[Federal Register: October 25, 2010 (Volume 75, Number 205)]
[Rules and Regulations]
[Page 65432-65437]
[DOCID:fr25oc10-3]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R06-RCRA-2009-0343 FRL-9217-2]

New Mexico: Final Authorization of State Hazardous Waste
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The State of New Mexico has applied to the EPA for final
authorization of changes to its hazardous waste program under the
Resource Conservation and Recovery Act (RCRA). The EPA has determined
that these changes satisfy all requirements needed to qualify for final
authorization, and is authorizing the State's changes through this
immediate final action. The EPA is publishing this

rule to authorize the changes without a prior proposal because we
believe this action is not controversial and do not expect comments
that oppose it. Unless we receive written comments, which oppose this
authorization during the comment period, the decision to authorize New
Mexico's changes to its hazardous waste program will take effect. If we
receive comments that oppose this action, we will publish a document in
the Federal Register withdrawing this rule before it takes effect, and
a separate document in the proposed rules section of this Federal
Register will serve as a proposal to authorize the changes.

DATES: This final authorization will become effective on December 27,
2010 unless the EPA receives adverse written comment by November 24,
2010. If the EPA receives such comment, it will publish a timely
withdrawal of this immediate final rule in the Federal Register and
inform the public that this authorization will not take effect.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: http:[sol][sol]www.regulations.gov.
Follow the online instructions for submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Mail: Alima Patterson, Region 6, Regional Authorization
Coordinator, State/Tribal Oversight Section (6PD-O), Multimedia
Planning and Permitting Division, EPA Region 6, 1445 Ross Avenue,
Dallas, Texas 75202-2733.
    4. Hand Delivery or Courier: Deliver your comments to Alima
Patterson, Region 6, Regional Authorization Coordinator, State/Tribal
Oversight Section (6PD-O), Multimedia Planning and Permitting Division,
EPA Region 6, 1445 Ross Avenue, Dallas, Texas 75202-2733.
    5. Instructions: Do not submit information that you consider to be
CBI or otherwise protected through regulations.gov, or e-mail. The
Federal regulations.gov Web site is an ``anonymous access'' system,
which means the EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to the EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, the EPA
recommends that you include your name and other contact information in
the body of your comment and with any disk or CD-ROM you submit. If the
EPA cannot read your comment due to technical difficulties and cannot
contact you for clarification, the EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses. You can
view and copy New Mexico's application and associated publicly
available materials from 8:30 a.m. to 4 p.m. Monday through Friday at
the following locations: New Mexico Environment Department, 2905 Rodeo
Park Drive East, Building 1, Santa Fe, New Mexico 87505-6303, phone
number<PHONE_NUMBER> and EPA, Region 6, 1445 Ross Avenue, Dallas,
Texas 75202-2733, phone number<PHONE_NUMBER>. Interested persons
wanting to examine these documents should make an appointment with the
office at least two weeks in advance.

FOR FURTHER INFORMATION CONTACT: Alima Patterson Region 6 Regional
Authorization Coordinator, State/Tribal Oversight Section (6PD-O),
Multimedia Planning and Permitting Division,<PHONE_NUMBER>), EPA
Region 1445 Ross Avenue, Dallas, Texas 75202-2733, and e-mail address
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. Why are revisions to state programs necessary?

    States which have received final authorization from the EPA under
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal program. As the Federal program changes,
States must change their programs and ask the EPA to authorize the
changes. Changes to State programs may be necessary when Federal or
State statutory or regulatory authority is modified or when certain
other changes occur. Most commonly, States must change their programs
because of changes to the EPA's regulations in 40 Code of Federal
Regulations (CFR) parts 124, 260 through 266-268, 270, 273, and 279.

B. What decisions have we made in this rule?

    We conclude that New Mexico's application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant New Mexico final authorization
to operate its hazardous waste program with the changes described in
the authorization application. New Mexico has responsibility for
permitting treatment, storage, and disposal facilities within its
borders (except in Indian Country) and for carrying out the aspects of
the RCRA program described in its revised program application, subject
to the limitations of the Hazardous and Solid Waste Amendments of 1984
(HSWA). New Federal requirements and prohibitions imposed by Federal
regulations that the EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, the EPA will implement those requirements and
prohibitions in New Mexico including issuing permits, until the State
is granted authorization to do so.

C. What is the effect of today's authorization decision?

    The effect of this decision is that a facility in New Mexico
subject to RCRA will now have to comply with the authorized State
requirements instead of the equivalent Federal requirements in order to
comply with RCRA. New Mexico has enforcement responsibilities under its
State hazardous waste program for violations of such program, but the
EPA retains its authority under RCRA sections 3007, 3008, 3013, and
7003, which include, among others, authority to:
     Do inspections, and require monitoring, tests, analyses,
or reports;
     Enforce RCRA requirements and suspend or revoke permits;
and
     Take enforcement actions regardless of whether New Mexico
has taken its own actions.
    This action does not impose additional requirements on the
regulated community because the regulations for which New Mexico is
being authorized by today's action are already effective under State
law, and are not changed by today's action.

D. Why wasn't there a proposed rule before today's rule?

    The EPA did not publish a proposal before today's rule because we
view this as a routine program change and do not expect comments that
oppose this approval. We are providing an opportunity for public
comment now. In addition to this rule, in the proposed rules section of
today's Federal Register we are publishing a separate document that
proposes to authorize the State program changes.

E. What happens if the EPA receives comments that oppose this action?

    If the EPA receives comments that oppose this authorization, we
will withdraw this rule by publishing a document in the Federal
Register before the rule becomes effective. The EPA will

base any further decision on the authorization of the State program
changes on the proposal mentioned in the previous paragraph. We will
then address all public comments in a later final rule. You may not
have another opportunity to comment. If you want to comment on this
authorization, you must do so at this time. If we receive comments that
oppose only the authorization of a particular change to the State
hazardous waste program, we will withdraw only that part of this rule,
but the authorization of the program changes that the comments do not
oppose will become effective on the date specified above. The Federal
Register withdrawal document will specify which part of the
authorization will become effective, and which part is being withdrawn.

F. For what has New Mexico previously been authorized?

    The State of New Mexico initially received final authorization on
January 25, 1985 (50 FR 1515) to implement its base hazardous waste
management program. New Mexico received authorization for revisions to
its program on February 9, 1990 (55 FR 4604) effective April 10, 1990;
March 19, 1990 (55 FR 10076); July 11, 1990 (55 FR 28397) effective
July 25, 1990; October 5, 1992 (57 FR 45717) effective December 4,
1992; June 9, 1994 (59 FR 29734) effective August 23, 1994; October 7,
1994 (59 FR 51122) effective December 21, 1994; April 25, 1995 (60 FR
20238) effective July 10, 1995; (61 FR 2450) January 2, 1996; December
23, 1996 (61 FR 67474) effective March 10, 1997 and August 10, 2001 (66
FR 42140) effective October 9, 2001 and (72 FR 46165) effective October
16, 2007. The authorized New Mexico RCRA program was incorporated by
reference to the CFR, effective December 13, 1993 (58 FR 52677);
November 18, 1996 (61 FR 49265); July 13, 1998 (63 FR 23221); effective
October 27, 2003, and March 25, 2009, (74 FR 12625); effective May 26,
2009. On May 21, 2009 New Mexico submitted a final complete program
revision application seeking authorization of its program revision in
accordance with 40 CFR 271.21.
    New Mexico statutes provide authority for the NMED to administer
the provisions of the State Hazardous Waste Management Program (HWMP).
The New Mexico Environmental Improvement Act (EIA), NMSA 1978, Sections
74-1-1 through 74-1-14 and the New Mexico Hazardous Waste Act (HWA)
provide this authority. No amendments have been made to the EIA or HWA
that affect the ability of the NMED to administer the HWMP. The NMED is
the sole agency responsible for the HWMP.
    The NMED petitioned the New Mexico Environmental Improvement Board
(EIB) to amend the HWMR, 20.4.1 for the EPA Federal rules promulgated
from July 1, 2002, through July 1, 2008. The EIB adopted the amendments
to the Hazardous Waste Management Regulations (HWMR) on November 3,
2008, and these amendments became permanent rules effective March 1,
2009.
    Thus, 20.4.1 NMAC provides equivalent and no less stringent
authority than the adoption of Federal RCRA Subtitle C program in
effect through July 1, 2008. This is the version that is referred to in
the Attorney General's Statement and Certification submitted with this
program revision. The 20 NMAC 4.1 became effective on March 1, 2009.
New Mexico Statutes Annotated (NMAC) 1978 Sections 74-4-4A(1) and 74-4-
4F (2002) provides New Mexico with authority to adopt Federal
regulations by reference with exceptions to federal rules that are not
delegated to the State of New Mexico. Since the latest authorization
the scope, structure, coverage, and processes have not materially
changed.
    New Mexico, through the HWMR, has incorporated by reference the
following federal RCRA regulations as amended through July 1, 2008: 40
CFR parts 260-270, 40 CFR part 270; 40 CFR part 273; and 40 CFR part
279 with the exception of 40 CFR 260.1(b)(6), 260.20, 260.22, 260.30,
260.31, 260.32, 260.33, 263.20(e), 264.1(f), 264.149, 264.150,
264.301(l), 264.1030(d), 264.1050(g), 264.1080(e), 264.1080(f),
264.1080(g), 265.1(c)(4), 265.149, 265.150, 265.1030(c), 265.1050(f),
265.1080(e), 265.1080(f), 265.1080(g); 268.5, 268.6, 268.42(b),
268.44(a) through (g). New Mexico has incorporated by reference 40 CFR
part 124, sections 124.31, 124.32, and 124.33 with exception to 40 CFR
parts 124.1 and 124.2. Also, it has adopted regulations at <IP_ADDRESS>1
NMAC, Permitting Procedures, that are equivalent to and no less
stringent than the procedures of 40 CFR part 124 and required by 40 CFR
271.14.
    The State of New Mexico has added regulations <IP_ADDRESS>1.A(1),
A(3), & .D requirements for aerosol cans as universal waste. An EPA
memo dated February 13, 1997 (from Mike Shapiro to Senior RCRA Policy
Managers in the EPA Regions), indicates that States that are already
authorized for the universal waste rule may add additional wastes that
meet the criteria for universal waste to their program. Such state-only
wastes may be recognized as part of the State's authorized program;
therefore, EPA Region 6 has determined that the State's aerosol can
provisions can be recognized as part of the State's authorized program.
    <IP_ADDRESS>1.C--New Mexico has adopted an extensive revision to
their universal waste program which would allow the intentional
breaking and crushing of universal waste lamps in order to reduce their
volume to facilitate management or transport to destination facilities.
The State's regulations also include specific requirements with which
the regulated community must comply. Further analysis will be performed
to determine if the breaking and crushing of universal waste lamps will
be authorized as part of the State's authorized program. Therefore, the
EPA has determined that these requirements are not part of the State's
authorized program. The lamp crushing provisions are excluded from this
authorization.
    Performance Track (Non-HSWA) (Revision Checklist 204; 69 FR 21737,
4[sol]24[sol]04, as amended at 69 FR 62217, 10[sol]24[sol]04). In New
Mexico's Program Revision Application package for RCRA Clusters XIII
through XVIII, the State indicates that it is seeking authorization for
the Performance Track program, as addressed by Revision Checklist 204.
However, on March 16, 2009, EPA announced its intention to halt and
review the National Performance Track Program. Therefore, EPA Region 6
has decided to exclude this rule from this authorization document. The
EPA is also excluding from this authorization document, the specific
Performance Track provisions addressed by the Burden Reduction
Initiative Rule (71 FR 16862; 04[sol]04[sol]06; Revision Checklist
213).

G. What changes are we authorizing with today's action?

    On May 21, 2009, New Mexico submitted a final complete program
revision application, seeking authorization of their changes in
accordance with 40 CFR 271.21. We now make an immediate final decision,
subject to receipt of written comments that oppose this action, that
New Mexico's hazardous waste program revision satisfies all of the
requirements necessary to qualify for Final authorization. Therefore,
we grant the State of New Mexico Final authorization for the following
changes: The State of New Mexico's program revisions consist of
regulations which specifically govern Federal Hazardous Waste revisions
promulgated from July 1, 2002 through July 1, 2008 (RCRA Clusters XIII-
XVIII). The State of New Mexico requirements are included in a chart
with this document.

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                                   Federal Register
     Description of Federal       date and page (and/   Analogous State
 requirement (include checklist    or RCRA statutory       authority
      number, if relevant)             authority
------------------------------------------------------------------------
1. Zinc Fertilizer Rule.          67 FR 48393-48415,  New Mexico Statute
 (Checklist 200).                  July 24, 2002.      Annotated (NMSA)
                                                       1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       20.4.1. 200,
                                                       <IP_ADDRESS>0, and
                                                       <IP_ADDRESS>0 as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
2. Treatment Variance for         67 FR 62618-62624,  New Mexico Statute
 Radioactively Contaminated        October 7, 2002.    Annotated (NMSA)
 Batteries. (Checklist 201).                           1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
3. Hazardous Air Pollutant        67 FR 77687-77692,  New Mexico Statute
 Standards for Combustors-         December 19, 2002.  Annotated (NMSA)
 Corrections 2. (Checklist 202).                       1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
4. Recycled Used Oil Management   68 FR 44659-44665,  New Mexico Statute
 Standards; Clarification.         July 30, 2003.      Annotated (NMSA)
 (Checklist 203).                                      1978, Sections74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS> and
                                                       <IP_ADDRESS>2, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
5. NESHAP: Surface Coating of     69 FR 22601-22661,  New Mexico Statute
 Automobiles and Light-Duty        April 26, 2004.     Annotated (NMSA)
 Trucks. (Checklist 205).                              1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>0 and
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
6. Nonwastewaters from Dyes and   70 FR 9138-9180,    New Mexico Statute
 Pigments. (Checklist 206).        February 24, 2005.  Annotated (NMSA)
                                                       1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS> and
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
7. Uniform Hazardous Waste        70 FR 10776-10825,  New Mexico Statute
 Manifest Rule. (Checklist 207).   March 4, 2005.      Annotated (NMSA)
                                                       1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0, and
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
8. Methods Innovation Rule and    70 FR 34538-34592,  New Mexico Statute
 SW-846 Final Update IIIB.         June 14, 2005.      Annotated (NMSA)
 (Checklist 208).                                      1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0 and
                                                       <IP_ADDRESS>2, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
9. Universal Waste Rule:          70 FR 45508-45522,  New Mexico Statute
 Specific Provisions for Mercury   August 5, 2005.     Annotated (NMSA)
 Containing Equipment.                                 1978, Section 74-
 (Checklist 209).                                      4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS><IP_ADDRESS>
                                                       0, <IP_ADDRESS>0,
                                                       and <IP_ADDRESS>0,
                                                       as amended
                                                       November 3, 2008,
                                                       effective March
                                                       1, 2009.
10. Revisions of Wastewater       70 FR 57769-57785,  New Mexico Statute
 Treatment Exemptions for          October 4, 2005.    Annotated (NMSA)
 Hazardous Waste Mixture                               1978, Section 74-
 (``Headworks exemptions'').                           4-1. Hazardous
 (Checklist 211).                                      Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
11. NESHAP: Final Standards for   70 FR 59402-59579,  New Mexico Statute
 Hazardous Waste Combustors        October 12, 2005.   Annotated (NMSA)
 (Phase I Final Replacement                            1978, Section 74-
 Standards and Phase II).                              4-1. Hazardous
 (Checklist 212).                                      Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0, and
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.

12. Burden Reduction Initiative.  71 FR 16862-16915,  New Mexico Statute
 (Checklist 213).                  April 4, 2006.      Annotated (NMSA)
                                                       1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>1
                                                       (except
                                                       .501.A(2)),
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>1,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>1,
                                                       <IP_ADDRESS>0, and
                                                       <IP_ADDRESS>2, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
                                                      Note: As discussed
                                                       in Section F, the
                                                       EPA is excluding
                                                       from this
                                                       authorization the
                                                       Performance Track
                                                       provisions
                                                       addressed by this
                                                       final rule.
13. Corrections to Errors in the  71 FR 40254-40280,  New Mexico Statute
 Code of Federal Regulations.      July 14, 2006.      Annotated (NMSA)
 (Checklist 214).                                      1978, Sections 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>1,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0,
                                                       <IP_ADDRESS>0
                                                       <IP_ADDRESS>0, and
                                                       <IP_ADDRESS>2 as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
14. Cathode Ray Tubes Rule.       71 FR 42928-42949,  New Mexico Statute
 (Checklist 215).                  July 28, 2006.      Annotated (NMSA)
                                                       1978, Section 74-
                                                       4-1. Hazardous
                                                       Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>, and
                                                       <IP_ADDRESS>, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
15. Exclusion of Oil-Bearing      73 FR 57-72,        New Mexico Statute
 Secondary Materials Processed     January 2, 2008.    Annotated (NMSA)
 in a Gasification System to                           1978, Section 74-
 Produce Synthesis. (Checklist                         4-1. Hazardous
 216).                                                 Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>, and
                                                       <IP_ADDRESS>, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
16. NESHAP: Final Standards for   73 FR 18970-18984,  New Mexico Statute
 Hazardous Waste Combustors        April 8, 2008.      Annotated (NMSA)
 (Phase I Final Replacement                            1978, Section 74-
 Standards and Phase II)                               4-1. Hazardous
 Amendments. (Checklist 217).                          Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>0, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
17. F019 Exemption for            73 FR 31756-31769,  New Mexico Statute
 Wastewater Treatment Sludges      June 4, 2008.       Annotated (NMSA)
 from Auto Manufacturing Zinc                          1978, Section 74-
 Phosphating Processes.                                4-1. Hazardous
 (Checklist 218).                                      Waste Regulations
                                                       (HWMR), New
                                                       Mexico
                                                       Environmental
                                                       Improvement
                                                       Board, 20 NMAC,
                                                       <IP_ADDRESS>, as
                                                       amended November
                                                       3, 2008,
                                                       effective March
                                                       1, 2009.
------------------------------------------------------------------------

H. Where are the revised state rules different from the Federal rules?

    The State of New Mexico more stringent regulations are at Sections
<IP_ADDRESS>1 and <IP_ADDRESS>2. The State's more stringent regulations
corresponds to Federal regulations 40 CFR 266.102(e)(10) and 270.14(a).
There are no broader in scope provisions in this authorization
document.

I. Who handles permits after the authorization takes effect?

    New Mexico will issue permits for all the provisions for which it
is authorized and will administer the permits it issues. The EPA will
continue to administer any RCRA hazardous waste permits or portions of
permits, which we issued prior to the effective date of this
authorization. We will not issue any more new permits or new portions
of permits for the provisions listed in the Table in this document
after the effective date of this authorization. The EPA will continue
to implement and issue permits for HSWA requirements for which New
Mexico is not yet authorized.

J. What is codification and is the EPA codifying New Mexico's hazardous
waste program as authorized in this rule?

    Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272;
subpart GG for this authorization of New Mexico's program changes until
a later date. In this authorization application the EPA is not
codifying the rules documented in this Federal Register notice.

K. Statutory and Executive Order Reviews

    The Office of Management and Budget (OMB) has exempted this action
from the requirements of Executive Order 12866 (58 FR 51735, October 4,
1993), and therefore this action is not subject to review by OMB. This
action authorizes State requirements for the purpose of RCRA 3006 and
imposes no additional requirements beyond those imposed by State law.
Accordingly, I certify that this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action

authorizes preexisting requirements under State law and does not impose
any additional enforceable duty beyond that required by State law, it
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). For the same reason, this action also does
not significantly or uniquely affect the communities of Tribal
governments, as specified by Executive Order 13175 (65 FR 67249,
November 9, 2000). This action will not have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999), because it merely authorizes State
requirements as part of the State RCRA hazardous waste program without
altering the relationship or the distribution of power and
responsibilities established by RCRA. This action also is not subject
to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is
not economically significant and it does not make decisions based on
environmental health or safety risks. This rule is not subject to
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355
(May 22, 2001)) because it is not a significant regulatory action under
Executive Order 12866.
    Under RCRA 3006(b), the EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a State authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the Executive
Order. This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.). The Congressional Review Act, 5 U.S.C. 801 et seq., as added
by the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before may take effect, the agency promulgating
the rule a rule must submit a report, which includes a copy of the
rule, to each House of the Congress and to the Comptroller General of
the United States. The EPA will submit a report containing this
document 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 in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register.
    This action is not a ``major rule'' as defined by 5 U.S.C. 804(2).
This action will be effective December 27, 2010.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.

    Authority: This action is issued under the authority of sections
2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as
amended 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: October 12, 2010.
Al Armendariz,
Regional Administrator, Region 6.
[FR Doc. 2010-26962 Filed 10-22-10; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 81, Number 113 (Monday, June 13, 2016)]
[Proposed Rules]
[Pages 38117-38119]
[FR Doc No: 2016-13844]

=======================================================================
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DEPARTMENT OF LABOR

Occupational Safety and Health Administration

29 CFR Part 1910

[Docket No. OSHA-2008-0012]
RIN 1218-AC40

Tree Care Operations

AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.

ACTION: Notice of stakeholder meeting.

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

SUMMARY: OSHA invites interested parties to participate in an informal
stakeholder meeting concerning tree care operations on July 13, 2016,
in

Washington, DC. This meeting is a continuation of OSHA's information
collection on tree care operations. OSHA plans to use the information
gathered at this meeting, together with other information in the
record, to explore the possible development of a proposed standard to
protect workers from hazards, fatalities, and injuries in tree care
operations.

DATES: Stakeholder meeting: The stakeholder meeting will be from 9 a.m.
to 5 p.m., Tuesday, July 13, 2016.
    Deadline for registering to participate in or observe the
stakeholder meeting: You must submit (postmark, send, transmit) your
registration by Friday, July 1, 2016. If space remains after the
deadline, OSHA may allow additional participants and observers.
Individuals who submit their registration after July 1, 2016, may not
receive confirmation from OSHA and should contact Ms. Amy Wangdahl (see
FOR FURTHER INFORMATION CONTACT) to confirm space is available.

ADDRESSES: Stakeholder meeting: The stakeholder meeting will be held in
Room C-5515-1A/1B, U.S. Department of Labor, 200 Constitution Avenue
NW., Washington, DC 20210.
    Registration to participate in or observe the stakeholders meeting:
Submit your registration to participate in or observe the stakeholder
meeting using one of the methods below:
    Electronic: Register at: https://projects.erg.com/conferences/osha/register-osha-tree-meeting.htm. (Follow the instructions online.)
    Facsimile: Fax your request to<PHONE_NUMBER>, labeled ``Attention:
Tree Care Operations Stakeholder Meeting Registration.''
    Regular mail, express delivery, hand (courier) delivery, and
messenger service: Submit your registration to OSHA Tree Care
Operations Stakeholder Meeting Registration, Attention: Ms. Amy
Wangdahl, OSHA, Room N-3621, 200 Constitution Avenue NW., Washington,
DC 20210. Due to security related procedures, receipt of registration
by regular mail may experience significant delays.
    For additional information about registering for the stakeholder
meeting see the SUPPLEMENTARY INFORMATION section of this notice.
    Electronic copies of this Federal Register notice are available at:
http://www.regulations.gov. This notice, as well as news releases and
other relevant information, also are available on the OSHA Web page at:
http://www.osha.gov.

FOR FURTHER INFORMATION CONTACT:
    Press inquiries: Mr. Frank Meilinger, Director, OSHA Office of
Communications, Room N-3647, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>    General and technical information: Ms. Amy Wangdahl, Director,
Office of Maritime and Agriculture, OSHA Directorate of Standards and
Guidance, Room N-3621, U.S. Department of Labor, 200 Constitution
Avenue NW., Washington, DC 20210; telephone:<PHONE_NUMBER>, email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    Tree care operations, such as tree trimming and removal, expose
workers to a number of dangerous hazards. These dangers include falling
from trees or aerial equipment; being hit by falling trees/branches,
flying objects and vehicular traffic; being cut by high-speed chain
saws and chippers; and coming into contact with energized power lines.
The hazards present in tree care operations have resulted in many
fatalities and serious injuries, such as falls, being struck by falling
objects, and electrocutions. On December 8, 2008, OSHA issued an
Advanced Notice of Proposed Rulemaking (ANPR) seeking information on
tree care operations (73 FR 54118 (9/18/2008), Docket No. OSHA-2008-
0012). The Agency requested data, information, and comment on the
hazards present in tree care operations as well as the measures to
control those hazards and reduce the high rate of incidents, injuries,
and fatalities. OSHA received 69 comments in response to the ANPR.
    Based upon those responses, other information in the record and a
review of data and scientific literature, OSHA is considering what
action, if any, the Agency should take to control hazards related to
tree care operations. One option the Agency is considering is
developing a standard to eliminate or reduce workers' exposure to
hazards when they perform tree care tasks such as trimming and removing
branches and trees; using tree care equipment (e.g., chain saws,
chippers, ladders) and vehicles (e.g., bucket trucks, aerial lifts);
removing tree stumps; and disposing of branches, brush and trees.
    The Agency believes that an informal discussion with a diverse
range of stakeholders (e.g., employers, tree care companies, workers,
labor organization, tree care and arboriculture organizations,
occupational safety and health professionals, equipment manufacturers,
government, the public) would be beneficial in determining how to
proceed in eliminating and reducing hazards in tree care operations.

II. Stakeholder Meeting

    The stakeholder meeting will be interactive group discussions on
participants' views, concerns, and issues on tree care hazards and how
best to control them. To encourage as much group interaction as
possible, formal presentations by stakeholders will not be permitted.
    The stakeholder meeting discussions will center on a variety of
tree care topics, including fall, struck-by (e.g., falling branches/
trees, vehicular traffic) and electrical hazards; climbing and working
in trees; tree trimming and removal; rigging; personal protection
equipment (PPE); safe use of tools, equipment, machines and vehicles;
effective engineering and work practice controls; and medical service
and first aid. The stakeholder meeting also will include in-depth
discussions on specific issues, such as the following:
     Fatalities and injuries: As mentioned, fatalities in tree
care operations primarily result from falls, being struck by falling
objects or vehicles, and electrocutions. What are the primary causes,
circumstances and factors that have led to those and other types of
fatalities and injuries in your company and in the tree care industry?
What actions does your company take when an accident, fatality or
injury occurs (e.g., accident review, job hazard analysis, safety
meetings, training)?
     New technology in the tree care industry: What new
technology, equipment, machines, vehicles and work practices are
currently being used in the tree care industry? What new technology has
your company found to be effective in controlling hazards and
preventing tree care workers from being killed or injured?
     National consensus and State Plan State standards: ANSI
standards applicable to tree care operations include ANSI Z133 Safety
Requirements for Arboricultural Operations and the ANSI A300 Standards
for tree care operations. In addition, five states have issued
standards on tree care operations: California, Maryland, Michigan,
Oregon, and Virginia. What provisions and requirements in these state
standards has your company found to be particularly effective in
controlling and preventing hazards in tree care operations, and which
provisions/requirements should OSHA consider?
     Vehicles and mobile equipment: To what extent and
frequency does your company and the tree care industry now

use vehicles and mobile equipment (e.g., bucket trucks, aerial lifts,
cranes) to perform tree care operations? What are the best practices
for, as well as concerns with, using vehicles and mobile equipment in
tree care operations? What controls (e.g., engineering controls, PPE)
and safety practices has your company implemented to protect workers
operating and working on and near vehicles and mobile equipment?
     Information and training. What occupational safety and
health information and training does your company or the tree care
industry provide to workers? What topics does the training cover? What
does your company do to ensure workers understand the information and
training? For example, how do you communicate information so temporary
workers, non-English speaking workers, and workers with limited
literacy understand it?

III. Public Participation

    The stakeholder meeting will accommodate approximately 30
participants. In addition, as space permits, interested persons may
observe, rather than participate in, the meeting. To participate in or
observe the stakeholder meeting you must register electronically, by
facsimile, or by hard copy. To receive confirmation to participate in
or observe the meeting, register as soon as possible and by July 1,
2016. If space is still available after that date, registration for
participating in or observing the meeting will remain open. However,
late registrants may not receive confirmation and should contact Ms.
Wangdahl to confirm that space is available. As space permits, OSHA
will accommodate observers who do not register for the meeting.
    To register electronically, follow the instructions provided on the
Web site. To register by hard copy or facsimile, please provide the
following information:
     Name;
     Professional Title;
     Organization for which you work or represent;
     Address;
     Phone;
     Email address;
     The interest you represent (e.g., tree care employer/
company; worker; labor organization; trade or professional association/
organization; insurance company; manufacturer; government; public).
     The type of participation: Participant at the main table
(``I will actively discuss topics that come up''); observer making
comments (``I may have limited comments on one or more key areas'');
observer only (``I will not be speaking''); Press.
     If necessary, OSHA may select participants in order to
ensure the meeting includes a fair representation of interests and
diverse viewpoints. OSHA staff will participate in discussions with the
stakeholder participants and Eastern Research Group (ERG), Inc., will
facilitate the meeting. In addition, ERG will compile notes summarizing
the stakeholder discussions, but the notes will not identify
participants by name. ERG also will make an audio recording solely for
the purpose of ensuring the accuracy of the summary notes. The
recording will not be transcribed or put in the public docket. The
summary notes will be posted in the Tree Care Operations docket (Docket
No. OSHA-2008-0012) and will be available at http://www.regulations.gov, the Federal eRulemaking Portal.
    Electronic copies of this Federal Register notice, as well as news
releases and other relevant documents, are available on the OSHA Web
page at: http://www.osha.gov.

Authority and Signature

    This document was prepared under the direction of David Michaels,
Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and
Health, and under authority granted by 29 U.S.C. 651, 653, and 655;
Secretary of Labor's Order No. 1-2012 (77 FR 3912); and 29 CFR part
1911.

    Signed at Washington, DC, on June 6, 2016.
David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
[FR Doc. 2016-13844 Filed 6-10-16; 8:45 am]
BILLING CODE 4510-26-P


[Federal Register: September 24, 2010 (Volume 75, Number 185)]
[Proposed Rules]
[Page 58340-58346]
[DOCID:fr24se10-25]

=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2010-0857; Directorate Identifier 2010-NM-156-AD]
RIN 2120-AA64

Airworthiness Directives; Koito Industries, Ltd., Seats and
Seating Systems Approved Under Technical Standard Order (TSO) TSO-C39b,
TSO-C39c, or TSO-C127a

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for
certain Koito Industries, Ltd., seats and seating systems approved
under TSO-C39b, TSO-C39c, or TSO-C127a. This proposed AD would require
determining if affected seats and seating systems and their components
are compliant with certain FAA regulations, and removing those seats,
seating systems, and their components from the affected fleet that are
shown to be unsafe. This proposed AD results from a determination that
the affected seats and seating systems may not meet certain
flammability and strength criteria. Failure to meet strength criteria
could result in injuries to the flightcrew and passengers during
emergency

landing conditions. In the event of an in-flight or post-emergency
landing fire, failure to meet flammability criteria could result in an
accelerated propagation of fire. We are proposing this AD to prevent
accelerated fires and injuries to the flightcrew and passengers.

DATES: We must receive comments on this proposed AD by November 23,
2010.

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 W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, 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 Management Facility
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 Office (telephone<PHONE_NUMBER>) is in the
ADDRESSES section. Comments will be available in the AD docket shortly
after receipt.

FOR FURTHER INFORMATION CONTACT: Patrick Farina, Aerospace Engineer,
Cabin Safety Branch, ANM-150L, FAA, Los Angeles Aircraft Certification
Office (ACO), 3960 Paramount Boulevard, Lakewood, California 90712-
4137; 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-2010-0857;
Directorate Identifier 2010-NM-156-AD'' at the beginning of your
comments. We specifically invite comments on the overall regulatory,
economic, environmental, and energy aspects of this proposed AD. We
will consider all comments received by the closing date and may amend
this proposed AD because of those comments.
    We will post all comments we receive, without change, 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

    In January 2009, in accordance with the FAA's bilateral agreement
with Japan Civil Aviation Bureau (JCAB), the JCAB contacted us and
advised of non-compliance issues with the Koito seats. We were later
advised that the JCAB had been notified of the issues by a
whistleblower who reported discrepancies between materials used in
production seats and the material of test articles used for showing
compliance to flammability requirements. The falsification of
certification records, which violates section 21.2 of the Federal
Regulations (14 CFR 21.2), was first determined to result in possible
non-compliance with the flammability requirements of Sec.  25.853 of
the Federal Aviation Regulations (14 CFR 25.853). At that time, we
evaluated whether the disclosed possible non-compliance with the TSO
significantly affected compliance with flammability criteria and
determined that there was not a safety-of-flight issue, so we did not
issue an AD.
    In November 2009, the JCAB reviewed the safety of all in-service
seats, which prompted Koito Industries to disclose additional
discrepancies, including the falsification of static, dynamic, and
flammability testing on delivered seats. Failure to meet strength
criteria could result in injuries to the flightcrew and passengers
during emergency landing conditions. In the event of an in-flight or
post-emergency landing fire, failure to meet flammability criteria
could result in an accelerated propagation of fire.
    In December 2009, the JCAB and the FAA concluded that all TSO
approvals for Koito Industries, Ltd., must be assumed to be non-
compliant to the TSO and, by extension, to the regulations. Therefore,
all such seats have potential unsafe conditions.

Approval Basis for TSO Seats

    The static, dynamic, and flammability testing requirements include
sections 25.561, 25.562, and 25.853 and Appendix F of the Federal
Aviation Regulations:
     Section 25.561 contains required static loads for
emergency landing conditions. Amendment 25-64, effective June 16, 1988,
increased the static strength requirements in certain load cases.
     Section 25.562, which was created by Amendment 25-64,
added dynamic testing requirements and quantified injury criteria and
considerations for egress for the new requirements. These criteria
improve the level of safety for airplanes that include this amendment
level in the certification basis, while older airplanes are not
required to meet these criteria.
    The applicable amendment level of these requirements for a seat
installation is dependent on the certification basis of the airplane on
which the seats are installed. Because this proposed AD is applicable
to all affected seats--regardless of the airplane on which they are
installed--we use the current amendment levels of these regulations in
the required actions of this proposed AD.
    We recognize that an aircraft may have a certification basis that
does not include 14 CFR 25.562, but has TSO-C127a seats installed. In
that case, although the seats are not required to meet 14 CFR
25.562(b)(2) and (c)(7) by the airplane certification basis, they must
still comply with the requirements of this proposed AD, which is
written against the seats. However, an operator in this situation may
request approval of an alternative method of compliance using the
airplane certification basis as justification.

Establishing the Level of Safety for the Seats

    Amendment 25-64 was based on accident investigation and dedicated
research, after we determined that meeting the emergency load
conditions in earlier amendment levels did not ensure adequate
performance in an actual accident. We developed dynamic testing
criteria with increased load factors as compared to the static strength
criteria. These new criteria were intended to achieve the type of
structural performance that the static strength criteria were meant to
provide, but could not ensure.
    In addition, other aspects of emergency landing safety were
addressed at that time, which resulted in quantified injury criteria
(such as implementation of the Head Injury Criterion (HIC)) and
considerations for permanent structural deformations that might affect
egress. These injury criteria, while a significant improvement in
safety, are not as critical as the dynamic structural retention
criteria, and will not be applied in this proposed AD because the
primary safety function provided by seats and restraint systems is to
remain

intact in the event of an accident and provide energy management to
allow occupant survival. The new injury criteria provide enhancements
beyond this primary function. For this proposed AD, the injury
criterion to be used is that the seat and seating system must exhibit
no sharp edges during the assessment made for head injury protection.
However, in order to make sure that assessment is valid, the seats in
question must be shown to incorporate any specific design features or
characteristics called out by the drawings for the purposes of reducing
head injury.
    Section 25.853 of the Federal Aviation Regulations (14 CFR 25.853)
contains fire protection requirements for compartment interiors, and
specifies which test criteria in Appendix F of 14 CFR part 25 must be
met. With respect to flammability, the most significant safety element
of the seat is the cushion/upholstery system. In 1984, we adopted new
standards for seat cushion fire resistance in Amendment 25-59, dated
October 26, 1984, by adding a new part II to Appendix F of 14 CFR part
25. These requirements were mandated to be retrofitted on the existing
fleet. Since that time, the relevant performance standards for seats
and seat cushions have been modified to incorporate this requirement as
well.
    While evidence indicates that many parts other than the cushion/
upholstery system on the affected Koito seats and seating systems may
not meet the Bunsen burner test requirements of part I in Appendix F of
14 CFR part 25, we consider that these non-compliances are not unsafe.
The fire threat posed by these parts is of a lower order (i.e., they
are smaller and spread apart on the seat), and the materials are
typical aircraft materials with performance in a fire that is
predictable based on past tests and usage.

Unsafe Condition

    We have determined that falsification of the various tests for the
TSO could result in the following unsafe conditions during emergency
landing conditions and in the event of an in-flight or post-emergency
landing fire:
     Static failure (non-compliance with 14 CFR 25.561): Broken
components may cause sharp edges and become injurious to the occupant,
or fail to retain the occupant, when seats and seating systems do not
comply with this regulation.
     Dynamic failure (non-compliance with 14 CFR 25.562): Leg
injuries, lumbar/spinal injury, head injury, seat structure yielding
leading to occupant entrapment, and failure to retain the occupant may
occur when seats and seating systems do not comply with this
regulation.
     Fire protection/flammability (non-compliance with 14 CFR
25.853): In-flight and post-emergency landing fires may be accelerated
when seat materials do not comply with this regulation.

FAA's Determination and Requirements of This Proposed AD

    We are proposing this AD because we evaluated all relevant
information and determined the unsafe condition described previously is
likely to exist or develop in other products of the same type design.
This proposed AD would require determining if affected Koito
Industries, Ltd., seats and seating systems, approved under TSO-C39b,
TSO-C39c, or TSO-C127a, are compliant with specific FAA regulations
containing flammability, static strength, and dynamic strength
criteria. This proposed AD would also require removing seats and
components that are shown to be unsafe.

                               Table--Summary of Proposed Actions and Requirements
----------------------------------------------------------------------------------------------------------------
                                                          Regulation & safety requirement
                                  ------------------------------------------------------------------------------
     Action & compliance time                                    Flammability  (See
                                           Structure                 footnote 2)        Injury  (See footnote 3)
----------------------------------------------------------------------------------------------------------------
May remain in service............  Meets 14 CFR 25.562(b)(2)  Meets 14 CFR 25.853(c),   No sharp edges.
                                    and (c)(7), Amendment      Amendment level 25-116.
                                    level 25-64.
Replace within 6 years...........  Meets 14 CFR               Meets 14 CFR 25.853(c),   No sharp edges.
                                    25.561(b)(3)(ii) and       Amendment level 25-116.
                                    (iii), Amendment level
                                    25-64.
Replace within 2 or 3 years (See   Does not meet 14 CFR       Does not meet 14 CFR      Has sharp edges (See
 Footnote 1).                       25.561.                    25.853(c).                Footnote 4).
----------------------------------------------------------------------------------------------------------------
Footnotes:
1. Seats not meeting the criteria of 14 CFR 25.561 or seats exhibiting sharp edges must be replaced within 2
  years; seat cushions not meeting the criteria of 14 CFR 25.853(c) must be replaced within 3 years.
2. Seat cushions replaced to meet 14 CFR 25.853(c) should have consistent lumbar load properties with cushions
  shown to meet the lumbar criteria. Otherwise, a lumbar load test is required.
3. Predicated on design philosophy being maintained for safety critical parts.
4. Sharp edges would have been produced in the original tests, or in the tests required to meet this AD.

The Role of the Koito Tests Performed Under the Supervision of JCAB

    Once the JCAB was aware of the fraudulent behavior, they began a
process to re-qualify all of the suspect seat designs. In doing so,
they reviewed the detailed designs and grouped them according to
similarities that would enable tests of one model to substantiate a
similar model. This process involved critical-case determinations and a
survey of the designs of the seats in service. To address the JCAB
orders, Koito produced new seats and seating systems per the production
drawings and performed all the required certification tests on them.
The results of these tests are intended to gain an understanding of the
state of the fleet and prioritize remedial actions, as necessary.
    However, the results of these tests may not be entirely usable.
While it is very likely that any tests that fail the requirement on the
newly produced seats would also fail on seats in service, the reverse
may not be true. Due to the falsification of records and drawing
control issues, seats in service might not conform to their production
drawings. Thus, successful tests of a newly produced seat cannot
automatically be used to support seats in service unless the relevant
detail design parameters can be verified as consistent between the two.
If an operator (or an airframe manufacturer on behalf of an operator)
can show that the seats in their fleet match the seat tested to support
the JCAB investigation, then those data could be used to show
compliance with this proposed AD. Each situation will be handled on a
case by case basis.

The Role of the Airframe Manufacturers (Airbus and Boeing) in Helping
Airlines Establish the Status of Their Seats

    While this proposed AD is applicable to operators of airplanes with
the affected seats installed, two airframe manufacturers involved,
Airbus and Boeing, may be in a position to assist in complying with the
requirements of the proposed AD. This is because many of the seat
models affected are similar among different operators, and data
gathered to support one seat model may also be used to support other
models. Boeing and Airbus have information on which models are similar
to each other, and should be able to assist operators in sharing
information so that no more than one operator would conduct what
amounts to the same tests. However, for this to work, both the airlines
and the manufacturers must cooperate and share information. Based on
preliminary discussions, we understand that the companies involved do
intend to cooperate in order to minimize costs. In fact, much of the
grouping of similar seats has already been accomplished by the JCAB in
their efforts to ascertain the status of the various designs. This
should simplify the process of identifying the models that must be
tested.

Data the FAA Will Accept To Demonstrate Compliance With the Proposed AD

    Compliance with this proposed AD would require data to support
three types of assessments:
     Structural performance;
     Flammability; and
     Injury prevention.
    For the structural performance requirements, test data will be
necessary. These data should be generated under an approved test plan
and would require oversight of an airworthiness authority (or delegated
agent). Tests conducted to support Koito Technical Standard Order
Authorization (TSOA) are not acceptable. As noted above, tests
conducted as part of the JCAB investigation may be acceptable if the
conformity of the seats in service can be verified. Otherwise, new data
are needed.
    Similarly, for the flammability data, we will require that tests
are conducted under an approved test plan or with the oversight of an
aviation authority. We are aware of past Koito burner testing conducted
at test facilities that were not done in accordance with FAA-approved
test methods. Data generated to support the JCAB's investigation must
be done in accordance with FAA-approved test methods. In this case, the
simplest solution for an operator may be to acquire new cushions.
However, if operators choose to try and substantiate their cushions,
they might need to fabricate test samples using actual cushions. Since
actual cushions and test cushions are of different shapes and sizes,
several production cushions will likely be needed to make one test
sample set. Also, since upholstery is one area of customization between
airlines, it is unlikely that one operator's data can support another.
In this case, an operator should consult with the FAA in making test
samples so that valid results are produced.
    For injury criteria, we will accept photographic evidence from the
Koito TSO tests to determine whether there are any sharp edges (this
would require that the tests in question are shown to be valid). We
will accept data from any of the tests performed to meet the other
requirements of this proposed AD.

Limitations on Seats Found Not To Be Fully Compliant, but Are Safe to
Remain in Service

    Because this proposed AD will not require full compliance with
every applicable regulation, seats on which the requirements of this
proposed AD are completed successfully and are permitted to remain in
service are limited in how they can be used. That is, unless they are
shown to fully comply with the regulatory requirements, this proposed
AD would restrict the installation of such seats and would require
specific marking. These seats can be used as a direct spare for the
same part number seat. However, any other use of such seats would be
considered a new installation approval and would be required to comply
with all regulations. Thus, seats not meeting all regulations could not
be installed except as noted above, and if removed from an approved
arrangement, would have to be destroyed or rendered unusable in some
other manner acceptable to the FAA.
    In addition, if these seats are re-installed, they would have to be
marked in accordance with paragraph (g) of this AD so that their status
is known to any person who inspects them.

Replacement Components

    Wear-out component replacement parts such as food trays, arm rest
covers, and non-structural members may be manufactured and installed on
seats affected by this proposed AD until the compliance time specified
in this proposed AD. These parts must comply with flammability and
injury prevention requirements. Parts produced under 14 CFR part 43,
parts manufacturer approval (PMA) through licensing agreement, or PMA
through identicality that could be based on fraudulent data would
require an assessment of their compliance.

Costs of Compliance

    We estimate that this proposed AD would affect 40,365 passenger
seats installed on airplanes in the U.S. fleet. There are 278 airplanes
of U.S. registry. The average labor rate is $85 per work-hour.
    The estimated cost to determine if the affected seats and seating
systems and their components are in compliance (i.e., estimate the cost
of static, dynamic and flammability testing, labor) is approximately
$100,000 for the U.S. fleet. The estimated cost of the consumed article
such as the seat row and materials consumed for flammability testing is
approximately $490,000 for the U.S. fleet. The estimated cost to remove
affected seats and seating systems and their components is
approximately $285,000 for the U.S. fleet (this estimate assumes that
the removal of all seats and seating systems in the fleet). The total
estimated cost of this proposed AD for the U.S. fleet is $875,000.
    Operators may need to replace only certain components. It is not
feasible to include the cost of individual components in this proposed
AD because we have no way of determining which components may need
replacement.
    Operators may need to replace the affected seat with a new seat.
The following table provides the estimated costs for U.S. operators to
replace the different types of seats. We have no way of determining how
many seats may need to be replaced after testing is done to determine
if the seats are in compliance. Certain operators may need to replace
any type of seat that are generalized by description and estimated per
seat cost in the following table.

                                     Table--Seat Replacement Cost Estimates
----------------------------------------------------------------------------------------------------------------
                                         Aircraft style, foot rest, and recline
          Seat style/class                              mechanism                      Cost per passenger seat
----------------------------------------------------------------------------------------------------------------
Economy.............................  Narrow/Wide Body; Mechanical................  $2,300
First, Business.....................  Narrow Body; Mechanical.....................  $7,500
Business............................  Wide Body; Mechanical.......................  $10,000
Business............................  Wide Body; Electrical.......................  $25,000 to $35,000
First...............................  Wide Body; Lay flat single place, Electrical  $75,000 to $150,000
----------------------------------------------------------------------------------------------------------------

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.
    You can find our regulatory evaluation and the estimated costs of
compliance 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:

Koito Industries, Ltd: Docket No. FAA-2010-0857; Directorate
Identifier 2010-NM-156-AD.

Comments Due Date

    (a) We must receive comments by November 8, 2010.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Koito Industries, Ltd., seats and seating
systems having a model number identified in Table 1 of this AD that
are approved under technical standard order (TSO) TSO-C39b, TSO-
C39c, or TSO-C127a, and installed on, but not limited to, airplanes
of the manufacturers identified in Table 2 of this AD, all type
certificated models in any category.

                          Table 1--Seat Models
------------------------------------------------------------------------
                              Model Numbers
-------------------------------------------------------------------------
AFS-105, AFS-136,
AFS-235, AFS-315,
ARS-183, ARS-189, ARS-190,
ARS-200, ARS-242, ARS-242-TA, ARS-254, ARS-255, ARS-263, ARS-276, ARS-
 277, ARS-281, ARS-289,
ARS-29, ARS-29-03,
ARS-304, ARS-308, ARS-311, ARS-311-A, ARS-311-B, ARS-336, ARS[dash]339,
 ARS-341, ARS-347 ARS-352, ARS-354, ARS-357, ARS-360, ARS-384, ARS-385,
 ARS-392, ARS[dash]397, ARS-398,
ARS-415, ARS-417, ARS-418, ARS-419, ARS-423, ARS-424, ARS-425,
 ARS[dash]427, ARS[dash]431, ARS-437, ARS-446, ARS-447, ARS-448, ARS-
 451, ARS-452, ARS-465, ARS[dash]478, ARS-480, ARS-482, ARS-483, ARS-
 493, ARS[dash]494,
ARS-507, ARS-510, ARS-511, ARS-514, ARS-516, ARS-518, ARS-527, ARS-542,
 ARS[dash]543, ARS-550, ARS-552, ARS-553, ARS-554, ARS-571, ARS-574, ARS-
 577, ARS[dash]588, ARS-589, ARS-591, ARS-592, ARS-593, ARS-594, ARS-
 595, ARS-596, ARS[dash]597, ARS-598, ARS-599,
ARS-600, ARS-601, ARS-604, ARS-605, ARS-607, ARS-610, ARS-611, ARS-613,
 ARS[dash]615, ARS-616, ARS-617, ARS-620, ARS-626, ARS-627, ARS-629, ARS-
 636, ARS[dash]641, ARS-642, ARS-643, ARS-644, ARS-646, ARS-647, ARS-
 649, ARS-651, ARS[dash]652, ARS-657, ARS-658, ARS-659, ARS-667, ARS-
 668, ARS-669, ARS-670, ARS[dash]671, ARS-672, ARS-673, ARS-674, ARS-
 694, ARS-697,
ARS-704, ARS-707, ARS-709, ARS-710,
ARS-813, ARS-814, ARS-815, ARS-823, ARS-831, ARS-832, ARS-833, ARS-835,
 ARS[dash]836, ARS-837, ARS-838, ARS-840, ARS-841, ARS-843, ARS-844, ARS-
 846, ARS[dash]847, ARS-849, ARS-851, ARS-852, ARS-853, ARS-857, ARS-
 858, ARS-859, ARS[dash]861, ARS-862, ARS-869,
ASS-197D,
ASS-215,
ASS-30, ASS-30-1,
B-317,
F11M11,
F44A33,

P11B31, P11B33, P11M93,
P21B33, P21B35, P21B73,
P22A23,
P32B73,
P52B41,
P56B63,
PB7-2001,
T-316,
Y11B31, Y11B33, Y11B73, Y15B73,
Y21A23, Y21B73,
Y27B73,
YE1B35,
YG7B35,
YH1B73,
YK2B73.
------------------------------------------------------------------------

                       Table 2--Affected Airplanes
------------------------------------------------------------------------
               Manufacturer                        Product subtype
------------------------------------------------------------------------
Airbus....................................  Transport Airplane.
The Boeing Company........................  Transport Airplane.
McDonnell Douglas Corporation.............  Transport Airplane.
Mitsubishi Heavy Industries, Ltd..........  Transport Airplane.
Fokker Services B.V.......................  Transport Airplane.
------------------------------------------------------------------------

Subject

    (d) Air Transport Association (ATA) of America Code 25:
Equipment/Furnishings.

Unsafe Condition

    (e) This AD results from a determination that the affected seats
and seating systems may not meet certain flammability, static
strength and dynamic strength criteria. Failure to meet static and
dynamic strength criteria could result in injuries to the flightcrew
and passengers during emergency landing conditions. In the event of
an in-flight or post-emergency landing fire, failure to meet
flammability criteria could result in an accelerated fire. The
Federal Aviation Administration is issuing this AD to prevent
accelerated fires and injuries to the flightcrew and passengers.

Compliance

    (f) You are responsible for having the actions required by this
AD performed within the compliance times specified, unless the
actions have already been done.

Determination of Compliance and Removal

    (g) Within 2 years after the effective date of this AD,
determine if the seats and seating systems and their components are
compliant with FAA regulations, in accordance with a method approved
by the Manager, Los Angeles Aircraft Certification Office (ACO),
FAA. For a method to be approved, the approval must specifically
refer to this AD. Before re-installing any seat or seating system,
modify the existing TSO tag by defacing the TSO number and letter of
designation, e.g., overstrike the TSO identification with an ``X''
(such as ``TSO-C127a'' is defaced to look like ``XXXXXXXXXX''), and
add a tag that specifies non-compliance to the TSO number and letter
designation, this AD number, and removal date if applicable.

    Note 1: Determining if the seats and seating systems and their
components are compliant may be made by independent re-qualification
of the affected TSO article that has thorough control of the design
and production process.

    Note 2: Components of seats and seating systems include any non-
metallic exposed part, assembly, or item. A component can include a
seat cushion, recline cable, hook and loop (hook and loop is a
generic term for Velcro), leather cover that is glued to seat, head
rest, or arm cap.

    (1) For Koito Industries, Ltd., seats approved under TSO-C39b or
TSO-C39c that are not shown to be compliant with 14 CFR
25.561(b)(3)(ii) and 14 CFR 25.561(b)(3)(iii): Within 2 years after
the effective date of this AD, remove the non-compliant seats.
    (2) For Koito Industries, Ltd., seating systems approved under
TSO-C127a that are not shown to be compliant with either of the
regulations specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this
AD: Within 2 years after the effective date of this AD, remove the
non-compliant seating systems.
    (i) 14 CFR 25.561(b)(3)(ii) and 14 CFR 25.561(b)(3)(iii).
    (ii) 14 CFR 25.562(b)(2), and 14 CFR 25.562(c)(7).
    (3) For Koito Industries, Ltd., seating systems approved under
TSO-C127a that are shown to be compliant with 14 CFR
25.561(b)(3)(ii) and 14 CFR 25.561(b)(3)(iii), but are not shown to
be compliant with 14 CFR 25.562(b)(2), and 14 CFR 25.562(c)(7):
Within 6 years after the effective date of this AD, remove the non-
compliant seating systems.
    (4) For Koito Industries, Ltd., seats approved under TSO-C39b or
TSO-C39c and seating systems approved under TSO-C127a that are shown
to exhibit sharp or injurious surfaces in testing conducted to
satisfy the original TSO authorization program, or subsequent
verification tests in accordance with this AD: Within 2 years after
the effective date of this AD, remove the non-compliant seats and
seating systems.
    (5) For components of Koito Industries, Ltd., seats approved
under TSO-C39b or TSO-C39c and components of seating systems
approved under TSO-C127a that are not shown to be compliant with 14
CFR 25.853(c): Within 3 years after the effective date of this AD,
remove the non-compliant components. If a seat cushion is replaced,
the replacement seat cushion must have consistent seat bottom
stiffness and seat reference point locations using the guidance
found in paragraph 9 of Appendix 3 of FAA Advisory Circular 25.562-
1B, dated January 10, 2006.

Parts Installation

    (h) As of the effective date of this AD, no person may install
any Koito Industries, Ltd., seats and seating systems having any
model number identified in Table 1 of this AD that are approved
under Technical Standard Order (TSO) TSO-C39b, TSO-C39c, or TSO-
C127a on any airplane; and no person may install any component of
any affected seat and seating system on any airplane, unless the
component is shown to meet the applicable airworthiness
requirements; except that a seat, seating system, or component may
be re-installed on the airplane from which it was originally
removed, provided it is removed from service within the applicable
compliance time specified in this AD. Non-compliant seats and
seating systems and their components that are removed from service
are not eligible for installation on another airplane or by another
airline or any other aviation entity.

Alternative Methods of Compliance (AMOCs)

    (i)(1) The Manager, Los Angeles Aircraft Certification Office,
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: Patrick Farina, Aerospace Engineer, Cabin Safety Branch, ANM-
150L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960
Paramount Boulevard, Lakewood, California 90712-4137; telephone
(562) 627-5344; fax<PHONE_NUMBER>.
    (2) To request a different method of compliance or a different
compliance time for this AD, follow the procedures in 14 CFR 39.19.
Before using any approved AMOC on any airplane to which the AMOC
applies, notify your principal maintenance inspector (PMI) or
principal avionics inspector (PAI), as appropriate, or lacking a
principal inspector, your local Flight Standards District Office.
The AMOC approval letter must specifically reference this AD.

    Issued in Renton, Washington, on September 17, 2010.
Ali Bahrami,
Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2010-23936 Filed 9-23-10; 8:45 am]
BILLING CODE 4910-13-P