [Insert       Approval does not include
                            Significant                           citation of           Kansas's revisions to
                            Deterioration (PSD)                   publication].         the Ethanol Rule (72 FR
                            of Air Quality.                                             24060, May 1, 2007) and
                                                                                to the Fugitive
                                                                                Emissions Rule (73 FR
                                                                                77882, December 19,
                                                                                2008).

                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2011-3858 Filed 2-18-11; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register: August 29, 2008 (Volume 73, Number 169)]
[Proposed Rules]
[Page 50903-50905]
[DOCID:fr29au08-18]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2008-0115; Directorate Identifier 2007-NM-240-AD]
RIN 2120-AA64

Airworthiness Directives; Saab Model SAAB 2000 Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Supplemental notice of proposed rulemaking (NPRM); reopening of
comment period.

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

SUMMARY: We are revising an earlier NPRM for the products listed above.
This action revises the earlier NPRM by expanding the scope. This
proposed AD results from mandatory continuing airworthiness information
(MCAI) originated by an aviation authority of another country to
identify and correct an unsafe condition on an aviation product. The
MCAI describes the unsafe condition as:

    One Part Number (P/N) LM-219-92 Centre Bracket from a P/N LM-
219-SA28 Aft Engine Mounting assembly was found to be cracked while
installed on the aircraft.
    This reduces the effectiveness of the mounting assembly and
could eventually cause it to fail.
* * * * *
A failed mounting assembly, if not corrected, could result in loss of
the engine. The proposed AD would require actions that are intended to
address the unsafe condition described in the MCAI.

DATES: We must receive comments on this proposed AD by September 23,
2008.

ADDRESSES: You may send comments by any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov. Follow the instructions for submitting comments.
     Fax:<PHONE_NUMBER>.
     Mail: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: U.S. Department of Transportation, Docket
Operations, M-30, West Building Ground Floor, Room W12-40, 1200 New
Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.

Examining the AD Docket

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

FOR FURTHER INFORMATION CONTACT: Shahram Daneshmandi, Aerospace
Engineer, International Branch, ANM-116, Transport Airplane
Directorate, FAA, 1601 Lind Avenue, SW., Renton, Washington 98057-3356;
telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposed AD. Send your comments to an address
listed under the ADDRESSES section. Include ``Docket No. FAA-2008-0115;
Directorate Identifier 2007-NM-240-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD based on those comments.
    We will post all comments we receive, without change, to http://
www.regulations.gov, including any personal information you provide. We
will also post a report summarizing each substantive verbal contact we
receive about this proposed AD.

Discussion

    We proposed to amend 14 CFR part 39 with an earlier NPRM for the
specified products, which was published in the Federal Register on
February 5, 2008 (73 FR 6640). That earlier NPRM proposed to require
actions intended to address the unsafe condition for the products
listed above.
    Since that NPRM was issued, the European Aviation Safety Agency
(EASA), which is the Technical Agent for the Member States of the
European Community, has issued EASA Airworthiness Directive 2008-0068,
dated April 11, 2008 (referred to after this as ``the MCAI''). The MCAI
states:

    One Part Number (P/N) LM-219-92 Centre Bracket from a P/N LM-
219-SA28 Aft Engine Mounting assembly was found to be cracked while
installed on the aircraft.
    This reduces the effectiveness of the mounting assembly and
could eventually cause it to fail.
    EASA Airworthiness Directive (AD) was issued to require
inspection and rework in order to make the centre bracket less
sensitive to external damage that may result in a crack.
    This AD, superseding AD 2007-0204, has been issued to introduce
an alternative repeatable inspection procedure.

A failed mounting assembly, if not corrected, could result in loss of
the engine. The corrective actions include an inspection to determine
if there are any sharp edges on the aft engine mounting assembly;
repetitive visual inspections, or a combination of visual and
fluorescent penetrant inspection, for cracking of the center bracket of
the aft engine mounting assembly for both engines; rework of sharp
edges; replacement of the aft engine mounting assemblies; and re-
identification of engine mounting assemblies and reworked center
bracket. You may obtain further information by examining the MCAI in
the AD docket.

Relevant Service Information

    Saab has issued Saab Service Bulletin 2000-71-025, dated June 13,
2007, and Saab Service Bulletin 2000-71-023, Revision 01, dated June
13, 2007. The actions described in this service information are
intended to correct the unsafe condition identified in the MCAI.

Comments

    We have considered the following comments received on the earlier
NPRM.

Requests To Change Unsafe Condition

    Rolls-Royce Corporation and Saab Aerosystems point out that the
unsafe condition is stated incorrectly in the earlier NPRM. The unsafe
condition in the earlier NPRM says ``a failed mounting assembly, if not
corrected, could result in loss of the engine.'' The commenters state
that the engine mounting assembly is designed as a redundant, multiple
point mounting system and, in case of loss of one mount, the loads are
transferred through the remaining mounts. Therefore, the mounting
system is capable of flight with one mounting assembly completely
inoperative, though the failure increases the load applied to the other
mounting assemblies. Rolls-Royce states that Saab issued Service
Bulletin 2000-71-025 (which we cited in the earlier NPRM) to ensure
that the system redundancies are maintained.
    We disagree with the request to change the wording of the unsafe
condition. In an unsafe condition we define the end-level effect that
condition could have on. In this case, a failed mounting assembly could
compromise safety as the first in a

potential chain of events that could result in loss of the engine. The
unsafe condition emphasizes only the potential result by saying a
failed mounting assembly could result in loss of the engine rather than
saying it will result in loss of the engine. We have not changed the
supplemental NPRM in this regard.

Request To Revise Difference Regarding Continued Flight With Cracks

    Rolls-Royce and Saab also state that the ``Differences'' section in
the NPRM incorrectly implies that Saab Service Bulletin 2000-71-025,
and European Aviation Safety Agency (EASA) Airworthiness Directive
2007-0204, dated August 8, 2007, allow continued flight if a cracked
center bracket is found. The commenters state that if any crack is
found, the mounting assembly should be replaced before further flight.
    When we evaluated the original EASA airworthiness directive, we
found that it states that corrective actions are to be applied within
4,000 flight hours after its effective date. Because the EASA
airworthiness directive does not specify that corrective actions are to
be completed before further flight after the visual inspection, this
means that operators can wait 4,000 flight hours to do the replacement,
even though the inspection was required within 1,000 flight hours after
the effective date. The service bulletin states that ``If any cracks
are found, replace the Aft Engine Mounting Assembly,'' but does not
give a specific time for doing that replacement. Therefore, we
concluded that both documents can be interpreted to allow further
flight with cracks. We also note that EASA Airworthiness Directive
2008-0068 maintains this same wording. Therefore, we have not changed
the supplemental NPRM in this regard.

Statement of New Service Information

    Saab states that it is working jointly with Rolls-Royce to develop
an alternative means of compliance to the current non-destructive test
(NDT) inspection specified in Saab Service Bulletin 2000-71-025. The
proposed revision has been submitted to EASA and will most probably
result in EASA issuing a revised airworthiness directive.
    As stated earlier, EASA has issued Airworthiness Directive 2008-
0068, and we have revised this supplemental NPRM accordingly. However,
this supplemental NPRM still refers to Saab Service Bulletin 2000-71-
025 because the service bulletin has not been revised. This
supplemental NPRM also now refers to Saab Service Bulletin 2000-71-023,
Revision 01 as an acceptable source of service information for doing
certain actions. Once new service information is developed, approved,
and available, we might consider additional rulemaking. We have not
changed the AD in this regard.

FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another
country, and is approved for operation in the United States. Pursuant
to our bilateral agreement with the State of Design Authority, we have
been notified of the unsafe condition described in the MCAI and service
information referenced above. We are proposing this AD because we
evaluated all pertinent information and determined an unsafe condition
exists and is likely to exist or develop on other products of the same
type design.
    Certain changes described above expand the scope of the earlier
NPRM. As a result, we have determined that it is necessary to reopen
the comment period to provide additional opportunity for the public to
comment on this proposed AD.

Differences Between This AD and the MCAI or Service Information

    We have reviewed the MCAI and related service information and, in
general, agree with their substance. But we might have found it
necessary to use different words from those in the MCAI to ensure the
AD is clear for U.S. operators and is enforceable. In making these
changes, we do not intend to differ substantively from the information
provided in the MCAI and related service information.
    We might also have proposed different actions in this AD from those
in the MCAI in order to follow FAA policies. Any such differences are
highlighted in a note within the proposed AD.

Costs of Compliance

    Based on the service information, we estimate that this proposed AD
would affect about 6 products of U.S. registry. We also estimate that
it would take about 8 work-hours per product to comply with the basic
requirements of this proposed AD. The average labor rate is $80 per
work-hour. Based on these figures, we estimate the cost of the proposed
AD on U.S. operators to be $3,840, or $640 per product.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. ``Subtitle VII: Aviation
Programs,'' describes in more detail the scope of the Agency's
authority.
    We are issuing this rulemaking under the authority described in
``Subtitle VII, Part A, Subpart III, Section 44701: General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.

Regulatory Findings

    We determined that this proposed AD would not have federalism
implications under Executive Order 13132. This proposed AD would not
have a substantial direct effect on the States, on the relationship
between the national Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
    For the reasons discussed above, I certify this proposed
regulation:
    1. Is not a ``significant regulatory action'' under Executive Order
12866;
    2. Is not a ``significant rule'' under the DOT Regulatory Policies
and Procedures (44 FR 11034, February 26, 1979); and
    3. Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.
    We prepared a regulatory evaluation of the estimated costs to
comply with this proposed AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Safety.

The Proposed Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA proposes to amend 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. The FAA amends Sec.  39.13 by adding the following new AD:

Saab Aircraft AB: Docket No. FAA-2008-0115; Directorate Identifier
2007-NM-240-AD.

Comments Due Date

    (a) We must receive comments by September 23, 2008.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Saab Model SAAB 2000 airplanes,
certificated in any category, serial number 004 through 063.

Subject

    (d) Air Transport Association (ATA) of America Code 71:
Powerplant.

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:

    One Part Number (P/N) LM-219-92 Centre Bracket from a P/N LM-
219-SA28 Aft Engine Mounting assembly was found to be cracked while
installed on the aircraft.
    This reduces the effectiveness of the mounting assembly and
could eventually cause it to fail.
    EASA Airworthiness Directive (AD) was issued to require
inspection and rework in order to make the centre bracket less
sensitive to external damage that may result in a crack.
    This AD, superseding AD 2007-0204, has been issued to introduce
an alternative repeatable inspection procedure.

A failed mounting assembly, if not corrected, could result in loss
of the engine. The corrective actions include an inspection to
determine if there are any sharp edges on the aft engine mounting
assembly; repetitive visual inspections, or a combination of visual
and fluorescent penetrant inspection, for cracking of the center
bracket of the aft engine mounting assembly for both engines; rework
of sharp edges; replacement of the aft engine mounting assemblies;
and re-identification of engine mounting assemblies and reworked
center bracket.

Actions and Compliance

    (f) Unless already done, do the following actions.
    (1) Within 1,000 flight hours after the effective date of this
AD, do visual inspections of both the aft engine mounting assemblies
to find if the center bracket is correct (no sharp edges) from the
manufacturer.
    (2) If no sharp edge is found during the inspection required by
paragraph (f)(1) of this AD, before further flight, inspect to
determine if the aft engine mounting assembly and center bracket are
identified with a ``-1'' and before further flight re-identify the
parts that are not identified with a ``-1'' in accordance with the
Accomplishment Instructions of Saab Service Bulletin 2000-71-025,
dated June 13, 2007. Following the re-identification, no further
action is required by this AD for airplanes on which no sharp edge
is found during the inspection required by paragraph (f)(1) of this
AD.
    (3) If any sharp edge is found during the inspection required by
paragraph (f)(1) of this AD, before further flight, do the action in
paragraph (f)(3)(i) or (f)(3)(ii) of this AD in accordance with the
Accomplishment Instructions of Saab Service Bulletin 2000-71-025,
dated June 13, 2007.
    (i) Do a general visual inspection for cracking of the center
bracket of both of the aft engine mounting assemblies, with the
bracket on the wing, and repeat the inspection thereafter at
intervals not to exceed 250 flight hours until the action required
by paragraph (f)(4) of this AD is accomplished.
    (ii) Do general visual and penetrant inspections for cracking of
the center bracket of both of the aft engine mounting assemblies,
with the bracket off the wing.

    Note 1: For the purposes of this AD, a general visual inspection
is: ``A visual examination of an interior or exterior area,
installation, or assembly to detect obvious damage, failure, or
irregularity. This level of inspection is made from within touching
distance unless otherwise specified. A mirror may be necessary to
ensure visual access to all surfaces in the inspection area. This
level of inspection is made under normally available lighting
conditions such as daylight, hangar lighting, flashlight, or
droplight and may require removal or opening of access panels or
doors. Stands, ladders, or platforms may be required to gain
proximity to the area being checked.''

    (4) At the applicable time in paragraph (f)(4)(i) or (f)(4)(ii)
of this AD, do the applicable actions in those paragraphs in
accordance with the Accomplishment Instructions of Saab Service
Bulletin 2000-71-025, dated June 13, 2007. Doing the applicable
action terminates the repetitive inspection requirements of
paragraph (f)(3)(i) of this AD.
    (i) If no cracking is found during any inspection required by
paragraph (f)(3) of this AD: Within 4,000 flight hours after the
effective date of this AD, rework the center bracket, and re-
identify the aft engine mounting assembly and center bracket.
    (ii) If any cracking is found during any inspection required by
paragraph (f)(3) of this AD, before further flight, replace the aft
engine mounting assembly with an assembly and bracket identified
with a ``-1'' part number.
    (5) Actions done before the effective date of this AD in
accordance with Saab Service Bulletin 2000-71-023, Revision 01,
dated June 13, 2007, are acceptable for compliance with the
corresponding requirements of paragraph (f)(3) of this AD.

FAA AD Differences

    Note 2: This AD differs from the MCAI and/or service information
as follows:
    (1) Although the MCAI or service information allows further
flight after cracks are found during compliance with the required
action, paragraph (f)(4) of this AD requires that you replace a
cracked aft engine mounting assembly before further flight.

Other FAA AD Provisions

    (g) The following provisions also apply to this AD:
    (1) Alternative Methods of Compliance (AMOCs): The Manager,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
has the authority to approve AMOCs for this AD, if requested using
the procedures found in 14 CFR 39.19. Send information to ATTN:
Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-
116, Transport Airplane Directorate, FAA, 1601 Lind Avenue, SW.,
Renton, Washington 98057-3356; telephone<PHONE_NUMBER>; fax (425)
227-1149. Before using any approved AMOC on any airplane to which
the AMOC applies, notify your appropriate principal inspector (PI)
in the FAA Flight Standards District Office (FSDO), or lacking a PI,
your local FSDO.
    (2) Airworthy Product: For any requirement in this AD to obtain
corrective actions from a manufacturer or other source, use these
actions if they are FAA-approved. Corrective actions are considered
FAA-approved if they are approved by the State of Design Authority
(or their delegated agent). You are required to assure the product
is airworthy before it is returned to service.
    (3) Reporting Requirements: For any reporting requirement in
this AD, under the provisions of the Paperwork Reduction Act, the
Office of Management and Budget (OMB) has approved the information
collection requirements and has assigned OMB Control Number 2120-
0056.

Related Information

    (h) Refer to MCAI European Aviation Safety Agency (EASA)
Airworthiness Directive 2008-0068, dated April 11, 2008, and Saab
Service Bulletin 2000-71-025, dated June 13, 2007, for related
information.

    Issued in Renton, Washington, on August 20, 2008.
Kevin Hull,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. E8-20088 Filed 8-28-08; 8:45 am]

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