Federal Register Vol. 80, No.228,

Federal Register Volume 80, Issue 228 (November 27, 2015)

Page Range73943-74672
FR Document

80_FR_228
Current View
Page and SubjectPDF
80 FR 74146 - Sunshine Act Meetings; NoticePDF
80 FR 74018 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/United States Coast Guard-029 Notice of Arrival and Departure System of RecordsPDF
80 FR 74116 - Privacy Act of 1974; Department of Homeland Security/United States Coast Guard-029 Notice of Arrival and Departure System of RecordsPDF
80 FR 74104 - Instructions for FCC Form 177 Application To Participate in the Reverse Auction (Auction 1001)PDF
80 FR 74134 - Government in the Sunshine Act Meeting NoticePDF
80 FR 73998 - Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System Policy Changes and Fiscal Year 2016 Rates; Revisions of Quality Reporting Requirements for Specific Providers, Including Changes Related to the Electronic Health Record Incentive Program; Extensions of the Medicare-Dependent, Small Rural Hospital Program and the Low-Volume Payment Adjustment for Hospitals; CorrectionPDF
80 FR 74189 - South Carolina Disaster # SC-00034PDF
80 FR 74188 - Colorado Disaster # CO-00073PDF
80 FR 74104 - Notice of Intent To Terminate 214 AuthorizationPDF
80 FR 74123 - Receipt of Documented Petitions for Federal Acknowledgment of American Indian TribesPDF
80 FR 74132 - Central Valley Project Improvement Act Water Management PlansPDF
80 FR 74086 - Digital Economy Board of Advisors, Establishment and Call for NominationsPDF
80 FR 74129 - Cancellation of Bureau of Land Management Public Meeting for the Sagebrush Focal Areas Proposed Withdrawal, OregonPDF
80 FR 74098 - Agency Information Collection Activities: Proposed Collection; Comment Request; Badge Replacement Request FormPDF
80 FR 74115 - Proposed Collection; 60-Day Comment Request; The Agricultural Health Study: A Prospective Cohort Study of Cancer and Other Disease Among Men and Women in Agriculture (NIEHS)PDF
80 FR 74206 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel HOYA SAXA; Invitation for Public CommentsPDF
80 FR 74207 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel TRINITY; Invitation for Public CommentsPDF
80 FR 74208 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MAGNA CARTA; Invitation for Public CommentsPDF
80 FR 74205 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel VAN DUTCH; Invitation for Public CommentsPDF
80 FR 74205 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MUSIC; Invitation for Public CommentsPDF
80 FR 74203 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LOCURA; Invitation for Public CommentsPDF
80 FR 74207 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel AKARI II; Invitation for Public CommentsPDF
80 FR 74204 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CHEYENNE; Invitation for Public CommentsPDF
80 FR 74206 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel VELLAMO; Invitation for Public CommentsPDF
80 FR 74208 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CAROBELLE; Invitation for Public CommentsPDF
80 FR 74209 - Acceptance of Applications for the Potential Award of Maritime Security Program Operating AgreementsPDF
80 FR 74085 - National Technical Information Service Advisory Board MeetingPDF
80 FR 74221 - Submission for OMB Review; Comment RequestPDF
80 FR 74094 - 36(b)(1) Arms Sales NotificationPDF
80 FR 73999 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; 2016 Red Snapper Commercial Quota RetentionPDF
80 FR 74002 - Pacific Island Pelagic Fisheries; 2015 CNMI Longline Bigeye Tuna Fishery; ClosurePDF
80 FR 74001 - Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; 2015-2016 Accountability Measure and Closure for King Mackerel in the Florida West Coast Northern SubzonePDF
80 FR 73991 - Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General; CorrectionPDF
80 FR 74073 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
80 FR 74096 - 36(b)(1) Arms Sales NotificationPDF
80 FR 74104 - Environmental Impact Statements; Notice of AvailabilityPDF
80 FR 74141 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 74136 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 74219 - Submission for OMB Review; Comment RequestPDF
80 FR 74144 - Notice of Decisions on States' Applications for Relief From Tax Credit Reductions Provided Under Section 3302 of the Federal Unemployment Tax Act (FUTA) Applicable in 2015PDF
80 FR 74092 - 36(b)(1) Arms Sales NotificationPDF
80 FR 74140 - Comment Request for Information Collection for Reporting and Performance Standards System for Migrant and Seasonal Farmworker Programs, Extension With RevisionPDF
80 FR 74137 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 74135 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
80 FR 74075 - Caribbean Fishery Management Council; Public MeetingPDF
80 FR 74076 - Fisheries of the Caribbean; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
80 FR 74074 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
80 FR 74144 - QPS Evaluation Services, Inc.: Request for Renewal of Recognition and Applications for Expansion of RecognitionPDF
80 FR 74074 - Submission for OMB Review; Comment RequestPDF
80 FR 74091 - National Commission on the Future of the Army; Notice of Federal Advisory Committee MeetingPDF
80 FR 74196 - Qualification of Drivers; Exemption Applications; DiabetesPDF
80 FR 74099 - National Coal CouncilPDF
80 FR 74131 - Draft Environmental Impact Statement for Backcountry Management Plan, Grand Canyon National Park, ArizonaPDF
80 FR 74134 - Notice of Lodging of Proposed Stipulation and Agreed Judgment Under the System Unit Resource Protection ActPDF
80 FR 74129 - Notice of Intent To Prepare Environmental Impact Statement for Wilderness Stewardship Plan, Yosemite National Park, Madera, Mariposa, and Tuolumne, CaliforniaPDF
80 FR 74073 - Notice of the Intent To Request To Conduct a New Information CollectionPDF
80 FR 73991 - Program Integrity IssuesPDF
80 FR 74200 - Qualification of Drivers; Exemption Applications; Implantable Cardioverter DefibrillatorsPDF
80 FR 74202 - Driver Qualification Files: Application for Exemption; Atlantic and Pacific Freightways, Inc.PDF
80 FR 74190 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
80 FR 74148 - New Postal ProductPDF
80 FR 74147 - Notice of Permit Modification Received Under the Antarctic Conservation Act of 1978PDF
80 FR 74147 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978PDF
80 FR 74105 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 74105 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 74087 - Procurement List, AdditionsPDF
80 FR 73943 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal AwardsPDF
80 FR 74199 - Commercial Driver's License: Oregon Department of Transportation; Application for ExemptionPDF
80 FR 74218 - Departmental Offices; Proposed Collection; Comment RequestPDF
80 FR 74105 - Information Collection; Freight Classification DescriptionPDF
80 FR 73965 - Third-Party Provision of Primary Frequency Response ServicePDF
80 FR 74101 - Commission Information Collection Activities (FERC-556, FERC-606, and FERC-607); Consolidated Comment Request; ExtensionPDF
80 FR 74100 - Conway Corporation; Notice of FilingPDF
80 FR 74100 - City of West Memphis, Arkansas; Notice of FilingPDF
80 FR 74100 - Combined Notice of Filings #2PDF
80 FR 74099 - Combined Notice of Filings #1PDF
80 FR 74085 - Endangered Species; File Nos. 19331 and 19642PDF
80 FR 74110 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 74108 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 74106 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 74088 - Philips Lighting North America Corporation, Provisional Acceptance of a Settlement Agreement and OrderPDF
80 FR 74120 - Agency Information Collection Activities: Revision Notice; Student and Exchange Visitor Information System Forms I-20PDF
80 FR 74091 - Submission for OMB Review; Comment RequestPDF
80 FR 74076 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Pier Maintenance ProjectPDF
80 FR 74111 - Request for Nominations of Candidates To Serve on the Board of Scientific Counselors (BSC), National Institute for Occupational Safety and Health (NIOSH)PDF
80 FR 74112 - Request for Nominations of Candidates to Serve on the Board of Scientific Counselors (BSC), Office of Infectious Diseases (OID)PDF
80 FR 74113 - Vaccines and Related Biological Products Advisory Committee; Notice of MeetingPDF
80 FR 74052 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 74064 - Imposition of Special Measure Against FBME Bank Ltd., Formerly Known as the Federal Bank of the Middle East Ltd., as a Financial Institution of Primary Money Laundering ConcernPDF
80 FR 74217 - Updating of Specially Designated Nationals and Blocked Persons Pursuant to Executive Order 12978PDF
80 FR 74215 - Updating of Specially Designated Nationals and Blocked Persons Pursuant to the Foreign Narcotics Kingpin Designation ActPDF
80 FR 74216 - Unblocking of Specially Designated Nationals and Blocked Persons Pursuant to the Foreign Narcotics Kingpin Designation ActPDF
80 FR 74216 - Removal of Specially Designated Nationals and Blocked Persons Pursuant to the Cuban Assets Control RegulationsPDF
80 FR 74103 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Lead Training, Certification, Accreditation and Authorization ActivitiesPDF
80 FR 74133 - Certain Welded Line Pipe From Korea and TurkeyPDF
80 FR 73977 - Transmission Operations Reliability Standards and Interconnection Reliability Operations and Coordination Reliability StandardsPDF
80 FR 74189 - Petition for Exemption; Summary of Petition Received; Israel Aerospace Industries LtdPDF
80 FR 73995 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision to the Definition of Volatile Organic CompoundPDF
80 FR 74148 - Product Change-Priority Mail Express Negotiated Service AgreementPDF
80 FR 74148 - Product Change-Priority Mail Negotiated Service AgreementPDF
80 FR 74067 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision to the Definition of Volatile Organic CompoundPDF
80 FR 74130 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
80 FR 74068 - Oil and Natural Gas Sector: National Emission Standards for Hazardous Air PollutantsPDF
80 FR 74217 - Proposed Collection; Comment Request for Information Collection ToolsPDF
80 FR 74134 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
80 FR 73943 - Appraisals for Higher-Priced Mortgage Loans Exemption ThresholdPDF
80 FR 74147 - New Postal ProductPDF
80 FR 74164 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
80 FR 74177 - ETF Series Solutions and AlphaClone, Inc.; Notice of ApplicationPDF
80 FR 73947 - Truth in Lending (Regulation Z)PDF
80 FR 74181 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of FeesPDF
80 FR 74179 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Schedule of FeesPDF
80 FR 74175 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Market Order Spread ProtectionPDF
80 FR 74151 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees SchedulePDF
80 FR 74155 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Rule 2.13, Mandatory Participation in Testing of Backup SystemsPDF
80 FR 74179 - Self-Regulatory Organizations; The Options Clearing Corporation; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Modify The Options Clearing Corporation's Margin Methodology by Incorporating Variations in Implied VolatilityPDF
80 FR 74185 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Order Granting an Extension To Limited Exemption From Rule 612(c) of Regulation NMS in Connection With the Exchange's Retail Price Improvement Program Until December 1, 2016PDF
80 FR 74169 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To Adopt New Equity Trading Rules Relating to Auctions for Pillar, the Exchange's New Trading Technology PlatformPDF
80 FR 74153 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Adopting a Rule Relating to Fingerprint-Based Background Checks of Directors, Officers, Employees, and OthersPDF
80 FR 74167 - Self-Regulatory Organizations: Notice of Filing and Immediate Effectiveness of a Proposed Rule Change by Miami International Securities Exchange LLC To Amend Exchange Rule 519PDF
80 FR 74215 - R. J. Corman Railroad Company/Carolina Lines, LLC-Acquisition and Operation Exemption-The Baltimore and Annapolis Railroad Company d/b/a Carolina Southern Railroad CompanyPDF
80 FR 74184 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to BX PRISMPDF
80 FR 74169 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change Amending NYSE Arca Equities Rule 8.600 To Adopt Generic Listing Standards for Managed Fund SharesPDF
80 FR 74158 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Establishing Fees for the NYSE Integrated FeedPDF
80 FR 74165 - Self-Regulatory Organizations; NASDAQ OMX BX, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Period for the Retail Price Improvement Program Until December 1, 2016PDF
80 FR 74149 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Technical Disconnect MechanismPDF
80 FR 74186 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Technical Disconnect MechanismPDF
80 FR 74114 - Advisory Committee on Interdisciplinary, Community-Based Linkages; Notice of MeetingPDF
80 FR 74222 - Commission on Care; Notice of MeetingPDF
80 FR 73945 - Consumer Leasing (Regulation M)PDF
80 FR 74112 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 74071 - Agency Information Collection Activities: Proposed Collection; Comment Request-Federal Claims Collection Methods for Supplemental Nutrition Assistance Program Recipient ClaimsPDF
80 FR 74020 - Energy Conservation Program: Test Procedures for Portable Air ConditionersPDF
80 FR 74042 - Airworthiness Directives; Airbus AirplanesPDF
80 FR 74045 - Airworthiness Directives; Airbus AirplanesPDF
80 FR 74056 - Airworthiness Directives; Dassault Aviation AirplanesPDF
80 FR 74047 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 74039 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
80 FR 74058 - Airworthiness Directives; Airbus AirplanesPDF
80 FR 74124 - Gila River Indian Community; Amendments to Alcoholic Beverages OrdinancePDF
80 FR 74213 - Hazardous Materials: Actions on Special Permit ApplicationsPDF
80 FR 74212 - Hazardous Materials: Notice of Application for Special PermitsPDF
80 FR 74210 - Hazardous Materials: Notice of Application for Modification of Special PermitPDF
80 FR 74121 - Federal Property Suitable as Facilities To Assist the HomelessPDF
80 FR 74213 - Hazardous Materials: Delayed ApplicationsPDF
80 FR 74061 - Proposed Amendment of Class C Airspace; Capital Region International Airport, MIPDF
80 FR 73955 - Airworthiness Directives; SOCATA AirplanesPDF
80 FR 73957 - Airworthiness Directives; Viking Air Limited AirplanesPDF
80 FR 73963 - Airworthiness Directives; Fokker Services B.V. AirplanesPDF
80 FR 73960 - Airworthiness Directives; Airbus AirplanesPDF
80 FR 74063 - Proposed Amendment of Class D and Class E Airspace; Walla Walla, WAPDF
80 FR 74004 - Standards of Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts From Outside SourcesPDF
80 FR 73949 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 74669 - Final Environmental Impact Statement and Record of Decision for the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption; AvailabilityPDF
80 FR 74569 - Accreditation of Third-Party Certification Bodies To Conduct Food Safety Audits and To Issue CertificationsPDF
80 FR 74353 - Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human ConsumptionPDF
80 FR 74225 - Foreign Supplier Verification Programs for Importers of Food for Humans and AnimalsPDF

Issue

80 228 Friday, November 27, 2015 Contents Agriculture Agriculture Department See

Food and Nutrition Service

See

National Agricultural Statistics Service

Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74091 2015-30126 Bonneville Bonneville Power Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Badge Replacement Request Form, 74098-74099 2015-30220 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Appraisals for Higher-Priced Mortgage Loans Exemption Threshold, 73943-73945 2015-30097 Consumer Lending, 73945-73947 2015-30071 Truth in Lending, 73947-73949 2015-30091 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74106-74111 2015-30130 2015-30131 2015-30132 Requests for Nominations: Board of Scientific Counselors, National Institute for Occupational Safety and Health, 74111-74112 2015-30124 Board of Scientific Counselors, Office of Infectious Diseases, 74112 2015-30123 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System Policy Changes and Fiscal Year 2016 Rates; etc., 73998-73999 2015-30248 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74112-74113 2015-30070 Commerce Commerce Department See

National Oceanic and Atmospheric Administration

See

National Technical Information Service

See

National Telecommunications and Information Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 74087-74088 2015-30145 Comptroller Comptroller of the Currency RULES Appraisals for Higher-Priced Mortgage Loans Exemption Threshold, 73943-73945 2015-30097 Consumer Product Consumer Product Safety Commission NOTICES Settlement Agreements and Orders: Philips Lighting North America Corp., 74088-74091 2015-30129 Defense Department Defense Department See

Army Department

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Freight Classification Description, 74105-74106 2015-30141 Arms Sales, 74092-74098 2015-30176 2015-30185 2015-30195 Meetings: National Commission on the Future of the Army, 74091-74092 2015-30165
Education Department Education Department RULES Program Integrity Issues, 73991-73995 2015-30158 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reporting and Performance Standards System for Migrant and Seasonal Farmworker Programs, 74140-74141 2015-30175 States' Applications for Relief from Tax Credit Reductions under the Federal Unemployment Tax Act, 74144 2015-30177 Worker Adjustment Assistance Eligibility; Determinations, 74137-74144 2015-30174 2015-30180 Worker Adjustment Assistance Eligibility; Investigations, 74135-74137 2015-30173 2015-30179 Energy Department Energy Department See

Bonneville Power Administration

See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Program: Test Procedures for Portable Air Conditioners, 74020-74039 2015-30057 NOTICES Charter Renewals: National Coal Council, 74099 2015-30163
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Virginia; Revision to the Definition of Volatile Organic Compound, 73995-73998 2015-30108 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Virginia; Revision to the Definition of Volatile Organic Compound, 74067-74068 2015-30105 Oil and Natural Gas Sector; National Emission Standards for Hazardous Air Pollutants, 74068-74070 2015-30103 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Lead Training, Certification, Accreditation and Authorization Activities, 74103 2015-30114 Environmental Impact Statements; Availability, etc.; Weekly Receipts, 74104 2015-30183 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 73960-73963 2015-29851 Fokker Services B.V. Airplanes, 73963-73965 2015-29852 SOCATA Airplanes, 73955-73957 2015-29876 The Boeing Company Airplanes, 73949-73955 2015-28824 Viking Air Limited Airplanes, 73957-73960 2015-29855 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 2015-30006 74042-74047, 74058-74061 2015-30023 2015-30024 Dassault Aviation Airplanes, 74056-74058 2015-30022 Fokker Services B.V. Airplanes, 74039-74042 2015-30007 The Boeing Company Airplanes, 74047-74056 2015-30008 2015-30120 Proposed Amendment of Class C Airspace: Capital Region International Airport, MI, 74061-74063 2015-29912 Proposed Amendment of Class D and Class E Airspace: Walla Walla, WA, 74063-74064 2015-29784 NOTICES Petitions for Exemptions; Summaries: Israel Aerospace Industries Ltd, 74189-74190 2015-30109 Federal Communications Federal Communications Commission NOTICES Instructions for Application to Participate in the Reverse Auction, 74104 2015-30298 Intent to Terminate 214 Authorization, 74104-74105 2015-30232 Federal Energy Federal Energy Regulatory Commission RULES Third-Party Provision of Primary Frequency Response Service, 73965-73977 2015-30140 Transmission Operations Reliability Standards and Interconnection Reliability Operations and Coordination Reliability Standards, 73977-73991 2015-30110 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74101-74103 2015-30139 Combined Filings, 74099-74101 2015-30135 2015-30136 Filings: City of West Memphis, AR, 74100 2015-30137 Conway Corp., 74100 2015-30138 Federal Motor Federal Motor Carrier Safety Administration NOTICES Commercial Driver's Licenses; Exemption Applications: Oregon Department of Transportation, 74199-74200 2015-30143 Qualification of Drivers; Exemption Applications: Atlantic and Pacific Freightways, Inc., 74202-74203 2015-30152 Diabetes, 74196-74199 2015-30164 Diabetes Mellitus, 74190-74196 2015-30151 Implantable Cardioverter Defibrillators, 74200-74202 2015-30156 Federal Reserve Federal Reserve System RULES Appraisals for Higher-Priced Mortgage Loans Exemption Threshold, 73943-73945 2015-30097 Consumer Lending, 73945-73947 2015-30071 Truth in Lending, 73947-73949 2015-30091 NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 74105 2015-30146 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 74105 2015-30147 Financial Crimes Financial Crimes Enforcement Network PROPOSED RULES Imposition of Special Measures: FBME Bank Ltd., Formerly Known as the Federal Bank of the Middle East Ltd.; Financial Institution of Primary Money Laundering Concern, 74064-74067 2015-30119 Food and Drug Food and Drug Administration RULES Accreditation of Third-Party Certification Bodies To Conduct Food Safety Audits and To Issue Certifications, 74570-74667 2015-28160 Environmental Impact Statements; Availability, etc.: Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 74670-74672 2015-28161 Foreign Supplier Verification Programs for Importers of Food for Humans and Animals, 74226-74352 2015-28158 Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, 74354-74568 2015-28159 NOTICES Meetings: Vaccines and Related Biological Products Advisory Committee, 74113-74114 2015-30121 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Claims Collection Methods for Supplemental Nutrition Assistance Program Recipient Claims, 74071-74073 2015-30068 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 74215-74217 2015-30115 2015-30116 2015-30117 2015-30118 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Freight Classification Description, 74105-74106 2015-30141 Government Ethics Government Ethics Office PROPOSED RULES Standards of Ethical Conduct for Employees of the Executive Branch: Solicitation and Acceptance of Gifts From Outside Sources, 74004-74018 2015-29208 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Meetings: Advisory Committee on Interdisciplinary, Community-Based Linkages, 74114-74115 2015-30073 Homeland Homeland Security Department See

U.S. Immigration and Customs Enforcement

PROPOSED RULES Privacy Act; Implementation of Exemptions, 74018-74020 2015-30304 NOTICES Privacy Act; Systems of Records, 74116-74120 2015-30303
Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities To Assist the Homeless, 74121-74123 2015-29951 Indian Affairs Indian Affairs Bureau NOTICES Gila River Indian Community Alcoholic Beverages Ordinance, 74124-74129 2015-30001 Petitions for Federal Acknowledgment of American Indian Tribes, 74123-74124 2015-30228 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

See

Reclamation Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74217-74218 2015-30101 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Welded Line Pipe From Korea and Turkey, 74133 2015-30113 Meetings; Sunshine Act, 74134 2015-30275 Justice Department Justice Department NOTICES Proposed Consent Decrees Under the Clean Air Act, 74134-74135 2015-30099 Proposed Stipulation and Agreed Judgment Under the System Unit Resource Protection Act, 74134 2015-30161 Labor Department Labor Department See

Employment and Training Administration

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Meetings: Sagebrush Focal Areas Proposed Withdrawal, Oregon; Cancellation, 74129 2015-30222 Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel AKARI II, 74207-74208 2015-30203 Vessel CAROBELLE, 74208-74209 2015-30200 Vessel CHEYENNE, 74204-74205 2015-30202 Vessel HOYA SAXA, 74206 2015-30213 Vessel LOCURA, 74203-74204 2015-30204 Vessel MAGNA CARTA, 74208 2015-30211 Vessel MUSIC, 74205 2015-30209 Vessel TRINITY, 74207 2015-30212 Vessel VAN DUTCH, 74205-74206 2015-30210 Vessel VELLAMO, 74206-74207 2015-30201 Requests for Applications: Potential Award of Maritime Security Program Operating Agreements, 74209-74210 2015-30199 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Freight Classification Description, 74105-74106 2015-30141 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74073 2015-30159 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Agricultural Health Study—A Prospective Cohort Study of Cancer and Other Disease Among Men and Women in Agriculture, 74115-74116 2015-30219 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; Accountability Measure and Closure for King Mackerel in the Florida West Coast Northern Subzone, 74001-74002 2015-30192 Reef Fish Fishery of the Gulf of Mexico; Red Snapper Commercial Quota Retention, 73999-74001 2015-30194 Fisheries of the Western Pacific: Pacific Island Pelagic Fisheries; Commonwealth of the Northern Mariana Islands Longline Bigeye Tuna Fishery; Closure, 74002-74003 2015-30193 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74074-74075 2015-30166 Meetings: Caribbean Fishery Management Council, 74075-74076 2015-30171 Fisheries of the Caribbean; Southeast Data, Assessment, and Review, 74076 2015-30170 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review, 74074 2015-30169 Gulf of Mexico Fishery Management Council, 74073-74074 2015-30186 Permit Applications: Endangered Species; File Nos. 19331 and 19642, 74085 2015-30133 Takes of Marine Mammals Incidental to Specified Activities: Marine Mammals Incidental to a Pier Maintenance Project, 74076-74085 2015-30125 National Park National Park Service NOTICES Environmental Impact Statements; Availability, etc.: Backcountry Management Plan, Grand Canyon National Park, AZ, 74131-74132 2015-30162 Wilderness Stewardship Plan, Yosemite National Park, Madera, Mariposa, and Tuolumne, CA, 74129-74130 2015-30160 National Register of Historic Places: Pending Nominations and Related Actions, 74130-74131 2015-30104 National Science National Science Foundation RULES Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 73943 2015-30144 NOTICES Meetings; Sunshine Act, 74146 2015-30335 Permit Applications: Antarctic Conservation Act, 74147 2015-30148 Antarctic Conservation Act; Modifications, 74147 2015-30149 National Technical National Technical Information Service NOTICES Meetings: Advisory Board, 74085-74086 2015-30198 National Telecommunications National Telecommunications and Information Administration NOTICES Establishment and Call for Nominations: Digital Economy Board of Advisors, 74086-74087 2015-30226 Navy Navy Department RULES Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General; Correction, 73991 2015-30190 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Renewal of Recognition, Applications for Expansion of Recognition: QPS Evaluation Services, Inc., 74144-74146 2015-30168 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Special Permit Applications: Actions, 74213-74215 2015-29957 Delayed Applications, 74213 2015-29937 Hazardous Materials, 74212 2015-29956 Modifications, 74210-74211 2015-29955 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 74147-74148 2015-30094 2015-30150 Postal Service Postal Service NOTICES Product Changes: Priority Mail Express Negotiated Service Agreement, 74148 2015-30107 Priority Mail Negotiated Service Agreement, 74148 2015-30106 Reclamation Reclamation Bureau NOTICES Central Valley Project Improvement Act Water Management Plans; Availability, 74132-74133 2015-30227 Securities Securities and Exchange Commission NOTICES Applications for Deregistration, 74164-74165 2015-30093 Applications: ETF Series Solutions and AlphaClone, Inc, 74177-74178 2015-30092 Self-Regulatory Organizations; Proposed Rule Changes: C2 Options Exchange, Inc., 74186-74188 2015-30074 Chicago Board Options Exchange, Inc., 74149-74153 2015-30075 2015-30087 International Securities Exchange, LLC, 74181-74184 2015-30090 ISE Gemini, LLC, 74179-74181 2015-30089 Miami International Securities Exchange LLC, 74167-74168 2015-30081 NASDAQ OMX BX, Inc., 74165-74167, 74184-74186 2015-30076 2015-30079 2015-30084 NASDAQ Stock Market, LLC, 74175-74177 2015-30088 National Stock Exchange, Inc., 74155-74158 2015-30086 New York Stock Exchange LLC, 74158-74164 2015-30077 NYSE Arca, Inc., 74153-74155, 74169-74175 2015-30078 2015-30082 2015-30083 The Options Clearing Corp., 74179 2015-30085 Small Business Small Business Administration NOTICES Disaster Declarations: Colorado; Amendment 1, 74188-74189 2015-30233 South Carolina, 74189 2015-30234 Surface Transportation Surface Transportation Board NOTICES Acquisition and Operation Exemptions: R. J. Corman Railroad Company/Carolina Lines, LLC From The Baltimore and Annapolis Railroad Co. d/b/a Carolina Southern Railroad Co, 74215 2015-30080 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Maritime Administration

See

Pipeline and Hazardous Materials Safety Administration

See

Surface Transportation Board

Treasury Treasury Department See

Comptroller of the Currency

See

Financial Crimes Enforcement Network

See

Foreign Assets Control Office

See

Internal Revenue Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 74218-74222 2015-30142 2015-30178 2015-30196
Immigration U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Student and Exchange Visitor Information System, 74120-74121 2015-30127 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Commission on Care, 74222-74223 2015-30072 Separate Parts In This Issue Part II Health and Human Services Department, Food and Drug Administration, 74226-74352 2015-28158 Part III Health and Human Services Department, Food and Drug Administration, 74354-74568 2015-28159 Part IV Health and Human Services Department, Food and Drug Administration, 74570-74667 2015-28160 Part V Health and Human Services Department, Food and Drug Administration, 74670-74672 2015-28161 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

80 228 Friday, November 27, 2015 Rules and Regulations NATIONAL SCIENCE FOUNDATION 2 CFR Part 2500 RIN 3145-AA57 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards AGENCY:

National Science Foundation.

ACTION:

Final rule.

SUMMARY:

NSF has adopted as final its interim final rule outlining uniform administrative requirements, cost principles, and audit requirements for Federal awards, pursuant to the approval NSF received from OMB to implement requirements via use of a policy, rather than a regulation. In order to establish a single location for each of the Departments' and Agencies' implementation of the Uniform Guidance, NSF has provided a link to its policy implementation of OMB's Uniform Guidance for inclusion in this issuance.

DATES:

This rule is effective on November 27, 2015.

ADDRESSES:

The Foundation's implementation document, the NSF Proposal and Award Policies and Procedures Guide, may be found at: http://www.nsf.gov/pubs/policydocs/pappguide/nsf16001/?org=NSF.

FOR FURTHER INFORMATION CONTACT:

Erin Dawson, Assistant General Counsel, Office of the General Counsel, National Science Foundation, 4201 Wilson Boulevard, Room 1265, Arlington, VA 22230; (703) 292-8060, [email protected] (please include RIN 3145-AA57 in the subject line of the message).

SUPPLEMENTARY INFORMATION:

On December 19, 2014, the Office of Management and Budget (OMB) published an Interim Final Rule that implemented for all Federal award-making agencies, including NSF, OMB's final guidance on Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 79 FR 75871. OMB published the uniform rules as 2 CFR part 200. As part of that rulemaking, NSF adopted part 200 through an agency-specific addendum at 2 CFR part 2500. The Foundation's implementation document, the NSF Proposal and Award Policies and Procedures Guide, may be found at: http://www.nsf.gov/pubs/policydocs/pappguide/nsf16001/?org=NSF.

NSF received no comments in response to its adoption of the Interim Final Rule. Therefore, 2 CFR part 2500 as described in the Interim Final Rule, is adopted with no changes.

Regulatory Findings

For the regulatory findings regarding this rulemaking, please refer to the analysis prepared by OMB in the Interim Final Rule, which is incorporated herein. 79 FR at 75876.

Accordingly, the Interim Final Rule adding 2 CFR part 2500, which was published at 79 FR 75871 on December 19, 2014, is adopted as a Final Rule without change.

Dated: November 20, 2015. Lawrence Rudolph, General Counsel, National Science Foundation.
[FR Doc. 2015-30144 Filed 11-25-15; 8:45 am] BILLING CODE 7555-01-P
DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 34 [Docket No. OCC-2015-0021] RIN 1557-AD99 FEDERAL RESERVE SYSTEM 12 CFR Part 226 [Docket No. R-1443] RIN 7100-AD 90 BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 RIN 3170-AA11 Appraisals for Higher-Priced Mortgage Loans Exemption Threshold AGENCY:

Board of Governors of the Federal Reserve System (Board); Bureau of Consumer Financial Protection (Bureau); and Office of the Comptroller of the Currency, Treasury (OCC).

ACTION:

Final rule; official interpretations; technical amendment.

SUMMARY:

The OCC, the Board and the Bureau are publishing final rules amending the official interpretations for their regulations that implement section 129H of the Truth in Lending Act (TILA). Section 129H of TILA establishes special appraisal requirements for “higher-risk mortgages,” termed “higher-priced mortgage loans” or “HPMLs” in the agencies' regulations. The OCC, the Board, the Bureau, the Federal Deposit Insurance Corporation (FDIC), the National Credit Union Administration (NCUA) and the Federal Housing Finance Agency (FHFA) (collectively, the Agencies) issued joint final rules implementing these requirements, effective January 18, 2014. The Agencies' rules exempted, among other loan types, transactions of $25,000 or less, and required that this loan amount be adjusted annually based on any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). If there is no annual percentage increase in the CPI-W, the OCC, the Board and the Bureau will not adjust this exemption threshold from the prior year. Based on the annual percentage decrease in the CPI-W as of June 1, 2015, the exemption threshold will remain at $25,500 through December 31, 2016.

DATES:

This final rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

OCC: Beth Knickerbocker, Counsel, Legislative & Regulatory Activities Division, at (202) 649-5490; for persons who are deaf and hard of hearing, TTY, (202) 649-5597.

Board: Lorna M. Neill, Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.

Bureau: James Wylie, Counsel, Office of Regulations, Bureau of Consumer Financial Protection, at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) amended the Truth in Lending Act (TILA) to add special appraisal requirements for “higher-risk mortgages.” 1 In January 2013, the Agencies issued a joint final rule implementing these requirements and adopted the term “higher-priced mortgage loan” (HPML) instead of “higher-risk mortgage” (the January 2013 Final Rule).2 In July 2013, the Agencies proposed additional exemptions from the January 2013 Final Rule (the 2013 Supplemental Proposed Rule).3 In December 2013, the Agencies issued a supplemental final rule with additional exemptions from the January 2013 Final Rule (the December 2013 Supplemental Final Rule).4 Among other exemptions, the Agencies adopted an exemption from the new HPML appraisal rules for transactions of $25,000 or less, to be adjusted annually for inflation.

1 Public Law 111-203 section 1471, 124 Stat. 1376 (2010), codified at TILA section 129H, 15 U.S.C. 1639h.

2 78 FR 10368 (Feb. 13, 2013).

3 78 FR 48547 (Aug. 8, 2013).

4 78 FR 78520 (Dec. 26, 2013).

The Bureau's, the OCC's, and the Board's versions of the January 2013 Final Rule and December 2013 Supplemental Final Rule and corresponding official interpretations are substantively identical. The FDIC, NCUA, and FHFA adopted the Bureau's version of the regulations under the January 2013 Final Rule and December 2013 Supplemental Final Rule.5

5See NCUA: 12 CFR 722.3; FHFA: 12 CFR part 1222. Although the FDIC adopted the Bureau's version of the regulation, the FDIC did not issue its own regulation containing a cross-reference to the Bureau's version. See 78 FR 10368, 10370 (Feb. 13, 2013).

Section 34.203(b)(2) of Subpart G of part 34 of the OCC's regulations, § 226.43(b)(2) of the Board's Regulation Z, and § 1026.35(c)(2)(ii) of the Bureau's Regulation Z, and their accompanying interpretations, provide that the exemption threshold for smaller loans will be adjusted effective January 1 of each year based on any annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) that was in effect on the preceding June 1. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.6 If there is no annual percentage increase in the CPI-W, the Agencies will not adjust the threshold amounts from the prior year.7

6See 12 CFR part 34, Appendix C to Subpart G, comment 203(b)(2)-1 (OCC); 12 CFR part 226, Supplement I, comment 43(b)(2)-1 (Board); and 12 CFR part 1026, Supplement I, comment 35(c)(2)(ii)-1 (Bureau).

7See 78 FR 48547, 48565 (Aug. 8, 2013) (“Thus, under the proposal, if the CPI-W decreases in an annual period, the percentage increase would be zero, and the dollar amount threshold for the exemption would not change.”).

II. Adjustment and Commentary Revision

Effective January 1, 2016, the exemption threshold amount remains at $25,500. This threshold amount is based on the CPI-W in effect on June 1, 2015, which was reported on May 22, 2015. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a Consumer Price Index change on June 1; adjustments are reported in the middle of the month. The CPI-W is a subset of the Consumer Price Index for All Urban Consumers (CPI-U) and represents approximately 28 percent of the U.S. population. Because there was a 0.8 percent decrease in the CPI-W from April 2014 to April 2015, the OCC, the Board, and the Bureau are not adjusting the exemption threshold amount. The OCC, the Board, and the Bureau are revising the interpretations to their respective regulations to add new comments as follows:

• Comment 203(b)(2)-1.iii to 12 CFR part 34, Appendix C to Subpart G (OCC);

• Comment 43(b)(2)-1.iii to Supplement I of 12 CFR part 226 (Board); and

• Comment 35(c)(2)(ii)-1.iii in Supplement I of 12 CFR part 1026 (Bureau).

These new comments state that, from January 1, 2016, through December 31, 2016, the threshold amount is $25,500. These revisions are effective January 1, 2016.

III. Administrative Law Matters Administrative Procedure Act

Under the Administrative Procedure Act (APA), notice and opportunity for public comment are not required if an agency finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest.8 The amendment in this notice is technical and applies the method previously set forth in the 2013 Supplemental Proposed Rule.9 For these reasons, the OCC, the Board, and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendments are adopted in final form.

8 5 U.S.C. 553(b)(B).

9See 78 FR 48547, 48565 (Aug. 8, 2013) (“Thus, under the proposal, if the CPI-W decreases in an annual period, the percentage increase would be zero, and the dollar amount threshold for the exemption would not change.”).

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.10 As noted previously, the Agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

10 5 U.S.C. 603 and 604.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995,11 the Agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

11 44 U.S.C. 3506; 5 CFR part 1320.

Unfunded Mandates Reform Act

The OCC analyzes proposed rules for the factors listed in Section 202 of the Unfunded Mandates Reform Act of 1995, before promulgating a final rule for which a general notice of proposed rulemaking was published.12 As discussed above, the OCC has determined that the publication of a general notice of proposed rulemaking is unnecessary.

12 2 U.S.C. 1532.

List of Subjects 12 CFR Part 34

Appraisal, Appraiser, Banks, Banking, Consumer protection, Credit, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

12 CFR Part 226

Advertising, Appraisal, Appraiser, Consumer protection, Credit, Federal Reserve System, Mortgages, Reporting and recordkeeping requirements, Truth in lending.

12 CFR Part 1026

Advertising, Appraisal, Appraiser, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency Authority and Issuance

For the reasons set forth in the preamble, the OCC amends 12 CFR part 34 as set forth below:

PART 34—REAL ESTATE LENDING AND APPRAISALS 1. The authority citation for part 34 continues to read as follows: Authority:

12 U.S.C. 1 et seq., 25b, 29, 93a, 371, 1463, 1464, 1465,1701j-3, 1828(o), 3331 et seq., 5101 et seq., 5412(b)(2)(B) and 15 U.S.C. 1639h.

Subpart G—Appraisals for Higher-Priced Mortgage Loans 2. In Appendix C to Subpart G, under Section 34.203—Appraisals for Higher-Priced Mortgage Loans, paragraph 34.203(b)(2)-1.iii is added to read as follows: Appendix C to Subpart G—OCC Interpretations Section 34.203—Appraisals for Higher-Priced Mortgage Loans 34.203(b) Exemptions Paragraph 34.203(b)(2)

1. Threshold Amount. * * *

iii. From January 1, 2016, through December 31, 2016, the threshold amount is $25,500.

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM Authority and Issuance

For the reasons set forth in the preamble, the Board amends Regulation Z, 12 CFR part 226, as set forth below:

PART 226—TRUTH IN LENDING (REGULATION Z) 3. The authority citation for part 226 continues to read as follows: Authority:

12 U.S.C. 3806; 15 U.S.C. 1604, 1637(c)(5), 1639(l), and 1639h; Pub. L. 111-24, section 2, 123 Stat. 1734; Pub. L. 111-203, 124 Stat. 1376.

4. In Supplement I to part 226, under Section 226.43—Appraisals for Higher-Risk Mortgage Loans, under paragraph 43(b)(2), paragraph 43(b)(2)-1.iii is added to read as follows: Supplement I to Part 226—Official Staff Interpretations Subpart E—Special Rules for Certain Home Mortgage Transactions Section 226.43—Appraisals for Higher-Risk Mortgage Loans 43(b) Exemptions Paragraph 43(b)(2)

1. * * *

iii. From January 1, 2016, through December 31, 2016, the threshold amount is $25,500.

BUREAU OF CONSUMER FINANCIAL PROTECTION Authority and Issuance

For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

PART 1026—TRUTH IN LENDING (REGULATION Z) 5. The authority citation for part 1026 continues to read as follows: Authority:

12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq.

6. In Supplement I to part 1026, under Section 1026.35—Requirements for Higher-Priced Mortgage Loans, under paragraph 35(c)(2)(ii), paragraph 35(c)(2)(ii)-1.iii is added to read as follows: Supplement I to Part 1026—Official Interpretations Subpart E—Special Rules for Certain Home Mortgage Transactions Section 1026.35—Requirements for Higher-Priced Mortgage Loans 35(c) Appraisals 35(c)(2) Exemptions Paragraph 35(c)(2)(ii)

1. * * *

iii. From January 1, 2016, through December 31, 2016, the threshold amount is $25,500.

Dated: November 19, 2015. Amy Friend, Senior Deputy Comptroller and Chief Counsel.

By order of the Board of Governors of the Federal Reserve System, acting through the Secretary of the Board under delegated authority, November 18, 2015.

Robert deV. Frierson, Secretary of the Board. Dated: October 8, 2015. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2015-30097 Filed 11-25-15; 8:45 am] BILLING CODE 4810-33-P; 6210-01-P; 4810-AM-P
FEDERAL RESERVE SYSTEM 12 CFR Part 213 [Docket No. R-1519] RIN 7100 AE-35 BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1013 RIN 3170-AA06 Consumer Leasing (Regulation M) AGENCIES:

Board of Governors of the Federal Reserve System (Board); and Bureau of Consumer Financial Protection (Bureau).

ACTION:

Final rules, official interpretations and commentary.

SUMMARY:

The Board and the Bureau are publishing final rules amending the official interpretations and commentary for the agencies' regulations that implement the Consumer Leasing Act (CLA). The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) amended the CLA by requiring that the dollar threshold for exempt consumer leases be adjusted annually by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). If there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust this exemption threshold from the prior year. Based on the annual percentage decrease in the CPI-W as of June 1, 2015, the exemption threshold will remain at $54,600 through December 31, 2016.

Because the Dodd-Frank Act also requires similar adjustments in the Truth in Lending Act's threshold for exempt consumer credit transactions, the Board and the Bureau are making similar amendments to each of their respective regulations implementing the Truth in Lending Act elsewhere in this issue of the Federal Register.

DATES:

This final rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Board: Vivian W. Wong, Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.

Bureau: James Wylie, Counsel, Office of Regulations, Bureau of Consumer Financial Protection, at (202) 435-7700.

SUPPLEMENTARY INFORMATION: I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (Dodd-Frank Act) increased the threshold in the Consumer Leasing Act (CLA) for exempt consumer leases from $25,000 to $50,000, effective July 21, 2011.1 In addition, the Dodd-Frank Act requires that this threshold be adjusted annually for inflation by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics. In April 2011, the Board issued a final rule amending Regulation M (which implements the CLA) consistent with these provisions of the Dodd-Frank Act along with a similar final rule amending Regulation Z (which implements the Truth in Lending Act) (collectively, the Board Final Threshold Rules).2

1 Public Law 111-203 section 1100E, 124 Stat. 1376 (2010).

2 76 FR 18349 (Apr. 4, 2011); 76 FR 18354 (Apr. 4, 2011).

Title X of the Dodd-Frank Act transferred rulemaking authority for a number of consumer financial protection laws from the Board to the Bureau, effective July 21, 2011. In connection with this transfer of rulemaking authority, the Bureau issued its own Regulation M implementing the CLA in an interim final rule, 12 CFR part 1013 (Bureau Interim Final Rule).3 The Bureau Interim Final Rule substantially duplicated the Board's Regulation M, including the revisions to the threshold for exempt transactions made by the Board in April 2011. Although the Bureau has the authority to issue rules to implement the CLA for most entities, the Board retains authority to issue rules under the CLA for certain motor vehicle dealers covered by section 1029(a) of the Dodd-Frank Act, and the Board's Regulation M continues to apply to those entities.4

3 76 FR 78500 (Dec. 19, 2011).

4 Section 1029(a) of the Dodd-Frank Act states: “Except as permitted in subsection (b), the Bureau may not exercise any rulemaking, supervisory, enforcement, or any other authority . . . over a motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.” 12 U.S.C. 5519(a). Section 1029(b) of the Dodd-Frank Act states: “Subsection (a) shall not apply to any person, to the extent that such person (1) provides consumers with any services related to residential or commercial mortgages or self-financing transactions involving real property; (2) operates a line of business (A) that involves the extension of retail credit or retail leases involving motor vehicles; and (B) in which (i) the extension of retail credit or retail leases are provided directly to consumers; and (ii) the contract governing such extension of retail credit or retail leases is not routinely assigned to an unaffiliated third party finance or leasing source; or (3) offers or provides a consumer financial product or service not involving or related to the sale, financing, leasing, rental, repair, refurbishment, maintenance, or other servicing of motor vehicles, motor vehicle parts, or any related or ancillary product or service.” 12 U.S.C. 5519(b).

Section 213.2(e)(1) of the Board's Regulation M and § 1013.2(e)(1) of the Bureau's Regulation M, and their accompanying commentaries, provide that the exemption threshold will be adjusted annually effective January 1 of each year based on any annual percentage increase in the CPI-W that was in effect on the preceding June 1. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.5 As stated in the Board Final Threshold Rules, if there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year.6

5See comments 2(e)-9 in Supplements I of 12 CFR part 213 and 12 CFR part 1013.

6 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

II. Adjustment and Commentary Revision

Effective January 1, 2016, the exemption threshold amount remains at $54,600. This is based on the CPI-W in effect on June 1, 2015, which was reported on May 22, 2015. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. Because the CPI-W reported on May 22, 2015 reflects a 0.8 percent decrease in the CPI-W from April 2014 to April 2015, the Board and the Bureau are not adjusting the exemption threshold amount. The Board and the Bureau are revising the commentaries to their respective regulations to add new comment 2(e)-9.vii to state that, from January 1, 2016 through December 31, 2016, the threshold amount is $54,600. These revisions are effective January 1, 2016.

III. Administrative Law Matters Administrative Procedure Act

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.7 The amendment in this notice is technical and applies the method previously set forth in the Board Final Threshold Rules.8 For these reasons, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendments are adopted in final form.

7See 5 U.S.C. 553(b)(B).

8See supra note 6.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.9 As noted previously, the agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

9See 5 U.S.C. 603 and 604.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995,10 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

10 44 U.S.C. 3506; 5 CFR part 1320.

List of Subjects 12 CFR Part 213

Advertising, Consumer leasing, Consumer protection, Federal Reserve System, Reporting and recordkeeping requirements.

12 CFR Part 1013

Advertising, Consumer leasing, Reporting and recordkeeping requirements.

Board of Governors of the Federal Reserve System Text of Final Revisions

For the reasons set forth in the preamble, the Board amends Regulation M, 12 CFR part 213, as set forth below:

PART 213—CONSUMER LEASING (REGULATION M) 1. The authority citation for part 213 continues to read as follows: Authority:

15 U.S.C. 1604 and 1667f; Pub. L. 111-203 section 1100E, 124 Stat. 1376.

2. In Supplement I to Part 213, under Section 213.2—Definitions, under 2(e) Consumer Lease, paragraph 9.vii is added to read as follows: Supplement I to Part 213—Official Staff Commentary to Regulation M Section 213.2—Definitions

2(e) Consumer Lease.

9. * * *

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

Bureau of Consumer Financial Protection Authority and Issuance

For the reasons set forth in the preamble, the Bureau amends Regulation M, 12 CFR part 1013, as set forth below:

PART 1013—CONSUMER LEASING (REGULATION M) 3. The authority citation for part 1013 continues to read as follows: Authority:

15 U.S.C. 1604 and 1667f; Pub. L. 111-203 section 1100E, 124 Stat. 1376.

4. In Supplement I to part 1013, under Section 1013.2—Definitions, under 2(e) Consumer Lease, paragraph 9.vii is added to read as follows: Supplement I to Part 1013—Official Interpretations Section 1013.2—Definitions

2(e) Consumer Lease. * * * .

9. * * *

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

By order of the Board of Governors of the Federal Reserve System, November 18, 2015. Robert deV. Frierson, Secretary of the Board. Dated: September 22, 2015. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2015-30071 Filed 11-25-15; 8:45 am] BILLING CODE 4810-AM-P; 6210-01-P
FEDERAL RESERVE SYSTEM 12 CFR Part 226 [Docket No. R-1520] RIN 7100 AE-36 BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 Truth in Lending (Regulation Z) AGENCIES:

Board of Governors of the Federal Reserve System (Board); and Bureau of Consumer Financial Protection (Bureau).

ACTION:

Final rules, official interpretations and commentary.

SUMMARY:

The Board and the Bureau are publishing final rules amending the official interpretations and commentary for the agencies' regulations that implement the Truth in Lending Act (TILA). The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) amended TILA by requiring that the dollar threshold for exempt consumer credit transactions be adjusted annually by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). If there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust this exemption threshold from the prior year. Based on the annual percentage decrease in the CPI-W as of June 1, 2015, the exemption threshold will remain at $54,600 through December 31, 2016.

Because the Dodd-Frank Act also requires similar adjustments in the Consumer Leasing Act's threshold for exempt consumer leases, the Board and the Bureau are making similar amendments to each of their respective regulations implementing the Consumer Leasing Act elsewhere in this issue of the Federal Register.

DATES:

This final rule is effective January 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Board: Vivian W. Wong, Counsel, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, at (202) 452-3667; for users of Telecommunications Device for the Deaf (TDD) only, contact (202) 263-4869.

Bureau: James Wylie, Counsel, Office of Regulations, Bureau of Consumer Financial Protection, at (202) 435-7700.

SUPPLEMENTARY INFORMATION:

I. Background

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) increased the threshold in the Truth in Lending Act (TILA) for exempt consumer credit transactions 1 from $25,000 to $50,000, effective July 21, 2011.2 In addition, the Dodd-Frank Act requires that this threshold be adjusted annually for inflation by the annual percentage increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), as published by the Bureau of Labor Statistics. In April 2011, the Board issued a final rule amending Regulation Z (which implements TILA) consistent with these provisions of the Dodd-Frank Act along with a similar final rule amending Regulation M (which implements the Consumer Leasing Act) (collectively, the Board Final Threshold Rules).3

1 Although consumer credit transactions above the threshold are generally exempt, loans secured by real property or by personal property used or expected to be used as the principal dwelling of a consumer and private education loans are covered by TILA regardless of the loan amount. See 12 CFR 226.3(b)(1)(i) and 12 CFR 1026.3(b)(1)(i).

2 Public Law 111-203 section 1100E, 124 Stat. 1376 (2010).

3 76 FR 18354 (Apr. 4, 2011); 76 FR 18349 (Apr. 4, 2011).

Title X of the Dodd-Frank Act transferred rulemaking authority for a number of consumer financial protection laws from the Board to the Bureau, effective July 21, 2011. In connection with this transfer of rulemaking authority, the Bureau issued its own Regulation Z implementing TILA in an interim final rule, 12 CFR part 1026 (Bureau Interim Final Rule).4 The Bureau Interim Final Rule substantially duplicated the Board's Regulation Z, including the revisions to the threshold for exempt transactions made by the Board in April 2011. Although the Bureau has the authority to issue rules to implement TILA for most entities, the Board retains authority to issue rules under TILA for certain motor vehicle dealers covered by section 1029(a) of the Dodd-Frank Act, and the Board's Regulation Z continues to apply to those entities.5

4 76 FR 79768 (Dec. 22, 2011).

5 Section 1029(a) of the Dodd-Frank Act states: “Except as permitted in subsection (b), the Bureau may not exercise any rulemaking, supervisory, enforcement, or any other authority . . . over a motor vehicle dealer that is predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both.” 12 U.S.C. 5519(a). Section 1029(b) of the Dodd-Frank Act states: “Subsection (a) shall not apply to any person, to the extent that such person (1) provides consumers with any services related to residential or commercial mortgages or self-financing transactions involving real property; (2) operates a line of business (A) that involves the extension of retail credit or retail leases involving motor vehicles; and (B) in which (i) the extension of retail credit or retail leases are provided directly to consumers; and (ii) the contract governing such extension of retail credit or retail leases is not routinely assigned to an unaffiliated third party finance or leasing source; or (3) offers or provides a consumer financial product or service not involving or related to the sale, financing, leasing, rental, repair, refurbishment, maintenance, or other servicing of motor vehicles, motor vehicle parts, or any related or ancillary product or service.” 12 U.S.C. 5519(b).

Section 226.3(b)(1)(ii) of the Board's Regulation Z and § 1026.3(b)(1)(ii) of the Bureau's Regulation Z, and their accompanying commentaries, provide that the exemption threshold will be adjusted annually effective January 1 of each year based on any annual percentage increase in the CPI-W that was in effect on the preceding June 1. Any increase in the threshold amount will be rounded to the nearest $100 increment. For example, if the annual percentage increase in the CPI-W would result in a $950 increase in the threshold amount, the threshold amount will be increased by $1,000. However, if the annual percentage increase in the CPI-W would result in a $949 increase in the threshold amount, the threshold amount will be increased by $900.6 As stated in the Board Final Threshold Rules, if there is no annual percentage increase in the CPI-W, the Board and Bureau will not adjust the exemption threshold from the prior year.7

6See comments 3(b)-1 in Supplements I of 12 CFR part 226 and 12 CFR part 1026.

7 76 FR 18354, 18355 n.1 (Apr. 4, 2011) (“[A]n annual period of deflation or no inflation would not require a change in the threshold amount.”).

II. Adjustment and Commentary Revision

Effective January 1, 2016, the exemption threshold amount remains at $54,600. This is based on the CPI-W in effect on June 1, 2015, which was reported on May 22, 2015. The Bureau of Labor Statistics publishes consumer-based indices monthly, but does not report a CPI change on June 1; adjustments are reported in the middle of the month. The CPI-W is a subset of the CPI-U index (based on all urban consumers) and represents approximately 28 percent of the U.S. population. Because the CPI-W reported on May 22, 2015 reflects a 0.8 percent decrease in the CPI-W from April 2014 to April 2015, the Board and the Bureau are not adjusting the exemption threshold amount. The Board and the Bureau are revising the commentaries to their respective regulations to add new comment 3(b)-1.vii to state that, from January 1, 2016 through December 31, 2016, the threshold amount is $54,600. These revisions are effective January 1, 2016.

III. Administrative Law Matters Administrative Procedure Act

Under the Administrative Procedure Act, notice and opportunity for public comment are not required if the Board and the Bureau find that notice and public comment are impracticable, unnecessary, or contrary to the public interest.8 The amendment in this notice is technical and applies the method previously set forth in the Board Final Threshold Rules.9 For these reasons, the Board and the Bureau have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. Therefore, the amendments are adopted in final form.

8 5 U.S.C. 553(b)(B).

9See supra note 7.

Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking where a general notice of proposed rulemaking is not required.10 As noted previously, the agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

10 5 U.S.C. 603 and 604.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995,11 the agencies reviewed this final rule. No collections of information pursuant to the Paperwork Reduction Act are contained in the final rule.

11 44 U.S.C. 3506; 5 CFR part 1320.

List of Subjects 12 CFR Part 226

Advertising, Consumer protection, Federal Reserve System, Reporting and recordkeeping requirements, Truth in lending.

12 CFR Part 1026

Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM Text of Final Revisions

For the reasons set forth in the preamble, the Board amends Regulation Z, 12 CFR part 226, as set forth below:

PART 226—TRUTH IN LENDING (REGULATION Z) 1. The authority citation for part 226 continues to read as follows: Authority:

12 U.S.C. 3806; 15 U.S.C. 1604, 1637(c)(5), and 1639(l); Pub. L. 111-24, section 2, 123 Stat. 1734; Pub. L. 111-203, 124 Stat. 1376.

2. In Supplement I to part 226, under Section 226.3—Exempt Transactions, under 3(b) Credit over applicable threshold amount, paragraph 1.vii is added to read as follows: Supplement I to Part 226—Official Staff Interpretations Subpart A—General Section 226.3—Exempt Transactions

3(b) Credit over applicable threshold amount.

1. * * *

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

BUREAU OF CONSUMER FINANCIAL PROTECTION Authority and Issuance

For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

PART 1026—TRUTH IN LENDING (REGULATION Z) 3. The authority citation for part 1026 continues to read as follows: Authority:

12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq.

4. In Supplement I to part 1026, under Section 1026.3—Exempt Transactions, under 3(b) Credit Over Applicable Threshold Amount, paragraph 1.vii is added to read as follows: Supplement I to Part 1026—Official Interpretations Subpart A—General Section 1026.3—Exempt Transactions

3(b) Credit Over Applicable Threshold Amount

1. * * *

vii. From January 1, 2016 through December 31, 2016, the threshold amount is $54,600.

By order of the Board of Governors of the Federal Reserve System, November 18, 2015. Robert deV. Frierson, Secretary of the Board. Dated: September 22, 2015. Richard Cordray, Director, Bureau of Consumer Financial Protection.
[FR Doc. 2015-30091 Filed 11-25-15; 8:45 am] BILLING CODE: 6210-01-P; 4810-AM-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0346; Directorate Identifier 2014-NM-010-AD; Amendment 39-18324; AD 2015-23-08] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737-100,-200,-200C,-300,-400, and -500 series airplanes. This AD was prompted by reports of cracks in fuselage frames, and a report of a missing strap that was not installed on a fuselage frame during production. This AD requires an inspection to determine if the strap adjacent to a certain stringer is installed, and repair if it is missing; repetitive inspections of the frame for cracking or a severed frame web; and related investigative and corrective actions if necessary. This AD also provides optional actions to terminate certain repetitive inspections. We are issuing this AD to detect and correct missing fuselage frame straps and frame cracking that can result in severed frames which, with multiple adjacent severed frames, or the combination of a severed frame and fuselage skin chemical mill cracks, can result in uncontrolled decompression of the airplane.

DATES:

This AD is effective January 4, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of January 4, 2016.

ADDRESSES:

For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0346.”

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0346; 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 AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Galib Abumeri, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5324; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-100,-200,-200C-300,-400, and-500 series airplanes. The NPRM published in the Federal Register on June 30, 2014 (79 FR 36672). The NPRM was prompted by reports of cracks in fuselage frames, and a report of a missing strap that was not installed on a fuselage frame during production. The NPRM proposed to require an inspection to determine if the strap adjacent to a certain stringer is installed, and repair if it is missing; repetitive inspections of the frame for cracking or a severed frame web; and related investigative and corrective actions if necessary. The NPRM also provided optional actions to terminate certain repetitive inspections. We are issuing this AD to detect and correct missing fuselage frame straps and frame cracking that can result in severed frames. Continued operation of the airplane with multiple adjacent severed frames, or the combination of a severed frame and fuselage skin chemical mill cracks, can result in uncontrolled decompression of the airplane.

Comments

We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 36672, June 30, 2014) and the FAA's response to each comment.

Effect of Winglets on AD

Aviation Partners Boeing stated that installation of winglets per Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/ebd1cec7b301293e86257cb30045557a/$FILE/ST01219SE.pdf) does not affect the actions specified in the NPRM (79 FR 36672, June 30, 2014.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD (79 FR 36672, June 30, 2014) as paragraph (c)(1) of this AD, and have added a new paragraph (c)(2) to this AD to state that installation of STC ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/ebd1cec7b301293e86257cb30045557a/$FILE/ST01219SE.pdf) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Request To Revise Preamble Wording

Boeing noted that the SUMMARY of the NPRM (79 FR 36672, June 30, 2014) explained that some optional actions would terminate “certain” repetitive inspections. Boeing requested that we use this same wording in the Proposed AD Requirements section of the NPRM (which omitted the word “certain”).

Although we agree with the commenter's statement, the Proposed AD Requirements section is not repeated in a final rule. Since the referenced omission does not affect the required actions or the unsafe condition, no changes to this final rule are needed.

Request To Specify Inspection Method

Boeing requested that we add an inspection in paragraph (g) of the proposed AD (79 FR 36672, June 30, 2014). Boeing stated that this is consistent with the compliance information described in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013.

We agree with the commenter's request. We inadvertently omitted the inspection requirement in paragraph (g) of the proposed AD (79 FR 36672, June 30, 2014), which is described in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. We have revised paragraph (g) of this AD to require that the inspection and applicable repair be done by using a method approved in accordance with the procedures specified in paragraph (q) of this AD. Paragraph (g) of this AD applies only to airplanes identified as Group 1 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. Currently, there are no Group 1 airplanes in service in the United States, so notice of this new requirement is not necessary.

Request To Revise Terminating Action Wording

Boeing requested that we revise the wording in paragraphs (i) and (j) of the proposed AD (79 FR 36672, June 30, 2014) to state the following actions.

• Doing the repair or preventive modification of the frame at station 328 terminates the applicable repetitive inspection requirements.

• Doing the preventive modification of the frame at station 360 terminates the applicable station 360 inspection requirements.

• Doing the repair or preventive modification of the frame at station 328, and doing the preventive modification of the frame at station 360 terminates the applicable repetitive inspection requirements of the frame at station 344, and the Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, skin inspections.

Boeing stated that the proposed wording in paragraphs (i) and (j) of the proposed AD (79 FR 36672, June 30, 2014) is not clear. Boeing stated that inspections of the frame at station 328 or at station 360 can be terminated by a single action (applicable repair or modification). Boeing explained that accomplishing both specified actions at station 328 and station 360 terminates the station 344 frame inspections and the option 2 skin inspections.

We agree to clarify the acceptable terminating actions. We have added new paragraph (m) of this AD, which provides the following terminating actions. We have redesignated subsequent paragraphs accordingly.

• Accomplishing the repair or preventive modification of the frame at station 328 terminates the inspections of that frame required by paragraphs (i), (j), and (k) of this AD.

• Accomplishing the repair or preventive modification of the frame at station 328 and the preventive modification of the frame at station 360, terminates the inspections of the frame at station 344 and the fuselage skin inspections required by paragraphs (i) and (j) of this AD.

• Accomplishing the repair or preventive modification of the frame at station 360 terminates the inspections of that frame required by paragraphs (i) and (j) of this AD.

• Accomplishing the repair or preventive modification of the frame at station 328 terminates the fuselage skin inspections and the station 328 frame inspections required by paragraphs (i) and (j) of this AD.

Recommendation To Specify Optional Preventive Modification

Boeing recommended that we specify in paragraphs (i) and (j) of the proposed AD (79 FR 36672, June 30, 2014) that the station 328 repair described in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, can be used as an optional preventive modification.

We partially agree with the commenter's request. The commenter's request is already addressed in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. However, additional text might help clarify this provision. We have added additional text to paragraphs (i), (j), and (k) of this AD that operators may do the repair of the frame at station 328, as specified in paragraph (m) of this AD, as an optional preventive modification for that frame.

Requests To Revise Paragraph Format and Inspection Method

Boeing requested that we revise paragraphs (i) and (j) of the proposed AD (79 FR 36672, June 30, 2014) by moving the requirements for Group 6 airplanes to a new paragraph. Boeing stated that the service information for Group 6 airplanes provides directed inspection instructions for the station 328 frame only, as provided in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. Boeing added that for Group 6 airplanes, there are no directed inspections for station 344 or station 360, but there are related investigative and corrective actions for detailed inspections of the frame at station 312 and station 344.

Southwest Airlines (SWA) requested that we specify that the frame at station 344 requires detailed inspections, not detailed and eddy current inspections. SWA stated that Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, describes only detailed inspections at station 344.

We partially agree with both commenters. We disagree with making the changes requested by the commenters. However, we agree that certain actions are only done at certain locations and for certain airplanes. The inspections at station 344 are detailed inspections only. Application of the appropriate inspection method to a given frame is addressed by the phrase “as applicable,” i.e., actions are applicable to the frames identified in the service information for each group of airplane. We have revised paragraphs (i)(1), (i)(2)(i), (i)(2)(ii), (j)(l), and (j)(2) of this AD by adding “as applicable” after the station locations. This revision clarifies that those actions are done only as specified in the service information.

Request To Add Sub-Paragraph Headers

Boeing requested that we add the subtitles “Initial Inspections” and “Follow-on Inspections” to paragraphs (i)(1) and (i)(2), respectively, of the proposed AD (79 FR 36672, June 30, 2014). Boeing also requested that we change the wording in paragraph (i)(2) the proposed AD to “Accomplishing the follow‐on inspections required by paragraph (i)(2) of this AD,” instead of “Accomplishing the initial inspections . . . ” Boeing stated that paragraph (i) of the proposed AD would mandate the inspections for airplanes with fewer than 28,300 total flight cycles, where compliance (tables 4, 7, and 8 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013) consists of initial inspections and then follow-on inspections that contain options. Boeing explained that paragraph (i)(1) of the proposed AD would mandate the initial inspections, and paragraph (i)(2) of the proposed AD would mandate the follow-on inspections. Boeing also explained that paragraph (i)(2) of the proposed AD phrase “accomplishing the initial inspections” is understood to refer to the first follow-on inspection directed by the compliance time (threshold).

We do not agree with the commenter's request. Paragraph (i)(2) of this AD follows the format of Boeing's service bulletin compliance tables, which has a different repeat interval from the inspections specified in paragraph (i)(1) of this AD. Paragraphs (i)(1) and (i)(2) of this AD contain both initial and repetitive inspections as well as related investigative actions. We have not changed this AD in this regard.

Request To Revise Repetitive Inspection Wording

Boeing requested that we revise the last sentence of paragraph (i)(2)(ii) of the proposed AD (79 FR 36672, June 30, 2014) to state, “Repeat the inspections specified in this paragraph thereafter . . . ” Boeing stated that this wording would then match the wording for the repetitive inspections specified in paragraph (i)(2)(i) of the proposed AD.

We agree with the commenter's request. In this case, similar wording will provide consistent paragraph wording without changing the intent of the NPRM (79 FR 36672, June 30, 2014). We have revised the wording in paragraph (i)(2)(ii) of this AD to “Repeat the inspections specified in this paragraph thereafter at the applicable time and intervals specified in . . . .”

Request To Clarify a Certain Compliance Time

Europe Airpost requested that, in order to avoid any confusion, we clearly state a compliance time for paragraph (j) of the proposed AD (79 FR 36672, June 30, 2014) for airplanes that have 28,300 total flight cycles or more. The commenter asked whether those airplanes would fall under the condition 28,300 total flight cycles but less than 32,800 total flight cycles, or 32,800 total flight cycles or more.

We agree that clarification is necessary. In this case, paragraph (j) of this AD states to use the applicable times specified in tables 4, 5, 7, and 8, of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. Individual airplanes within an operator's fleet could fall into different categories and thus have different compliance times. Operators are to use the appropriate compliance times and repetitive intervals based upon the applicable number of total flight cycles that have been accumulated on each airplane as of the effective date of this AD. We have added new paragraph (n)(3) of the AD to inform operators that the “Condition” columns of the compliance tables also contain compliance information that corresponds to the effective date of the AD. We have also revised paragraphs (i)(1) and (j)(1) of this AD to refer to paragraph (n)(3) of this AD.

Request To Clarify Terminating Action Wording

SWA requested that we revise the terminating action portion of paragraph (j) of the proposed AD (79 FR 36672, June 30, 2014) to clarify the specified actions. SWA stated that, as written, the terminating action statement seems to imply that the operator is required to accomplish both the preventive modification of the frame at station 360 and the repair of the frame at station 328 to terminate the repetitive inspection requirements for any of the station 328, 344, and 360 frames. SWA also stated that the terminating action in paragraph (j) of the proposed AD does not specify actions or terminating actions if a repair is installed at the station 344 frame. SWA explained that Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, contains terminating action in the footnotes of the compliance tables in paragraph 1.E., “Compliance,” which the commenter thinks should be restated in the AD.

We agree with the commenter's request. For clarity, we have moved the terminating action provisions that were specified in paragraphs (i)(1), (i)(2), (j), and (k) of the proposed AD (79 FR 36672, June 30, 2014) to new paragraphs (m)(1) through (m)(4) of this AD. We have redesignated subsequent paragraphs accordingly.

Requests To Specify Eddy Current Inspection

Europe Airpost requested that we clarify whether we meant to exclude the eddy current inspection at station 328 described in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, in paragraph (k) of the proposed AD (79 FR 36672, June 30, 2014). Boeing requested that we add the eddy current inspection at station 328 described in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, in paragraph (k) of the proposed AD.

We agree with Boeing's request to specify the eddy current inspection and Europe Airpost's request to clarify the eddy current inspection requirement. We inadvertently omitted the eddy current inspection from paragraph (k) of the proposed AD (79 FR 36672, June 30, 2014) which applies to Group 7 airplanes. Our intention was to match the actions described in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. In the NPRM (79 FR 36672, June 30, 2014), we did not identify any differences with Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, in regards to the required inspections, which includes repetitive eddy current inspections at station 328. For Groups 2 through 7 airplanes, paragraphs (i) and (j) of the proposed AD do specify detailed and HFEC inspections for Groups 2 through 6 airplanes. Therefore, we have revised paragraph (k) of this AD to specify doing eddy current inspections, in addition to the detailed inspections, of the frame at station 328 for Group 7 airplanes.

Request To Specify Terminating Actions for Station 380

SWA requested that we specify procedures or terminating actions for repairs installed at the station 380 frame, since paragraph (l) of the proposed AD (79 FR 36672, June 30, 2014) does not specify such actions.

We do not agree with the commenter's request. Boeing has not provided such repairs for our approval in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. Therefore, we have no specific engineering data to review and approve. We have not changed this AD in this regard.

Request for Credit for Certain Repairs

SWA requested that we revise paragraphs (i) through (l) of the proposed AD (79 FR 36672, June 30, 2014) to include provisions for existing repairs that were done using the service repair manual (SRM) or the original equipment manufacturer (OEM) instructions. SWA requested that the NPRM be revised to either terminate the inspections or include alternative actions if existing repairs inhibit the ability to perform the inspections.

We partially agree with the commenter's request. We agree that repairs approved by Boeing via FAA Form 8100-9 (Statement of Compliance with Airworthiness Standards) would have also included the appropriate inspections. We disagree that SRM repairs would necessarily provide the same level of safety. The commenter did not specify for which SRM repairs it was requesting approval. Such repairs might or might not have included consideration of the safety issues addressed by Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, and this AD (e.g., skin cracking combined with frame cracking). We have added a new paragraph (p) to this AD to provide credit for repairs of the station 328, 344, 360, and 380 frames in the areas addressed by this AD that have been approved by the Boeing ODA via FAA Form 8100-9 prior to the effective date of this AD for the repairs specified in paragraphs (i), (j), (k), and (l) of this AD. We have redesignated subsequent paragraphs accordingly.

Conclusion

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (79 FR 36672, June 30, 2014) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 36672, June 30, 2014).

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. The service information describes procedures for inspection for cracking and missing straps, modification, and repair of certain fuselage frames. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

Costs of Compliance

We estimate that this AD affects 417 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections 21 work-hours × $85 per hour = $1,785 per inspection cycle $0 $1,785 per inspection cycle $744,345 per inspection cycle.

We have received no definitive data that would enable us to provide cost estimates for certain on-condition actions specified in this AD. However, we estimate the following costs to do any necessary repairs of the station 328 frame and the station 360 frame. We have no way of determining the number of aircraft that might need these repairs:

On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Frame 328 repair 25 work-hours × $85 per hour = $2,125 Negligible $2,125 Frame 360 repair 5 work-hours × $85 per hour = $425 Negligible 425
    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

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

    For the reasons discussed above, I certify that this AD:

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

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

    (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.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-23-08 The Boeing Company: Amendment 39-18324; Docket No. FAA-2014-0436; Directorate Identifier 2014-NM-010-AD. (a) Effective Date

    This AD is effective January 4, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013.

    (2) Installation of Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/ebd1cec7b301293e86257cb30045557a/$FILE/ST01219SE.pdf) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by reports of cracks in fuselage frames, and a report of a missing strap that was not installed on a fuselage frame during production. We are issuing this AD to detect and correct missing fuselage frame straps and frame cracking that can result in severed frames. Continued operation of the airplane with multiple adjacent severed frames, or the combination of a severed frame and fuselage skin chemical mill cracks, can result in uncontrolled decompression of the airplane.

    (f) Compliance

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

    (g) Actions for Group 1 Airplanes

    For airplanes identified as Group 1 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: At the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as provided by paragraph (n)(1) of this AD, do the inspection for cracking of the frames and applicable repairs using a method approved in accordance with the procedures specified in paragraph (q) of this AD.

    (h) Groups 2 Through 7 Airplanes: Inspection for Strap Installation at Station 312

    For airplanes identified as Groups 2 through 7 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: At the applicable time specified in tables 2 and 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as provided by paragraph (n)(1) of this AD, do a general visual inspection of the frame at station 312 to determine if the strap adjacent to stringer S-22 right is installed, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. If the strap is not installed, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (q) of this AD.

    (i) Groups 2 Through 6 Airplanes With Less Than 28,300 Total Flight Cycles: Repetitive Inspections, Related Investigative Actions, and Corrective Actions at Stations 328, 344, and 360

    For airplanes identified as Groups 2 through 6 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, that have accumulated less than 28,300 total flight cycles as of the effective date of this AD: Do the actions required by paragraphs (i)(1) and (i)(2) of this AD. Operators may do the repair of the frame at station 328 as specified in paragraph (m) of this AD as an optional preventive modification for that frame.

    (1) At the applicable times specified in tables 4, 5, 7, and 8 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as provided by paragraphs (n)(1) and (n)(3) of this AD: Do detailed and eddy current inspections of the frame at stations 328, 344, and 360, as applicable, for cracking or a severed frame web; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as specified in paragraph (n)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspections thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, until the inspection required by paragraph (i)(2) of this AD is done.

    (2) At the applicable time specified in tables 4, 5, 7, and 8 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, do the actions specified in paragraph (i)(2)(i) or (i)(2)(ii) of this AD. Accomplishing the initial inspections required by paragraph (i)(2) of this AD terminates the inspections required by paragraph (i)(1) of this AD.

    (i) Do detailed and eddy current inspections of the frame at stations 328, 344, and 360, as applicable, for cracking or a severed frame web; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as specified in paragraph (n)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspections specified in this paragraph thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013.

    (ii) Do detailed and eddy current inspections of the frame at stations 328, 344, and 360, as applicable, for cracking or a severed frame web; and external detailed and eddy current inspections of the fuselage skin for cracking; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as specified in paragraph (n)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspections specified in this paragraph thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013.

    (j) Groups 2 Through 6 Airplanes With 28,300 Total Flight Cycles or More: Repetitive Inspections, Related Investigative Actions, and Corrective Actions at Stations 328, 344, and 360

    For airplanes identified as Groups 2 through 6 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, that have accumulated 28,300 total flight cycles or more as of the effective date of this AD: At the applicable times specified in tables 4, 5, 7, and 8 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as provided by paragraphs (n)(1) and (n)(3) of this AD, do the inspections specified in paragraph (j)(1) or (j)(2) of this AD; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as specified in paragraph (n)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspections specified in paragraph (j)(1) or (j)(2) of this AD thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. Operators may do the repair of the frame at station 328, as specified in paragraph (m) of this AD, as an optional preventive modification for that frame.

    (1) Do detailed and eddy current inspections of the frame at stations 328, 344, and 360, as applicable, for cracking or a severed frame web.

    (2) Do detailed and eddy current inspections of the frame at stations 328, 344, and 360, as applicable, for cracking or a severed frame web; and external detailed and eddy current inspections of the fuselage skin for cracking.

    (k) Group 7 Airplanes: Repetitive Inspections, Related Investigative Actions, and Corrective Actions at Station 328

    For airplanes identified as Group 7 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: At the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as provided by paragraph (n)(1) of this AD, do a detailed inspection and eddy current inspection of the frame at station 328 for cracking or a severed frame web; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as specified in paragraph (n)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspections specified in this paragraph thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013. Operators may do the repair of the frame at station 328, as specified in paragraph (m) of this AD, as an optional preventive modification for that frame.

    (l) Groups 2 Through 5 Airplanes: Repetitive Inspections, Related Investigative Actions, and Corrective Actions at Station 380

    For airplanes identified as Groups 2 through 5 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: At the applicable time specified in tables 9 and 10 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as provided by paragraph (n)(1) of this AD, do detailed and eddy current inspections of the frame at station 380 for cracking or a severed frame web; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as specified in paragraph (n)(2) of this AD. Do all applicable corrective actions before further flight. Repeat the inspections specified in this paragraph thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013.

    (m) Terminating Actions for Airplanes Identified as Groups 2, 3, 4, 5, 6, and 7

    (1) For airplanes identified as Groups 2, 3, 4, 5, and 7 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: Accomplishing the repair or preventive modification of the frame at station 328, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as required by paragraph (n)(2) of this AD, terminates the inspections of that frame required by paragraphs (i), (j), and (k) of this AD.

    (2) For airplanes identified as Groups 2, 3, 4, and 5 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: Accomplishing the repair or preventive modification of the frame at station 328 and the preventive modification of the frame at station 360, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as required by paragraph (n)(2) of this AD, terminates the inspections of the frame at station 344 and the fuselage skin inspections required by paragraphs (i) and (j) of this AD.

    (3) For airplanes identified as Groups 2, 3, 4, and 5 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: Accomplishing the repair or preventive modification of the frame at station 360, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as required by paragraph (n)(2) of this AD, terminates the inspections of that frame required by paragraphs (i) and (j) of this AD.

    (4) For airplanes identified as Group 6 in Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013: Accomplishing the repair or preventive modification of the frame at station 328, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, except as required by paragraph (n)(2) of this AD, terminates the fuselage skin inspections and the station 328 frame inspections required by paragraphs (i) and (j) of this AD.

    (n) Exceptions to Service Information

    (1) Where Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, specifies a compliance time after the “original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) If any cracking is found during any inspection required by this AD, and Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, specifies to contact Boeing for appropriate action: Before further flight, repair the cracking using a method approved in accordance with the procedures specified in paragraph (q) of this AD.

    (3) The Condition column of Tables 4, 5, 7, and 8 in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, refers to total flight cycles “at the original issue date of this service bulletin.” This AD, however, applies to the airplanes with the specified total flight cycles as of the effective date of this AD.

    (o) Post-Repair Inspections and Post-Modification Inspections

    (1) The post-repair and post-modification inspections specified in tables 13 through 15 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, are not required by this AD.

    (2) The post-repair and post-modification inspections specified in Tables 13 through 15 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, may be used in support of compliance with section 121.1109(c)(2) or 129.109(b)(2) of the Federal Aviation Regulations (14 CFR 121.1109(c)(2) or 14 CFR 129.109(b)(2)). The corresponding actions specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013, are not required by this AD.

    (p) Credit for Previous Actions

    This paragraph provides credit for repairs of the station 328, 344, 360, and 380 frames in the areas addressed by this AD that have been approved by the Boeing Organization Designation Authorization (ODA) via FAA Form 8100-9 (Statement of Compliance with Airworthiness Standards) prior to the effective date of this AD for the repairs specified in paragraphs (i), (j), (k), and (l) of this AD.

    (q) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles 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 paragraph (r) of this AD. Information may be emailed to: [email protected]

    (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.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization that has been authorized by the Manager, Los Angeles ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (r) Related Information

    For more information about this AD, contact Galib Abumeri, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5324; fax: 562-627-5210; email: [email protected]

    (s) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Boeing Alert Service Bulletin 737-53A1323, dated December 6, 2013.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on October 30, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-28824 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3642; Directorate Identifier 2015-CE-028-AD; Amendment 39-18335; AD 2015-24-03] RIN 2120-AA64 Airworthiness Directives; SOCATA Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for SOCATA Model TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued 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 corrosion of the horizontal stabilizer. We are issuing this AD to require actions to address the unsafe condition on these products.

    DATES:

    This AD is effective January 4, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in the AD as of January 4, 2016.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3642; or in person at Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    For service information identified in this AD, contact SOCATA NORTH AMERICA, North Perry Airport, 601 NE 10 Street, Pompano Beach, Florida 33060; phone: (954) 366-3331; Internet: http://www.socatanorthamerica.com/default.htm. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for Docket No. FAA-2015-3642.

    FOR FURTHER INFORMATION CONTACT:

    Albert J. Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4119; fax: (816) 329-4090; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to SOCATA Models TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes. The NPRM was published in the Federal Register on August 28, 2015 (80 FR 52215). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

    During accomplishment of SOCATA Service Bulletin (SB) SB10-152-55 at original issue, some operators reported finding heavy corrosion of the horizontal stabilizer (HS) spar.

    The results of the technical investigation have identified that the corrosion was caused by humidity ingress in the HS on aeroplanes subject to severe environmental conditions.

    This condition, if not detected and corrected, could result in buckling and permanent HS distortion, possibly resulting in reduced control of the aeroplane.

    To address this unsafe condition, SOCATA issued SB 10-152-55 Revision 1 to provide instructions for inspection and corrective action.

    For the reasons described above, this AD requires repetitive inspections of the affected area of the HS and, depending on findings, accomplishment of applicable corrective action(s).

    The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-3642-0001. Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal and the FAA's response to the comment.

    Request

    Anthony Pynes commented that that he does not believe the methodology used and the foundational data available supports the need for this AD, and thus he believes that this AD is not necessary.

    We do not agree. The FAA, in working with the State of Design airworthiness authority (EASA), determined that the actions of this AD on the horizontal stabilizer of the affected airplanes are necessary to correct an unsafe condition. Included in this is the risk in establishing such actions at the required compliance times. No changes to the AD have been made based on this comment.

    Conclusion

    We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

    • Are consistent with the intent that was proposed in the NPRM (80 FR 52215, August 28, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 52215, August 28, 2015).

    Related Service Information Under 1 CFR Part 51

    We reviewed DAHER-SOCATA TB Aircraft Mandatory Service Bulletin SB 10-152, Amendment 1, dated April 2015. The service information describes procedures for inspection for corrosion on the horizontal stabilizer spar and repair, if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of the AD.

    Costs of Compliance

    We estimate that this AD will affect 195 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour.

    Based on these figures, we estimate the cost of this AD on U.S. operators to be $33,150, or $170 per product.

    In addition, we estimate that any necessary follow-on actions would take about 15 to 38 work-hours and require parts costing $250 to $400 depending on the type of repair, for a cost of $2,325 to $4,280 per product. The cost may vary depending on the extent of damage found. We have no way of determining the number of products that may need these actions.

    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 AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

    (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.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3642; 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 the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new AD: 2015-24-03 SOCATA: Amendment 39-18335; Docket No. FAA-2015-3642; Directorate Identifier 2015-CE-028-AD. (a) Effective Date

    This airworthiness directive (AD) becomes effective January 4, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to SOCATA Models TB 9, TB 10, TB 20, TB 21, and TB 200 airplanes, all manufacturer serial numbers, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 55: Stabilizers.

    (e) Reason

    This AD was prompted by 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 corrosion of the horizontal stabilizer. We are issuing this AD to detect and correct corrosion of the horizontal stabilizer (HS) spar, which could result in buckling and permanent HS distortion, possibly resulting in reduced control.

    (f) Actions and Compliance

    Unless already done, do the actions in paragraphs (f)(1) through (f)(5) of this AD:

    (1) Within 13 months after January 4, 2016 (the effective date of this AD) and repetitively thereafter at intervals not to exceed 72 months, do a special detailed inspection of the HS spar following the instructions of DAHER-SOCATA TB Aircraft Mandatory Service Bulletin SB 10-152, Amendment 1, dated April 2015.

    (2) If no discrepancy is detected during any inspections required by paragraph (f)(1) of this AD, protect the HS spar following the instructions of DAHER-SOCATA TB Aircraft Mandatory Service Bulletin SB 10-152, Amendment 1, dated April 2015.

    (3) If any discrepancy is detected during any inspection required by paragraph (f)(1) of this AD, before further flight, do the applicable corrective action(s) following the instructions of DAHER-SOCATA TB Aircraft Mandatory Service Bulletin SB 10-152, Amendment 1, dated April 2015.

    (4) Accomplishment of protection or corrective actions on an airplane as required by paragraph (f)(2) or (f)(3) of this AD, as applicable, does not constitute terminating action for the repetitive inspections as required by paragraph (f)(1) of this AD for that airplane.

    (5) Inspections and corrective actions on an airplane done before January 4, 2016 (the effective date of this AD) following the instructions of DAHER-SOCATA TB Aircraft Recommended Service Bulletin SB 10-152, dated May 2013, are acceptable to comply with the requirements of this AD for that airplane. After January 4, 2016 (the effective date of this AD), repetitive inspections and applicable corrective actions, as required by this AD, must be done as required by paragraph (f)(1) of this AD following the instructions of DAHER-SOCATA TB Aircraft Mandatory Service Bulletin SB 10-152, Amendment 1, dated April 2015.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Standards 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: Albert Mercado, Aerospace Engineer, FAA, Small Airplane Directorate, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4119; fax: (816) 329-4090; email: [email protected] 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.

    (h) Related Information

    Refer to MCAI European Aviation Safety Agency (EASA) AD No. 2015-0130, dated July 7, 2015; and DAHER-SOCATA TB Aircraft Recommended Service Bulletin SB 10-152, dated May 2013, for related information. The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-3642-0001.

    (i) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) DAHER-SOCATA TB Aircraft Mandatory Service Bulletin SB 10-152, Amendment 1, dated April 2015.

    (ii) Reserved.

    (3) For SOCATA service information identified in this AD, contact SOCATA NORTH AMERICA, North Perry Airport, 601 NE 10 Street, Pompano Beach, Florida 33060; phone: (954) 366-3331; Internet: http://www.socatanorthamerica.com/default.htm.

    (4) You may review this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. In addition, you can access this service information on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3642.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Kansas City, Missouri, on November 17, 2015. Melvin Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29876 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3073; Directorate Identifier 2015-CE-017-AD; Amendment 39-18334; AD 2015-24-02] RIN 2120-AA64 Airworthiness Directives; Viking Air Limited Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Viking Air Limited Model DHC-3 Airplanes. This AD results from mandatory continuing airworthiness information (MCAI) issued 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 corrugation cracking found at various wing stations and on the main spar lower cap. We are issuing this AD to require actions to address the unsafe condition on these products.

    DATES:

    This AD is effective January 4, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in the AD as of January 4, 2016.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3073; or in person at Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    For service information identified in this AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; Fax: 250-656-0673; telephone: (North America) 1-800-663-8444; email: [email protected]; Internet: http://www.vikingair.com/support/service-bulletins. You may view this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148. It is also available on the Internet at http://www.regulations.gov by searching for Docket No. FAA-2015-3073.

    FOR FURTHER INFORMATION CONTACT:

    Aziz Ahmed, Aerospace Safety Engineer, FAA, New York Aircraft Certification Office (ACO), 1600 Steward Avenue, suite 410, Westbury, New York 11590; telephone: (516) 228-7329; fax: (516) 794-5531; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to add an AD that would apply to Viking Air Limited Model DHC-3 airplane. The NPRM was published in the Federal Register on July 28, 2015 (80 FR 44892). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

    An operator found cracks on the upper inner wing skin corrugations emanating from the rib attachment points. As a result, Viking Air Limited released Service Bulletin (SB) V3/0002, Revision NC to inspect for possible corrugation cracking between wing stations 34 and 110. Subsequently, operators discovered additional corrugation cracking at multiple wing stations and on the main spar lower cap.

    These cracks, if not detected and rectified, may compromise the structural integrity of the wing. In order to address this potentially unsafe condition, Viking Air Limited has issued SB V3/0002, Revision C, specifying repetitive internal borescope and visual inspections. This AD is issued to mandate compliance with that SB.

    The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-3073-0002. Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comment received on the proposal and the FAA's response to the comment.

    Request From Viking

    Viking has reviewed the FAA NPRM (80 FR 44892, July 28, 2015) and found that paragraph (f)(4) is not applicable or relevant to Viking SB V3/0002 Revision C. All cycle information is with respect to the wing. Viking noted that it is important to make the distinction between the airplane and the wings. The possibility has come to Viking's attention that some operators may rotate wings within their airplane fleet. Additionally, the Model DHC-3 airplane nominal cycles to hours ratio used by Viking is 1.33 cycles per hour. In most cases, Viking would consider an average flight length to be 45 minutes. Therefore, Viking recommends that the calculation of the proposed AD paragraph (f)(4) not be part of the mandated actions.

    We agree and will remove paragraph (f)(4) of the proposed AD and state in paragraph (f)(1) of this AD that the operator may contact Viking to help determine wing flight cycles. We will also change all reference of “flight cycles” to “wing flight cycles.” We redesignated paragraph (f)(5) of the proposed AD as paragraph (f)(4) of this AD.

    Conclusion

    We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting the AD with the change described previously and minor editorial changes. We have determined that these minor changes:

    • Are consistent with the intent that was proposed in the NPRM (80 FR 44892, July 28, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 44892, July 28, 2015).

    Related Service Information Under 1 CFR Part 51

    We reviewed Viking DHC-3 Otter Service Bulletin No. V3/0002, Revision “C”, dated April 30, 2014; and Viking DHC-3 Otter Service Bulletin 3-STC (03-50)-001, Revision “NC”, dated July 3, 2013. The service information describes procedures for installing additional wing inspection access panels and inspecting the wings using borescope and visual methods. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD will affect 38 products of U.S. registry. We also estimate that it would take about 36 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $5,000 per product.

    Based on these figures, we estimate the cost of the AD on U.S. operators to be $306,280, or $8,060 per product.

    The scope of damage found in the required inspection could vary significantly from airplane to airplane. We have no way of determining how much damage may be found on each airplane or the cost to repair damaged parts on each airplane.

    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 AD will not have federalism implications under Executive Order 13132. This AD will 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 AD:

    (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.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3073; 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 the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new AD: 2015-24-02  Viking Air Limited: Amendment 39-18334; Docket No. FAA-2015-3073; Directorate Identifier 2015-CE-017-AD. (a) Effective Date

    This airworthiness directive (AD) becomes effective January 4, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Viking Air Limited DHC-3 airplanes, all serial numbers, certificated in any category.

    (d) Subject

    Air Transport Association of America (ATA) Code 57: Wings.

    (e) Reason

    This AD was prompted by 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 corrugation cracking found at various wing stations and on the main spar lower cap. We are issuing this proposed AD to detect cracking and correct as necessary to address the unsafe condition on these products.

    (f) Actions and Compliance

    Unless already done, do the following actions in paragraphs (f)(1) through (f)(4) of this AD:

    (1) Within 30 days after January 4, 2016 (the effective date of this AD), determine the accumulated wing flight cycles or wing flight hours for each wing by contacting Technical Support at Viking Air Limited. You can find contact information for Viking Air Limited in paragraph (i) of this AD.

    (2) Within 30 days after January 4, 2016 (the effective date of this AD), determine all installed supplemental type certificates (STC) or modifications affecting the wings. Based on the accumulated air time determined from paragraph (f)(1) of this AD and before the initial inspection required in paragraph (f)(3) of this AD, install access panels as follows:

    (i) If the airplane is free of STCs or any other modifications affecting the wings, install additional inspection access panels following the Accomplishment Instructions Part A of Viking DHC-3 Otter Service Bulletin No. V3/0002, Revision “C”, dated April 30, 2014.

    (ii) If the airplane is fitted with STC SA2009NY (which can be found on the internet at: http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/F7309B7D9B008C588625734F00730144?OpenDocument&Highlight=sa02009ny), incorporate additional inspection access panels following the Accomplishment Instructions of Viking Air Limited SB 3-STC (03-50)-001, Revision “NC”, dated July 3, 2013.

    Note 1 to paragraph (f)(2)(ii) of this AD: STC SA03-50 would be the Canadian equivalent of the United States (FAA) STC SA2009NY.

    (iii) If there are other STCs or modifications affecting the wings the operator must contact the FAA to request an FAA-approved alternative method of compliance using the procedures in paragraph (g)(1) of this AD and 14 CFR 39.19. To develop these procedures, we recommend you contact the STC holder for guidance in developing substantiating data.

    (3) Based on the accumulated air time on the wings determined in paragraph (f)(1) of this AD, perform initial and repetitive borescope and visual inspections of both the left-hand and right-hand wing box following Part B of the Accomplishment Instructions of Viking DHC-3 Otter Service Bulletin V3/0002, Revision “C”, dated April 30, 2014, using the inspection schedules specified in Table 1 of paragraph (f)(3) of this AD:

    Table 1 of Paragraph (f)(3) of This AD—Inspection Schedule Effectivity Initial inspection Repetitive inspection If Viking Air Limited SB V3/0002, Revision “A”, dated February 22, 2013; or Viking Air Limited SB V3/0002, Revision “B”, dated July 3, 2013; were complied with prior to January 4, 2016 (the effective date of this AD) The initial inspection is not required since the inspection was accomplished while complying with Revision “A” or “B” of Viking Air Limited SB V3/0002 Repetitively inspect not to exceed every 1,600 wing flight hours accumulated after the last inspection or 2,100 wing flight cycles after the last inspection, whichever occurs first. If, as of January 4, 2016 (the effective date of this AD), the airplane has less than 31,200 wing flight hours Inspect within 800 wing flight hours after January 4, 2016 (the effective date of this AD), or within 6 months January 4, 2016 (the effective date of this AD), whichever occurs first Repetitively inspect not to exceed every 1,600 wing flight hours accumulated after the last inspection or 2,100 wing flight cycles after the last inspection, whichever occurs first. If, as of January 4, 2016 (the effective date of this AD), the airplane has 31,200 wing flight hours or more but less than 31,600 wing flight hours Inspect upon or before accumulating 32,000 wing flight hours or within 6 months after January 4, 2016 (the effective date of this AD), whichever occurs first Repetitively inspect not to exceed every 1,600 wing flight hours accumulated after the last inspection or 2,100 wing flight cycles after the last inspection, whichever occurs first. If, as of January 4, 2016 (the effective date of this AD), the airplane has 31,600 wing flight hours or more Inspect within 400 wing flight hours accumulated after January 4, 2016 (the effective date of this AD) or 3 months after January 4, 2016 (the effective date of this AD), whichever occurs first Repetitively inspect not to exceed every 1,600 wing flight hours accumulated after the last inspection or 2,100 wing flight cycles after the last inspection, whichever occurs first.

    (4) If any cracks are found, contact Technical Support at Viking Air Limited for an FAA-approved repair and incorporate the repair before further flight. You can find contact information for Viking Air Limited in paragraph (i) of this AD. The FAA-approved repair must specifically reference this AD.

    (g) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, Standards 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: Aziz Ahmed, Aerospace Safety Engineer, FAA, New York Aircraft Certification Office (ACO), 1600 Steward Avenue, Suite 410, Westbury, New York 11590; telephone: (516) 228-7329; fax: (516) 794-5531; email: [email protected] 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, a federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (h) Related Information

    Refer to MCAI Transport Canada AD No. CF-2015-05, dated March 18, 2015, for related information. The MCAI can be found in the AD docket on the Internet at: http://www.regulations.gov/#!documentDetail;D=FAA-2015-3073-0002.

    (i) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.

    (i) Viking DHC-3 Otter Service Bulletin No. V3/0002, Revision “C”, dated April 30, 2014.

    (ii) Viking DHC-3 Otter Service Bulletin 3-STC (03-50)-001, Revision “NC”, dated July 3, 2013.

    (3) For Viking Air Limited service information identified in this AD, contact Viking Air Limited Technical Support, 1959 De Havilland Way, Sidney, British Columbia, Canada, V8L 5V5; Fax: 250-656-0673; telephone: (North America) 1-800-663-8444; email: [email protected]; Internet: http://www.vikingair.com/support/service-bulletins.

    (4) You may review this referenced service information at the FAA, Small Airplane Directorate, 901 Locust, Kansas City, Missouri 64106. For information on the availability of this material at the FAA, call (816) 329-4148.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Kansas City, Missouri, on November 16, 2015. Melvin Johnson, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29855 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0928; Directorate Identifier 2014-NM-040-AD; Amendment 39-18333; AD 2015-24-01] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200 Freighter, A330-200, A330-300, A340-200, A340-300, A340-500, and A340-600 series airplanes. This AD was prompted by a report of skin disbonding on a composite side panel of a rudder installed on an A310 airplane. This AD requires a review of the maintenance records of the rudder to determine if any composite side shell panel repair has been done; a thermography inspection limited to the repair areas or complete side shells, as applicable, to identify possible in-service rudder repairs, damages, or fluid ingress; and applicable related investigative and corrective actions. We are issuing this AD to detect and correct the rudder skin disbonding, which could affect the structural integrity of the rudder, and could result in reduced controllability of the airplane.

    DATES:

    This AD becomes effective January 4, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of January 4, 2016.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0928 or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

    For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0928.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A330-200 Freighter, A330-200, A330-300, A340-200, A340-300, A340-500, and A340-600 series airplanes. The NPRM published in the Federal Register on December 29, 2014 (79 FR 77972).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0033, dated February 4, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200 Freighter, A330-200, A330-300, A340-200, A340-300, A340-500, and A340-600 series airplanes. The MCAI states:

    A case of skin disbonding was reported on a composite side panel of a rudder installed on an A310 aeroplane.

    The investigation results revealed that this disbonding started from a skin panel area previously repaired in-service in accordance with the Structural Repair Manual (SRM).

    The initial damage has been identified as a disbonding between the core and skin of the repaired area. This damage may not be visually detectable and likely propagates during normal operation due to the variation of pressure during ground-air-ground cycles.

    Composite rudder side shell panels are also installed on A330 and A340 aeroplanes, which may have been repaired in-service using a similar method.

    This condition, if not detected and corrected, could affect the structural integrity of the rudder, possibly resulting in reduced control of the aeroplane.

    For the reasons described above, this [EASA] AD requires a one-time thermography inspection of a repaired rudder or a rudder whose maintenance records are incomplete and, depending on findings, accomplishment of applicable corrective and follow-up actions [including repetitive inspections].

    The related investigative actions in this AD include, as applicable, an ultrasonic inspection, an elasticity laminate checker inspection, a tap test inspection, detailed inspections, and thermography inspections, and ventilation of the core. The repetitive inspections include detailed inspections and thermography inspections. The corrective actions in this AD include repairs.

    The compliance time for the related investigative actions is before further flight after accomplishing the applicable inspection required by paragraph (g)(1) or (g)(2)(ii) of this AD.

    The intervals for the repetitive inspections are either 900 flight hours or 1,000 flight cycles, depending on the applicable conditions identified in the service information.

    The compliance times for the corrective actions range, depending on the applicable conditions identified in the service information, from before further flight to within 4,500 flight cycles but not to exceed 24 months after accomplishing the applicable inspection required by paragraph (g)(1) or (g)(2)(ii) of this AD.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0928-0002.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 77972, December 29, 2014) and the FAA's response to each comment.

    Request To Use the Latest Service Information

    American Airlines (AAL) and Delta Airlines (DAL) requested that we revise the NPRM (79 FR 77972, December 29, 2014) to cite the latest service information.

    We agree with the commenters' request. Airbus has issued Airbus Service Bulletin A330-55-3043, Revision 1, dated August 20, 2014, Airbus Service Bulletin A340-55-4039, Revision 1, dated August 20, 2014, and Airbus Service Bulletin A340-55-5007, Revision 1, dated August 20, 2014. The new service information requires no additional work, and there are no new actions required by this AD. We have updated the AD with the latest service information, and we have also added a credit paragraph for previous actions done before the effective date of this AD using the service information cited in the NPRM (79 FR 77972, December 29, 2014).

    Request To Clarify the Structural Repair Manual Repairs That Are Affected

    AAL requested that the NPRM (79 FR 77972, December 29, 2014) clarify the specific structural repair manual (SRM) repairs that are affected. AAL stated that paragraph (j) of the proposed AD states specific serial number ranges that are not affected by the AD provided that it is determined that no repair has been accomplished on the composite side shell panel of that rudder since first installation on the airplane. AAL believes this last sentence is too broad and not in line with the intent of the service information requirements. AAL commented that stating no repair has been accomplished limits acceptable repairs covered by an Airbus repair design approval sheet, designated engineering representative repairs, and other SRM repairs not affected by the improper practices that are the subject of the NPRM. AAL stated that paragraphs (g)(1) and paragraph (l) of the proposed AD list the affected SRM repairs in the service information figures.

    We agree with the commenter's request. We have revised paragraph (j) of this AD to clarify the specific repairs accomplished as described in the SRM procedures identified in Figure A-GBBAA (Sheet 01 and 02) or Figure A-GBCAA (Sheet 02) of the service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD, as applicable.

    Request To Add the Manufacturer Part Number

    DAL requested that the NPRM (79 FR 77972, December 29, 2014) include the manufacturer part numbers of the rudder serial numbers specified in paragraph (j), which provides only a list of rudder serial numbers not affected by the requirements of paragraphs (g) and (h) of the proposed AD. DAL commented that in the event of future aircraft acquisitions or rudder (component only) purchases, operators will need the manufacturer part numbers associated with the listed serial numbers to determine AD applicability.

    We disagree with the commenter's request to add part numbers to paragraph (j) of this AD. The rudder serial number, regardless of the part number, is the key to identifying whether the rudder is not affected. Only rudders that have certain serial numbers that meet the conditions specified in paragraph (j) of this AD are exempt from the actions required by paragraphs (g) and (h) of this AD. Airbus has informed us that rudders with the same manufacturer part number might or might not be affected; it is the serial number that determines whether it is an affected rudder. We have not changed the AD in this regard.

    Conclusion

    We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

    • Are consistent with the intent that was proposed in the NPRM (79 FR 77972, December 29, 2014) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 77972, December 29, 2014).

    We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information:

    • Airbus Service Bulletin A330-55-3043, Revision 1, dated August 20, 2014.

    • Airbus Service Bulletin A340-55-4039, Revision 1, dated August 20, 2014.

    • Airbus Service Bulletin A340-55-5007, Revision 1, dated August 20, 2014.

    The service information describes procedures for a review of the maintenance records of the rudder to determine if any composite side shell panel repair has been done; a thermography inspection limited to the repair areas or complete side shells, as applicable, to identify possible in-service rudder repairs, damages, or fluid ingress; and applicable related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 55 airplanes of U.S. registry.

    We also estimate that it would take about 45 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $0 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $210,375, or $3,825 per product.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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

    For the reasons discussed above, I certify that this AD:

    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.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-0928; 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 AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-24-01 Airbus: Amendment 39-18333. Docket No. FAA-2014-0928; Directorate Identifier 2014-NM-040-AD. (a) Effective Date

    This AD becomes effective January 4, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.

    (1) Airbus Model A330-201, -202, -203, -223, -223F,-243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers.

    (2) Airbus Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

    (e) Reason

    This AD was prompted by a report of skin disbonding on a composite side panel of a rudder installed on an A310 airplane. We are issuing this AD to detect and correct the rudder skin disbonding, which could affect the structural integrity of the rudder, and could result in reduced controllability of the airplane.

    (f) Compliance

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

    (g) Review the Maintenance Records

    Within 24 months after the effective date of this AD: Review the maintenance records of the rudder to determine if any composite side shell panel repair has been accomplished on the rudder since first installation on an airplane.

    (1) If, based on the maintenance record review, any repair identified in Figure A-GBBAA (Sheet 01 and 02) or Figure A-GBCAA (Sheet 02) of the service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD is found: Within 24 months after the effective date of this AD, do a thermography inspection for repair, damages, and fluid ingress, limited to the repaired areas, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD:

    (i) Airbus Service Bulletin A330-55-3043, Revision 1, dated August 20, 2014 (for Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes).

    (ii) Airbus Service Bulletin A340-55-4039, Revision 1, dated August 20, 2014 (for Model A340-211, -212, -213, -311, -312, and -313 airplanes).

    (iii) Airbus Service Bulletin A340-55-5007, Revision 1, dated August 20, 2014 (for Model A340-541 and -642 airplanes).

    (2) For a rudder for which maintenance records are unavailable or incomplete, do the actions specified in paragraphs (g)(2)(i) and (g)(2)(ii) of this AD:

    (i) No later than 3 months before accomplishment of the thermography inspection, as required by paragraph (g)(2)(ii) of this AD, contact Airbus to request related rudder manufacturing data by submitting the serial number of the rudder to Airbus.

    (ii) Within 24 months after the effective date of this AD: Do a thermography inspection for any repair on complete side shells to identify and mark any repair, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD.

    (h) Related Investigative Actions, Corrective Actions, and Repetitive Inspections

    After the inspection as required by paragraph (g)(1) or (g)(2) of this AD: At the applicable compliance times specified in paragraph 1.E., “Compliance,” of Tables 3, 4A, 4B, 4C, 4D, and 5 of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD, accomplish all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD; except as provided by paragraphs (i)(1) and (i)(2) of this AD. Options provided in the service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD for accomplishing the actions are acceptable for the corresponding requirements of this paragraph provided that the related investigative and corrective actions are done at the applicable times specified in paragraph 1.E., “Compliance,” of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD, including applicable repetitive inspection intervals, except as required by paragraphs (i)(1) and (i)(2) of this AD. Thereafter repeat the inspections of the restored and repaired areas at the applicable compliance time specified in paragraph 1.E., “Compliance,” of Tables 3, 4A, 4B, 4C, 4D, and 5 of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD.

    (i) Exceptions to the Service Information

    (1) Where the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD specifies a compliance time relative to the date of the service information, this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) If the service information in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD specifies to contact Airbus: At the applicable compliance times specified in paragraph 1.E., “Compliance,” of the applicable service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (j) Provisions for Certain Airplanes

    Airplanes fitted with a rudder having a serial number (S/N) that is not in the range of S/N TS-1001 through S/N TS-1043 inclusive, S/N TS-2001 through S/N TS-2074 inclusive, S/N TS-3000 through S/N TS-3525 inclusive, S/N TS-4001 throughS/N TS-4170 inclusive, S/N TS-6001 through S/N TS-6246 inclusive, or S/N TS-5001 through S/N TS-5138 inclusive, are not affected by the requirements of paragraphs (g) and (h) of this AD provided that it is determined that no repair has been accomplished as described in the procedures identified in Figure A-GBBAA (Sheet 01 and 02) or Figure A-GBCAA (Sheet 02) of the service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD, as applicable, on the composite side shell panel of that rudder since first installation on an airplane.

    (k) Parts Installation Limitations

    As of the effective date of this AD, no person may install, on any airplane, a rudder, unless the record review and thermography inspection specified in paragraph (g) of this AD has been done on that rudder and thereafter all applicable related investigative actions, repetitive inspections, and corrective actions are done as required by paragraph (h) of this AD, except as provided in paragraph (j) of this AD.

    (l) Repair Prohibition

    As of the effective date of this AD, no person may accomplish a side shell repair on any rudder using a structure repair manual procedure identified in Figure A-GBBAA (Sheet 01 and 02) or Figure A-GBCAA (Sheet 02) of the service information specified in paragraphs (g)(1)(i) through (g)(1)(iii) of this AD, as applicable, on any airplane.

    (m) Credit for Previous Actions

    This paragraph provides credit for the actions specified in this AD, if those actions were performed before the effective date of this AD using the service information in paragraphs (m)(1), (m)(2), and (m)(3) of this AD.

    (1) Airbus Service Bulletin A330-55-3043, dated February 7, 2013.

    (2) Airbus Service Bulletin A340-55-4039, dated February 7, 2013.

    (3) Airbus Service Bulletin A340-55-5007, dated February 7, 2013.

    (n) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] 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. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (o) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0033, dated February 4, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0928.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (p)(3) and (p)(4) of this AD.

    (p) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Airbus Service Bulletin A330-55-3043, Revision 1, dated August 20, 2014.

    (ii) Airbus Service Bulletin A340-55-4039, Revision 1, dated August 20, 2014.

    (iii) Airbus Service Bulletin A340-55-5007, Revision 1, dated August 20, 2014.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on November 9, 2015. Michael Kaszycki, <E T="03">Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.</E>
    [FR Doc. 2015-29851 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-1048; Directorate Identifier 2014-NM-055-AD; Amendment 39-18332; AD 2015-23-14] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. This AD was prompted by reports that cracks can occur in a frame of the tail section on certain airplanes. This AD requires a one-time detailed inspection of the oblique frame 67-2 for any cracking, and repair if necessary. We are issuing this AD to detect and correct such cracking, which could lead to failure of the oblique frame 67-2, and consequent loss of the structural integrity of the tail section.

    DATES:

    This AD becomes effective January 4, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of January 4, 2016.

    ADDRESSES:

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-1048 or in person at the Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC.

    For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-1048.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. The NPRM published in the Federal Register on January 23, 2015 (80 FR 3500). We are issuing this AD to detect and correct cracking of the oblique frame 67-2, which could lead to failure of the oblique frame 67-2, and consequent loss of the structural integrity of the tail section.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0039, dated February 20, 2014, dated (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. The MCAI states:

    Service experience has shown that cracks can occur in oblique frame 67-2 in the tail section on aeroplanes with more than 29 000 flight cycles (FC).

    This condition, if not detected and corrected, can result in an exponential crack growth rate, possibly leading to failure of the oblique frame 67-2 over a certain length and consequent loss of the structural integrity of the tail section of the aeroplane.

    For the reasons described above, this [EASA] AD requires a one-time [detailed] inspection of the oblique frame 67-2 for cracks and, depending on findings, accomplishment of a repair.

    Repetitive inspections are planned to be incorporated into a revision of Fokker Services Report SE-623, which is part of the Airworthiness Limitations Section of the Instructions for Continued Airworthiness, for which a separate [EASA] AD is expected to be published.

    Fokker Services All Operators Message AOF100.187#02 provides additional information concerning the subject addressed by this [EASA] AD.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-1048-0002. Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 3500, January 23, 2015) or on the determination of the cost to the public.

    Conclusion

    We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

    • Are consistent with the intent that was proposed in the NPRM (80 FR 3500, January 23, 2015) for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 3500, January 23, 2015).

    Related Service Information Under 1 CFR Part 51

    Fokker Services B.V. has issued Service Bulletin SBF100-53-124, dated January 23, 2014; and Service Bulletin SBF100-53-125, Revision 1, dated February 13, 2014. The service information describes procedures for a one-time detailed inspection of the oblique frame 67-2 for any cracking, and repair if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this AD.

    Costs of Compliance

    We estimate that this AD affects 8 airplanes of U.S. registry.

    We also estimate that it will take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $680, or $85 per product.

    In addition, we estimate that any necessary follow-on actions will take about 12 work-hours and require parts costing $0, for a cost of $1,020 per product. We have no way of determining the number of aircraft that might need this action.

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

    For the reasons discussed above, I certify that this AD:

    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.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov/#!docketDetail;D=FAA-2014-1048; 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 AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA amends 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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-23-14 Fokker Services B.V.: Amendment 39-18332. Docket No. FAA-2014-1048; Directorate Identifier 2014-NM-055-AD. (a) Effective Date

    This AD becomes effective January 4, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes, certificated in any category, all serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by reports that cracks can occur in the oblique frame 67-2 in the tail section on certain airplanes. We are issuing this AD to detect and correct such cracking, which could lead to failure of the oblique frame 67-2, and consequent loss of the structural integrity of the tail section.

    (f) Compliance

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

    (g) Inspection and Repair

    For airplanes that have accumulated more than 29,000 total flight cycles since the airplane's first flight as of the effective date of this AD: Within 500 flight cycles or 12 months after the effective date of this AD, whichever occurs first, do a one-time detailed inspection of the oblique frame 67-2 for any cracking, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-53-124, dated January 23, 2014. For the purposes of this AD, a detailed inspection is an intensive examination of a specific item, installation, or assembly to detect damage, failure, or irregularity. Available lighting is normally supplemented with a direct source of good lighting at an intensity deemed appropriate. Inspection aids such as mirror, magnifying lenses, etc., may be necessary. Surface cleaning and elaborate procedures may be required.

    (h) Corrective Action

    If any cracking is found during the inspection required by paragraph (g) of this AD, before further flight, repair the oblique frame 67-2, in accordance with the Accomplishment Instructions of Fokker Service Bulletin SBF100-53-125, Revision 1, dated February 13, 2014.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, Washington WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149. Information may be emailed to: [email protected] 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. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Fokker B.V. Service's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0039, dated February 20, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-1048-0002.

    (k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Fokker Service Bulletin SBF100-53-124, dated January 23, 2014.

    (ii) Fokker Service Bulletin SBF100-53-125, Revision 1, dated February 13, 2014.

    (3) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on November 11, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-29852 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM15-2-000; Order No. 819] Third-Party Provision of Primary Frequency Response Service AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is revising its regulations to foster competition in the sale of primary frequency response service. Specifically, the Commission amends its regulations governing market-based rates for public utilities pursuant to the Federal Power Act (FPA) to permit the sale of primary frequency response service at market-based rates by sellers with market-based rate authority for sales of energy and capacity.

    DATES:

    This Final Rule will become effective February 25, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Rahim Amerkhail (General Information), Office of Energy Policy and Innovation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8266. Gregory Basheda (Market Power Screening Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6479. Lina Naik (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8882. SUPPLEMENTARY INFORMATION:

    Order No. 819 Final Rule (Issued November 20, 2015)

    1. The Federal Energy Regulatory Commission (Commission) is revising its regulations to foster competition in the sale of primary frequency response service.1 Specifically, the Commission amends its regulations to revise Subpart H to Part 35 of Title 18 of the Code of Federal Regulations governing market-based rates for public utilities pursuant to sections 205 and 206 of the Federal Power Act (FPA) 2 to permit the sale of primary frequency response service at market-based rates by sellers with market-based rate authority for sales of energy and capacity.

    1 As described in more detail below, this Final Rule defines primary frequency response service as a resource standing by to provide autonomous, pre-programmed changes in output to rapidly arrest large changes in frequency until dispatched resources can take over.

    2 16 U.S.C. 824d, 824e (2012).

    2. This proceeding derives from Order No. 784,3 in which the Commission revised Part 35 of its regulations to reflect reforms to its Avista policy 4 governing the sale of certain ancillary services at market-based rates to public utility transmission providers. Specifically, Order No. 784 found that when appropriate intra-hour transmission scheduling practices are in place, the Avista restrictions need not apply to the sale of Energy Imbalance, Generator Imbalance, Operating Reserve-Spinning and Operating Reserve-Supplemental services, because with those scheduling practices in place the existing market power screens for sales of energy and capacity can also be applied to sales of those ancillary services.5

    3Third-Party Provision of Ancillary Services; Accounting and Financial Reporting for New Electric Storage Technologies, Order No. 784, 78 FR 46,178 (July 30, 2013), FERC Stats. & Regs. ¶ 31,349 (2013).

    4Avista Corp., 87 FERC ¶ 61,223, order on reh'g, 89 FERC ¶ 61,136 (1999) (Avista). Outside the markets operated by regional transmission organizations and independent system operators, Avista authorizes suppliers who cannot show a lack of market power with respect to certain ancillary services to nevertheless sell such services, subject to certain restrictions. As relevant to this Final Rule, these restrictions prohibit sales to a public utility that is purchasing ancillary services to satisfy its own Open Access Transmission Tariff (OATT) requirements to offer ancillary services to its own customers, or sales to a traditional, franchised public utility affiliated with the third-party seller, or where the underlying transmission service is on the transmission system of the affiliated public utility.

    5 Order No. 784, FERC Stats. & Regs. ¶ 31,349 at P 4, PP 57-58.

    3. However, because of the unique technical and geographic requirements associated with Reactive Supply and Voltage Control (under OATT Schedule 2) and Regulation and Frequency Response (under OATT Schedule 3),6 the Commission only allowed market-based rate sales of Schedule 2 and Schedule 3 services to a public utility that is purchasing ancillary services to satisfy its OATT requirements if either: (a) The sale is made pursuant to a competitive solicitation that meets certain specified requirements; or (b) the sale is made at or below the buying public utility transmission provider's own Schedule 2 or 3 rate, as applicable. The Commission further stated its intention to gather more information regarding the technical, economic and market issues concerning the provision of these services in a separate proceeding.

    6Id. PP 59-61. Although the title of Schedule 3 addresses both frequency response and regulation, the two services are distinct from each other. Frequency response is a resource standing by to provide autonomous, pre-programmed changes in output to rapidly arrest large changes in frequency until dispatched resources can take over while regulation service is centrally dispatched through automatic generation control (AGC) and is not focused exclusively on frequency control.

    4. Commission staff held a workshop on April 22, 2014 in this proceeding and then issued a notice of proposed rulemaking that distinguished between regulation service and primary frequency response service, and proposed to allow sales of primary frequency response service at market-based rates by entities granted market-based rate authority for sales of energy and capacity.7 In response to the NOPR, 19 sets of comments were submitted.

    7Third-Party Provision of Primary Frequency Response Service, Notice of Proposed Rulemaking (NOPR), 80 FR 10,426 (Feb. 26, 2015), FERC Stats. & Regs. ¶ 32,705 (2015).

    I. Background

    5. The Commission in Order No. 888 8 delineated two categories of ancillary services: Those that the transmission provider is required to provide to all of its basic transmission customers 9 and those that the transmission provider is only required to offer to provide to transmission customers serving load in the transmission provider's control area.10 With respect to the second category, the Commission reasoned that the transmission provider is not always uniquely qualified to provide the services, and customers may be able to more cost-effectively self-supply them or procure them from other entities. The Commission contemplated that third parties (i.e., parties other than a transmission provider supplying ancillary services pursuant to its OATT obligation) could provide these ancillary services on other than a cost-of-service basis if such pricing was supported, on a case-by-case basis, by analyses that demonstrated that the seller lacks market power in the relevant product market.11

    8See Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, FERC Stats. & Regs. ¶ 31,036 (1996), order on reh'g, Order No. 888-A, FERC Stats. & Regs. ¶ 31,048, order on reh'g, Order No. 888-B, 81 FERC ¶ 61,248 (1997), order on reh'g, Order No. 888-C, 82 FERC ¶ 61,046 (1998), aff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).

    9 The first category consists of Scheduling, System Control and Dispatch service and Reactive Supply and Voltage Control from Generation Sources service.

    10 The second category consists of Regulation and Frequency Response service, Energy Imbalance service, Operating Reserve-Spinning service, and Operating Reserve-Supplemental service. Order No. 890 later added an additional ancillary service to this category: Generator Imbalance service. See Preventing Undue Discrimination and Preference in Transmission Service, Order No. 890, FERC Stats. & Regs. ¶ 31,241, at P 85, order on reh'g, Order No. 890-A, FERC Stats. & Regs. ¶ 31,261 (2007), order on reh'g, Order No. 890-B, 123 FERC ¶ 61,299 (2008), order on reh'g, Order No. 890-C, 126 FERC ¶ 61,228 (2009), order on clarification, Order No. 890-D, 129 FERC ¶ 61,126 (2009).

    11 Order No. 888, FERC Stats. & Regs. ¶ 31,036 at 31,720-21.

    6. Subsequently, in Avista,12 the Commission adopted a policy allowing third-party ancillary service providers that could not perform a market power study to sell certain ancillary services at market-based rates with certain restrictions.13

    12See supra n.4.

    13 These ancillary services included: Regulation and Frequency Response, Energy Imbalance, Operating Reserve-Spinning, and Operating Reserve-Supplemental. The Commission did not extend this Avista policy to Reactive Supply and Voltage Control from Generation Sources service, which means that third parties wishing to sell this ancillary service at market-based rates would be required to present specific evidence of a lack of market power in the provision of this specific product before the Commission would authorize sales of this service at market-based rates. The Commission also did not extend the Avista policy to Scheduling, System Control and Dispatch service. Because only balancing area operators can provide this ancillary service, it does not lend itself to competitive supply. Order No. 784, FERC Stats. & Regs. ¶ 31,349 at n.17.

    7. As noted earlier, the instant proceeding derives from Order No. 784 in which the Commission found that when appropriate intra-hour transmission scheduling practices are in place, the Avista restrictions need not apply to the sale of Energy Imbalance, Generator Imbalance, Operating Reserve-Spinning and Operating Reserve-Supplemental services, because with those practices in place, the results of the existing market power screens for sales of energy and capacity can also be applied to sales of these ancillary services.14

    14 Because energy and generator imbalance services merely require the ability to respond to dispatch within the hour, the Commission found that any sub-hourly transmission scheduling interval would be sufficient. Order No. 784-A, 146 FERC ¶ 61,114 at P 12 (2012). As the operating reserve services require more rapid response within the hour (spinning reserves must be available immediately and supplemental reserves must be available within a short period of time), the Commission required potential sellers of operating reserve services to satisfactorily explain, in their market-based rate applications, how the particular intra-hour transmission scheduling practices or other protocols in their regions permit resources in one balancing authority area to respond to contingencies in a neighboring balancing authority area within these tight time frames. Order No. 784-A, 146 FERC ¶ 61,114 at PP 13-15.

    8. However, the Commission also found in Order No. 784 that the record developed to that point did not support expanding these market-based rate authorizations to include sales of Reactive Supply and Voltage Control (under OATT Schedule 2) (Schedule 2 service) and Regulation and Frequency Response (under OATT Schedule 3) services (Schedule 3 service).15 Instead, the Commission allowed market-based rate sales of Schedule 2 and Schedule 3 services to a public utility that is purchasing ancillary services to satisfy its OATT requirements, provided the sale is made pursuant to a competitive solicitation that meets certain specified requirements 16 or the sale is made at or below the buying public utility transmission provider's own Schedule 2 or 3 rate, as applicable.17 The Commission further stated its intention to gather more information regarding the technical, economic and market issues concerning the provision of these services in a separate proceeding that considers, among other things, the ease and cost-effectiveness of relevant equipment upgrades, the need for and availability of appropriate special arrangements such as dynamic scheduling or pseudo-tie arrangements, and other technical requirements related to the provision of Schedule 2 and Schedule 3 services.18

    15 Order No. 784, FERC Stats. & Regs. ¶ 31,349 at PP 59-61.

    16Id. PP 99-101.

    17Id. PP 82-85.

    18Id. P 61.

    9. Pursuant to that directive, Commission staff held a workshop on April 22, 2014 to obtain input from interested persons regarding the technical, economic and market issues concerning the provision of Schedule 2 and Schedule 3 services.19 Among other things, the workshop explored issues surrounding the sale of these services at market-based rates. Comments submitted in response to the workshop that discussed the characteristics associated with a primary frequency response product indicated that market-based rate sales of such a product are feasible.20

    19See Third-Party Provision of Reactive Supply and Voltage Control and Regulation and Frequency Response Services, Final Agenda, Docket No. AD14-7-000 (Apr. 22, 2014).

    20 For example, most commenters echo Edison Electric Institute's (EEI) arguments that virtually all generators can provide primary frequency response, and because it is provided at the interconnection level, balancing authority areas have more flexibility on the location of the resource than they would for other products. See, e.g., Edison Electric Institute Post-Workshop Comments, Docket No. AD14-7-000, at 7-8 (filed June 3, 2014).

    10. Separately, the Commission on January 16, 2014 issued a Final Rule approving reliability standard BAL-003-1 21 under which a balancing authority 22 must maintain a minimum frequency response obligation.23 While most balancing authorities should be able to meet the new reliability standard using their own resources,24 some may nevertheless be interested in purchasing primary frequency response service from others if doing so would be economically beneficial.

    21 Reliability standards proposed by the North American Electric Reliability Corporation (NERC) are subject to the Commission's jurisdiction under section 215 of the Federal Power Act. 16 U.S.C. 824o(d). The Commission has authority to approve or reject such standards, and to enforce those that are approved.

    22 The NERC Glossary defines a balancing authority as “(t)he responsible entity that integrates resource plans ahead of time, maintains load-interchange-generation balance within a Balancing Authority Area, and supports Interconnection frequency in real time.” See http://www.nerc.com/pa/Stand/Glossary%20of%20Terms/Glossary_of_Terms.pdf.

    23See Frequency Response and Frequency Bias Setting Reliability Standard, Order No. 794, 146 FERC ¶ 61,024 (2014).

    24Id. PP 62-63.

    11. Based upon information received at the workshop and in the subsequently-filed 11 written comments, the Commission issued a NOPR that differentiated between regulation service and primary frequency response service, analyzed the technical characteristics of primary frequency response service to show why the existing market power screens for sales of energy and capacity could be used to show lack of market power for sales of primary frequency response as well, and therefore proposed to allow sales of primary frequency response service at market-based rates by entities granted market-based rate authority for sales of energy and capacity.25 The NOPR sought comment on all aspects of this proposal.26

    25 NOPR, FERC Stats. & Regs. ¶ 32,705 (2015). With respect to the remainder of the issues discussed in the workshop and associated written comments, the Commission did not see sufficient evidence to pursue generic reforms through this rulemaking proceeding. Id. P 10.

    26Id. P 30.

    12. Most of the 19 sets of comments submitted in response to the NOPR are supportive of the proposal, with some commenters seeking clarification of various issues. Meanwhile, the limited set of adverse comments fall into two broad categories: (1) Comments seeking to contest the technical arguments regarding market power relied upon by the NOPR; and (2) comments that do not relate to market power screening but rather relate to various aspects of the implementation of actual primary frequency response transactions.

    13. For the reasons described more fully below, the Commission finds that it is appropriate to finalize the NOPR proposal to permit voluntary sales of primary frequency response service at market-based rates for entities granted market-based rate authority for sales of energy and capacity. We also address various requests for clarification, as discussed more fully below. We emphasize that this Final Rule does not place any limits on the types of transactions available to procure primary frequency response service; they may be cost-based or market-based, bundled with other services or unbundled as discussed further below, and inside or outside of organized markets. This Final Rule focuses solely on how jurisdictional entities can qualify for market-based rates for primary frequency response service in the context of voluntary bilateral sales.

    II. Discussion

    14. In the NOPR in this proceeding, the Commission proposed to define primary frequency response service as the “autonomous, automatic, and rapid action of a generator, or other resource, to change its output (within seconds) to rapidly dampen large changes in frequency.” 27 Elsewhere in the NOPR, the Commission discussed the idea that individual autonomous responses to large changes in frequency will be of short duration, sustained only until dispatched regulation or operating reserve resources begin responding.28 As there are aspects of both statements that are important to properly defining this product, in this Final Rule the Commission will refine and clarify the NOPR's definition to state that primary frequency response service is defined as a resource standing by to provide autonomous, pre-programmed changes in output to rapidly arrest large changes in frequency until dispatched resources can take over.

    27Id. P 12.

    28Id. P 24.

    A. Technical Issues Related to the Application of Existing Market Power Screens to Primary Frequency Response Service 1. Geographic Market and the Impact of Resource Distance

    15. The Commission analyzes horizontal market power for market-based sales of energy and capacity 29 using two indicative screens, the wholesale market share screen and the pivotal supplier screen, to identify sellers that raise no horizontal market power concerns and can otherwise be considered for market-based rate authority.30 The wholesale market share screen measures whether a seller has a dominant position in the relevant geographic market in terms of the number of megawatts of uncommitted capacity owned or controlled by the seller, as compared to the uncommitted capacity of the entire market.31 A seller whose share of the relevant market is less than 20 percent during all seasons passes the wholesale market share screen.32 The pivotal supplier screen evaluates the seller's potential to exercise horizontal market power based on the seller's uncommitted capacity at the time of annual peak demand in the relevant market.33 A seller satisfies the pivotal supplier screen if its uncommitted capacity is less than the net uncommitted supply in the relevant market.34

    29See 18 CFR 35.37(b) (2015).

    30See Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 697, FERC Stats. & Regs. ¶ 31,252 at PP 13, 62, clarified, 121 FERC ¶ 61,260 (2007), order on reh'g, Order No. 697-A, FERC Stats. & Regs. ¶ 31,268, clarified, 124 FERC ¶ 61,055, order on reh'g, Order No. 697-B, FERC Stats. & Regs. ¶ 31,285 (2008), order on reh'g, Order No. 697-C, FERC Stats. & Regs. ¶ 31,291 (2009), order on reh'g, Order No. 697-D, FERC Stats. & Regs. ¶ 31,305 (2010), aff'd sub nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. denied, 133 S. Ct. 26 (2012). See also 18 CFR 35.37(b), (c)(1) (2015).

    31 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 43.

    32Id. PP 43-44, 80, 89.

    33 18 CFR 35.37(c)(1) (2015).

    34 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 42.

    16. Passing both the wholesale market share screen and the pivotal supplier screen creates a rebuttable presumption that the seller does not possess horizontal market power; failing either screen creates a rebuttable presumption that the seller possesses horizontal market power.35 A seller that fails one of the screens may present evidence, such as a delivered price test, to rebut the presumption of horizontal market power.36 In the alternative, a seller may accept the presumption of horizontal market power and adopt some form of cost-based mitigation.37

    35 18 CFR 35.37(c)(1) (2015).

    36 18 CFR 35.37(c)(2) (2015). For purposes of rebutting the presumption of horizontal market power, sellers may use the results of the delivered price test to perform pivotal supplier and market share analyses and market concentration analyses using the Herfindahl-Hirschman Index (HHI). The HHI is a widely accepted measure of market concentration, calculated by squaring the market share of each firm competing in the market and summing the results. The Commission has stated that a showing of an HHI less than 2,500 in the relevant market for all season/load periods for sellers that have also shown that they are not pivotal and do not possess a market share of 20 percent or greater in any of the season/load periods would constitute a showing of a lack of horizontal market power, absent compelling contrary evidence from intervenors. Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 111.

    37 18 CFR 35.37(c)(3) (2015).

    17. Three of the key components of the analysis of horizontal market power are the definition of products, the determination of appropriate geographic scope of the relevant market for each product, and the identification of the uncommitted generation supply within the relevant geographic market. In Order No. 697, the Commission adopted a default relevant geographic market for sales of energy and capacity.38 Specifically, the Commission generally uses a seller's balancing authority area plus directly interconnected (first-tier) balancing authority areas, or uses the Regional Transmission Organization (RTO) or Independent System Operator (ISO) market if applicable, as the default relevant geographic market. However, where the Commission has made a specific finding that there is a submarket within an RTO/ISO, that submarket becomes the default relevant geographic market for sellers located within the submarket for purposes of the market-based rate analysis. The Commission also provided guidance as to the factors the Commission will consider in evaluating whether, in a particular case, to adopt an alternative larger or smaller geographic market instead of relying on the default geographic market.39

    38 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 15.

    39 A necessary condition that must be satisfied to justify an alternative market is a demonstration regarding whether there are frequently binding transmission constraints during historical peak seasons examined in the screens and at other competitively significant times that prevent competing supply from reaching customers within the proposed alternative geographic market. Id. P 268.

    18. The Commission stated in the NOPR that, because primary frequency response service can be effectively supplied by any resource throughout an interconnection and have the same ability to dampen harmful changes in interconnection-wide frequency, the geographic market for market power analysis of a primary frequency response product could be the entire interconnection within which the buyer resides, and in any event would be no smaller than the geographic market represented in the existing market power screens; 40 i.e., the home balancing authority area of the seller plus first-tier balancing authority areas or the RTO/ISO market if applicable. The Commission therefore proposed to apply the existing market power screens used for energy and capacity sales, without modification as to geographic market, to sales of primary frequency response service.

    40 NOPR, FERC Stats. & Regs. ¶ 32,705 at P 23.

    19. Most commenters either express specific support for this finding,41 or are silent on the issue.42 However, American Public Power Association, the National Rural Electric Cooperative Association, and the Transmission Access Policy Study Group (together, TAPS), PJM Interconnection, L.L.C. (PJM), and Midcontinent Independent System Operator, Inc. (MISO) raise limited, technical concerns regarding this finding.

    41See, e.g., American Wind Energy Association (AWEA) at 6; Calpine Corporation (Calpine) at 5; EEI at 2; Electricity Consumers Resources Council (ELCON) at 3.

    42See Dominion Resources Services, Inc. (Dominion) at 2; Duke Energy Corporation (Duke) at 3; Electric Power Supply Association (EPSA) at 3; Energy Storage Association (ESA) at 1; Idaho Power Company (Idaho Power) at 2; Public Interest Organizations at 2.

    20. TAPS argues that while remote generators may be capable of responding, there is reason to be concerned that frequency response from a distant generator would be less effective than frequency response from a nearby generator, and that this alleged impact of distance would upset the Commission's proposal to rely on the existing market-based rate screens used for energy and capacity sales to ensure that sellers of primary frequency response service lack market power when making sales to public utility transmission providers.43

    43 TAPS at 5-6.

    21. PJM similarly asserts, without elaboration, that questions remain as to whether there is sufficient substitutability of units across the Eastern Interconnection so as to support the conclusion that market power issues are of limited concern in the provision of primary frequency response. PJM also asserts that the kind of communications infrastructure, protocols, and compensation policies necessary to permit PJM to obtain primary frequency response from resources outside of its market do not yet exist.44

    44 PJM at 4.

    22. MISO argues that, while the NOPR is correct that any resource anywhere in an interconnection can help stabilize the frequency of that interconnection following a load or resource loss, there may be negative reliability impacts caused by flows to very remote locations, particularly if there are weak or transmission-limited interfaces.45

    45 MISO at 5.

    Commission Determination

    23. We adopt the NOPR proposal to apply the existing market power screens used for energy and capacity sales, without modification as to geographic market, to sales of primary frequency response service. With respect to TAPS's arguments, the Commission finds that the delay in sensing a change in frequency associated with resource distance does not undermine the NOPR's proposal to rely upon the default geographic market reflected in the existing market power screens for sales of energy and capacity; i.e., the home balancing authority area of the seller plus first-tier balancing authority areas or the RTO/ISO market if applicable. While TAPS is correct that a resource located far across an interconnection from the site of a contingency event should sense the resulting change in frequency later than would a closer resource, studies of this issue 46 indicate that this delay would be within the NOPR's product definition that requires primary frequency response resources to change their output within seconds in response to a large change in frequency.47

    46See, e.g., http://fnetpublic.utk.edu/eventsamples/20110823175058_E.jpg. See also, John Undrill, Power and Frequency Control as it Relates to Wind-Powered Generation (2010), available at http://www.ferc.gov/CalendarFiles/20110120114503-Power-and-Frequency-Control.pdf.

    47 NOPR, FERC Stats. & Regs. ¶ 32,705 at P 12.

    24. With respect to PJM's assertion that questions remain as to the substitutability of units across the Eastern Interconnection, PJM has not explained what those questions may be, and in any event the NOPR does not propose to test market power based on an interconnection-wide geographic market.

    25. With respect to PJM's argument that the kind of communications infrastructure, protocols, and compensation policies necessary to permit PJM to obtain primary frequency response from resources outside of its market do not yet exist, the Commission partially agrees and partially disagrees as described below, but even where we partially agree, this would not impact the NOPR proposal regarding market power screening.

    26. With respect to communications protocols, the Commission agrees that in order to effectuate actual voluntary primary frequency response transactions, it may be necessary to further develop or refine existing communications protocols, as more detailed data may be needed for purposes of verifying primary frequency response activity than for other activities. However, this refinement should not pose such a fundamental barrier to sales of primary frequency response service from one balancing authority area to another that it calls into question the default geographic market of the existing market power screens. This is because, as will be discussed further below, there are existing information sharing systems and protocols that should be able to accommodate the more detailed information associated with primary frequency response transactions without requiring an unreasonable amount of effort from affected parties. Hence, for market power screening purposes, resources in first-tier balancing authority areas should remain viable competitors to supply primary frequency response to the home balancing authority area.

    27. With respect to compensation policies, the Commission disagrees with PJM that compensation policies necessary to support this Final Rule do not yet exist. As will be further discussed below, this Final Rule does not require development of organized markets for primary frequency response service, but rather is focused on voluntary bilateral sales of primary frequency response at market-based rates. In bilateral markets, compensation would be negotiated between the buyer and the seller pursuant to the seller's market-based rate authority. As such, bilateral transactions will be strictly voluntary and the buyer will presumably only agree to them if it sees an economic reason to do so. Therefore, no further compensation policies are necessary in connection with this Final Rule.

    28. Finally, MISO argues that there may be negative reliability impacts caused by flows to very remote locations, particularly if there are weak or transmission-limited interfaces. The Commission agrees but sees this as a practical consideration relevant to particular bilateral transactions rather than a universal issue that invalidates the use of existing market power screens to show lack of market power for sales of primary frequency response service. Accordingly, this argument does not invalidate the NOPR proposal regarding market power screening for sellers of primary frequency response service.

    2. Need for Transmission Reservation and Scheduling

    29. With respect to potential barriers related to transmission scheduling or reservation, the Commission stated in the NOPR that primary frequency response service should not require any transmission reservation or scheduling, because by definition individual frequency responses would not be sustained for long enough periods to trigger a need for transmission service or schedule changes. Rather, such individual primary frequency responses should be rapidly replaced by resources centrally dispatched by the relevant balancing authority.48

    48 NOPR, FERC Stats. & Regs. ¶ 32,705 at P 24.

    30. Most commenters either specifically agree that transmission scheduling and reservation should not be necessary in connection with the temporary, autonomous changes in output associated with primary frequency response service,49 or remain silent on the issue. However, EEI asserts that transmission reservation or scheduling may be needed in some cases. According to EEI, the duration of primary frequency response products could range from a minute or two to supplement a response for only large events, to an unbounded number of minutes for as long as frequency remains beyond a given frequency deadband. In the case of longer durations, according to EEI, transmission providers may have to assess the potential transmission impact of third-party resources providing primary frequency response through their service territory for extended periods of time.50 Duke makes similar arguments.51

    49See, e.g., AWEA at 6; ELCON at 3; MISO at 1.

    50 EEI at 8.

    51 Duke at 7-8.

    31. Similarly, TAPS argues that the Commission did not adequately examine in the NOPR the implications of remote provision of primary frequency response on transmission availability and co-optimization of energy and ancillary services. TAPS argues the Commission should provide additional analysis of how remote supply of frequency response service will affect transmission reserve margin and available transfer capability, how the associated costs are borne, and whether this will have adverse consequences for market efficiency, particularly in RTOs.52

    52 TAPS at 9-11.

    Commission Determination

    32. The Commission continues to believe that transmission reservation and scheduling will not create a barrier to sales of frequency response within an interconnection. While the Commission concedes that in some cases transmission capacity may need to be reserved to support a sale of primary frequency,53 we continue to believe that in the vast majority of cases the sale of primary frequency response service should not require any transmission reservation or scheduling because, by definition, individual frequency responses would not be sustained for long enough periods to trigger a need for transmission service or schedule changes. With respect to EEI's arguments, the Commission disagrees that primary frequency response, as defined in this Final Rule, could last for an unbounded number of minutes. By the definition of primary frequency response provided in this Final Rule, individual primary frequency responses shall be short, lasting only until dispatched resources can take over. Thus, even if a deviation from target frequency lasts longer than the typical short responses envisioned by our primary frequency response product definition, this does not necessarily mean that a particular resource that continues to respond to that deviation is doing so through extended periods of primary frequency response service as EEI suggests.

    53 The Commission expects that sales of primary frequency response from resources in transmission constrained areas would constitute the most likely scenario where a reservation of transmission capacity might be needed to support the sale. Naturally, the added cost of such transmission purchases would likely be considered by the potential purchaser in deciding whether or not to enter into such purchase.

    33. Rather, after the initial autonomous response, any continuing response would be deemed to occur as a result of dispatch instructions from the relevant balancing authority, which would most likely constitute either use of regulation or operating reserves. Accordingly, while a transmission reservation may sometimes be needed to support a sale of primary frequency response, there should never be a need to actually schedule transmission or change a transmission schedule in connection with primary frequency response service. Hence, transmission scheduling should pose no barrier to sales of primary frequency response service, and in the open access transmission environment created by Order No. 888, reservation by itself does not present any undue barrier to participation. Indeed, all other ancillary service transactions, at least in bilateral markets, are expected to include needed transmission reservation.

    34. With respect to TAPS's argument, the Commission agrees that transmission providers may in some cases need to set aside additional transmission capacity to support particular sales of primary frequency response from remote resources. However, the possibility that particular transactions involving remote resources may require additional transmission capacity to be set aside does not undermine the NOPR proposal to grant market-based rate authority for voluntary sales of primary frequency response to entities that pass the existing market power screens for sales of energy and capacity. These screens already limit consideration of imports from first-tier balancing authority areas based on simultaneous transmission import limits as a way to test market power under realistic conditions based on a reasonable simulation of historical conditions.54 No further consideration of transmission impacts is necessary to test for seller market power. Analysis of (1) how remote supply of primary frequency response service in particular transactions might affect transmission reserve margin and available transfer capability; (2) how the associated costs would be borne; or (3) whether this might have adverse consequences for market efficiency are concerns that are not relevant to the Commission's market power assessment. Rather, these are concerns that may impact a balancing authority's decision as to whether to enter into any given primary frequency response transaction, or that may become relevant if any RTO or ISO voluntarily chooses to develop an organized market for primary frequency response—something that is not required by this Final Rule.

    54 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at P 354.

    35. With respect to TAPS's arguments regarding potential distortion of co-optimized RTO/ISO energy and ancillary service markets, this Final Rule merely clarifies the appropriate method for ex ante market power screening for potential sellers of primary frequency response service. It does not require any entity, including RTOs and ISOs, to purchase primary frequency response. Nor does it require RTOs and ISOs to develop organized markets for primary frequency response. The Commission finds it reasonable to assume that if an RTO or ISO ever decides to purchase primary frequency response service, it will only do so if the RTO or ISO can address its and its stakeholders' concerns as to the impact on its co-optimized markets. Furthermore, if such purchases require any tariff modifications, the RTO or ISO would also need to submit a filing to the Commission for its review addressing such issues. Accordingly, in the context of this Final Rule focusing on market power screens, these concerns are premature and beyond the scope.

    B. Requests for Clarification 1. Purchases Required or Optional

    36. A variety of entities request clarification that this Final Rule does not require purchases of primary frequency response or the development of organized markets for primary frequency response.55 At the other end of the spectrum, Calpine argues that RTOs and ISOs should be given a deadline to develop tariff changes that would enable them to implement primary frequency response compensation mechanisms.56

    55 EEI at 1-2; California Independent System Operator Corporation (CAISO) at 2; MISO at 1; PJM at 2, 5.

    56 Calpine at 9.

    37. The Commission grants the requests to clarify that this Final Rule does not require any entity to purchase primary frequency response from third parties or to develop an organized market for primary frequency response. This Final Rule is limited to issues associated with market power screening for voluntary bilateral sellers of primary frequency response service. In light of this clarification, we deny Calpine's request for RTOs and ISOs to be given a deadline to develop tariff changes that would enable them to implement primary frequency response compensation mechanisms.

    2. Interaction With Regulation Service

    38. EEI and Duke both request that sellers be able to retain the reference to “Regulation and Frequency Response Service” in their current market-based rate tariffs, and that the Final Rule make clear that providing market-based rate authorization for primary frequency response service is not intended to limit the options that buyers have in procuring these ancillary services.57

    57 EEI at 4; Duke at 3-7.

    39. The Commission does not intend to limit the options that buyers have in procuring these ancillary services but will nevertheless affirm the NOPR proposal to require a separate listing of regulation service and primary frequency response service in market-based rate tariffs. However, to address EEI's and Duke's concerns, the Commission clarifies that, even though we require that regulation service and primary frequency response service be separately listed in sellers' market-based rate tariffs, this does not mean that buyers and sellers cannot agree to combined transactions involving both regulation service and primary frequency response service with appropriate restrictions. Those restrictions involve the need for the market-based regulation service component to be limited to the buyer's OATT rate for regulation or the outcome of a competitive solicitation as described in Order No. 784.58 No such restrictions would apply to the primary frequency response service component of such combined transactions.

    58 Order No. 784, FERC Stats. & Regs. ¶ 31,349 at PP 82 and 99-101.

    40. Duke also expresses concern as to what impact splitting the services in the “Third Party Provider” section of the market-based rate tariff would have on transmission providers and any transmission customers self-providing service under Schedule 3 of the OATT.59

    59 Duke at 6, 8.

    41. The Commission clarifies that OATT Schedule 3 serves a different purpose from the market-based rate tariff (cost-based sales from the OATT provider versus market-based sales from third parties), and so OATT Schedule 3 does not need modification as a result of this Final Rule. However, to the extent that a particular OATT provider purchases primary frequency response from a third party in order to help serve its OATT customers, it may propose in a section 205 filing to include such costs in its OATT Schedule 3 rates.

    3. Information Sharing and Measurement and Verification

    42. A variety of entities emphasize the importance of adequate information sharing and measurement and verification if primary frequency response service is to be traded.60 In this regard, SmartSenseCom, Inc. (SmartSenseCom) also argues that in order to support the broadest base of available resources to provide primary frequency response services, potential providers should have flexibility in their ability to select any monitoring device that meets or exceeds applicable industry standards for accuracy as a means to measure frequency and trigger the primary frequency response at a given set point.61

    60 CAISO at 2-3; EEI at 5; MISO at 1-4; Duke at 7-8; Dominion at 3; Idaho Power at 2.

    61 SmartSenseCom at 9-10.

    43. The Commission agrees that these matters are important, and expects that potential buyers will ensure that the resources from which they purchase are capable of providing the service in a useful manner, consistent with relevant NERC requirements and guidelines as discussed earlier. This would require that, among other things, the parties agree to appropriate information sharing and measurement and verification. At this stage, and given the voluntary nature of any primary frequency response transactions that may result from this Final Rule, the Commission sees no need to be more prescriptive regarding specific methods of information sharing and measurement and verification.

    44. In a related matter, TAPS asserts that the NOPR's statement that telemetry sharing should not pose any significant barrier to the use of remote resources for the purposes of market-based rates requires further evaluation. TAPS argues that transmitting the telemetry data from one balancing authority area to just one other balancing authority area effectively doubles (or more) the number of points at which the data can be intercepted or attacked. Thus, TAPS argues that the Commission should provide additional analysis to evaluate whether these potential technical barriers will impede the ability of remote generators to compete to make market-based rate sales of primary frequency response across balancing authorities and to multiple balancing authorities.62

    62 TAPS at 6-9.

    45. As mentioned earlier, the Commission finds that balancing authorities already share with their neighbors the same type of operational information contemplated here, both on a day-to-day basis, and occasionally through special arrangements like pseudo-ties or dynamic schedules, though they may not do so with as much detail as would be required for primary frequency response. In sharing such information, they use secure protocols such as Inter-Control Center Communications Protocol.63 There appears to be nothing unique about information related to primary frequency response transactions, which would largely involve the real-time operational state of the resources in question as a way of verifying both their readiness to respond and actual responses to relevant frequency deviations, that could not be accommodated by this existing secure protocol widely used by the electric utility industry. As a result, the Commission continues to believe that the information sharing required to facilitate sales of primary frequency response service will not create a barrier to such sales and thus we find in this Final Rule that the market power screens used for energy and capacity are valid for primary frequency response service.

    63See International Electroctechnical Commission, Telecontrol equipment and systems—Part 6-802: Telecontrol protocols compatible with ISO standards and ITU-T recommendations—TASE.2 Object models (Sept. 2005), available at https://webstore.iec.ch/publication/18156.

    4. Definition of Primary Frequency Response Service

    46. Parties request various clarifications regarding the definition of primary frequency response service. Calpine and EPSA assert that the product definition for primary frequency response service should include both inertial response from conventional “spinning mass” generators and primary frequency response from discretionary turbine-governor settings.64 Similarly, Union of Concerned Scientists argues for the inclusion of synchronous and/or synthetic inertia as a market product that can be used to provide primary frequency response, and requests that the Commission clarify whether the creation of markets for inertia is within the scope of changes that were envisioned by the Commission when it issued this NOPR.65

    64 Calpine at 7, n.16; EPSA at 5.

    65 Union of Concerned Scientists at 8.

    47. The Commission emphasizes that this Final Rule addresses market-based rate authority for sales of services that fit the definition of primary frequency response services, i.e., resources standing by to provide autonomous, pre-programmed changes in output to rapidly arrest large changes in frequency until dispatched resources can take over. True inertia, while also serving an important function, does not fit this definition because it does not arrest large changes in frequency, but rather acts to oppose all changes in frequency. The term “synthetic inertia” is more complicated to address because it is not clear from the record whether there is actual industry consensus on what the term means. However, if it is assumed to mean a resource standing by to provide autonomous, pre-programmed changes in output to rapidly arrest large changes in frequency until dispatched resources can take over, then the Commission would simply consider it a form of primary frequency response subject to this Final Rule. In contrast, if the “synthetic inertia” response either cannot be sustained until dispatched resources take over, or is merely aimed at slowing all changes in frequency instead of arresting large changes, then “synthetic inertia” would not be a form of primary frequency response, and sales of it would not be encompassed by this Final Rule.

    48. Several commenters assert that the product definition must differentiate based on response time in addition to magnitude of response.66 Consistent with this idea, SmartSenseCom asks the Commission to amend section 35.28 of its regulations by adding a new paragraph that states the following:

    66 Calpine at 7; AWEA at 4; Grid Storage Consulting at 2-4; Public Interest Organizations at 4; SmartSenseCom at 8.

    Primary frequency response in ancillary service markets. Each Commission approved independent system operator or regional transmission organization that has a tariff that provides for the compensation for primary frequency response service must provide such compensation based upon the actual service provided, include a capacity payment that takes into account the speed of primary frequency response-providing resources and a payment for performance that reflects the quantity of primary frequency response provided by a resource in response to a frequency deviation.67

    67 SmartSenseCom at Ex. A.

    49. The Commission finds that the Final Rule's product definition, summarized at the beginning of the discussion section above, already sufficiently incorporates the importance of speed. The Commission finds that no further differentiation based on response time or magnitude is necessary in connection with this Final Rule, which deals only in the appropriate ex ante market power screening of potential sellers of primary frequency response service. For this reason, and because this Final Rule does not require development of organized markets for primary frequency response, the Commission also denies as unnecessary the requested addition to the Commission's regulations related to organized RTO and ISO markets for primary frequency response.

    50. Grid Storage Consulting, LLC (Grid Storage Consulting) and Public Interest Organizations argue that the product definition for this service should require response that is immediate, bi-directional, proportional to the frequency deviation, continuous in the sense of not being prematurely interrupted by competing controls or physical limitations, and certain.68 The Commission clarifies that potential voluntary buyers and sellers of primary frequency response service are free to negotiate any refinements to the basic product definition in this Final Rule that they see fit, so long as such refinements remain consistent with the basic definition. Obviously, any market-based rate authority granted as a result of this Final Rule would only apply to products that are consistent with the definition of primary frequency response service described at the beginning of the discussion section above.

    68 Grid Storage Consulting at 4-7; Public Interest Organizations at 4.

    51. SmartSenseCom urges the Commission to define primary frequency response directly within the Commission's regulations.69 The Commission denies this request as unnecessary. The Commission's regulations do not include definitions of every particular product subject to its jurisdiction; it is sufficient for such product definitions to be described in relevant Commission orders such as this one.

    69 SmartSenseCom at 3.

    5. Miscellaneous Requests for Clarification

    52. EEI encourages the Commission to make clear in the Final Rule that a potential third-party provider would not be disqualified from competing on the basis that it is interconnected to an affiliated transmission provider. According to EEI, not addressing the affiliate restriction provisions of the Avista policy could unnecessarily limit the pool of third-party generators that would be eligible to compete to provide market-based primary frequency response service.70

    70 EEI at 7.

    53. EEI's concern relates to the component of the Avista restrictions highlighted below:

    (2) to address affiliate abuse concerns, the approach [permitting market-based rate sales of ancillary services without a corresponding market power analysis] will not apply to sales to a traditional, franchised public utility affiliated with the third-party supplier, or to sales where the underlying transmission service is on the system of the public utility affiliated with the third-party supplier. 71

    71Avista Corp., 87 FERC ¶ 61,223 at n.12 (1999) (emphasis added).

    54. As the Commission noted in the Avista passage quoted above, this second Avista restriction was meant to address affiliate abuse. However, EEI's concern that potential third-party providers should not be disqualified from competing on the basis that they are interconnected to an affiliated transmission provider appears to be based on an overly broad interpretation of the language highlighted above; i.e., one that would prevent sales that only tangentially involve the affiliated public utility transmission provider's system. While the Commission understands this concern, we do not believe it is justified because the highlighted language targets a much narrower set of circumstances.

    55. In particular, in Ameren Marketing, 72 the Commission approved a case-by-case request for market-based rates for ancillary services sales by a third-party seller to transmission customers located on the transmission system of the seller's public utility transmission provider affiliate where the seller offered several safeguards to protect against the potential for affiliate abuse.73 Ameren Marketing demonstrates the narrow scope of the Commission's concern related to this Avista restriction; namely, third-party sales to customers located on the transmission systems of affiliates. Only in these situations does the second Avista restriction apply, and in these situations, we remain willing to consider requests for market-based rate authority for sales of primary frequency response service on a case-by-case basis. In response to EEI's concern, the Commission clarifies that where the customer is not located on the transmission system of the third-party seller's affiliate, this aspect of the Avista restrictions does not apply.

    72Ameren Energy Marketing Co., 95 FERC ¶ 61,448, at 62,626 (2001) (Ameren Marketing).

    73 With respect to all three Avista restrictions, the Commission expressed its willingness to consider requests for market-based rate authority under the conditions associated with the restrictions on a case-by-case basis. Avista Corp., 87 FERC ¶ 61,223 at n.12.

    56. EEI also recommends that the Commission clarify in the Final Rule that the location of primary frequency response purchases be deemed to be where the customer is located within an interconnection, rather than where the underlying generation resides. According to EEI, this would address a potential ambiguity in how the NOPR proposal is described in paragraph 28 of the NOPR, where the Commission stated that “. . . sellers passing existing market-based rate screens in a given geographic market should be granted a rebuttable presumption that they lack market power for sales of primary frequency response in that market.” 74 EEI states that if a generator has passed the Commission's existing market power screens (or if the screens are not required to be submitted based on the location of the generation) for the geographic market in which the buyer is located, then the generator should benefit from the rebuttable presumption that it lacks market power with respect to sales of primary frequency response service throughout the entire interconnection.75

    74 EEI at 7 (citing NOPR, FERC Stats. & Regs. ¶ 32,705 at P 28).

    75Id. at 7-8.

    57. EEI appears to be concerned that the language in paragraph 28 might be interpreted to mean that market-based rate sales of primary frequency response are only authorized in specific geographic markets. As will be explained next, this would be similar to how market-based rate sales of operating reserves are handled pursuant to Order No. 784, but different from how authority for market-based rate sales of energy and capacity is granted. With respect to energy and capacity, the Commission's normal practice is to test for market power in the seller's home balancing authority area, and, if the seller is vertically-integrated, first-tier balancing authority areas, because this is where the seller's market power likely would be greatest. However, the market-based rate authority granted based on passage of these market power screens permits sales anywhere that the seller is capable of transacting. In Order No. 784, the Commission had to depart from this standard practice with respect to market-based rate sales of operating reserves because of the special transmission scheduling practices associated with those services. Order No. 784 required sellers of operating reserves to first demonstrate that the scheduling practices in the regions within which they wish to sell could support sales of operating reserves from one balancing authority area to another, and market-based rate authority for sales of operating reserves would only be granted for regions where such showing was made successfully by the seller.76 Because primary frequency response is autonomous and individual responses are of short duration, no special scheduling practices would be required. Hence, the Commission finds that market-based rate authority for sales of primary frequency response should be granted on the same basis as sales of energy and capacity; i.e., while market power is tested at the resource's location, authority is granted for sales anywhere the seller is capable of transacting. The Commission, therefore, clarifies the description in paragraph 28 of the NOPR accordingly.

    76 Order No. 784, FERC Stats. & Regs. ¶ 31,349 at P 58.

    58. AWEA, ESA, Union of Concerned Scientists, and Grid Storage Consulting argue that there may be some resources that have been authorized to sell ancillary services at market-based rates but not energy and capacity, or that are otherwise eligible to participate in Commission-authorized and supervised markets. They recommend that any such resources be permitted to sell primary frequency response service at market-based rates as well.77 In a similar vein, Public Interest Organizations ask the Commission to consider whether there is any class or potential class of emerging resources that sell only ancillary services and not energy or capacity, and if so, whether such resources should be exempted from existing market power screens in exchange for some more appropriate market power analysis.78

    77 AWEA at 4; ESA at 4-5; Union of Concerned Scientists at 3; Grid Storage Consulting at 10.

    78 Public Interest Organizations at 5-6.

    59. In response to these comments, the Commission clarifies that for resources capable of injecting electric energy onto the interstate transmission grid,79 authority to sell at market-based rates, even exclusively in organized RTO or ISO markets, is only granted to entities that either pass the existing market power screens for sales of energy and capacity or where any market power concerns have been adequately mitigated. Thus, even if such sellers only sell ancillary services today, their authorization to do so was granted based in part upon either passage of the existing market power screens for sales of energy and capacity or where there was a demonstration that any market power concerns have been adequately mitigated.80 The only current exception to this rule involves demand response resources. If a third-party seller exclusively uses demand response resources to participate in RTO/ISO markets, it does not need to seek market-based rate authority or place any tariff on file with the Commission, because demand response resources do not inject electric energy onto the interstate transmission grid. However, if it ever markets services from other types of resources that result in it injecting electric energy onto the grid, then it would need market-based rate authority and a tariff on file.81 Accordingly, all sellers with market-based rate authority using resources that can inject electric energy onto the interstate transmission grid, even if they only sell ancillary services today, are already eligible to make use of the rebuttable presumption related to primary frequency response in this Final Rule. Similarly, sellers exclusively using demand response resources are already exempted from the need to submit market power analyses to gain authorization for their sales, and Public Interest Organizations have provided no reason why any new class of resources should be exempted.

    79 Pursuant to section 201(a) of the FPA, the Commission is charged with regulating the transmission of electric energy in interstate commerce and the sale of electric energy at wholesale in interstate commerce. 16 U.S.C. 824(a) (2012). Section 201(b) provides that the Commission shall have jurisdiction over facilities for wholesale sales of electric energy in interstate commerce or for transmission of electric energy in interstate commerce. Id. 824(b). In section 201(e), a public utility is defined as a person who owns or operates facilities subject to the jurisdiction of the Commission. Id. 824(e).

    80 In the event that sellers fail the existing market power screens for the RTO/ISO markets, the Commission allows such sellers to seek to obtain or retain market-based rate authority by relying on Commission-approved RTO/ISO monitoring and mitigation. See Refinements to Policies and Procedures for Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and Ancillary Services by Public Utilities, Order No. 816, 80 FR 67056, (Oct. 30, 2015), 153 FERC ¶ 61,065, at P 28 (2015).

    81EnergyConnect, Inc., 130 FERC ¶ 61,031, at PP 26-33 (2010).

    60. Union of Concerned Scientists, ESA, and Public Interest Organizations all ask that the Commission clarify that the current Final Rule applies for all resources that can provide primary frequency response.82 Steel Producers Alliance makes similar arguments, emphasizing that resources other than generators are able to provide primary frequency response service and should be permitted to compete to provide the service.83 The Commission clarifies that this Final Rule applies to jurisdictional market-based rate sellers of primary frequency response service, irrespective of what specific equipment they may choose to use to make such sales.

    82 Union of Concerned Scientists at 5; ESA at 2-4; Public Interest Organizations at 2-3.

    83 Steel Producers Alliance at 2-3.

    61. MISO asserts that certain technical statements within the NOPR require limited clarification. First, while MISO agrees with the NOPR that 60 Hertz (Hz) is the target frequency in North America, MISO notes that scheduled frequency may be offset at times to correct time error.84 Second, in response to the NOPR's description of how each balancing authority's automatic generation control system will issue dispatch instructions to regulation resources to try to return the systems frequency to 60 Hz, MISO argues that typically the contingent balancing authority uses a combination of automatic generation control and contingency reserves for this purpose.85 The Commission agrees with these clarifications, but finds that they do not alter any fundamental underpinning of the NOPR proposal.

    84 MISO at 5.

    85Id. at 6.

    62. Union of Concerned Scientists seeks clarification that procurement of, and payment for, primary frequency response service would be allowed if the sale of primary frequency response service under market-based rates were allowed. It suggests that the Commission state that markets for primary frequency response service are allowed, subject to petition by appropriate utilities and approval by the Commission.86 Union of Concerned Scientists also asks that market eligibility and participation as a seller should not be constrained by disproportionate administrative burdens.87 The Commission agrees that market-based rate sales by entities that have been granted authorization for such sales are allowed; that is, of course, the object of a market-based rate application. With respect to the authority for potential buyers to purchase primary frequency response service, this Final Rule only involves market power screening of potential sellers. As with most products in voluntary bilateral markets, potential buyers do not need the Commission's permission. Similarly, the Commission clarifies that RTOs and ISOs remain free to develop organized markets for primary frequency response if they so choose, though nothing in this Final Rule requires them to do so, and if they choose to do so, only then will the Commission review such issues as eligibility requirements for participation.

    86 Union of Concerned Scientists at 4.

    87Id. at 3.

    6. Requests Outside the Scope of This Proceeding

    63. AWEA and Public Interest Organizations both request that the Commission permit sales of regulation service at market-based rates by entities with authority for market-based rate sales of energy and capacity.88 AWEA further requests that the Commission: (a) Explore the role that dynamic transfer capability, or lack thereof, plays in protecting against exertion of market power; 89 (b) consider relaxing interconnection standards for resources that only sell ancillary services; 90 and (c) consider whether entities in bilateral market areas should be required to develop platforms for the sale of primary frequency response, even if on a limited basis such as through open seasons.91

    88 AWEA at 1, 7-9; Public Interest Organizations at 5.

    89 AWEA at 3.

    90Id. at 4.

    91Id. at 5.

    64. Monitoring Analytics, LLC (Monitoring Analytics) notes that, while the NOPR is mainly concerned with the market power screens typically used in connection with authorizations to charge market-based rates, in organized markets like PJM's, such rates are granted in significant part based on the market power mitigation rules of the RTO or ISO. Accordingly, Monitoring Analytics recommends that if PJM develops a market for primary frequency response service, the rules for such market should incorporate the three pivotal supplier test that is already used for market power mitigation in PJM's other markets.92

    92 Monitoring Analytics at 7.

    65. ESA argues that fast responding energy storage resources should be allowed to supply both primary frequency response and regulation services simultaneously. In this regard, ESA asserts that the Commission should not inadvertently create a system where all providers of primary frequency response must provide such service for at least 5-10 minutes until the slowest regulation resources can be brought online.93 ESA requests that the Commission ensure that ancillary service market designs and procurement mechanisms are reasonably consistent across regions and reflect non-market compensated benefits in the determination of operational needs for particular capabilities, such as fast response.94

    93 ESA at 5.

    94Id. at 6.

    66. Grid Storage Consulting argues that balancing authorities should not be able to mandate that primary frequency response be provided as part of other market products,95 and that in some circumstances it may be appropriate to permit the costs of dedicated primary frequency response resources to be recovered in transmission rate base.96

    95 Grid Storage Consulting at 8-9.

    96Id. at 10-11.

    67. If an RTO seeks to create an organized market for primary frequency response, then Dominion recommends that the Commission require a market design similar to those used currently to procure other ancillary services such as regulation and operating reserves. Alternatively, Dominion also supports allowing RTOs to procure primary frequency response at cost-based rates, in a manner similar to how reactive power is procured. Dominion also argues that generators should either be exempt from charges such as operating reserve and balancing energy when deviating from their schedules in order to provide primary frequency response service or their compensation should include credits to offset such charges.97

    97 Dominion at 3.

    68. SmartSenseCom asserts that there is a difference in value between resources capable of delivering a rapid response to changing frequency and slower-responding units. Accordingly, SmartSenseCom asks the Commission to require public utility transmission providers to take into account the speed and accuracy of primary frequency response resources when determining reserve requirements for primary frequency response, as the Commission did for regulation service in Order No. 784. SmartSenseCom claims this “is particularly necessary in this instance in light of the language set forth in Order No. 784 and in the instant NOPR that distinguishes [primary frequency response] from regulation and the different requirements that will now exist for each service.” 98

    98 SmartSenseCom at 8.

    69. The Commission finds all of these issues to be beyond the scope of this Final Rule. This Final Rule deals only with market-based pricing for voluntary bilateral primary frequency response sellers. While some of the issues raised above might be relevant in other proceedings,99 none of the issues raised above is relevant to the topic of market-based rates in voluntary bilateral markets. Accordingly, there is no need to address these issues here.

    99 For example, if an RTO or ISO eventually proposes to develop an organized market for primary frequency response service, or if the Commission at some point in the future decides to require such development, then several of the issues raised above might become relevant at that stage.

    III. Compliance and Implementation

    70. In Order No. 697, the Commission provided standard tariff provisions that sellers must include in their market-based rate tariffs to the extent they are applicable based on the services provided by the seller,100 including a provision for sales of ancillary services as a third-party provider.101 The Commission hereby revises the “Third Party Provider” ancillary services provision to change the reference to “Regulation and Frequency Response Service” to “Regulation Service” and to add a reference to “Primary Frequency Response Service.” The new language is as follows:

    100 Order No. 697, FERC Stats. & Regs. ¶ 31,252 at Appendix C.

    101 In Order No. 784, the Commission revised the standard third party provider provision to reflect the changes adopted in Order No. 784. Order No. 784, FERC Stats. & Regs. ¶ 31,349 at P 200.

    Third-party ancillary services: Seller offers [include all of the following that the seller is offering: Regulation Service, Reactive Supply and Voltage Control Service, Energy and Generator Imbalance Service, Operating Reserve-Spinning, Operating Reserve-Supplemental, and Primary Frequency Response Service]. Sales will not include the following: (1) sales to an RTO or an ISO, i.e., where that entity has no ability to self-supply ancillary services but instead depends on third parties; and (2) sales to a traditional, franchised public utility affiliated with the third-party supplier, or sales where the underlying transmission service is on the system of the public utility affiliated with the third-party supplier. Sales of Operating Reserve-Spinning and Operating Reserve-Supplemental will not include sales to a public utility that is purchasing ancillary services to satisfy its own open access transmission tariff requirements to offer ancillary services to its own customers, except where the Commission has granted authorization. Sales of Regulation Service and Reactive Supply and Voltage Control Service will not include sales to a public utility that is purchasing ancillary services to satisfy its own open access transmission tariff requirements to offer ancillary services to its own customers, except at rates not to exceed the buying public utility transmission provider's OATT rate for the same service or where the Commission has granted authorization.

    71. The Commission finds that a seller that already has market-based rate authority as of the effective date of this Final Rule is authorized as of that date to make sales of primary frequency response service at market-based rates. Such a seller will be required to revise the third-party provider ancillary services provision of its market-based rate tariff to reflect that it wishes to make sales of primary frequency response service at market-based rates. However, while this authorization is effective for sellers with existing market-based rate authority as of the effective date of this Final Rule, in order to reduce their administrative burden, the Commission permits such sellers to wait to file this tariff revision until the next time they make a market-based rate filing with the Commission, such as a notice of change in status filing or a triennial update.

    72. As noted in the NOPR, consistent with the existing requirements of Order No. 2001, any entity selling primary frequency response service will need to report such sales in the Electric Quarterly Report,102 and the Commission will update its Electric Quarterly Report system to include a specific product name option for primary frequency response service.103

    102See Revised Public Utility Filing Requirements, Order No. 2001, FERC Stats. & Regs. ¶ 31,127, reh'g denied, Order No. 2001-A, 100 FERC ¶ 61,074, reh'g denied, Order No. 2001-B, 100 FERC ¶ 61,342, order directing filing, Order No. 2001-C, 101 FERC ¶ 61,314 (2002), order directing filing, Order No. 2001-D, 102 FERC ¶ 61,334, order refining filing requirements, Order No. 2001-E, 105 FERC ¶ 61,352 (2003), order on clarification, Order No. 2001-F, 106 FERC ¶ 61,060 (2004), order revising filing requirements, Order No. 2001-G, 120 FERC ¶ 61,270, order on reh'g and clarification, Order No. 2001-H, 121 FERC ¶ 61,289 (2007), order revising filing requirements, Order No. 2001-I, FERC Stats. & Regs. ¶ 31,282 (2008).

    103 NOPR, FERC Stats. & Regs. ¶ 32,705 at P 29.

    IV. Information Collection Statement

    73. The Paperwork Reduction Act (PRA) 104 requires each federal agency to seek and obtain Office of Management and Budget (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB regulations require approval of certain information collection requirements imposed by agency rules.105 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of an agency rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.

    104 44 U.S.C. 3501-3520 (2012).

    105See 5 CFR 1320 (2015).

    74. The Commission will submit the revised information collection requirements to OMB for its review and approval. The Commission solicits public comments on its need for this information, whether the information will have practical utility, the accuracy of burden and cost estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.

    75. Burden Estimate and Information Collection Costs: While, to the Commission's knowledge, no entity currently sells primary frequency response service on an unbundled basis,106 there is no reason why primary frequency response service could not be sold today under cost-based rates. Such cost-based sales, if they occurred, would face all of the burdens associated with cost-of-service regulation, including a variety of requirements from which market-based rate sellers frequently seek and are granted waiver.107 Furthermore, just like market-based rate sellers, cost-based rate sellers must report all transactions in the Electric Quarterly Report. Accordingly, the Commission views this Final Rule as providing potential market-based rate sellers of primary frequency response service with the opportunity to avoid cost-of-service regulation for such sales and the associated substantial reporting burdens.

    106 It is likely that some customers purchase primary frequency response service along with other services on a bundled basis, such as through full requirements contracts, but this Final Rule is focused on unbundled sales of primary frequency response service.

    107 Such burdens would include, for example, the need to maintain Open Access Transmission Tariffs and Open Access Same-Time Information Systems related to any jurisdictional transmission facilities owned by the entity, the need to adhere to the Commission's standards of conduct, the need to adhere to the detailed cost-of-service related requirements of subparts B and C of Part 35 of the Commission's regulations, the need to adhere to the accounting and reporting requirements of Parts 41, 101, and 141 of the Commission's regulations, and the need to seek separate authorizations for issuances of securities and assumptions of liabilities under FPA section 204 and Part 34 of the Commission's regulations.

    76. Below, we discuss the expected increases in burden as a result of this Final Rule. The Commission expects the additional burden to be greatly outweighed by the reduction in burden from avoiding cost-of-service regulation. The additional estimated annual public reporting burdens and costs for the requirements in this Final Rule are as follows.

    Changes in Final Rule in RM15-2 108 Number of respondents Annual number of responses per
  • respondent
  • Total number of responses Average burden & cost per
  • response
  • Total annual burden hours & total annual cost Cost per response
    (a) (b) (a)×(b)=(c) (d) (c)×(d)=(e) (e)/(c) FERC-516 (Electric Rate Schedules and Tariff Filings) (one time, phased in) 1,585 109 110 0.163 259 6 hrs.; $432 1,554 hrs.; $111,888 $432 FERC-920 (Electric Quarterly Report) (one-time, phased in) 1,585 111 0.163 259 2 hrs.; $144 518 hrs.; $37,296 144

    Titles: FERC-516 (Electric Rate Schedules and Tariff Filings) and FERC-920 (Electric Quarterly Report (EQR)).

    108 For purposes of burden estimation, the NOPR assumed that industry staff members are similarly situated to FERC, in terms of hourly cost per full time employee, and no commenter disputes this assumption. Therefore, the estimated average hourly cost (salary plus benefits) is $72.00.

    109 The 1,585 respondent universe includes existing sellers (1,999 total market-based rate sellers—697 Category 1 sellers + 70 Category 1 sellers = 1,372 sellers estimated to sell primary frequency response services) plus 213 new market-based rate applicants (as estimated in Docket No. RM14-14). (We estimate that ten percent (or 70, as indicated above) of the Category 1 sellers may choose to sell primary frequency response services.)

    110 We expect respondents to enter the primary frequency response market gradually. For each of the next three years, we expect all 213 new market-based rate applicants per year (or 639 total during Years 1-3), to include the primary frequency response language in their tariffs.

    Additionally, during the three-year period, we expect a total of ten percent of the existing 1,372 respondents (or 137 respondents), to decide to sell primary frequency response services and to make the corresponding FERC-516 rate filing. The corresponding annual estimate is 46 of the existing respondents (an average of 3.4% annually). Therefore, the annual estimate, including both new respondents and existing respondents, is an average of 259 (213 + 46) respondents and responses per year.

    111 As respondents decide to sell primary frequency response services, they would report the new offering in their Electric Quarterly Report (FERC-920), and would continue to report in subsequent EQRs. When a filer adds the new service, we estimate the one-time burden to be two hours. We expect any additional burden associated with reporting the new service in the EQR to be negligible after the first implementation as it would become part of the respondent's normal reporting practice in the EQR and would only involve selecting the `primary frequency response' option from a list of product names. On average, we expect filers of the new primary frequency response service to phase in:

    • Year 1, 259 respondents or 16.3 percent of EQR filers.

    • Year 2, 259 respondents or 16.3 percent of EQR filers.

    • Year 3, 259 respondents or 16.3 percent of EQR filers.

    Action: Revision of Currently Approved Collection of Information.

    OMB Control Nos.: 1902-0096 (FERC-516) and 1902-0255 (FERC-920).

    Respondents: Public utilities.

    Frequency of responses: One-time, phased in (for both FERC-516 and FERC-920).

    Necessity of the Information: Regarding FERC-516, section 205(c) of the Federal Power Act requires public utilities to file with the Commission schedules showing all rates and charges for any transmission or sale subject to the Commission's jurisdiction. Accordingly, entities wishing to sell primary frequency response service at market-based rates must amend their market-based rate tariffs to include the language included in this Final Rule. Regarding FERC-920, the Commission is revising the EQR to ensure that public utilities that may sell primary frequency response service at market-based rates report those sales in the EQR, consistent with their filing obligations under section 205(c).

    Internal Review: The Commission has reviewed the requirements associated with the proposed revisions to the information collections and determined they are necessary to ensure that rates remain just, reasonable, and not unduly discriminatory.

    77. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, through internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements.

    78. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], email: [email protected], Phone (202) 502-8663, fax: (202) 273-0873. Comments on the collections of information and associated burden estimates in the Final Rule should be sent to the Commission in this docket and may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments to OMB should be submitted by email to: [email protected] Please refer to OMB Control No. 1902-0096 (FERC-516) and OMB Control No. 1902-0255 (FERC-920).

    V. Environmental Analysis

    79. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.112 The Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for this Final Rule under section 380.4(a)(15) of the Commission's regulations, which provides a categorical exemption for approval of actions under sections 205 and 206 of the FPA relating to the filing of schedules containing all rates and charges for the transmission or sale subject to the Commission's jurisdiction, plus the classification, practices, contracts, and regulations that affect rates, charges, classifications, and services.113

    112Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC Stats. & Regs., Regulations Preambles 1986-1990 ¶ 30,783 (1987).

    113 18 CFR 380.4(a)(15) (2015).

    VI. Regulatory Flexibility Act

    80. The Regulatory Flexibility Act of 1980 (RFA) 114 generally requires a description and analysis of proposed and final rules that will have significant economic impact on a substantial number of small entities.

    114 5 U.S.C. 601-612 (2012).

    81. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.115 The SBA revised its size standard for electric utilities (effective January 22, 2014) from a standard based on megawatt hours to a standard based on the number of employees, including affiliates.116 Under SBA's current size standards, the entities with market-based rates which are affected by this Final Rule likely come under the following categories 117 with the indicated thresholds (in terms of number of employees 118 ):

    115 13 CFR 121.101 (2015).

    116 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77,343 (Dec. 23, 2013).

    117 13 CFR 121.201, Sector 22, Utilities.

    118 SBA's regulations at 13 CFR 121.201 state that “[t]he number of employees . . . indicates the maximum allowed for a concern and its affiliates to be considered small.”

    • Hydroelectric Power Generation, 500 employees.

    • Fossil Fuel Electric Power Generation, 750 employees.

    • Nuclear Electric Power Generation, 750 employees.

    • Solar Electric Power Generation, 250 employees.

    • Wind Electric Power Generation, 250 employees.

    • Geothermal Electric Power Generation, 250 employees.

    • Biomass Electric Power Generation, 250 employees.

    • Other Electric Power Generation, 250 employees.

    82. The categories for the applicable entities have a size threshold ranging from 250 employees to 750 employees. For the analysis in this Final Rule, we are using the threshold of 750 employees for all categories. We anticipate that a maximum of 82 percent of the entities potentially affected by this Final Rule are small. In addition, we expect that not all of those entities will be able to or will choose to offer primary frequency response service.

    83. Based on the estimates above in the Information Collection section, we expect a one-time cost of $576 (including the burden cost related to filing both the tariff and the EQR) for each entity that decides to offer primary frequency response service.

    84. The Commission does not consider the estimated cost per small entity to impose a significant economic impact on a substantial number of small entities. Accordingly, the Commission certifies that this Final Rule will not have a significant economic impact on a substantial number of small entities.

    VII. Document Availability

    85. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    86. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    87. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    VIII. Effective Date and Congressional Notification

    88. The Final Rule is effective February 25, 2016. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this Final Rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, Government Accountability Office, and Small Business Administration.

    List of Subjects in 18 CFR Part 35

    Electric power rates; Electric utilities; Reporting and recordkeeping requirements.

    By the Commission.

    Issued: November 20, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.

    In consideration of the foregoing, the Commission amends Part 35, Chapter I, Title 18, Code of Federal Regulations, as follows.

    PART 35—FILING OF RATE SCHEDULES AND TARIFFS 1. The authority citation for Part 35 continues to read as follows: Authority:

    16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

    2. In § 35.37, revise paragraph (c)(1) to read as follows:
    § 35.37 Market power analysis required.

    (c)(1) There will be a rebuttable presumption that a Seller lacks horizontal market power with respect to sales of energy, capacity, energy imbalance service, generation imbalance service, and primary frequency response service if it passes two indicative market power screens: a pivotal supplier analysis based on annual peak demand of the relevant market, and a market share analysis applied on a seasonal basis. There will be a rebuttable presumption that a Seller lacks horizontal market power with respect to sales of operating reserve-spinning and operating reserve-supplemental services if the Seller passes these two indicative market power screens and demonstrates in its market-based rate application how the scheduling practices in its region support the delivery of operating reserve resources from one balancing authority area to another. There will be a rebuttable presumption that a Seller possesses horizontal market power with respect to sales of energy, capacity, energy imbalance service, generation imbalance service, operating reserve-spinning service, operating reserve-supplemental service, and primary frequency response service if it fails either screen.

    [FR Doc. 2015-30140 Filed 11-25-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM15-16-000, Order No. 817] Transmission Operations Reliability Standards and Interconnection Reliability Operations and Coordination Reliability Standards AGENCY:

    Federal Energy Regulatory Commission, Energy.

    ACTION:

    Final rule.

    SUMMARY:

    The Commission approves revisions to the Transmission Operations and Interconnection Reliability Operations and Coordination Reliability Standards, developed by the North American Electric Reliability Corporation, which the Commission has certified as the Electric Reliability Organization responsible for developing and enforcing mandatory Reliability Standards. The Commission also directs NERC to make three modifications to the standards within 18 months of the effective date of the final rule.

    DATES:

    This rule will become effective January 26, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert T. Stroh (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-8473, [email protected] Eugene Blick (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (301) 665-1759, [email protected] Darrell G. Piatt, PE (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (205) 332-3792, [email protected] SUPPLEMENTARY INFORMATION:

    Order No. 817 Final Rule (Issued November 19, 2015)

    1. Pursuant to section 215 of the Federal Power Act (FPA),1 the Commission approves revisions to the Transmission Operations (TOP) and Interconnection Reliability Operations and Coordination (IRO) Reliability Standards, developed by the North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO). The TOP and IRO Reliability Standards improve on the currently-effective standards by providing a more precise set of Reliability Standards addressing operating responsibilities and improving the delineation of responsibilities between applicable entities. The revised TOP Reliability Standards eliminate gaps and ambiguities in the currently-effective TOP requirements and improve efficiency by incorporating the necessary requirements from the eight currently-effective TOP Reliability Standards into three comprehensive Reliability Standards. Further, the standards clarify and improve upon the currently-effective TOP and IRO Reliability Standards by designating requirements in the proposed standards that apply to transmission operators for the TOP standards and reliability coordinators for the IRO standards. Thus, we conclude that there are benefits to clarifying and bringing efficiencies to the TOP and IRO Reliability Standards, consistent with the Commission's policy promoting increased efficiencies in Reliability Standards and reducing requirements that are either redundant with other currently-effective requirements or have little reliability benefit.2

    1 16 U.S.C. 824o (2012).

    2Electric Reliability Organization Proposal to Retire Requirements in Reliability Standards, Order No. 788, 145 FERC ¶ 61,147 (2013).

    2. The Commission also finds that NERC has adequately addressed the concerns raised by the Commission in the Notice of Proposed Rulemaking issued in November 2013 concerning the proposed treatment of system operating limits (SOLs) and interconnection reliability operating limits (IROLs) and concerns about outage coordination.3 Further, the Commission approves the definitions for operational planning analysis and real-time assessment, the implementation plans and the violation severity level and violation risk factor assignments. However, the Commission directs NERC to make three modifications to the standards as discussed below within 18 months of the effective date of this Final Rule.

    3 Monitoring System Conditions—Transmission Operations Reliability Standard, Transmission Operations Reliability Standards, Interconnection Reliability Operations and Coordination Reliability Standards, Notice of Proposed Rulemaking, 145 FERC ¶ 61,158 (2013) (Remand NOPR). Concurrent with filing the proposed TOP/IRO standards in the immediate proceeding, NERC submitted a motion to withdraw the earlier petition that was the subject of the Remand NOPR. No protests to the motion were filed and the petition was withdrawn pursuant to 18 CFR 385.216(b).

    3. We also address below the four issues for which we sought clarifying comments in the June 18, 2015, Notice of Proposed Rulemaking (NOPR) proposing to approve the TOP and IRO Reliability Standards: (A) Possible inconsistencies in identifying IROLs; (B) monitoring of non-bulk electric system facilities; (C) removal of the load-serving entity as an applicable entity for proposed Reliability Standard TOP-001-3; and (D) data exchange capabilities. In addition we address other issues raised by commenters.

    I. Background A. Regulatory Background

    4. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval.4 Once approved, the Reliability Standards may be enforced by the ERO subject to Commission oversight, or by the Commission independently.5 In 2006, the Commission certified NERC as the ERO pursuant to FPA section 215.6

    4 16 U.S.C. 824o(c) and (d).

    5See id. 16 U.S.C. 824o(e).

    6North American Electric Reliability Corp., 116 FERC ¶ 61,062, order on reh'g and compliance, 117 FERC ¶ 61,126 (2006), aff'd sub nom. Alcoa Inc. v. FERC, 564 F.3d 1342 (D.C. Cir. 2009).

    5. The Commission approved the initial TOP and IRO Reliability Standards in Order No. 693.7 On April 16, 2013, in Docket No. RM13-14-000, NERC submitted for Commission approval three revised TOP Reliability Standards to replace the eight currently-effective TOP standards.8 Additionally, on April 16, 2013, in Docket No. RM13-15-000, NERC submitted for Commission approval four revised IRO Reliability Standards to replace six currently-effective IRO Reliability Standards. On November 21, 2013, the Commission issued the Remand NOPR in which the Commission expressed concern that NERC had “removed critical reliability aspects that are included in the currently-effective standards without adequately addressing these aspects in the proposed standards.” 9 The Commission identified two main concerns and asked for clarification and comment on a number of other issues. Among other things, the Commission expressed concern that the proposed TOP Reliability Standards did not require transmission operators to plan and operate within all SOLs, which is a requirement in the currently-effective standards. In addition, the Commission expressed concern that the proposed IRO Reliability Standards did not require outage coordination.

    7See Mandatory Reliability Standards for the Bulk-Power System, Order No. 693, FERC Stats. & Regs. ¶ 31,242, at P 508, order on reh'g, Order No. 693-A, 120 FERC ¶ 61,053 (2007). In addition, in Order No. 748, the Commission approved revisions to the IRO Reliability Standards. Mandatory Reliability Standards for Interconnection Reliability Operating Limits, Order No. 748, 134 FERC ¶ 61,213 (2011).

    8 On April 5, 2013, in Docket No. RM13-12-000, NERC proposed revisions to Reliability Standard TOP-006-3 to clarify that transmission operators are responsible for monitoring and reporting available transmission resources and that balancing authorities are responsible for monitoring and reporting available generation resources.

    9 Remand NOPR, 145 FERC ¶ 61,158 at P 4.

    B. NERC Petition

    6. On March 18, 2015, NERC filed a petition with the Commission for approval of the proposed TOP and IRO Reliability Standards.10 As explained in the Petition, the proposed Reliability Standards consolidate many of the currently-effective TOP and IRO Reliability Standards and also replace the TOP and IRO Reliability Standards that were the subject of the Remand NOPR. NERC stated that the proposed Reliability Standards include improvements over the currently-effective TOP and IRO Reliability Standards in (1) operating within SOLs and IROLs; (2) outage coordination; (3) situational awareness; (4) improved clarity and content in foundational definitions; and (5) requirements for operational reliability data. NERC stated that the proposed TOP and IRO Reliability Standards address outstanding Commission directives relevant to the proposed TOP and IRO Reliability Standards. NERC stated that the proposed Reliability Standards provide a comprehensive framework for reliable operations, with important improvements to ensure the bulk electric system is operated within pre-established limits while enhancing situational awareness and strengthening operations planning. NERC explained that the proposed Reliability Standards establish or revise requirements for operations planning, system monitoring, real-time actions, coordination between applicable entities, and operational reliability data. NERC contended that the proposed Reliability Standards help to ensure that reliability coordinators and transmission operators work together, and with other functional entities, to operate the bulk electric system within SOLs and IROLs.11 NERC also provided explanations of how the proposed Reliability Standards address the reliability issues identified in the report on the Arizona-Southern California Outages on September 8, 2011, Causes and Recommendations (“2011 Southwest Outage Blackout Report”).

    10 The TOP and IRO Reliability Standards are not attached to the Final Rule. The complete text of the Reliability Standards is available on the Commission's eLibrary document retrieval system in Docket No. RM15-16 and is posted on the ERO's Web site, available at: http://www.nerc.com.

    11 The NERC Glossary of Terms defines IROL as “[a] System Operating Limit that, if violated, could lead to instability, uncontrolled separation, or Cascading outages that adversely impact the reliability of the Bulk Electric System.” In turn, NERC defines SOL as “[t]he value (such as MW, MVar, Amperes, Frequency or Volts) that satisfies the most limiting of the prescribed operating criteria for a specified system configuration to ensure operation within acceptable reliability criteria. . . .”

    7. NERC proposed three TOP Reliability Standards to replace the existing suite of TOP standards. The proposed TOP Reliability Standards generally address real-time operations and planning for next-day operations, and apply primarily to the responsibilities and authorities of transmission operators, with certain requirements applying to the roles and responsibilities of the balancing authority. Among other things, NERC stated that the proposed revisions to the TOP Reliability Standards help ensure that transmission operators plan and operate within all SOLs. The proposed IRO Reliability Standards, which complement the proposed TOP Standards, are designed to ensure that the bulk electric system is planned and operated in a coordinated manner to perform reliably under normal and abnormal conditions. The proposed IRO Reliability Standards set forth the responsibility and authority of reliability coordinators to provide for reliable operations. NERC stated that, in the proposed IRO Reliability Standards, reliability coordinators must continue to monitor SOLs in addition to their obligation in the currently effective Reliability Standards to monitor and analyze IROLs. These obligations require reliability coordinators to have the wide-area view necessary for situational awareness and provide them the ability to respond to system conditions that have the potential to negatively affect reliable operations.

    8. NERC also proposed revised definitions for “operational planning analysis” and “real-time assessment.” For all standards except proposed Reliability Standards TOP-003-3 and IRO-010-2, NERC proposed the effective date to be the first day of the first calendar quarter twelve months after Commission approval. According to NERC's implementation plan, for proposed TOP-003-3, all requirements except Requirement R5 will become effective on the first day of the first calendar quarter nine months after the date that the standard is approved. For proposed IRO-010-2, Requirements R1 and R2 would become effective on the first day of the first calendar quarter that is nine months after the date that the standard is approved. Proposed TOP-003-3, Requirement R5 and IRO-010-2, Requirement R3 would become effective on the first day of the first calendar quarter twelve months after the date that the standard is approved. The reason for the difference in effective dates for proposed TOP-003-3 and IRO-010-2 is to allow applicable entities to have time to properly respond to the data specification requests from their reliability coordinators, transmission operators, and/or balancing authorities.

    C. Notice of Proposed Rulemaking

    9. On June 18, 2015, the Commission issued a Notice of Proposed Rulemaking proposing to approve the TOP and IRO Reliability Standards pursuant to FPA section 215(d)(2), along with the two new definitions referenced in the proposed standards, the assigned violation risk factors and violation severity levels, and the proposed implementation plan for each standard.12

    12Transmission Operations Reliability Standards and Interconnection Reliability Operations and Coordination Reliability Standards, 151 FERC ¶ 61,236 (2015) (NOPR).

    10. In the NOPR, the Commission explained that the proposed TOP and IRO Reliability Standards improve on the currently-effective standards by providing a more precise set of Reliability Standards addressing operating responsibilities and improving the delineation of responsibilities between applicable entities. The Commission also proposed to find that NERC has adequately addressed the concerns raised by the Remand NOPR issued in November 2013.

    11. In the NOPR, the Commission also discussed the following specific matters and asked for further comment: (A) Possible inconsistencies in identifying IROLs; (B) monitoring of non-bulk electric system facilities; (C) removal of the load-serving entity as an applicable entity for proposed Reliability Standard TOP-001-3; and (D) data exchange capabilities.

    12. Timely comments on the NOPR were filed by: NERC; Arizona Public Service Company (APS), Bonneville Power Administration (BPA), Dominion Resources Services, Inc. (Dominion), the Edison Electric Institute (EEI); Electric Reliability Council of Texas, Inc. (ERCOT), Independent Electricity System Operator (IESO), ISO/RTOs,13 International Transmission Company (ITC); Midcontinent Independent System Operator, Inc., Northern Indiana Public Service Company (NIPSCO), Occidental Energy Ventures, LLC (Occidental), Peak Reliability (Peak), and Transmission Access Policy Study Group (TAPS).

    13 ISO/RTOs include Independent Electricity System Operator, ISO New England Inc., Midcontinent Independent System Operator, New York Independent System Operator, Inc., PJM Interconnection LLC, and Southwest Power Pool, Inc.

    II. Discussion

    13. Pursuant to section 215(d) of the FPA, we adopt our NOPR proposal and approve NERC's revisions to the TOP and IRO Reliability Standards, including the associated definitions, violation risk factors, violation severity levels, and implementation plans, as just, reasonable, not unduly discriminatory or preferential and in the public interest. We note that all of the commenters that address the matter support, or do not oppose, approval of the revised suite of TOP and IRO Reliability Standards. We determine that NERC's approach of consolidating requirements and removing redundancies generally has merit and is consistent with Commission policy promoting increased efficiencies in Reliability Standards and reducing requirements that are either redundant with other currently-effective requirements or have little reliability benefit.14

    14See Order No. 788, 145 FERC ¶ 61,147.

    14. We also determine that the proposed TOP and IRO Reliability Standards should improve reliability by defining an appropriate division of responsibilities between reliability coordinators and transmission operators.15 The proposed TOP Reliability Standards will eliminate multiple TOP standards, resulting in a more concise set of standards, reducing redundancy and more clearly delineating responsibilities between applicable entities. In addition, we find that the proposed Reliability Standards provide a comprehensive framework as well as important improvements to ensure that the bulk electric system is operated within pre-established limits while enhancing situational awareness and strengthening operations planning. The TOP and IRO Reliability Standards address the coordinated efforts to plan and reliably operate the bulk electric system under both normal and abnormal conditions.

    15See, e.g., Order No. 748, 134 FERC ¶ 61,213, at PP 39-40.

    15. In the NOPR, the Commission proposed to find that NERC adequately addressed the concerns raised by the Commission in the Remand NOPR with respect to (1) the treatment of SOLs in the proposed TOP Reliability Standards, and (2) the IRO standards regarding planned outage coordination, both of which we address below.

    Operational Responsibilities and Actions of SOLs and IROLs

    16. In the Remand NOPR, the Commission expressed concern that the initially proposed (now withdrawn) TOP standards did not have a requirement for transmission operators to plan and operate within all SOLs. The Commission finds that the TOP Reliability Standards that NERC subsequently proposed address the Commission's Remand NOPR concerns by requiring transmission operators to plan and operate within all SOLs, and to monitor and assess SOL conditions within and outside a transmission operator's area. Further, the TOP/IRO Standards approved herein address the possibility that additional SOLs could develop or occur in the same-day or real-time operational time horizon and, therefore, would pose an operational risk to the interconnected transmission network if not addressed. Likewise, the Reliability Standards give reliability coordinators the authority to direct actions to prevent or mitigate instances of exceeding IROLs because the primary decision-making authority for mitigating IROL exceedances is assigned to reliability coordinators while transmission operators have the primary responsibility for mitigating SOL exceedances.16

    16See Remand NOPR, 145 FERC ¶ 61,158 at P 85. Further, currently-effective Reliability Standard IRO-009-1, Requirement R4 states that “[w]hen actual system conditions show that there is an instance of exceeding an IROL in its Reliability Coordinator Area, the Reliability Coordinator shall, without delay, act or direct others to act to mitigate the magnitude and duration of the instance of exceeding that IROL within the IROL's Tv.”

    17. Furthermore, the revised definitions of operational planning analysis and real-time assessment are critical components of the proposed TOP and IRO Reliability Standards and, together with the definitions of SOLs, IROLs and operating plans, work to ensure that reliability coordinators, transmission operators and balancing authorities plan and operate the bulk electric system within all SOLs and IROLs to prevent instability, uncontrolled separation, or cascading. In addition, the revised definitions of operational planning analysis and real-time assessment address other concerns raised in the Remand NOPR as well as multiple recommendations in the 2011 Southwest Outage Blackout Report.17

    17 NERC Petition at 17-18.

    Outage Coordination

    18. In the NOPR, the Commission explained that NERC had addressed concerns raised in the Remand NOPR with respect to the IRO standards regarding planned outage coordination. In the Remand NOPR, the Commission expressed concern with NERC's proposal because Reliability Standards IRO-008-1, Requirement R3 and IRO-010-1a (subjects of the proposed remand and now withdrawn by NERC) did not require the coordination of outages, noting that outage coordination is a critical reliability function that should be performed by the reliability coordinator.18

    18 Remand NOPR, 145 FERC ¶ 61,158 at P 90.

    19. In the NOPR, the Commission noted that Reliability Standard IRO-017-1, Requirement R1 requires each reliability coordinator to develop, implement and maintain an outage coordination process for generation and transmission outages within its reliability coordinator area. Additionally, Reliability Standard IRO-014-3, Requirement R1, Part 1.4 requires reliability coordinators to include the exchange of planned and unplanned outage information to support operational planning analyses and real-time assessments in the operating procedures, processes, and plans for activities that require coordination with adjacent reliability coordinators. We believe that these proposed standards adequately address our concerns with respect to outage coordination as outlined in the Remand NOPR. However, as we discuss below we direct NERC to modify the standards to include transmission operator monitoring of non-BES facilities, and to specify that data exchange capabilities include redundancy and diverse routing; as well as testing of the alternate or less frequently used data exchange capability, within 18 months of the effective date of this Final Rule.

    20. Below we discuss the following matters: (A) Possible inconsistencies of identifying IROLs; (B) monitoring of non-bulk electric system facilities; (C) removal of the load-serving entity function from proposed Reliability Standard TOP-001-3; (D) data exchange capabilities, and (E) other issues raised by commenters.

    A. Possible Inconsistences in IROLs Across Regions NOPR

    21. In the NOPR, the Commission noted that in Exhibit E (SOL White Paper) of NERC's petition, NERC stated that, with regard to the SOL concept, the SOL White Paper brings “clarity and consistency to the notion of establishing SOLs, exceeding SOLs, and implementing Operating Plans to mitigate SOL exceedances.” 19 The Commission further noted that IROLs, as defined by NERC, are a subset of SOLs that, if violated, could lead to instability, uncontrolled separation, or cascading outages that adversely impact the reliability of the bulk electric system. The Commission agreed with NERC that clarity and consistency are important with respect to establishing and implementing operating plans to mitigate SOL and IROL exceedances. However, the Commission noted that NERC, in its 2015 State of Reliability report, had stated that the Western Interconnection reliability coordinator definition of an IROL has additional criteria that may not exist in other reliability coordinator areas.20 The Commission stated that it is unclear whether NERC regions apply a consistent approach to identifying IROLs. The Commission, therefore, sought comment on (1) identification of all regional differences or variances in the formulation of IROLs; (2) the potential reliability impacts of such differences or variations, and (3) the value of providing a uniform approach or methodology to defining and identifying IROLs.

    19 NERC Petition, Exhibit E, “White Paper on System Operating Limit Definition and Exceedance Clarification” at 1.

    20 NOPR, 151 FERC ¶ 61,236 at P 51, citing NERC 2015 State of Reliability report at 44, available at www.nerc.com. See also WECC Reliability Coordination System Operating Limits Methodology for the Operations Horizon, Rev. 7.0 (effective March 3, 2014) at 18 (stating that “SOLs qualify as IROLs when . . . studies indicate that instability, Cascading, or uncontrolled separation may occur resulting in uncontrolled interruption of load equal to or greater than 1000 MW”), available at https://www.wecc.biz/Reliability/PhaseII%20WECC%20RC%20SOL%20Methodology%20FINAL.pdf.

    Comments

    22. Commenters generally agree that there are variations in IROL formulation but maintain that the flexibility is needed due to different system topographies and configurations. EEI and other commenters, also suggest that, to the extent there are variations, such resolution should be addressed by NERC and the Regional Entities in a standard development process rather than by a Commission directive. NERC requests that the Commission refrain from addressing these issues in this proceeding. NERC contends that the TOP and IRO Reliability Standards do not address the methods for the development and identification of SOLs and IROLs and that requirements governing the development and identification of SOLs and IROLs are included in the Facilities Design, Connections and Maintenance (FAC) Reliability Standards. NERC states that the current FAC Reliability Standards provide reliability coordinators flexibility in the manner in which they identify IROLs.21 NERC adds that it recently initiated a standards development project (Project 2015-09 Establish and Communicate System Operating Limits) to evaluate and modify the FAC Reliability Standards that address the development and identification of SOLs and IROLs. NERC explains that the Project 2015-09 standard drafting team will address the clarity and consistency of the requirements for establishing both SOLs and IROLs. According to NERC, it would be premature for NERC or the Commission to address issues regarding the identification of IROLs in this proceeding without the benefit of the complete analysis of the Project 2015-09 standard drafting team. NERC commits to working with stakeholders and Commission staff during the Project 2015-09 standards development process to address the issues raised in the NOPR.

    21See also Peak Comments at 4-5. Peak points to Reliability Standards FAC-011-2 and FAC-014-2 as support for regional variation in establishing IROLs.

    23. ERCOT comments that the existing Reliability Standards provide a consistent but flexible structure for IROL identification that provides maximum benefit to interconnected transmission network. ERCOT believes that the Reliability Standards should continue to permit regional variations that will encourage flexibility for consideration of system-specific topology and characteristics as well as the application of operational experience and engineering judgment. ERCOT states that regional differences exist in terms of the specific processes and methodologies utilized to identify IROLs. However, according to ERCOT, appropriate consistency in IROL identification is driven by the definition of an IROL, the Reliability Standards associated with the identification of SOLs, and the communication and coordination among responsible entities. Further, ERCOT argues that allowing regional IROL differences benefits the bulk electric system by allowing the entities with the most operating experience to recognize the topology and operating characteristics of their areas, and to incorporate their experience and judgment into IROL identification.

    24. Peak supports allowing regions to vary in their interpretation and identification of IROLs based on the level of risk determined by that region, as long as that interpretation is transparent and consistent within that region. Peak understands the definition of IROL to recognize regional differences and variances in the formulation of IROLs. Peak contends that such regional variation is necessary due to certain physical system differences. Thus, according to Peak, a consistent approach from region to region is not required, and may not enhance the overall reliability of the system. Peak explains that, in the Western United States, the evaluation of operating limits and stability must take into account the long transmission lines and greater distance between population centers, a situation quite different than the dense, interwoven systems found in much of the Eastern Interconnection. Peak adds that the Western Interconnection more frequently encounters localized instability because of the sparsity of the transmission system and the numerous small load centers supplied by few transmission lines, and these localized instances of instability have little to no impact on the overall reliability of the bulk electric system. Peak encourages the Commission to recognize that differences among the regions may require flexibility to determine, through its SOL methodology, the extent and severity of instability and cascading that warrant the establishment of an IROL.

    25. While Peak supports retaining the flexibility of a region by region application of the IROL definition, Peak notes that the current definition is not without some confusing ambiguity in the application of IROL that should be addressed, including ambiguity and confusion around the term “instability,” the phrase “that adversely impact the reliability of the Bulk Electric System” and “cascading.” Peak suggests that one method to eliminate confusion on the definition and application of IROLs would be to expand NERC's whitepaper to address concerns more specific to IROLs. Peak contends that further guidance from NERC in the whitepaper may remedy the confusion on the limits on the application of IROLs for widespread versus localized instability.

    26. Peak requests that, if the Commission or NERC determines that a one-size-fits all approach is necessary for the identification of IROLs and eliminates the current flexibility for regional differences, that the Commission recognizes the limitations this will place on reliability coordinators to evaluate the specific conditions within their reliability coordinator area. The Commission should require that any standardized application of the IROL definition would need to address specific thresholds and implementation triggers for IROLs based on the risk profile and challenges facing specific regions, to avoid the downfalls of inaccurate or overbroad application, as discussed above.

    Commission Determination

    27. While it appears that regional discrepancies exist regarding the manner for calculating IROLs, we accept NERC's explanation that this issue is more appropriately addressed in NERC's Facilities Design, Connections and Maintenance or “FAC” Reliability Standards. NERC indicates that an ongoing FAC-related standards development project—NERC Project 2015-09 (Establish and Communicate System Operating Limits)—will address the development and identification of SOLs and IROLs. We conclude that NERC's explanation, that the Project 2015-09 standard drafting team will address the clarity and consistency of the requirements for establishing both SOLs and IROLs, is reasonable. Therefore, we will not direct further action on IROLs in the immediate TOP and IRO standard-related rulemaking. However, when this issue is considered in Project 2015-19, the specific regional difference of WECC's 1,000 MW threshold in IROLs should be evaluated in light of the Commission's directive in Order No. 802 (approving Reliability Standard CIP-014) to eliminate or clarify the “widespread” qualifier on “instability” as well as our statement in the Remand NOPR that “operators do not always foresee the consequences of exceeding such SOLs and thus cannot be sure of preventing harm to reliability.” 22

    22Physical Security Reliability Standard, Order No. 802, 149 FERC ¶ 61,140 (2014) and Remand NOPR, 145 FERC ¶ 61,158 at P 52. See also FPA section 215(a)(4) defining Reliable Operation as “operating the elements of the bulk-power system within equipment and electric system thermal, voltage, and stability limits so that instability, uncontrolled separation, or cascading failures of such system will not occur as a result of a sudden disturbance, including a cybersecurity incident, or unanticipated failure of system elements.”

    B. Monitoring of Non-Bulk Electric System Facilities NOPR

    28. In the NOPR the Commission proposed to find that the proposed Reliability Standards adequately address the 2011 Southwest Outage Blackout Report recommendation regarding monitoring sub-100 kV facilities, primarily because of the responsibility of the reliability coordinator under proposed Reliability Standard IRO-002-4, Requirement R3 to monitor non-bulk electric system facilities to the extent necessary. The Commission noted, however, that “the transmission operator may have a more granular perspective than the reliability coordinator of its necessary non-bulk electric system facilities to monitor,” and it is not clear whether or how the transmission operator would provide information to the reliability coordinator regarding which non-BES facilities should be monitored.23 The Commission sought comment on how NERC will ensure that the reliability coordinator will receive such information.

    23 NOPR, 151 FERC ¶ 61,236 at P 58.

    29. The Commission stated that including such non-bulk electric system facilities in the definition of bulk electric system through the NERC Rules of Procedure exception process could be an option to address any potential gaps for monitoring facilities but notes that there may be potential efficiencies gained by using a more expedited method to include non-bulk electric system facilities that requires monitoring. The Commission sought comment on whether the BES exception process should be used exclusively in all cases. Alternatively, the Commission sought comment on whether this concern can be addressed through a review process of the transmission operators' systems to determine if there are important non-bulk electric system facilities that require monitoring.

    Comments

    30. Nearly all commenters support the Reliability Standards as proposed as sufficient for identifying and monitoring non-bulk electric system facilities, and do not support the alternatives offered by the Commission in the NOPR.24 NERC submits that the proposed data specification and collection Reliability Standards IRO-010-2 and TOP-003-3, in addition to the exceptions process will help ensure that the reliability coordinator can work with transmission operators, and other functional entities, to obtain sufficient information to identify the necessary non-bulk electric system facilities to monitor. In support, NERC points to Reliability Standard IRO-010-2, which provides a mechanism for the reliability coordinator to obtain the information and data it needs for reliable operations and to help prevent instability, uncontrolled separation, or cascading outages. Further, NERC cites Reliability Standard TOP-003-3, which allows transmission operators to obtain data on non-bulk electric system facilities, necessary to perform their operational planning analyses, real‐time monitoring, and real‐time assessments from applicable entities. NERC explains that any data that the transmission operator obtains regarding non-bulk electric system facilities under Reliability Standard TOP-003-3 can be passed on to the reliability coordinator pursuant to a request under proposed Reliability Standard IRO-010-2. Accordingly, NERC states that it would be premature to develop an alternative process before the data specification and bulk electric system exception process are allowed to work.

    24E.g. NERC, EEI, TAPS, Occidental, and NIPSCO.

    31. EEI states that this issue has been thoroughly studied by NERC through Project 2010-17 Phase 2 (Revisions to the Definition of Bulk Electric System) that led to modification of the definition of bulk electric system. EEI believes that the current process provides all of the necessary tools and processes to ensure that insights by TOPs are fully captured and integrated into existing monitoring systems that would ensure that all non-BES elements that might impact BES reliability are fully monitored. EEI does not support the alternative process proposed by the Commission. EEI warns that an alternative, parallel review process of the transmission operators' systems to determine if there are important non-bulk electric system facilities that require monitoring would either circumvent the revised bulk electric system definition process or arbitrarily impose NERC requirements (i.e., monitoring) onto non-bulk electric system elements.

    32. APS agrees with the Commission that there would be a reliability benefit for the reliability coordinator to be able to identify facilities within the transmission operators' areas that may have a material impact on reliability. APS believes this benefit can be achieved using the method deployed in the Western Interconnection by the Western Electricity Coordinating Council (WECC). APS explains that the WECC planning coordination committee has published a bulk electric system inclusion guideline that categorizes non-bulk electric system facilities that are to be identified by each planning authority and transmission planner when performing their system planning and operations reliability assessments, and the identified facilities are then reported to NERC. APS proposes a similar exception process be used in all cases. According to APS, each reliability coordinator would publish a guideline on how to identify non-bulk electric system facilities critical to reliability appropriate for their reliability coordinator area, and each planning coordinator and transmission planner would run studies according to the reliability coordinator guideline at least once every three years.

    33. ERCOT states that performance of sufficient studies and evaluations of reliability coordinator areas occurs in cooperation and coordination with associated transmission operators, rending an additional review process unnecessary. However, to avoid any potential gaps in monitoring non-bulk electric system facilities and ensure that existing agreements and monitoring processes are respected, ERCOT states that the Commission should direct NERC to modify the TOP and IRO Reliability Standards to refer not only to sub-100 kV facilities identified as part of the bulk electric system through the Rules of Procedure exception process, but also to other sub-100 kV facilities as requested or agreed by the responsible entities.25 ERCOT also states that because “non-bulk electric system facilities” fall outside the scope of the NERC Reliability Standards, use of this terminology should be avoided. ERCOT advocates for the Commission to permit monitoring of other sub-100 kV facilities to be undertaken as agreed to between the reliability coordinator and the transmission operator. ERCOT and ISO/RTOs suggest that the phrase “non-BES facilities” in Reliability Standard IRO-002-4, Requirement R3 should be replaced with “sub-100 kV facilities identified as part of the BES through the BES exception process or as otherwise agreed to between the Reliability Coordinator and Transmission Operator” and the phrase “non-BES data” in Reliability Standards IRO-010-2 (Requirement R1.1) and TOP-003-3 (Requirement R1.1) should be replaced with “data from sub-100 kV facilities identified as part of the BES through the BES exception process, as otherwise requested by the Responsible Entity, or as agreed to between the Transmission Operator and the Responsible Entity.” 26

    25See also ISO/RTOs Comments at 3.

    26See also ISO/RTOs Comments at 4-6.

    34. ITC does not support the Commission's proposal. ITC states that transmission operators are required to incorporate any non-bulk electric system data into operational planning analysis and real-time assessments and monitoring, which therefore requires transmission operators to regularly review their models to identify impacting non-bulk electric system facilities. Conversely, ITC explains that conducting a one-time or periodic review and analysis of a transmission operator's model ignores the fact that changes in system conditions can cause the list of impacting non-bulk electric system facilities to change frequently.

    Commission Determination

    35. We agree with NERC, TAPS, and EEI that the BES exception process can be a mechanism for identifying non-BES facilities to be included in the BES definition.27 Indeed, once a non-BES facility is included in the BES definition under the BES exception process, the “non-BES facility” becomes a BES “Facility” under TOP-001-3, Requirement R10, and real-time monitoring is required of “Facilities.” 28 However, we are concerned that in some instances the absence of real-time monitoring of non-BES facilities by the transmission operator within and outside its TOP area as necessary for determining SOL exceedances in proposed TOP-001-3, Requirement R10 creates a reliability gap. As the 2011 Southwest Outage Report indicates, the Regional Entity “should lead other entities, including TOPs and BAs, to ensure that all facilities that can adversely impact BPS reliability are either designated as part of the BES or otherwise incorporated into planning and operations studies and actively monitored and alarmed in [real-time contingency analysis] systems.” 29 Such monitoring of non-BES facilities could provide a “stop gap” during the period where a sub-100 kV facility undergoes analysis as a possible BES facility, allowing for monitoring in the interim until such time the non-bulk electric system facilities become “BES Facilities” or the transmission operator determines that a non-bulk electric system facility is no longer needed for monitoring to determine a system operating limit exceedance in its area.30 We believe that the operational planning analyses and real-time assessments performed by the transmission operators as well as the reliability coordinators will serve as the basis for determining which “non-BES facilities” require monitoring to determine system operating limit and interconnection reliability operating limit exceedances. In addition, we believe that monitoring of certain non-BES facilities that are occasional system operating limit exceedance performers may not qualify as a candidate for inclusion in the BES definition, yet should be monitored for reliability purposes.31 Accordingly, pursuant to section 215(d)(5) of the FPA, we direct NERC to revise Reliability Standard TOP-001-3, Requirement R10 to require real-time monitoring of non-BES facilities. We believe this is best accomplished by adopting language similar to Reliability Standard IRO-002-4, Requirement R3, which requires reliability coordinators to monitor non-bulk electric system facilities to the extent necessary. NERC can develop an equally efficient and effective alternative that addresses our concerns.32

    27 NERC TOP/IRO Petition, Exh. G at 9 states in response to the 2011 Southwest Outage Recommendation #17, “If a non-BES facility impacts the BES, such as by contributing to an SOL or IROL, then the SDT expects that facility to be incorporated into the BES through the official BES Exception Process and it would be covered in proposed TOP-001-3, Requirement R10, Parts 10.1 and 10.2 by use of the defined term `Facilities.' ”

    28 NERC Glossary of Terms defines Facility as: “A set of electrical equipment that operates as a single Bulk Electric System Element (e.g., a line, a generator, a shunt compensator, transformer, etc.)”

    29 NOPR, 151 FERC ¶ 61,236 at P 55, citing Recommendation 17 of the 2011 Southwest Outage Blackout Report (emphasis added).

    30 NERC's BES Frequently Asked Questions, Version 1.6, February 25, 2015, Section 5.6. “How long will the process take?” at page 14 states: “In general, assuming a complete application, no appeals, and taking the allotted time for each subtask, the process could take up to 11.5 months, but is anticipated to be shorter for less complicated Exception Requests. If the Exception Request is appealed to the NERC Board of Trustees Compliance Committee pursuant to Section 1703 of the NERC Rules of Procedure, the process could take an additional 8.5 months, totaling 20 months. This does not include timing related to an appeal to the applicable legal authority or Applicable Governmental Authority. A Regional Entity, upon consultation with NERC, may extend the time frame of the substantive review process. . . .” http://www.nerc.com/pa/RAPA/BES%20DL/BES%20FAQs.pdf.

    31See, e.g., NERC TOP/IRO Petition at 18 and 27-28.

    32 Reliability Standard IRO-002-4, Requirement R3 states: Each Reliability Coordinator shall monitor Facilities, the status of Special Protection Systems, and non-BES facilities identified as necessary by the Reliability Coordinator, within its Reliability Coordinator Area and neighboring Reliability Coordinator Areas to identify any System Operating Limit exceedances and to determine any Interconnection Reliability Operating Limit exceedances within its Reliability Coordinator Area.

    36. To be clear, we are not directing that all current “non-BES” facilities that a transmission operator considers worthy of monitoring also be included in the bulk electric system. We believe that such monitoring may result in some facilities becoming part of the bulk electric system through the exception process; however it is conceivable that others may remain non-BES because they are occasional system operating limit exceedance performers that may not qualify as a candidate for inclusion in the BES definition.

    C. Removal of Load-Serving Entity Function From TOP-001-3 NOPR

    37. NERC proposed the removal of the load-serving entity function from proposed Reliability Standard, TOP-001-3, Requirements R3 through R6, as a recipient of an operating instruction from a transmission operator or balancing authority. NERC supplemented its initial petition with additional explanation for the removal of the load-serving entity function from proposed Reliability Standard TOP-001-3.33 NERC explained that the proposed standard gives transmission operators and balancing authorities the authority to direct the actions of certain other functional entities by issuing an operating instruction to maintain reliability during real-time operations.

    33 The Commission also notes that Reliability Standards TOP-003-3 and IRO-010-2 also include “load-serving entity” as an applicable entity.

    38. In the NOPR, the Commission noted that NERC was required to make a compliance filing in Docket No. RR15-4-000, regarding NERC's Risk-Based Registration initiative, and that the Commission's decision on that filing will guide any action in this proceeding. On March 19, 2015, the Commission approved, in part, NERC's Risk-Based Registration initiative, but denied, without prejudice, NERC's proposal to eliminate the load-serving entity function from the registry process, finding that NERC had not adequately justified its proposal.34 In doing so, the Commission directed NERC to provide additional information to support this aspect of its proposal to address the Commission's concerns. On July 17, 2015, NERC submitted a compliance filing in response to the March 19 Order.

    34North American Electric Reliability Corp. 150 FERC ¶ 61,213 (2015) (March 19 Order).

    Comments

    39. NERC states that while load-serving entities play a role in facilitating interruptible (or voluntary) load curtailments, that role is to simply communicate requests for voluntary load curtailments and does not necessitate requiring load-serving entities to comply with a transmission operator's or balancing authority's operating instructions issued pursuant to Reliability Standard TOP-001-3. In short, the load-serving entity's role in carrying out interruptible load curtailment is not the type of activity that rises to the level of requiring an operating instruction. EEI and TAPS contend it is appropriate to omit the load-serving entity function from TOP-001-3 applicability. TAPS explains that because the load-serving entity function does not own or operate equipment, the load-serving entity function cannot curtail load or perform other corrective actions subject to reliability standards. Dominion asserts that a load-serving entity does not own or operate bulk electric system facilities or equipment or the facilities or equipment used to serve end-use customers and is not aware of any entity, registered solely as a load-serving entity, which is responsible for operating one or more elements or facilities.

    Commission Determination

    40. In an October 15, 2015 order in Docket No. RR15-4-001, the Commission accepted a NERC compliance filing, finding that NERC complied with the March 17 Order with respect to providing additional information justifying the removal of the load-serving entity function.35 The Commission also found that NERC addressed the concerns expressed regarding an accurate estimate of the load-serving entities to be deregistered and the reliability impact of doing so, and how load data will continue to be available and reliability activities will continue to be performed even after load-serving entities would no longer be registered.36 Because the load-serving entity category is no longer a NERC registration function, no further action is required in this proceeding.37

    35North American Electric Reliability Corp, 153 FERC ¶ 61,024 (2015).

    36Id.

    37 In its response to comments in Docket No. RR15-4-000, NERC stated that, once the Commission approved the proposed deactivation of the load-serving entity registration function, it would make any needed changes to the Reliability Standards through the Reliability Standard Development Process. See January 26, 2016, NERC Motion to File Limited Answer at 6 in Docket No. RR15-4-000.

    D. Data Exchange Capabilities

    41. The Commission approved Reliability Standards COM-001-2 (Communications) and COM-002-4 (Operating Personnel Communications Protocols) in Order No. 808, and noted that in the NOPR underlying that order (COM NOPR) it had raised concerns as to whether Reliability Standard COM-001-2 addresses facilities that directly exchange or transfer data.38 In response to that concern in the COM NOPR, NERC clarified that Reliability Standard COM-001-2 did not need to include requirements regarding data exchange capability because such capability is covered under other existing and proposed standards. Based on that explanation, the Commission decided not to make any determinations in Order No. 808 and stated that it would address the issue in this TOP and IRO rulemaking proceeding.39

    38See NOPR, 151 FERC ¶ 61,236 at P 67, citing Communications Reliability Standards, Order No. 808, 151 FERC ¶ 61,039 (2015).

    39Id. citing Order No. 808, 151 FERC ¶ 61,039 at P 54.

    NOPR

    42. In the NOPR, the Commission stated that facilities for data exchange capabilities appear to be addressed in NERC's TOP/IRO petition. However, the Commission sought additional explanation from NERC regarding how it addresses data exchange capabilities in the TOP and IRO Standards in the following areas: (a) Redundancy and diverse routing; and (b) testing of the alternate or less frequently used data exchange capability.

    1. Redundancy and Diverse Routing of Data Exchange Capabilities NOPR

    43. In the NOPR, the Commission agreed that proposed Reliability Standard TOP-001-3, Requirements R19 and R20 require some form of “data exchange capabilities” for the transmission operator and balancing authority and that proposed Reliability Standard TOP-003-3 addresses the operational data itself needed by the transmission operator and balancing authority. In addition, the Commission agreed that Reliability Standard IRO-002-4, Requirement R1 requires “data exchange capabilities” for the reliability coordinator and that proposed Reliability Standard IRO-010-2 addresses the operational data needed by the reliability coordinator and that proposed Reliability Standard IRO-002-4 Requirement R4 requires a redundant infrastructure for system monitoring. However, the Commission was concerned that it is not clear whether redundancy and diverse routing of data exchange capabilities were adequately addressed in proposed Reliability Standards TOP-001-3 and IRO-002-4 for the reliability coordinator, transmission operator, and balancing authority and sought explanation or clarification on how the standards address redundancy and diverse routing or an equally effective alternative. The Commission also stated that, if NERC or others believe that redundancy and diverse routing are not addressed, they should address whether there are associated reliability risks of the interconnected transmission network for any failure of data exchange capabilities that are not redundant and diversely routed.

    Comments

    44. NERC and EEI state that the requirements in the TOP and IRO Reliability Standards covering data exchange are results-based, articulating a performance objective without dictating the manner in which it is met. NERC adds that, in connection with their compliance monitoring activities, NERC and the Regional Entities will review whether applicable entities have met that objective, and will consider whether the applicable entity has redundancy and diverse routing, and whether the applicable entity tests these capabilities. EEI also argues that Reliability Standard EOP-008-1, Requirements R1, R1.2, R1.2.2, R7, and EOP-001-2.1b, Requirements R6 and R6.1 provide specific requirements for maintaining or specifying reliable back-up data exchange capability necessary to ensure BES Reliability and the testing of those capabilities.

    45. ERCOT asserts that the Reliability Standards already appropriately provide for redundancy and diversity of routing of data exchange capabilities, as both the existing and proposed standards either explicitly or implicitly require responsible entities to ensure availability of data and data exchange capabilities. ERCOT states that, should the Commission seek to provide further clarification on this issue, such clarification should be consistent with existing explicit requirements regarding the redundancy of data exchange capabilities, such as Requirement R4 of Reliability Standard IRO-002-4.

    46. ISOs/RTOs and ERCOT explain the suite of currently-effective standards and the proposed TOP and IRO standards establish performance-based requirements for reliability coordinators, balancing authorities, and transmission operators, that create the need for those entities to have diverse and redundantly routed data communication systems. In the event of a failure of data communications, ISOs/RTOs explain that the functional entity should be able to rely on the redundant and diversely routed voice capabilities required in the COM standards.

    Commission Determination

    47. We agree with NERC and other commenters that there is a reliability need for the reliability coordinator, transmission operator and balancing authority to have data exchange capabilities that are redundant and diversely routed. However, we are concerned that the TOP and IRO Standards do not clearly address redundancy and diverse routing so that registered entities will unambiguously recognize that they have an obligation to address redundancy and diverse routing as part of their TOP and IRO compliance obligations. NERC's comprehensive approach to establishing communications capabilities necessary to maintain reliability in the COM standards is applicable to data exchange capabilities at issue here.40 Therefore, pursuant to section 215(d)(5) of the FPA, we direct NERC to modify Reliability Standards TOP-001-3, Requirements R19 and R20 to include the requirement that the data exchange capabilities of the transmission operators and balancing authorities require redundancy and diverse routing. In addition, we direct NERC to clarify that “redundant infrastructure” for system monitoring in Reliability Standards IRO-002-4, Requirement R4 is equivalent to redundant and diversely routed data exchange capabilities.

    40See, e.g, Order No. 808, 151 FERC ¶ 61,039 at P 8: “NERC stated in its [COM] petition that Reliability Standard COM-001-2 establishes requirements for Interpersonal Communication capabilities necessary to maintain reliability. NERC explained that proposed Reliability Standard COM-001-2 applies to reliability coordinators, balancing authorities, transmission operators, generator operators, and distribution providers. The proposed Reliability Standard includes eleven requirements and two new defined terms, “Interpersonal Communication” and “Alternative Interpersonal Communication,” that, according to NERC, collectively provide a comprehensive approach to establishing communications capabilities necessary to maintain reliability.”

    48. Further, we disagree with commenter arguments that Reliability Standard EOP-008-1 provides alternatives to data exchange redundancy and diverse routing. The NERC standard drafting team that developed the COM standards addressed this issue in the standards development process, responding to a commenter seeking clarification on the relationship between communication capabilities, alternative communication capabilities, primary control center functionality and backup control center functionality. The standard drafting team responded that “Interpersonal Communication and Alternative Interpersonal Communication are not related to EOP-008,” even though Reliability Standard EOP-008-1 Requirement R1 applies equally to data communications and voice communications.41 To the extent the standard drafting team asserted that Reliability Standard EOP-008 did not supplant the redundancy requirements of the COM Reliability Standards, we believe the same is true for data communications. Redundancy for data communications is no less important than the redundancy explicitly required in the COM standards for voice communications.

    41See NERC COM Petition, Exh. M, (Consideration of Comments on Initial Ballot, February 25-March 7, 2011) at 30 (emphasis added).

    2. Testing of the Alternate or Less Frequently Used Data Exchange Capability NOPR

    49. In the NOPR, the Commission expressed concern that the proposed TOP and IRO Reliability Standards do not appear to address testing requirements for alternative or less frequently used mediums for data exchange to ensure they would properly function in the event that the primary or more frequently used data exchange capabilities failed. Accordingly, the Commission sought comment on whether and how the TOP and IRO Reliability Standards address the testing of alternative or less frequently used data exchange capabilities for the transmission operator, balancing authority and reliability coordinator.

    Comments

    50. Commenters assert that the existing standards have sufficient testing requirements. NERC points to Reliability Standard EOP-008-1, Requirement R7, which requires that applicable entities conduct annual tests of their operating plan that demonstrates, among other things, backup functionality. Similarly, EEI cites EOP-008-1 Requirements R1, R1.2, R1.2.2, R7 and EOP-001-2.1b Requirements R6 and R6.1 as providing specific requirements for maintaining and testing of data exchange capabilities. ITC suggests that NERC's proposed Standard TOP-001-3 provides ample assurance that the data exchange capabilities are regularly tested and also points to Reliability Standards EOP-001-2.1b and EOP-008-1 which require entities, including those covered by TOP-001-3, to maintain reliable back-up data exchange capability as necessary to ensure reliable BES operations, and require that such capabilities be thoroughly and regularly tested.

    Commission Determination

    51. We agree with NERC and other commenters that there is a reliability need for the reliability coordinator, transmission operator and balancing authority to test alternate data exchange capabilities. However, we are not persuaded by the commenters' assertions that the need to test is implied in the TOP and IRO Standards. Rather, we determine that testing of alternative data exchange capabilities is important to reliability and should not be left to what may or may not be implied in the standards.42 Therefore, pursuant to section 215(d)(5) of the FPA, we direct NERC to develop a modification to the TOP and IRO standards that addresses a data exchange capability testing framework for the data exchange capabilities used in the primary control centers to test the alternate or less frequently used data exchange capabilities of the reliability coordinator, transmission operator and balancing authority. We believe that the structure of Reliability Standard COM-001-2, Requirement R9 could be a model for use in the TOP and IRO Standards.43

    42 In NERC's COM Petition, Exh. M, (Consideration of Comments, Index to Questions, Comments and Responses) at 35, the standard drafting team stated that the “requirement [COM-001-2, Requirement R9 which addresses testing of alternative interpersonal communication] applies to the primary control center” and “EOP-008 applies to the back up control center.”

    43 43 COM-001-2, Requirement R9 states: “Each Reliability Coordinator, Transmission Operator, and Balancing Authority shall test its Alternative Interpersonal Communication capability at least once each calendar month. If the test is unsuccessful, the responsible entity shall initiate action to repair or designate a replacement Alternative Interpersonal Communication capability within 2 hours.”

    E. Other Issues Raised by Commenters 1. Emergencies and Emergency Assistance Under Reliability Standard TOP-001-3

    52. Reliability Standard TOP-001-3, Requirement R7 requires each transmission operator to assist other transmission operators within its reliability coordinator area, if requested and able, provided that the requesting transmission operator has implemented its comparable emergency procedures. NIPSCO contends that this requirement limits the ability of an adjacent transmission operator that is located along the seam in another reliability coordinator area from rendering assistance in an emergency because Requirement R7 only requires each transmission operator to assist other transmission operators within its reliability coordinator area. NIPSCO points to Reliability Standard IRO-014-3, Requirement R7 which requires each reliability coordinator to assist other reliability coordinators and, according to NIPSCO, a similar requirement in Reliability Standard TOP-001-3 will make the two sets of requirements consistent with each other.

    53. In addition, Reliability Standard TOP-001-3, Requirement R8 states:

    Each Transmission Operator shall inform its Reliability Coordinator, known impacted Balancing Authorities, and known impacted Transmission Operators of its actual or expected operations that result in, or could result in, an Emergency. BPA contends that the phrase “could result in” in Requirement R8 of TOP-001-3 is overly broad and suggests corrective language underscored below: Each Transmission Operator shall inform its Reliability Coordinator, known impacted Balancing Authorities, and known impacted Transmission Operators of its actual or expected operations that result in an Emergency, or could result in an Emergency if a credible Contingency were to occur. As an alternative to changing the language of the requirement, BPA asks the Commission to clarify that it is in the transmission operator's discretion to determine what “could result” in an emergency, based on the transmission operator's experience and judgment. Commission Determination

    54. With regard to NIPSCO's concern, we do not believe that the requirements as written limit the ability of an adjacent transmission operator located along the seam in another reliability coordinator area from rendering assistance in an emergency. We agree with NIPSCO that proposed Reliability Standard TOP-001-3, Requirement R7 requires each transmission operator to assist other transmission operators within its reliability coordinator area and further agree with NIPSCO that proposed Reliability Standard IRO-014-3, Requirement R7 requires each reliability coordinator to assist other reliability coordinators.44 In addition, we understand that an adjacent transmission operator in another reliability coordinator area can render assistance when directed to do so by its own reliability coordinator.45 Having a similar requirement in Reliability Standard TOP-001-3 compared to Reliability Standard IRO-014-3, Requirement R7 is unnecessary and could complicate the clear decision-making authority NERC developed in the TOP and IRO Reliability Standards. Thus, we determine that no further action is required.

    44See Reliability Standards TOP-001-3 and IRO-014-3.

    45See Reliability Standard IRO-001-4, Requirement R2.

    55. With regard to clarification of emergencies in Reliability Standard TOP-001-3, Requirement R8, we do not see a need to modify the language as suggested by BPA. The requirement as written implies that the transmission operator has discretion to determine what could result in an emergency, based on its experience and judgment. In addition, we note that the transmission operators' required next-day operational planning analysis, real-time assessments and real-time monitoring under the TOP Reliability Standards provide evaluation, assessment and input in determining what “could result” in an emergency.

    2. Reliability Coordinator Authority in Next-Day Operating Plans

    56. Reliability Standard TOP-002-4, Requirements R2 and R4 require transmission operators and balancing authorities to have operating plans. Reliability Standard TOP-002-4, Requirements R6 and R7 require transmission operators and balancing authorities to provide their operating plans to their reliability coordinators and Reliability Standard IRO-008-2, Requirement R2 requires reliability coordinators to develop a coordinated operating plan that considers the operating plans provided by the transmission operators and balancing authorities.

    57. NIPSCO is concerned about the absence of any required direct coordination between transmission operators and balancing authorities as well as the absence of any guidance regarding the resolution of potential conflicts between the transmission operator and balancing authority operating plans. NIPSCO contends that the Reliability Standards provide only a limited coordination process in which reliability coordinators are required to notify those entities identified with its coordinated operating plan of their roles. NIPSCO argues that there is no provision for modifications to operating plans based on the reliability coordinator's coordinated operating plan or based on potential conflicts between the transmission operator and balancing authority operating plans. NIPSCO is concerned that a potential disconnect between operating plans could lead to confusion or a failure of coordination of reliable operations.

    Commission Determination

    58. We believe that proposed Reliability Standards TOP-002-4 and IRO-008-2 along with NERC's definition of reliability coordinator address NIPSCO's concern.46 Although the transmission operator and balancing authority develop their own operating plans for next-day operations, both the transmission operator and balancing authority notify entities identified in the operating plans as to their role in those plans. Further, each transmission operator and balancing authority must provide its operating plan for next-day operations to its reliability coordinator.47 In Reliability Standard IRO-008-2, Requirement R2, the reliability coordinator must have a coordinated operating plan for next-day operations to address potential SOL and IROL exceedances while considering the operating plans for the next-day provided by its transmission operators and balancing authorities. Also, Reliability Standard IRO-008-2, Requirement R3 requires that the reliability coordinator notify impacted entities identified in its operating plan as to their role in such plan. Based on the notification and coordination processes of Reliability Standards TOP-002-4 (for the transmission operator and balancing authority) and IRO-008-2 (for the reliability coordinator) for next-day operating plans, as well as the fact that the reliability coordinator is the entity that is the highest level of authority who is responsible for the reliable operation of the bulk electric system, we believe that the reliability coordinator has the authority and necessary next-day operational information to resolve any next-day operational issues within its reliability coordinator area. Accordingly, we deny NIPSCO's request.

    46 NERC Glossary of Terms defines the Reliability Coordinator as “The entity that is the highest level of authority who is responsible for the reliable operation of the Bulk Electric System, has the Wide Area view of the Bulk Electric System, and has the operating tools, processes and procedures, including the authority to prevent or mitigate emergency operating situations in both next-day analysis and real-time operations. The Reliability Coordinator has the purview that is broad enough to enable the calculation of Interconnection Reliability Operating Limits, which may be based on the operating parameters of transmission systems beyond any Transmission Operator's vision.”

    47 Reliability Standard TOP-002-4 (Operations Planning).

    3. Reliability Coordinator Authority in Next-Day Operations and the Issuance of Operating Instructions

    59. NIPSCO is concerned with the elimination of the explicit requirement in currently-effective Reliability Standard IRO-004-2 that each transmission operator, balancing authority, and transmission provider comply with the directives of a reliability coordinator based on next-day assessment in the same manner as would be required in real-time operating conditions. NIPSCO claims that, while the Reliability Standards appear to address the Commission's concerns regarding directives issued in other than emergency conditions through the integration of the term “operating instruction,” the standards only allow for the issuance of directives in real-time. NIPSCO points to Reliability Standard TOP-001-3, Requirements R1 and R2, and IRO-001-4, Requirement R1, where transmission operators, balancing authorities, and reliability coordinators are explicitly given authority and responsibility to issue operating instructions to address reliability in their respective areas. NIPSCO states that “operating instruction” is “clearly limited to real-time operations” as it underscored below:

    A command by operating personnel responsible for the Real-time operation of the interconnected Bulk Electric System to change or preserve the state, status, output, or input of an Element of the Bulk Electric System or Facility of the Bulk Electric System. (A discussion of general information and of potential options or alternatives to resolve Bulk Electric System operating concerns is not a command and is not considered an Operating Instruction.) NIPSCO contends that there are no clear requirements addressing potential conflicts between operating plans, no clear requirements authorizing the issuance of a directive to address issues identified in next-day planning, and no clear requirement to comply with any directive so issued. NIPSCO is concerned that this raises the possibility that potential next-day problems identified in the operational planning analyses may not get resolved in the next-day planning period because the reliability coordinator's authority to issue operating instructions is limited to real-time operation. According to NIPSCO, this limitation undermines some of the usefulness of the next-day planning and the performance of operational planning analyses. Commission Determination

    60. We do not share NIPSCO's concern. Rather, we believe that, because the reliability coordinator is required to have a coordinated operating plan for the next-day operations, the reliability coordinator will perform its task of developing a coordinated operating plan in good faith, with inputs not only from its transmission operators and balancing authorities, but also from its neighboring reliability coordinators.48 A reliability coordinator has a wide-area view and bears the ultimate responsibility to maintain the reliability within its footprint, “including the authority to prevent or mitigate emergency operating situations in both next-day analysis and real-time operations.” 49

    48See Reliability Standards IRO-008-2, Requirements R1 and R2, and IRO-014-3, Requirement R1.

    49See supra n. 46.

    61. In addition, we do not agree with NIPSCO's claim that operating instructions are “clearly limited to real-time operations.” The phrase “real-time operation” in the definition of operating instruction as emphasized by NIPSCO applies to the entity that issues the operating instruction which is “operating personnel responsible for the Real-time operation.” The definition of operating instruction is “[a] command by operating personnel responsible for the Real-time operation of the interconnected Bulk Electric System. . . .” In addition, the time horizons associated with the issuance of or compliance with an operating instruction are not found in the definition of operating instructions, but found in the individual requirement(s) applicable to issuing an operating instruction. For example, Reliability Standard TOP-001-3, Requirements R1 through R6 and IRO-001-4, Requirements R1 through R3 are all requirements associated with the issuance or compliance of operating instructions. In all nine requirements, the defined time horizon is “same-day operations” and “real-time operations.” 50 Accordingly, we deny NIPSCO's request on this issue.

    50 NERC's “Time Horizons” document defines “Same-Day Operations” time horizon as “routine actions required within the timeframe of a day, but not real-time” and defines “Real-Time Operations” time horizon as “actions required within one hour or less to preserve the reliability of the bulk electric system.” See http://www.nerc.com/files/Time_Horizons.pdf.

    4. Updating Operational Planning Analyses and Real-Time Assessments

    62. NIPSCO is concerned that the proposed Reliability Standards are not clear as to whether updates or additional analyses are required. NIPSCO points to Reliability Standards IRO-008-2 and TOP-002-4, which require reliability coordinators to perform—and transmission operators and balancing authorities to have—an operational analysis for the next-day, but do not specify when such analysis must be performed or if it needs to be updated in next-day planning based on any change in inputs. Similarly, NIPSCO asserts that the proposed Reliability Standards require the performance of a real-time assessment every 30 minutes but do not address the need to potentially update operating plans based on changes in system conditions (including unplanned outages of protection system degradation) and do not require the performance of additional real-time assessments or other studies with more frequency based on changes in system conditions. NIPSCO explains that it is not clear if or when, based on the operational planning analysis results, some type of additional study or analysis would need to be undertaken prior to the development of an operating plan. According to NIPSCO, the text of the requirements and the definition do not specifically require additional studies; however, it seems that when issues associated with protection system degradation or outages are identified, further study of these issues would be required and/or additional analyses required to update results as protection system status or transmission or generation outages change.

    Commission Determination

    63. We do not share NIPSCO's concern. Reliability Standards IRO-008-2 and TOP-002-4 require reliability coordinators to perform and transmission operators to have an operational planning analysis to assess whether its planned operations for next-day will exceed any of its SOLs (for the transmission operator) and SOLs/IROLs (for the reliability coordinator). Both are required to have an operating plan(s) to address potential SOL and/or IROL exceedances based on its operational planning analysis results. We believe that, if the applicable inputs of the operational planning analysis change from one operating day to the next operating day, and because an operational planning analysis is an “evaluation of projected system conditions,” a new operational planning analysis must be performed to include the change in applicable inputs. Based on the results of the new operational planning analysis for next-day, operating plans may need updating to reflect the results of the new operational planning analysis. Likewise with the real-time assessment, as system conditions change and the applicable inputs to the real-time assessment change, a new assessment would be needed to accurately reflect applicable inputs, as stated in the real-time assessment definition.51

    51 Real-time assessment is defined as “An evaluation of system conditions using Real-time data to assess existing (pre-Contingency) and potential (post-Contingency) operating conditions. The assessment shall reflect applicable inputs including, but not limited to: Load, generation output levels, known Protection System and Special Protection System status or degradation, Transmission outages, generator outages, Interchange, Facility Ratings, and identified phase angle and equipment limitations. (Real-time Assessment may be provided through internal systems or through third-party services.).”

    5. Performing a Real-Time Assessment When Real-Time Contingency Analysis Is Unavailable

    64. Reliability Standard TOP-001-3, Requirement R13 requires transmission operators to ensure a real-time assessment is performed at least every 30 minutes. NIPSCO states that NERC's definition of real-time assessment anticipates that real-time assessments must be performed through the use of either an internal tool or third-party service.52 NIPSCO believes that compliance with the requirement to perform a real-time assessment should not be dependent on the availability of a system or tool. According to NIPSCO, if a transmission operators' tools are unavailable for 30 minutes or more, they should be permitted to meet the requirement to assess existing conditions through other means.

    52See supra n. 48.

    Commission Determination

    65. Reliability Standard TOP-001-3, Requirement R13 requires the transmission operator to ensure the assessment is performed at least once every 30 minutes, but does not state that the transmission operator on its own must perform the assessment and does not specify a system or tool. This gives the transmission operator flexibility to perform its real-time assessment. Further supporting this flexibility, NERC's definition of real-time assessment states that a real-time assessment “may be provided through internal systems or through third-party services.” 53 Therefore, we believe that Reliability Standard TOP-001-3, Requirement R13 does not specify the system or tool a transmission operator must use to perform a real-time assessment. In addition, NERC explains that Reliability Standard TOP-001-3, Requirement R13 and the definition of real-time assessment “do not specify the manner in which an assessment is performed nor do they preclude Reliability Coordinators and Transmission Operators from taking `alternative actions' and developing procedures or off-normal processes to mitigate analysis tool (RTCA) outages and perform the required assessment of their systems. As an example, the Transmission Operator could rely on its Reliability Coordinator to perform a Real-time Assessment or even review its Reliability Coordinator's Contingency analysis results when its capabilities are unavailable and vice-versa.” 54 Accordingly, we conclude that TOP-001-3 adequately addresses NIPSCO's concern, namely, if a transmission operators' tools are unavailable for 30 minutes or more, the transmission operator has the flexibility to meet the requirement to assess system conditions through other means.

    53 NERC TOP/IRO Petition at 18.

    54 NERC TOP/IRO Petition, Exh. K (Summary of Development History and Complete Record of Development), Consideration of Comments May 19, 2014 through July 2, 2014) at 61.

    6. Valid Operating Limits

    66. IESO is concerned that the revised TOP standards do not compel an entity to verify existing limits or re-establish limits following an event that results in conditions not previously assessed within an acceptable time frame as is specified in the currently-effective Reliability Standard TOP-004-2 Requirement R4.55 IESO disagrees that this is sufficient because there is no requirement in the Reliability Standard TOP-001-3 standard to derive a new set of limits, particularly transient stability limits, or verify that an existing set of limits continue to be valid for the prevailing conditions within an established timeframe. IESO contends that a real-time assessment is useful only if the system conditions are assessed against a valid set of limits and is unable to verify or re-establish stability-restricted SOLs with which to assess system conditions to address reliability concerns. IESO believes that an explicit requirement to verify or re-establish SOLs when entering into an unstudied state must therefore be imposed to fill this reliability gap.

    55 Requirement R4 states: “If a Transmission Operator enters an unknown operating state (i.e. any state for which valid operating limits have not been determined), it will be considered to be in an emergency and shall restore operations to respect proven reliable power system limits within 30 minutes.”

    67. Further, IESO asserts that implementing operating plans to mitigate an SOL exceedance does not require transmission operators to determine a valid set of limits with which to compare the prevailing system conditions (i.e. whether or not the limits are exceeded). While the IESO supports performing a real-time assessment every 30 minutes, it asserts that performing an assessment without first validating the current set of limits or re-establishing a new set of limits as the boundary conditions leaves a reliability gap.

    Commission Determination

    68. We agree with IESO that valid operating limits, including transient stability limits, are essential to the reliable operation of the interconnected transmission network and that a transmission operator must not enter into an unknown operating state. Further, we agree with IESO that Reliability Standard TOP-001-3 has no requirements to derive a new set of limits or verify an existing set of limits for prevailing operating conditions within an established timeframe. However, IESO's concerns regarding the establishment of transient stability operating limits are addressed collectively through proposed Reliability Standard TOP-001-3, certain currently-effective Facilities Design, Connections, and Maintenance (FAC) Reliability Standards and NERC's Glossary of Terms definition of SOLs.

    69. In its SOL White Paper, NERC stated that the intent of the SOL concept is to bring clarity and consistency for establishing SOLs, exceeding SOLs, and implementing operating plans to mitigate SOL exceedances.56 In addition, “transient stability ratings” are included in the SOL definition. Further, in the SOL White Paper, NERC states that the “concept of SOL determination is not complete without looking at the approved NERC FAC standards FAC-008-3, FAC-011-2 and FAC-014-2.” 57 Specific to IESO's concerns of establishing transient stability limits, we agree with NERC that approved Reliability Standard FAC-011-2, Requirement R2 requires that the reliability coordinator's SOL methodology include a requirement that SOLs provide a certain level of bulk electric system performance including among other things, that the “BES shall demonstrate transient, dynamic and voltage stability” and that “all Facilities shall be within their . . . stability limits” for both pre- and post-contingency conditions.58 In addition, we note that currently-effective Reliability Standard FAC-011-2, Requirement R2.1 states that “[i]n the determination of SOLs, the BES condition used shall reflect current or expected system conditions and shall reflect changes to system topology such as Facility outages.” 59

    56 NERC Petition, Exh. E (White Paper on System Operating Limit Definition and Exceedance Clarification) at 1. NIPSCO requests clarification as to how NERC's SOL White Paper can be used in determining compliance. NIPSCO requests that any substantive content that is treated as containing enforceable compliance requirements be filed with the Commission for approval. NERC developed the SOL White Paper as a guidance document which provides links between relevant reliability standards and reliability concepts to establish a common understanding necessary for developing effective operating plans to mitigate SOL exceedances. Guidelines are illustrative but not mandatory and enforceable compliance requirements. See, e.g. North American Electric Reliability Corp., 143 FERC ¶ 61,271, at P 15 (2013). Accordingly, we see no need for further revisions to the Reliability Standards to incorporate the SOL White Paper as requested by NIPSCO.

    57 NERC Petition, Exh. E at 1.

    58Id. at 2. See also Reliability Standard FAC-011-2, Requirement R2.

    59 Reliability Standard FAC-011-1, Requirement R2.1 (emphasis added).

    70. With respect to Reliability Standard TOP-001-3, we agree with NERC that Requirement R13 specifies that transmission operators must perform a real-time assessment at least once every 30 minutes, which by definition is an evaluation of system conditions to assess existing and potential operating conditions. The real-time assessment provides the transmission operator with the necessary knowledge of the system operating state to initiate an operating plan, as specified in Requirement R14, when necessary to mitigate an exceedance of SOLs. In addition, the SOL White Paper provides technical guidance for including timelines in the required operating plans to return the system to within prescribed ratings and limits.60 Accordingly, we conclude that the establishment of transient stability operating limits is adequately addressed collectively through proposed Reliability Standard TOP-001-3, currently-effective Reliability Standards FAC-011-2 and FAC-014-2 and NERC's Glossary of Terms definition of SOLs.61

    60 NERC Petition at 57-58.

    61See Reliability Standard FAC-014-2, Requirement R2.

    III. Information Collection Statement

    71. The collection of information contained in this Final Rule is subject to review by the Office of Management and Budget (OMB) regulations under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA).62 OMB's regulations require approval of certain informational collection requirements imposed by agency rules.63 Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

    62 44 U.S.C. 3507(d) (2012).

    63 5 CFR 1320.11.

    Public Reporting Burden: The number of respondents below is based on an estimate of the NERC compliance registry for the balancing authority, transmission operator, generator operator, distribution provider, generator owner, load-serving entity, purchasing-selling entity, transmission service provider, interchange authority, transmission owner, reliability coordinator, planning coordinator, and transmission planner functions. The Commission based its paperwork burden estimates on the NERC compliance registry as of May 15, 2015. According to the registry, there are 11 reliability coordinators, 99 balancing authorities, 450 distribution providers, 839 generator operators, 80 purchasing-selling entities, 446 load-serving entities, 886 generator owners, 320 transmission owners, 24 interchange authorities, 75 transmission service providers, 68 planning coordinators, 175 transmission planners and 171 transmission operators. The estimates are based on the change in burden from the current standards to the standards approved in this Final Rule. The following table illustrates the burden to be applied to the information collection:

    RM15-16-000 (Transmission Operations Reliability Standards, Interconnection Reliability Operations and Coordination Reliability Standards) Number of
  • respondents 64
  • Annual
  • number of
  • responses per
  • respondent
  • Total number of responses Average burden & cost per response 65 Total annual
  • burden hours &
  • total annual cost
  • Cost per respondent ($)
    (1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) FERC-725A TOP-001-3 196 (TOP & BA) 1 196 96 hrs., $6,369 18,816 hrs., $1,248,441 96 hrs, $6,369. TOP-002-4 196 (TOP & BA) 1 196 284 hrs., $18,843 55,664 hrs., $3,693,306 284 hrs., $18,843. TOP-003-3 196 (TOP & BA) 1 196 230 hrs., $15,260 45,080 hrs., $2,991,058 230 hrs., $15,260. Sub-Total for FERC-725A 123,252 hrs., $7,932,806 FERC-725Z IRO-001-4 66 177 (RC & TOP) 1 177 0 hrs. $0 0 hrs. $0 0 hrs. $0. IRO-002-4 11 (RC) 1 11 24 hrs., $1,592 264 hrs., $17,516 24 hrs., $1,592. IRO-008-2 11 (RC) 1 11 228 hrs., $15,127 2,508 hrs., $166,405 228 hrs., $15,127. IRO-010-2 11 (RC) 1 11 36 hrs., $2,388 396 hrs., $26,274 36 hrs., $2,388. IRO-014-3 11 (RC) 1 11 12 hrs., $796 132 hrs., $8,758 12 hrs., $796. IRO-017-1 180 (RC, PC, & TP) 1 180 218 hrs., $14,464 39,240 hrs., $2,603,574 218 hrs., $14,464. Sub-Total for FERC-725Z 42,540 hrs., $2,822,529.00 Retirement of current standards currently in FERC-725A 457(RC, TOP, BA, TSP, LSE, PSE, & IA) 1 457 −223 hrs., −$14,796 −101,911 hrs., −$6,761,794 −223 hrs., −$14,796. NET TOTAL of NOPR in RM15-16 63,881 hrs., $3,993,540

    Title: FERC-725Z, Mandatory Reliability Standards: IRO Reliability Standards, and FERC-725A, Mandatory Reliability Standards for the Bulk-Power System.

    Action: Proposed Changes to Collections.

    OMB Control Nos: 1902-0276 (FERC-725Z); 1902-0244 (FERC-725A).

    Respondents: Business or other for-profit and not-for-profit institutions.

    Frequency of Responses: On-going.

    64 the number of respondents is the number of entities for which a change in burden from the current standards to the proposed exists, not the total number of entities from the current or proposed standards that are applicable.

    65 The estimated hourly costs (salary plus benefits) are based on Bureau of Labor Statistics (BLS) information, as of April 1, 2015, for an electrical engineer ($66.35/hour). These figures are available at http://blsgov/oes/current/naics3_221000.htm#17-0000.

    66 IRO-001-4 is a revised standard with no increase in burden.

    72. Necessity of the Information and Internal review: The Commission has reviewed the requirements of Reliability Standards TOP-001-3, TOP-002-4, TOP-003-3, IRO-001-4, IRO-002-4, IRO-008-2, IRO-010-2, IRO-014-3, and IRO-017-1 and made a determination that the standards are necessary to implement section 215 of the FPA. The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements.

    73. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    74. Comments on the requirements of this rule may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address: [email protected]. Please reference OMB Control Nos. 1902-0276 (FERC-725Z) and 1902-0244 (FERC-725A)) in your submission.

    IV. Environmental Analysis

    75. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.67 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.68 The actions approved herein fall within this categorical exclusion in the Commission's regulations.

    67Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regulations Preambles 1986-1990 ¶ 30,783 (1987).

    68 18 CFR 380.4(a)(2)(ii).

    V. Regulatory Flexibility Act Analysis

    76. The Regulatory Flexibility Act of 1980 (RFA) generally requires a description and analysis of Proposed Rules that will have significant economic impact on a substantial number of small entities.69 The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.70 The SBA revised its size standard for electric utilities (effective January 22, 2014) to a standard based on the number of employees, including affiliates (from a standard based on megawatt hours).71 Reliability Standards TOP-001-3, TOP-002-4, TOP-003-3, IRO-001-4, IRO-002-4, IRO-008-2, IRO-010-2, IRO-014-3, and IRO-017-1 are expected to impose an additional burden on 196 entities (reliability coordinators, transmission operators, balancing authorities, transmission service providers, and planning authorities). Comparison of the applicable entities with the Commission's small business data indicates that approximately 82 of these entities are small entities that will be affected by the proposed Reliability Standards.72 As discussed above, Reliability Standards TOP-001-3, TOP-002-4, TOP-003-3, IRO-001-4, IRO-002-4, IRO-008-2, IRO-010-2, IRO-014-3, and IRO-017-1 will serve to enhance reliability by imposing mandatory requirements for operations planning, system monitoring, real-time actions, coordination between applicable entities, and operational reliability data. The Commission estimates that each of the small entities to whom the proposed Reliability Standards TOP-001-3, TOP-002-4, TOP-003-3, IRO-001-4, IRO-002-4, IRO-008-2, IRO-010-2, IRO-014-3, and IRO-017-1 applies will incur costs of approximately $147,364 (annual ongoing) per entity. The Commission does not consider the estimated costs to have a significant economic impact on a substantial number of small entities.

    69 5 U.S.C. 601-12.

    70 13 CFR 121.101.

    71 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77343 (Dec. 23, 2013).

    72 The Small Business Administration sets the threshold for what constitutes a small business. Public utilities may fall under one of several different categories, each with a size threshold based on the company's number of employees, including affiliates, the parent company, and subsidiaries. For the analysis in this NOPR, we are using a 750 employee threshold for each affected entity to conduct a comprehensive analysis.

    VI. Document Availability

    77. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    78. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    79. User assistance is available for eLibrary and the FERC's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected].

    VII. Effective Date and Congressional Notification

    80. This final rule is effective January 26, 2016. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.

    By the Commission.

    Issued: November 19, 2015. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2015-30110 Filed 11-25-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF DEFENSE Department of the Navy [No. USN-2013-0011] RIN 0703-AA92 32 CFR Part 776 Professional Conduct of Attorneys Practicing Under the Cognizance and Supervision of the Judge Advocate General; Correction AGENCY:

    Department of the Navy, DoD.

    ACTION:

    Final rule; correction.

    SUMMARY:

    On November 4, 2015, the Department of the Navy (DoN) published a final rule to comport with current policy as stated in JAG Instruction 5803.1 (Series) governing the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General. The content of one of its CFRs is better codified as an appendix, and this correction amends the CFR accordingly.

    DATES:

    This correction is effective December 4, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Commander Noreen A. Hagerty-Ford, JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave. SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone: 703-614-7408.

    SUPPLEMENTARY INFORMATION:

    The DoN published a rule at 80 FR 68388 on November 4, 2015, to revise 32 CFR part 776, to comport with current policy as stated in JAG Instruction 5803.1 (Series) governing the professional conduct of attorneys practicing under the cognizance and supervision of the Judge Advocate General. The content of § 776.94 is more appropriate as an appendix, and this correction amends the CFR accordingly, redesignating § 776.94 as an appendix to subpart D. In addition, because § 776.94 becomes an appendix to its subpart, DoN is redesignating § 776.95 in the November 4 rule as § 776.94.

    Correction

    In FR Rule Doc. 2015-26982 appearing on page 68388 in the Federal Register of Wednesday, November 4, 2015, the following corrections are made:

    1. On page 68390, in the first column, third line, revise “776.94 Outside Law Practice Questionnaire and Request.” to read “Appendix to Subpart D of Part 776—Outside Law Practice Questionnaire and Request.” and in the seventh line, revise “776.95 Relations with Non-USG Counsel.” to read “776.94 Relations with Non-USG Counsel.”; 2. On page 68408, in the third column, second line, revise “§ 776.94 of this part” to read “appendix to subpart D of part 776”; 3. On page 68408, in the third column, revise the section heading “§ 776.94 Outside Law Practice Questionnaire and Request.” to read “Appendix to Subpart D of Part 776—Outside Law Practice Questionnaire and Request.”; and 4. On page 68409, in the second column under the Subpart E heading, revise “§ 776.95 Relations with Non-USG Counsel.” to read “§ 776.94 Relations with Non-USG Counsel.”. Dated: November 20, 2015. N.A. Hagerty-Ford, Commander,Office of the Judge Advocate General,U.S. Navy, Federal Register Liaison Officer.
    [FR Doc. 2015-30190 Filed 11-25-15; 8:45 am] BILLING CODE 3810-FF-P
    DEPARTMENT OF EDUCATION 34 CFR Parts 600, 602, 603, 668, 682, 685, 686, 690, and 691 [Docket ID ED-2010-OPE-0004] RIN 1840-AD02 Program Integrity Issues AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Final regulations; clarification and additional information.

    SUMMARY:

    On October 29, 2010, the Department of Education published in the Federal Register final regulations for improving integrity in the programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA) (October 29, 2010, final regulations). The preamble to those regulations was revised in a Federal Register notice of March 22, 2013. This document clarifies and provides additional information about the October 29, 2010, final regulations.

    DATES:

    This clarification and additional information apply to the October 29, 2010, regulations (75 FR 66832), which were generally effective July 1, 2011.

    FOR FURTHER INFORMATION CONTACT:

    Scott Filter, U.S. Department of Education, 1990 K Street NW., Room 8014, Washington, DC 20006. Telephone: (202) 219-7031 or by email at [email protected]

    If you use a telecommunications device for the deaf (TDD), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) by contacting the contact person listed in this section.

    SUPPLEMENTARY INFORMATION:

    The October 29, 2010, final regulations (75 FR 66832) amended the regulations for Institutional Eligibility Under the HEA, the Secretary's Recognition of Accrediting Agencies, the Secretary's Recognition Procedures for State Agencies, the Student Assistance General Provisions, the Federal Family Education Loan (FFEL) Program, the William D. Ford Federal Direct Loan Program, the Teacher Education Assistance for College and Higher Education (TEACH) Grant Program, the Federal Pell Grant Program, and the Academic Competitiveness Grant (AGC) and the National Science and Mathematics Access to Retain Talent Grant (National Smart Grant) Programs. On March 22, 2013 (78 FR 17598), the Department revised the preamble discussion to the October 29, 2010, final regulations in response to the remand in Ass'n of Private Sector Colls. & Univs. (APSCU) v. Duncan, 681 F.3d 427 (D.C. Cir. 2012) (78 FR 17598). This document clarifies and provides additional information about the October 29, 2010, final regulations in accordance with a subsequent district court order in APSCU v. Duncan, 70 F. Supp. 3d 446 (D.D.C. 2014).

    Electronic Access to This Document

    The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys.

    At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

    You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov.

    Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Clarification and Additional Information

    Graduation-Based and Completion-Based Compensation. In APSCU v. Duncan, 70 F. Supp. 3d 446 (D.D.C. 2014), the district court determined that the Department had not adequately explained or supported its decision to ban compensation to an educational institution's recruiters of students based on the students' graduation from or completion of educational programs offered by the institution. The regulations at 34 CFR 668.14(b)(22), implementing the statutory ban on enrollment-based compensation to recruiters of students, 20 U.S.C. 1094(a)(20), do not contain a ban on graduation-based or completion-based compensation. Although the Department removed the safe harbor that permitted certain graduation-based or completion-based compensation and previously indicated that it interpreted the amended regulations to ban such compensation, see, e.g., 75 FR 66874, the Department hereby indicates, in response to the district court's decision, that the Department has reconsidered its interpretation and does not interpret the regulations to proscribe compensation for recruiters that is based upon students' graduation from, or completion of, educational programs. Correspondingly, the Department will not view the references in the regulations to recruiter enrollment activities that may occur “through completion” by a student of an educational program, 34 CFR 668.14(b)(22)(iii)(B) (introduction), and (iii)(B)(2)(ii), as prohibiting graduation-based or completion-based compensation to recruiters.

    The Department has changed its interpretation because, at this time, it lacks sufficient evidence to demonstrate that schools are using graduation-based or completion-based compensation as a proxy for enrollment-based compensation. In assessing the legality of a compensation structure, the Department will focus on the substance of the structure rather than on the label given the structure by an institution. Thus, although compensation based on students' graduation from, or completion of, educational programs is not per se prohibited, the Department reserves the right to take enforcement action against institutions if compensation labeled by an institution as graduation-based or completion-based compensation is merely a guise for enrollment-based compensation, which is prohibited. Compensation that is based upon success in securing enrollments, even if one or more other permissible factors are also considered, remains prohibited.

    Impact on Minority Enrollment. The district court found that the Department failed to respond adequately to two commenters who questioned whether the amended regulations “might adversely affect minority outreach.” Id. at 456; see also APSCU v. Duncan, 681 F.3d 427, 449 (D.C. Cir. 2012). The district court remanded the matter for the Department to address “the potential effect on minority recruitment, i.e., whether minority enrollment could decline under the new regulations.” APSCU v. Duncan, 70 F. Supp. 3d at 456.

    The particular comments were included in two submissions that also included comments on other aspects of the proposed regulations. The first commenter asked:

    Can schools increase compensation to personnel involved in diversity outreach programs for successfully assembling a diverse student body? Does the Department intend to foreclose schools' ability to compensate their staffs for successfully managing outreach programs for students from disadvantaged backgrounds like the eight TRIO programs administered by the Department?

    DeVry to Jessica Finkel (August 1, 2010), AR—3386. The second commenter asked:

    How will the new regulations apply to employees who are not involved in general student recruiting, but who are involved in recruiting certain types of students? Examples would include college coaches who recruit student athletes, and employees in college diversity offices who recruit minority students. We see nothing in the proposed regulations that excludes these types of employees from the scope of the incentive compensation law. Thus, coaches who recruit student athletes would not be able to be compensated, in any part, on the number or caliber of students they recruited or the volume of university revenue generated by the teams on which the athletes played. Similarly, employees responsible for recruiting minority students would not be able to be compensated, in any part, on an increase in minority students who enroll at the college. We believe both of these practices are widespread and promote desirable goals, and are another example of how unclear, and potentially far-reaching, the Department's proposed regulations are. We request the Department's guidance on how to apply the law to compensation of these particular practices.

    Career Education Corporation to Jessica Finkel (August 1, 2010) AR-3308.

    The ban on the payment of incentive compensation precludes institutions from paying their recruiters, or enrollment counsellors, bonuses based upon the number of students they enroll, irrespective of the student's minority or other status and irrespective of whether the goal of the recruiters is to increase diversity. The statute and accompanying regulations address the powerful incentive that such pay provides for the recruiter to close the sale—whether or not the training offered is really what the individual needs. The ban exists to shelter all students from abusive practices that have historically occurred when recruiters were rewarded based on the number of students enrolled, as opposed to a more fulsome evaluation of a student's particular needs and an institution's capacity to meet those needs. Congress had no basis to expect (nor do we) that recruiters paid by incentive-based compensation who focus their recruitment efforts on minorities (or any other group, including athletes) would disregard their personal gain as they persuade individuals to enroll.

    Minority student enrollment is not a goal in itself; minority student success matters, not just enrollment. Although the ban on incentive compensation may cause minority student enrollment numbers to decline, we expect that the minority students who do ultimately enroll will have a better chance at success, because they will have enrolled based on a decision made free of pressured sales tactics, and they presumably would be a good fit for the school they select. Indeed, as the Department has stated, “[m]inority and low income students are often the targeted audience of recruitment abuses, and our regulatory changes are intended to end that abuse. It is our expectation and objective that enrollment of students, including minority students, against their best educational interests would be reduced with the elimination of improper incentive compensation.” 78 FR 17600 (2013).

    In response to the district court's remand and the commenters' questions, the Department hereby acknowledges that the amended regulations could negatively affect outreach and enrollment generally, as well as student outreach that is specifically targeted at promoting diversity, which could result in fewer minority students recruited and enrolled. However, neither the statute nor any information presented by the commenters or in the administrative record provides a basis for treating a recruitment program directed at minority students differently than an institution's general or other specific recruitment programs. And, as explained below, there are ample ways for schools to maintain or increase their enrollment of minority students (and other students) that are likely to achieve a positive result from their enrollment besides providing compensation based on recruiters' enrollment numbers.

    For several reasons, estimating how significant the effect on minority recruitment or enrollment may be is difficult. A robust assessment of the effect of incentive-based compensation on minority outreach and enrollment would require a comparison between schools with similar characteristics, one group of which paid its recruiters with incentive-based compensation for minority enrollments, and the other group which did not. We have not conducted such an experiment, and we have found no such study or analysis of this issue in the literature.

    Another way to estimate the effect of the incentive compensation ban on institutions' recruitment of minority students would be to estimate how schools that pay incentive compensation to staff who recruit minorities would change their practices as a result of the ban on enrollment-based incentive compensation. If recruiting minority students is more difficult than recruiting other students, we expect schools would need to take steps to achieve the same level of success achieved by paying recruiters compensation based on the number of minority students they enroll, and that this would include, among other things, hiring more recruiters or changing their salary schedules in order to attract more talented recruiters, or both. We believe that schools that devote special efforts to recruit minority students and that used incentive compensation payments to drive those efforts in the past devoted significant resources to those payments, though we have no data quantifying those costs. We would expect those schools to redirect those resources if they wanted to ensure continued success in recruiting and enrolling minority students. Such steps could include increasing salaries to attract more capable recruiters or developing new or enhancing existing outreach activities. We expect that those for-profit schools that currently enroll substantial numbers and high percentages of minority students would take such steps.

    Accepting for purposes of this analysis the assertion that efforts to recruit minority students are specialized and thus require more resources than ordinary recruiting efforts generally used, we consider it reasonable to expect that some schools may conclude that the cost of those resources outweighs the benefits of maintaining or increasing special recruiting efforts for minority students. The group of schools more likely to choose not to allocate the added resources needed for specialized minority recruiting would appear to be those schools which depend less on minority enrollments, specifically: For-profit schools that offer longer programs (2 year and 4 year programs), and public or non-profit institutions. Minority enrollment might decline at some institutions in this group, because institutions in this group, compared to those for-profit institutions offering shorter programs, appear to depend less on minority enrollment than for-profit institutions offering shorter programs. They would be more likely to consider the expenses of increasing salaries or adding staff for specialized minority recruiting to outweigh the benefits of maintaining their minority recruiting efforts at the same level as before the ban. Nevertheless, the size of reductions in minority enrollments that would be fairly attributable to the ban—as opposed to other causes—remains difficult to predict.

    Next, we would need to determine to what extent recruiters engaged under any revised schemes would be likely to succeed in recruiting minority students without the sales tactics that the ban is intended to deter. Last, for schools affected by the ban, we would need to distinguish those effects that are fairly attributed to the incentive compensation ban itself from those effects that could be attributed to other factors such as competitors' minority student recruitment efforts or a program's performance under the Department's gainful employment regulations, which apply to the same kinds of programs at for-profit schools that are being promoted by such recruiters. No data exists from which one can make these determinations.

    While there is uncertainty about the size of any adverse effect of the ban on institutions' recruitment of minority students, the evidence that is available does not support an assertion that the Department's rule will seriously undermine efforts to obtain educational diversity. In “For Profit Higher Education: The Failure to Safeguard the Federal Investment and Ensure Student Success,” 1 the Senate HELP Committee referred to GAO's 2011 study of student outcomes at for-profit schools. In that study, GAO observed that African American and Hispanic students already comprised some 48 percent of all students enrolled in for-profit schools—more than the percent of students enrolled at for-profit schools who are non-Hispanic white (46 percent; Asian-Pacific Islanders and other non-Hispanic white students account for the other 6 percent of for-profit school students), double the percentage of students enrolled at private non-profit schools who are minority students, and far more than the percentage (28 percent) of students enrolled in public institutions who are minority students.2 In addition, we note that the pattern observed in the GAO report continued in succeeding years, and was reflected at each credential level.3 These data demonstrate that for-profit schools at each credential level already enroll disproportionately large percentages of minority students compared to non-minority students and therefore call into question one of the commenter's claims that minority recruitment efforts by the for-profit institutions to which the ban applies are needed to successfully assemble a diverse student body. (AR -3386, 3429, 3430). For-profit schools clearly already have diverse student bodies, dramatically different than student bodies at public or private non-profit institutions.

    1 For Profit Higher Education: The Failure to Safeguard the Federal Investment and Ensure Student Success, Senate HELP Committee, Majority Committee Staff Report, July 30, 2012, at 46, 47.

    2Id.

    3 Smith, Peter & Parrish, Leslie (2014), Do Students of Color Profit from For-Profit College? Poor Outcomes and High Debt Hamper Attendees‘ Futures, Center for Responsible Lending, at 9, available at http://higherednotdebt.org/tag/center-for-responsible-lending. 2011 data show that of African Americans who enroll in schools that offer only short-term (non-degree) programs (less than 2-year), 91 percent do so at for-profit schools; of Hispanic students who enrolled in those schools, 85 percent enrolled at for-profit schools, but of white students in such programs, only 76 percent enrolled at for-profit schools. Of students who enroll at 2-year institutions, the pattern continues: 10 percent of African Americans and 8 percent of Hispanic students who enroll in 2-year institutions do so at for-profit schools, while only 5 percent of white students who enroll in 2-year schools do so at for-profit schools. Of African American and Hispanic students who enroll at 4-year institutions, 28 percent and 15 percent, respectively, enroll at for-profit schools, while only 10 percent of white students who enroll at 4-year institutions do so. Id. at 9.

    Although the data show that for-profit schools already enrolled a significant percentage of minority students, estimating whether this diversity has been the result of the payment of incentive compensation, and whether the incentive compensation ban will negatively affect this already very diverse enrollment, would require a reliable estimate of the prevalence of incentive-based compensation in recruiting efforts directed at these minority students, as opposed to other students. The Department has no evidence to show what percentage of these minority students were enrolled on account of incentive-based compensation, as opposed to other features of for-profit schools.4 However, we do know that the percentage of enrolled students who were minority students in degree-granting institutions increased from fall 2010 to fall 2013, after the regulations became effective: minority enrollment as a percentage of all enrollment increased from 39.5 percent in 2010 to 43.1 percent in 2013.5 Similarly, minority student enrollment as a percentage of total enrollments in for-profit degree-granting institutions increased from fall 2010 to fall 2013: from 49.3 percent (4-year institutions) and 56 percent (2-year institutions) in 2010 to 54 percent (4-year institutions) and 61 percent (2-year institutions) in 2013.6 These changes may be the result of many factors that are difficult to weigh or distinguish with respect to their effects on enrollment, including that institutions have already made changes needed to recruit in a manner compliant with the ban. However, these data do not support a claim that the incentive compensation ban has in fact negatively affected minority enrollment.

    4 Although the percentage of revenue spent by for-profit institutions on advertising and recruiting, the numbers of recruiters, and the abusive recruiting tactics used by for-profit schools have been reported in, e.g., the HELP committee report, that report simply states variously that “some companies” or “many companies” used the practice. Id., at 3, 4, 50, 51. A commenter asserted that incentive compensation payments are “widespread” (AR 3308).

    5 National Center for Education Statistics (NCES) (2014) Digest of Education Statistics (Table 306.50) available at http://nces.ed.gov/programs/digest/d14/tables/dt14_306.50.asp, and NCES (2011) Digest of Education Statistics (Table 241), available at http://nces.ed.gov/programs/digest/d11/tables/dt11_241.asp. The numbers of students are those identified as the “fall enrollment” students, from the Integrated Postsecondary Education Data System (IPEDS) maintained by the National Center for Education Statistics and derived from periodic reports from postsecondary institutions. The fall enrollment is the annual component of IPEDS that collects data on the number of students enrolled in the fall at postsecondary institutions. Students reported are those enrolled in courses creditable toward a degree or other formal award; students enrolled in courses that are part of a vocational or occupational program, including those enrolled in off-campus or extension centers; and high school students taking regular college courses for credit. Institutions report annually the number of full—and part-time students, by gender, race/ethnicity, and level(undergraduate, graduate, first-professional); the total number of undergraduate entering students (first-time, full-and part-time students, transfer-ins, and non-degree students); and retention rates. In even-numbered years, data are collected for State of residence of first-time students and for the number of those students who graduated from high school or received high school equivalent certificates in the past 12 months. Also in even-numbered years, 4-year institutions are required to provide enrollment data by gender, race/ethnicity, and level for selected fields of study. In odd-numbered years, data are collected for enrollment by age category by student level and gender. http://nces.ed.gov/ipeds/glossary/?charindex=F

    6Id. Some of the data cited here post-dates the promulgation of the final regulations, but the Department is including such data for illustrative purposes.

    The Department continues to support all lawful efforts to promote diversity in enrollment, and nothing in the amended regulations changes that fact. Schools can implement effective recruiting programs generally, and effective minority outreach programs specifically, without compensating recruiters based on the number of students enrolled. Considerable efforts have already been made by this and other agencies, and non-governmental entities, to explore techniques to reach minority students and persuade them that postsecondary education is both available to them and worth their investment.7 It is beyond the scope of this clarification and additional information to incorporate that literature or summarize the findings. The commenters did not seek Department guidance on how to conduct outreach to minority students, and any institution interested in methods of such outreach can access resources and information on methods of outreach through Department and other sources.8 The commenters directly asked only for guidance about how to apply the compensation ban to minority recruitment practices, and we respond simply that the ban prohibits compensating those performing outreach and recruitment activities for minority students on the basis of the number of students enrolled. As we note above, minority students are often the target of recruitment practices that lead to enrollment in courses of study that do not further their educational or vocational goals and are contrary to their economic interests, and the rule is intended to reduce that occurrence.

    7 In addition, as one commenter notes, Title IV of the Higher Education Act authorizes the Trio Grant Programs to finance activities to encourage “qualified individuals from disadvantaged backgrounds” to prepare for and enroll in postsecondary education, and that for-profit institutions qualify for grants under these programs. 20 U.S.C. 1070a-11 et seq.

    8See, e.g., list of resources on minority student outreach available through the Department's Web site: http://findit.ed.gov/search?utf8=%E2%9C%93&affiliate=ed.gov&query=minority+outreach+.

    We acknowledge that some institutions may need to revise their diversity outreach operations if they depend more on the financial motivation of the recruiter than the design of the recruiting or outreach plan or the relative value of the programs touted by the recruiter. The regulations address only the payment of incentives to recruiters, not the activities the school requires recruiters to perform. Thus, the regulations do not prevent an institution from holding a recruiter accountable for implementing an effective recruiting or minority outreach plan adopted by the institution.

    In sum, the Department acknowledges that the amended regulations may result in some negative impact on minority recruitment and enrollment. But neither the statute nor any information presented by the commenters or in the administrative record provides a basis for treating a recruitment program directed at minority students differently than an institution's general or other specific recruitment programs.

    List of Subjects 34 CFR Part 600

    Colleges and universities, Foreign relations, Grant programs-education, Loan programs-education, Reporting and recordkeeping requirements, Student aid, Vocational education.

    34 CFR Part 602

    Colleges and universities, Reporting and recordkeeping requirements.

    34 CFR Part 603

    Colleges and universities, Vocational education.

    34 CFR Part 668

    Administrative practice and procedure, Aliens, Colleges and universities, Consumer protection, Grant programs-education, Loan programs-education, Reporting and recordkeeping requirements, Selective Service System, Student aid, Vocational education.

    34 CFR Part 682

    Administrative practice and procedure, Colleges and universities, Loan programs-education, Reporting and recordkeeping requirements, Student aid, Vocational education.

    34 CFR Part 685

    Administrative practice and procedure, Colleges and universities, Loan programs-education, Reporting and recordkeeping requirements, Student aid, Vocational education.

    34 CFR Part 686

    Administrative practice and procedure, Colleges and universities, Education, Elementary and secondary education, Grant programs-education, Reporting and recordkeeping requirements, Student aid.

    34 CFR Part 690

    Colleges and universities, Education of disadvantaged, Grant programs-education, Reporting and recordkeeping requirements, Student aid.

    34 CFR Part 691

    Colleges and universities, Elementary and secondary education, Grant programs-education, Student aid.

    Dated: November 23, 2015. Arne Duncan, Secretary of Education.
    [FR Doc. 2015-30158 Filed 11-25-15; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0686; FRL-9939-38-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Revision to the Definition of Volatile Organic Compound AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the Commonwealth of Virginia's State Implementation Plan (SIP). The revision adds a compound to the list of substances not considered to be volatile organic compounds (VOCs). EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This rule is effective on January 26, 2016 without further notice, unless EPA receives adverse written comment by December 28, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R03-OAR-2015-0686 by one of the following methods:

    A. www.regulations.gov. Follow the on-line instructions for submitting comments.

    B. Email: [email protected]

    C. Mail: EPA-R03-OAR-2015-0686, Cristina Fernandez, Associate Director, Office of Air Program Planning, Air Protection Division, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

    D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2015-0686. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email 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, 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 EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, 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.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available in www.regulations.gov or may be viewed during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

    FOR FURTHER INFORMATION CONTACT:

    Irene Shandruk, (215) 814-2166, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Tropospheric ozone, commonly known as smog, is formed when VOCs and nitrogen oxides react in the atmosphere in the presence of sunlight. Because of the harmful health effects of ozone, EPA and state governments limit the amount of VOCs that can be released into the atmosphere. VOCs have different levels of reactivity, that is, some VOCs react slowly or form less ozone, and therefore, changes in their emissions have limited effects on local or regional ozone pollution episodes. It has been EPA's policy that VOCs with a negligible level of reactivity should be excluded from the regulatory definition of VOC contained at 40 CFR 51.100(s) so as to focus control efforts on compounds that do significantly increase ozone concentrations. This is accomplished by adding the substance to a list of compounds not considered to be VOCs, and thus, excluded from the definition of VOC. EPA believes that exempting such compounds creates an incentive for industry to use negligibly reactive compounds in place of more highly reactive compounds that are regulated as VOCs. On March 27, 2014 (79 FR 17037), EPA revised the definition of VOC contained in 40 CFR 51.100 to exclude one substance from the definition of VOC. The compound excluded from the definition of VOC is 2-amino-2-methyl-1-propanol (AMP).

    II. Summary of SIP Revision

    On September 17, 2015, the Commonwealth of Virginia (Virginia) submitted a formal revision to its SIP which consists of adding AMP to the list of substances that are not considered VOCs found at 9VAC5-10-20. The September 17, 2015 SIP revision will allow the Virginia SIP to mirror the Federal definition of VOC. EPA believes that by excluding this negligibly reactive compound from the definition of VOC an incentive is created for industry to use negligibly reactive compounds in place of more highly reactive compounds; therefore, the air quality in Virginia will not be negatively affected by the approval of this SIP revision particularly as EPA has found this compound negligibly reactive for ozone formation.

    III. Final Action

    EPA is approving the SIP revision to the definition of VOC submitted by Virginia on September 17, 2015. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on January 26, 2016 without further notice unless EPA receives adverse comment by December 28, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    V. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the definition of VOC. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the EPA Region III office (see the ADDRESSES section of this preamble for more information).

    VI. Statutory and Executive Order Reviews A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

    • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    B. Submission to Congress and the Comptroller General

    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 a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by January 26, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action. This action, revising Virginia's definition of VOC, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: November 12, 2015. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart VV—Virginia 2. In § 52.2420, the table in paragraph (c) is amended by adding an entry for “Section 5-10-20” after the entry for “Section 5-10-20” (with the State effective date of 3/12/15) to read as follows:
    § 52.2420 Identification of plan.

    (c) * * *

    EPA-Approved Virginia Regulations and Statutes State citation Title/Subject State effective date EPA Approval date Explanation
  • [former SIP citation]
  • *         *         *         *         *         *         * 9 VAC 5, Chapter 10 General Definitions [Part I] *         *         *         *         *         *         * 5-10-20 Terms Defined 7/30/15 11/27/15 [Insert Federal Register Citation] Definition of VOC is revised by adding 2-amino-2-methyl-1-propanol to the list of substances not considered to be VOCs. *         *         *         *         *         *         *
    [FR Doc. 2015-30108 Filed 11-25-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 412 [CMS-1632-CN2] RIN 0938-AS41 Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System Policy Changes and Fiscal Year 2016 Rates; Revisions of Quality Reporting Requirements for Specific Providers, Including Changes Related to the Electronic Health Record Incentive Program; Extensions of the Medicare-Dependent, Small Rural Hospital Program and the Low-Volume Payment Adjustment for Hospitals; Correction AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Final rule and interim final rule with comment period; correction.

    SUMMARY:

    This document corrects technical and typographical errors in the correcting document that appeared in the October 5, 2015 Federal Register, entitled “Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long Term Care Hospital Prospective Payment System Policy Changes and Fiscal Year 2016 Rates; Revisions of Quality Reporting Requirements for Specific Providers, including Changes Related to the Electronic Health Record Incentive Program; Extensions of the Medicare-Dependent, Small Rural Hospital Program and the Low-Volume Payment Adjustment for Hospitals; Correction.”

    DATES:

    Effective date: This correcting document is effective November 25, 2015. Applicability date: This correcting document is applicable to discharges beginning October 1, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Donald Thompson, (410) 786-4487.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In FR Doc. 2015-19049 which appeared in the August 17, 2015 Federal Register (80 FR 49326), entitled “Medicare Program; Hospital Inpatient Prospective Payment Systems for Acute Care Hospitals and the Long-Term Care Hospital Prospective Payment System Policy Changes and Fiscal Year 2016 Rates; Revisions of Quality Reporting Requirements for Specific Providers, including Changes Related to the Electronic Health Record Incentive Program; Extensions of the Medicare-Dependent, Small Rural Hospital Program and the Low-Volume Payment Adjustment for Hospitals” (hereinafter referred to as the FY 2016 IPPS/LTCH PPS final rule), there were a number of technical and typographical errors. Therefore, we published a correcting document that appeared in the October 5, 2015 Federal Register (80 FR 60055) to correct those errors (hereinafter referred to as the FY 2016 IPPS/LTCH PPS correcting document). The provisions of the FY 2016 IPPS/LTCH PPS correcting document were effective as if they had been included in the FY 2016 IPPS/LTCH PPS final rule that appeared in the August 17, 2015 Federal Register. Accordingly, those corrections were effective October 1, 2015.

    II. Summary of Errors and Corrections to Tables Posted on the CMS Web Site

    Since publication of the FY 2016 IPPS/LTCH PPS correcting document, we discovered technical and typographic errors to data that appeared in that document. Therefore, we are correcting the errors in the following IPPS tables that are listed on page 49808 of the FY 2016 IPPS/LTCH PPS final rule, that were discussed on pages 60056 and 60057 and corrected in the FY 2016 IPPS/LTCH PPS correcting document. These tables are available on the Internet on the CMS Web site at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/FY2016-IPPS-Final-Rule-Home-Page.html:

    Table 2—CASE MIX INDEX AND WAGE INDEX TABLE BY CCN—FY 2016 CORRECTION NOTICE. In the FY 2016 IPPS/LTCH PPS correcting document, we inadvertently changed the reclassification status for two hospitals (CCNs 050152 and 050228). In Table 2 of the FY 2016 IPPS/LTCH PPS final rule, prior to the revisions based on the FY 2016 IPPS/LTCH PPS correcting document, the reclassification status for CCNs 050152 and 050228 correctly reflected an MGCRB reclassification to Reclassified/Redesignated CBSA 36084. For these two hospitals, the “MGCRB Reclass” column value will be corrected by adding a “Y” and the “Reclassified/Redesignated CBSA” column value will be corrected by adding “36084.”

    Also, in Table 2 that was posted on the Internet in conjunction with the FY 2016 IPPS/LTCH PPS correcting document, we inadvertently listed the “County Name” and “County Code” values for CCN 050B21 as “FAIRFIELD” and “07000”, and for CCN 070B22 as “FRESNO” and “05090”. The “County Name” and “County Code” values for CCN 050B21 should be “FRESNO” and “05090”, and for CCN 070B22 should be “FAIRFIELD” and “07000.” Therefore, the “County Name” and “County Code” for CCN 050B21 will be corrected to read “FRESNO” and “05090”, respectively; and the “County Name” and “County Code” for CCN 070B22 will be corrected to read “FAIRFIELD” and “07000”, respectively.

    Table 3—WAGE INDEX TABLE BY CBSA—FY 2016 CORRECTION NOTICE. As described previously, the reclassifications for two hospitals (CCNs 050152 and 050228) to CBSA 36084 were not properly listed and are being corrected in Table 2. Therefore, we are making corresponding changes to the “Reclassified Wage Index” and “Reclassified GAF” column values for CBSA 36084 in Table 3.

    III. Waiver of Proposed Rulemaking and Delay in Effective Date

    We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

    Section 553(d) of the APA ordinarily requires a 30-day delay in effective date of final rules after the date of their publication in the Federal Register. This 30-day delay in effective date can be waived, however, if an agency finds for good cause that the delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.

    We believe that this correcting document does not constitute a rule that would be subject to the APA notice and comment or delayed effective date requirements. This correcting document corrects technical and typographic errors in the tables referenced in the FY 2016 IPPS/LTCH PPS final rule as revised by the FY 2016 IPPS/LTCH PPS correcting document but does not make substantive changes to the policies or payment methodologies that were adopted in the final rule. As a result, this correcting document is intended to ensure that the tables referenced in the FY 2016 IPPS/LTCH PPS final rule accurately reflect the policies adopted in that final rule.

    In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the corrections in this document into the final rule or delaying the effective date would be contrary to the public interest because it is in the public's interest for providers to receive appropriate payments in as timely a manner as possible, and to ensure that the FY 2016 IPPS/LTCH PPS final rule accurately reflects our policies. Furthermore, such procedures would be unnecessary, as we are not altering our payment methodologies or policies, but rather, we are simply implementing correctly the policies that we previously proposed, received comment on, and subsequently finalized. This correcting document is intended solely to ensure that the FY 2016 IPPS/LTCH PPS final rule accurately reflects these payment methodologies and policies. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

    Dated: November 18, 2015. Madhura Valverde, Executive Secretary to the Department, Department of Health and Human Services.
    [FR Doc. 2015-30248 Filed 11-25-15; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 150826781-5999-02] RIN 0648-BF33, 0648-BE91 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; 2016 Red Snapper Commercial Quota Retention AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues regulations to implement management measures described in a framework action to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP), as prepared by the Gulf of Mexico Fishery Management Council (Council). This final rule withholds 4.9 percent of the 2016 red snapper commercial quota prior to the annual distribution of red snapper allocation to the Individual Fishing Quota (IFQ) program shareholders on January 1, 2016. This final rule allows the allocations being established through Amendment 28 to the FMP (Amendment 28) to be effective for the 2016 fishing year should Amendment 28 be approved by the Secretary of Commerce (Secretary) in 2016. This final rule also makes a technical correction to re-insert regulatory text that a previous rulemaking inadvertently omitted, which specifies that the recreational annual catch limit (ACL) for red snapper is equal to the total recreational quota.

    DATES:

    This rule is effective December 28, 2015.

    ADDRESSES:

    Electronic copies of the framework action, which includes an environmental assessment, a regulatory impact review, and a Regulatory Flexibility Act (RFA) analysis may be obtained from the Southeast Regional Office (SERO) Web site at http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/reef_fish/2015/rs_framework_2016_quota/documents/pdfs/retain_2016_red_snapper_commercial_quota_ea.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Richard Malinowski, NMFS SERO, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Gulf of Mexico (Gulf) reef fish fishery is managed under the FMP. The FMP was prepared by the Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

    On October 19, 2015, NMFS published a proposed rule for the framework action and requested public comment (80 FR 63190). The proposed rule and the framework action outline the rationale for the actions contained in this final rule. A summary of the actions implemented by the framework action and this final rule is provided below.

    Management Measures Contained in This Final Rule

    This final rule withholds 4.9 percent of the 2016 red snapper commercial quota, equal to 352,000 lb (159,665 kg), round weight, and 317,117 lb (143,842 kg), gutted weight, prior to the annual distribution of allocation to the IFQ program shareholders on January 1, 2016. The framework procedures of the FMP include the authority to retain a portion of an annual quota in anticipation of future regulatory changes during the same fishing year. This final rule allows the allocations being established through Amendment 28 to be effective for the 2016 fishing year should the Secretary approve Amendment 28 in 2016. If NMFS does not implement Amendment 28, NMFS will distribute the withheld 4.9 percent of the 2016 red snapper commercial quota to shareholders based on the shares held as of the date of distribution.

    Other Changes to the Codified Text

    This final rule fixes an error in § 622.41(q)(2)(i) for the recreational sector of Gulf red snapper. This final rule re-inserts a sentence of regulatory text originally published in the final rule implementing Amendment 40 to the FMP (80 FR 22422, April 22, 2015), which specifies that the recreational ACL for red snapper is equal to the total recreational quota. The regulatory text was inadvertently omitted in a subsequent correcting amendment (80 FR 58219, September 28, 2015) to a final rule for a framework action that increased the commercial and recreational quotas for Gulf red snapper in the 2015, 2016, and 2017 fishing years (80 FR 24832, May 1, 2015). This final rule corrects the error by re-inserting the regulatory text into § 622.41(q)(2)(i). This action is unrelated to the actions described in this framework action.

    Comments and Responses

    NMFS received 46 comment submissions from individuals, commercial fishermen, and a commercial fishermen's association on the framework action and the proposed rule, along with other issues. Many of the comments NMFS received were about Amendment 28 and alternative management strategies for red snapper, for example, expanding state waters and advocating for state rather than Federal management. Such comments were beyond the scope of the proposed rule and, therefore, have not been addressed in this final rule. The comments that relate to the framework action and the proposed rule are summarized and responded to below.

    Comment 1: The red snapper commercial quota should not be withheld until Amendment 28 is approved and implemented by NMFS. The resulting reallocation of the red snapper commercial quota would then apply to the 2017 fishing year.

    Response: NMFS disagrees that the commercial quota necessary to implement Amendment 28 in the 2016 fishing year should not be withheld. The Council approved Amendment 28 for review and implementation in August 2015 with the expectation that the revised allocations and quotas would be implemented in 2016, if approved by the Secretary. This will not be possible unless that portion of the commercial quota is not distributed to shareholders on January 1, 2016, the date on which NMFS distributes annual red snapper allocation to shareholders. If Amendment 28 is not approved by the Secretary, the withheld red snapper commercial quota will be distributed as soon as possible to the current red snapper IFQ shareholders based on their current shares held as of the date of distribution.

    Comment 2: Withholding IFQ allocation cannot be accomplished through framework procedures. NMFS regulations at 50 CFR 622.42(a) list actions that can be established or modified in accordance with the framework procedures of the FMP. Withholding IFQ allocation in anticipation of reallocation is not one of the described actions that can be accomplished by framework procedures. NMFS and the Council are not modifying approved framework items such as the red snapper quotas or the ACLs through this framework action; that is what Amendment 28 would do if and when it is approved. NMFS, therefore, lacks authority to implement this action using framework procedures.

    Response: NMFS disagrees. The regulations at 50 CFR 622.42(a) refer to the framework procedures of the FMP and list quotas as one of the management measures that may be modified. The framework procedures for the FMP that were established with the Generic ACL and Accountability Measures Amendment (76 FR 82044, December 29, 2011; http://sero.nmfs.noaa.gov/sustainable_fisheries/gulf_fisheries/generic/archives/generic_acl_am_amend_sept_2011.pdf) list the regulatory changes that may be implemented and expressly include “retention of portion of an annual quota in anticipation of future regulatory changes during the same fishing year.” Thus, this framework action and regulations are in accordance with the FMP (as revised through the Generic ACL and Accountability Measures Amendment), and regulations at 50 CFR 622.42(a).

    Comment 3: Reducing each shareholder's allocation of red snapper by approximately five percent could reduce access to quota that was leased out to the grouper fishery for bycatch coverage. This would result in negative biological consequences that are not analyzed in the framework action.

    Response: NMFS disagrees. Withholding the red snapper commercial quota until a decision to approve or disapprove Amendment 28 is made does not restrict the ability of the shareholders to continue to contribute to the private quota bank they developed. Any long-term impacts on bycatch mortality anticipated from a permanent shift in allocation to the recreational sector would be a consequence of Amendment 28 and its implementing regulations, not this rule.

    Comment 4: Withholding a portion of an individual's quota indefinitely disrupts fishermen's business plans, particularly for fishermen who harvest large portions or all of their allocation early in the year, leading to inefficiencies in the allocation leasing marketplace which would reduce profitability and introduce economic and social costs to the IFQ program.

    Response: NMFS disagrees. As stated in the proposed rule for this framework action, withholding a portion of the commercial quota may result in a reduction in normal total revenue, alteration of the flow of receipts, and disruption of normal business operation, consistent with the comment. These effects, however, are expected to be minor because of the small amount of quota withheld (4.9 percent) and the likely short timeframe during which withholding occurs. Thus, the full value of the quota being withheld would not be lost. Because red snapper commercial harvest occurs throughout the year, and is not subject to “race to fish” (derby) conditions, withholding this small portion is not expected to severely limit the availability of allocation for purchase or trade early in the year, nor result in a market glut if allocation is subsequently returned to shareholders. This action only applies to the 2016 fishing year. As a result, the economic and social consequences are of limited scope and duration and are not expected to harm individual businesses or the industry beyond as already described. If Amendment 28 is approved by the Secretary of Commerce and the quota is not returned to shareholders, this would be a consequence of the rule for Amendment 28 and not this current framework action and final rule.

    Classification

    The Regional Administrator, Southeast Region, NMFS has determined that this final rule is consistent with the framework action, the FMP, the Magnuson-Stevens Act, and other applicable law.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    The Magnuson-Stevens Act provides the statutory basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. In addition, no new reporting, record-keeping, or other compliance requirements are introduced by this final rule.

    The Chief Counsel for Regulation of the Department of Commerce (DOC) certified to the Chief Counsel for advocacy of the Small Business Administration (SBA) during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination was published in the proposed rule and is not repeated here. NMFS received no significant comments regarding the certification. However, one general comment on the expected economic effects of this rule is addressed in the Comments and Response section of this rule. As a result, a final regulatory flexibility analysis was not required and was not prepared.

    As discussed in the background section of this final rule, this rule also re-inserts a sentence of regulatory text originally published in the final rule implementing Amendment 40 (80 FR 22422, April 22, 2015). The regulatory text was inadvertently omitted in a subsequent correcting amendment (80 FR 58219, September 28, 2015) to a final rule that implemented a framework amendment for red snapper in the Gulf reef fish fishery (80 FR 24832, May 1, 2015). The DOC Chief Counsel for Regulation certified to the Chief Counsel for advocacy of the SBA that the final rules implementing both Amendment 40 and the framework amendment would not have a significant economic impact on a substantial number of small entities. The re-insertion of this regulatory text is not expected to have direct adverse economic effects on a substantial number of small entities because it is an administrative correcting action. The final rule that originally published the regulation was certified to not have a significant economic impact on a substantial number of small entities, and the public may believe the omitted text is already included in the regulations. This change is needed to ensure that the public is aware of the correct recreational harvest limit (quota) and accountability measures for recreationally-caught Gulf red snapper.

    Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, finds good cause to waive prior notice and opportunity for additional public comment for this correcting action because it would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the public received notice and an opportunity to comment on the proposed rules for the framework amendment and Amendment 40 and the final rule for Amendment 40 included this regulatory text. This final rule reinstates the regulatory text that was inadvertently omitted from the correcting amendment that published on September 28, 2015 (80 FR 58219). If this final rule was delayed to allow for notice and opportunity for public comment, it could cause confusion because the public believes that the omitted text is already included in the regulations.

    List of Subjects in 50 CFR Part 622

    Commercial, Fisheries, Fishing, Gulf of Mexico, Recreational, Red snapper, Reef fish.

    Dated: November 23, 2015. Eileen Sobeck, Assistant Administrator for Fisheries, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 622 is amended as follows:

    PART 622—FISHERIES OF THE CARIBBEAN, GULF OF MEXICO, AND SOUTH ATLANTIC 1. The authority citation for part 622 continues to read as follows: Authority:

    16 U.S.C. 1801 et seq.

    2. In § 622.39, add paragraphs (a)(1)(i)(B)(1) and (2) to read as follows:
    § 622.39 Quotas.

    (a) * * *

    (1) * * *

    (i) * * *

    (B) * * *

    (1) NMFS will withhold distribution of 4.9 percent of the 2016 IFQ allocation of red snapper commercial quota on January 1, 2016, totaling 352,000 lb (159,665 kg), round weight, of the 2016 red snapper commercial quota specified in this paragraph (a)(1)(i)(B).

    (2) As determined by NMFS, remaining 2016 IFQ allocation of red snapper will be distributed to the current shareholders based on their current shares held as of the date of distribution.

    3. In § 622.41, revise paragraph (q)(2)(i) to read as follows:
    § 622.41 Annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (AMs).

    (q) * * *

    (2) * * *

    (i) The recreational ACL is equal to the total recreational quota specified in § 622.39(a)(2)(i)(A). The AA will determine the length of the red snapper recreational fishing season, or recreational fishing seasons for the Federal charter vessel/headboat and private angling components, based on when recreational landings are projected to reach the recreational ACT, or respective recreational component ACT specified in paragraph (q)(2)(iii) of this section, and announce the closure date(s) in the Federal Register. These seasons will serve as in-season accountability measures. On and after the effective date of the recreational closure or recreational component closure notifications, the bag and possession limit for red snapper or for the respective component is zero. When the recreational sector or Federal charter vessel/headboat component is closed, this bag and possession limit applies in the Gulf on board a vessel for which a valid Federal charter vessel/headboat permit for Gulf reef fish has been issued, without regard to where such species were harvested, i.e., in state or Federal waters.

    [FR Doc. 2015-30194 Filed 11-25-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 101206604-1758-02] RIN 0648-XE326 Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic; 2015-2016 Accountability Measure and Closure for King Mackerel in the Florida West Coast Northern Subzone AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements an accountability measure (AM) for commercial king mackerel in the Florida west coast northern subzone of the eastern zone of the Gulf of Mexico (Gulf) exclusive economic zone (EEZ) through this temporary final rule. NMFS has determined that the commercial quota for king mackerel in the eastern zone, Florida west coast northern subzone of the Gulf EEZ will be reached by November 28, 2015. Therefore, NMFS closes the Florida west coast northern subzone to commercial king mackerel fishing on November 28, 2015, to protect the Gulf king mackerel resource.

    DATES:

    The closure is effective noon, local time, November 28, 2015, until 12:01 a.m., local time, on July 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Susan Gerhart, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for Coastal Migratory Pelagic Resources in the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The Gulf migratory group king mackerel is divided into western and eastern zones. The Gulf's eastern zone for king mackerel is further divided into the Florida west coast northern and southern subzones that have separate quotas. The quota for the Florida west coast northern subzone is 178,848 lb (81,124 kg) (50 CFR 622.384(b)(1)(i)(B)(2)).

    Regulations at 50 CFR 622.388(a)(1) require NMFS to close the commercial sector for Gulf migratory group king mackerel in the Florida west coast northern subzone when the commercial quota is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. Based on the best scientific information available, NMFS has determined the commercial quota of 178,848 lb (81,124 kg) for Gulf migratory group king mackerel in the Florida west coast northern subzone will be reached by November 28, 2015. Accordingly, the Florida west coast northern subzone is closed effective noon, local time, November 28, 2015, through June 30, 2016, the end of the current fishing year, to commercial fishing for Gulf migratory group king mackerel.

    Except for a person aboard a charter vessel or headboat, during the closure, no person aboard a vessel for which a commercial permit for king mackerel has been issued may fish for or retain Gulf group king mackerel in the EEZ in the closed subzone (50 CFR 622.384(e)(1) and (e)(2)). A person aboard a vessel that has a valid charter vessel/headboat permit for coastal migratory pelagic fish may continue to retain king mackerel in or from the closed subzone under the bag and possession limits set forth in 50 CFR 622.382(a)(1)(ii) and (a)(2), provided the vessel is operating as a charter vessel or headboat. A charter vessel or headboat that also has a commercial king mackerel permit is considered to be operating as a charter vessel or headboat when it carries a passenger who pays a fee or when there are more than three persons aboard, including operator and crew.

    During the closure, king mackerel from the closed subzone, including those harvested under the bag and possession limits, may not be purchased or sold. This prohibition does not apply to king mackerel from the closed zones or subzones that were harvested, landed ashore, and sold prior to the closure and were held in cold storage by a dealer or processor (50 CFR 622.384(e)(3)).

    The Florida west coast northern subzone is that part of the EEZ between 26°19.8′ N. latitude (a line directly west from the boundary between Lee and Collier Counties, FL) and 87°31.1′ W. longitude (a line directly south from the state boundary of Alabama and Florida).

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf migratory group king mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.388(a)(1) and 50 CFR 622.384(e) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the Florida west coast northern subzone of the Gulf eastern zone to commercial king mackerel fishing constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary, because the rule implementing the commercial quota and the associated requirement for closure of the commercial harvest when the quota is reached or is projected to be reached has already been subject to notice and public comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because the capacity of the fishing fleet allows for rapid harvest of the quota, and there is a need to immediately implement this action to protect the king mackerel resource. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established quota.

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 23, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-30192 Filed 11-23-15; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 130708597-4380-01] RIN 0648-XE329 Pacific Island Pelagic Fisheries; 2015 CNMI Longline Bigeye Tuna Fishery; Closure AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is closing the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean as a result of the fishery reaching the 2015 allocation limit for the Commonwealth of the Northern Mariana Islands (CNMI). This action is necessary to comply with regulations managing this fish stock.

    DATES:

    Effective November 30, 2015, through December 31, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.

    SUPPLEMENTARY INFORMATION:

    On August 5, 2015, NMFS restricted the retention, transshipment and landing of bigeye tuna captured by longline gear in the western and central Pacific Ocean (WCPO) as a result of the U.S. longline fishery reaching the 2015 U.S. bigeye tuna limit of 3,502 mt (80 FR 44883, July 28, 2015). Regulations at 50 CFR 300.224(d) provide an exception to this closure for bigeye tuna caught by U.S. longline vessels identified in a valid specified fishing agreement under 50 CFR 665.819(c). Further, 50 CFR 665.819(c)(9) authorized NMFS to attribute catches of bigeye tuna made by U.S. longline vessels identified in a valid specified fishing agreement to the U.S. territory to which the agreement applies.

    Effective on October 9, 2015, NMFS specified a 2015 catch limit of 2,000 mt of longline-caught bigeye tuna for the CNMI (80 FR 61767, October 14, 2015). NMFS also authorized the CNMI to allocate up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. longline fishing vessels permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP).

    On October 9, 2015, the Western Pacific Fishery Management Council, through its Executive Director, transmitted to NMFS a specified fishing agreement between the CNMI and Quota Management, Inc. (QMI), dated September 16, 2015, and amended on October 15, 2015, by adding one vessel. NMFS reviewed the agreement, as amended, and determined that it was consistent with the requirements at 50 CFR 665.819, the FEP, the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable laws. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, followed the procedures in 50 CFR 665.819—Territorial catch and fishing effort limits.

    In accordance with 50 CFR 300.224(d) and 50 CFR 665.819(c)(9), NMFS began attributing bigeye tuna caught in the WCPO by vessels identified in the CNMI/QMI agreement to the CNMI, beginning on October 9, 2015. NMFS monitored catches of longline-caught bigeye tuna by the CNMI longline fisheries, including catches made by U.S. longline vessels operating under the CNMI/QMI agreement. Based on this monitoring, NMFS forecasted that the CNMI territorial allocation limit of 1,000 mt will be reached by the end of November 2015, and is, as an accountability measure, prohibiting the catch and retention of longline-caught bigeye tuna by vessels in the CNMI/QMI agreement.

    Notice of Closure and Temporary Rule

    On November 30, 2015, through December 31, 2015, NMFS closes the U.S. pelagic longline fishery for bigeye tuna in the western and central Pacific Ocean as a result of the fishery reaching the 2015 allocation limit of 1,000 mt for the CNMI.

    During the closure, a U.S. fishing vessel operating under the CNMI/QMI agreement may not retain on board, transship, or land bigeye tuna captured by longline gear in the WCPO, except that any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions may be retained on board, transshipped, and landed, provided that they are landed within 14 days of the start of the closure, that is, by December 14, 2015. Additionally, U.S. fishing vessels operating under the CNMI/QMI agreement are also prohibited from transshipping bigeye tuna caught in the WCPO by longline gear to any vessel other than a U.S. fishing vessel with a valid permit issued under 50 CFR 660.707 or 665.801.

    During the closure, all other restrictions and requirements NMFS established on August 5, 2015, as a result of the U.S. longline fishery reaching the 2015 U.S. bigeye tuna limit of 3,502 mt (80 FR 44883, July 28, 2015) shall remain valid and effective.

    NMFS notes that there is a pending case in litigation—Conservation Council for Hawai'i, et al., v. NMFS (D. Hawaii); case no. 14-cv-528—that challenges the framework process for allocations from the territories to U.S. longline fishing vessels.

    Classification

    There is good cause to waive the prior notice and public comment requirement of the Administrative Procedure Act, and make this rule effective immediately upon publication in the Federal Register. This rule closes the U.S. longline fishery for bigeye tuna in the WCPO as a result of reaching the bigeye tuna allocation limit established by the 2015 specification for catch and allocation limits of bigeye tuna for the CNMI, and the specified fishing agreement between the Government of the CNMI and QMI dated September 16, 2015, amended on October 15, 2015.

    NMFS forecasts that the fishery will reach the 2015 limit by the end of November 2015. Fishermen have been subject to longline bigeye tuna limits in the western and central Pacific since 2009. They have received ongoing, updated information about the 2015 catch and progress of the fishery in reaching the Convention Area limit via the NMFS Web site, social media, and other means. The publication timing of this rule, moreover, provides longline fishermen with seven days' advance notice of the closure date, and allows two weeks to return to port and land their catch of bigeye tuna. This action is intended to comply with regulations managing this stock, and, accordingly NMFS finds it impracticable and contrary to the public interest to have prior notice and public comment.

    For the reasons stated above, there is also good cause to waive the 30-day delay requirement of the Administrative Procedure Act for this notice and temporary rule. NMFS must close the fishery as soon as possible to ensure that fishery does not exceed the allocation limit. NMFS implemented the catch and allocation limits for the CNMI consistent with management objectives to sustainable manage the bigeye tuna stock and restore the stock to levels capable of producing maximum sustainable yield on a continuing basis. Failure to close the fishery immediately would be inconsistent with bigeye tuna management objections and in violation of Federal law.

    This action is required by 50 CFR 665.819(d), and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: November 23, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-30193 Filed 11-23-15; 4:15 pm] BILLING CODE 3510-22-P
    80 228 Friday, November 27, 2015 Proposed Rules OFFICE OF GOVERNMENT ETHICS 5 CFR Part 2635 RIN 3209-AA04 Standards of Ethical Conduct for Employees of the Executive Branch; Amendment to the Standards Governing Solicitation and Acceptance of Gifts From Outside Sources AGENCY:

    Office of Government Ethics (OGE).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Office of Government Ethics is proposing to revise the portions of the Standards of Ethical Conduct for Executive Branch Employees that govern the solicitation and acceptance of gifts from outside sources. The proposed amendments modify the existing regulations to more effectively advance public confidence in the integrity of Federal officials. The proposed amendments would also incorporate past interpretive guidance, add and update regulatory examples, improve clarity, update citations and make technical corrections.

    DATES:

    Written comments are invited and must be received on or before January 26, 2016.

    ADDRESSES:

    You may submit comments, in writing, to OGE on this proposed rule, identified by RIN 3209-AA04, by any of the following methods:

    Email: [email protected] Include the reference “Proposed Amendments to Subpart B” in the subject line of the message.

    Fax: (202) 482-9237.

    Mail/Hand Delivery/Courier: Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917, Attention: “Proposed Amendments to Subpart B.”

    Instructions: All submissions must include OGE's agency name and the Regulation Identifier Number (RIN), 3209-AA04, for this proposed rulemaking. All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Comments may be posted on OGE's Web site, www.oge.gov. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Comments generally will not be edited to remove any identifying or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Christopher J. Swartz, Assistant Counsel, or Vincent J. Salamone, Associate Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917; Telephone: 202-482-9300; TTY: 800-877-8339; FAX: 202-482-9237.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On August 7, 1992, the U.S. Office of Government Ethics (OGE) published the Standards of Ethical Conduct for Employees of the Executive Branch (Standards), which are codified at 5 CFR part 2635. See 57 FR 35005-35067, as amended. Subpart B of part 2635 sets forth the regulations governing the solicitation and acceptance of gifts from outside sources by officers and employees of the Executive Branch. These regulations implement the gift restrictions set forth in 5 U.S.C. 7353 and section 101(d) of Executive Order 12674, as modified by Executive Order 12731.

    Pursuant to section 402 of the Ethics in Government Act of 1978, Public Law 95-521, codified at 5 U.S.C. Appendix IV, sec. 402, the Director of OGE is responsible for periodically reviewing, evaluating and updating the rules and regulations that pertain to ethics in the Executive Branch. In accordance with section 402, OGE has reviewed the regulations found in subpart B and is proposing changes in light of OGE's experience gained from application of the Standards since they became effective in February 1993.

    In formulating this proposed rule, OGE has consulted with the Department of Justice and the Office of Personnel Management pursuant to section 201(a) of Executive Order 12674, as modified by Executive Order 12731, and the authorities contained in title IV of the Ethics in Government Act of 1978, as amended. Prior to promulgating this proposed rule, OGE solicited the views of Executive Branch agency ethics officials through an electronic survey and multiple in-person meetings. OGE has considered the input received from these agency ethics officials and has incorporated many of their comments and suggestions into the proposed rule.

    II. Regulatory Amendments to Subpart B Technical Changes

    OGE proposes amending the Table of Contents to subpart B of the Standards to conform to the proposed substantive amendments to subpart B, which are explained elsewhere in this document. OGE also proposes a number of general technical and non-substantive changes that would apply throughout subpart B to enhance clarity and readability and to remove gender-specific terms from the substantive regulatory text. OGE also proposes to replace the term “shall” as used throughout the regulation with the terms “will,” “must,” or “does” where the term is used to indicate an affirmative obligation or requirement, and to replace the term “shall not” with the terms “may not” or “does not” as appropriate. These changes are intended to enhance clarity and do not constitute a substantive change to the regulation.

    Proposed § 2635.201  Overview and Considerations For Declining Otherwise Permissible Gifts

    Proposed § 2635.201(a) reiterates the language that is contained in current § 2635.201, and includes a new subheading “Overview.” Proposed § 2635.201(b) is new to the Standards. This section is entitled “Considerations for declining otherwise permissible gifts.” OGE is proposing the addition of this section because it is OGE's experience that employees and ethics officials sometimes focus on whether a regulatory exception permits the acceptance of an otherwise impermissible gift, and not on whether acceptance of the gift could affect the perceived integrity of the employee or the credibility and legitimacy of the agency's programs. To counter this tendency, OGE is proposing to add § 2635.201(b)(1), which sets out a flexible, non-binding standard that employees are encouraged to use when deciding whether to accept a gift that would otherwise be permitted by this subpart. Specifically, this section encourages employees to consider the potential that a “reasonable person” would question their integrity if they were to accept the gift. In a circumstance where an employee concludes that a reasonable person would question his or her integrity, the employee is encouraged to consider declining the gift.

    To assist employees in making this determination, OGE has added proposed § 2635.201(b)(2), which sets out some factors that employees can consider when evaluating whether they should decline an otherwise permissible gift because acceptance might cause a reasonable person with knowledge of the relevant facts to question their integrity. Employees are not, however, required to consider these factors in every case; these factors are merely intended to be illustrative of the types of considerations that are relevant to this determination. In addition, because the regulatory exceptions represent OGE's determination that, in most cases, acceptance of a gift under the relevant exception will not adversely affect public confidence, and because the factors are inherently subjective, the proposed rule clarifies that an employee has not violated the subpart by accepting a gift under an exception found in § 2635.204. The section concludes by encouraging employees to seek advice from an appropriate agency ethics official when making this determination or where there are questions related to other provisions of this subpart.

    Proposed § 2635.202  General Prohibition on Solicitation or Acceptance of Gifts

    OGE proposes revising the heading of § 2635.202 to “General prohibition on solicitation or acceptance of gifts.” OGE proposes to move the provisions setting forth the limitations on use of the exceptions set out in current § 2635.202(c) to redesignated § 2635.205. OGE believes that reordering the regulations to place the rules establishing limitations on the exceptions after the regulatory exceptions will produce a more logical and understandable ordering of the regulation.

    OGE proposes to revise current § 2635.202(a) by moving the prohibitions on accepting gifts and soliciting gifts into separate paragraphs. OGE is proposing this revision to emphasize that the prohibition on soliciting gifts from prohibited sources, or that are to be given because of the employee's official position, is an independent restriction from the prohibition on accepting gifts that are restricted under subpart B.

    OGE proposes to reword current § 2635.202(b) to increase clarity and readability. OGE also proposes to move this paragraph to § 2635.202(c). This section describes the relationship between the Standards found in subpart B and the illegal gratuities statute, 18 U.S.C. 201(c)(1)(B). This revision is technical in nature and does not affect the substance of the regulation, which has been consistent since the issuance of the Standards in 1992. OGE also proposes to include a statement reminding employees that, notwithstanding any exception provided in the subpart, no gift may be solicited or accepted if to do so would violate the federal bribery statute, 18 U.S.C. 201(b). OGE proposes to add a new Example 1 to paragraph (c) to illustrate a circumstance in which an employee's acceptance of a gift would violate the new § 2635.202(c).

    Proposed § 2635.203 Definitions

    OGE proposes a number of changes to § 2635.203(b), which defines the term “gift” as well as provides exclusions from that definition.

    OGE proposes to amend current § 2635.203(b)(2), which excludes from the definition of the term “gift” certain presentation items with little intrinsic value, to permit employees to accept items that are “primarily” for presentation as opposed to only those that are “solely” for presentation. OGE believes distinguishing between items intended for presentation based on whether the item hypothetically could have some independent use is not intuitive or necessary, so long as the presentation item is truly of “little intrinsic value.” Items such as watches, artwork, items containing precious metals or gemstones, fine crystal, or that otherwise have significant independent value would not qualify for this exclusion, even if they were inscribed or otherwise adorned with personalized information (such as the name of the donor, the date of an event, or the name of the recipient).

    Proposed § 2635.203(b)(6) would clarify that continued participation in an employee welfare or benefit plan with a current or former employer would not constitute a gift for purposes of subpart B.

    OGE proposes to delete the Note following current paragraph (b)(7) stating that employees are prohibited from accepting certain frequent flyer program benefits that are earned from Government-financed travel, as it no longer reflects current law.

    Proposed § 2635.203(b)(8) is new as an exclusion, and excludes from the definition of “gift” certain offers of free attendance to an event provided to a speaker on the day of his or her presentation. Such offers of free attendance are currently treated as gifts that employees are permitted to accept pursuant to an exception set out in current § 2635.204(g)(1). As described in current § 2635.204(g)(1), OGE views the employee's attendance in these circumstances as customary and necessary to allow the employee to carry out his or her assignment, and therefore views such offers of free attendance as not constituting a gift to either the agency or the employee. Moving the exception at § 2635.204(g)(1) to the exclusion section at § 2635.203(b)(8) reflects that long-time understanding. Advice OGE has previously provided on the application of current § 2635.204(g)(1) would continue to be applicable to proposed § 2635.203(b)(8).

    OGE has also provided that an offer of free attendance provided to an employee's spouse or another accompanying guest on the day the employee is presenting is also excluded from the gift rules in certain circumstances, which accords with the current exception for such attendees under § 2635.204(g)(6). Likewise, OGE has excluded from the definition of “gift” an offer of free attendance to certain personnel, such as security details or press officers, who are assigned by the agency to perform official duties in support of the presenting employee. This regulatory exclusion accords with OGE's longstanding interpretation of current § 2635.204(g)(1). See OGE DAEOgram DO-10-003 (Feb. 18, 2010). OGE also proposes simplifying the language of the exclusion to cover “Free attendance to an event provided by the sponsor of an event to . . . an employee who is assigned to present information on behalf of the agency . . .” (emphasis added). Current § 2635.204(g)(1) provides that an employee may accept an offer of free attendance to an event when he or she is assigned to participate as a speaker or panel participant or otherwise to present information on behalf of the agency. See also OGE Legal Advisory LA-12-05 (Sept. 7, 2012). The proposed regulation is consistent with this advice.

    OGE proposes to include ten examples to § 2635.203(b) to provide clarification to the regulatory exclusions to the definition of “gift.” These examples are not intended to be comprehensive. Proposed Example 1 to paragraph (b)(1) clarifies that the exclusion for “modest items of food and refreshment” would not cover alcoholic beverages served at a Government contractor's holiday party. Proposed Example 1, Example 2, and Example 3 to paragraph (b)(2) clarify the meaning of “items with little intrinsic value . . . which are intended primarily for presentation.” Proposed Example 1 and Example 2 to paragraph (b)(5) both clarify the exclusion for rewards and prizes given to participants in contests or events open to the public. Example 1 to paragraph (b)(7) emphasizes that employees may accept certain travel-related benefits, such as frequent flyer miles, pursuant to an applicable statute or regulation. OGE proposes to move Example 4 following current § 2635.204(g) to Example 1 to paragraph (b)(8) following proposed § 2635.203(b)(8). OGE proposes to add Example 2 and Example 3 to paragraph (b)(8) to provide additional guidance on what constitutes “present[ing] information” on behalf of an employee's agency.

    OGE is proposing to revise the first sentence of § 2635.203(c), which sets out the definition of “market value” as used throughout the subpart. The current definition states that “Market value means the retail cost the employee would incur to purchase the gift.” OGE has found that this definition can lead to confusion and in certain circumstances may not be applicable at all if the gift does not have a “retail” price, e.g., if the gift takes the form of services or intangibles. As OGE stated in 1992, the purpose of including a definition of “market value” was to “ensure that the employee pays the fair value” of the gift and to allow the employee to “determine the value or the amount to be reimbursed without having to consult the donor as to the donor's cost.” 57 FR 35006, 35014 (Aug. 7, 1992); see also OGE Informal Advisory Opinion 96 x 20. To better accord with OGE's intent that the term “market value” reflect the price the employee would pay for the gift if he or she were to purchase it at fair value and on the open market, OGE has amended the first sentence of the definition to read: “Market value means the cost that a member of the general public would reasonably expect to incur to purchase the gift.” The proposed change also reflects OGE's interpretation that the “market value” of a gift is the cost the recipient would incur to purchase the item on the open market, not the cost that the donor paid to acquire the gift. This principle is illustrated in proposed Example 1 and new Example 2 to paragraph (c). Proposed Example 1 to paragraph (c) also illustrates OGE's longstanding guidance that the market value of a gift is not eliminated or significantly diminished because the item has been inscribed or otherwise adorned with the donor or recipient's name or information related to an event at which the gift was presented. Proposed Example 3 to paragraph (c) is current Example 2 following § 2635.203(c) without substantive change. Example 4 and Example 5 to paragraph (c) are provided to clarify how to calculate the market value of certain gifts that are not available for retail purchase, such as free admission to a private skybox or an invitation-only event where an entry fee is not charged to attendees.

    OGE proposes to modify the formatting of § 2635.203(e) and § 2635.203(f) to enhance clarity. OGE also proposes to amend § 2635.203(f)(1) to expand the definition of “indirectly solicited or accepted” gifts to include gifts that are given to “a member of the employee's household” on the basis of the person's relationship with the employee and with the employee's knowledge and acquiescence. OGE proposes to amend § 2635.203(f)(2) to clarify that employees who solicit or accept funds or other support for a charitable organization in accordance with subpart H of the Standards have not indirectly solicited or accepted a gift under subpart B. Proposed Example 1 to paragraph (e) is current Example 1 following § 2635.203(e). Proposed Example 2 to paragraph (e) is current Example 2 following § 2635.203(e). Proposed Example 1 to paragraph (f)(2) is current Example 1 following § 2635.203(f).

    OGE proposes removing current § 2635.203(g), defining the term “vendor promotional training.” The term is no longer used in the substantive provisions of the subpart, and the definition is therefore unnecessary.

    OGE proposes to add a new § 2635.203(g) defining the term “free attendance” as used throughout the subpart. The language found in this definition is based on the definition of “free attendance” currently found in § 2635.204(g)(4). Because the term is used throughout the subpart, OGE believes it is more logical for the definition to appear in § 2635.203. OGE has amended the definition as it is currently found in § 2635.204(g)(4) to permit employees who are presenters at an event to accept meals outside of a group context, so long as the meal is open to all presenters and is hosted by the sponsor of the event. OGE is aware that it is customary for the sponsors of an event to provide a separate luncheon or dinner for participating presenters. OGE believes that these meals are often beneficial to the agency because the agency employee is able to interact with other presenters, receive instructions, and hear about program goals or changes. OGE believes that where a meal is provided to all other presenters, the meal does not constitute a separate gift for the personal benefit of the employee.

    OGE has determined that the explanatory Note that follows current § 2635.204(g) is unnecessary. OGE therefore proposes to remove the Note.

    Proposed § 2635.204 Exceptions to the Prohibition on Acceptance of Certain Gifts

    OGE proposes retitling this section to provide additional clarity as to the substantive regulatory text. OGE also proposes amending the introductory clause to improve readability.

    OGE is proposing to revise and add a number of examples to § 2635.204(a) to clarify the application of the rule in various contexts. Proposed Examples 1 through 5 to paragraph (a) are unchanged except for technical modification. Proposed Example 6 to paragraph (a) is new and emphasizes that an employee may not rely on the exception for gifts of $20 or less to accept a group gift with an aggregate market value in excess of $20. Proposed Example 7 to paragraph (a) is new and incorporates OGE's advice that store gift cards that are worth $20 or less may be accepted under § 2635.204(a), but that general-use prepaid gift cards may not be accepted under the exception, even if their value is below the regulatory threshold. See OGE Legal Advisory LA-15-04 (April 30, 2015). General-use prepaid cards operate similarly to debit cards in practice and are therefore akin to gifts of cash. See id.

    OGE proposes amending § 2635.204(b) to incorporate OGE's long-standing interpretation that the exception for gifts based on a personal relationship applies only to gifts provided by an individual. As used in the Standards, the term “individual” refers only to a natural person, i.e., a human being. See 5 CFR 2635.102(k) (defining “person” to include an “individual” as well as a “corporation” “company” or “other organization or institution”). This accords with the common understanding of the term. See Mohammed v. Palestinian Authority, 132 S. Ct. 1702, 1707 (2012). OGE also proposes amending § 2635.204(b) to make explicit that in determining whether a gift is motivated by a personal relationship, employees and agencies may consider not only the “history of the relationship” but also the “nature of the relationship.” This amendment accords with advice that OGE has issued on this exception in the past. See OGE Informal Advisory Opinion 06 x 3 (Mar. 21, 2006).

    Proposed Example 1 to paragraph (b) is revised to reflect circumstances that arise more frequently. Proposed Example 2 to paragraph (b) has no substantive change. Proposed Example 3 to paragraph (b) is new and provides guidance on the application of the exception at § 2635.204(b) to personal contacts made through social media networking Web sites.

    OGE is proposing to revise § 2635.204(c)(1) to clarify that an employee may accept a reduction or waiver of membership or other fees to an organization where the only restriction on membership is related to professional qualifications and the reduction or waiver is available to all Government employees or all uniformed military personnel. OGE proposes to amend § 2635.204(c)(2) to explain that “opportunities and benefits” under this section may include free attendance or participation at an event if the other criteria of the section are met. OGE also proposes to amend § 2635.204(c)(3) to provide that the general prohibition on an employee accepting for personal use a benefit to which the Government is entitled does not apply when the employee is specifically authorized by statute or regulation to retain the benefit. Proposed Example 1 to paragraph (c)(2) illustrates circumstances under which an employee would not be able to accept a discount under § 2635.204(c)(2)(i), as it would be related to the employee's Government employment. Proposed Example 2 and Example 3 to paragraph (c)(2) and Example 1 to paragraph (c)(3) are renumbered but not substantively changed.

    OGE proposes to restructure § 2635.204(d), Awards and honorary degrees, to clarify this exception. Proposed § 2635.204(d)(l) covers awards. The elements are the same as currently set forth in § 2635.204(d), but are reordered for clarity. Proposed § 2635.204(d)(2) defines an “Established program of recognition.” Proposed § 2635.204(d)(3), entitled “Honorary degrees,” is current § 2635.204(d)(2). As proposed, this paragraph updates the citation for the definition of an institution of higher education found at 20 U.S.C. 1001 and provides that employees may also accept honorary degrees from “similar foreign institution[s] of higher education.” For purposes of this exception, a “foreign institution of higher education” would include an institution of higher education that is physically located outside of the United States if it is accredited by a recognized quality assurance or accreditation organization. OGE proposes to add a note following § 2635.204(d)(3) reminding agency ethics officials that before approving the acceptance of an honorary degree from a foreign institution of higher education, the agency should also consider the potential applicability of the Emoluments Clause of the U.S. Constitution and the Foreign Gifts and Decorations Act.

    Proposed § 2635.204(d)(4) is similar to current § 2635.204(d)(3), but is reworded to clarify that, for the purpose of determining whether the value of an award exceeds $200 (and therefore is subject to additional restrictions), the value of the free attendance at the event does not need to be included but the cost of any travel expenses do. This is consistent with OGE's current interpretation, as reflected in Example 3 in the awards section of the current regulation.

    OGE also proposes to amend the examples to § 2635.204(d) by adding one new example and updating the remaining example designations. Proposed Example 1 to paragraph (d)(1), Example 3 to paragraph (d)(1), and Example 1 to paragraph (d)(3) are currently in the regulation, and OGE proposes no substantive amendment to these examples. Proposed Example 2 to paragraph (d)(1) is a new example added to emphasize the existing rule that even where there is an “established program of recognition,” an employee may not accept the award if the entity that is giving the award has interests that may be substantially affected by the performance or nonperformance of the employee's official duties.

    OGE proposes to amend § 2635.204(e) by moving the definition of “employment” currently found at § 2635.204(e)(4) to a new § 2635.204(e)(5). Currently the term “employment” is defined by cross-reference to the definition of “employment” in § 2635.603(a). New § 2635.204(e)(5) removes the cross-reference and incorporates the substantive definition found in § 2635.603(a), i.e., “`employment' means any form of non-Federal employment or business relationship involving the provision of personal services.” OGE is also proposing to add a new subparagraph (e)(4) providing that an employee may accept an invitation from his or her former employer to attend a reception or similar event, and accept benefits that are provided at the event, if other former employees have also been invited to attend and it is clear that these benefits are not being offered or enhanced because of the employee's official position. There is currently some ambiguity in this regard because of the phrasing of the existing paragraph. OGE does not believe a distinction should be made between events based on current and former business or employment activities. Under either situation, the invitation and any benefits must clearly be offered because of the employee's former or current non-Government position and not because of Federal employment or the official's status. Proposed Example 1 to paragraph (e)(4) illustrates this provision. There are no substantive changes to the other examples to paragraph (e).

    OGE proposes to amend § 2635.204(f) to clarify that a gift that may be accepted in connection with certain political activities includes offers of free attendance to an accompanying spouse and other guests. Proposed Example 1 to paragraph (f) is currently Example 1 following § 2635.204(f). There is no substantive change to this example.

    OGE is proposing a number of substantive revisions to § 2635.204(g). As described above, OGE proposes to remove § 2635.204(g)(1), Speaking and similar engagements. The substance of the exception will be included in a new exclusion from the definition of “gift” at proposed § 2635.203(b)(8). Proposed § 2635.204(g) will focus on when an employee may accept an invitation of free attendance at a “widely attended gathering.” Accordingly, OGE proposes re-titling § 2635.204(g) as “Gifts of free attendance at widely attended gatherings.” Proposed § 2635.204(g)(1) would set forth the rule for when an employee may accept an unsolicited gift of free attendance at such a gathering, while proposed subparagraphs (g)(2)-(g)(5) provide definitions and concepts that apply throughout § 2635.204(g). Proposed § 2635.204(g)(6) is similar to current § 2635.204(g)(6), but has been amended to clarify that an employee may bring only one accompanying guest under the authority found in that section. This has been OGE's interpretation of the regulation since its promulgation in 1996. See 61 FR 42965, 42968 (Aug. 20, 1996).

    Proposed § 2635.204(g)(1) provides that an employee may accept a gift of free attendance to attend a widely attended gathering only upon receiving a written authorization from the agency designee. This is a change from the current rule. Currently, a written determination is required only when the person extending the invitation has interests that may be substantially affected by the performance or non-performance of the employee's official duties, or is an organization the majority of whose members have such interests.

    Although OGE is sympathetic to agency concerns that requiring that all determinations be made in writing may increase workload, OGE believes that increased access to certain technologies since the Standards were promulgated, such as the Internet and mobile devices, reduces this concern. Additionally, OGE believes that requiring a written authorization on all occasions will promote the public's confidence in Government operations.

    Proposed § 2635.204(g)(2) defines “widely attended gatherings.” This definition is similar to the definition that is used in current § 2635.204(g)(2). OGE is proposing to amend the current definition to highlight that an event does not qualify as a widely attended gathering unless it is “expected that . . . there will be an opportunity to exchange ideas and views among invited persons.” OGE has long held that an event does not meet the criteria of this exception if an opportunity to exchange ideas and views is not available. See, e.g., OGE Informal Advisory Opinion 08 x 1 (Jan. 30, 2008) (stating that “the `widely attended gathering' exception cannot be used to justify free attendance at an event that is not structured to allow interchange among attendees”); OGE Informal Advisory Opinion 07 x 14 (Dec. 5, 2007) (stating that OGE “considers it fundamental that a WAG must provide the opportunity for `an exchange of ideas' with a large and diverse group. . . . If an event is so structured that an employee has little opportunity to exchange views with a large and diverse number of persons, then the very purpose of the exception would be defeated.”); OGE Informal Advisory Opinion 99 x 2 (March 15, 1999). This amendment is being proposed to codify OGE's long-standing interpretation.

    Proposed § 2635.204(g)(3) describes the finding that the agency designee must make before authorizing an employee to accept an offer of free attendance at a widely attended gathering. The proposed rule does not require a particular degree of specificity in making this finding, but does require written evidence that the determination was made. For example, an email from the agency designee to the employee indicating the designee's approval would be sufficient. This section also sets out the limitations that apply when the gift of free attendance is from someone other than the sponsor, including restrictions on the aggregate value of such gifts. OGE has set the ceiling for nonsponsor gifts of free attendance to match the threshold set by the General Service Administration (GSA) as the “minimal value” level used in the regulations implementing the Foreign Gifts and Decorations Act, 5 U.S.C. 7342. OGE raises this threshold on a three-year basis to match the dollar value set by GSA. The last time the regulatory ceiling was raised was in 2014. See, e.g. , 79 FR 28605 (May 19, 2014).

    As described above, OGE proposes removing § 2635.204(g)(4) and the explanatory Note following the regulation, which sets out the definition of “free attendance” for the purposes of § 2635.204(g), because there is now a proposed subpart-wide definition of “free attendance” at § 2635.203(g). OGE proposes adding a new § 2635.204(g)(4) establishing factors the agency designee may consider in determining whether the agency's interest in having the employee attend the event outweighs the potential that the employee may be, or may appear to be, improperly influenced in the performance of his or her duties by accepting the gift.

    OGE proposes to reword § 2635.204(g)(5) to more clearly state the criteria that apply when making a determination that a gift is from a person other than the sponsor.

    Because the exception for widely attended gatherings generates more questions than perhaps any other gift exception, OGE has provided eight examples to the regulation. Proposed Example 1 to paragraph (g) is part of current Example 1 following § 2635.204(g), but has been modified to illustrate when acceptance would not be permitted under the exception because the value of the gift from a nonsponsor is in excess of the regulatory threshold. Example 2 to paragraph (g) is new, and illustrates when acceptance would not be permitted under the exception because the gift is from a nonsponsor and the event is not expected to be attended by more than 100 persons. Example 3 to paragraph (g) is part of current Example 1 following § 2635.204(g), but has been modified to illustrate when acceptance could be permitted under the exception because the gift is from the sponsor of the event. Example 4 to paragraph (g) is current Example 2 following § 2635.204(g) modified to account for changes in the regulatory dollar threshold. Example 5 to paragraph (g) is current Example 3 following § 2635.204(g). Example 6 to paragraph (g) is current Example 5 following § 2635.204(g). Example 7 to paragraph (g) is current Example 6 following § 2635.204(g) modified to reflect that all widely attended gathering authorizations must be in writing. Proposed Example 8 to paragraph (g) is new, and explains that an employee may not accept gifts of transportation to or from an event pursuant to the exception at § 2635.204(g). This is consistent with OGE's longstanding interpretation of the definition.

    OGE proposes to revise § 2635.204(h) to clarify that an employee may accept an invitation to attend a social event permitted under the current rule only when that invitation is unsolicited. OGE also proposes clarifying that the gift exception includes food, refreshments, and entertainment that are provided to the employee's spouse or other accompanying guests. OGE further proposes to add a new § 2635.204(h)(3) to require an employee to receive a written determination that the employee's attendance at the event complies with the proposed standard set out at § 2635.201(b) when either the sponsor of the event or the person extending the invitation is not an individual. If the event is being hosted by an organization or the invitation is from an organization, as opposed to an individual, OGE believes that it is appropriate to require an independent written determination by an agency ethics official confirming that the employee's acceptance of free meals, refreshments, and entertainment would not cause a reasonable person to question the employee's integrity under the standard found in proposed § 2635.201(b). OGE proposes removing the examples following § 2635.204(h), and replacing them with new Example 1 to paragraph (h) illustrating a situation in which acceptance under this paragraph would be permitted.

    OGE proposes to amend § 2635.204(i) to clarify that gifts of meals, refreshments, and entertainment provided in a foreign area may be accepted only when unsolicited. OGE has also updated the citations throughout the regulation.

    OGE proposes revising § 2635.204(k) to include a cross-reference to § 2635.105, which sets forth the requirements that agencies must follow to promulgate supplemental agency regulations.

    OGE proposes to revise § 2635.204(l) by removing the Note following paragraph (1), as it is not necessary for understanding the scope or substance of the exception.

    OGE proposes to add a new gift exception for unsolicited gifts of informational materials at proposed § 2635.204(m). Executive Branch employees occasionally receive unsolicited gifts of books and periodicals. These items are often given with the goal of communicating the ideas and positions of the donor rather than personally benefitting the individual employee. The proposed gift exception would allow acceptance of these materials when either they are less than $100 or, if they are in excess of $100, there has been a determination that their acceptance accords with the general standard found at proposed § 2635.201(b). An employee could not use the proposed exception to accept entertainment materials, such as novels, audio or video recordings of entertainment programs, or pictures, photographs, or artwork intended for display or decoration. Section (m)(2) provides guidance on what constitutes informational materials. OGE also proposes providing two new examples to illustrate this exception.

    Proposed § 2635.205  Limitations on Use of Exceptions

    As previously described, OGE is proposing to move the limitations on employees' ability to use and rely on the exceptions in § 2635.204, which were previously located at § 2635.202(c), to § 2635.205. OGE further proposes to revise the regulatory text of proposed § 2635.205(b), which is current § 2635.202(c)(2), by rewording this paragraph to prohibit an employee from “[u]s[ing], or permit[ing] the use of, the employee's Government position, or any authority associated with public office, to solicit or coerce the offering of a gift.” This rewording is consistent with the language currently found in subpart G of the Standards, which broadly prohibits employees from using their public office for private gain. See 5 CFR 2635.702(a).

    Some exceptions would permit employees to solicit certain gifts in limited circumstances where it is clear that they have not used their official positions to induce the offering of the gifts, as in the case of an employee who solicits a gift from his or her spouse even though the spouse is employed by a prohibited source, pursuant to the exception at § 2635.204(b). These exceptions include: § 2635.204(b) (Gifts based on a personal relationship); § 2635.204(c) (Discounts and similar benefits); § 2635.204(d) (Awards and honorary degrees); § 2635.204(e) (Gifts based on outside business or employment relationships); § 2635.204(f) (Gifts in connection with political activities permitted by the Hatch Act Reform Amendments); § 2635.204(j) (Gifts to the President or Vice President); § 2635.204(k) (Gifts authorized by supplemental agency regulation); and § 2635.204(l) (Gifts accepted under specific statutory authority). However, these exceptions would continue to prohibit employees from using the authority of their positions to solicit or coerce the offering of gifts. They would also continue to prohibit employees from soliciting gifts to be given because of the employee's position.

    Other exceptions would bar solicitation of gifts under any circumstances, even where employees have not used the authority of their positions to influence or induce the giving of the gift. To emphasize this broader prohibition, OGE retained, and in some cases added, language in these exceptions clarifying that they apply only to the acceptance of “unsolicited” gifts. These exceptions include: § 2635.204(a) (Gifts of $20 or less); § 2635.204(g) (Gifts of free attendance at widely attended gatherings); § 2635.204(h) (Social invitations); § 2635.204(i) (Meals, refreshments and entertainment in foreign areas); and § 2635.204(m) (Gifts of informational materials).

    OGE proposes to expand the description of the federal bribery statute, found at proposed § 2635.205(d)(1), to more closely follow the text of the law. OGE also proposes to add two new limitations on the use of the exceptions found at § 2635.204. Proposed § 2635.205(e) would bar an employee from relying on an exception to the general gift prohibition when the acceptance of the gift would be prohibited by Executive Order. Similarly, proposed § 2635.205(f) would bar an employee from relying on an exception to the general gift prohibition when the acceptance of the gift would be prohibited by supplemental agency regulation issued with the concurrence of OGE.

    OGE proposes removing the limitation currently found at § 2635.202(c)(5) dealing with the acceptance of vendor promotional training. This limitation was originally included to ensure that any gift would be consistent with the guidelines on vendor promotional training in the Federal Information Resources Management Regulation, which was issued by the General Services Administration (GSA). See 57 FR 35006, 35012-13 (Aug. 7, 1992). However, that GSA regulation was rescinded in 1996.

    Proposed Example 1 to paragraph (c) is current Example 1 following § 2635.202(c)(3).

    Proposed § 2635.206 Proper Disposition of Prohibited Gifts

    OGE proposes to move the regulations pertaining to the proper disposition of prohibited gifts from § 2635.205 to § 2635.206.

    OGE proposes to modify the language currently found at § 2635.205(a), and redesignated at § 2635.206(a), to enhance readability, to add headings to the subparagraphs, and to emphasize that employees must promptly dispose of gifts that are accepted in violation of the subpart. OGE also proposes to add a sentence explaining that the obligation to dispose of prohibited gifts is independent of an agency's decision to initiate corrective or disciplinary action.

    Currently, § 2635.205(a)(1) provides that an employee who receives a tangible gift that is prohibited by the subpart must either return the gift to the donor or pay the donor the market value. Proposed § 2635.206(a)(1) would amend the regulation to provide employees with the option of destroying gifts with a market value not in excess of $100. OGE understands that on occasion it may be impossible, cost-prohibitive, or time-consuming for the employee or agency to return the prohibited gift. This could be the case, for example, if the donor was unknown or unreachable. In these cases, where the gift is a tangible item and the market value is $100 or less, OGE believes the Government's interest may be better served by permitting an employee to destroy the gift. Destruction may be carried out by physical destruction or by permanently discarding the gift by placing it in a waste receptacle. OGE has provided examples illustrating proper gift disposition at the end of the relevant paragraphs.

    OGE proposes revising § 2635.206(a)(2) for technical reasons. Proposed § 2635.206(a)(4) updates the citation that relates to disposition of gifts received from foreign governments or international organizations and strikes the language related to disposal of materials related to official travel. The latter provision has become obsolete following statutory changes occurring after the original promulgation of the Standards.

    OGE proposes to add a new § 2635.206(d) to encourage employees to record any actions that they take to dispose of gifts that cannot be accepted under the subpart.

    III. Matters of Regulatory Procedure Regulatory Flexibility Act

    As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed rule would not have a significant economic impact on a substantial number of small entities because it primarily affects current Federal Executive Branch employees.

    Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply because this regulation does not contain information collection requirements that require approval of the Office of Management and Budget.

    Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 5, subchapter II), this proposed rule would not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

    Executive Order 13563 and Executive Order 12866

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

    Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed this proposed rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

    List of Subjects in 5 CFR Part 2635

    Conflict of interests, Executive Branch standards of ethical conduct, Government employees.

    Approved: November 9, 2015. Walter M. Shaub, Jr., Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics proposes to amend 5 CFR part 2635 as set forth below:

    PART 2635—STANDARDS OF ETHICAL CONDUCT FOR EMPLOYEES OF THE EXECUTIVE BRANCH 1. The authority citation for part 2635 continues to read as follows: Authority:

    5 U.S.C. 7301, 7351, 7353; 5 U.S.C. App. (Ethics in Government Act of 1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.

    2. Revise subpart B of part 2635 to read as follows: Subpart B—Gifts From Outside Sources Sec. 2635.201 Overview and considerations for declining otherwise permissible gifts. 2635.202 General prohibition on solicitation or acceptance of gifts. 2635.203 Definitions. 2635.204 Exceptions to the prohibition on acceptance of certain gifts. 2635.205 Limitations on use of exceptions. 2635.206 Proper disposition of prohibited gifts. Subpart B—Gifts From Outside Sources
    § 2635.201 Overview and considerations for declining otherwise permissible gifts.

    (a) Overview. This subpart contains standards that prohibit an employee from soliciting or accepting any gift from a prohibited source or any gift given because of the employee's official position, unless the item is excluded from the definition of a gift or falls within one of the exceptions set forth in this subpart.

    (b) Considerations for declining otherwise permissible gifts. (1) Every employee has a responsibility to the United States and its citizens to place loyalty to the Constitution, laws, and ethical principles above personal gain. An employee's actions should promote the public's trust that this fundamental responsibility is being met. Even when acceptance of a gift would be permitted by one of the exceptions contained in § 2635.204, it is frequently prudent for an employee to decline a gift offered by a prohibited source or because of the employee's official position. In determining whether acceptance of a gift otherwise permitted by an exception set forth in § 2635.204 would be prudent, an employee should consider whether a reasonable person with knowledge of the relevant facts would question the employee's integrity.

    (2) In considering whether acceptance of a gift would lead a reasonable person to question the employee's integrity, an employee may consider, among other factors:

    (i) Whether the gift has a high or low market value;

    (ii) Whether the gift was provided by a person or organization who has interests that may be affected substantially by the performance or nonperformance of the employee's official duties;

    (iii) Whether acceptance of the gift would lead the employee to feel a sense of obligation to the donor;

    (iv) Whether acceptance of the gift would reasonably create an appearance that the employee is providing the donor with preferential treatment or access to the Government;

    (v) With regard to a gift of free attendance at an event, whether the Government is also providing persons with views or interests that differ from those of the donor with access to the Government;

    (vi) With regard to a gift of free attendance at an event, whether the event is open to interested members of the public or representatives of the news media;

    (vii) Whether acceptance of the gift would cause a reasonable person to question the employee's ability to act impartially; and

    (viii) Whether acceptance of the gift would interfere with the employee's conscientious performance of official duties.

    (3) Notwithstanding paragraph (b)(1) of this section, an employee who accepts a gift that qualifies for an exception under § 2635.204 does not violate this subpart or the Principles of Ethical Conduct set forth in § 2635.101(b).

    (4) Employees who have questions regarding this subpart, including whether the employee should decline a gift that would otherwise be permitted under an exception found in § 2635.204, should seek advice from an agency ethics official. See § 2635.107(b).

    § 2635.202 General prohibition on solicitation or acceptance of gifts.

    (a) Prohibition on soliciting gifts. Except as provided in this subpart, an employee may not, directly or indirectly:

    (1) Solicit a gift from a prohibited source; or

    (2) Solicit a gift to be given because of the employee's official position.

    (b) Prohibition on accepting gifts. Except as provided in this subpart, an employee may not, directly or indirectly:

    (1) Accept a gift from a prohibited source; or

    (2) Accept a gift given because of the employee's official position.

    (c) Relationship to illegal gratuities statute. A gift accepted pursuant to an exception found in this subpart will not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B), unless it is accepted in return for being influenced in the performance of an official act. As more fully described in § 2635.205(d)(1), an employee may not solicit or accept a gift if to do so would be prohibited by the federal bribery statute, 18 U.S.C. 201(b).

    Example 1 to paragraph (c):

    A government contractor who specializes in information technology software has offered an employee of the Department of Energy's information technology acquisition division a $15 gift card to a local restaurant if the employee will allow the vendor to present a demonstration of the contractor's products at the division's staff meeting. Even though the gift card is less than $20, the employee may not accept the gift under 5 CFR 2635.204(a) because it is conditional upon official action by the employee. Pursuant to §§ 2635.202(c) and 2635.205(a), notwithstanding any exception to the rule, an employee may not accept a gift in return for being influenced in the performance of an official act.

    § 2635.203 Definitions.

    For purposes of this subpart, the following definitions apply:

    (a) Agency has the meaning set forth in § 2635.102(a). However, for purposes of this subpart, an executive department, as defined in 5 U.S.C. 101, may, by supplemental agency regulation, designate as a separate agency any component of that department which the department determines exercises distinct and separate functions.

    (b) Gift includes any gratuity, favor, discount, entertainment, hospitality, loan, forbearance, or other item having monetary value. It includes services as well as gifts of training, transportation, local travel, lodgings and meals, whether provided in-kind, by purchase of a ticket, payment in advance, or reimbursement after the expense has been incurred. The term excludes the following:

    (1) Modest items of food and refreshments, such as soft drinks, coffee and donuts, offered other than as part of a meal;

    Example 1 to paragraph (b)(1):

    A Department of Defense employee is invited to a defense contractor's holiday party. Alcoholic beverages are served at the party. Attendance at the party would be a gift to the employee because alcoholic beverages are not modest items of food or refreshment.

    (2) Greeting cards and items with little intrinsic value, such as plaques, certificates, and trophies, which are intended primarily for presentation;

    Example 1 to paragraph (b)(2):

    After giving a speech at the facility of a pharmaceutical company, a Government employee is presented with a glass paperweight in the shape of a pill capsule with the name of the company's latest drug and the date of the speech imprinted on the side. The employee may accept the paperweight because it is an item with little intrinsic value which is intended primarily for presentation.

    Example 2 to paragraph (b)(2):

    After participating in a panel discussion hosted by an international media company, a Government employee is presented with an inexpensive portable music player emblazoned with the media company's logo. The portable music player has a market value of $25. The employee may not accept the portable music player as it has a significant independent use as a music player rather than being intended primarily for presentation.

    Example 3 to paragraph (b)(2):

    After giving a speech at a conference held by a national association for miners, a Department of Commerce employee is presented with a block of granite that is engraved with the association's logo, a picture of the Appalachian Mountains, the date of the speech and the employee's name. The employee may accept this item because it is similar to a plaque, is designed primarily for presentation, and has little intrinsic value.

    (3) Loans from banks and other financial institutions on terms generally available to the public;

    (4) Opportunities and benefits, including favorable rates and commercial discounts, available to the public or to a class consisting of all Government employees or all uniformed military personnel, whether or not restricted on the basis of geographic considerations;

    (5) Rewards and prizes given to competitors in contests or events, including random drawings, open to the public unless the employee's entry into the contest or event is required as part of the employee's official duties;

    Example 1 to paragraph (b)(5):

    A Government employee is attending a free trade show on official time. The trade show is held in a public shopping area adjacent to the employee's office building. The employee voluntarily enters a drawing at an individual vendor's booth which is open to the public. She fills in an entry form on the vendor's display table and drops it into the contest box. The employee may accept the resulting prize because entry into the contest was not required by or related to her official duties.

    Example 2 to paragraph (b)(5):

    All attendees at a conference, which is not open to the public, are entered in a drawing for a weekend getaway to Bermuda as a result of being registered for the conference. A Government employee who attends the conference in his official capacity at the Government's expense cannot accept the weekend getaway, which is a “door prize,” because his entry in the contest was a result of registering for the conference as part of his official duties. Similarly, the employee could not accept the prize if entry into the drawing were restricted to those conference attendees who completed a conference evaluation, even if completing the evaluation was optional, because completing the evaluation was part of the conference and, therefore, incident to the performance of his official duties.

    (6) Pension and other benefits resulting from continued participation in an employee welfare and benefits plan maintained by a current or former employer;

    (7) Anything which is paid for by the Government or secured by the Government under Government contract;

    Example 1 to paragraph (b)(7):

    An employee at the Occupational Safety and Health Administration is assigned to travel away from her duty station to conduct an investigation of a collapse at a construction site. The employee's agency is paying for her travel expenses, including her airfare. The employee may accept and retain travel promotional items, such as frequent flyer miles, received as a result of her official travel, if done in accordance with 5 U.S.C. 5702, note, and 41 CFR part 301-53.

    (8) Free attendance to an event provided by the sponsor of the event to:

    (i) An employee who is assigned to present information on behalf of the agency at the event on any day when the employee is presenting;

    (ii) An employee whose presence on any day of the event is deemed to be essential by the agency to the presenting employee's participation in the event, provided that the employee is accompanying the presenting employee; and

    (iii) The spouse or one other guest of the presenting employee on any day when the employee is presenting, provided that others in attendance will generally be accompanied by a spouse or other guest, the offer of free attendance for the spouse or other guest is unsolicited, and the agency designee has authorized the presenting employee orally or in writing to accept.

    Example 1 to paragraph (b)(8):

    An employee of the Department of the Treasury is assigned to participate in a panel discussion of economic issues as part of a one-day conference may accept the sponsor's waiver of the conference fee. Under the separate authority of § 2635.204(a), the employee may accept a token of appreciation for her speech having a market value of $20 or less.

    Example 2 to paragraph (b)(8):

    An employee of the Securities and Exchange Commission is assigned to present the agency's views at a roundtable discussion of an ongoing working group. The employee may accept free attendance to the meeting under § 2635.203(b)(8) because the employee has been assigned to present information at the meeting on behalf of the agency. If it is determined by the agency that it is essential that another employee accompany the presenting employee to the roundtable discussion, the accompanying employee may also accept free attendance to the meeting under § 2635.203(b)(8)(ii).

    Example 3 to paragraph (b)(8):

    An employee of the United States Trade and Development Agency is invited to attend a cocktail party hosted by a prohibited source. The employee believes that while at the event he will have an opportunity to discuss official matters with other attendees. Although the employee may voluntarily discuss official matters with other attendees, the employee has not been assigned to present information on behalf of the agency. The employee may not accept free attendance to the event under § 2635.203(b)(8).

    (9) Any gift accepted by the Government under specific statutory authority, including:

    (i) Travel, subsistence, and related expenses accepted by an agency under the authority of 31 U.S.C. 1353 in connection with an employee's attendance at a meeting or similar function relating to the employee's official duties which take place away from the employee's duty station, provided that the agency's acceptance is in accordance with the implementing regulations at 41 CFR chapter 304; and

    (ii) Other gifts provided in-kind which have been accepted by an agency under its agency gift acceptance statute; and

    (10) Anything for which market value is paid by the employee.

    (c) Market value means the cost that a member of the general public would reasonably expect to incur to purchase the gift. An employee who cannot ascertain the market value of a gift may estimate its market value by reference to the retail cost of similar items of like quality. The market value of a gift of a ticket entitling the holder to food, refreshments, entertainment, or any other benefit is deemed to be the face value of the ticket.

    Example 1 to paragraph (c):

    An employee who has been given a watch inscribed with the corporate logo of a prohibited source may determine its market value based on her observation that a comparable watch, not inscribed with a logo, generally sells for about $50.

    Example 2 to paragraph (c):

    During an official visit to a factory operated by a well-known athletic footwear manufacturer, an employee of the Department of Labor is offered a commemorative pair of athletic shoes manufactured at the factory. Although the cost incurred by the donor to manufacture the shoes was $17, the market value of the shoes would be the $100 that the employee would have to pay for the shoes on the open market.

    Example 3 to paragraph (c):

    A prohibited source has offered a Government employee a ticket to a charitable event consisting of a cocktail reception to be followed by an evening of chamber music. Even though the food, refreshments, and entertainment provided at the event may be worth only $20, the market value of the ticket is its $250 face value.

    Example 4 to paragraph (c):

    A company offers an employee of the Federal Communication Commission (FCC) free attendance for two to a private skybox at a ballpark to watch a major league baseball game. The skybox is leased annually by the company, which has business pending before the FCC. To determine the market value of the tickets, the employee must add the market value of two of the most expensive publicly available tickets to the game and the market value of any food, parking or other tangible benefits provided in connection with the gift of attendance.

    Example 5 to paragraph (c):

    An employee of the Department of Agriculture is invited to a reception held by a prohibited source. There is no entrance fee to the reception event or to the venue. To determine the market value of the gift, the employee must add the market value of any entertainment, food, beverages, or other tangible benefit provided to attendees in connection with the reception, but need not consider the cost incurred by the sponsor to rent or maintain the venue where the event is held. The employee may rely on a per-person cost estimate provided by the sponsor of the event, unless the employee or an agency designee has determined that a reasonable person would find that the estimate is clearly implausible.

    (d) Prohibited source means any person who:

    (1) Is seeking official action by the employee's agency;

    (2) Does business or seeks to do business with the employee's agency;

    (3) Conducts activities regulated by the employee's agency;

    (4) Has interests that may be substantially affected by performance or nonperformance of the employee's official duties; or

    (5) Is an organization a majority of whose members are described in paragraphs (d)(1) through (4) of this section.

    (e) Given because of the employee's official position. A gift is given because of the employee's official position if the gift is from a person other than an employee and would not have been given had the employee not held the status, authority, or duties associated with the employee's Federal position.

    Note to paragraph (e):

    Gifts between employees are subject to the limitations set forth in subpart C of this part.

    Example 1 to paragraph (e):

    Where free season tickets are offered by an opera guild to all members of the Cabinet, the gift is offered because of their official positions.

    Example 2 to paragraph (e):

    Employees at a regional office of the Department of Justice (DOJ) work in Government-leased space at a private office building, along with various private business tenants. A major fire in the building during normal office hours causes a traumatic experience for all occupants of the building in making their escape, and it is the subject of widespread news coverage. A corporate hotel chain, which does not meet the definition of a prohibited source for DOJ, seizes the moment and announces that it will give a free night's lodging to all building occupants and their families, as a public goodwill gesture. Employees of DOJ may accept, as this gift is not being given because of their Government positions. The donor's motivation for offering this gift is unrelated to the DOJ employees' status, authority, or duties associated with their Federal position, but instead is based on their mere presence in the building as occupants at the time of the fire.

    (f) Indirectly solicited or accepted. A gift which is solicited or accepted indirectly includes a gift:

    (1) Given with the employee's knowledge and acquiescence to the employee's parent, sibling, spouse, child, dependent relative, or a member of the employee's household because of that person's relationship to the employee; or

    (2) Given to any other person, including any charitable organization, on the basis of designation, recommendation, or other specification by the employee, except the employee has not indirectly solicited or accepted a gift by the raising of funds or other support for a charitable organization if done in accordance with § 2635.808.

    Example 1 to paragraph (f)(2):

    An employee who must decline a gift of a personal computer pursuant to this subpart may not suggest that the gift be given instead to one of five charitable organizations whose names are provided by the employee.

    (g) Free attendance includes waiver of all or part of the fee for an event or the provision of food, refreshments, entertainment, instruction or materials furnished to all attendees as an integral part of the event. It does not include travel expenses, lodgings, or entertainment collateral to the event. It does not include meals taken other than in a group setting with all other attendees, unless the employee is a presenter at the event and is invited to a separate meal for participating presenters that is hosted by the sponsor of the event. Where the offer of free attendance has been extended to an accompanying spouse or other guest, the market value of the gift of free attendance includes the market value of free attendance by both the employee and the spouse or other guest.

    § 2635.204 Exceptions to the prohibition on acceptance of certain gifts.

    Subject to the limitations in § 2635.205, this section establishes exceptions to the prohibitions set forth in § 2635.202(a) and (b).

    (a) Gifts of $20 or less. An employee may accept unsolicited gifts having an aggregate market value of $20 or less per source per occasion, provided that the aggregate market value of individual gifts received from any one person under the authority of this paragraph does not exceed $50 in a calendar year. This exception does not apply to gifts of cash or of investment interests such as stock, bonds, or certificates of deposit. Where the market value of a gift or the aggregate market value of gifts offered on any single occasion exceeds $20, the employee may not pay the excess value over $20 in order to accept that portion of the gift or those gifts worth $20. Where the aggregate value of tangible items offered on a single occasion exceeds $20, the employee may decline any distinct and separate item in order to accept those items aggregating $20 or less.

    Example 1 to paragraph (a):

    An employee of the Securities and Exchange Commission and his spouse have been invited by a representative of a regulated entity to a community theater production, tickets to which have a face value of $30 each. The aggregate market value of the gifts offered on this single occasion is $60, $40 more than the $20 amount that may be accepted for a single event or presentation. The employee may not accept the gift of the evening of entertainment. He and his spouse may attend the play only if he pays the full $60 value of the two tickets.

    Example 2 to paragraph (a):

    An employee of the National Geospatial-Intelligence Agency has been invited by an association of cartographers to speak about her agency's role in the evolution of missile technology. At the conclusion of her speech, the association presents the employee a framed map with a market value of $18 and a ceramic mug that has a market value of $15. The employee may accept the map or the mug, but not both, because the aggregate value of these two tangible items exceeds $20.

    Example 3 to paragraph (a):

    On four occasions during the calendar year, an employee of the Defense Logistics Agency (DLA) was given gifts worth $10 each by four employees of a corporation that is a DLA contractor. For purposes of applying the yearly $50 limitation on gifts of $20 or less from any one person, the four gifts must be aggregated because a person is defined at § 2635.102(k) to mean not only the corporate entity, but its officers and employees as well. However, for purposes of applying the $50 aggregate limitation, the employee would not have to include the value of a birthday present received from his cousin, who is employed by the same corporation, if he can accept the birthday present under the exception at § 2635.204(b) for gifts based on a personal relationship.

    Example 4 to paragraph (a):

    Under the authority of 31 U.S.C. 1353 for agencies to accept payments from non-Federal sources in connection with attendance at certain meetings or similar functions, the Environmental Protection Agency (EPA) has accepted an association's gift of travel expenses and conference fees for an employee to attend a conference on the long-term effect of radon exposure. While at the conference, the employee may accept a gift of $20 or less from the association or from another person attending the conference even though it was not approved in advance by the EPA. Although 31 U.S.C. 1353 is the authority under which the EPA accepted the gift to the agency of travel expenses and conference fees, a gift of $20 or less accepted under § 2635.204(a) is a gift to the employee rather than to her employing agency.

    Example 5 to paragraph (a):

    During off-duty time, an employee of the Department of Defense (DoD) attends a trade show involving companies that are DoD contractors. He is offered software worth $15 at X Company's booth, a calendar worth $12 at Y Company's booth, and a deli lunch worth $8 from Z Company. The employee may accept all three of these items because they do not exceed $20 per source, even though they total more than $20 at this single occasion.

    Example 6 to paragraph (a):

    An employee of the Department of Defense (DoD) is being promoted to a higher level position in another DoD office. Six individuals, each employed by a different defense contractor, who have worked with the DoD employee over the years, decide to act in concert to pool their resources to buy her a nicer gift than each could buy her separately. Each defense contractor employee contributes $20 to buy a desk clock for the DoD employee that has a market value of $120. Although each of the contributions does not exceed the $20 limit, the employee may not accept the $120 gift because it is a single gift that has a market value in excess of $20.

    Example 7 to paragraph (a):

    During a holiday party, an employee of the Department of State is given a $15 store gift card to a national coffee chain by an agency contractor. The employee may accept the card as the market value is less than $20. The employee could not, however, accept a gift card that is issued by a credit card company or other financial institution, because such a card is equivalent to a gift of cash.

    (b) Gifts based on a personal relationship. An employee may accept a gift given by an individual under circumstances which make it clear that the gift is motivated by a family relationship or personal friendship rather than the position of the employee. Relevant factors in making such a determination include the history and nature of the relationship and whether the family member or friend personally pays for the gift.

    Example 1 to paragraph (b):

    An employee of the Federal Deposit Insurance Corporation (FDIC) has been dating an accountant employed by a member bank. As part of its “Work-Life Balance” program, the bank has given each employee in the accountant's division two tickets to a professional basketball game and has urged each to invite a family member or friend to share the evening of entertainment. Under the circumstances, the FDIC employee may accept the invitation to attend the game. Even though the tickets were initially purchased by the member bank, they were given without reservation to the accountant to use as she wished, and her invitation to the employee was motivated by their personal friendship.

    Example 2 to paragraph (b):

    Three partners in a law firm that handles corporate mergers have invited an employee of the Federal Trade Commission to join them in a golf tournament at a private club at the firm's expense. The entry fee is $500 per foursome. The employee cannot accept the gift of one-quarter of the entry fee even though he and the three partners have developed an amicable relationship as a result of the firm's dealings with the FTC. As evidenced in part by the fact that the fees are to be paid by the firm, it is not a personal friendship but a business relationship that is the motivation behind the partners' gift.

    Example 3 to paragraph (b):

    A Peace Corps employee enjoys using a social media site on the internet in his personal capacity outside of work. He has used the site to keep in touch with friends, neighbors, coworkers, professional contacts, and other individuals he has met over the years through both work and personal activities. One of these individuals works for a contractor that provides language services to the Peace Corps. The employee was acting in his official capacity when he met the individual at a meeting to discuss a matter related to the contract between their respective employers. Thereafter, the two communicated occasionally regarding contract matters. They later also granted one another access to join their social media networks through their respective social media accounts. However, they did not communicate further in their personal capacities, carry on extensive personal interactions, or meet socially outside of work. One day, the individual, whose employer continues to serve as a Peace Corps contractor, contacts the employee to offer him a pair of concert tickets worth $30 apiece. Although the employee and the individual are connected through social media, the circumstances do not demonstrate that the gift was clearly motivated by a personal relationship, rather than the position of the employee, and therefore the employee may not accept the gift pursuant to § 2635.204(b).

    (c) Discounts and similar benefits. In addition to those opportunities and benefits excluded from the definition of a gift by § 2635.203(b)(4), an employee may accept:

    (1) A reduction or waiver of the fees for membership or other fees for participation in organization activities offered to all Government employees or all uniformed military personnel by professional organizations if the only restrictions on membership relate to professional qualifications; and

    (2) Opportunities and benefits, including favorable rates, commercial discounts, and free attendance or participation not precluded by paragraph (c)(3) of this section:

    (i) Offered to members of a group or class in which membership is unrelated to Government employment;

    (ii) Offered to members of an organization, such as an employees' association or agency credit union, in which membership is related to Government employment if the same offer is broadly available to large segments of the public through organizations of similar size; or

    (iii) Offered by a person who is not a prohibited source to any group or class that is not defined in a manner that specifically discriminates among Government employees on the basis of type of official responsibility or on a basis that favors those of higher rank or rate of pay.

    Example 1 to paragraph (c)(2):

    A computer company offers a discount on the purchase of computer equipment to all public and private sector computer procurement officials who work in organizations with over 300 employees. An employee who works as the computer procurement official for a Government agency could not accept the discount to purchase the personal computer under the exception in § 2635.204(c)(2)(i). Her membership in the group to which the discount is offered is related to Government employment because her membership is based on her status as a procurement official with the Government.

    Example 2 to paragraph (c)(2):

    An employee of the Consumer Product Safety Commission (CPSC) may accept a discount of $50 on a microwave oven offered by the manufacturer to all members of the CPSC employees' association. Even though the CPSC is currently conducting studies on the safety of microwave ovens, the $50 discount is a standard offer that the manufacturer has made broadly available through a number of employee associations and similar organizations to large segments of the public.

    Example 3 to paragraph (c)(2):

    An Assistant Secretary may not accept a local country club's offer of membership to all members of Department Secretariats which includes a waiver of its $5,000 membership initiation fee. Even though the country club is not a prohibited source, the offer discriminates in favor of higher ranking officials.

    (3) An employee may not accept for personal use any benefit to which the Government is entitled as the result of an expenditure of Government funds, unless authorized by statute or regulation (e.g., 5 U.S.C. 5702, note, regarding frequent flyer miles).

    Example 1 to paragraph (c)(3):

    The administrative officer for a field office of U.S. Immigration and Customs Enforcement (ICE) has signed an order to purchase 50 boxes of photocopy paper from a supplier whose literature advertises that it will give a free briefcase to anyone who purchases 50 or more boxes. Because the paper was purchased with ICE funds, the administrative officer cannot keep the briefcase which, if claimed and received, is Government property.

    (d) Awards and honorary degrees.—(1) Awards. An employee may accept a bona fide award for meritorious public service or achievement and any item incident to the award, provided that:

    (i) The award and any item incident to the award are not from a person who has interests that may be substantially affected by the performance or nonperformance of the employee's official duties, or from an association or other organization if a majority of its members have such interests; and

    (ii) If the award or any item incident to the award is in the form of cash or an investment interest, or if the aggregate value of the award and any item incident to the award, other than free attendance to the event provided to the employee and to members of the employee's family by the sponsor of the event, exceeds $200, the agency ethics official has made a written determination that the award is made as part of an established program of recognition.

    Example 1 to paragraph (d)(1):

    Based on a written determination by an agency ethics official that the prize meets the criteria set forth in § 2635.204(d)(2), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.

    Example 2 to paragraph (d)(1):

    A defense contractor, ABC Systems, has an annual award program for the outstanding public employee of the year. The award includes a cash payment of $1,000. The award program is wholly funded to ensure its continuation on a regular basis for the next twenty years and selection of award recipients is made pursuant to written standards. An employee of the Department of the Air Force, who has duties that include overseeing contract performance by ABC Systems, is selected to receive the award. The employee may not accept the cash award because ABC Systems has interests that may be substantially affected by the performance or nonperformance of the employee's official duties.

    Example 3 to paragraph (d)(1):

    An ambassador selected by a nonprofit organization as a recipient of its annual award for distinguished service in the interest of world peace may, together with his wife and children, attend the awards ceremony dinner and accept a crystal bowl worth $200 presented during the ceremony. However, where the organization has also offered airline tickets for the ambassador and his family to travel to the city where the awards ceremony is to be held, the aggregate value of the tickets and the crystal bowl exceeds $200, and he may accept only upon a written determination by the agency ethics official that the award is made as part of an established program of recognition.

    (2) Established program of recognition. An award and an item incident to the award are made pursuant to an established program of recognition if:

    (i) Awards have been made on a regular basis or, if the program is new, there is a reasonable basis for concluding that awards will be made on a regular basis based on funding or funding commitments; and

    (ii) Selection of award recipients is made pursuant to written standards.

    (3) Honorary degrees. An employee may accept an honorary degree from an institution of higher education, as defined at 20 U.S.C. 1001, or from a similar foreign institution of higher education, based on a written determination by an agency ethics official that the timing of the award of the degree would not cause a reasonable person to question the employee's impartiality in a matter affecting the institution.

    Note to paragraph (d)(3):

    When the honorary degree is offered by a foreign institution of higher education, the agency may need to make a separate determination as to whether the institution of higher education is a foreign government for purposes of the Emoluments Clause of the U.S. Constitution (U.S. Const., art. I, § 9, cl. 8) which forbids employees from accepting emoluments, presents, offices, or titles from foreign governments, without the consent of Congress. The Foreign Gifts and Decorations Act, 5 U.S.C. 7342, however, may permit the acceptance of honorary degrees in some circumstances.

    Example 1 to paragraph (d)(3):

    A well-known university located in the United States wishes to give an honorary degree to the Secretary of Labor. The Secretary may accept the honorary degree only if an agency ethics official determines in writing that the timing of the award of the degree would not cause a reasonable person to question the Secretary's impartiality in a matter affecting the university.

    (4) Presentation events. An employee who may accept an award or honorary degree pursuant to paragraphs (d)(1) or (3) of this section may also accept free attendance to the event provided to the employee and to members of the employee's family by the sponsor of an event. In addition, the employee may also accept unsolicited offers of travel to and from the event provided to the employee and to members of the employee's family by the sponsor of the event. Travel expenses accepted under this paragraph must be added to the value of the award for purposes of determining whether the aggregate value of the award exceeds $200.

    (e) Gifts based on outside business or employment relationships. An employee may accept meals, lodgings, transportation and other benefits:

    (1) Resulting from the business or employment activities of an employee's spouse when it is clear that such benefits have not been offered or enhanced because of the employee's official position;

    Example 1 to paragraph (e)(1):

    A Department of Agriculture employee whose husband is a computer programmer employed by a Department of Agriculture contractor may attend the company's annual retreat for all of its employees and their families held at a resort facility. However, under § 2635.502, the employee may be disqualified from performing official duties affecting her husband's employer.

    Example 2 to paragraph (e)(1):

    Where the spouses of other clerical personnel have not been invited, an employee of the Defense Contract Audit Agency whose wife is a clerical worker at a defense contractor may not attend the contractor's annual retreat in Hawaii for corporate officers and members of the board of directors, even though his wife received a special invitation for herself and her spouse.

    (2) Resulting from the employee's outside business or employment activities when it is clear that such benefits are based on the outside business or employment activities and have not been offered or enhanced because of the employee's official status;

    Example 1 to paragraph (e)(2):

    The members of an Army Corps of Engineers environmental advisory committee that meets six times per year are special Government employees. A member who has a consulting business may accept an invitation to a $50 dinner from her corporate client, an Army construction contractor, unless, for example, the invitation was extended in order to discuss the activities of the advisory committee.

    (3) Customarily provided by a prospective employer in connection with bona fide employment discussions. If the prospective employer has interests that could be affected by performance or nonperformance of the employee's duties, acceptance is permitted only if the employee first has complied with the disqualification requirements of subpart F of this part applicable when seeking employment; or

    Example 1 to paragraph (e)(3):

    An employee of the Federal Communications Commission with responsibility for drafting regulations affecting all cable television companies wishes to apply for a job opening with a cable television holding company. Once she has properly disqualified herself from further work on the regulations as required by subpart F of this part, she may enter into employment discussions with the company and may accept the company's offer to pay for her airfare, hotel, and meals in connection with an interview trip.

    (4) Provided by a former employer to attend a reception or similar event when other former employees have been invited to attend, the invitation and benefits are based on the former employment relationship, and it is clear that such benefits have not been offered or enhanced because of the employee's official position.

    Example 1 to paragraph (e)(4):

    An employee of the Department of the Army is invited by her former employer, an Army contractor, to attend its annual holiday dinner party. The former employer traditionally invites both its current and former employees to the holiday dinner regardless of their current employment activities. Under these circumstances, the employee may attend the dinner because the dinner invitation is a result of the employee's former outside employment activities, other former employees have been asked to attend, and the gift is not offered because of the employee's official position.

    (5) For purposes of paragraphs (e)(1) through (4) of this section, “employment” means any form of non-Federal employment or business relationship involving the provision of personal services.

    (f) Gifts in connection with political activities permitted by the Hatch Act Reform Amendments. An employee who, in accordance with the Hatch Act Reform Amendments of 1993, at 5 U.S.C. 7323, may take an active part in political management or in political campaigns, may accept meals, lodgings, transportation, and other benefits, including free attendance at events, for the employee and an accompanying spouse or other guests, when provided, in connection with such active participation, by a political organization described in 26 U.S.C. 527(e). Any other employee, such as a security officer, whose official duties require him or her to accompany an employee to a political event, may accept meals, free attendance, and entertainment provided at the event by such an organization.

    Example 1 to paragraph (f):

    The Secretary of the Department of Health and Human Services may accept an airline ticket and hotel accommodations furnished by the campaign committee of a candidate for the United States Senate in order to give a speech in support of the candidate.

    (g) Gifts of free attendance at widely attended gatherings. (1) When authorized in writing by the agency designee pursuant to paragraph (g)(3) of this section, an employee may accept an unsolicited gift of free attendance at all or appropriate parts of a widely attended gathering. For an employee who is subject to a leave system, attendance at the event will be on the employee's own time or, if authorized by the employee's agency, on excused absence pursuant to applicable guidelines for granting such absence, or otherwise without charge to the employee's leave account.

    (2) Widely attended gatherings. A gathering is widely attended if it is expected that a large number of persons will attend, that persons with a diversity of views or interests will be present, for example, if it is open to members from throughout the interested industry or profession or if those in attendance represent a range of persons interested in a given matter, and that there will be an opportunity to exchange ideas and views among invited persons.

    (3) Written authorization by the agency designee. The agency designee may authorize an employee or employees to accept a gift of free attendance at all or appropriate parts of a widely attended gathering only if the agency designee issues a written determination after finding that:

    (i) The event is a widely attended gathering, as set forth in paragraph (g)(2) of this section;

    (ii) The employee's attendance at the event is in the agency's interest because it will further agency programs and operations;

    (iii) The agency's interest in the employee's attendance outweighs the concern that the employee may be, or may appear to be, improperly influenced in the performance of official duties; and

    (iv) If a person other than the sponsor of the event invites or designates the employee as the recipient of the gift of free attendance and bears the cost of that gift, the event is expected to be attended by more than 100 persons and the value of the gift of free attendance does not exceed $375.

    (4) Determination of agency interest. In determining whether the agency's interest in the employee's attendance outweighs the concern that the employee may be, or may appear to be, improperly influenced in the performance of official duties, the agency designee may consider relevant factors including:

    (i) The importance of the event to the agency;

    (ii) The nature and sensitivity of any pending matter affecting the interests of the person who extended the invitation and the significance of the employee's role in any such matter;

    (iii) The purpose of the event;

    (iv) The identity of other expected participants;

    (v) Whether acceptance would reasonably create the appearance that the donor is receiving preferential treatment;

    (vi) Whether the Government is also providing persons with views or interests that differ from those of the donor with similar access to the Government; and

    (vii) The market value of the gift of free attendance.

    (5) Cost provided by person other than the sponsor of the event. The cost of the employee's attendance will be considered to be provided by a person other than the sponsor of the event where such person designates the employee to be invited and bears the cost of the employee's attendance through a contribution or other payment intended to facilitate the employee's attendance. Payment of dues or a similar assessment to a sponsoring organization does not constitute a payment intended to facilitate a particular employee's attendance.

    (6) Accompanying spouse or other guest. When others in attendance will generally be accompanied by a spouse or other guest, and where the invitation is from the same person who has invited the employee, the agency designee may authorize an employee to accept an unsolicited invitation of free attendance to an accompanying spouse or one other accompanying guest to participate in all or a portion of the event at which the employee's free attendance is permitted under paragraph (g)(1) this section. The authorization required by this paragraph must be provided in writing.

    Example 1 to paragraph (g):

    An aerospace industry association that is a prohibited source sponsors an industry-wide, two-day seminar for which it charges a fee of $800 and anticipates attendance of approximately 400. An Air Force contractor pays $4,000 to the association so that the association can extend free invitations to five Air Force officials designated by the contractor. The Air Force officials may not accept the gifts of free attendance because (a) the contractor, rather than the association, provided the cost of their attendance; (b) the contractor designated the specific employees to receive the gift of free attendance; and (c) the value of the gift exceeds $375 per employee.

    Example 2 to paragraph (g):

    An aerospace industry association that is a prohibited source sponsors an industry-wide, two-day seminar for which it charges a fee of $25 and anticipates attendance of approximately 50. An Air Force contractor pays $125 to the association so that the association can extend free invitations to five Air Force officials designated by the contractor. The Air Force officials may not accept the gifts of free attendance because (a) the contractor, rather than the association, provided the cost of their attendance; (b) the contractor designated the specific employees to receive the gift of free attendance; and (c) the event was not expected to be attended by more than 100 persons.

    Example 3 to paragraph (g):

    An aerospace industry association that is a prohibited source sponsors an industry-wide, two-day seminar for which it charges a fee of $800 and anticipates attendance of approximately 400. An Air Force contractor pays $4,000 in order that the association might invite any five Federal employees. An Air Force official to whom the sponsoring association, rather than the contractor, extended one of the five invitations could attend if the employee's participation were determined to be in the interest of the agency and he received a written authorization.

    Example 4 to paragraph (g):

    An employee of the Department of Transportation is invited by a news organization to an annual press dinner sponsored by an association of press organizations. Tickets for the event cost $375 per person and attendance is limited to 400 representatives of press organizations and their guests. If the employee's attendance is determined to be in the interest of the agency, she may accept the invitation from the news organization because more than 100 persons will attend and the cost of the ticket does not exceed $375. However, if the invitation were extended to the employee and an accompanying guest, the employee's guest could not be authorized to attend for free because the market value of the gift of free attendance would exceed $375.

    Example 5 to paragraph (g):

    An employee of the Department of Energy (DOE) and his spouse have been invited by a major utility executive to a small dinner party. A few other officials of the utility and their spouses or other guests are also invited, as is a representative of a consumer group concerned with utility rates and her spouse. The DOE official believes the dinner party will provide him an opportunity to socialize with and get to know those in attendance. The employee may not accept the free invitation under this exception, even if his attendance could be determined to be in the interest of the agency. The small dinner party is not a widely attended gathering. Nor could the employee be authorized to accept even if the event were instead a corporate banquet to which forty company officials and their spouses or other guests were invited. In this second case, notwithstanding the larger number of persons expected (as opposed to the small dinner party just noted) and despite the presence of the consumer group representative and her husband who are not officials of the utility, those in attendance would still not represent a diversity of views or interests. Thus, the company banquet would not qualify as a widely attended gathering under those circumstances either.

    Example 6 to paragraph (g):

    An Assistant U.S. Attorney is invited to attend a luncheon meeting of a local bar association to hear a distinguished judge lecture on cross-examining expert witnesses. Although members of the bar association are assessed a $15 fee for the meeting, the Assistant U.S. Attorney may accept the bar association's offer to attend for free, even without a determination of agency interest. The gift can be accepted under the $20 gift exception at § 2635.204(a).

    Example 7 to paragraph (g):

    An employee of the Department of the Interior authorized to speak on the first day of a four-day conference on endangered species may accept the sponsor's waiver of the conference fee for the first day of the conference under § 2635.203(b)(8). If the conference is widely attended, the employee may be authorized to accept the sponsor's offer to waive the attendance fee for the remainder of the conference if the agency designee has made a written determination that attendance is in the agency's interest.

    Example 8 to paragraph (g):

    A military officer has been approved to attend a widely attended gathering, pursuant to paragraph (g) of this section, that will be held in the same city as the officer's duty station. The defense contractor sponsoring the event has offered to transport the officer in a limousine to the event. The officer may not accept the offer of transportation because the definition of “free attendance” set forth in § 2635.203(g) excludes travel, and the market value of the transportation would exceed $20.

    (h) Social invitations. An employee may accept food, refreshments, and entertainment, not including travel or lodgings, for the employee and an accompanying spouse or other guests, at a social event attended by several persons if:

    (1) The invitation is unsolicited and is from a person who is not a prohibited source;

    (2) No fee is charged to any person in attendance; and

    (3) If either the sponsor of the event or the person extending the invitation to the employee is not an individual, the agency designee makes a written determination after finding that the employee's attendance would not cause a reasonable person to question the employee's integrity. See § 2635.201(b).

    Example 1 to paragraph (h):

    An employee of the White House Press Office has been invited to a social dinner for current and former White House Press Officers at the home of an individual who is not a prohibited source. The employee may attend even if she is being invited because of her official position.

    (i) Meals, refreshments, and entertainment in foreign areas. An employee assigned to duty in, or on official travel to, a foreign area as defined in 41 CFR 300-3.1 may accept unsolicited food, refreshments, or entertainment in the course of a breakfast, luncheon, dinner, or other meeting or event provided:

    (1) The market value in the foreign area of the food, refreshments or entertainment provided at the meeting or event, as converted to U.S. dollars, does not exceed the per diem rate for the foreign area specified in the U.S. Department of State's Maximum Per Diem Allowances for Foreign Areas, Per Diem Supplement Section 925 to the Standardized Regulations (GC-FA) available on the Internet at www.state.gov;

    (2) There is participation in the meeting or event by non-U.S. citizens or by representatives of foreign governments or other foreign entities;

    (3) Attendance at the meeting or event is part of the employee's official duties to obtain information, disseminate information, promote the export of U.S. goods and services, represent the United States, or otherwise further programs or operations of the agency or the U.S. mission in the foreign area; and

    (4) The gift of meals, refreshments, or entertainment is from a person other than a foreign government as defined in 5 U.S.C. 7342(a)(2).

    Example 1 to paragraph (i):

    A number of local business owners in a developing country are eager for a U.S. company to locate a manufacturing facility in their province. An official of the Overseas Private Investment Corporation may accompany the visiting vice president of the U.S. company to a dinner meeting hosted by the business owners at a province restaurant where the market value of the food and refreshments does not exceed the per diem rate for that country.

    (j) Gifts to the President or Vice President. Because of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or the Vice President may accept any gift on his or her own behalf or on behalf of any family member, provided that such acceptance does not violate § 2635.205(a) or (b), 18 U.S.C. 201(b) or 201(c)(3), or the Constitution of the United States.

    (k) Gifts authorized by supplemental agency regulation. An employee may accept any gift when acceptance of the gift is specifically authorized by a supplemental agency regulation issued with the concurrence of the Office of Government Ethics, pursuant to 5 CFR 2635.105.

    (l) Gifts accepted under specific statutory authority. The prohibitions on acceptance of gifts from outside sources contained in this subpart do not apply to any item which a statute specifically authorizes an employee to accept. Gifts which may be accepted by an employee under the authority of specific statutes include, but are not limited to:

    (1) Free attendance, course or meeting materials, transportation, lodgings, food and refreshments or reimbursements therefor incident to training or meetings when accepted by the employee under the authority of 5 U.S.C. 4111 from an organization with tax-exempt status under 26 U.S.C. 501(c)(3) or from a person to whom the prohibitions in 18 U.S.C. 209 do not apply. The employee's acceptance must be approved by the agency in accordance with part 410 of this title; or

    (2) Gifts from a foreign government or international or multinational organization, or its representative, when accepted by the employee under the authority of the Foreign Gifts and Decorations Act, 5 U.S.C. 7342. As a condition of acceptance, an employee must comply with requirements imposed by the agency's regulations or procedures implementing that Act.

    (m) Gifts of informational materials. (1) An employee may accept unsolicited gifts of informational materials when:

    (i) The informational materials are primarily provided for educational or instructive purposes, rather than entertainment; and

    (ii)(A) The aggregate market value of the informational materials is $100 or less; or

    (B) If the aggregate market value exceeds $100, an agency designee makes a written determination that acceptance would not be inconsistent with the standard set forth in § 2635.201(b).

    (2) Informational materials. Informational materials are writings, recordings, documents, records, or other items intended primarily to communicate information, not including images intended primarily for display or decoration, provided that the information relates in whole or in part to the following categories:

    (i) The employee's official duties or position, profession, or field of study;

    (ii) A general subject matter area, industry, or economic sector affected by or involved in the programs and operations of the agency; or

    (iii) Another topic of interest to the agency or its mission.

    Example 1 to paragraph (m):

    An analyst at the Agricultural Research Service receives an edition of an agricultural research journal in the mail from a consortium of private farming operations concerned with soil toxicity. The journal edition has a market value of $75. The analyst may accept the gift.

    Example 2 to paragraph (m):

    An inspector at the Mine Safety and Health Administration receives a popular novel with a market value of $25 from a mine operator. Because the novel is primarily for entertainment purposes, the inspector may not accept the gift.

    § 2635.205 Limitations on use of exceptions.

    Notwithstanding any exception provided in this subpart, other than § 2635.204(j), an employee may not:

    (a) Accept a gift in return for being influenced in the performance of an official act;

    (b) Use, or permit the use of, the employee's Government position, or any authority associated with public office, to solicit or coerce the offering of a gift;

    (c) Accept gifts from the same or different sources on a basis so frequent that a reasonable person would be led to believe the employee is using the employee's public office for private gain;

    Example 1 to paragraph (c):

    A purchasing agent for a Department of Veterans Affairs medical center routinely deals with representatives of pharmaceutical manufacturers who provide information about new company products. Because of his crowded calendar, the purchasing agent has offered to meet with manufacturer representatives during his lunch hours Tuesdays through Thursdays, and the representatives routinely arrive at the employee's office bringing a sandwich and a soft drink for the employee. Even though the market value of each of the lunches is less than $6 and the aggregate value from any one manufacturer does not exceed the $50 aggregate limitation in § 2635.204(a) on gifts of $20 or less, the practice of accepting even these modest gifts on a recurring basis is improper.

    (d) Accept a gift in violation of any statute. Relevant statutes applicable to all employees include, but are not limited to:

    (1) 18 U.S.C. 201(b), which prohibits a public official from, directly or indirectly, corruptly demanding, seeking, receiving, accepting, or agreeing to receive or accept anything of value personally or for any other person or entity in return for being influenced in the performance of an official act; being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or for being induced to do or omit to do any action in violation of his or her official duty. As used in 18 U.S.C. 201(b), the term “public official” is broadly construed and includes regular and special Government employees as well as all other Government officials; and

    (2) 18 U.S.C. 209, which prohibits an employee, other than a special Government employee, from receiving any salary or any contribution to or supplementation of salary from any source other than the United States as compensation for services as a Government employee. The statute contains several specific exceptions to this general prohibition, including an exception for contributions made from the treasury of a State, county, or municipality;

    (e) Accept a gift in violation of any Executive Order; or

    (f) Accept any gift when acceptance of the gift is specifically prohibited by a supplemental agency regulation issued with the concurrence of the Office of Government Ethics, pursuant to 5 CFR 2635.105.

    § 2635.206 Proper disposition of prohibited gifts.

    (a) Unless a gift is accepted by an agency acting under specific statutory authority, an employee who has received a gift that cannot be accepted under this subpart must dispose of the gift in accordance with the procedures set forth in this section. The employee must promptly complete the authorized disposition of the gift. The obligation to dispose of a gift that cannot be accepted under this subpart is independent of an agency's decision regarding corrective or disciplinary action under § 2635.106.

    (1) Gifts of tangible items. The employee must promptly return any tangible item to the donor, or pay the donor its market value, or, in the case that the tangible item has a market value not in excess of $100, the employee may destroy the item. An employee who cannot ascertain the actual market value of an item may estimate its market value by reference to the retail cost of similar items of like quality. See § 2635.203(c).

    Example 1 to paragraph (a)(1):

    A Department of Commerce employee received a $25 T-shirt from a prohibited source after providing training at a conference. Because the gift would not be permissible under an exception to this subpart, the employee must either return or destroy the T-shirt or promptly reimburse the donor $25. Destruction may be carried out by physical destruction or by permanently discarding the T-shirt by placing it in the trash.

    Example 2 to paragraph (a)(1):

    To avoid public embarrassment to the seminar sponsor, an employee of the National Park Service did not decline a barometer worth $200 given at the conclusion of his speech on Federal lands policy. To comply with this section, the employee must either promptly return the barometer or pay the donor the market value of the gift. Alternatively, the National Park Service may choose to accept the gift if permitted under specific statutory gift acceptance authority. The employee may not destroy this gift, as the market value is in excess of $100.

    (2) Gifts of perishable items. When it is not practical to return a tangible item in accordance with paragraph (a)(1) of this section because the item is perishable, the employee may, at the discretion of the employee's supervisor or the agency designee, give the item to an appropriate charity, share the item within the recipient's office, or destroy the item.

    Example 1 to paragraph (a)(2):

    With approval by the recipient's supervisor, a floral arrangement sent by a disability claimant to a helpful employee of the Social Security Administration may be placed in the office's reception area.

    (3) Gifts of intangibles. The employee must promptly reimburse the donor the market value for any entertainment, favor, service, benefit or other intangible. Subsequent reciprocation by the employee does not constitute reimbursement.

    Example 1 to paragraph (a)(3):

    A Department of Defense employee wishes to attend a charitable event to which he has been offered a $300 ticket by a prohibited source. Although his attendance is not in the interest of the agency under § 2635.204(g), he may attend if he reimburses the donor the $300 face value of the ticket.

    (4) Gifts from foreign governments or international organizations. The employee must dispose of gifts from foreign governments or international organizations in accordance with 41 CFR part 102-42.

    (b) An agency may authorize disposition or return of gifts at Government expense. Employees may use penalty mail to forward reimbursements required or permitted by this section.

    (c) An employee who, on his or her own initiative, promptly complies with the requirements of this section will not be deemed to have improperly accepted an unsolicited gift. An employee who promptly consults his or her agency ethics official to determine whether acceptance of an unsolicited gift is proper and who, upon the advice of the ethics official, returns the gift or otherwise disposes of the gift in accordance with this section, will be considered to have complied with the requirements of this section on the employee's own initiative.

    (d) Employees are encouraged to record any actions they have taken to properly dispose of gifts that cannot be accepted under this subpart, such as by sending an electronic mail message to the appropriate agency ethics official or the employee's supervisor.

    [FR Doc. 2015-29208 Filed 11-25-15; 8:45 am] BILLING CODE 6345-02-P
    DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 5 [Docket No. DHS 2015-0079] Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/United States Coast Guard-029 Notice of Arrival and Departure System of Records AGENCY:

    Privacy Office, Department of Homeland Security.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Homeland Security is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the “Department of Homeland Security/United States Coast Guard-029 Notice of Arrival and Departure System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

    DATES:

    Comments must be received on or before December 28, 2015.

    ADDRESSES:

    You may submit comments, identified by docket number DHS 2015-0079, by one of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-343-4010.

    Mail: Karen L. Neuman, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

    Instructions: All submissions received must include the agency name and docket number for this document. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For general questions, please contact: Marilyn Scott-Perez, (202) 475-3515, Privacy Officer, Commandant (CG-61), United States Coast Guard, 2703 Martin Luther King Jr. Ave. SE., Mail Stop 7710, Washington, DC 20593. For privacy questions, please contact: Karen L. Neuman, (202) 343-1717, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528-0655.

    SUPPLEMENTARY INFORMATION:

    I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS), United States Coast Guard (USCG) is giving notice of a proposed rulemaking that DHS/USCG intends to update its regulations to exempt portions of a system of records from certain provisions of the Privacy Act. Specifically, DHS/USCG proposes to exempt portions of the “DHS/USCG-029 Notice of Arrival and Departure System of Records” from one of more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. DHS/USCG is issuing an updated notice and proposed rule for proposed exemptions for these new categories of records pursuant to 5 U.S.C. 552a(j)(2) and 5 U.S.C. 552 a(k)(2). Furthermore, to the extent certain categories of records are ingested from other systems, the exemptions applicable to the source systems will remain in effect.

    Concurrent with this document, DHS/USCG is updating and reissuing a current DHS system of records titled, “DHS/USCG-029 Notice of Arrival and Departure (NOAD) System of Records.” The collection and maintenance of this information assists DHS/USCG in meeting its statutory obligation to assign priorities while conducting maritime safety and security missions in accordance with international and U.S. regulations. In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the Department of Homeland Security (DHS) United States Coast Guard (USCG) proposes to update and reissue a current DHS system of records titled, “DHS/USCG-029 Notice of Arrival and Departure (NOAD) System of Records.” The collection and maintenance of this information assists DHS/USCG in meeting its statutory obligation to assign priorities while conducting maritime safety and security missions in accordance with international and U.S. regulations. DHS/USCG is updating this system of records to (1) clarify the authority for the maintenance of the system to align with the recently published Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System Final Rule (January 30, 2015, 80 FR 5281); (2) update the security classification; (3) change the system location to clarify that NOAD records may be stored on information technology (IT) systems connected to classified networks; (4) update the purpose(s) to align with the updated authorities for collection, pursuant to the newly issued Vessel Requirements for Notices of Arrival and Departure, and Automatic Identification System Final Rule and to allow for replication of data for analysis and vetting as part of the DHS Data Framework; (5) update categories of individuals and categories of records to clarify that individuals considered “non-crew” for the purposes of this system may include passenger records, as well as organizations; (6) remove routine use (M) because it is not compatible with the original purpose for collection of the records (7) update the retention period and disposal standards to reflect that records will follow the same retention schedule despite their storage in a classified environment; (8) modify the notification procedures to confirm that regardless of record storage on a classified environment, DHS/USCG will review all replicated records; and (9) update the system manager and mailing address to reflect the new mail stop.

    II. Privacy Act

    The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which federal government agencies collect, maintain, use, and disseminate personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy, DHS extends administrative Privacy Act protections to all individuals where systems of records maintain information on U.S. citizens, lawful permanent residents, and visitors.

    The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.

    DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCG-029 Notice of Arrival and Departure System of Records. Some information in DHS/USCG-029 Notice of Arrival and Departure System of Records may be used to support official DHS national security or law enforcement activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required protect information relating to DHS law enforcement investigations from disclosure to subjects of investigations and others who could interfere with investigatory and law enforcement activities. The exemptions are required to preclude subjects of these activities from frustrating the investigative process; to avoid disclosure of investigative techniques; protect the identities and physical safety of confidential informants and of law enforcement personnel; ensure DHS's and other federal agencies' ability to obtain information from third parties and other sources; protect the privacy of third parties; and safeguard sensitive information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

    In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.

    DHS will not assert any exemption with respect to information maintained in the system that is collected from a person at the time of arrival or departure, if that person, or his or her agent, seeks access or amendment of such information. The DHS/USCG-029 Notice of Arrival and Departure System of Records Notice is also published in this issue of the Federal Register.

    List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:

    PART 5—DISCLOSURE OF RECORDS AND INFORMATION 1. Revise the authority citation for part 5 to read as follows: Authority:

    6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.

    2. In appendix C to part 5, revise paragraph 34 to read as follows: Appendix C to Part 5—DHS Systems of Records Exempt From the Privacy Act

    34. The DHS/USCG-029 Notice of Arrival and Departure System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/USCG-029 Notice of Arrival and Departure System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under. The DHS/USCG-029 Notice of Arrival and Departure System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies.

    The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(j)(2), exempted this system from the following provisions of the Privacy Act: Sections (c)(3), (e)(8), and (g) of the Privacy Act of 1974, as amended, as is necessary and appropriate to protect this information. Further, DHS has exempted section (c)(3) of the Privacy Act of 1974, as amended, pursuant to 5 U.S.C. 552a(k)(2) as is necessary and appropriate to protect this information.

    Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:

    (a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.

    (b) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.

    (c) From subsection (g)(1) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.

    Karen L. Neuman, Chief Privacy Officer, Department of Homeland Security.
    [FR Doc. 2015-30304 Filed 11-25-15; 8:45 a.m.] BILLING CODE 9110-04-P
    DEPARTMENT OF ENERGY 10 CFR Parts 429 and 430 [Docket No. EERE-2014- BT-TP-0014] RIN 1904-AD22 Energy Conservation Program: Test Procedures for Portable Air Conditioners AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Supplemental notice of proposed rulemaking.

    SUMMARY:

    The U.S. Department of Energy (DOE) proposes to modify the test procedure proposals for portable air conditioners (ACs), initially presented in a notice of proposed rulemaking (NOPR) published on February 25, 2015. Upon further analysis and review of the public comments received in response to the February 2015 NOPR, DOE proposes in this supplemental notice of proposed rulemaking (SNOPR) the following additions and clarifications to its proposed portable AC test procedure: (1) Minor revisions to the indoor and outdoor cooling mode test conditions; (2) an additional test condition for cooling mode testing; (3) updated infiltration air and capacity calculations to account for the second cooling mode test condition; (4) removal of the measurement of case heat transfer; (5) a clarification of test unit placement within the test chamber; (6) removal of the heating mode test procedure; (7) a revision to the CEER calculation to reflect the two cooling mode test conditions and removal of heating mode testing; and (8) additional technical corrections and clarifications. These proposals are to be combined with the initial NOPR proposals and would be codified in a newly created appendix CC to title 10 of the Code of Federal Regulations (CFR), part 430, subpart B. The test procedures would be used to determine capacities and energy efficiency metrics that would be the basis for any future energy conservation standards for portable ACs.

    DATES:

    DOE will accept comments, data, and information regarding this SNOPR, submitted no later than December 28, 2015. See section V, “Public Participation,” for details.

    ADDRESSES:

    Any comments submitted must identify the SNOPR for Test Procedures for Portable Air Conditioners, and provide docket number EERE-2014-BT-TP-0014 and/or regulatory information number (RIN) number 1904-AD22. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected]. Include the docket number and/or RIN in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Room 6094, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD. It is not necessary to include printed copies.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section V of this document (Public Participation).

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at www.regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

    A link to the docket Web page can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2014-BT-TP-0014 . This Web page will contain a link to the docket for this notice on the www.regulations.gov site. The www.regulations.gov Web page will contain simple instructions on how to access all documents, including public comments, in the docket. See Section V, “Public Participation,” for information on how to submit comments through www.regulations.gov.

    For further information on how to submit a comment, or review other public comments and the docket, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Mr. Bryan Berringer, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technology Office, EE-5B, 1000 Independence Ave. SW., Washington, DC 20585-0121. Telephone: 202-586-0371. Email: [email protected]. Ms. Sarah Butler, U.S. Department of Energy, Office of the General Counsel, Mailstop GC-33, 1000 Independence Ave. SW., Washington, DC 20585-0121. Telephone: 202-586-1777; Email: [email protected]. SUPPLEMENTARY INFORMATION:

    DOE intends to incorporate by reference the following industry standard into 10 CFR parts 429 and 430: AHAM PAC-1-2015, Portable Air Conditioners. DOE also intends to incorporate by reference the following industry standard into 10 CFR part 430: ANSI/ASHRAE Standard 37-2009, Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment.

    Copies of AHAM PAC-1-2015 can be obtained from the Association of Home Appliance Manufacturers 1111 19th Street NW., Suite 402, Washington, DC 20036, 202-872-5955, or by going to http://www.aham.org/ht/d/ProductDetails/sku/PAC12009/from/714/pid/.

    Copies of ANSI/ASHRAE Standard 37-2009 can be obtained from the American National Standards Institute 25 W. 43rd Street, 4th Floor, New York, NY 10036, 212-642-4980, or by going to http://webstore.ansi.org/RecordDetail.aspx?sku=ANSI%2FASHRAE+Standard+37-2009.

    See section IV.B. for a description of these standards.

    Table of Contents I. Authority and Background A. General Test Procedure Rulemaking Process B. Test Procedure for Portable Air Conditioners 1. The May 2014 NODA 2. The February 2015 NOPR II. Synopsis of the Supplemental Notice of Proposed Rulemaking III. Discussion A. Active Mode B. Cooling Mode 1. Test Chamber and Infiltration Air Conditions a. Test Chamber Conditions b. Infiltration Air Conditions c. Infiltration Air Calculations 2. Test Duration 3. Seasonally Adjusted Cooling Capacity 4. Duct Heat Transfer and Leakage a. Duct Heat Transfer Impacts b. Convection Coefficient c. Duct Surface Area Measurements 5. Case Heat Transfer 6. Test Unit Placement C. Heating Mode D. Combined Energy Efficiency Ratio 1. Annual Operating Mode Hours 2. CEER Calculation E. Compliance with other Energy Policy and Conservation Act Requirements 1. Test Burden IV. Procedural Issues and Regulatory Review A. Review Under the Regulatory Flexibility Act B. Description of Materials Incorporated by Reference V. Public Participation VI. Approval of the Office of the Secretary I. Authority and Background

    Title III of the Energy Policy and Conservation Act (EPCA), as amended (42 U.S.C. 6291, et seq.; “EPCA” or, “the Act”) sets forth various provisions designed to improve energy efficiency. Part A of title III of EPCA (42 U.S.C. 6291-6309) establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles,” which covers consumer products and certain commercial products (hereinafter referred to as “covered products”).1 EPCA authorizes DOE to establish technologically feasible, economically justified energy conservation standards for covered products or equipment that would be likely to result in significant national energy savings. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII)) In addition to specifying a list of covered consumer and industrial products, EPCA contains provisions that enable the Secretary of Energy to classify additional types of consumer products as covered products. (42 U.S.C. 6292(a)(20)) For a given product to be classified as a covered product, the Secretary must determine that:

    1 For editorial reasons, upon codification in the U.S. Code, Part B was re-designated Part A.

    (1) Classifying the product as a covered product is necessary for the purposes of EPCA; and

    (2) The average annual per-household energy use by products of each type is likely to exceed 100 kilowatt-hours (kWh) per year. (42 U.S.C. 6292(b)(1))

    To prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p) for covered products added pursuant to 42 U.S.C. 6292(b)(1), the Secretary must also determine that:

    (1) The average household energy use of the products has exceeded 150 kWh per household for a 12-month period;

    (2) The aggregate 12-month energy use of the products has exceeded 4.2 terawatt-hours (TWh);

    (3) Substantial improvement in energy efficiency is technologically feasible; and

    (4) Application of a labeling rule under 42 U.S.C. 6294 is unlikely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) that achieve the maximum energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1))

    Under EPCA, the energy conservation program consists essentially of four parts: (1) testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for: (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA, and (2) making representations about the efficiency of those products. Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA.

    A. General Test Procedure Rulemaking Process

    Under 42 U.S.C. 6293, EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides in relevant part that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results that measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In addition, if DOE determines that a test procedure should be prescribed or amended, it must publish proposed test procedures and offer the public an opportunity to present oral and written comments on them. (42 U.S.C. 6293(b)(2))

    B. Test Procedure for Portable Air Conditioners

    There are currently no DOE test procedures or energy conservation standards for portable ACs. On July 5, 2013, DOE issued a notice of proposed determination (NOPD) of coverage (hereinafter referred to as the “July 2013 NOPD”), in which DOE announced that it tentatively determined that portable ACs meet the criteria under 42 U.S.C. 6292(b)(1) to be classified as a covered product. 78 FR 40403. DOE estimated that approximately 974,000 portable AC units were shipped in North America in 2012, and projected that approximately 1.74 million units would be shipped in 2018, representing nearly 80-percent growth in 6 years.2 Id. at 40404. In addition, DOE estimated the average per-household portable AC electricity consumption for those homes with portable ACs to be approximately 650 kWh per year. Id.

    2 Transparency Media Research, “Air Conditioning Systems Market—Global Scenario, Trends, Industry Analysis, Size, Share and Forecast, 2012-2018,” January 2013.

    In response to the July 2013 NOPD, DOE received comments from interested parties on several topics regarding appropriate test procedures for portable ACs that DOE should consider if it issues a final determination classifying portable ACs as a covered product.

    1. The May 2014 NODA

    On May 9, 2014, DOE published in the Federal Register a notice of data availability (NODA) (hereinafter referred to as the “May 2014 NODA”), in which it agreed that a DOE test procedure for portable ACs would provide consistency and clarity for representations of energy use of these products. DOE evaluated available industry test procedures to determine whether such methodologies would be suitable for incorporation in a future DOE test procedure, should DOE determine to classify portable ACs as a covered product. DOE conducted testing on a range of portable ACs to determine typical cooling capacities and cooling energy efficiencies based on the existing industry test methods and other modified approaches for portable ACs. 79 FR 26639, 26640 (May 9, 2014).

    2. The February 2015 NOPR

    On February 25, 2015, DOE published in the Federal Register a notice of proposed rulemaking (NOPR) (hereinafter referred to as the “February 2015 NOPR”), in which it proposed test procedures for portable ACs that would provide a means of determining efficiency in various operating modes, including cooling mode, heating mode, off-cycle mode, standby mode, and off mode. 80 FR 10211. For cooling mode and heating mode, DOE proposed test procedures based on the then-current industry-accepted test procedure, Association of Home Appliance Manufacturers (AHAM) PAC-1-2014, “Portable Air Conditioners,” with additional provisions to account for heat transferred to the indoor conditioned space from the case, ducts, and any infiltration air from unconditioned spaces. DOE also proposed various clarifications for cooling mode and heating mode testing, including: (1) Test duct configuration; (2) instructions for condensate collection; (3) control settings for operating mode, fan speed, temperature set point, and louver oscillation; and (4) unit placement within the test chamber. For off-cycle mode, DOE proposed a test procedure that would measure portable AC energy use when the ambient dry-bulb temperature is at or below the setpoint. DOE also identified relevant low-power modes, proposed definitions for inactive mode and off mode, and proposed test procedures to determine representative energy consumption for these modes. Id.

    In the February 2015 NOPR, DOE proposed to use a combined energy efficiency ratio (CEER) metric for representing the overall energy efficiency of single-duct and dual-duct portable ACs. The CEER metric would represent energy use in all available operating modes. DOE also proposed a cooling mode-specific CEER for units that do not provide a heating function to provide a basis for comparing performance with other cooling products such as room ACs. In addition, DOE proposed separate energy efficiency ratio (EER) metrics for determining energy efficiency in cooling mode and heating mode only. 80 FR 10211, 10234-10235 (Feb. 25, 2015).

    DOE also recently initiated a separate rulemaking to consider establishing energy conservation standards for portable ACs. Any new standards would be based on the same efficiency metrics derived from the test procedure that DOE would adopt in a final rule in this rulemaking.

    II. Synopsis of the Supplemental Notice of Proposed Rulemaking

    Upon further analysis and review of the public comments received in response to the February 2015 NOPR, DOE proposes in this SNOPR the following additions and clarifications to its proposed portable AC test procedure: (1) Minor revisions to the indoor and outdoor cooling mode test conditions; (2) an additional test condition for cooling mode testing; (3) updated infiltration air and capacity calculations to account for the second cooling mode test condition; (4) removal of the measurement of case heat transfer; (5) a clarification of test unit placement within the test chamber; (6) removal of the heating mode test procedure; (7) a revision to the CEER calculation to reflect the two cooling mode test conditions and removal of heating mode testing; and (8) additional technical corrections and clarifications.

    Other than the specific amendments newly proposed in this SNOPR, DOE continues to propose the test procedure originally included in the February 2015 NOPR. For the reader's convenience, DOE has reproduced in this SNOPR the entire body of proposed regulatory text from the February 2015 NOPR, amended as appropriate according to these proposals. DOE's supporting analysis and discussion for the portions of the proposed regulatory text not affected by this SNOPR may be found in the February 2015 NOPR. 80 FR 10211 (Feb. 25, 2015).

    III. Discussion A. Active Mode

    In the February 2015 NOPR, DOE proposed to define active mode, for purposes of the portable AC test procedure, as a mode in which the portable AC is connected to a mains power source, has been activated, and is performing the main functions of cooling or heating the conditioned space, circulating air through activation of its fan or blower without activation of the refrigeration system, or defrosting the refrigerant coil. 80 FR 10211, 10216 (Feb. 25, 2015). DOE has determined that the existing statutory definition of “active mode” is sufficient for purposes of this test procedure and therefore is no longer proposing a separate definition of “active mode” for portable ACs.

    B. Cooling Mode

    In the February 2015 NOPR, DOE proposed that cooling mode is a mode in which a portable AC has activated the main cooling function according to the thermostat or temperature sensor signal, including activating the refrigeration system or the fan or blower without activation of the refrigeration system. 80 FR 10211, 10217 (Feb. 25, 2015). DOE determined that the existing industry standards used to measure portable AC cooling capacity and EER, which are based on air enthalpy methods, may not represent true portable AC performance. Additionally, DOE is aware that manufacturers may test according to different industry standards, causing confusion and variation in the reported cooling capacities and EERs for units currently on the market. DOE further concluded that varying infiltration air flow rates and heat losses would preclude a fixed translation factor that could be applied to the results of an air enthalpy measurement to account for the impact of these effects. Therefore, although DOE generally proposed a test procedure for portable ACs based on AHAM PAC-1-2014, the industry-accepted standard for testing portable ACs (which is based on an air enthalpy approach), the proposed test procedure incorporated infiltration air effects and heat losses to more accurately measure performance representative of typical operation and provide a clear and consistent basis for comparison of portable AC capacity and energy use. 80 FR 10211, 10222-10223 (Feb. 25, 2015).

    The Appliance Standards Awareness Project (ASAP), Alliance to Save Energy (ASE), American Council for an Energy-Efficient Economy (ACEEE), National Consumer Law Center (NCLC), Natural Resources Defense Council (NRDC), and Northwest Energy Efficiency Alliance (NEEA) (hereinafter the “Joint Commenters”) and the Pacific Gas and Electric Company (PG&E), Southern California Gas Company (SCGC), Southern California Edison (SCE), and San Diego Gas and Electric Company (SDG&E) (hereinafter the “California IOUs”) supported DOE's proposal to adopt AHAM PAC-1-2014 with modifications to account for the impacts of infiltration air and heat transfer from the duct(s) and case, as this would better reflect real-world performance of both single-duct and dual-duct portable ACs. (Joint Commenters, No. 19 at p. 1; California IOUs, No. 20 at p. 1) 3 The Joint Commenters further noted that in response to the NODA, they had encouraged DOE to adopt a test procedure based on the calorimeter approach. In light of the data presented in the February 2015 NOPR, the Joint Commenters now support the proposal to base a DOE portable AC test procedure on AHAM PAC-1-2014 as there is a good correlation with the calorimeter test results when the proposed adjustments that account for the impact of infiltration air and duct and case heat transfer are applied. (Joint Commenters, No. 19 at p. 2)

    3 A notation in the form “Joint Commenters, No. 19 at p. 1” identifies a written comment: (1) Made by the Appliance Standards Awareness Project, Alliance to Save Energy, American Council for an Energy-Efficient Economy, National Consumer Law Center, Natural Resources Defense Council, and Northwest Energy Efficiency Alliance (the “Joint Commenters”); (2) recorded in document number 19 that is filed in the docket of this test procedure rulemaking (Docket No. EERE-2014-BT-TP-0014) and available for review at www.regulations.gov; and (3) which appears on page 1 of document number 19.

    China WTO/TBT National Notification & Enquiry Center (China) noted that, compared to the industry-accepted and commonly used American National Standards Institute (ANSI)/American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ASHRAE) Standard 128-2001, “Method of Rating Unitary Spot Air Conditioners,” AHAM PAC-1-2014 is significantly more complex, increases the cost of testing, and would require laboratories to purchase new instrumentation and update or reconstruct their chambers. Further, China stated that DOE did not provide a comparison between AHAM PAC-1-2014 and ANSI/ASHRAE 128-2001 based on test data. Without a comparison of the results, China does not believe that DOE can conclude there is a marked difference between the two, and cannot determine that testing according to AHAM PAC-1-2014 is necessary. China requested that DOE provide comparative data between the two test procedures. (China, No. 15 at pp. 3-4)

    De' Longhi Appliances s.r.l. (De' Longhi) claimed that in the United States, most manufacturers are using the standard ANSI/ASHRAE 128-2001 to rate the performance of single-duct portable ACs. De' Longhi stated, however, that testing a single-duct portable AC according to AHAM PAC-1-2014 results in a cooling capacity about 25 percent lower than the rating obtained with ANSI/ASHRAE 128-2001. Despite this rated cooling capacity reduction, De' Longhi supports the use of AHAM PAC-1-2014 because it ensures more reliable and repeatable testing data. (De' Longhi, No. 16 at pp. 1-2)

    AHAM and De' Longhi support the use of AHAM PAC-1-2014 as the basis for a DOE test procedure for portable ACs, albeit without the addition of certain test procedure provisions that DOE has proposed. (Public Meeting Transcript, AHAM, No. 13 at p. 31; Public Meeting Transcript, De' Longhi, No. 13 at pp. 13, 33; AHAM, No. 18 at p. 2; De' Longhi, No. 16 at p. 2) 4

    4 A notation in the form “AHAM, Public Meeting Transcript, No. 13 at p. 31” identifies an oral comment that DOE received on March 18, 2015 during the NOPR public meeting, was recorded in the public meeting transcript in the docket for this test procedure rulemaking (Docket No. EERE-2014-BT-TP-0014). This particular notation refers to a comment (1) made by the Association of Home Appliance Manufacturers during the public meeting; (2) recorded in document number 13, which is the public meeting transcript that is filed in the docket of this test procedure rulemaking; and (3) which appears on page 31 of document number 13.

    DOE agrees that certain portable ACs may be currently tested according to ANSI/ASHRAE 128-2001, but believes this is largely due to California's regulations for certifying spot coolers sold in that State. As discussed in the February 2015 NOPR, DOE is not proposing testing procedures for spot coolers at this time. 80 FR 10212, 10214-15 (Feb. 25, 2015). In addition, ANSI/ASHRAE 128-2001 is an obsolete version of that test standard, and DOE expects that manufacturers conducting testing of their portable ACs for reasons other than certification in California may be using a current, industry-accepted test standard such as AHAM PAC-1-2014 or ANSI/ASHRAE 128-2011, both of which were discussed and analyzed in the May 2014 NODA and February 2015 NOPR. For these reasons, and with the general support of interested parties, DOE continues to propose a test procedure for portable ACs that is based on the current version of AHAM PAC-1. DOE notes that AHAM issued a new version of PAC-1 in 2015, with no changes in language from the 2014 version. Therefore, although DOE previously proposed to adopt a test procedure for portable ACs that is based on AHAM PAC-1-2014, DOE now proposes in this SNOPR to reference the identical updated version, AHAM PAC-1-2015, in the proposed DOE portable AC test procedure. Accordingly, DOE refers to AHAM PAC-1-2015 for the remainder of this SNOPR when discussing its current proposals.

    Additionally, this notice discusses other modifications to the test procedure proposed in the February 2015 NOPR to address commenters' concerns, improve repeatability, minimize test burden, and ensure the test procedure is representative of typical consumer usage.

    1. Test Chamber and Infiltration Air Conditions

    DOE proposed in the February 2015 NOPR to utilize the following ambient conditions presented in Table III.1 below, based on those test conditions specified in Table 3, “Standard Rating Conditions,” of AHAM PAC-1-2014. DOE also proposed to determine test configurations according to Table 2 of AHAM PAC-1-2014, with Test Configuration 3 applicable to dual-duct portable ACs and Test Configuration 5 applicable to single-duct portable ACs. 80 FR 10211, 10226 (Feb. 25, 2015). For single-duct units, the condenser inlet conditions are the same as the evaporator inlet. For dual-duct units, the condenser inlet air conditions are monitored at the interface between the condenser inlet duct and outdoor test room.

    Table III.1—Standard Rating Conditions—Cooling Mode—NOPR Proposal Test configuration Evaporator inlet air, °F (°C) Dry bulb Wet bulb Condenser inlet air, °F (°C) Dry bulb Wet bulb 3 80.6 (27) 66.2 (19) 95.0 (35) 75.2 (24) 5 80.6 (27) 66.2 (19) 80.6 (27) 66.2 (19) a. Test Chamber Conditions

    In the February 2015 NOPR, DOE noted that the AHAM PAC-1-2014 test conditions are slightly different from the AHAM PAC-1-2009 test conditions, which AHAM revised to harmonize with the temperatures specified in Canadian Standards Association (CSA) C370-2013, “Cooling Performance of Portable Air Conditioners” and ANSI/ASHRAE Standard 128-2011, “Method of Rating Portable Air Conditioners.” DOE's analysis and testing was conducted in accordance with AHAM PAC-1-2009, as the next version of the standard, AHAM PAC-1-2014, had not yet been finalized. DOE tentatively determined that the test condition differences between the 2009 and 2014 versions of AHAM PAC-1 would not substantively impact test results. Therefore, DOE proposed to use the updated test conditions from AHAM PAC-1-2014. DOE also noted in the February 2015 NOPR that these conditions are close, but not identical, to those required by the DOE room AC test procedure (80 degrees Fahrenheit (°F) dry-bulb temperature and 67 °F wet-bulb temperature on the indoor side, and 95 °F dry-bulb temperature and 75 °F wet-bulb temperature on the outdoor side, consistent with the AHAM PAC-1-2009 conditions). 80 FR 10211, 10226 (Feb. 25, 2015).

    AHAM agreed that there are no major differences between the 2009 and 2014 versions, and that the main changes were editorial in nature to harmonize with the Canadian test procedure. AHAM stated that it is important that the North American and Canadian methods are harmonized. (Public Meeting Transcript, AHAM, No. 13 at pp. 31-32)

    DENSO Products and Services Americas, Inc. (DENSO) commented that the room AC indoor test conditions in the DOE test procedure for those products correspond to about 50-percent relative humidity, whereas the AHAM PAC-1-2014 indoor test conditions are closer to 40-percent relative humidity. According to DENSO, this is a significant difference in test conditions and thus the AHAM PAC-1-2014 test conditions are not comparable to those for room ACs or other air conditioning products. DENSO also commented that the test conditions should be expressed in whole degrees instead of three-digit dry-bulb and wet-bulb temperatures in °F that are equivalent to whole degrees Celsius in other standards. (Public Meeting Transcript, DENSO, No. 13 at pp. 47-48, 69-70; DENSO, No. 14 at p. 2)

    In response to the comments received regarding the chamber test conditions, DOE examined the relative impact of the varying latent heat differential between the indoor and outdoor conditions in the February 2015 NOPR proposal and in AHAM PAC-1-2009. The latent heat differential impacts cooling capacity primarily through the effects of infiltration air. Based on the average dry air mass flowrate for the single-duct and dual-duct units in DOE's test sample, DOE estimated that the change in test conditions from the 2009 to either the 2014 or 2015 version of AHAM PAC-1 would decrease cooling capacity by increasing the heating effect due to infiltration air by an average of 755 Btu/h and 330 Btu/h for the two configurations, respectively. With an average PAC-1-2009 cooling capacity (without accounting for infiltration air, case, or duct heat effects) of 7,650 Btu/h for single-duct units and 6,800 Btu/h for dual-duct units, adjusting the test conditions from the 2009 to 2015 version of AHAM PAC-1 would decrease cooling capacity by 5-10 percent, an amount which DOE considers to be significant. Therefore, DOE no longer concludes that the test condition differences between the 2009 and 2014 (and, thus, 2015) versions of AHAM PAC-1 would not substantively impact test results.

    DOE further notes that the test conditions in AHAM PAC-1-2015, although harmonized with those in CSA C370-2013 and ANSI/ASHRAE Standard 128-2011, do not align with the test conditions in the DOE test procedures for other cooling products, particularly room ACs and central ACs. As noted earlier in this section, the AHAM PAC-1-2015 test approach is generally appropriate for portable ACs. However, DOE believes that the test conditions in AHAM PAC-1-2009, which align with the conditions used for testing other DOE covered products, are more appropriate for testing portable AC performance than those in AHAM PAC-1-2015. The temperatures specified in AHAM PAC-1-2015 were rounded to produce whole degrees Celsius, which results in a relative humidity on the indoor side (47.0 percent) that differs significantly from the relative humidity that DOE has previously determined for room ACs and central ACs is representative of a residential air-conditioned space (51.1 percent). To maintain consistency among products with similar functions, DOE proposes in this SNOPR to revise the test conditions proposed in the February 2015 NOPR to those presented in Table III.2 below, which would replace the test conditions specified in Table 3, “Standard Rating Conditions,” of AHAM PAC-1-2015. As discussed in the next section, however, these revisions do not comprise the only changes that DOE is proposing in this SNOPR to the rating conditions for portable ACs.

    Table III.2—Revised Standard Rating Conditions—Cooling Mode Test configuration Evaporator inlet air, °F (°C) Dry bulb Wet bulb Condenser inlet air, °F (°C) Dry bulb Wet bulb 3 80 (26.7) 67 (19.4) 95 (35) 75 (23.9) 5 80 (26.7) 67 (19.4) 80 (26.7) 67 (19.4) b. Infiltration Air Conditions

    In the February 2015 NOPR, DOE noted that infiltration from outside the conditioned space occurs due to the negative pressure induced as condenser air is exhausted to the outdoor space. Although this effect is most pronounced for single-duct units, which draw all of their condenser air from within the conditioned space, dual-duct units also draw a portion of their condenser air from the conditioned space. DOE proposed calculating the infiltration air flow rate as the condenser exhaust flow rate to the outdoor chamber minus any condenser intake flow rate from the outdoor chamber. DOE proposed that the infiltration air conditions be 95 °F dry-bulb temperature and 75.2 °F wet-bulb temperature, consistent with the outdoor conditions specified in AHAM PAC-1-2014. 80 FR 10211, 10224-10225 (Feb. 25, 2015).

    The Joint Commenters supported the proposal to use 95 °F dry-bulb temperature and 75 °F wet-bulb temperature outdoor air. (Public Meeting Transcript, ASAP, No. 13 at p. 44; Joint Commenters, No. 19 at p. 2) The Joint Commenters further stated that because AHAM PAC-1-2014 is conducted using these outdoor air conditions, it is important that the same conditions be used for the infiltration air to reflect the real-world performance of portable ACs under these outdoor air conditions. The Joint Commenters noted that all infiltration air is ultimately coming from the outdoors and adding heat to the home where the portable AC is installed. The Joint Commenters suspect that, in many cases, the bulk of the infiltration air will be coming directly from the outdoors due to imperfect installations, resulting in leaks through the window where the portable AC is installed. The Joint Commenters also suspect that over time, a greater portion of the infiltration air will come directly through the window where the portable AC is installed due to deterioration of the installation as the unit is repeatedly removed and re-installed. (Joint Commenters, No. 19 at p. 2)

    De' Longhi did not agree with DOE's proposed approach to address infiltration air, stating that it would improperly represent the performance of single-duct products because the proposed infiltration air conditions of 95 °F dry-bulb temperature and 75.2 °F wet-bulb temperature represent worst-case outdoor conditions which occur for a negligible period of time during the cooling season. De' Longhi noted that according to ANSI/Air-Conditioning, Heating, and Refrigeration Institute (AHRI) 210/240, “Performance Rating of Unitary Air-Conditioning and Air-Source Heat Pump Equipment”, outdoor temperatures ranging from 95 to 104 °F represent just 2.2 percent of the season while outdoor temperatures range from 65 to 80 °F during 66.1 percent of the season. De' Longhi stated that selection of an appropriate outdoor temperature for rating testing is critical for single-duct portable ACs. As a consequence, De' Longhi commented that DOE's proposed procedure overstates the impacts of infiltration air. (Public Meeting Transcript, De' Longhi, No. 13 at pp. 39-40; De' Longhi, No. 16 at p. 3)

    The National Association of Manufacturers (NAM) stated that if the test procedure includes an infiltration air adjustment, the temperature must be representative and based on data. In NAM's view, given the uniqueness of homes, the proposed infiltration air temperatures are not practical, nor are they shown to be based on available data. (NAM, No. 17 at p. 2)

    AHAM commented that portable ACs are not used just on the hottest summer days, but also during the transition periods before and after summer to cool only a certain room or rooms before central air conditioning or heating is turned on. According to AHAM, this use pattern suggests that an outdoor temperature representing the hottest days of summer is not representative of consumer use. AHAM commented that even if consumers use portable ACs only in the summer and only the outdoor air temperature is considered, a 95 °F infiltration air temperature would still be too high. (AHAM, No. 18 at p. 4)

    De' Longhi and AHAM suggested that, should DOE include a numerical adjustment for infiltration air to the results of testing with AHAM PAC-1-2014, the proper temperature for the infiltration air would be 70 °F, based on available data. They noted that 70 °F is the representative average cooling season temperature that DOE found for the United States as a whole. They also claimed that according to ANSI/AHRI 210/240-2008, an outdoor temperature of 70 °F represents 50 percent of the total cooling season hours. (Public Meeting Transcript, De' Longhi, No. 13 at p. 41; De' Longhi, No. 16 at p. 3; AHAM, No. 18 at p. 4) De' Longhi further stated that if DOE decides not to use 70 °F as the outdoor air temperature, this test condition should be no greater than 80.6 °F dry-bulb, the standard rating condition for single-duct portable ACs in AHAM PAC-1-2014 for both indoor and outdoor conditions. In order to compare single-duct and dual-duct portable ACs under the same conditions, De' Longhi would also accept 80.6 °F as the outdoor conditions for dual-duct units as well. (Public Meeting Transcript, De' Longhi, No. 13 at pp. 43-44; De' Longhi, No. 16 at p. 4)

    Friedrich commented that 70 °F is low for an outdoor temperature that would necessitate AC use, and suggested DOE consider 80 °F as the outdoor condition. (Public Meeting Transcript, Friedrich, No. 13 at pp. 84-85)

    In addition to the proposed temperatures for infiltration air, DOE received comments regarding the likely origin of the infiltration air to help inform the appropriate infiltration air conditions. De' Longhi noted that it is possible that some or all of the replacement air is drawn from a location other than the outdoors directly, such as a basement, attic, garage, or a space that is conditioned by other equipment. Thus, De' Longhi stated that DOE's proposed approach is unrealistic, as the building spaces from which infiltration air may be drawn and other inside air that may be cooled by central cooling systems must be taken into account. De' Longhi also commented that DOE's approach did not account for any internal heating loads, solar radiation, or thermal lag of the building itself. (Public Meeting Transcript, De' Longhi, No. 13 at pp. 41-43; De' Longhi, No. 16 at pp. 3-4)

    AHAM agreed with De' Longhi, and noted that even if all air in a home originates from outdoors, the infiltration air may be cooled once indoors. Moreover, AHAM noted that the infiltration air could be at different temperatures for a portable AC that is moved from room to room—for example, the air in a garage is not likely the same temperature as the air in an attic or basement. AHAM commented that if DOE accounts for the effects of infiltration air, DOE must ensure that the temperature is representative and based on data. In AHAM's view, given the uniqueness of homes, that is not practical to do. (AHAM, No. 18 at pp. 3-4)

    AHAM, NAM, and DENSO stated that should DOE nevertheless move forward with its proposal, it must ensure it selects a representative test temperature for that infiltration air. They commented that DOE's current proposal is not representative and should be revised. (AHAM, No. 18 at p. 1; NAM, No. 17 at p. 3; DENSO, No. 14 at p. 3)

    In response to comments received on the February 2015 NOPR, DOE conducted additional analysis to ensure the DOE test procedure for portable ACs is representative of typical cooling product operation and consumer usage. On the matter of the source of infiltration air, DOE reviewed information developed on infiltration air flow rates and sources for room ACs, which encounter issues for sealing in windows similar to portable ACs. In a study conducted by the National Renewable Energy Laboratory (NREL),5 infiltration air flow rates around the louvers on either side of three room AC test units and the air flow rates through the units themselves were measured when the units were installed in a test chamber outfitted with two residential single-hung windows. The units, including the side louvers, were installed per manufacturer instructions (i.e., no additional sealing around the louvers was provided). A variable-speed blower was used to vary the differential pressure between the test chamber and ambient (outdoor condition) from 0 to 50 Pascals (Pa). NREL found that at 50 Pa, the infiltration air flow rates around the louvers ranged from approximately 50 to 90 standard cubic feet per minute (SCFM) among the three test units. These infiltration air flow rates represented as much as two thirds of the rated evaporator air flow rates at high fan speed, and similarly would also represent a substantial percentage of the infiltration air for a single-duct portable AC. NREL estimated that the infiltration air leakage path around the louvers was the equivalent of a 27 to 42 square-inch hole in the wall. Because DOE observed that the window brackets for mounting the portable AC duct(s) in its test sample typically did not include any gasket, tape, or other sealing material, it concludes that outdoor air leaking through the portable AC's window bracket likely also represents the source of a substantial percentage of the infiltration air for portable ACs. Additionally, because portable ACs that do not draw all of the condenser air from outside the conditioned space create net negative pressure within the conditioned space, infiltration air flow is likely greater than for room ACs. Therefore, DOE continues to conclude that infiltration air temperature is best represented as the outdoor test condition.

    5 Winkler, J., et al., 2013. “Laboratory Performance Testing of Residential Window Air Conditioners,” National Renewable Energy Laboratory, Technical Report NREL/TP-5500-57617, March 2013.

    DOE also notes that the temperature of infiltration air from sources other than the window bracket cannot be definitively characterized because the air temperature in the other locations may be greater than (e.g., an attic) or less than (e.g., a basement) the outdoor temperature. In addition, infiltration air that is drawn from other conditioned space initially originated from locations that could also be direct sources of infiltration air for a portable AC, and thus DOE believes that the portable AC should not derive a de facto benefit by being rated at a lower infiltration air temperature achieved via the energy consumption of other conditioning equipment.

    DOE next considered commenters' suggestion that the outdoor test condition in the current version of AHAM PAC-1 may not be representative of a significant portion of portable AC operation. DOE revisited its climate analysis from the February 2015 NOPR to determine the overall average dry-bulb temperature and relative humidity during hours allotted for cooling mode operation, in locations where portable ACs are likely to be used. DOE again performed this climate analysis using 2012 hourly ambient temperature data from the National Climatic Data Center (NCDC) of the National Oceanic and Atmospheric Administration (NOAA), collected at weather stations in 44 representative states. DOE determined the average temperature and humidity associated with the hottest 750 hours for each state for which there was data available. DOE then reviewed data from the 2009 Residential Energy Consumption Survey (RECS) 6 to identify room AC ownership in the different geographic regions because no portable AC-specific usage data were available. Based on the RECS ownership data, DOE used a weighted-average approach to combine the average temperature and humidity for each individual state into sub-regional, regional, and finally, the representative national average temperature and humidity for the hottest 750 hours in each state.7 DOE found that the national average dry-bulb temperature and relative humidity associated with the hottest 750 hours are 83 °F and 45 percent, respectively.

    6RECS data are available online at: http://www.eia.gov/consumption/residential/data/2009/www.eia.gov/consumption/residential/data/2009/.

    7 For more information on the weighted-average approach that DOE conducted for this analyses, see the February 2015 NOPR. 80 FR 10211, 10235-27 (Feb. 25, 2015).

    To maintain harmonization with other cooling products and the AHAM PAC-1-2009 test conditions, as discussed previously, and to continue to consider cooling performance under a rating condition at which product performance is most important to consumers, DOE proposes to specify the outdoor test conditions and associated infiltration air conditions of 95 °F dry-bulb and 75 °F wet-bulb temperature. However, DOE also proposes in this SNOPR that a second cooling mode test be conducted for dual-duct units (Test Configuration 3) at outdoor test conditions that reflect the weighted-average temperature and humidity observed during the hottest 750 hours (the hours during which DOE expects portable ACs to operate in cooling mode): 83 °F dry-bulb temperature and 67.5 °F wet-bulb temperature. For single-duct units (Test Configuration 5), DOE would specify a second set of numerical calculations for cooling capacity and CEER based on adjustments for infiltration air at these same conditions, rather than providing for an additional test at the weighted-average outdoor temperature and humidity. In sum, Table III.3 shows the complete set of cooling mode rating conditions that DOE proposes for portable ACs in this SNOPR.

    Table III.3—Standard Rating Conditions—Cooling Mode—SNOPR Proposal Test configuration Evaporator inlet air, °F (°C) Dry bulb Wet bulb Condenser inlet air, °F (°C) Dry bulb Wet bulb 3 (Condition A) 80 (26.7) 67 (19.4) 95 (35) 75 (23.9) 3 (Condition B) 80 (26.7) 67 (19.4) 83 (28.3) 67.5 (19.7) 5 80 (26.7) 67 (19.4) 80 (26.7) 67 (19.4) c. Infiltration Air Calculations

    In the February 2015 NOPR, DOE proposed that the sensible and latent components of infiltration air heat transfer be calculated using the evaporator inlet conditions, to be representative of the indoor room's ambient conditions. As discussed above, DOE proposed that the nominal indoor test chamber conditions for portable AC testing would be 80 °F dry-bulb temperature and 67 °F wet-bulb temperature, resulting in a humidity ratio of 0.0112 pounds of water per pounds of dry air (lbw/lbda). DOE further proposed in the February 2015 NOPR that the indoor test chamber dry-bulb and wet-bulb temperature conditions be maintained within a range of 1.0 °F, with an average difference of 0.3 °F. 80 FR 10211, 10224, 10226 (Feb. 25, 2015).

    DOE notes that the allowable tolerances for the indoor evaporator inlet conditions would permit variations in the humidity ratio of up to 8.6 percent. DOE reviewed its test data and found that the maximum variation between the measured and proposed humidity ratio was 4.5 percent. DOE believes that the proposal to use the measured evaporator inlet conditions (dry-bulb and wet-bulb temperatures and the resulting humidity ratio) when calculating the impacts of infiltration air heat transfer may introduce variability in the test results due to the sensitivity of infiltration air to the allowable evaporator inlet conditions variability and the resulting impact on overall cooling capacity. Therefore, DOE proposes in this SNOPR to calculate the sensible and latent heat contributions of infiltration air using the nominal test chamber temperatures and subsequent humidity ratio to reduce test variability.

    DOE further notes that there was an error in the equations proposed in the February 2015 NOPR that divided the quantity of heat, in Btu/min, by 60 instead of multiplying by 60 to convert to Btu/h. 80 FR 10211, 10224 (Feb. 25, 2015). This SNOPR corrects the calculation error in DOE's proposal.

    Based on these changes, DOE proposes in this SNOPR to calculate the sensible and latent heat components of infiltration air, using the nominal test chamber temperatures and subsequent humidity ratio, as follows:

    Qs = m × 60 × [(cp_da × (Tia - Tindoor)) + cp_wv × (ωia × Tia - ωindoor × Tindoor)] Where: Qs is the sensible heat added to the room by infiltration air, in Btu/h; m is the dry air mass flow rate of infiltration air for a single-duct or dual-dual duct unit, in lb/m; cp_da is the specific heat of dry air, 0.24 Btu/lbm−°F. cp_wv is the specific heat of water vapor, 0.444 Btu/lbm−°F. Tindoor is the indoor chamber dry-bulb temperature, 80 °F. Tia is the infiltration air dry-bulb temperature, 95 °F. ωia is the humidity ratio of the infiltration air, 0.0141 lbw/lbda. ωindoor is the humidity ratio of the indoor chamber air, 0.0112 lbw/lbda. 60 is the conversion factor from minutes to hours. Q l = m × 60 × H fg × (ωia - ωindoor) Where: Ql is the latent heat added to the room by infiltration air, in Btu/h. m is the mass flow rate of infiltration air for a single-duct or dual-dual duct unit, in lb/m. Hfg is the latent heat of vaporization for water vapor, 1061 Btu/lbm. ωia is the humidity ratio of the infiltration air, 0.0141 lbw/lbda. ωindoor is the humidity ratio of the indoor chamber air, 0.0112 lbw/lbda. 60 is the conversion factor from minutes to hours. 2. Test Duration

    AHAM PAC-1-2015 specifies testing in accordance with certain sections of ANSI/ASHRAE Standard 37-2009, “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment” (ASHRAE 37-2009), but does not explicitly specify the test duration required when conducting portable AC active mode testing. Therefore, DOE proposes in this SNOPR that the active mode test duration shall be determined in accordance with section 8.7 of ASHRAE 37-2009.

    3. Seasonally Adjusted Cooling Capacity

    In the February 2015 NOPR, DOE proposed a calculation for adjusted cooling capacity, ACC, defined as the measured cooling capacity adjusted for case, duct, and infiltration air heat transfer impacts. 80 FR 10211, 10225 (Feb. 25, 2015).

    With the proposal to add a second cooling mode test condition for dual-duct portable ACs and, similarly, a second numerically applied infiltration air condition for single-duct portable ACs, DOE proposes that the adjusted cooling capacities for both sets of conditions be combined to create a seasonally adjusted cooling capacity, SACC. The higher outdoor temperature condition is consistent with that used for testing other air conditioning equipment and ensures that products can operate when they are most needed, while the cooler condition represents the typical outdoor temperatures encountered during use. Because the performance of a portable AC is important under each of these scenarios, DOE proposes in this SNOPR to weight the adjusted cooling capacities obtained under the two cooling mode conditions to calculate the SACC as follows.

    Using an analytical approach based on climate and RECS data that was similar to the method used to determine representative rating conditions, DOE estimated the percentage of portable AC operating hours that would be associated with each rating condition. From the climate data, DOE allocated the number of annual hours with temperatures that ranged from 80 °F (the indoor test condition) to 89 °F (a temperature mid-way between the two rating conditions) to the 83 °F rating condition. The hours in which the ambient temperature was greater than 89 °F were assigned to the 95 °F rating condition. DOE then performed the geographical weighted averaging using the RECS data as discussed in section III.1.b to determine weighting factors of 19.7 percent and 80.3 percent, respectively, for the 95 °F and 83 °F rating conditions. A similar approach was adopted for central ACs, where DOE specifies eight test conditions and corresponding weighting factors that are based on the distribution of fractional hours for representative temperature bins.8 For portable ACs, DOE estimated hours per temperature bin from the climate data analysis, and proposes in this SNOPR to apply weighting factors of 20 percent and 80 percent to the results of its testing at 95 °F and 83 °F, respectively. DOE welcomes input on whether different weighting factors would be appropriate.

    8 The DOE test procedure for central ACs is codified at 10 CFR part 430, subpart B, appendix M.

    Therefore, DOE proposes to calculate SACC according to the following equation.

    SACC = (ACC 95 × 0.2) + (ACC 83 × 0.8) Where: SACC is the seasonally adjusted cooling capacity, in Btu/h. ACC95 and ACC83 are the adjusted cooling capacities calculated at the 95 °F and 83 °F dry-bulb outdoor conditions, in Btu/h, respectively. 0.2 is the weighting factor for ACC95. 0.8 is the weighting factor for ACC83. 4. Duct Heat Transfer and Leakage

    In the February 2015 NOPR, DOE presented its determination that duct heat losses and air leakage are non-negligible effects, and therefore proposed to account for heat transferred from the duct surface to the conditioned space in the portable AC test procedure. DOE proposed that four equally spaced thermocouples be adhered to the side of the entire length of the condenser exhaust duct for single-duct units and the condenser inlet and exhaust ducts for dual-duct units. DOE proposed to determine the duct heat transfer for each duct from the average duct surface temperature as measured by the four thermocouples, a convection heat transfer coefficient of 4 Btu/h per square foot per °F (Btu/h-ft2−°F), and the calculated duct surface area based on the test setup. 80 FR 10211, 10227 (Feb. 25, 2015).

    a. Duct Heat Transfer Impacts

    ASAP supported incorporating the duct heat transfer effects into the measurement of cooling capacity, and noted that there was a reasonably good correlation between the results using the calorimeter method and the modified AHAM method, as presented in the February 2015 NOPR. (Public Meeting Transcript, ASAP, No. 13 at p. 56)

    AHAM and De' Longhi stated that DOE's proposed test for duct heat transfer and leakage unnecessarily complicates the test procedure without a corresponding benefit. They also stated that the methodology for the temperature sensor placement and determination of overall heat losses may be interpreted differently. AHAM further commented that should DOE decide to include provisions for duct heat transfer and leakage, DOE should evaluate the impact of these effects on test procedure repeatability and reproducibility, preferably through a round robin test including manufacturers and third-party laboratories. (AHAM, No. 18 at p. 5; De' Longhi, No. 16 at p. 4)

    China commented that DOE did not present the percent of the total cooling capacity associated with the duct and case heat transfer, and that it would be necessary to consider such data before adopting an approach that accounts for these heat transfer effects. (China, No. 15 at p. 3)

    In response to these comments, DOE conducted further analysis to quantify the impacts of duct heat transfer. Figure III.1 shows the impact of duct heat transfer as a percentage of the AHAM PAC-1-2009 cooling capacity measured in the February 2015 NOPR for each unit in DOE's test sample. Exhaust duct heat transfer is presented for each single-duct unit, while a pair of values for inlet duct heat transfer and exhaust duct heat transfer are presented for each dual-duct unit.

    EP27NO15.003

    As shown in Figure III.1, the exhaust duct heat transfer determined according to the proposed methodology ranged from just below 6 percent to almost 18 percent of the AHAM PAC-1-2009 cooling capacity, with an average value of 11.1 percent. The intake duct heat transfer effect was lower than that of the exhaust duct due to the lower air temperature at the inlet, with values ranging from about 3 percent to almost 5 percent of the unadjusted cooling capacity and an average of 3.7 percent. DOE finds the exhaust and intake duct heat transfer impacts sufficiently significant to warrant the added test burdens associated with determining duct heat transfer. Therefore, DOE maintains the proposal from the February 2015 NOPR to measure and incorporate the duct heat transfer impacts into the overall seasonally adjusted cooling capacity.

    b. Convection Coefficient

    DENSO considered the 4 Btu/h-ft2-°F convection coefficient proposed for the duct heat transfer calculation to be arbitrary, and recommended measuring the conditions of the air at the inlet and outlet of each duct to substantiate that factor. (Public Meeting Transcript, DENSO, No. 13 at p. 53; DENSO, No. 14 at p. 2) DOE recognizes that different test setups may have somewhat different convective heat transfer coefficients. However, when developing test procedures, DOE must consider the test burden and impact on manufacturers and test laboratories. Taking that into consideration, DOE proposed an approach in the February 2015 NOPR that would minimize burden while capturing the impact of heat transfer from ducts, which DOE determined to have a significant impact on overall net cooling capacity. DOE also notes that the approach proposed by DENSO to characterize heat loss to the conditioned space would significantly increase test burden, requiring additional thermocouples and modification of the test setup on the unit-side of the duct. Further, DOE notes that the convection heat transfer coefficient may vary among different laboratories and even for different chambers and test setups within each test laboratory. This would introduce variability from test to test, as the heat transfer coefficient may be highly sensitive to the specific test setup. To minimize the test burden and limit variability, DOE proposed one convection heat transfer coefficient for all units to provide a consistent estimate of the duct heat transfer.

    In the February 2015 NOPR, DOE estimated the convection heat transfer coefficient to be 4 Btu/h-ft2-°F based on a midpoint of values associated with free convection and forced convection, as recommended by the test laboratory that conducted testing for the NOPR. 80 FR 10211, 10219 (Feb. 25, 2015). The convection coefficient was based on values derived from coefficients listed in the 2013 ASHRAE Handbook—Fundamentals9 for various types of assemblies in buildings. Depending on the orientation of the surface, direction of heat flow, and emissivity of the heat transfer surface, the typical coefficients for indoor assemblies, which DOE deduced would be subject primarily to free convection, ranged from 0.22 to 1.63 Btu/h-ft2-°F. ASHRAE also provided coefficients for assemblies located outside and subject to wind speeds of 7.5 and 15 miles per hour (5.1 and 10.2 feet per second, respectively), which were 4.00 and 6.00 Btu/h-ft2-°F, respectively. Because these speeds potentially correspond to air flow speeds over the portable AC duct(s) due to circulation of the conditioned air in the space, for example by the portable AC blower and infiltration air, DOE used these values as proxies for convective heat transfer coefficients for the duct surfaces. Therefore, DOE proposed in the February 2015 NOPR that the overall heat transfer coefficient for calculating duct heat losses would be 4 Btu/h-ft2-°F, an approximate midpoint of the values described.

    9ASHRAE Handbook—Fundamentals. American Society of Heating, Refrigerating, and Air-Conditioning Engineers, Atlanta, GA. 2013.

    To further validate the proposed convection heat transfer coefficient for this notice, DOE re-examined the data it obtained from testing a sample of four single-duct and two dual-duct portables ACs with and without duct insulation for the May 2014 NODA. These tests were conducted using the calorimeter approach described in the May 2014 NODA, such that duct heat losses could be measured by subtracting the measured cooling capacity without insulation from the cooling capacity with insulation. Using the duct heat losses, duct surface area, and the differential between the indoor side ambient temperature and the average of the duct surface temperatures, an average duct heat transfer coefficient could be empirically determined for units in DOE's test sample. The results of this calculation are shown in Table III.4 below.

    Table III.4—Measured Duct Convection Heat Transfer Coefficients Test unit Duct
  • convection
  • heat transfer
  • coefficient
  • (Btu/h-ft2-°F)
  • SD1 2.74 SD2 3.08 SD3 1.70 SD4 5.26 DD1 (Test 1) 4.10 DD1 (Test 2) 3.76 DD2 (Test 1) 2.11 DD2 (Test 2) 2.27 Average 3.13 SD = Single-duct. DD = Dual-duct.

    Although the average heat transfer coefficient calculated from DOE's test results was slightly lower than the value proposed in the February 2015 NOPR, DOE notes that there is variation in individual results that is likely due to different duct types, installation configurations, forced convection air flow patterns, and other factors. Therefore, DOE proposes to maintain the original duct heat transfer proposal from the February 2015 NOPR, including the convection heat transfer coefficient of 4 Btu/h-ft2-°F.

    c. Duct Surface Area Measurements

    In the February 2015 NOPR, DOE proposed that the duct surface area be calculated using the outer duct diameter and extended length of the duct while under test. 80 FR 10211, 10227 (Feb. 25, 2015).

    De' Longhi and AHAM commented that ducts often have a corrugated surface, so that the measure of the duct(s) surface area will have high uncertainty. (De' Longhi, No. 16 at p. 4; AHAM, No. 18 at p. 5) DOE further examined the surface area of the ducts in its test sample. DOE calculated the surface area in two ways, one with the ducts fully extended and the other with the duct setup as required in AHAM PAC-1-2015. DOE found that the average difference in surface area calculated using the fully extended duct versus using the test setup was 7.5 percent. With the average duct impact on cooling capacity of 11.1 percent and 3.7 percent for single-duct and dual-duct units, respectively, the overall variability that differences in duct surface area determinations would introduce into the cooling capacity would be no greater than 1 percent. Therefore, DOE concludes that any uncertainty in duct surface area measurements would not have a significant impact on test repeatability and reproducibility and maintains the surface area measurement as proposed in the February 2015 NOPR.

    5. Case Heat Transfer

    In the February 2015 NOPR, DOE proposed that case heat transfer be determined using a method similar to the approach proposed for duct heat transfer. DOE proposed that the surface area and average temperature of each side of the case be measured to determine the overall case heat transfer, which would be used to adjust the cooling capacity and efficiency. DOE noted that the case heat transfer methodology would impose additional test burden, but determined that the burdens were likely outweighed by the benefit of addressing the heat transfer effects of all internal heating components. 80 FR 10211, 10227-10229 (Feb. 25, 2015).

    DENSO commented that DOE should incorporate the effects of evaporator fan heat rather than case heat transfer effects, because all of the fan motor power ends up in the evaporator exhaust air stream. DENSO also stated that heat transfer mechanics for all surfaces of the case are not the same. (DENSO, No. 14 at p. 2)

    Friedrich believes that there is no need to measure heat loss from the electrical components inside the case because the end result of the test would be the total cooling capacity coming from the portable AC and the total measure of energy consumption. (Public Meeting Transcript, Friedrich, No. 13 at p. 34)

    De' Longhi noted that because there is a wide range in unit design, each portable AC may have uniquely shaped faces on the case, and it would be very difficult or impossible to identify the front, back, right, left, top, and bottom of the case. De' Longhi stated that laboratories may measure the surface temperature differently, and therefore, the proposal in the February 2015 NOPR may lead to inconsistencies among different laboratories. De' Longhi further suggested that the convection coefficient should be different for each side of the case due to the different orientation of each surface, and commented that a small variation in the position of the temperature sensors can cause significant differences in the average temperatures of each case. (Public Meeting Transcript, De' Longhi, No. 13 at pp. 55-56; De' Longhi, No. 16 at p. 4)

    AHAM stated that the proposed methodology for determining case heat transfer unnecessarily complicates the test procedure and will likely lead to variation. AHAM believes the impact of case heat transfer is negligible and does not justify the added burden and variation. According to AHAM, if DOE continues to consider case heat transfer, DOE should characterize the proposed test procedure's repeatability and reproducibility, preferably through a round robin test including manufacturers and third-party laboratories. (AHAM, No. 18 at pp. 5-6)

    In response to these comments, DOE further investigated the effects of case heat transfer as a percentage of the overall cooling capacity by analyzing the data determined in accordance with AHAM PAC-1-2009 for the February 2015 NOPR. Figure III.2 shows, for each portable AC in its test sample, the heat transfer determined for each case side and the sum of all case sides as a percentage of the AHAM PAC-1-2009 cooling capacity.

    EP27NO15.004

    From the data in Figure III.2, DOE calculated that the average heat transfer for individual case sides was 0.29 percent of the AHAM PAC-1-2009 cooling capacity, and the maximum heat transfer observed for a single side was 2.27 percent. The total case heat transfer impact was, on average, 1.76 percent of the AHAM PAC-1-2009 cooling capacity, with a maximum of 6.53 percent. Because the total case heat transfer impact is, on average, less than 2 percent of the cooling capacity without adjustments for infiltration air and heat transfer effects, DOE proposes to remove the provisions for determining case heat transfer from the proposed portable AC test procedure.

    6. Test Unit Placement

    In the February 2015 NOPR, DOE proposed that for all portable AC configurations, there must be no less than 6 feet between the evaporator inlet and any chamber wall surface, and for single-duct units, there must be no less than 6 feet between the condenser inlet surface and any other wall surface. Additionally, DOE proposed that there be no less than 3 feet between the other surfaces of the portable AC with no air inlet or exhaust (other than the bottom of the unit) and any wall surfaces. 80 FR 10211, 10229-10230 (Feb. 25, 2015).

    According to DENSO, the 6-foot minimum spacing would cause an unreasonable performance penalty when duct losses are incorporated into the efficiency rating. DENSO further noted that the ducted side of a portable AC is often located relatively close to the wall where the duct is mounted. (DENSO, No. 14 at p. 3)

    AHAM objected to the proposed test unit placement, commenting that, due to duct length, it may not be feasible to maintain the proposed distances from the partition wall. AHAM stated that this particular distance is variable and unit-dependent, and should not be applicable for single-duct or dual-duct units. (AHAM, No. 18 at pp. 6-7)

    De' Longhi requested clarification as to whether the back of the unit, or side with the duct attachments, is considered a side that must be placed at the minimum distance from the chamber or partition walls. If so, De' Longhi commented that the unit should be placed at least 6 feet from the partition wall and the ducts would likely not reach. (Public Meeting Transcript, De' Longhi, No. 13 at pp. 59-60; De' Longhi, No. 16 at p. 4)

    DOE recognizes that the length of the duct and duct setup as outlined in AHAM PAC-1-2015 dictate the distance of the portable AC from the partition wall. Therefore, DOE proposes to adjust the February 2015 NOPR proposals for unit placement that would have required no less than 6 feet between the evaporator inlet and any chamber wall surfaces, and for single-duct units, no less than 6 feet between the condenser inlet surface and any other wall surface. Because AHAM PAC-1-2015 specifies the distance between the test unit and the partition wall, DOE proposes that the test unit be placed in such a way that there is no less than 3 feet between any test chamber wall and any surface on the portable AC, except the surface or surfaces that have a duct attachment, as prescribed by the AHAM PAC-1-2015 test setup requirements. DOE notes that this test unit placement would provide manufacturers and test laboratories more flexibility in the use of their test chambers than that proposed in the February 2015 NOPR, and would still provide sufficient space around the test unit to ensure free air flow with no air constriction.

    C. Heating Mode

    As discussed in the February 2015 NOPR, certain portable ACs, including some of the units in DOE's test sample, incorporate a heating function in addition to cooling mode. DOE proposed to define heating mode as an active mode in which a portable AC has activated the main heating function according to the thermostat or temperature sensor signal, including activating a resistance heater, the refrigeration system with a reverse refrigerant flow valve, or the fan or blower without activation of the resistance heater or refrigeration system. 80 FR 10211, 10217 (Feb. 25, 2015). In the February 2015 NOPR, DOE concluded that a heating mode test to measure heating mode performance was feasible, and proposed a heating mode test procedure that utilized AHAM PAC-1-2014 at lower temperature ambient conditions and with comparable adjustments as were considered for cooling mode. 80 FR 10211, 10230-10231 (Feb. 25, 2015).

    AHAM and De' Longhi opposed DOE's proposal to require testing in heating mode. They noted that heating mode is not the main consumer utility offered by portable ACs, and commented that it was not clear how often consumers use the heating feature and whether the burden of including this mode in the test procedure would be justified. AHAM, NAM, and De' Longhi commented that there are not sufficient heating mode data upon which to determine whether to include measurement of or assign annual operating hours to heating mode. AHAM and NAM further noted that in the heating analysis, DOE assumed that the consumer will use a portable AC in heating mode when the temperature has fallen below 45 °F, but presented no consumer data to support that assumption. According to AHAM, consumer usage of portable ACs in heating mode is extremely limited due to the seasonality of the product. AHAM, NAM, and De' Longhi commented that DOE should be consistent with its other analyses when considering heating mode. For example, they stated that DOE did not propose testing in fan-only mode because it would be impractical, nor did it propose testing in dehumidification mode because it is not the primary mode of operation for portable ACs. These commenters considered heating mode to be no different, and therefore concluded that DOE should not require it to be tested. (Public Meeting Transcript, AHAM, No. 13 at p. 64; AHAM, No. 18 at pp. 7, 10; De' Longhi, No. 16 at p. 5; NAM, No. 17 at p. 2)

    AHAM noted that many of the comments submitted regarding cooling mode would also apply to heating mode where applicable. Specifically, should DOE require measurement of heating mode, AHAM would not object to DOE's proposal to use the unit and duct setup requirements and control settings of AHAM PAC-1-2014, as well as the test configurations referenced in Table 2 of AHAM PAC-1-2014. AHAM opposed the inclusion of infiltration air, duct heat transfer, case transfer, and test unit placement for heating mode as discussed for cooling mode. (AHAM, No. 18 at pp. 7-8)

    DENSO stated that its cooling mode comments are generally applicable for heating mode as well. (DENSO, No. 14 at p. 3)

    After considering stakeholder comments opposing the test procedure for heating mode and in light of the test burden that the heating mode test would impose, DOE proposes to remove the heating mode test provisions from the proposed DOE portable AC test procedure, including the definition of heating mode and calculations for EERhm and total combined energy efficiency ratio. Accordingly, the cooling-specific energy efficiency ratio, EERcm, is no longer necessary, as the combined efficiency ratio, CEER, would appropriately represent energy efficiency in all modes under consideration. DOE expects that measuring performance in cooling mode, off-cycle mode, standby mode, and off mode would capture representative performance of portable ACs during the cooling season. DOE may reconsider including a test for heating mode in a future test procedure rulemaking.

    D. Combined Energy Efficiency Ratio

    In the February 2015 NOPR, DOE proposed a single energy conservation standard metric for portable ACs, in accordance with the requirements of EPCA. (42 U.S.C. 6295(gg)(3)(A)) The single integrated efficiency metric, CEER, weights the average power in each operating mode, as measured by the proposed test procedure, with estimated annual operating hours for each mode. The modes considered in the February 2015 NOPR procedure were cooling mode, heating mode, off-cycle mode (with and without fan operation), inactive mode (including bucket-full mode), and off mode. 80 FR 10211, 10234-10235 (Feb. 25, 2015).

    1. Annual Operating Mode Hours

    As presented in the February 2015 NOPR, DOE developed several estimates of portable AC annual operating mode hours for cooling, heating, off-cycle, and inactive or off modes. However, the three estimates that addressed units with both cooling and heating mode operating hours are no longer applicable with the removal of the heating mode test procedure. Therefore, for this revised analysis, DOE considered the annual operating mode hours for all portable ACs to be those from the “Cooling Only” scenario presented in the February 2015 NOPR as follows:

    Table III.5—Proposed Annual Operating Hours by Mode Modes Operating hours Cooling Mode 750 Off-Cycle Mode 880 Off/Inactive Mode 1,355

    More information on the development of these annual hours for each operating mode can be found in the February 2015 NOPR. 80 FR 10211, 10235-10237 (Feb. 25, 2015).

    Friedrich noted that it rates its portable AC energy consumption based on 750 hours, the same cooling mode operating hours as room ACs. Friedrich suggested that DOE maintain the proposal of 750 annual cooling mode operating hours for portable ACs to maintain harmonization with room ACs and properly reflect unit annual energy consumption. (Public Meeting Transcript, Friedrich, No. 13 at p. 84)

    AHAM and NAM disagreed with DOE's proposals, stating that the majority of the analysis was based on outdated room AC data. They asserted that although portable ACs and room ACs are similar in some ways, the usage profiles and installation locations of the two products differ. AHAM and NAM urged DOE to obtain data on consumer usage of portable ACs or demonstrate that consumer use of portable ACs and room ACs are sufficiently comparable. (Public Meeting Transcript, AHAM, No. 13 at pp. 81-83; AHAM, No. 18 at p. 10; NAM, No. 17 at pp. 1-2)

    AHAM and NAM also objected to DOE basing the proposed unplugged hours on assumptions, without any consumer study or supporting data. These commenters stated that DOE should obtain consumer use data in order to inform its proposal on the number of unplugged hours. (Public Meeting Transcript, AHAM, No. 13 at p. 81; AHAM, No. 18 at p. 10; NAM, No. 17 at p. 2)

    AHAM further commented that it is not aware of consumer usage data for portable ACs, but would attempt to request that information from its members. AHAM urged DOE not to proceed in the absence of such consumer use data. (Public Meeting Transcript, AHAM, No. 13 at pp. 83-84)

    Neither AHAM nor manufacturers provided additional consumer usage data, and no further data were available from RECS or other sources. Therefore, DOE continues to utilize the most relevant consumer use data available and proposes the annual operating hours in Table III.5, maintaining the analysis and approach described in the February 2015 NOPR. DOE welcomes any additional information and data regarding consumer use to further inform the proposed annual mode operating hours.

    2. CEER Calculation

    In addition to the CEER metric that incorporated energy consumption in all operating modes, including heating mode, DOE proposed a simplified CEER metric in the February 2015 NOPR for portable ACs that do not include a heating mode (CEERcm). The CEER calculation in the February 2015 NOPR would equal CEERcm for units without heating mode. With the newly proposed removal of heating mode from the test procedure and addition of a second set of testing conditions for dual-duct units, DOE also proposes in this SNOPR to eliminate the CEERcm calculation and to revise the CEER metric calculation as follows, using the same weighting factors as were developed for SACC. The revised calculations also correctly divide energy consumption by annual cooling mode hours rather than total annual hours, as was initially proposed in the February 2015 NOPR.

    EP27NO15.005 Where: CEERSD and CEERDD are the combined energy efficiency ratios for single-duct and dual duct units, respectively, in Btu/Wh. ACC95 and ACC83 are the adjusted cooling capacities, tested at the 95 °F and 83 °F dry-bulb outdoor conditions, respectively, in Btu/h. AECSD is the annual energy consumption in cooling mode for single-duct units, in kWh/year. AEC95 is the annual energy consumption in cooling mode for dual-duct units, assuming all cooling mode hours would be at the 95 °F dry-bulb outdoor conditions, in kWh/year. AEC83 is the annual energy consumption in cooling mode for dual-duct units, assuming all cooling mode hours would be at the 83 °F dry-bulb outdoor conditions, in kWh/year. AECT is the total annual energy consumption attributed to all modes except cooling, in kWh/year. t is the number of cooling mode hours per year, 750. k is 0.001 kWh/Wh conversion factor for watt-hours to kilowatt-hours. 0.2 is the weighting factor for the 95 °F dry-bulb outdoor condition test. 0.8 is the weighting factor for the 83 °F dry-bulb outdoor condition test.

    The February 2015 NOPR included incorrect text stating that the representative CEER would be the mean of the test unit efficiencies. DOE proposes in this SNOPR to clarify that the representative CEER for a basic model is calculated based on the sampling plan instructions proposed in 10 CFR 429.62. DOE further maintains its proposal that the CEER would be rounded to the nearest 0.1 Btu/Wh.

    E. Compliance With Other Energy Policy and Conservation Act Requirements 1. Test Burden

    EPCA requires that any test procedures prescribed or amended shall be reasonably designed to produce test results which measure energy efficiency, energy use, or estimated annual operating cost of a covered product during a representative average use cycle or period of use, and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) In the February 2015 NOPR, DOE concluded that establishing a test procedure to measure the energy consumption of portable ACs in active mode, standby mode, and off mode would produce the required test results and would not be unduly burdensome to conduct. This determination was driven by the many similarities between the necessary testing equipment and facilities for portable ACs and other products, whose performance is currently certified through a DOE test procedure. Therefore, DOE concluded that manufacturers would not be required to make significant investment in test facilities and new equipment.

    DOE notes that the modifications to the portable AC test procedures introduced in this notice, mainly the additional test condition in cooling mode for dual-duct units and the removal of heating mode testing and case heat transfer considerations, would not significantly increase the overall test burden compared to the test procedure proposed in the February 2015 NOPR. Further, because the added cooling mode test conditions are closer to those of the originally proposed cooling mode test than the test conditions for the heating mode test, DOE estimates that less time would be required to achieve and maintain the chamber conditions for the second cooling mode test than for a heating mode test, decreasing the test burden for dual-duct units with a heating mode. In addition, the outdoor test chamber would not be required to reach the low temperatures required for the proposed heating mode test, which may have presented difficulties for some manufacturers and test laboratories to achieve.

    For dual-duct units without a heating mode, the proposals in this notice would introduce test burden by requiring a second cooling mode test. However, the removal of case surface temperature measurements would likely mitigate the increased burden associated with this second cooling mode test, resulting in similar overall test burden as for the test procedure proposed in the February 2015 NOPR.

    DOE concludes that although this SNOPR introduces modifications to the test procedures proposed in the February 2015 NOPR, it does not significantly increase the test burden, and may instead reduce the overall test burden. Therefore, the determination in the February 2015 NOPR that the proposed portable AC test procedure would produce test results that measure energy consumption during representative use and that the test procedure would not be unduly burdensome to conduct still applies.

    IV. Procedural Issues and Regulatory Review

    DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the February 2015 NOPR, set forth at 80 FR 10212, 10238-10241, remain unchanged for this SNOPR, except for the following additional analysis and determination DOE conducted in accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

    A. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis (IFRA) for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

    DOE reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE's IRFA is set forth in the February 2015 NOPR, with additional analysis below based on the proposals in this SNOPR. DOE seeks comment on its analysis and the economic impacts of the rule on small manufacturers. In the February 2015 NOPR, DOE estimated that there is one small business that manufactures portable ACs. Since the February 2015 NOPR, DOE has determined that this small business no longer produces portable ACs and, therefore, DOE is unable to identify any small businesses that currently manufacture portable ACs. For this reason, DOE tentatively concludes and certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE will transmit the certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration (SBA) for review under 5 U.S.C. 605(b).

    In the alternative, should any small business manufacturers of portable ACs be identified, DOE evaluated the modifications proposed in this SNOPR to determine if these modification would have a significant economic impact on small businesses as compared to the proposals in the February 2015 NOPR. DOE believes that these modifications are likely to reduce overall test burden with respect to the proposals in the February 2015 NOPR, and therefore would not have a significant economic impact on small businesses, should any be identified.

    In this SNOPR, DOE proposes to increase the number of cooling mode tests for dual-duct portable ACs from one test to two tests at different outdoor test conditions. Although this increase requires running the cooling mode test a second time, DOE notes that the test setup would not need to be modified between testing and as such would not significantly increase the test burden beyond that for a single cooling mode test. The remaining changes associated with the additional outdoor test condition impact the post-testing calculations and therefore do not increase test burden.

    DOE further proposes in this SNOPR to remove the measurement of case heat transfer and the heating mode testing requirements that were originally proposed in the February 2015 NOPR. The removal of the case heat transfer measurement eliminates the added burden of determining surface area of each case surface and measuring the average temperature of each surface. In addition, the removal of the heating mode test significantly reduces test burden for dual-duct units with a heating mode, in that a substantial stabilization period is avoided that would require reducing the outdoor chamber conditions well below those for the cooling mode test.

    In the February 2015 NOPR, DOE concluded that the costs associated with the February 2015 NOPR proposals were small compared to the overall financial investment needed to undertake the business enterprise of developing and testing consumer products. 80 FR 10211, 10239. Compared to the proposals in the February 2015 NOPR, there is no net change in the number of tests or power metering instrumentation required. In addition, the elimination of the case heat transfer requirement would avoid the potential need for setting up and purchasing additional temperature sensors, estimated to cost less than $500 for both equipment and labor.

    On the basis of this analysis, DOE tentatively concludes that the proposed rule would not have a significant economic impact on a substantial number of small entities, should any small business manufacturers of portable ACs be identified.

    DOE seeks comment on the determinations in this section and information on whether any small businesses manufacture portable ACs.

    B. Description of Materials Incorporated by Reference

    In this SNOPR, DOE proposes to incorporate by reference the test standard published by AHAM, titled “Portable Air Conditioners,” AHAM PAC-1-2015. AHAM PAC-1-2015 is an industry accepted test procedure that measures portable AC performance in cooling mode and is applicable to products sold in North America. AHAM PAC-1-2015 specifies testing conducted in accordance with other industry accepted test procedures (already incorporated by reference) and determines energy efficiency metrics for various portable AC configurations. The test procedure proposed in this SNOPR references various sections of AHAM PAC-1-2015 that address test setup, instrumentation, test conduct, calculations, and rounding. AHAM PAC-1-2015 is readily available on AHAM's Web site at http://www.aham.org/ht/d/ProductDetails/sku/PAC12009/from/714/pid/.

    In this SNOPR, DOE also proposes to incorporate by reference the test standard ASHRAE Standard 37-2009, titled “Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment,” (ANSI Approved). ANSI/ASHRAE Standard 37-2009 is an industry-accepted test standard referenced by AHAM PAC-1-2015 that defines various uniform methods for measuring performance of air conditioning and heat pump equipment. Although AHAM PAC-1-2015 references a number of sections in ANSI/ASHRAE Standards 37-2009, the test procedure proposed in this SNOPR additionally references one section in ANSI/ASHRAE Standards 37-2009 that addresses test duration. ANSI/ASHRAE Standards 37-2009 is readily available on ANSI's Web site at http://webstore.ansi.org/RecordDetail.aspx?sku=ANSI%2FASHRAE+Standard+37-2009.

    V. Public Participation

    DOE will accept comments, data, and information regarding this proposed rule no later than the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments using any of the methods described in the ADDRESSES section at the beginning of this notice.

    Submitting comments via www.regulations.gov. The regulations.gov Web page will require you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

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    DOE processes submissions made through regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that regulations.gov provides after you have successfully uploaded your comment.

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    Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked non-confidential with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

    Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person which would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this supplemental notice of proposed rulemaking.

    List of Subjects 10 CFR Part 429

    Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Reporting and recordkeeping requirements.

    10 CFR Part 430

    Administrative practice and procedure, Confidential business information, Energy conservation, Household appliances, Imports, Incorporation by reference, Intergovernmental relations, Small businesses.

    Issued in Washington, DC, on November 17, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.

    For the reasons stated in the preamble, DOE proposes to amend parts 429 and 430 of Chapter II of Title 10, Code of Federal Regulations as set forth below:

    PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT 1. The authority citation for part 429 continues to read as follows: Authority:

    42 U.S.C. 6291-6317.

    2. Section 429.4 is amended by adding paragraph (b)(3) to read as follows:
    § 429.4 Materials incorporated by reference.

    (b) * * *

    (3) AHAM PAC-1-2015, Portable Air Conditioners, 2015, IBR approved for § 429.62.

    3. Add § 429.62 to read as follows:
    § 429.62 Portable air conditioners.

    (a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to portable air conditioners; and

    (2) For each basic model of portable air conditioner, a sample of sufficient size shall be randomly selected and tested to ensure that—

    (i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

    (A) The mean of the sample:

    EP27NO15.006 Where: x is the sample mean; xi is the ith sample; and n is the number of units in the test sample. Or,

    (B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10:

    EP27NO15.007 Where: x is the sample mean; s is the sample standard deviation; n is the number of units in the test sample; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom. And,

    (ii) Any represented value of the combined energy efficiency ratio or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

    (A) The mean of the sample:

    EP27NO15.008 Where: x is the sample mean; xi is the ith sample; and n is the number of units in the test sample. Or,

    (B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90:

    EP27NO15.009 Where: x is the sample mean; s is the sample standard deviation; n is the number of units in the test sample; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom. And,

    (3) The value of seasonally adjusted cooling capacity of a basic model shall be the mean of the seasonally adjusted cooling capacities for each tested unit of the basic model. Round the mean capacity value to the nearest 50, 100, 200, or 500 Btu/h, depending on the value being rounded, in accordance with Table 1 of AHAM PAC-1-2015, (incorporated by reference, see § 429.4), “Multiples for reporting Dual Duct Cooling Capacity, Single Duct Cooling Capacity, Spot Cooling Capacity, Water Cooled Condenser Capacity and Power Input Ratings.”

    (4) Round the value of combined energy efficiency ratio of a basic model to the nearest 0.1 Btu/Wh.

    (b) Certification reports. [Reserved]

    PART 430—ENERGY CONSERVATION PROGRAM FOR CONSUMER PRODUCTS 4. The authority citation for part 430 continues to read as follows: Authority:

    42 U.S.C. 6291-6309; 28 U.S.C. 2461 note.

    5. Section 430.2 is amended by adding the definition of “portable air conditioner” in alphabetical order to read as follows:
    § 430.2 Definitions.

    Portable air conditioner means an encased assembly, other than a “packaged terminal air conditioner,” “room air conditioner,” or “dehumidifier,” designed as a portable unit for delivering cooled, conditioned air to an enclosed space, that is powered by single-phase electric current, and which may rest on the floor or other elevated surface. It includes a source of refrigeration and may include additional means for air circulation and heating.

    6. Section 430.3 is amended by: a. Revising paragraph (g)(4); b. Redesignating paragraph (i)(8) as (i)(9), and adding a new paragraph (i)(8); and c. Revising paragraph (p)(4).

    The revisions read as follows:

    § 430.3 Materials incorporated by reference.

    (g) * * *

    (4) ANSI/ASHRAE Standard 37-2009, (“ASHRAE 37-2009”), Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment, ANSI approved June 25, 2009, IBR approved for appendix AA and CC to subpart B.

    (i) * * *

    (8) AHAM PAC-1-2015, Portable Air Conditioners, 2015, IBR approved for appendix CC to subpart B.

    (p) * * *

    (4) IEC 62301 (“IEC 62301”), Household electrical appliances—Measurement of standby power, (Edition 2.0, 2011-01), IBR approved for appendices C1, D1, D2, G, H, I, J2, N, O, P, X, X1, Z and CC to subpart B.

    7. Section 430.23 is amended by adding paragraph (dd) to read as follows:
    § 430.23 Test procedures for the measurement of energy and water consumption.

    (dd) Portable air conditioners. (1) For portable air conditioners, measure the seasonally adjusted cooling capacity, expressed in British thermal units per hour (Btu/h), and the combined energy efficiency ratio, expressed in British thermal units per watt-hour (Btu/Wh) in accordance with section 5 of appendix CC of this subpart.

    (2) Determine the estimated annual operating cost for portable air conditioners, expressed in dollars per year, by multiplying the following two factors:

    (i) For dual-duct portable air conditioners, the sum of AEC95 multiplied by 0.2, AEC83 multiplied by 0.8, and AECT as measured in accordance with section 5.3 of appendix CC of this subpart; or for single-duct portable air conditioners, the sum of AECSD and AECT as measured in accordance with section 5.3 of appendix CC of this subpart; and

    (ii) A representative average unit cost of electrical energy in dollars per kilowatt-hour as provided by the Secretary.

    (iii) Round the resulting product to the nearest dollar per year.

    7. Add appendix CC to subpart B of part 430 to read as follows: Appendix CC to Subpart B of Part 430—Uniform Test Method for Measuring the Energy Consumption of Portable Air Conditioners 1. Scope

    This appendix covers the test requirements used to measure the energy performance of single-duct and dual-duct portable air conditioners. It does not contain testing provisions for measuring the energy performance of spot coolers at this time.

    2. Definitions

    2.1 AHAM PAC-1 means the test standard published by the Association of Home Appliance Manufacturers, titled “Portable Air Conditioners,” AHAM PAC-1-2015 (incorporated by reference; see § 430.3).

    2.2 Combined energy efficiency ratio is the energy efficiency of a portable air conditioner as measured in accordance with this test procedure in Btu per watt-hours (Btu/Wh) and determined in section 5.4.

    2.3 Cooling mode means a mode in which a portable air conditioner has activated the main cooling function according to the thermostat or temperature sensor signal, including activating the refrigeration system or the fan or blower without activation of the refrigeration system.

    2.4 Dual-duct portable air conditioner means a portable air conditioner that draws some or all of the condenser inlet air from outside the conditioned space through a duct, and may draw additional condenser inlet air from the conditioned space. The condenser outlet air is discharged outside the conditioned space by means of a separate duct. 2.6 IEC 62301 means the test standard published by the International Electrotechnical Commission, titled “Household electrical appliances—Measurement of standby power,” Publication 62301 (Edition 2.0 2011-01) (incorporated by reference; see § 430.3).

    2.5 Inactive mode means a standby mode that facilitates the activation of an active mode or off-cycle mode by remote switch (including remote control), internal sensor, or timer, or that provides continuous status display.

    2.6 Off-cycle mode means a mode in which a portable air conditioner:

    (1) Has cycled off its main cooling or heating function by thermostat or temperature sensor signal;

    (2) May or may not operate its fan or blower; and

    (3) Will reactivate the main function according to the thermostat or temperature sensor signal.

    2.7 Off mode means a mode in which a portable air conditioner is connected to a mains power source and is not providing any active mode, off-cycle mode, or standby mode function, and where the mode may persist for an indefinite time. An indicator that only shows the user that the portable air conditioner is in the off position is included within the classification of an off mode.

    2.8 Seasonally adjusted cooling capacity means a measure of the cooling, measured in Btu/h, provided to the indoor conditioned space, measured under the specified ambient conditions.

    2.9 Single-duct portable air conditioner means a portable air conditioner that draws all of the condenser inlet air from the conditioned space without the means of a duct, and discharges the condenser outlet air outside the conditioned space through a single duct.

    2.10 Spot cooler means a portable air conditioner that draws condenser inlet air from and discharges condenser outlet air to the conditioned space, and draws evaporator inlet air from and discharges evaporator outlet air to a localized zone within the conditioned space.

    2.11 Standby mode means any mode where a portable air conditioner is connected to a mains power source and offers one or more of the following user-oriented or protective functions which may persist for an indefinite time:

    (1) To facilitate the activation of other modes (including activation or deactivation of cooling mode) by remote switch (including remote control), internal sensor, or timer; or

    (2) Continuous functions, including information or status displays (including clocks) or sensor-based functions. A timer is a continuous clock function (which may or may not be associated with a display) that provides regular scheduled tasks (e.g., switching) and that operates on a continuous basis.

    3. Test Apparatus and General Instructions

    3.1 Active mode.

    3.1.1 Test conduct. The test apparatus and instructions for testing portable air conditioners in cooling mode and off-cycle mode shall conform to the requirements specified in Section 4, “Definitions” and Section 7, “Tests,” of AHAM PAC-1-2015 (incorporated by reference; see § 430.3), except as otherwise specified in this appendix. Where applicable, measure duct heat transfer and infiltration air heat transfer according to section 4.1.1.1 and section 4.1.1.2 of this appendix, respectively.

    3.1.1.1 Duct setup. Use ducting components provided by the manufacturer, including, where provided by the manufacturer, ducts, connectors for attaching the duct(s) to the test unit, and window mounting fixtures. Do not apply additional sealing or insulation.

    3.1.1.2 Single-duct evaporator inlet test conditions. When testing single-duct portable air conditioners, maintain the evaporator inlet dry-bulb temperature within a range of 1.0 °F with an average difference within 0.3 °F.

    3.1.1.3 Condensate Removal. Setup the test unit in accordance with manufacturer instructions. If the unit has an auto-evaporative feature, keep any provided drain plug installed as shipped and do not provide other means of condensate removal. If the internal condensate collection bucket fills during the test, halt the test, remove the drain plug, install a gravity drain line, and start the test from the beginning. If no auto-evaporative feature is available, remove the drain plug and install a gravity drain line. If no auto-evaporative feature or gravity drain is available and a condensate pump is included, or if the manufacturer specifies the use of an included condensate pump during cooling mode operation, then test the portable air conditioner with the condensate pump enabled. For units tested with a condensate pump, apply the provisions in Section 7.1.2 of AHAM PAC-1-2015 (incorporated by reference; see § 430.3) if the pump cycles on and off.

    3.1.1.4 Unit Placement. There shall be no less than 3 feet between any test chamber wall surface and any surface on the portable air conditioner, except the surface or surfaces of the portable air conditioner that include a duct attachment. The distance between the test chamber wall and a surface with one or more duct attachments is prescribed by the test setup requirements in Section 7.3.7 of AHAM PAC-1-2015 (incorporated by reference; see § 430.3).

    3.1.1.5 Electrical supply. Maintain the input standard voltage at 115 V ±1 percent. Test at the rated frequency, maintained within ±1 percent.

    3.1.1.6 Duct temperature measurements. Measure the surface temperatures of each duct using four equally spaced thermocouples per duct, adhered to the outer surface of the entire length of the duct. Temperature measurements must have an error no greater than ±0.5 °F over the range being measured.

    3.1.2 Control settings. Set the controls to the lowest available temperature setpoint for cooling mode. If the portable air conditioner has a user-adjustable fan speed, select the maximum fan speed setting. If the portable air conditioner has an automatic louver oscillation feature, disable that feature throughout testing. If the louver oscillation feature is included but there is no option to disable it, testing shall proceed with the louver oscillation enabled. If the portable air conditioner has adjustable louvers, position the louvers parallel with the airflow to maximize air flow and minimize static pressure loss.

    3.1.3 Measurement resolution and rounding. Record measurements at the resolution of the test instrumentation. Round the seasonally adjusted cooling capacity value in accordance with Table 1 of AHAM PAC-1-2015 (incorporated by reference; see § 430.3). Round CEER as calculated in section 5 of this appendix, to the nearest 0.1 Btu/Wh.

    3.2 Standby mode and off mode.

    3.2.1 Installation requirements. For the standby mode and off mode testing, install the portable air conditioner in accordance with Section 5, Paragraph 5.2 of IEC 62301 (incorporated by reference; see § 430.3), disregarding the provisions regarding batteries and the determination, classification, and testing of relevant modes.

    3.2.2 Electrical energy supply.

    3.2.2.1 Electrical supply. For the standby mode and off mode testing, maintain the input standard voltage at 115 V ±1 percent. Maintain the electrical supply at the rated frequency ±1 percent.

    3.2.2.2 Supply voltage waveform. For the standby mode and off mode testing, maintain the electrical supply voltage waveform indicated in Section 4, Paragraph 4.3.2 of IEC 62301 (incorporated by reference; see § 430.3).

    3.2.3 Standby mode and off mode wattmeter. The wattmeter used to measure standby mode and off mode power consumption must meet the requirements specified in Section 4, Paragraph 4.4 of IEC 62301 (incorporated by reference; see § 430.3).

    3.2.4 Standby mode and off mode ambient temperature. For standby mode and off mode testing, maintain room ambient air temperature conditions as specified in Section 4, Paragraph 4.2 of IEC 62301 (incorporated by reference; see § 430.3).

    4. Test Measurement

    4.1 Cooling mode. Measure the indoor room cooling capacity and overall power input in cooling mode in accordance with Section 7.1.b and 7.1.c of AHAM PAC-1-2015 (incorporated by reference; see § 430.3), respectively. The test duration shall be determined in accordance with Section 8.7 of ASHRAE 37-2009 (incorporated by reference; § 430.3). Substitute the test conditions in Table 3 of AHAM PAC-1-2015 with the test conditions for single-duct and dual-duct portable air conditioners presented in Table 1 of this appendix. For single-duct units, measure the indoor room cooling capacity, CapacitySD, and overall power input in cooling mode, PSD, in accordance with the ambient conditions for test configuration 5, presented in Table 1 of this appendix. For dual-duct units, measure the indoor room cooling capacity and overall power input in accordance with ambient conditions for test configuration 3, condition A (Capacity95, P95), and a second time in accordance with the ambient conditions for test configuration 3, condition B (Capacity83, P83), presented in Table 1 of this appendix.

    Table 1—Evaporator and Condenser Inlet Test Conditions Test configuration Evaporator inlet air, °F (°C) Dry bulb Wet bulb Condenser inlet air, °F (°C) Dry bulb Wet bulb 3 (Condition A) 80 (26.7) 67 (19.4) 95 (35.0) 75 (23.9) 3 (Condition B) 80 (26.7) 67 (19.4) 83 (28.3) 67.5 (19.7) 5 80 (26.7) 67 (19.4) 80 (26.7) 67 (19.4)

    4.1.1. Duct Heat Transfer. Measure the surface temperature of the condenser exhaust duct and condenser inlet duct, where applicable, throughout the cooling mode test. Calculate the average temperature at each individual location, and then calculate the average surface temperature of each duct by averaging the four average temperature measurements taken on that duct. Calculate the surface area (Aduct_j) of each duct according to the following:

    Aduct_j = π × dj × Lj

    Where: dj = the outer diameter of duct “j”. Lj = the extended length of duct “j” while under test. j represents the condenser exhaust duct and, for dual-duct units, condenser inlet duct.

    Calculate the total heat transferred from the surface of the duct(s) to the indoor conditioned space while operating in cooling mode for the outdoor test conditions in Table 1 of this appendix, as follows. For single-duct portable air conditioners:

    Qduct_SD = h×Aduct_j×(Tduct_SD_j−Tei)

    For dual-duct portable air conditioners:

    Qduct_95=∑j{h×Aduct_j×(Tduct_95_j−Tei)}

    Qduct_83=∑j{h×Aduct_j×(Tduct_83_j−Tei)}

    Where: Qduct_SD = for single-duct portable air conditioners, the total heat transferred from the duct to the indoor conditioned space in cooling mode when tested according to the test conditions in Table 1 of this appendix, in Btu/h. Qduct_95 and Qduct_83 = for dual-duct portable air conditioners, the total heat transferred from the ducts to the indoor conditioned space in cooling mode when tested according to the 95 °F dry-bulb and 83 °F dry-bulb outdoor test conditions in Table 1 of this appendix, in Btu/h. h = convection coefficient, 4 Btu/h per square foot per °F. Aduct_j = surface area of duct “j”, in square feet. Tduct_SD_j = average surface temperature for the condenser exhaust duct of single-duct portable air conditioners, as measured during testing according to the test condition in Table 1 of this appendix, in °F. Tduct_95_j and Tduct_83_j = average surface temperature for duct “j” of dual-duct portable air conditioners, as measured during testing according to the two outdoor test conditions in Table 1 of this appendix, in °F. j represents the condenser exhaust duct and, for dual-duct units, condenser inlet duct. Tei = average evaporator inlet air dry-bulb temperature, in °F.

    4.1.2  Infiltration Air Heat Transfer. Measure the heat contribution from infiltration air for single-duct portable air conditioners and dual-duct portable air conditioners that draw at least part of the condenser air from the conditioned space. Calculate the heat contribution from infiltration air for single-duct and dual-duct portable air conditioners for both cooling mode outdoor test conditions, as described in this section. The dry air mass flow rate of infiltration air shall be calculated according to the following equations. For single-duct portable air conditioners:

    EP27NO15.010

    For dual-duct portable air conditioners:

    EP27NO15.011 Where: m SD = dry air mass flow rate of infiltration air for single-duct portable air conditioners, in pounds per minute (lb/m).

    m 95 and m 83 = dry air mass flow rate of infiltration air for dual-duct portable air conditioners, as calculated based on testing according to the test conditions in Table 1 of this appendix, in lb/m.

    Vco_SD, Vco_95, and Vco_83 = average volumetric flow rate of the condenser outlet air during cooling mode testing for single-duct portable air conditioners; and at the 95 °F and 83 °F dry-bulb outdoor conditions for dual-duct portable air conditioners, respectively, in cubic feet per minute (cfm).

    Vci_95, and Vci_83 = average volumetric flow rate of the condenser inlet air during cooling mode testing at the 95 °F and 83 °F dry-bulb outdoor conditions for dual-duct portable air conditioners, respectively, in cfm.

    ρco_SD, ρco_95, and ρco_83 = average density of the condenser outlet air during cooling mode testing for single-duct portable air conditioners, and at the 95 °F and 83 °F dry-bulb outdoor conditions for dual-duct portable air conditioners, respectively, in pounds mass per cubic foot (lbm/ft3).

    ρci_95, and ρci_83 = average density of the condenser inlet air during cooling mode testing at the 95 °F and 83 °F dry-bulb outdoor conditions for dual-duct portable air conditioners, respectively, in lbm/ft3.

    ω co_SD, ω co_95, and ω co_83 = average humidity ratio of condenser outlet air during cooling mode testing for single-duct portable air conditioners, and at the 95 °F and 83 °F dry-bulb outdoor conditions for dual-duct portable air conditioners, respectively, in pounds mass of water vapor per pounds mass of dry air (lbw/lbda).

    ω ci_95, and ω ci_83 = average humidity ratio of condenser inlet air during cooling mode testing at the 95 °F and 83 °F dry-bulb outdoor conditions for dual-duct portable air conditioners, respectively, in lbw/lbda.

    For single-duct and dual-duct portable air conditioners, calculate the sensible component of infiltration air heat contribution according to the following:

    Q s _95 = m × 60 × [(c p_da × (T ia _95T indoor)) + c p _wv × (ω ia _95 × T ia _95−ω indoor × T indoor)] Q s _83 = m × 60 × [(c p_da × (T ia _83T indoor)) + c p _wv × (ω ia _83 × T ia _83−ω indoor × T indoor)] Where: Qs_95 and Qs_83 = sensible heat added to the room by infiltration air, calculated at the 95 °F and 83 °F dry-bulb outdoor conditions in Table 1 of this appendix, in Btu/h. m = dry air mass flow rate of infiltration air, m SD or m 95 when calculating Qs_95 and m SD or m 83 when calculating Qs_83, in lb/m. cp_da = specific heat of dry air, 0.24 Btu/lbm− °F. cp_wv = specific heat of water vapor, 0.444 Btu/lbm− °F. Tindoor = indoor chamber dry-bulb temperature, 80 °F. Tia_95 and Tia_83 = infiltration air dry-bulb temperatures for the two test conditions in Table 1 of this appendix, 95 °F and 83 °F, respectively. ω ia_95 and ω ia_83 = humidity ratios of the 95 °F and 83 °F dry-bulb infiltration air, 0.0141 and 0.01086 lbw/lbda, respectively. ω indoor = humidity ratio of the indoor chamber air, 0.0112 lbw/lbda.

    60 = conversion factor from minutes to hours.

    Calculate the latent heat contribution of the infiltration air according to the following:

    Q l _95 = m × 60 × H fg × (ω ia _95−ω indoor) Q l _83 = m × 60 × H fg × (ω ia _83−ω indoor)
    Where: Q l_95 and Q l_83 = latent heat added to the room by infiltration air, calculated at the 95 °F and 83 °F dry-bulb outdoor conditions in Table 1 of this appendix, in Btu/h. m = mass flow rate of infiltration air, m SD or m 95 when calculating Ql,95 and m SD or m 83 when calculating Ql_83, in lb/m. Hfg = latent heat of vaporization for water vapor, 1061 Btu/lbm. ω ia_95 and ω ia_83 = humidity ratios of the 95 °F and 83 °F dry-bulb infiltration air, 0.0141 and 0.01086 lbw/lbda, respectively. ω indoor = humidity ratio of the indoor chamber air, 0.0112 lbw/lbda. 60 = conversion factor from minutes to hours.

    The total heat contribution of the infiltration air is the sum of the sensible and latent heat:

    Q infiltration _95 = Q s _95 + Q l _95 Q infiltration _83 = Q s _83 + Q l _83 Where: Q infiltration_95 and Q infiltration_83 = total infiltration air heats in cooling mode, calculated at the 95 °F and 83 °F dry-bulb outdoor conditions in Table 1 of this appendix, in Btu/h. Q s_95 and Q s_83 = sensible heat added to the room by infiltration air, calculated at the 95 °F and 83 °F dry-bulb outdoor conditions in Table 1 of this appendix, in Btu/h. Q l_95 and Q l_83 = latent heat added to the room by infiltration air, calculated at the 95 °F and 83 °F dry-bulb outdoor conditions in Table 1 of this appendix, in Btu/h.

    4.2 Off-cycle mode. Establish the test conditions specified in section 3.1.1 of this appendix for off-cycle mode, except that the duct measurements in section 3.1.1.6 shall not be used and the wattmeter specified in section 3.2.3 of this appendix shall be used. Begin the off-cycle mode test period 5 minutes following the cooling mode test period. Adjust the setpoint higher than the ambient temperature to ensure the product will not enter cooling mode and begin the test 5 minutes after the compressor cycles off due to the change in setpoint. The off-cycle mode test period shall be 2 hours in duration, during which the power consumption is recorded at the same intervals as recorded for cooling mode testing. Measure and record the average off-cycle mode power of the portable air conditioner, Poc, in watts.

    4.3 Standby mode and off mode. Establish the testing conditions set forth in section 3.2 of this appendix, ensuring that the portable air conditioner does not enter any active modes during the test. For portable air conditioners that take some time to enter a stable state from a higher power state as discussed in Section 5, Paragraph 5.1, Note 1 of IEC 62301, (incorporated by reference; see § 430.3), allow sufficient time for the portable air conditioner to reach the lowest power state before proceeding with the test measurement. Follow the test procedure specified in Section 5, Paragraph 5.3.2 of IEC 62301 for testing in each possible mode as described in sections 4.3.1 and 4.3.2 of this appendix.

    4.3.1 If the portable air conditioner has an inactive mode, as defined in section 2.5 of this appendix, but not an off mode, as defined in section 2.7 of this appendix, measure and record the average inactive mode power of the portable air conditioner, Pia, in watts.

    4.3.2 If the portable air conditioner has an off mode, as defined in section 2.7 of this appendix, measure and record the average off mode power of the portable air conditioner, Pom, in watts.

    5. Calculation of Derived Results From Test Measurements

    5.1 Adjusted Cooling Capacity. Calculate the adjusted cooling capacities for portable air conditioners, ACC95 and ACC83, expressed in Btu/h, according to the following equations. For single-duct portable air conditioners:

    ACC 95 = Capacity SDQ duct_SDQ infiltration _95 ACC 83 = Capacity SDQ duct_SDQ infiltration _83

    For dual-duct portable air conditioners:

    ACC 95 = Capacity 95Q duct_ 95Q infiltration _95 ACC 83 = Capacity 83Q duct_ 83Q infiltration _83 Where: CapacitySD, Capacity95, and Capacity83 = cooling capacity measured in section 4.1.1 of this appendix. Q duct_SD, Q duct_95, and Q duct_83 = duct heat transfer while operating in cooling mode, calculated in section 4.1.1.1 of this appendix. Q infiltration_95 and Q infiltration_83 = total infiltration air heat transfer in cooling mode, calculated in section 4.1.1.2 of this appendix.

    5.2 Seasonally Adjusted Cooling Capacity. Calculate the seasonally adjusted cooling capacity for portable air conditioners, SACC, expressed in Btu/h, according to the following:

    SACC = ACC 95 × 0.2 + ACC 83 × 0.8 Where: ACC95 and ACC83 = adjusted cooling capacity, in Btu/h, calculated in section 5.1 of this appendix. 0.2 = weighting factor for ACC95. 0.8 = weighting factor for ACC83.

    5.3 Annual Energy Consumption. Calculate the annual energy consumption in each operating mode, AECm, expressed in kilowatt-hours per year (kWh/year). The annual hours of operation in each mode are estimated as follows:

    Operating mode Annual
  • operating hours
  • Cooling Mode, Dual-Duct 95 °F 1 750 Cooling Mode, Dual-Duct 83 °F 1 750 Cooling Mode, Single-Duct 750 Off-Cycle 880 Inactive or Off 1,355 1 These operating mode hours are for the purposes of calculating annual energy consumption under different ambient conditions for dual-duct portable air conditioners, and are not a division of the total cooling mode operating hours. The total dual-duct cooling mode operating hours are 750 hours.
    AEC m = P m × t m × k Where: AECm = annual energy consumption in each mode, in kWh/year. Pm = average power in each mode, in watts. m represents the operating mode (“95” and “83” cooling mode at the 95 °F and 83 °F dry-bulb outdoor conditions, respectively for dual-duct portable air conditioners, “SD” cooling mode for single-duct portable air conditioners, “oc” off-cycle, and “ia” inactive or “om” off mode). t = number of annual operating time in each mode, in hours. k = 0.001 kWh/Wh conversion factor from watt-hours to kilowatt-hours.

    Total annual energy consumption in all modes except cooling, is calculated according to the following:

    AEC T = ∑m AEC m Where: AECT = total annual energy consumption attributed to all modes except cooling, in kWh/year; AECm = total annual energy consumption in each mode, in kWh/year. m represents the operating modes included in AECT (“oc” off-cycle, and “im” inactive or “om” off mode).

    5.4 Combined Energy Efficiency Ratio. Using the annual operating hours, as outlined in section 5.3 of this appendix, calculate the combined energy efficiency ratio, CEER, expressed in Btu/Wh, according to the following:

    EP27NO15.012 Where: CEERSD and CEERDD = combined energy efficiency ratio for single-duct and dual-duct portable air conditioners, respectively, in Btu/Wh. ACC95 and ACC83 = adjusted cooling capacity, tested at the 95 °F and 83 °F dry-bulb outdoor conditions in Table 1 of this appendix, in Btu/h, calculated in section 5.1 of this appendix. AECSD = annual energy consumption in cooling mode for single-duct portable air conditioners, in kWh/year, calculated in section 5.3 of this appendix. AEC95 and AEC83 = annual energy consumption for the two cooling mode test conditions in Table 1 of this appendix for dual-duct portable air conditioners, in kWh/year, calculated in section 5.3 of this appendix. AECT = total annual energy consumption attributed to all modes except cooling, in kWh/year, calculated in section 5.3 of this appendix. t = number of cooling mode hours per year, 750. k = 0.001 kWh/Wh conversion factor for watt-hours to kilowatt-hours. 0.2 = weighting factor for the 95 °F dry-bulb outdoor condition test. 0.8 = weighting factor for the 83 °F dry-bulb outdoor condition test. [FR Doc. 2015-30057 Filed 11-25-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5810; Directorate Identifier 2014-NM-116-AD] RIN 2120-AA64 Airworthiness Directives; Fokker Services B.V. Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. This proposed AD was prompted by a design review that revealed that a wiring failure, external to the center wing fuel tank, could cause a hot short circuit to a maximum level sensor wire, and result in excessive heating of the maximum level sensor element. This proposed AD would require modifying the wiring of the maximum level sensors in the center wing fuel tank, performing after-installation tests, and corrective action if necessary. This proposed AD would also require revising the airplane maintenance or inspection program to incorporate fuel airworthiness limitation items and critical design configuration control limitations. We are proposing this AD to prevent 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.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: (202) 493-2251.

    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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5810; 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 Operations office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    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-2015-5810; Directorate Identifier 2014-NM-116-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0138, dated May 30, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes. The MCAI states:

    * * * [T]he FAA published Special Federal Aviation Regulation (SFAR) 88, and the Joint Aviation Authorities (JAA) published Interim Policy INT/POL/25/12.

    The review conducted by Fokker Services on the Fokker 70/100 design, in response to these regulations, revealed that a wiring failure, external to the centre wing fuel tank, causing a hot short circuit to a maximum (max) level sensor wire may result in excessive heating of the max level sensor element.

    This condition, if not corrected, could create an ignition source in the centre wing fuel tank vapour space, possibly resulting in a fuel tank explosion and consequent loss of the aeroplane.

    EASA issued AD 2012-0240 [http://ad.easa.europa.eu/blob/easa_ad_2012_0240.pdf/AD_2012-0240], to address this unsafe condition, which required installation of three fuses in the wiring of the max level sensor(s) in the centre wing fuel tank per Fokker Services Service Bulletin (SB) SBF100-28-073. After that AD was issued, it was found that this technical solution caused fuel spills during refueling and, consequently, EASA cancelled AD 2012-0240.

    More recently, Fokker Services issued SBF100-28-078, which cancelled SBF100-28-073, to correct the unsafe condition without the risk of fuel spills.

    For the reasons described above, this [EASA] AD requires removal of one fuse from post-SBF100-28-073 aeroplanes, and installation of only two fuses on pre-SBF100-28-073 aeroplanes and, subsequently, the implementation of the associated Critical Design Configuration Control Limitation (CDCCL) items.

    More information this subject can be found in Fokker Services All Operators Message AOF100.186#03.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2015-5810.

    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, combination of failures, and unacceptable (failure) experience. For all three failure criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

    The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European States who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

    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.

    Related Service Information Under CFR Part 51

    Fokker has issued Service Bulletin SBF100-28-078, dated January 23, 2014. The service information describes procedures for modifying the wiring of the maximum level sensors in the center wing fuel tank, after-installation tests, and corrective action if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    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.

    Costs of Compliance

    We estimate that this proposed AD affects 15 airplanes of U.S. registry.

    We also estimate that it would take up to 9 work-hours per product to modify the wiring of the maximum level sensors in the center wing fuel tank, as specified in this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $1,700 per product. Based on these figures, we estimate the cost of this proposed modification on U.S. operators to be up to $36,975, or up to $2,465 per product.

    We also estimate that it would take about 1 work-hour per product to revise the maintenance or inspection program as specified in this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed revision on U.S. operators to be $1,275, or $85 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);

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Fokker Services B.V.: Docket No. FAA-2015-5810; Directorate Identifier 2014-NM-116-AD. (a) Comments Due Date

    We must receive comments by January 11, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Fokker Services B.V. Model F.28 Mark 0070 and 0100 airplanes, certificated in any category, equipped with a center wing tank.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a design review which revealed that a wiring failure, external to the center wing fuel tank, could cause a hot short circuit to a maximum level sensor wire, and result in excessive heating of the maximum level sensor element. We are issuing this AD to prevent 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.

    (f) Compliance

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

    (g) Wiring Modification

    Within 24 months after the effective date of this AD: Modify the wiring of the maximum level sensors of the center wing fuel tank, as specified in paragraph (g)(1) or (g)(2) of this AD, as applicable. Before further flight after accomplishing the modification, do all applicable tests and corrective actions, in accordance with Part 5 of the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-078, dated January 23, 2014.

    (1) For post-SBF100-28-073 configuration airplanes: Do the modification in accordance with Part 1 or Part 3, as applicable, of the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-078, dated January 23, 2014.

    (2) For pre-SBF100-28-073 configuration airplanes: Do the modification in accordance with Part 2 or Part 4, as applicable, of the Accomplishment Instructions of Fokker Service Bulletin SBF100-28-078, dated January 23, 2014.

    (h) Revise Maintenance or Inspection Program

    Within 30 days after installing the modification specified in paragraph (g)(1) or (g)(2) of this AD, as applicable: Revise the airplane maintenance or inspection program, as applicable, to incorporate the fuel airworthiness limitation items and critical design configuration control limitations (CDCCLs) specified in paragraph 2.L.(1)(c) of Fokker Service Bulletin SBF100-28-078, dated January 23, 2014.

    (i) No Alternative Actions, Intervals, and/or CDCCLs

    After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (e.g., inspections), intervals, or CDCCLs may be used unless the actions, intervals, or CDCCLs are approved as an alternative method of compliance in accordance with the procedures specified in paragraph (j)(1) of this AD.

    (j) Other FAA AD Provisions

    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. 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 International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] 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.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Fokker B.V. Service's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0138, dated May 30, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2015-5810.

    (2) For service information identified in this AD, contact Fokker Services B.V., Technical Services Dept., P.O. Box 1357, 2130 EL Hoofddorp, the Netherlands; telephone +31 (0)88-6280-350; fax +31 (0)88-6280-111; email [email protected]; Internet http://www.myfokkerfleet.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 17, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30007 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5815; Directorate Identifier 2015-NM-039-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A330-200 and -300 series airplanes; and all Model A340-200, -300, -500, and -600 series airplanes. This proposed AD was prompted by reports that the potable water service panel access door was lost during flight. This proposed AD would require modifying affected potable water service panel access doors. We are proposing this AD to prevent failure of the latching mechanism of the potable water service panel access door, which could result in the loss of the potable water service panel access door during flight, and resultant damage to the airplane (e.g., damage to the trimmable horizontal stabilizer) that could cause loss of control of the airplane.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: 202-493-2251.

    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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5815; 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 Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    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-2015-5815; Directorate Identifier 2015-NM-039-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0028R1, dated May 29, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200 and -300 series airplanes; and Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

    Several cases have been reported in which the potable water service panel access door was lost during flight, causing damage to the trimmable horizontal stabilizer. The results of subsequent investigations showed that these events were due to failure of the latching mechanism of the potable water service panel access door.

    This condition, if not corrected, could lead to further cases of in-flight loss of the potable water service panel access door, possibly resulting in injury to persons on ground and/or damage to the aeroplane [(e.g., damage to the trimmable horizontal stabilizer)].

    To address this condition, Airbus developed a modification and published Service Bulletin (SB) A330-52-3086, SB A340-52-4094 and SB A340-52-5019, to provide instructions for in-service accomplishment of that modification.

    Consequently, EASA issued AD 2015-0028 to require modification of the potable water service panel access door 164AR for A330/A340-200/-300 aeroplanes or 154BR for A340-500/-600 aeroplanes, which includes installation of reinforced hinge screws and more robust latches.

    Since that [EASA] AD was issued, it was determined that aeroplanes that have embodied Airbus Mod 201938 (Improvement of latching mechanism of potable water service panel) are also not affected by the requirements of this [EASA] AD.

    For the reason described above, this [EASA] AD is revised to exclude post-mod 201938 aeroplanes from the Applicability.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5815.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information.

    • Airbus Service Bulletin A330-52-3086, Revision 01, dated April 25, 2014.

    • Airbus Service Bulletin A340-52-4094, Revision 01, dated April 25, 2014.

    • Airbus Service Bulletin A340-52-5019, Revision 01, dated April 25, 2014.

    The service information describes procedures for modifying the affected potable water service panel access door. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    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 these same type designs.

    Explanation of “RC” Procedures and Tests in Service Information

    The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which procedures and tests in the service information are required for compliance with an AD. Differentiating these procedures and tests from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The procedures and tests identified as RC (required for compliance) in any service information have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

    As specified in a NOTE under the Accomplishment Instructions of the specified service information, procedures and tests that are identified as RC in any service information must be done to comply with the proposed AD. However, procedures and tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC will require approval of an AMOC.

    Costs of Compliance

    We estimate that this proposed AD affects 63 airplanes of U.S. registry.

    We also estimate that it would take about 21 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $15,280 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $1,075,095, or $17,065 per product.

    According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2015-5815; Directorate Identifier 2015-NM-039-AD. (a) Comments Due Date

    We must receive comments by January 11, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.

    (1) Airbus Model A330-201, -202, -203, -223, -243, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers, except those on which Airbus modification 201715, or Airbus modification 201796, or Airbus modification 201938 has been embodied in production.

    (2) Airbus Model A340-211, -212, -213, -311, -312, -313, -541, and -642 airplanes, all manufacturing serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Reason

    This AD was prompted by reports that the potable water service panel access door was lost during flight. We are issuing this AD to prevent failure of the latching mechanism of the potable water service panel access door, which could result in the loss of the potable water service panel access door during flight, and resultant damage to the airplane (e.g., damage to the trimmable horizontal stabilizer) that could cause loss of control of the airplane.

    (f) Compliance

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

    (g) Modification

    (1) Except as required by paragraph (g)(2) of this AD, within 36 months after the effective date of this AD, modify the affected potable water service panel access door, in accordance with the Accomplishment Instructions of the service information identified in paragraph (g)(1)(i), (g)(1)(ii), or (g)(1)(iii) of this AD, as applicable to airplane type and model.

    (i) Airbus Service Bulletin A330-52-3086, Revision 01, dated April 25, 2014.

    (ii) Airbus Service Bulletin A340-52-4094, Revision 01, dated April 25, 2014.

    (iii) Airbus Service Bulletin A340-52-5019, Revision 01, dated April 25, 2014.

    (2) For airplanes that have already been modified before the effective date of this AD, as specified in the service information identified in paragraph (g)(2)(i), (g)(2)(ii), or (g)(2)(iii) of this AD, as applicable to airplane type and model: Within 16 months after the effective date of this AD, modify the potable water service panel access door by accomplishing the actions identified as “additional work,” as specified in and in accordance with the Accomplishment Instructions of the service information identified in paragraph (g)(1)(i), (g)(1)(ii), or (g)(1)(iii) of this AD, as applicable to airplane type and model.

    (i) Airbus Service Bulletin A330-52-3086, dated April 27, 2012.

    (ii) Airbus Service Bulletin A340-52-4094, dated April 27, 2012.

    (iii) Airbus Service Bulletin A340-52-5019, dated May 29, 2012.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] 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. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0028R1, dated May 29, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5815.

    (2) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 17, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30024 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5814; Directorate Identifier 2014-NM-247-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A318, A319, and A320 series airplanes. This proposed AD was prompted by reports of an operator finding chafing damage on the fuselage skin at the bottom of certain frames, underneath the fairing structure. This proposed AD would require a repetitive detailed inspection for damage on the fuselage skin at certain frames, and applicable related investigative and corrective actions. We are proposing this AD to detect and correct damage to the fuselage skin, which could lead to crack initiation and propagation, possibly resulting in reduced structural integrity of the fuselage.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: 202-493-2251.

    • 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5814; 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 Operations office (telephone 800-647-5527) 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, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    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-2015-5814; Directorate Identifier 2014-NM-247-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2014-0259, dated December 5, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318, A319, and A320 series airplanes. The MCAI states:

    An operator reported finding chafing damage on the fuselage skin at the bottom of frame (FR) 34 junction between stringer (STR) 43 left hand (LH) side and right hand (RH) side on several aeroplanes, underneath the fairing structure.

    After investigation, a contact between the fairing nut plate and the fuselage was identified, causing damage to the fuselage.

    This condition, if not detected and corrected, could lead to crack initiation and propagation, possibly resulting in reduced structural integrity of the fuselage.

    For the reason described above, this [EASA] AD requires repetitive detailed inspections (DET) of the fuselage [for chafing] at FR 34 and provides an optional terminating action [modification of the belly fairing] to the repetitive inspections required by this [EASA] AD.

    Related investigative actions include a special detailed inspection of external fuselage skin panel for any cracking, and measurement of crack length and remaining thickness. Corrective actions include repair or modification of the fuselage skin panel. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5814.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A320-53-1281, Revision 01, dated December 1, 2014; and Service Bulletin A320-53-1287, dated July 29, 2014. The service information describes procedures for a detailed inspection for damage (including chafing marks) on the fuselage skin at FR34 between STR43 LH and RH sides, and applicable related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    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 these same type designs.

    Explanation of “RC” Procedures and Tests in Service Information

    The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which procedures and tests in the service information are required for compliance with an AD. Differentiating these procedures and tests from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The procedures and tests identified as Required for Compliance (RC) in any service information have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

    As specified in a Note under the Accomplishment Instructions of the specified service information, procedures and tests that are identified as RC in any service information must be done to comply with the proposed AD. However, procedures and tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an alternative method of compliance (AMOC), provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC will require approval of an AMOC.

    Costs of Compliance

    We estimate that this proposed AD affects 642 airplanes of U.S. registry.

    We also estimate that it would take about 12 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $90 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $712,620, or $1,110 per product.

    In addition, we estimate that any necessary follow-on actions would take about 21 work-hours and require parts costing $3,550, for a cost of $5,335 per product. We have no way of determining the number of aircraft that might need this action.

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2015-5814; Directorate Identifier 2014-NM-247-AD. (a) Comments Due Date

    We must receive comments by January 11, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, certificated in any category, all manufacturer serial numbers, except those on which Airbus Modification 37878 has been embodied in production, or Airbus Service Bulletin A320-53-1281 has been done in service.

    (1) Airbus Model A318-111, -112, -121, and -122 airplanes.

    (2) Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Airbus Model A320-211, -212, -214, -231, -232, and -233 airplanes

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by reports of chafing damage on the fuselage skin at the bottom of certain frames, underneath the fairing structure. We are issuing this AD to detect and correct damage to the fuselage skin, which could lead to crack initiation and propagation, possibly resulting in reduced structural integrity of the fuselage.

    (f) Compliance

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

    (g) Repetitive Inspection and Corrective Action

    (1) Within the compliance times identified in paragraphs (g)(1)(i) and (g)(1)(ii) of this AD, whichever occurs later, do a detailed inspection for damage (including chafing marks) on the fuselage skin at frame (FR)34 between stringer (STR)43 on the left-hand and right-hand sides, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1287, dated July 29, 2014. Repeat the inspection thereafter at intervals not to exceed 12,000 flight cycles or 24,000 flight hours, whichever occurs first.

    (i) Before exceeding 12,000 flight cycles or 24,000 flight hours, whichever occurs first since the airplane's first flight.

    (ii) Within 5,000 flight cycles or 10,000 flight hours, whichever occurs first after the effective date of this AD.

    (2) If any damage is detected during any inspection required by paragraph (g)(1) of this AD, before further flight, do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1287, dated July 29, 2014, except as required by paragraph (g)(3) of this AD.

    (3) If any cracking is found during any related investigative action required by paragraph (g)(2) of this AD, or if any damage detected during the inspection required by paragraph (g)(1) of this AD exceeds the limits defined in the Accomplishment Instructions of Airbus Service Bulletin A320-53-1287, dated July 29, 2014, before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (h) Non-Terminating Repair Action

    Accomplishment of a repair on an airplane as required by paragraphs (g)(2) and (g)(3) of this AD, does not constitute terminating action for the repetitive detailed inspection required by paragraph (g)(1) of this AD, unless the approved repair indicates otherwise.

    (i) Terminating Action for the Repetitive Detailed Inspection

    Modification of the belly fairing on any airplane in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-53-1281, Revision 01, dated December 1, 2014, constitutes terminating action for the repetitive detailed inspection required by paragraph (g)(1) of this AD for that airplane.

    (j) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (i) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-53-1281, dated July 29, 2014, which is not incorporated by reference in this AD.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected] 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. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or Airbus's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0259, dated December 5, 2014, for related information.

    This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5814.

    (2) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 17, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30023 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5812; Directorate Identifier 2015-NM-077-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2011-23-05, which applies to certain The Boeing Company Model 737-300, -400, and -500 series airplanes. AD 2011-23-05 currently requires repetitive inspections for cracking of the 1.04-inch nominal diameter wire penetration hole, and applicable related investigative and corrective actions. Since we issued AD 2011-23-05, an evaluation by the design approval holder (DAH) indicates that the fuselage frames and frame reinforcements are subject to widespread fatigue damage (WFD). This proposed AD would add new inspection areas, a modification that terminates certain inspections, post-modification inspections, and repair if necessary. We are proposing this AD to detect and correct fatigue cracking of the fuselage frames and frame reinforcements, which could result in reduced structural integrity of the airplane.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: 202-493-2251.

    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 service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this 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 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5812.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5812; 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: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email: [email protected]

    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-2015-5812; Directorate Identifier 2015-NM-077-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

    Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as WFD. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

    The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

    The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

    In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

    On October 20, 2011, we issued AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), for certain Model 737-300, -400, and -500 series airplanes. AD 2011-23-05 superseded AD 2009-02-06 R1, Amendment 39-16015 (74 FR 45979, September 8, 2009). AD 2011-23-05 requires repetitive inspections for cracking of the 1.04-inch nominal diameter wire penetration hole, and applicable related investigative and corrective actions. AD 2011-23-05 resulted from reports of cracking in the frame, or in the frame and frame reinforcement, common to the 1.04-inch nominal diameter wire penetration hole intended for wire routing; and recent reports of multiple adjacent frame cracking found before the compliance time required by AD 2009-02-06 R1. We issued AD 2011-23-05 to detect and correct cracking in the fuselage frames and frame reinforcements, which could reduce the structural capability of the frames to sustain limit loads, and result in cracking in the fuselage skin and subsequent rapid depressurization of the airplane.

    Actions Since AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), Was Issued

    Since we issued AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), an evaluation by the DAH indicates that the fuselage frames and frame reinforcements are subject to WFD.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. The service information describes procedures for the following actions.

    • Inspections of wire penetration holes, standoff/tooling holes, and the production fastener holes for cracking in the forward cargo compartment frames and frame reinforcements, between stringer (S) S-19 and S-22, on both left and right sides of the airplane.

    • A preventive modification of frames between S-19 and S-22.

    • Post-modification inspections.

    • Repairs.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    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 these same type designs.

    Proposed AD Requirements

    This proposed AD would retain all requirements of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011). This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5812.

    Differences Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Explanation of Compliance Time

    The compliance time for the modification specified in this proposed AD for addressing WFD was established to ensure that discrepant structure is modified before WFD develops in airplanes. Standard inspection techniques cannot be relied on to detect WFD before it becomes a hazard to flight. We will not grant any extensions of the compliance time to complete any AD-mandated service bulletin related to WFD without extensive new data that would substantiate and clearly warrant such an extension.

    Costs of Compliance

    We estimate that this proposed AD affects 605 airplanes of U.S. registry.

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

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections [retained actions from AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011) 16 work-hours × $85 per hour = $1,360 per inspection cycle $0 $1,360 per inspection cycle $822,800 per inspection cycle. Inspections [new proposed action] 32 work-hours × $85 per hour = $2,720 per inspection cycle 0 $2,720 per inspection cycle $1,645,600 per inspection cycle. Modification [new proposed action] 32 work-hours × $85 per hour = $2,720 0 $2,720 $1,645,600.

    We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Repair 18 work-hours × $85 per hour = $1,530 None $1,530
    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 have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

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

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

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), and adding the following new AD: The Boeing Company: Docket No. FAA-2015-5812; Directorate Identifier 2015-NM-077-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by January 11, 2016.

    (b) Affected ADs

    This AD replaces AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011).

    (c) Applicability

    This AD applies to The Boeing Company Model 737-300, -400, and -500 series airplanes; certificated in any category; as identified in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) indicates that the fuselage frames and frame reinforcements are subject to widespread fatigue damage (WFD). We are issuing this AD to detect and correct fatigue cracking of the fuselage frames and frame reinforcements, which could result in reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Retained Inspection, With References To Terminating Actions

    This paragraph restates the requirements of paragraph (g) of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), with references to terminating actions. At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, except as required by paragraphs (k)(1), (k)(2), and (k)(4) of this AD: Do a high frequency eddy current (HFEC) surface or HFEC hole/edge inspection for any cracking of the 1.04-inch nominal diameter wire penetration hole in the frame and frame reinforcement between stringer (S) S-20 and S-21, in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011. Accomplishment of the applicable inspections required by paragraphs (m) and (n) of this AD terminates the inspections required by this paragraph. Accomplishment of the modification required by paragraph (p) of this AD terminates the inspections required by this paragraph for the modified area only.

    (h) Retained Repetitive Inspections, With References To Terminating Actions

    This paragraph restates the requirements of paragraph (h) of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), with references to terminating actions. Within 4,500 flight cycles after accomplishment of the most recent inspection specified in Part 2 or Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, or within 90 days after November 16, 2011 (the effective date of AD 2011-23-05), whichever occurs later: Do an HFEC hole/edge inspection for cracking of the 1.04-inch nominal diameter wire penetration hole in the frame and frame reinforcement between S-20 and S-21, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011. Repeat the inspection thereafter at intervals not to exceed 4,500 flight cycles. Accomplishment of the applicable inspections required by paragraphs (m) and (n) of this AD, terminates the inspections required by this paragraph. Accomplishment of the modification specified in paragraph (j) or (p) of this AD terminates the repetitive inspections required by this paragraph for the modified area only. Accomplishment of the repair specified in paragraph (i) of this AD terminates the repetitive inspections required by this paragraph for the repaired area only.

    (i) Retained Repair, With No Changes

    This paragraph restates the requirements of paragraph (i) of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), with no changes. If any cracking is found during any inspection required by paragraph (g) or (h) of this AD: Before further flight, repair the crack including doing all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, except as required by paragraph (k)(3) of this AD. All applicable related investigative and corrective actions must be done before further flight. Accomplishment of the requirements of this paragraph terminates the repetitive inspection requirements of paragraph (h) of this AD for the repaired location of that frame.

    (j) Retained Optional Terminating Action, With New Limitation

    This paragraph restates the optional action provided in paragraph (j) of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), with new limitation. Accomplishment of the preventive modification before the effective date of this AD, including doing all related investigative and applicable corrective actions, specified in Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, except as required by paragraph (k)(3) of this AD, terminates the repetitive inspection requirements of paragraph (h) of this AD for the modified location of that frame, provided the modification is done before further flight after an inspection required by paragraph (g) or (h) of this AD has been done, and no cracking was found on that frame location during that inspection.

    (k) Retained Exceptions to Service Information Specifications, With No Changes

    This paragraph restates the requirements of paragraph (k) of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), with no changes. The following exceptions apply as specified in paragraphs (g), (i), and (j) of this AD.

    (1) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, refers to a compliance time “from date on Revision 1 of this service bulletin,” this AD requires compliance within the specified compliance time after November 16, 2011 (the effective date of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011)).

    (2) For airplanes meeting all of the criteria specified in paragraphs (k)(2)(i), (k)(2)(ii), and (k)(2)(iii) of this AD: The compliance time for the initial inspection specified in Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, and required by paragraph (g) of this AD, may be extended to 90 days after November 16, 2011 (the effective date of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011)).

    (i) Model 737-300 series airplanes in Group 1, line numbers 1001 through 2565 inclusive;

    (ii) Airplanes that have accumulated 40,000 or more total flight cycles as of November 16, 2011 (the effective date of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011)); and

    (iii) Airplanes on which the modification specified in Boeing Service Bulletin 737-53-1273, dated September 20, 2006; Revision 1, dated December 21, 2006; Revision 2, dated June 4, 2007; Revision 3, dated December 7, 2009; or Revision 4, dated July 23, 2010; has been done, including any configuration or deviation that has been approved as an AMOC during accomplishment of these service bulletins, by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle Aircraft Certification Office (ACO) to make those findings.

    (3) Where Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, specifies to contact Boeing for appropriate repair instructions: Before further flight, repair the crack using a method approved in accordance with the procedures specified in paragraph (u) of this AD.

    (4) The “Condition” column of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, refers to total flight cycles “at the date of/on this service bulletin.” However, this AD applies to the airplanes with the specified total flight cycles as of November 16, 2011 (the effective date of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011)).

    (l) Retained Credit for Previous Actions, With No Changes

    This paragraph restates the requirements of paragraph (l) of AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011), with no changes. Actions done in accordance with Boeing Alert Service Bulletin 737-53A1279, dated December 18, 2007, before November 16, 2011 (the effective date of AD 2011-23-05), are acceptable for compliance with the corresponding actions required by paragraphs (g), (h), (i), and (j) of this AD.

    (m) New Requirement of This AD: Inspections of Frames and Frame Reinforcements Between S-19 and S-22 for Certain Airplanes on Which Certain Inspections Have Not Been Accomplished

    For airplanes identified as Groups 1 through 6, Configuration 3, in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, with 30,000 total flight cycles or fewer as of the effective date of this AD, on which any inspections specified in Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011, have not been accomplished: Except as required by paragraphs (t)(1) and (t)(2) of this AD, at the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, or within 4,500 flight cycles after the effective date of this AD, whichever occurs later, do inspections for cracking at certain locations in the frames and frame reinforcements in accordance with “Part 2—Initial Detail and HFEC Inspection” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Repeat the inspections for cracking at certain locations in the frames and frame reinforcements as specified in “Part 4—Repeat Detail and HFEC Inspections” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015; or, before further flight after accomplishing an inspection and no cracking was found, do “Part 5—Preventative Modification” as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Accomplishment of the preventive modification specified in this paragraph terminates the repetitive inspections required by this paragraph for the modified area only. Do all actions specified in this paragraph in accordance with Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015.

    (n) New Requirement of This AD: Inspections of Frames and Frame Reinforcements Between S-19 and S-22 for Groups 1-6, Configuration 3, Airplanes

    For airplanes identified as Groups 1 through 6, Configuration 3, in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, with more than 30,000 total flight cycles as of the effective date of this AD, or that have been inspected as specified in Boeing Alert Service Bulletin 737-53A1279, Revision 1, dated September 2, 2011: Except as required by paragraphs (t)(1) and (t)(2) of this AD, at the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, do inspections for cracking at certain locations of the frames and frame reinforcements in accordance with “Part 4—Repeat Detail and HFEC Inspections” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Repeat the inspections thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015; or, before further flight after accomplishing an inspection and no cracking was found, do “Part 5—Preventative Modification” as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Accomplishment of the preventive modification specified in this paragraph terminates the repetitive inspections required by this paragraph for the modified area only.

    (o) New Requirement of This AD: Repairs

    If any crack is found during any inspection required by paragraph (m) or (n) of this AD: Before further flight, repair, in accordance with “Part 3—Repair” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, except where Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, specifies to contact Boeing for damage removal and repair instructions, repair before further flight using a method approved in accordance with the procedures specified in paragraph (u) of this AD. Accomplishing a repair terminates the inspections required by paragraphs (m) and (n) of this AD in the repaired area only. Accomplishment of a repair terminates the modification required by paragraph (p) of this AD at the repaired location only.

    (p) New Requirement of This AD: Preventative Modification of the Frames Between S-19 and S-22

    For airplanes identified as Groups 1 through 6, Configuration 3, in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015: Except as required by paragraphs (t)(1) and (t)(2) of this AD, at the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, do the preventive modification of the frames between S-19 and S-22, in accordance with “Part 5—Preventative Modification” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Accomplish of the modification required by this paragraph terminates the requirements of paragraphs (g), (h), (m), and (n) of this AD for the modified location only.

    (q) New Requirement of This AD: Inspections of Preventive Modification for Groups 1-3, Configuration 1, Airplanes

    For airplanes identified as Groups 1 through 3, Configuration 1, in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015: Except as required by paragraph (t)(1) of this AD, at the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, do HFEC, LFEC, and detailed inspections for cracking in accordance with “Part 7—INSPECTION OF PREVENTATIVE MODIFICATION” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Repeat the inspections thereafter at the applicable interval specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. If any cracking is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (u) of this AD.

    (r) New Requirement of This AD: Inspections of Preventive Modification for Groups 1-6, Configuration 2

    For airplanes identified as Groups 1 through 6, Configuration 2, in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015: Except as required by paragraph (t)(1)of this AD, at the applicable time specified in table 4 or table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, do HFEC, LFEC, and detailed inspections for cracking in accordance with “Part 8—INSPECTION OF PREVENTATIVE MODIFICATION” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Repeat the inspections thereafter at the applicable interval specified in table 4 or table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. If any cracking is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (u) of this AD.

    (s) New Requirement of This AD: Inspections of Preventive Modification for Group 4-6, Configuration 1, Airplanes

    For airplanes identified as Group 4 through 6, Configuration 1, in Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015: At the applicable time specified in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, except as required by paragraph (t)(1) of this AD: Do HFEC, LFEC and detailed inspections for cracking in accordance with “Part 7—INSPECTION OF PREVENTATIVE MODIFICATION” of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015. If any cracking is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (u) of this AD.

    (t) New Requirement of This AD: Exceptions to Service Bulletin Specifications

    (1) Where paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, refers to a compliance time “after the Revision 2 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) The “Condition” column in table 1 and table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1279, Revision 2, dated April 21, 2015, refers to total flight cycles “at the Revision 2 date of this service bulletin.” However, this AD applies to the airplanes with the specified total flight cycles as of the effective date of this AD.

    (u) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles 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 paragraph (v)(1) of this AD. Information may be emailed to: 9-ANM-LAA[email protected]

    (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.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane and the approval must specifically refer to this AD.

    (4) AMOCs approved for AD 2009-02-06, Amendment 39-15796 (74 FR 10469, March 11, 2009); AD 2009-02-06 R1, Amendment 39-16015 (74 FR 45979, September 6, 2009); and AD 2011-23-05, Amendment 39-16856 (76 FR 67343, November 1, 2011); are approved as AMOCs for the corresponding provisions of this AD.

    (v) Related Information

    (1) For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue SW., Renton, Washington 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, 1601 Lind Avenue SW., Renton, Washington. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 17, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30008 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5816; Directorate Identifier 2015-NM-029-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2006-10-16, which applies to all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. AD 2006-10-16 requires, for certain airplanes, repetitive inspections for cracking of the outboard and center sections of the horizontal stabilizer, and repair if necessary. For certain other airplanes, AD 2006-10-16 requires a detailed inspection to determine the type of fasteners, and related investigative actions and repair if necessary. Since we issued AD 2006-10-16, additional cracking was found in the splice plates, hinge fittings, terminal fittings, the upper skin of the outboard and center sections, and the rear spar webs before reaching the inspection interval specified in AD 2006-10-16. Cracked and fractured Maraging steel fasteners were also found. This proposed AD would reduce the compliance time for certain inspections and would add repetitive inspections for cracking of the splice plates, hinge fittings, terminal fittings, the upper skin of the outboard and center sections, and the rear spar webs in Zone B. This proposed AD would also add an inspection to determine whether fasteners are magnetic in Zone C, repetitive ultrasonic inspections for cracking and fractures of affected fasteners, and related investigative and corrective actions if necessary. This proposed AD would also add an optional modification, which would terminate certain repetitive inspections, and would add post-modification inspections and corrective action if necessary. We are proposing this AD to detect and correct this cracking, which could lead to reduced structural capability of the outboard and center sections of the horizontal stabilizer and could result in loss of control of the airplane.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: 202-493-2251.

    • 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 service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5816.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5816; 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: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    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-2015-5816; Directorate Identifier 2015-NM-029-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

    On May 8, 2006, we issued AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006), for all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. AD 2006-10-16 requires, for certain airplanes, repetitive inspections for cracking of the outboard and center sections of the horizontal stabilizer, and repair if necessary. For certain other airplanes, AD 2006-10-16 requires a detailed inspection to determine the type of fasteners, related investigative actions, and repair if necessary. AD 2006-10-16 resulted from reports of cracking in the outboard and center section of the aft upper skin of the horizontal stabilizer, the rear spar chord, rear spar web, terminal fittings, and splice plates; and a report of fractured and cracked steel fasteners. We issued AD 2006-10-16 to detect and correct this cracking, which could lead to reduced structural capability of the outboard and center sections of the horizontal stabilizer and could result in loss of control of the airplane.

    Actions Since AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006), Was Issued

    Since we issued AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006), additional cracking was found in the splice plates, hinge fittings, terminal fittings, the upper skin of the outboard and center sections, and the rear spar webs before reaching the inspection interval specified in AD 2006-10-16. Cracked and fractured Maraging steel fasteners were also found.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015. The service information describes procedures for accomplishing Zone A, Zone B, and Zone C inspections for cracking of the upper skin and upper rear spar chord of the outboard and center sections of the horizontal stabilizer, and related investigative and corrective actions if necessary. The service information also describes procedures for a magnetic inspection to determine the type of fasteners, ultrasonic inspections for cracking and fractures of affected fasteners, and related investigative actions and corrective actions if necessary. The service information also describes procedures for an optional modification, which would end certain repetitive inspections, and procedures for post-modification inspections and corrective action if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    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

    Although this proposed AD does not explicitly restate the requirements of AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006), this proposed AD would retain all of the requirements. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraph (g) of this proposed AD. This proposed AD would reduce the compliance time for certain inspections and add new repetitive inspections for cracking of the splice plates, hinge fittings, terminal fittings, the upper skin of the outboard and center sections, and the rear spar webs in Zone B. This proposed AD would also add an inspection to determine whether fasteners are magnetic in Zone C (made of H-11 steel), repetitive ultrasonic inspections for cracking and fractures of affected fasteners, and related investigative and corrective actions if necessary. This proposed AD would also add an optional modification, which would end certain repetitive inspections, and procedures for post-modification inspections and corrective action if necessary. This proposed AD also adds optional open-hole NDT inspections (high frequency eddy current inspections) for certain airplanes, for Zone B inspections. This proposed AD would also require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between this Proposed AD and the Service Bulletin.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5816.

    The phrase “related investigative actions” is used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

    The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Difference Between This Proposed AD and the Service Bulletin

    Although Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, specifies that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require repairing those conditions in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Costs of Compliance

    We estimate that this proposed AD affects 116 airplanes of U.S. registry.

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

    Estimated Costs—Required Actions Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Zone A Inspections (required by AD 2006-10-16, Amendment 39-14600) 8 work-hours × $85 per hour = $680 $0 $680 Up to $78,880. Zone B Open-hole NDT Inspection (required by AD 2006-10-16, Amendment 39-14600 for Groups 3, 4, and 5 airplanes; and for Groups 1, 2, and 3 airplanes, if done) 30 work-hours × 85 per hour = 2,550 0 2,550 Up to $295,800. Zone C Maraging or H-11 Steel Fastener Inspection (required by AD 2006-10-16, Amendment 39-14600 for Groups 1, 2, and 3 airplanes) 8 work-hours × 85 per hour = 680 0 680 Up to $78,880. New Zone B proposed inspections 248 work-hours × 85 per hour = 21,080 0 21,080 $2,445,280. New Zone C proposed inspection 26 work-hours × 85 per hour = 2,210 0 2,210 $256,360.
    Estimated Costs—Optional Actions Action Labor cost Parts cost Cost per product Open-hole NDT inspections (high frequency eddy current inspections Up to 298 work-hours × $85 per hour = up to $25,330 $$0 Up to $25,330. Zone B Modification Up to 313 work-hours × $85 per hour = up to $26,605 Up to $3,486 Up to $30,091. Post-Modification Inspections Up to 298 work-hours × $85 per hour = up to $25,330 $0 Up to $25,330.

    We have received no definitive data that would enable us to provide a cost estimate for the on-condition actions specified in this proposed AD.

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

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

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

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

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

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

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006), and adding the following new AD: The Boeing Company: Docket No. FAA-2015-5816; Directorate Identifier 2015-NM-029-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by January 11, 2016.

    (b) Affected ADs

    This AD replaces AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006).

    (c) Applicability

    This AD applies to all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes; certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

    (e) Unsafe Condition

    This AD was prompted by reports of cracking found in the splice plates, hinge fittings, terminal fittings, the upper skin of the outboard and center sections, and the rear spar webs before reaching the inspection interval specified in AD 2006-10-16. Cracked and fractured Maraging steel fasteners were also found. We are issuing this AD to detect and correct this cracking, which could lead to reduced structural capability of the outboard and center sections of the horizontal stabilizer and could result in loss of control of the airplane.

    (f) Compliance

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

    (g) Repetitive Inspections/Investigative and Corrective Actions

    At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, except as required by paragraphs (h)(1) and (h)(2) of this AD: Do the applicable actions specified in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of this AD, and all applicable related investigative and corrective actions, in accordance with the applicable part of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, except as required by paragraph (h)(3) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the applicable inspections specified in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of this AD at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015.

    (1) For Group 1 through 3 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Do non-destructive test (NDT) inspections (ultrasonic, high frequency eddy current, and low frequency eddy current inspections) or open-hole NDT inspections (high frequency eddy current inspections), of Zone B for cracking in accordance with Part 3 or Part 4 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, as applicable.

    (2) For Group 4 through 6 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Do open-hole NDT inspections (high frequency eddy current inspections), of Zone B for cracking in accordance with Part 4 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015.

    (3) For Group 7 through 9 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Do inspections of Zone A (detailed or high frequency eddy current inspections) and Zone B (high frequency eddy current inspections) for cracking, in accordance with Part 1, Part 2, or Part 4 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, as applicable.

    (4) For Group 1 through 3 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Do an inspection of Zone C Maraging or H-11 steel fasteners to determine whether fasteners are magnetic, in accordance with Part 6 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015.

    (h) Exceptions to Service Bulletin Specifications

    (1) Where Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, specifies a compliance time “after the Revision 2 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) The Condition column of Table 1 of paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, refers to “airplanes with certain total flight cycles and total flight hours.” This AD, however, applies to the airplanes with the specified total flight cycles and total flight hours as of the effective date of this AD.

    (3) Where Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, specifies to contact Boeing for repair instructions: Before further flight, repair using a method approved in accordance with the procedures specified in paragraph (l) of this AD.

    (i) Optional Terminating Action

    (1) For Group 1 through 3 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Accomplishing the Zone B modification, including all applicable related investigative and corrective actions, specified in Part 7 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, except as required by paragraph (h)(3) of this AD, terminates the repetitive inspections specified in paragraphs (i)(1)(i) and (i)(1)(ii) of this AD for the modified area only.

    (i) Inspections required by paragraph (g)(1) of this AD for Zone B, as specified in Part 3 and Part 4 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015.

    (ii) Inspections required by paragraph (g)(4) of this AD for Zone C, as specified in Part 5 and Part 6 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015.

    (2) For Group 1 through 3 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Accomplishing the Zone B open hole NDT inspection, repairing any cracking as applicable, and replacing fasteners as specified in Part 4 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, terminates the repetitive ultrasonic inspections required by paragraph (g)(4) of this AD for Zone C, as specified in Part 6 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, for the inspected area only.

    (3) For Group 4 through 9 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Accomplishing the Zone B modification, including all applicable related investigative and corrective actions, specified in Part 7 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, except as required by paragraph (h)(3) of this AD, terminates the repetitive inspections required by paragraph (g)(2) or (g)(3) of this AD, as applicable, only for Zone B, as specified in Part 4 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, for the modified area only.

    (j) Repetitive Post-Modification Inspections and Corrective Actions

    At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015: Do the applicable inspections specified in paragraphs (j)(1) and (j)(2) of this AD and all applicable corrective actions, in accordance with Part 8 of the Accomplishment Instructions of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, except as required by paragraph (h)(3) of this AD. Do all applicable corrective actions before further flight. Repeat the applicable inspections at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015.

    (1) For Group 1 through 3 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015 on which the Zone B modification specified in paragraph (i)(1) of this AD is done: Do non-destructive test (NDT) inspections (ultrasonic, high frequency eddy current, and low frequency eddy current inspections) or open-hole NDT inspections (high frequency eddy current inspections) of Zone B for cracking.

    (2) For Group 4 through 9 airplanes identified in Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015 on which the Zone B modification specified in paragraph (i)(3) of this AD is done: Do open-hole NDT inspections (high frequency eddy current inspections) of Zone B for cracking.

    (k) Parts Installation Prohibition

    As of the effective date of this AD, no person may install any Maraging or H-11 steel fasteners in the locations specified in this AD. Where Boeing Service Bulletin 747-55A2050, Revision 2, dated January 23, 2015, specifies to install H-11 bolts (kept fasteners), this AD requires installation of Inconel bolts.

    (l) 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 paragraph (m)(1) of this AD. Information may be emailed to: [email protected]

    (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.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) AMOCs approved for AD 2006-10-16, Amendment 39-14600 (71 FR 28570, May 17, 2006), are approved as AMOCs for the corresponding provisions of paragraph (g) of this AD, except for approved AMOCs that allow installation of Maraging or H-11 steel fasteners.

    (m) Related Information

    (1) For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 19, 2015. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30120 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5813; Directorate Identifier 2014-NM-111-AD] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 7X airplanes. This proposed AD was prompted by a fuel leak that occurred in the baggage compartment during fuel system pressurization. This proposed AD would require opening the fuel boxes and restoring the sealing. We are proposing this AD to detect and correct failure of a connector or coupling on a fuel line, which, in combination with a leak in the corresponding enclosure (i.e., fuel box), could result in a fire in the baggage compartment and affect the safe flight of the airplane.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: 202-493-2251.

    • 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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5813; 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 Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149.

    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-2015-5813; Directorate Identifier 2014-NM-111-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 European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0116, dated May 13, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model FALCON 7X airplanes. The MCAI states:

    During the fuel system pressurization of a production line Falcon 7X aeroplane, a fuel leak occurred in the baggage compartment. The technical investigations concluded that a double failure of a connector (or coupling) on a fuel line, in combination with a defective fuel tightness of the corresponding enclosure (fuel box), caused the leak.

    Failure of the second barrier (fuel box) is a dormant failure, as this will only manifest itself in case of connector (or fuel pipe coupling) failure in flight.

    This condition, if not corrected, could result in a fire in the baggage compartment, which would affect the aeroplane safe flight.

    To address this potential unsafe condition, Dassault Aviation issued Service Bulletin (SB) F7X-284, which provides instructions to restore the sealing of the Left Hand (LH) and Right Hand (RH) fuel boxes.

    For the reasons described above, this [EASA] AD requires opening of the fuel boxes and restoration of the sealing of the fuel boxes to meet the initial design specifications.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5813.

    Related Service Information Under 1 CFR Part 51

    Dassault Aviation has issued Service Bulletin 7X-284, Revision 1, dated April 8, 2014. The service information describes procedures for opening the fuel boxes and restoring the sealing. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    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.

    Costs of Compliance

    We estimate that this proposed AD affects 39 airplanes of U.S. registry.

    We also estimate that it would take about 16 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts are negligible. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $53,040, or $1,360 per product.

    According to the manufacturer, all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Dassault Aviation: Docket No. FAA-2015-5813; Directorate Identifier 2014-NM-111-AD. (a) Comments Due Date

    We must receive comments by January 11, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, serial numbers (S/Ns) 1 through 140 inclusive, S/Ns 142 through 156 inclusive, S/Ns 158 through 176 inclusive, S/Ns 178 through 181 inclusive, and S/N 183, 184, 187, 188, 190, 194, and 200.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a fuel leak that occurred in the baggage compartment during fuel system pressurization. We are issuing this AD to prevent failure of a connector or coupling on a fuel line, which, in combination with a leak in the corresponding enclosure (i.e., fuel box), could result in a fire in the baggage compartment and affect the safe flight of the airplane.

    (f) Compliance

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

    (g) Open the Fuel Box and Restore the Sealing

    Within 98 months after the effective date of this AD, open the left-hand and right-hand fuel boxes and restore the sealing, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-284, Revision 1, dated April 8, 2014.

    (h) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone (425) 227-1137; fax (425) 227-1149. Information may be emailed to: [email protected] 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. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (i) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0116, dated May 13, 1014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5813.

    (2) For service information identified in this AD, contact Dassault Falcon Jet, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 17, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30022 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-5811; Directorate Identifier 2014-NM-158-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2004-19-11 for certain Airbus Model 320 series airplanes. AD 2004-19-11 currently requires modification of the inner rear spar web of the wing, cold expansion of the attachment holes of the forward pintle fitting and the actuating cylinder anchorage of the main landing gear (MLG), repetitive ultrasonic inspections for cracking of the rear spar of the wing, and corrective action if necessary. AD 2004-19-11 also provides optional terminating action for the repetitive inspections. Since we issued AD 2004-19-11, we have determined that the terminating action is necessary to address the unsafe condition. This proposed AD is intended to complete certain mandated programs intended to support the airplane reaching its limit of validity (LOV) of the engineering data that support the established structural maintenance program. This proposed AD would retain the requirements of AD 2004-19-11 and would require the previously optional terminating action. We are proposing this AD to prevent fatigue cracking of the inner rear spar, which may lead to reduced structural integrity of the wing and the MLG.

    DATES:

    We must receive comments on this proposed AD by January 11, 2016.

    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: 202-493-2251.

    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, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5811; 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 Operations office (telephone 800-647-5527) is in the ADDRESSESsection. 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, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    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-2015-5811; Directorate Identifier 2014-NM-158-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

    On September 21, 2004, we issued AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004). AD 2004-19-11 requires actions intended to address an unsafe condition on certain Airbus Model 320 series airplanes. AD 2004-19-11 superseded AD 2000-10-15, Amendment 39-17739 (65 FR 34069, May 26, 2000).

    Since we issued AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), we have determined that the modification of the inner rear spar that is an optional terminating action of AD 2004-19-11 must be accomplished in order to address the identified unsafe condition.

    As described in FAA Advisory Circular 120-104 (http://www.faa.gov/documentLibrary/media/Advisory_Circular/120-104.pdf), several programs have been developed to support initiatives that will ensure the continued airworthiness of aging airplane structure. The last element of those initiatives is the requirement to establish a limit of validity (LOV) of the engineering data that support the structural maintenance program under 14 CFR 26.21. This proposed AD is the result of an assessment of the previously established programs by the design approval holder (DAH). The actions specified in this proposed AD are necessary to complete certain programs to ensure the continued airworthiness of aging airplane structure and to support an airplane reaching its LOV.

    The European Aviation Safety Agency, which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0169, corrected July 22, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Airbus Model A320 series airplanes. The MCAI states:

    During centre fuselage certification full scale fatigue test, cracks were found on the inner rear spar at holes position 52 on the right hand wing due to fatigue aspects.

    This condition, if not detected and corrected, could affect the structural integrity of the aeroplane.

    To prevent such cracks, Airbus developed modifications, which were introduced in production and in service through several Airbus Service Bulletins (SB). DGAC France issued * * * [an earlier AD], which was subsequently superseded by [DGAC] AD 2001-249 [which corresponds with FAA AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004)], to require modification of the rear spar on some aeroplanes, post-modification repetitive inspections and, depending on findings, accomplishment of a repair. DGAC France AD 2001-249 also specified that modification in accordance with Airbus SB A320-57-1089 (in-service equivalent to Airbus mod 24591) constituted (optional) terminating action for the repetitive inspections.

    Since that [DGAC] AD [2001-249] was issued, in the framework of the A320 Extended Service Goal (ESG), it has been determined that Airbus mod 24591 is necessary to allow aeroplanes to operate up to the new ESG limit.

    For the reasons described above, this [EASA] AD retains the requirements of DGAC France AD 2001-249, which is superseded, and requires modification of all pre-mod 24591 aeroplanes.

    The modification includes modifying all specified fastener holes in the inner rear spar of the wing. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5811.

    Related Service Information Under 1 CFR part 51

    Airbus has issued the following service information.

    • Airbus Service Bulletin A320-57-1004, Revision 02, dated June 14, 1993. This service information describes procedures for modifying the inner rear spar web of the wing.

    • Airbus Service Bulletin A320-57-1060, Revision 2, dated December 16, 1994. This service information describes procedures for a cold expansion of all the attachment holes for the forward pintle fitting of the main landing gear (MLG), except for the holes that are for taper-lok bolts; and for a cold expansion of the holes at the actuating cylinder anchorage of the MLG.

    • Airbus Mandatory Service Bulletin A320-57-1088, Revision 04, dated August 6, 2001. This service information describes procedures for doing ultrasonic inspections for cracking of the rear spar of the wing.

    • Airbus Service Bulletin A320-57-1089, Revision 03, dated February 9, 2001. This service information describes modification of the airplane by accomplishing cold reexpansion of the holes in the inner rear spar for the attachment of gear rib 5, forward pintle fitting, and actuating cylinder anchorage; and the installation of interference fit fasteners in the rear spar and gear rib 5.

    This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSESsection of this NPRM.

    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.

    Costs of Compliance

    We estimate that this proposed AD affects 84 airplanes of U.S. registry.

    The actions required by AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), and retained in this proposed AD take about 684 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $13,644 per product. Based on these figures, the estimated cost of the actions that are required by AD 2004-19-11 is $71,784 per product.

    We also estimate that it would take about 980 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $32,727 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $9,746,268, or $116,027 per product.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

    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.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), and adding the following new AD: Airbus: Docket No. FAA-2015-5811; Directorate Identifier 2014-NM-158-AD. (a) Comments Due Date

    We must receive comments by January 11, 2016.

    (b) Affected ADs

    This AD replaces AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2014).

    (c) Applicability

    This AD applies to Airbus Model A320-211, -212, -214, -231, -232, and -233 airplanes, certificated in any category, all manufacturer serial numbers, except those on which Airbus modification (mod) 24591 has been embodied in production.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by reports of fatigue cracking of the inner rear spar of the wing and also by the determination that the modification of the inner rear spar is necessary to address the unsafe condition. We are issuing this AD to prevent fatigue cracking of the inner rear spar, which may lead to reduced structural integrity of the wing and the main landing gear (MLG).

    (f) Compliance

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

    (g) Retained Modification of Inner Rear Spar Web of the Wing, With Change to Acceptable Service Information

    This paragraph restates the requirements of paragraph (a) of AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), with a change to acceptable service information. For airplanes having manufacturer's serial numbers (MSNs) 003 through 008 inclusive, and 010 through 021 inclusive, except airplanes modified as specified in Airbus Service Bulletin A320-57-1089, dated December 22, 1996; Revision 01, dated April 17, 1997; Revision 02, dated November 6, 1998; or Revision 03, dated February 9, 2001: Prior to the accumulation of 12,000 total flight cycles, or within 500 flight cycles after June 11, 1993 (the effective date of AD 93-08-15, Amendment 39-8563 (58 FR 27923, May 12, 1993)), whichever occurs later, modify the inner rear spar web of the wing in accordance with Airbus Service Bulletin A320-57-1004, Revision 1, dated September 24, 1992; or Revision 2, dated June 14, 1993. As of the effective date of this AD, only Airbus Service Bulletin A320-57-1004, Revision 2, dated June 14, 1993, may be used for the actions required by this paragraph.

    (h) Retained Cold Expansion of Holes at Forward Pintle Fitting and Actuating Cylinder Anchorage of the Main Landing Gear, With Change to Acceptable Service Information

    This paragraph restates the requirements of paragraph (b) of AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), with a change to acceptable service information. For airplanes having MSNs 002 through 051 inclusive, except airplanes modified as specified in Airbus Service Bulletin A320-57-1089, dated December 22, 1996; Revision 01, dated April 17, 1997; Revision 02, dated November 6, 1998; or Revision 03, dated February 9, 2001: Prior to the accumulation of 12,000 total flight cycles, or within 2,000 flight cycles after February 14, 1994 (the effective date of AD 93-25-13, Amendment 39-8777 (59 FR 1903, January 13, 1994)), whichever occurs later, accomplish the requirements of paragraphs (h)(1) and (h)(2) of this AD in accordance with Airbus Service Bulletin A320-57-1060, dated December 8, 1992; Revision 1, dated April 26, 1993; or Revision 2, dated December 16, 1994. As of the effective date of this AD, only Airbus Service Bulletin A320-57-1060, Revision 2, dated December 16, 1994, may be used for the actions required by this paragraph.

    (1) Perform a cold expansion of all the attachment holes for the forward pintle fitting of the main landing gear (MLG), except for the holes that are for taper-lok bolts.

    (2) Perform a cold expansion of the holes at the actuating cylinder anchorage of the MLG.

    (i) Retained Repetitive Ultrasonic Inspections for Cracking of the Rear Spar of the Wing, With No Changes

    This paragraph restates the requirements of paragraphs (c), (d), and (e) of AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), with no changes. Except for airplanes modified as specified in Airbus Service Bulletin A320-57-1089, dated December 22, 1996; Revision 01, dated April 17, 1997; Revision 02, dated November 6, 1998; or Revision 03, dated February 9, 2001: Do the actions specified in paragraphs (i)(1) and (i)(2) of this AD.

    (1) Do an ultrasonic inspection for cracking of the rear spar of the wing, in accordance with Airbus Service Bulletin A320-57-1088, Revision 04, dated August 6, 2001. Inspect at the applicable time specified in paragraph 1.E. of Airbus Service Bulletin A320-57-1088, Revision 04, dated August 6, 2001, except as required by paragraphs (i)(1)(i) and (i)(1)(ii) of this AD.

    (i) For any airplane that has not been inspected but has exceeded the applicable specified compliance time in paragraph 1.E. of Airbus Service Bulletin A320-57-1088, Revision 04, dated August 6, 2001, as of November 5, 2004 (the effective date of AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004)): Inspect within 18 months after November 5, 2004.

    (ii) For any airplane that has been inspected before November 5, 2004 (the effective date of AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004): Repeat the inspection within 3,600 flight cycles after the most recent inspection.

    (2) Repeat the inspection required by paragraph (i)(1) of this AD at intervals not to exceed 3,600 flight cycles or 6,700 flight hours, whichever occurs first, until the requirements of paragraph (k) of this AD have been done.

    (j) Retained Corrective Action for Inspections Required by Paragraphs (i)(1) and (i)(2) of This AD, With Specific Delegation Approval Language.

    This paragraph restates the requirements of paragraph (f) of AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), with specific delegation approval language. If any crack is found during any inspection required by paragraph (i)(1) or (i)(2) of this AD: Before further flight, repair in accordance with a method approved by either the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the Direction Générale de l'Aviation Civile (or its delegated agent); or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). Accomplishment of a repair as required by this paragraph does not constitute terminating action for the repetitive inspections required by paragraph (i)(2) of this AD.

    (k) New Requirement of This AD: Modification of Inner Rear Spar

    Before exceeding 48,000 flight cycles or 96,000 flight hours, whichever occurs first since first flight of the airplane: modify all specified fastener holes in the inner rear spar of the wing, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-57-1089, Revision 03, dated February 9, 2001; except where Airbus Service Bulletin A320-57-1089, Revision 03, dated February 9, 2001, specifies to contact Airbus for certain conditions, before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus's EASA DOA. Modification of all specified fastener holes in the rear spar of the wing terminates the initial and repetitive inspections required by paragraphs (i)(1) and (i)(2) of this AD. If the modification is done both before the airplane accumulates 12,000 total flight cycles and before the effective date of this AD, the modification also terminates the actions required by paragraphs (g) and (h) of this AD.

    (l) Credit for Previous Actions

    (1) This paragraph provides credit for actions required by paragraph (i) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-57-1088, Revision 02, dated July 29, 1999; or Revision 03, dated February 9, 2001, which are not incorporated by reference in this AD.

    (2) This paragraph provides credit for actions required by paragraph (k) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-57-1089, Revision 02, dated November 6, 1998, which is not incorporated by reference in this AD.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. 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 International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected]

    (i) 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. The AMOC approval letter must specifically reference this AD.

    (ii) AMOCs approved previously in accordance with AD 2004-19-11, Amendment 39-13805 (69 FR 58828, October 1, 2004), are approved as AMOCs for the corresponding provisions of paragraphs (g) through (j) of this AD.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus' EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0169, corrected July 22, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5811.

    (2) For service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on November 17, 2015. Jeffrey E. Duven, Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-30006 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-4452; Airspace Docket No. 15-AWA-7] RIN 2120-AA66 Proposed Amendment of Class C Airspace; Capital Region International Airport, MI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class C airspace at Capital Region International Airport, formerly Lansing Capital City Airport, Lansing, MI, by removing a cutout from the surface area that was put in place to accommodate operations around Davis Airport, now permanently closed. Also, this proposal would update the airport's name and geographic coordinates to reflect the current information in the FAA's aeronautical database. The FAA is proposing this action to enable more efficient operations at Capital Region International Airport.

    DATES:

    Comments must be received on or before January 26, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; telephone: (202) 366-9826. You must identify FAA Docket No. FAA-2015-4452 and Airspace Docket No. 15-AWA-7 at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC, 20591; telephone: (202) 267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Colby Abbott, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify terminal airspace as required to preserve the safe and efficient flow of air traffic in the Lansing, MI, area.

    Comments Invited

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

    Communications should identify both docket numbers (FAA Docket No. FAA-2015-4452 and Airspace Docket No. 15-AWA-7) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2015-4452 and Airspace Docket No. 15-AWA-7.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRM's

    An electronic copy of this document may be downloaded through the internet at http://www.regulations.gov.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Central Service Center, Operations Support Group, Federal Aviation Administration, 2601 Meacham Blvd., Fort Worth, TX 76137.

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

    Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the Capital Region International Airport Class C airspace area by removing the cutout from the Class C surface area that excluded the airspace within a 1-mile radius of the former Davis Airport and the airspace 1 mile either side of the 090° bearing from the former Davis Airport. The exclusion from the Class C surface area was in place solely to accommodate operations at Davis Airport, which was located about 3.5 NM east of the Capital Region International Airport. Davis Airport was permanently closed in 2000, and removed from the FAA's aeronautical database in 2006. Since the original purpose of the exclusion no longer exists, the FAA is proposing to remove the words “. . . excluding that airspace within a 1-mile radius of the Davis Airport and excluding that airspace 1 mile either side of the 090° bearing from Davis Airport to the 5-mile radius from Capital City Airport . . .” from the Class C airspace description. This would restore the Class C surface area to a standard configuration of a 5-NM radius around Capital Region International Airport and enhance the management of aircraft operations at the airport.

    Also, this action would update the airport name and geographic coordinates to reflect the current information in the FAA's aeronautical database. This change would replace “Capital City Airport” with “Capital Region International Airport” and replace “lat. 42°46′43″ N., long. 84°35′15″ W.” with “lat. 42°46′43″ N., long. 84°35′10″ W.”

    Class C airspace areas are published in paragraph 4000 of FAA Order 7400.9Z, dated August 6, 2015 and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class C airspace area modification proposed in this document would be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of the FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 4000—Subpart C-Class C Airspace AGL MI C Lansing, MI [Amended] Capital Region International Airport, MI (Lat. 42°46′43″ N., long. 84°35′10″ W.)

    That airspace extending upward from the surface to and including 4,900 feet MSL within a 5-mile radius of Capital Region International Airport; and that airspace extending upward from 2,100 feet MSL to and including 4,900 feet MSL within a 10-mile radius of Capital Region International Airport.

    Issued in Washington, DC, on November 16, 2015. Gary A. Norek, Manager, Airspace Policy Group.
    [FR Doc. 2015-29912 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2015-3675; Airspace Docket No. 15-ANM-19] Proposed Amendment of Class D and Class E Airspace; Walla Walla, WA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class D airspace, Class E surface area airspace, Class E surface area airspace designated as an extension, and Class E airspace extending upward from 700 feet above the surface at Walla Walla Regional Airport, Walla Walla, WA. After a review of the airspace, the FAA found it necessary to amend the airspace area for the safety and management of Instrument Flight Rules (IFR) operations for arriving and departing aircraft at the airport. This action would also update the geographic coordinates of Walla Walla Regional Airport in the respective Class D and E airspace areas above.

    DATES:

    Comments must be received on or before January 11, 2016.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590; telephone (202) 366-9826. You must identify FAA Docket No. FAA-2015-3675; Airspace Docket No. 15-ANM-19, at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone 1-800-647-5527), is on the ground floor of the building at the above address.

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace at Walla Walla Regional Airport, Walla Walla, WA.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3675; Airspace Docket No. 15-ANM-19.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

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

    Availability and Summary of Documents Proposed for Incorporation by Reference

    This document amends FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class D airspace, Class E surface area airspace, Class E surface area airspace designated as an extension, and Class E airspace extending upward from 700 feet above the surface at Walla Walla Regional Airport, Walla Walla, WA. The Class E airspace area designated as an extension would extend from the 4.3-mile radius of Walla Walla Regional Airport to 7.5 miles southwest and 13.4 miles northeast of the airport. Class E airspace extending upward from 700 feet above the surface would be modified to an area 5.7 miles to the west, 16.5 miles to the southwest, 22.5 miles northeast and within a 13.4-mile radius of a point in space location east of Walla Walla Regional Airport. This action would also update the geographic coordinates of the airport for the Class D and E airspace areas listed above.

    Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 5000: Class D Airspace. ANM WA D Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.)

    That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.3-mile radius of Walla Walla Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.

    Paragraph 6002: Class E Airspace Designated as Surface Areas. ANM WA E2 Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.)

    That airspace extending upward from the surface within a 4.3-mile radius of Walla Walla Regional Airport.

    Paragraph 6004: Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area. ANM WA E4 Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.)

    That airspace extending upward from the surface within 2.7 miles each side of the Walla Walla 215° bearing from the airport extending from the 4.3-mile radius of Walla Walla Regional Airport to 7.5 miles southwest of the airport, and within 4.1 miles each side of the Walla Walla 35° bearing from the airport extending from the 4.3-mile radius of Walla Walla Regional Airport to 13.4 miles northeast of the airport.

    Paragraph 6005: Class E Airspace Areas Extending Upward from 700 feet or More Above the Surface of the Earth. ANM WA E5 Walla Walla, WA [Modified] Walla Walla Regional Airport, WA (Lat. 46°05′43″ N., long. 118°17′09″ W.) Walla Walla Regional Airport, point in space coordinates (Lat. 46°03′27″ N., long.118°12′20″ W.)

    That airspace extending upward from 700 feet above the surface bounded by a line beginning at lat. 45°52′29″ N., long. 118°23′027″ W.; to lat. 45°49′51″ N., long. 118°26′02″ W.; to lat. 45°57′17″ N., long. 118°40′49″ W.; to lat. 46°10′22″ N., long. 118°27′48″ W.; to lat. 46°08′46″ N., long. 118°24′32″ W.; to lat. 46°14′38″ N., long. 118°18′44″ W.; to lat. 46°16′07″ N., long. 118°21′47″ W.; to lat. 46°29′20″ N., long. 118°08′35″ W.; to lat. 46°22′02″ N., long. 117°53′24″ W.; to lat. 46°14′25″ N., long. 118°01′11″ W.; and that airspace within a 13.4-mile radius of point in space coordinates at lat. 46°03′27″ N., long.118°12′20″ W., from the 052° bearing from the Walla Walla Regional Airport clockwise to the 198° bearing.

    Issued in Seattle, Washington, on November 10, 2015. Christopher Ramirez, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2015-29784 Filed 11-25-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Financial Crimes Enforcement Network 31 CFR Part 1010 RIN 1506-AB27 Imposition of Special Measure Against FBME Bank Ltd., Formerly Known as the Federal Bank of the Middle East Ltd., as a Financial Institution of Primary Money Laundering Concern AGENCY:

    Financial Crimes Enforcement Network (FinCEN), Treasury.

    ACTION:

    Proposed rule; re-opening of comment period and availability of supplemental information.

    SUMMARY:

    On July 29, 2015, FinCEN issued a Final Rule imposing the fifth special measure against FBME Bank Ltd. (FBME), formerly known as the Federal Bank of the Middle East, Ltd., with an effective date of August 28, 2015. On August 27, 2015, the United States District Court for the District of Columbia granted FBME's motion for a preliminary injunction and enjoined the Final Rule from taking effect. On November 6, 2015, the Court granted the Government's motion for voluntary remand to allow for further rulemaking proceedings. FinCEN is hereby re-opening the Final Rule to solicit additional comment in connection with the rulemaking, particularly with respect to the unclassified, non-protected documents that support the rulemaking and whether any alternatives to the prohibition of the opening or maintaining of correspondent accounts with FBME would effectively mitigate the risk to domestic financial institutions.

    DATES:

    Written comments on this document must be submitted on or before January 26, 2016.

    ADDRESSES:

    You may submit comments, identified by 1506-AB27, by any of the following methods:

    Federal E-rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Include 1506-AB27 in the submission.

    Mail: The Financial Crimes Enforcement Network, P.O. Box 39, Vienna, VA 22183. Include 1506-AB27 in the body of the text. Please submit comments by one method only.

    • Absent a sufficient showing that a submission warrants confidential treatment, comments submitted in response to this document will become a matter of public record. Therefore, you should generally only submit information that you wish to make publicly available.

    Inspection of comments: The public dockets for FinCEN can be found at www.Regulations.gov. Proposed and final rules published by FinCEN in the Federal Register are searchable by docket number, RIN, or document title, among other things, and the docket number, RIN, and title may be found at the beginning of the document. FinCEN uses the electronic, Internet-accessible dockets at Regulations.gov as their complete docket; all hard copies of materials that should be in the docket, including public comments, are electronically scanned and placed in the docket. In general, FinCEN will make all comments publicly available by posting them on http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    The FinCEN Resource Center at (800) 767-2825.

    SUPPLEMENTARY INFORMATION:

    I. Regulatory Background

    On July 22, 2014, FinCEN published in the Federal Register a Notice of Finding (NOF) in which the Director of FinCEN explained that reasonable grounds exist for concluding that FBME Bank Ltd. (FBME) is a financial institution of primary money laundering concern pursuant to Section 311 of the USA PATRIOT Act (Section 311),1 which is codified at 31 U.S.C. 5318A. FinCEN's NOF identified two main areas of concern: (i) FBME's facilitation of money laundering, terrorist financing, transnational organized crime, fraud schemes, sanctions evasion, weapons proliferation, corruption by politically-exposed persons, and other financial crime; and (ii) FBME's weak anti-money laundering controls, which allow its customers to perform a significant volume of obscured transactions and activities through the U.S. financial system. Simultaneously with the issuance of the NOF, FinCEN also published in the Federal Register a related Notice of Proposed Rulemaking (NPRM) proposing the imposition of the fifth special measure available under Section 311 against FBME.2 In particular, FinCEN proposed to prohibit covered U.S. financial institutions from opening or maintaining a correspondent account in the United States for, or on behalf of, FBME. On July 29, 2015, after considering comments from the public on these documents, and other information available to FinCEN, including both public and non-public reporting, FinCEN published in the Federal Register a Final Rule imposing the fifth special measure as proposed in the NPRM, with an effective date of August 28, 2015.3

    1 Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56.

    2 79 FR 42486 (July 22, 2014) (RIN 1506-AB27).

    3 80 FR 45057 (July 29, 2015) (RIN 1506-AB27).

    FBME filed suit on