[ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brent Plater ( CA Bar # 209555) CENTER FOR BIOLOGICAL DIVERSITY 1095 Market Street, Suite 511 San Francisco, CA 94103 Telephone: ( 415) 436 9682 Facsimile: ( 415) 436 9683 bplater@ biologicaldiversity. org Brendan Cummings ( CA Bar # 193952) CENTER FOR BIOLOGICAL DIVERSITY P. O. Box 549 Joshua Tree, CA 92252 Telephone: ( 760) 366 2232 Facsimile: ( 760) 366 2669 bcummings@ biologicaldiversity. org Michael W. Graf ( CA Bar # 136172) Law Offices 227 Behrens Street El Cerrito, CA 94530 Telephone: ( 510) 525 7222 Facsimile: ( 510) 525 1208 mwgraf@ aol. com Attorneys for Plaintiff UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA CENTER FOR BIOLOGICAL DIVERSITY, a non profit corporation,

Plaintiff,

v.

STEPHEN L. JOHNSON, Administrator, Environmental Protection Agency, and WAYNE NASTRI, Region 9 Administrator, Environmental Protection Agency,

Defendants,

and CROPLIFE AMERICA, AMERICAN FOREST & PAPER ASSOCIATION, WESTERN PLANT HEALTH ASSOCIATION, OREGONIANS FOR FOOD AND SHELTER, AND SYNGENTA CROP PROTECTION, INC.,

Defendants Intervenors. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 02 1580 JSW ( JL)

[ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 1 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Center for Biological Diversity ( hereinafter " the Center"); Defendants Stephen L. Johnson, Administrator, Environmental Protection Agency, and Wayne Nastri, Region 9 Administrator, Environmental Protection Agency ( hereinafter " EPA"); and Defendant

Intervenors CropLife America, American Forest and Paper Association, Western Plant Health Association, Oregonians for Food and Shelter, and Syngenta Crop Protection, Inc., by and through the undersigned counsel, state as follows:

WHEREAS, on April 2, 2002, the Center filed a complaint for declaratory and injunctive relief pursuant to Section 7 of the Endangered Species Act (" ESA") in the Northern District of California, which alleged that the EPA had failed to comply with Section 7 regarding the impacts 66 pesticide active ingredients may have upon the California red legged frog, a federally protected species listed as threatened under the Endangered Species Act;

WHEREAS, Plaintiff maintains that the 66 Pesticides can adversely affect the California red legged frog and its aquatic habitats;

WHEREAS, Intervenors maintain that there is no effect from the use of the 66 Pesticides on the California red legged frog;

WHEREAS, Federal Defendants maintain that they cannot determine the effects of the 66 Pesticides on the California red legged frog, if any, and define appropriate protective measures, if any, until they have completed further scientific analyses, which may include, but are not limited to, further review under FIFRA, effects determinations made pursuant to the ESA, or consultation with the United States Fish and Wildlife Service under the ESA, as appropriate; [ NOTE: FIFRA should be defined here]

WHEREAS, on September 19, 2005, the Court determined that the potential of the 66 Pesticides to affect the California red legged frog " is sufficient to trigger the obligation of Defendants to conduct the ` may affect' determination under ESA § 7( a)( 2) for those listed pesticide ingredients," Docket No. 198;

WHEREAS, the Court ordered the Parties to meet and confer in an effort to set an agreed upon schedule for the EPA to comply with the Court's September 19, 2005 Order; [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 2 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, on January 20, 2006, the Plaintiff filed a motion for injunctive relief and the Federal Defendants and Intervenors object to the relief sought by Plaintiff;

WHEREAS, the Parties have met and conferred in an attempt to reach agreement on the timing of the EPA's compliance with the Court's order and the scope of reasonable interim injunctive relief;

WHEREAS, the Parties, through their authorized representatives, have reached agreement on the terms of a stipulated order that they consider to be a just, fair, adequate, and equitable resolution of the remaining issues in this case;

WHEREAS, all Parties agree that issuance of an order conforming to these terms is in the public interest and is an appropriate way to resolve the remaining disputed issues;

WHEREAS, the EPA published in the Federal Register a request for public comment on the terms of this stipulated order and has considered the received comments;

NOW, THEREFORE, IT IS STIPULATED BY AND BETWEEN THE PARTIES THAT THE COURT SHOULD ISSUE AN ORDER AS FOLLOWS:

SECTION 7 CONSULTATION SCHEDULE 1. Compliance with Section 7( a)( 2) of the Endangered Species Act.

The EPA shall make effects determinations and initiate consultation, as appropriate, with the United States Fish and Wildlife Service, pursuant to applicable regulations in effect at the time when the determination is made, regarding the potential effects of 66 pesticide active ingredient registrations on the California red legged frog. The 66 pesticide active ingredients are: 1,3 dichlorpropene; 2,4 D; acephate; alachlor; aldicarb; atrazine; azinphos methyl;

bensulide; bromacil; captan; carbaryl; chloropicrin; chlorothalonil; chlorpyrifos;

chlorthaldimethyl ( DCPA); diazinon; dicofol; diflubenzuron; dimethoate; disulfoton; diuron; endosulfan;

EPTC; esfenvalerate; fenamiphos; glyphosate; hexazinone; imazapyr; iprodione; linuron;

malathion; mancozeb; maneb; metam sodium; methamidophos; methidathion; methomyl;

methoprene; methyl parathion; metolachlor; molinate; myclobutanil; naled; norflurazon;

oryzalin; oxamyl; oxydemeton methyl; oxyfluoren; paraquat dichloride; pendimethalin;

permethrin; phorate; phosmet; prometryn; propanil; propargite; propyzamide ( pronamide); [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 3 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rotenone; simazine; SSS tributyl phosphororithiolate ( DEF or Tribufos); strychnine; thiobencarb;

triclopyr; trifluralin; vinclozolin; and ziram ( hereinafter " the Pesticide( s)").

2. Schedule for Compliance.

The EPA shall make the effects determinations described in Paragraph 1 ( and initiate consultation, as appropriate) on the following schedule:

EPA shall make effects determinations and initiate consultation, as appropriate, for 10 of the Pesticides within 9 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 10 of the Pesticides ( for a total of 20) within 12 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 7 of the Pesticides ( for a total of 27) within 16 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 7 of the Pesticides ( for a total of 34) within 20 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 7 of the Pesticides ( for a total of 41) within 24 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 8 of the Pesticides ( for a total of 49) within 28 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 8 of the Pesticides ( for a total of 57) within 32 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for an additional 9 of the Pesticides ( for a total of 66) within 36 months of the date of this Order.

EPA shall make effects determinations and initiate consultation, as appropriate, for 66 of the Pesticides within 36 months of the date of this Order.

INTERIM INJUNCTIVE RELIEF 3. Definitions.

a. " Aquatic Feature" defined. An " Aquatic Feature" is defined as fresh water habitats in or near lowlands or foothills with dense, shrubby, or emergent vegetation. Such areas include natural or manmade ( e. g., stock) ponds, slow [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 4 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 moving streams or pools within streams, and other ephemeral or permanent waterbodies that typically become inundated during winter rains such as plunge pools, intermittent creeks, seeps, and quiet water refugia. For purposes of establishing whether the restrictions included within this stipulation apply as an initial matter, such areas do not include those areas not otherwise meeting the definition of aquatic breeding habitat and non breeding aquatic habitat described by the U. S. Fish and Wildlife Service in the Federal Register on April 13, 2006 and codified at 50 C. F. R. § 17.95.

b. " Upland Habitat" Defined. " Upland Habitat" includes all areas within 200 feet of the mean high water mark of an Aquatic Feature.

4. Use Authorizations Enjoined, Vacated, and Set Aside.

The EPA's authorization of any use of any of the Pesticides within the geographical areas described in this section is hereby ENJOINED, VACATED, and SET ASIDE as follows, except as provided by the exclusions, exemptions, and termination provisions described below in paragraphs 5, 6, 7, and 8:

a. Final Critical Habitat.

The EPA's authorization of any use of any of the Pesticides is hereby ENJOINED,

VACATED, and SET ASIDE in all areas described as aquatic breeding, non breeding aquatic,

and upland critical habitat for the California red legged frog, Rana aurora draytonii, by the U. S.

Fish and Wildlife Service in the Federal Register on April 13, 2006 at 71 Fed. Reg. 19244,

19294, and codified at 50 C. F. R. § 17.95 (" hereinafter " April 13, 2006 Federal Register Notice"). A copy of the U. S. Fish and Wildlife Service's descriptions of the aquatic breeding,

non breeding aquatic, and upland critical habitat for the California red legged frog is attached hereto as Exhibit 1.

b. California Red Legged Frog Populations Outside Final Critical Habitat.

The EPA's authorization of any use of any of the Pesticides is hereby ENJOINED,

VACATED, and SET ASIDE in all Aquatic Features and Upland Habitats found in the following 564 sections of California: [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 5 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M26N07W25, M17N16W03, M17N17W07, M15N16W33, M15N16W34,

M14N16W33, M04N03W11, M04N03W21, M04N03W22, M04N03W30,

M04N03W27, M04N03W25, M04N02W30, M04N02W31, M03N03W05,

M02N03W10, M02N04W14, M02N03W18, M02N03W20, M02N01W21,

M02N03W30, M02N03W31, M02N03W33, M01N03W07, M01N03W08,

M28N12E26, M14N11E21, M13N11E01, M10N12E01, M10N08E10, M08N14E21,

M04N11E08, M02N14E23, M01N18E01, M01S02E22, M01S02E23, M01S02E24,

M01S03E19, M01S03E20, M01S03E21, M01S03E22, M01S03E23, M01S02E25,

M01S03E30, M01S03E29, M01S03E28, M01S02E36, M01S03E31, M01S03E32,

M01S03E35, M02S06W03, M02S01E05, M02S01W05, M02S02E05, M02S02E03,

M02S02E02, M02S03E02, M02S06W11, M02S06W12, M02S03E01, M02S04E06,

M02S01E08, M02S01E09, M02S02E08, M02S02E12, M02S03E08, M02S03E12,

M02S04E07, M02S01E17, M02S01E16, M02S01W18, M02S02E14, M02S02E13,

M02S03E15, M02S04E18, M02S01E19, M02S01E20, M02S01E21, M02S01E22,

M02S02E24, M02S03E20, M02S06W26, M02S03E22, M02S04E19, M02S04E20,

M02S01E29, M02S01E28, M02S01E27, M02S02E27, M02S02E26, M02S03E26,

M02S04E28, M02S01E33, M02S01E34, M02S01E35, M02S02E33, M02S02E35,

M02S02E36, M02S03E35, M02S04E33, M03S01W04, M03S01W03, M03S01W06,

M03S01E04, M03S01E03, M03S01E02, M03S02E05, M03S02E06, M03S02E02,

M03S03E06, M03S02E12, M03S03E09, M03S04E10, M03S01W15, M03S02E13,

M03S04E16, M03S01W22, M03S02E24, M03S03E20, M03S06W26, M03S04E20,

M03S04E24, M03S01W29, M03S02E30, M03S03E30, M03S03E26, M03S03E25,

M03S06W35, M03S04E29, M03S05W31, M03S04E25, M03S01W31, M03S01E36,

M03S02E31, M03S02E32, M03S03E36, M03S04E32, M03S04E33, M04S06W02,

M03S04E34, M03S04E35, M04S05W03, M04S01E01, M04S02E03, M04S06W10,

M04S03E08, M04S01W17, M04S01W14, M04S01W13, M04S01E18, M04S01E17,

M04S01E15, M04S03E18, M04S06W22, M04S01E24, M04S05W27, M04S02E27,

M04S01E34, M04S02E35, M05S01E03, M05S01E01, M05S03E06, M05S06W10, [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 6 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M05S06W11, M05S06W12, M05S01E12, M05S02E09, M05S02E10, M05S02E11,

M05S02E12, M05S05W16, M05S05W14, M05S01W13, M05S01E14, M05S04W20,

M05S05W29, M05S05W32, M06S01E02, M06S04W08, M06S03W07, M06S03W08,

M06S03W17, M06S03W23, M06S05W26, M06S05W35, M07S05W04, M07S04W06,

M07S05W10, M07S02W16, M07S03W29, M07S05W32, M07S03W33, M07S05E33,

M08S05W05, M08S05W03, M08S04W04, M08S05E04, M08S05W09, M08S05W10,

M08S05W11, M08S08E04, M08S02W11, M08S05E10, M08S02E16, M08S02E15,

M08S05W24, M08S05W20, M08S05W25, M08S03E29, M08S06E30, M08S04W34,

M08S03W32, M08S01E32, M08S03E32, M08S05E31, M09S05W03, M09S03E06,

M09S03E02, M09S02E07, M09S04E09, M09S04E10, M09S05E11, M09S06E07,

M09S04W18, M09S01W15, M09S04E16, M09S04W21, M09S01W23, M09S04W28,

M09S06E19, M09S03W29, M09S03E25, M09S02E25, M09S06E30, M09S04W35,

M09S01W31, M09S01W32, M09S03E36, M09S05E35, M09S06E31, M10S01E06,

M10S05E01, M10S04E03, M10S04E02, M10S07E06, M10S04E11, M10S04E12,

M10S02E11, M10S07E17, M10S02W21, M10S05E20, M10S03E30, M10S06E28,

M10S06E25, M10S02W33, M11S02W10, M11S05E11, M11S05E12, M11S08E07,

M11S02W15, M11S02W16, M11S02W17, M11S02W18, M11S01E14, M11S03E17,

M11S02W20, M11S02W21, M11S02W22, M11S04E30, M11S04E29, M11S05E29,

M11S05E26, M11S04E34, M11S08E32, M11S08E33, M11S08E36, M12S02E05,

M12S03E03, M12S03E02, M12S04E04, M12S03E11, M12S02E18, M12S04E16,

M12S06E16, M12S03E28, M12S05E25, M12S09E27, M12S05E33, M12S06E31,

M13S01E01, M13S02E06, M13S06E06, M13S09E04, M13S05E08, M13S06E07,

M13S02E23, M13S02E24, M13S03E22, M13S11E19, M13S11E20, M13S03E29,

M13S10E31, M13S10E32, M14S05E02, M14S10E03, M14S03E13, M14S07E28,

M15S08E02, M18S01W28, M18S01W34, M16S01E18, M16S08E25, M16S01E31,

M17S02E22, M17S02E26, M18S04E05, M18S04E09, M19S03E01, M19S02E32,

M20S02E09, M26S07E21, M26S08E32, M27S08E02, M27S08E09, M27S08E22,

M27S09E19, M27S09E21, M27S09E22, M27S08E26, M27S09E25, M27S09E32, [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 7 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M27S09E33, M27S09E34, M27S11E32, M28S09E08, M28S09E16, M28S09E23,

M28S09E28, M28S10E29, M28S11E25, M28S09E35, M28S10E31, M28S10E32,

M28S09E36, M29S10E02, M29S10E12, M29S10E14, M29S10E13, M29S10E23,

M29S11E33, M30S11E05, M30S11E12, M30S12E07, M30S12E18, M30S11E34,

M31S12E31, M02N01W15, M02N01W22, M02N01W24, M02N01W25, M02N01E29,

M02N01E27, M02N01W36, M02N01E33, M01N01E08, M01N01E11, M01N01E12,

M01N02E18, M01N02E17, M01N01W33, M01S02W06, M01S02W05, M01S01W06,

M01S01W05, M01S02E04, M01S03W10, M01S02W08, M01S02E09, M01S02E12,

M01S03E08, M01S03W16, M01S01E14, M01S02E14, M01S03E17, M01S03E16,

M01S01W22, M01S01E20, M01S01E23, M01S01E24, M01S02E19, M01S02E20,

M01S02E30, M01S01E33, M01S02E31, M02S06W01, M01N01E28, M01N01E36,

M01S01E04, M01S01E03, M09N05W29, M07N11W20, M07N07W34, M07N07W35,

M06N11W04, M06N11W15, M06N11W14, M06N09W19, M06N10W35,

M06N09W36, M05N09W04, M05N08W03, M05N08W09, M05N10W17,

M05N10W13, M05N07W30, M05N06W27, M04N07W06, M04N07W05,

M04N07W04, M04N06W03, M04N07W18, M04N06W25, M04N05W30,

M04N06W35, M04N06W36, M01S07W12, M01N05W32, S06N13W16, S05N04W10,

S03N04W23, S01N03W10, S01N17W18, S11N35W18, S11N35W17, S11N34W29,

S11N34W25, S11N34W32, S10N36W02, S10N36W01, S10N35W01, S10N34W05,

S10N34W04, S10N34W07, S10N34W08, S10N35W16, S10N34W21, S10N33W22,

S10N34W29, S10N34W32, S10N34W33, S09N34W06, S09N34W05, S09N34W04,

S09N34W03, S09N34W08, S09N32W07, S09N32W08, S09N32W15, S09N32W13,

S09N35W24, S09N35W27, S09N35W32, S08N35W06, S08N35W05, S08N32W30,

S08N34W32, S07N35W09, S07N35W10, S07N34W20, S07N35W27, S07N31W30,

S07N33W36, S06N30W16, S06N34W24, S06N31W36, S05N32W12, S05N32W18,

S05N30W19, S05N31W32, S05N31W34, S05N31W35, S05N30W31, S05N30W32,

S04N34W02, S04N26W07, S04N25W17, S07S04W26, S05S04E03, M27S17E09,

M27S12E32, M28S12E05, M29S12E10, M29S13E20, M29S12E26, M29S13E29, [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 8 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 M29S12E33, M29S13E34, M30S12E04, M30S13E04, M30S13E03, M30S12E08,

M30S12E09, M30S12E17, M30S12E24, M30S12E25, M30S13E30, M30S13E29,

M31S14E22, M31S14E32, M32S12E04, M32S12E01, M32S14E06, M32S13E13,

M32S17E17, M32S13E22, M32S13E23, M32S13E26, M32S13E35, M32S13E36,

S12N35W26, S12N35W36, S11N35W09, M06N10W32, M05N10W08, M05N10W21,

M05N10W28, M05N10W33, S11N29W09, M32S13E31, M22N05E27, M10S05E11,

M10S03W33, M13S02E03, M13S05E07, M14N16W34, M02N04W13, M01S02E26,

M02S03E03, M02S02W13, M03S03E07, M03S05E19, M04S01E13, M05S01E13,

M05S05W30, M08S05E15, M11S03E20, M12S02E08, M12S02E31, M18S01W27,

M18S04E04, M20S02E05, M27S09E16, M27S08E27, M01S02E18, M01S01E29,

M06N09W33, M04N06W26, M04N05W29, S08N35W07, M30S12E16, M30S13E19,

M31S12E33, S11N35W04, and M05N10W05.

c. Buffer Areas.

1. Ground Use Buffer Area. Except as provided by the exclusions,

exemptions, and termination provisions described below in paragraphs 5, 6, 7, and 8, the EPA's authorization of ground use of any of the Pesticides is also ENJOINED, VACATED, and SET ASIDE in:

a. All areas within 60 feet from the edge of the aquatic breeding,

non breeding aquatic, and upland critical habitat for the California red legged frog, Rana aurora draytonii, described in the April 13,

2006, Federal Register Notice.

b. All areas within 60 feet from the edge of all Aquatic Features or Upland Habitats for the California red legged frog within the Sections described in Paragraph 4( b).

2. Aerial Use Buffer Area. Except as provided by the exclusions,

exemptions, and termination provisions described below in paragraphs [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 9 Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5, 6, 7, and 8, the EPA's authorization of aerial use of any of the Pesticides is also ENJOINED, VACATED, and SET ASIDE in:

a. All areas within 200 feet from the edge of the aquatic breeding,

non breeding aquatic, and upland critical habitat for the California red legged frog, Rana aurora draytonii, described in the April 13,

2006, Federal Register Notice; and b. All areas within 200 feet from the edge of all Aquatic Features or Upland Habitats for the California red legged frog within the Sections described in Paragraph 4( b).

5. Terminating Events.

The injunctive relief, vacatur, and setting aside of EPA's authorizations will terminate automatically for a Federal Insecticide, Fungicide, and Rodenticide Act (" FIFRA"), 7 U. S. C. § §

136 136( y), authorization for a particular use of a Pesticide upon the completion of ESA Section 7( a)( 2) consultation obligations ( including a " no effect" determination) for the authorization of the particular use of the Pesticide pursuant to applicable consultation regulations in effect at the time that the consultation obligations are discharged. The EPA shall provide Plaintiff and Intervenors with notice of completion of Section 7( a)( 2) consultation obligations made pursuant to this paragraph within 14 days of such determination, by facsimile or electronic mail,

addressed to Plaintiff's and Intervenors' Counsel of Record in this matter.

ACTIVITIES EXEMPTED FROM INTERIM INJUNCTIVE RELIEF 6. Particular Pesticide Programs Excluded.

Notwithstanding Paragraph 4, the Court determines that EPA's authorization of the following uses of the Pesticides specified below is NOT ENJOINED, VACATED, OR SET ASIDE:

a. Public Health Vector Control Programs. EPA's authorization of the use of the Pesticides for the purpose of public health vector control when such program is administered by public entities is NOT ENJOINED, VACATED, OR SET ASIDE. [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 10Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 b. Invasive Species and Noxious Weed Programs. EPA's authorization of aquatic and non aquatic uses of the Pesticides for control of state designated invasive species and noxious weeds when such program is administered by public entities is NOT ENJOINED, VACATED, OR SET ASIDE so long as the following restrictions are implemented:

1. Application of the Pesticides shall be limited to localized spot treatments using hand held devices and may not occur within 15 feet of of California red legged frog aquatic breeding or non breeding aquatic critical habitats designated in the April 13, 2006 Federal Register Notice, or within 15 feet of Aquatic Features for the California redlegged frog within the Sections described in Paragraph 4( b);

2. The Pesticides cannot be used when precipitation is occurring or is forecast to occur within 24 hours;

3. all spraying must be overseen by a certified applicator; and 4. for 2, 4 D and triclopyr, only the amine formulations can be used.

7. Endangered Species Act Approved Uses.

EPA's authorization of the use of the Pesticides is NOT ENJOINED, VACATED, OR SET ASIDE where the use of the Pesticide is permissible under one or more of the following:

a. a " no jeopardy" biological opinion issued under ESA section 7( a)( 2) by the United States Fish and Wildlife Service ( the " Service") that addresses the use of the Pesticide and effects on the California red legged frog, provided that such use is consistent with any incidental take statement included with the Service's opinion;

b. a " reasonable and prudent alternative" identified in a " jeopardy" biological opinion issued under ESA Section 7( a)( 2) by the Service that addresses the use of the Pesticide and effects on the California red legged frog, provided that such use is consistent with the " reasonable and prudent alternative" and any incidental take statement included with the Service's opinion; [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 11Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. a written concurrence by the Service in a " not likely to adversely affect"

determination made under ESA Section 7( a)( 2) that addresses the use of the Pesticide and effects on the California red legged frog;

d. an incidental take permit issued by the Service under ESA Section 10( a) that authorizes the take of the California red legged frog from application or use of the Pesticide; and/ or,

e. completion of a " not likely to adversely affect" determination made by an action agency to satisfy its ESA Section 7( a)( 2) consultation obligation for a particular use of a Pesticide pursuant to applicable regulations in effect at the time that the determination is made.

8. Specific Pesticide Product or Use Exceptions.

Notwithstanding Paragraph 4, the Court determines that the EPA's authorization of the following uses of the Pesticides specified below is NOT ENJOINED, VACATED, OR SET ASIDE:

a. EPA's authorization of use of the Pesticides in cattle ear tags;

b. EPA's authorization of indoor uses of the Pesticides;

c. EPA's authorization of tree injection applications of the Pesticides;

d. EPA's authorization of homeowner applications of the Pesticides to household potted plants;

e. EPA's authorization of use of the Pesticides in flea and tick collars for dogs and cats;

f. EPA's authorization of use of the Pesticides in manufacturing end use products;

g. EPA's authorization of any use of 1,3 dichloropropene ( telone) and chloropicrin,

provided that such use occurs at least sixty feet from Aquatic Features within the Sections described in Paragraph 4( b) and/ or at least sixty feet from aquatic breeding and non breeding aquatic critical habitats for the California red legged frog designated in the April 13, 2006 Federal Register Notice; [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 12Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 h. EPA's authorization of localized spot treatments of the Pesticides using handheld,

devices on rights of way, roadsides, pastures, lawns, or forests, provided that such use occurs at least sixty feet from Aquatic Features within the Sections described in Paragraph 4( b) and/ or at least sixty feet from aquatic breeding and nonbreeding aquatic critical habitats for the California red legged frog designated in the April 13, 2006 Federal Register Notice;

i. EPA's authorization of the Pesticide's use for spot treatments of wasp and hornet nests, provided that such use occurs at least sixty feet from Aquatic Features within the Sections described in Paragraph 4( b) and/ or at least sixty feet from aquatic breeding and non breeding aquatic critical habitats for the California redlegged frog designated in the April 13, 2006, Federal Register Notice;

j. EPA's authorization of individual tree removal using cut stump application of the Pesticides, provided that such use occurs at least sixty feet from Aquatic Features within the Sections described in Paragraph 4( b) and/ or at least sixty feet from aquatic breeding and non breeding aquatic critical habitats for the California redlegged frog designated in the April 13, 2006, Federal Register Notice;

k. EPA's authorization of basal bark application of the Pesticides to individual plants, provided that such use occurs at least sixty feet from Aquatic Features within the Sections described in Paragraph 4( b) and/ or at least sixty feet from aquatic breeding and non breeding aquatic critical habitats for the California redlegged frog designated in the April 13, 2006, Federal Register Notice;

l. EPA's authorization of the use of any of the Pesticides in bait stations, provided that such use occurs at least sixty feet from Aquatic Features within the Sections described in Paragraph 4( b) and/ or at least sixty feet from aquatic breeding and non breeding aquatic critical habitats for the California red legged frog designated in the April 13, 2006, Federal Register Notice.

NOTIFICATION REQUIREMENTS 9. Content and Distribution of Brochure. [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 13Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court orders the EPA to develop a bilingual ( English & Spanish) brochure describing ( 1) the unique biology of frogs that influences their susceptibility to environmental pollution including pesticides, ( 2) the California red legged frog and its habitat needs, ( 3) the status of the California red legged frog under the Endangered Species Act, ( 4) tips that may reduce the potential exposure of the California red legged frog to pesticides, and ( 5) stating that the Court has issued an injunction setting aside EPA's registration of certain pesticides within certain areas of California, ( 6) listing the counties that include areas where the Court's injunction applies, ( 7) providing a small map of the entire State of California highlighting the counties where the Court's injunction applies, and ( 8) referring interested parties to EPA's website for the full text of the Court's order and additional maps identifying the areas where the Court's injunction applies.

The front cover of the brochure will incorporate the following written and graphic information:

FROGS AND PESTICIDE HAZARDS Some pesticide products may harm frogs or their habitat.

The heading " Frogs and Pesticide Hazards" and the subsequent statement shall be in a large font and shall be highly visible. Additionally, a prominent graphic of the California redlegged frog must also be included on the cover of the brochure.

The EPA shall distribute a copy of this brochure to all commercial certified applicators of the Pesticides within the state of California; to all private certified applicators residing in California counties where Use Authorizations are Enjoined, Vacated, and Set Aside by this Order; registrants of the Pesticides; and to the California Department of Pesticide Regulation,

California Department of Fish and Game, and Pacific Region of the United States Fish and Wildlife Service. In addition, EPA shall distribute two hundred and fifty ( 250) copies of this brochure to each of the County Agricultural Commissioner and Cooperative Extension Agent offices in California counties where Use Authorizations are Enjoined, Vacated, and Set Aside by this Order.

10. Notification of Order. [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 14Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The EPA is directed to mail copies of this Order directly to all registrants of the Pesticides. The EPA is directed to inform the public of the Court's Order by submitting notice of this order for publication in the Federal Register and by displaying the terms of this Order on EPA's website.

MODIFICATIONS TO INJUNCTIVE RELIEF 11. Modifications to Injunctive Relief.

The parties reserve the right to seek to have this Court modify this injunctive relief ( including both the schedule and the interim injunctive relief) because of EPA's and the Service's ongoing actions to comply with the ESA, to meet the requirements of other federal agencies or departments, or to deal with circumstances not presently anticipated. The Court will consider such future requests as it deems appropriate.

DISPUTE RESOLUTION 12. In the event of a disagreement between the Parties concerning the interpretation or performance of any aspect of this Settlement Agreement, the dissatisfied Party shall provide the other Parties with written notice of the dispute and a request for negotiations. The Parties shall confer in order to attempt to resolve the dispute within 14 days after receipt of the notice, or such time thereafter as is mutually agreed upon. If the Parties are unable to resolve the dispute within 21 days after receipt of the notice, or such time thereafter as is mutually agreed upon,

then any Party may petition the Court to resolve the dispute. The Court will consider such future requests as it deems appropriate.

ATTORNEYS' FEES 13. Federal Defendants agree that Plaintiff is entitled to reimbursement of reasonable attorneys' fees and costs, as provided in 16 U. S. C. § 1540( g). Federal Defendants and Plaintiff agree to attempt to resolve Plaintiff's claim for fees and costs for all claims in this action expeditiously, without the need for Court intervention. If the Federal Defendants and Plaintiff cannot agree on the amount of such fees within 30 days of the court order approving this Stipulated Injunction, Plaintiff shall file a motion for attorneys' fees and costs with the Court in [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 15Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this matter. The Parties recognize that Defendants have not waived any defense to and preserve their right to challenge the reasonableness of the amount of attorneys' fees and costs requested by Plaintiff in the event that Plaintiff and Federal Defendants are unable to resolve Plaintiff's claim for fees and costs. The Parties further recognize that Plaintiff reserves the right to seek additional fees and costs incurred arising from a need to enforce or defend against efforts to modify this agreement or for any other unforeseen continuation of this action.

SCOPE OF THE ORDER 14. This Order does not require EPA to take any action under the Federal Insecticide,

Fungicide, and Rodenticide Act including, but not limited to, any action to suspend, cancel, or modify the registration of any pesticide.

15. No provision of this Order shall be interpreted as or constitute a commitment or requirement that the EPA take action in contravention of the ESA, the Administrative Procedure Act (" APA"), or any other law or regulation, either substantive or procedural. Nothing in this Order shall be construed to limit or modify the discretion accorded to EPA by the ESA, the APA, or general principles of administrative law with respect to the procedures to be followed in making the effects determinations described above in Paragraphs 1 and 2 or as to the substance of any such determinations.

16. No provision of this Order shall be interpreted as, or constitute, a commitment or requirement that EPA is obligated to spend funds in violation of the Anti Deficiency Act, 31 U. S. C. Section 1341, or any other provisions of law.

17. The Parties agree that their stipulations were negotiated in good faith and that entry of this Order constitutes a settlement of claims that were vigorously contested, denied, and disputed by the Parties. By stipulating to the entry of this Order, the Parties do not waive any claim or defense.

18. The undersigned representatives of each Party certify that they are fully authorized by the Party ( or Parties) they represent to agree to the Court's entry of the terms and conditions of this Order and do hereby agree to the terms herein. [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 16Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19. Upon entry of this Order, Plaintiff's complaint shall be dismissed with prejudice. The dismissal shall apply to and be binding upon the Parties hereto and anyone acting on their behalf, including successors, employees, agents, elected and appointed officers, and assigns.

Plaintiff and Defendants Intervenors agree not to bring, assist any other Party in bringing, or join EPA or any other Party in any court proceeding that concerns an alleged violation of Section 7 of the ESA on the effects of any of the 66 Pesticides identified above in Paragraph 1 on the California red legged frog until after the completion of any Terminating Event for that pesticide as set forth in Section 4 of this Order.

20. This Stipulated Injunction does not constitute an admission or evidence of any fact,

wrongdoing, misconduct, or liability on the part of the United States, including without limitation, EPA, its officers, or any other person affiliated with it, by Defendant Intervenors, or any interpretation of any applicable provision of law. This Stipulated Injunction has no precedential value and shall not be used as evidence in any other court proceeding or in any other settlement discussions.

21. Notwithstanding the dismissal of this action, the Parties have stipulated and requested that this Court retain jurisdiction to oversee compliance with the terms of this Order and to resolve any motions to modify such terms. See Kokkonen v. Guardian Life Ins. Co. of America,

511 U. S. 375 ( 1994).

22. The terms of this Stipulated Injunction constitute the entire agreement of the Parties, and no statement, agreement or understanding, oral or written, which is not contained herein, shall be recognized or enforced.

23. The terms of this Stipulated Injunction shall become effective upon entry of an order by the Court ratifying this Stipulated Injunction.

SO ORDERED this _______ day of August, 2006.

____________________________

United States District Judge [ DRAFT] STIPULATED INJUNCTION AND [ PROPOSED] ORDER 17Case No. C 02 1580 JSW 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Presented by:

Brent Plater ( CA Bar # 209555) CENTER FOR BIOLOGICAL DIVERSITY 1095 Market Street, Suite 511 San Francisco, CA 94103 Telephone: ( 415) 436 9682 Facsimile: ( 415) 436 9683 bplater@ biologicaldiversity. org Brendan Cummings ( CA Bar # 193952) CENTER FOR BIOLOGICAL DIVERSITY P. O. Box 549 Joshua Tree, CA 92252 Telephone: ( 760) 366 2232 Facsimile: ( 760) 366 2669 bcummings@ biologicaldiversity. org Michael W. Graf ( CA Bar # 136172) Law Offices 227 Behrens Street El Cerrito, CA 94530 Telephone: ( 510) 525 7222 Facsimile: ( 510) 525 1208 mwgraf@ aol. com Attorneys for Plaintiff


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[Federal Register Volume 77, Number 117 (Monday, June 18, 2012)]
[Proposed Rules]
[Pages 36206-36209]
[FR Doc No: 2012-14794]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2012-0597; Directorate Identifier 2012-NM-054-AD]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: We propose to adopt a new airworthiness directive (AD) for
certain Boeing Company Model 777-200, -200LR, -300, and -300ER series
airplanes. This proposed AD was prompted by reports of in-service
events related to electrical power system malfunctions resulting in
damage to electrical load management system (ELMS) P200 and P300 power
panels and the surrounding area. This proposed AD would require
installing enclosure trays to contain debris in certain ELMS panels,
and replacing certain ELMS contactors. We are proposing this AD to
prevent contactor failures, which could result in uncontained hot
debris flow due to ELMS contactor breakdown, consequent smoke and heat
damage to airplane structure and equipment during ground operations,
and possible injuries to passengers and crew.

DATES: We must receive comments on this proposed AD by August 2, 2012.

ADDRESSES: You may send comments, using the procedures found in 14 CFR
11.43 and 11.45, 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: Deliver to Mail address above between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.
    For Boeing service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Data & Services Management,
P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207; telephone 206-
544-5000, extension 1; fax<PHONE_NUMBER>; email<EMAIL_ADDRESS>
Internet https://www.myboeingfleet.com. For Smiths Aerospace and GE
Aviation service information identified in this AD, contact GE
Aviation, Customer Support Center, 1 Neumann Way, Cincinnati, Ohio
45215; telephone:<PHONE_NUMBER>; email<EMAIL_ADDRESS>Internet:
http://www.geaviation.com. You may review copies of the referenced
service information at the FAA, Transport Airplane Directorate, 1601
Lind Avenue SW., Renton, Washington. For information on the
availability of this material at the FAA, call<PHONE_NUMBER>.

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 (phone:<PHONE_NUMBER>) is in the ADDRESSES
section. Comments will be available in the AD docket shortly after
receipt.

FOR FURTHER INFORMATION CONTACT: Georgios Roussos, Aerospace Engineer,
Systems and Equipment Branch, ANM-130S, Seattle Aircraft Certification
Office (ACO), FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356;
telephone<PHONE_NUMBER>; fax<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Comments Invited

    We invite you to send any written relevant data, views, or
arguments about this proposal. Send your comments to an address listed
under the ADDRESSES section. Include ``Docket No. FAA-2012-0597;
Directorate Identifier 2012-NM-054-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

    We have received reports of in-service events related to electrical
power system malfunctions that resulted in damage to ELMS P200 and P300
panels.
    Some operators reported severe damage to ELMS panels. No in-flight
contactor failures have been reported. Extended contactor operation at
current close to maximum can lead to thermal degradation of the
material in the contactor, which further reduces contactor protection
and can lead to loose parts and consequent increased probability of
electrical arcing. In addition, there was evidence of material buildup
from normal operation of the contactor and the potential for foreign
object debris, which could lead to short circuits within the contactor.
    One operator reported that an airplane on the ground experienced
smoke and heat damage from insulation blankets that smoldered after
molten debris from a P200 ELMS power panel fell on the insulation
blankets. When a contactor in the ELMS panel fails and overheats, the
heat can cause molten debris to fall out of the panel. The bottom of
the ELMS panel is open without protection to prevent hot debris from
falling on to the insulation blankets and components below the panel.
    These conditions could result in uncontained hot debris flow due to
ELMS contactor breakdown, consequent smoke and heat damage to airplane
structure and equipment during ground operations, and possible injuries
to passengers and crew.

Relevant Service Information

    We reviewed Boeing Special Attention Service Bulletin 777-24-0106,
dated July 20, 2007, which describes procedures for installing
enclosure trays for debris containment. The installation includes
securing the tray with rivets onto the ELMS panel heat shield. Guidance
on these procedures can be found in Smiths Service Bulletins 1000ELM-
24-666, Revision 1, dated August 6, 2007; 2000ELM-24-667, Revision 1,
dated August 13, 2007; and 3000ELM-24-668, Revision 1, dated August 13,
2007.
    We also reviewed Boeing Special Attention Service Bulletin 777-24-
0112, Revision 2, dated December 14, 2011, which describes procedures
for replacing specified contactors in the ELMS P200 and P300 panels
with new contactors. Guidance on these procedures can be found in GE
Service Bulletins 2000ELM-24-697 and 3000ELM-24-698, both Revision 2,
both dated February 3, 2011.

FAA's Determination

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

Proposed AD Requirements

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

Difference Between the Proposed AD and the Service Information

    Boeing Special Attention Service Bulletin 777-24-0106, dated July
20, 2007, recommends a compliance time of 60 months to install the
enclosure trays for debris containment. We have determined that these
trays must be installed sooner--within 36 months--to appropriately
mitigate the identified unsafe condition. This difference has been
coordinated with Boeing.

Costs of Compliance

    We estimate that this proposed AD affects 128 airplanes of U.S.
registry. We estimate the following costs to comply with this proposed
AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost per      Cost on U.S.
               Action                         Labor cost            Parts cost        product        operators
----------------------------------------------------------------------------------------------------------------
Tray installation..................  3 work-hours x $85 per hour          $1,729          $1,984        $253,952
                                      = $255.
Contactor replacement..............  6 work hours x $85 per hour          49,317          49,827       6,377,856
                                      = $510.
----------------------------------------------------------------------------------------------------------------

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),
    (3) Will not affect intrastate aviation in Alaska, and
    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, 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
airworthiness directive (AD):

The Boeing Company: Docket No. FAA-2012-0597; Directorate Identifier
2012-NM-054-AD.

(a) Comments Due Date

    We must receive comments by August 2, 2012.

(b) Affected ADs

    None.

(c) Applicability

    This AD applies to The Boeing Company Model 777-200, -200LR, -
300, and -300ER series airplanes; certificated in any category; as
identified in Boeing Special Attention Service Bulletin 777-24-0106,
dated July 20, 2007; and Boeing Special Attention Service Bulletin
777-24-0112, Revision 2, dated December 14, 2011.

(d) Subject

    Joint Aircraft System Component (JASC)/Air Transport Association
(ATA) of America Code 24, Electrical power.

(e) Unsafe Condition

    This AD was prompted by reports of in-service events related to
electrical power system malfunctions resulting in damage to
electrical load management system (ELMS) P200 and P300 power panels
and the surrounding area. We are issuing this AD to prevent
contactor failures, which could result in uncontained hot debris
flow due to ELMS contactor breakdown, consequent smoke and heat
damage to airplane structure and equipment during ground operations,
and possible injuries to passengers and crew.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Tray Installation

    For airplanes identified in Boeing Special Attention Service
Bulletin 777-24-0106, dated July 20, 2007: Within 36 months after
the effective date of this AD, install enclosure trays to contain
debris in the ELMS panels, in accordance with the Accomplishment
Instructions of Boeing Special Attention Service Bulletin 777-24-
0106, dated July 20, 2007.

    Note 1 to paragraph (g) of this AD: Guidance on the tray
installation can be found in the service bulletins identified in the
following paragraphs:
    (1) Smiths Service Bulletin 1000ELM-24-666, Revision 1, dated
August 6, 2007.
    (2) Smiths Service Bulletin 2000ELM-24-667, Revision 1, dated
August 13, 2007.
    (3) Smiths Service Bulletin 3000ELM-24-668, Revision 1, dated
August 13, 2007.

(h) Contactor Replacement

    For airplanes identified in Boeing Special Attention Service
Bulletin 777-24-0112, Revision 2, dated December 14, 2011: Within 60
months after the effective date of this AD, replace specified
electrical power contactors in the ELMS P200 and P300 power panels
with new contactors, in accordance with the Accomplishment
Instructions of Boeing Special Attention Service Bulletin 777-24-
0112, Revision 2, dated December 14, 2011.

    Note 2 to paragraph (h) of this AD:  Guidance on the contactor
replacement procedures can be found in GE Service Bulletins 2000ELM-
24-697 and 3000ELM-24-698, both Revision 2, both dated February 3,
2011.

(i) Credit for Previous Actions

    This paragraph provides credit for the replacement of the ELMS
contactors required by paragraph (h) of this AD, if those actions
were performed before the effective date of this AD in accordance
with Boeing Special Attention Service Bulletin 777-24-0112, dated
February 19, 2009; or Revision 1, dated June 30, 2011.

(j) Parts Installation

    As of the effective date of this AD, no person may install, on
any airplane, a contactor having part number ELM827-1 in the ELMS
panels and locations identified in this AD.

(k) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO),
FAA, has the authority to approve AMOCs for this AD, if requested
using the procedures found in 14 CFR 39.19. In accordance with 14
CFR 39.19, send your request to your principal inspector or local
Flight Standards District Office, as appropriate. If sending
information directly to the manager of the ACO, send it to the
attention of the person identified in the Related Information
section of this AD. Information may be emailed to<EMAIL_ADDRESS>    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.

(l) Related Information

    (1) For more information about this AD, contact Georgios
Roussos, Aerospace Engineer, Systems and Equipment Branch, ANM-130S,
Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue
SW., Renton, Washington 98057-3356; telephone<PHONE_NUMBER>; fax
(425) 917-6590; email<EMAIL_ADDRESS>    (2) For Boeing service information identified in this AD,
contact Boeing Commercial Airplanes, Attention: Data & Services
Management, P.O. Box 3707, MC 2H-65, Seattle, Washington 98124-2207;
telephone<PHONE_NUMBER>, extension 1; fax<PHONE_NUMBER>; email
<EMAIL_ADDRESS>Internet https://www.myboeingfleet.com. For
Smiths Aerospace and GE Aviation service information identified in
this AD, contact GE Aviation, Customer Support Center, 1 Neumann
Way, Cincinnati, Ohio 45215; telephone:<PHONE_NUMBER>; email:
<EMAIL_ADDRESS>Internet: http://www.geaviation.com. You may
review copies of the referenced service information at the

FAA, the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW.,
Renton, Washington. For information on the availability of this
material at the FAA, call<PHONE_NUMBER>.

    Issued in Renton, Washington, on June 7, 2012.
Michael Kaszycki,
Acting Manager, Transport Airplane Directorate, Aircraft Certification
Service.
[FR Doc. 2012-14794 Filed 6-15-12; 8:45 am]
BILLING CODE 4910-13-P


[Federal Register: October 30, 2006 (Volume 71, Number 209)]
[Notices]
[Page 63298]
[DOCID:fr30oc06-64]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. RP07-20-000]

Texas Eastern Transmission, LP; Notice of Proposed Changes in
FERC Gas Tariff

October 18, 2006.
    Take notice that on October 17, 2006, Texas Eastern Transmission,
LP (Texas Eastern) tendered for filing as part of its FERC Gas Tariff,
Seventh Revised Volume No. 1 and First Revised Volume No. 2, revised
tariff sheets as listed on Appendix A to the filing, to become
effective December 1, 2006. In addition, Texas Eastern submitted its
Annual Interruptible Revenue Reconciliation Report.
    Texas Eastern states that the revised tariff sheets and the Annual
Interruptible Revenue Reconciliation Report contained in the filing are
being filed pursuant to Section 15.6, Applicable Shrinkage Adjustment
(ASA), and Section 15.8, Periodic Reports, of the General Terms and
Conditions of Texas Eastern's FERC Gas Tariff, Seventh Revised Volume
No. 1.
    Texas Eastern states that the impact of the instant filing on Texas
Eastern's system rates for the upcoming winter season equates to an
overall decrease of 11.25 cents in the 100% load factor price for
typical long-haul service under Rate Schedule FT-1 from the Access Area
Zone East Louisiana to Market Zone M3 (ELA-M3) as follows:

------------------------------------------------------------------------
                                                                ($/dth)
------------------------------------------------------------------------
Rate Impact:
    ASA Surcharge...........................................    (0.0205)
Fuel Retention Impact:
    Winter Season Percentage Decrease--1.23%................  ..........
    Rate Equivalent at $7.48 per dth........................    (0.0920)
    Overall Reduction.......................................    (0.1125)
------------------------------------------------------------------------

    Texas Eastern states that copies of its filing have been mailed or,
if requested, emailed to all affected customers of Texas Eastern and
interested state commissions.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed in accordance with the provisions of
Section 154.210 of the Commission's regulations (18 CFR 154.210).
Anyone filing an intervention or protest must serve a copy of that
document on the Applicant. Anyone filing an intervention or protest on
or before the intervention or protest date need not serve motions to
intervene or protests on persons other than the Applicant.
    The Commission encourages electronic submission of protests in lieu
of paper using the ``eFiling'' link at http://www.ferc.gov. Persons

unable to file electronically should submit an original and 14 copies
of the protest to the Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For

TTY, call<PHONE_NUMBER>.

Magalie R. Salas,
Secretary.
[FR Doc. E6-18093 Filed 10-27-06; 8:45 am]

BILLING CODE 6717-01-P


[Federal Register: February 21, 2008 (Volume 73, Number 35)]
[Proposed Rules]
[Page 9497-9500]
[DOCID:fr21fe08-24]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2008-0182; Directorate Identifier 2007-NM-262-AD]
RIN 2120-AA64

Airworthiness Directives; Empresa Brasileira de Aeronautica S.A.
(EMBRAER) Model EMB-135ER, -135KE, -135KL, and -135LR Airplanes, and
Model EMB-145, -145ER, -145MR, -145LR, -145XR, -145MP, and -145EP
Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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

SUMMARY: We propose to adopt a new airworthiness directive (AD) for the
products listed above. 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:

    Fuel system reassessment, performed according to RBHA-E88/SFAR-
88 (Regulamento Brasileiro de Homologacao Aeronautica 88/Special
Federal Aviation Regulation No. 88), requires the inclusion of new
maintenance tasks in the Critical Design Configuration Control
Limitations (CDCCL) and in the Fuel System Limitations (FSL),

necessary to preclude ignition sources in the fuel system. * * *

    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 March 24, 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: Sanjay Ralhan, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone (425)
227-1405; 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-2008-0182;
Directorate Identifier 2007-NM-262-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

    The Ag[ecirc]ncia Nacional de Avia[ccedil][atilde]o Civil (ANAC),
which is the aviation authority for Brazil, has issued Brazilian
Airworthiness Directive 2007-08-02, effective September 27, 2007
(referred to after this as ``the MCAI''), to correct an unsafe
condition for the specified products. The MCAI states:

    Fuel system reassessment, performed according to RBHA-E88/SFAR-
88 (Regulamento Brasileiro de Homologacao Aeronautica 88/Special
Federal Aviation Regulation No. 88), requires the inclusion of new
maintenance tasks in the Critical Design Configuration Control
Limitations (CDCCL) and in the Fuel System Limitations (FSL),
necessary to preclude ignition sources in the fuel system. * * *

The corrective action is revising the Airworthiness Limitations Section
(ALS) of the Instructions for Continued Airworthiness (ICA) to
incorporate new limitations for fuel tank systems. You may obtain
further information by examining the MCAI in the AD docket.
    The FAA has examined the underlying safety issues involved in fuel
tank explosions on several large transport airplanes, including the
adequacy of existing regulations, the service history of airplanes
subject to those regulations, and existing maintenance practices for
fuel tank systems. As a result of those findings, we issued a
regulation titled ``Transport Airplane Fuel Tank System Design Review,
Flammability Reduction and Maintenance and Inspection Requirements''
(66 FR 23086, May 7, 2001). In addition to new airworthiness standards
for transport airplanes and new maintenance requirements, this rule
included Special Federal Aviation Regulation No. 88 (``SFAR 88,''
Amendment 21-78, and subsequent Amendments 21-82 and 21-83).
    Among other actions, SFAR 88 requires certain type design (i.e.,
type certificate (TC) and supplemental type certificate (STC)) holders
to substantiate that their fuel tank systems can prevent ignition
sources in the fuel tanks. This requirement applies to type design
holders for large turbine-powered transport airplanes and for
subsequent modifications to those airplanes. It requires them to
perform design reviews and to develop design changes and maintenance
procedures if their designs do not meet the new fuel tank safety
standards. As explained in the preamble to the rule, we intended to
adopt airworthiness directives to mandate any changes found necessary
to address unsafe conditions identified as a result of these reviews.
    In evaluating these design reviews, we have established four
criteria intended to define the unsafe conditions associated with fuel
tank systems that require corrective actions. The percentage of
operating time during which fuel tanks are exposed to flammable
conditions is one of these criteria. The other three criteria address
the failure types under evaluation: Single failures, single failures in
combination with a latent condition(s), and in-service failure
experience. For all four criteria, the evaluations included
consideration of previous actions taken that may mitigate the need for
further action.
    We have determined that the actions identified in this AD are
necessary to reduce the potential of ignition sources inside fuel
tanks, which, in combination with flammable fuel vapors, could result
in fuel tank explosions and consequent loss of the airplane.

Relevant Service Information

    EMBRAER has issued Sections A2.5.2, Fuel System Limitation Items,
and A2.4, Critical Design Configuration Control Limitation (CDCCL), of
Appendix 2 of Embraer EMB-135/ERJ-140/EMB-145 Maintenance Review Board
Report (MRBR) MRB-145/1150, Revision 10, dated August 4, 2006. The
actions described in this service information are intended to correct
the unsafe condition identified in the MCAI.

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.

Explanation of Compliance Time

    In most ADs, we adopt a compliance time allowing a specified amount
of time after the AD's effective date. In this case, however, the FAA
has already issued regulations that require operators to revise their
maintenance/inspection programs to address fuel tank safety issues. The
compliance date for these regulations is December 16, 2008. To

provide for coordinated implementation of these regulations and this
proposed AD, we are using this same compliance date in 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 704 products of U.S. registry. We also estimate that
it would take about 1 work-hour 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 $56,320, or $80 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:

Empresa Brasileira de Aeronautica S.A. (EMBRAER): Docket No. FAA-
2008-0182; Directorate Identifier 2007-NM-262-AD.

Comments Due Date

    (a) We must receive comments by March 24, 2008.

Affected ADs

    (b) None.

Applicability

    (c) This AD applies to Embraer Model EMB-135ER, -135KE, -135KL,
and -135LR airplanes, and Model EMB-145, -145ER, -145MR, -145LR, -
145XR, -145MP, and -145EP airplanes; certificated in any category;
except for Model EMB-145LR airplanes modified according to Brazilian
Supplemental Type Certificate 2002S06-09, 2002S06-10, or 2003S08-01.

    Note 1:
    This AD requires revisions to certain operator maintenance
documents to include new inspections. Compliance with these
inspections is required by 14 CFR 91.403(c). For airplanes that have
been previously modified, altered, or repaired in the areas
addressed by these inspections, the operator may not be able to
accomplish the inspections described in the revisions. In this
situation, to comply with 14 CFR 91.403(c), the operator must
request approval for an alternative method of compliance according
to paragraph (g) of this AD. The request should include a
description of changes to the required inspections that will ensure
the continued operational safety of the airplane.

Subject

    (d) Air Transport Association (ATA) of America Code 28: Fuel.

Reason

    (e) The mandatory continuing airworthiness information (MCAI)
states:
    Fuel system reassessment, performed according to RBHA-E88/SFAR-
88, requires the inclusion of new maintenance tasks in the Critical
Design Configuration Control Limitations (CDCCL) and in the Fuel
System Limitations (FSL), necessary to preclude ignition sources in
the fuel system. * * *

The corrective action is revising the Airworthiness Limitations
Section (ALS) of the Instructions for Continued Airworthiness (ICA)
to incorporate new limitations for fuel tank systems.

Actions and Compliance

    (f) Unless already done, do the following actions.
    (1) The term ``MRBR,'' as used in this AD, means the Embraer
EMB-135/ERJ-140/EMB-145 Maintenance Review Board Report (MRBR) MRB-
145/1150, Revision 10, dated August 4, 2006.
    (2) Before December 16, 2008, revise the ALS of the ICA to
incorporate Section A2.5.2, Fuel System Limitation Items, of
Appendix 2 of the MRBR. For all tasks identified in Section A2.5.2
of Appendix 2 of the MRBR, the initial compliance times start from
the later of the times specified in paragraphs (f)(2)(i) and
(f)(2)(ii) of this AD; and the repetitive inspections must be
accomplished thereafter at the interval specified in Section A2.5.2
of Appendix 2 of the MRBR, except as provided by paragraphs (f)(4)
and (g) of this AD.
    (i) The effective date of this AD.
    (ii) The date of issuance of the original Brazilian standard
airworthiness certificate or the date of issuance of the original
Brazilian export certificate of airworthiness.
    (3) Before December 16, 2008, or within 90 days after the
effective date of this AD, whichever occurs first, revise the ALS of
the ICA to incorporate items 1, 2, and 3 of Section A2.4, Critical
Design Configuration Control Limitation (CDCCL), of Appendix 2 of
the MRBR.
    (4) After accomplishing the actions specified in paragraphs
(f)(2) and (f)(3) of this AD, no alternative inspections, inspection
intervals, or CDCCLs may be used unless the inspections, intervals,
or CDCCLs are part of a later revision of Appendix 2 of the MRBR
that is approved by the Manager, ANM-116, FAA, or ANAC (or its
delegated agent); or unless the inspections, intervals, or CDCCLs
are approved as an alternative method of compliance (AMOC) in
accordance with the procedures specified in paragraph (g) of this
AD.

FAA AD Differences

    Note 2:
    This AD differs from the MCAI and/or service information as
follows: The MCAI specifies a compliance date of ``Before December
31, 2008'' for doing the ALI revisions. We have already issued
regulations that require operators to revise their maintenance/
inspection programs to address fuel tank safety issues. The
compliance date for these regulations is December 16, 2008. To
provide for coordinated implementation of these regulations and this
AD, we are using this same compliance date in this AD.

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, 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: Sanjay Ralhan, Aerospace Engineer,
International Branch, ANM-116, Transport Airplane Directorate, FAA,
1601 Lind Avenue, SW., Renton, Washington 98057-3356; telephone
(425) 227-1405; fax<PHONE_NUMBER>. 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 Brazilian Airworthiness Directive 2007-08-02,
effective September 27, 2007; and Sections A2.5.2, Fuel System
Limitation Items, and A2.4, Critical Design Configuration Control
Limitation (CDCCL), of Appendix 2 of the MRBR; for related
information.

    Issued in Renton, Washington, on February 13, 2008.
Stephen P. Boyd,
Assistant Manager, Transport Airplane Directorate, Aircraft
Certification Service.
 [FR Doc. E8-3190 Filed 2-20-08; 8:45 am]

BILLING CODE 4910-13-P


 Standard Interpretations
 Clarification on labeling and SDS requirements under HCS 2012.
 --------------------------------------------------------------------------------
Standard Number:
--------------------------------------------------------------------------------
1910.1200
OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
January 31, 2013
Ms. Erin McVeigh
3E Company
4520 East West Highway, Ste. 440
Bethesda. MD 20814
Dear Ms. McVeigh:
Thank you for your September 25, 2012, letter to the Occupational Safety and Health Administration (OSHA). Your letter was referred to OSHA's Directorate of Enforcement Programs for a response to your specific questions regarding the revised Hazard Communication standard (HCS 2012), 29 CFR 1910.1200. This letter constitutes OSHA's interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence. Your paraphrased questions and our responses are below.
Question 1: Does supplemental information on a label, such as information regarding an environmental hazard or a hazard not otherwise classified (HNOC), need to be physically separated from the harmonized information?
Response: The HCS 2012 does not prohibit a manufacturer from adding supplemental information to a label, as long as it does not lead to unnecessarily wide variation or undermine the required label information. Therefore, section C.3.1 of Appendix C to HCS 2012 provides that supplementary information may only be provided if it provides further detail and does not contradict or cast doubt on the validity of the information required by the HCS 2012. The HCS 2012 does not specify the format of the label, only the information required on the label. Supplemental information need not be physically separated from the required information on the label; however, section C.3.2 provides that the placement of supplemental information must not impede identification of information required by HCS 2012. How a manufacturer designs the layout of the label is up to the preparer, as long as all the required information is present.
Question 2: Is it permissible to include signal words on the safety data sheet (SDS) and label for an HNOC?
Response: Under section 1910.1200(f)(1), HNOCs need not be addressed on an HCS label, and there are no harmonized label requirements for HNOCs. There are only two signal words, "danger" and "warning," under the HCS 2012. Only one signal word may appear on the label and SDS. Under section C.2.1.1 of Appendix C of the standard, if the signal word "danger" appears, the signal word "warning" shall not. It is not permissible to use signal words other than "danger" or "warning" for HNOCs. The correct signal word for HNOCs must appear on the SDS.
Question 3: Is it permissible to include hazard symbols on the SDS and label for an HNOC, or should information only be displayed as a statement similar to the hazard and precautionary statements adopted from the Globally Harmonized System (GHS)?
Response: The HCS 2012 requires the use of up to eight pictograms. The number of pictograms required depends upon the classification of the hazardous chemical. However, the manufacturer may add additional symbol(s) to the label and SDS as long as that symbol is not an HCS 2012 pictogram and does not contradict or cast doubt on the information that is required on the label.
Question 4: Can HNOCs be included with other classifications which are described in Section 2 of the SDS, subsection (a), or should they remain under their own sub-header on the SDS?
Response: Section 2, subheading (a) of Table D.l requires the manufacturer to provide the classification of the chemical in accordance with section 1910.1200(d). Section 1910.1200(d) delineates the hazard classification process. Paragraph (c) of the HCS 2012 defines HNOC as:
an adverse physical or health effect identified through evaluation of scientific evidence during the classification process that does not meet the specified criteria for the physical and health hazard classes addressed in this section. This does not extend coverage to adverse physical and health effects for which there is a hazard class addressed in this section, but the effect either falls below the cut-off value/concentration limit of the hazard class or is under a GHS hazard category that has not been adopted by OSHA (e.g., acute toxicity Category 5).
As HNOCs are identified through the section 1910.1200(d) hazard classification process, it is permissible to include information on HNOCs under subheading (a).
Question 5: Can Section 16 of the SDS be titled, "Other Information," or does it need to have the exact wording, "Other information, including date of preparation or last revision," as specified in 29 CFR 1910.1200(g)(2)(xvi) and Appendix D?
Response: The full title of Section 16 is "Other information, including date of preparation or last revision." It is permissible to title Section 16 "Other information." However, the information contained in this section must include the date of preparation or last revision in order to be considered complete.
Question 6: What punctuation is required to be used in the SDS? Is it permissible to either use a comma or a period after the headings of each section in the SDS?
Response: HCS 2012 does not require that specific punctuation be used in the SDS. It is permissible to use either a comma or a period after the headings of each section of the SDS.
Question 7: Section 8 of the SDS requires the SDS preparer to include the applicable OSHA permissible exposure limits (PELs) and American Conference of Governmental Industrial Hygienists (ACGM) Threshold Limit Values (TLVs(R)). Must the PELs and TLVs(R) be included regardless of the concentration of the constituent or ingredient? Are they required if the ingredient does not contribute to the hazard classification? If the material has a TLV(R) and must be listed in Section 8, does it also have to be listed in Section 3?
Response: Under Section 8 of Appendix D to the HCS 2012, subheading (a), the manufacturer must list the OSHA PEL, ACGIH TLV(R), and any other exposure limit used or recommended by the chemical manufacturer, importer, or employer preparing the safety data sheet, where available. The requirement to include PELs and TLVs(R) in Section 8 of the SDS applies to any constituent or ingredient (including additives and impurities) that is present in the mixture or - substance above its cut-off value, or if it is below the cut-off value but still contributes to the hazard classification of the material. Please see the answer to question 8 for more details about contributing to the classification of the material. If a constituent is not present in the mixture or substance above its cut-off value, and does not contribute to the hazard classification of the substance or mixture, the PEL and TLV(R) associated with the ingredient need not be listed on the SDS. The lists of constituents in Sections 3 and 8 must be the same. If the constituent does not have a TLV(R) or PEL, its recommended exposure limit must be listed as "not applicable (N/A)" or "none."
Question 8: Is it still required to include information on the SDSs concerning components that could release above the TLV(R), OSHA PEL, or that present health risks? The HCS 2012 seems to only require listing components in Section 3 that contribute to health hazards and are present within the product above the concentration cut-off.
Response: Section 3 of Appendix D to HCS 2012 states that if the hazard of an ingredient presents a health risk below the applicable cut-off value, it must listed. It is OSHA's longstanding position that where a component may be released above an OSHA PEL or the TLV(R), it presents a health risk, and must therefore be included on the SDS. Where a component of a product may be released in concentrations that would exceed an OSHA PEL or the TLV(R) information on these components must be included, regardless of whether their concentration in the product is below the cut-off value.
Question 9: Are the hazard and precautionary statements that appear in Appendix C mandatory, or is there flexibility in capitalization, word changes, etc.? There are a number of hazard and precautionary statements that appear in Appendix C that do not exist in the 3rd edition of the GHS. Can the GHS statements be used instead of the HCS statements? For example, can GHS precautionary statement P272, "contaminated work clothing should not be allowed out of the workplace," be used instead of the statement in Appendix C, "contaminated work clothing must not be allowed out of the workplace"?
Response: The hazard and precautionary statements that appear in Appendix C under Sections C.2.2.1 and C.2.4.1 are mandatory. However, C.2.2.1 allows hazard statements to be combined where appropriate to reduce the information on the label and improve readability, as long as all of the hazards are conveyed as required. Likewise, C.2.4.6 also allows for the combination or consolidation of precautionary statements to save label space and improve readability. OSHA does not require specific capitalization in the format of the statements.
As stated previously, the hazard and precautionary statements are mandatory, and therefore the GHS hazard and precautionary statements cannot be used instead of those required by HCS 2012. The GHS is guidance; the HCS 2012 is a mandatory standard. When the HCS 2012 was promulgated, the GHS statements were modified to reflect the mandatory nature of the standard.
Therefore, statements that were written in the GHS as "could" or "should," were revised to have mandatory language such as "must" or "shall."
Question 10: What is the proper classification of a chemical that has a flash point less than 22°C but the boiling point has not been determined?
Response: OSHA does not classify chemicals for manufacturers. However, your question raises the point of how to classify a chemical if all the information needed to follow the HCS classification requirements is not available or is unknown. The HCS 2012 does not require testing of chemicals, however, manufacturers are permitted to test their product. Manufacturers must base the classification of the flammable chemical on the information about the chemical that is available. If sufficient data is not available, professional judgment must be used. This should be documented and subsequently reviewed when more information is available.
Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at<PHONE_NUMBER>.
Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs